21302 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 257 and 261 

[EPA–HQ–RCRA–2009–0640; FRL–9919–44– 

OSWER] 

RIN–2050–AE81 

Hazardous and Solid Waste 

Management System; Disposal of Coal 

Combustion Residuals From Electric 

Utilities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 

publishing a final rule to regulate the 

disposal of coal combustion residuals 

(CCR) as solid waste under subtitle D of 

the Resource Conservation and 

Recovery Act (RCRA). The available 

information demonstrates that the risks 

posed to human health and the 

environment by certain CCR 

management units warrant regulatory 

controls. EPA is finalizing national 

minimum criteria for existing and new 

CCR landfills and existing and new CCR 

surface impoundments and all lateral 

expansions consisting of location 

restrictions, design and operating 

criteria, groundwater monitoring and 

corrective action, closure requirements 

and post closure care, and 

recordkeeping, notification, and internet 

posting requirements. The rule requires 

any existing unlined CCR surface 

impoundment that is contaminating 

groundwater above a regulated 

constituent’s groundwater protection 

standard to stop receiving CCR and 

either retrofit or close, except in limited 

circumstances. It also requires the 

closure of any CCR landfill or CCR 

surface impoundment that cannot meet 

the applicable performance criteria for 

location restrictions or structural 

integrity. Finally, those CCR surface 

impoundments that do not receive CCR 

after the effective date of the rule, but 

still contain water and CCR will be 

subject to all applicable regulatory 

requirements, unless the owner or 

operator of the facility dewaters and 

installs a final cover system on these 

inactive units no later than three years 

from publication of the rule. EPA is 

deferring its final decision on the Bevill 

Regulatory Determination because of 

regulatory and technical uncertainties 

that cannot be resolved at this time. 

DATES: This final rule is effective on 

October 14, 2015. 

ADDRESSES: EPA has established three 

dockets for this regulatory action under 

Docket ID No. EPA–HQ–RCRA–2009– 

0640, Docket ID No. EPA–HQ–RCRA– 

2011–0392, and Docket ID No. EPA– 

HQ–RCRA–2012–0028. All documents 

in these dockets are available at http:// 

www.regulations.gov. Although listed in 

the index, some information is not 

publicly available, e.g., Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in http://

www.regulations.gov or in hard copy at 

the OSWER Docket, EPA/DC, WJC West 

Building, Room 3334, 1301 Constitution 

Ave. NW., Washington, DC 20460. The 

Public Reading Room is open from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the OSWER 

Docket is 202–566–0276. 

FOR FURTHER INFORMATION CONTACT: For 

questions on technical issues: 

Alexander Livnat, Office of Resource 

Conservation and Recovery, 

Environmental Protection Agency, 

5304P; telephone number: (703) 308– 

7251; fax number: (703) 605–0595; 

email address: livnat.alexander@

epa.gov, or Steve Souders, Office of 

Resource Conservation and Recovery, 

Environmental Protection Agency, 

5304P; telephone number: (703) 308– 

8431; fax number: (703) 605–0595; 

email address: souders.steve@epa.gov. 

For questions on the regulatory impact 

analysis: Richard Benware, Office of 

Resource Conservation and Recovery, 

Environmental Protection Agency, 

5305P; telephone number: (703) 308– 

0436; fax number: (703) 308–7904; 

email address: benware.richard@

epa.gov. For questions on the risk 

assessment: Jason Mills, Office of 

Resource Conservation and Recovery, 

Environmental Protection Agency, 

5305P; telephone number: (703) 305– 

9091; fax number: (703) 308–7904; 

email address: mills.jason@epa.gov. 

For more information on this 

rulemaking please visit http://

www.epa.gov/epawaste/nonhaz/

industrial/special/fossil/index.htm. 

SUPPLEMENTARY INFORMATION: 

A. Does this action apply to me? 

This rule applies to all coal 

combustion residuals (CCR) generated 

by electric utilities and independent 

power producers that fall within the 

North American Industry Classification 

System (NAICS) code 221112 and may 

affect the following entities: Electric 

utility facilities and independent power 

producers that fall under the NAICS 

code 221112. The industry sector(s) 

identified above may not be exhaustive; 

other types of entities not listed could 

also be affected. The Agency’s aim is to 

provide a guide for readers regarding 

those entities that potentially could be 

affected by this action. To determine 

whether your facility, company, 

business, organization, etc., is affected 

by this action, you should refer to the 

applicability criteria discussed in Unit 

VI.A. of this document If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. What actions are not addressed in 

this rule? 

This rule does not address the 

placement of CCR in coal mines. The 

U.S. Department of Interior (DOI) and, 

as necessary, EPA will address the 

management of CCR in minefills in 

separate regulatory action(s), consistent 

with the approach recommended by the 

National Academy of Sciences, 

recognizing the expertise of DOI’s Office 

of Surface Mining Reclamation and 

Enforcement in this area. See Unit VI of 

this document for further details. This 

rule does not regulate practices that 

meet the definition of a beneficial use of 

CCR. Beneficial uses that occur after the 

effective date of the rule need to 

determine if they comply with the 

criteria contained in the definition of 

‘‘beneficial use of CCRs.’’ This rule does 

not affect past beneficial uses (i.e., uses 

completed before the effective date of 

the rule.) See Unit VI of this document 

for further details on proposed 

clarifications of beneficial use. 

Furthermore, CCR from non-utility 

boilers burning coal are also not 

addressed in this final rule. EPA will 

decide on an appropriate action for 

these wastes through a separate 

rulemaking effort. See Unit IV of this 

document for further details. Finally, 

this rule does not apply to municipal 

solid waste landfills (MSWLFs) that 

receive CCR for disposal or use as daily 

cover. 

C. The Contents of This Preamble Are 

Listed in the Following Outline 

I. Executive Summary 

II. Statutory Authority 

III. Background 

IV. Bevill Regulatory Determination Relating 

to CCR From Electric Utilities and 

Independent Power Producers 

V. Development of the Final Rule—RCRA 

Subtitle D Regulatory Approach 


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VI. Development of the Final Rule— 

Technical Requirements 

VII. Summary of Major Differences Between 

the Proposed and Final Rules 

VIII. Implementation Timeframes for 

Minimum National Criteria and 

Coordination With Steam Electric ELG 

Rule 

IX. Implementation of the Minimum Federal 

Criteria and State Solid Waste 

Management Plans 

X. Risk Assessment 

XI. Summary of Damage Cases 

XII. Summary of Regulatory Impact Analysis 

XIII. Uniquely Associated Wastes 

XIV. Statutory and Executive Order Reviews 

I. Executive Summary 

This rule establishes nationally 

applicable minimum criteria for the safe 

disposal of coal combustion residuals in 

landfills and surface impoundments. 

This section summarizes these criteria. 

Detailed discussions of the criteria and 

the Agency’s rationale for finalizing 

these requirements are provided in Unit 

VI of this document. 

A. What are coal combustion residuals? 

Coal combustion residuals (CCR) are 

generated from the combustion of coal, 

including solid fuels classified as 

anthracite, bituminous, subbituminous, 

and lignite, for the purpose of 

generating steam for the purpose of 

powering a generator to produce 

electricity or electricity and other 

thermal energy by electric utilities and 

independent power producers. CCR 

includes fly ash, bottom ash, boiler slag, 

and flue gas desulfurization materials. A 

description of the types of CCR can be 

found in the proposed rule (see 75 FR 

35137). 

CCR is one of the largest industrial 

waste streams generated in the U.S. In 

2012, over 470 coal-fired electric 

utilities burned over 800 million tons of 

coal, generating approximately 110 

million tons of CCR in 47 states and 

Puerto Rico. CCR may be generated wet 

or dry; however, this composition may 

change after generation. Some CCR is 

dewatered while other CCR is mixed 

with water to facilitate transport (i.e., 

sluiced). CCR can be sent off-site for 

disposal or beneficial use or disposed in 

on-site landfills or surface 

impoundments. In 2012, approximately 

40 percent of the CCR generated was 

beneficially used, with the remaining 60 

percent disposed in surface 

impoundments and landfills. Of that 60 

percent, approximately 80 percent was 

disposed in on-site disposal units. CCR 

disposal currently occurs at over 310 

active on-site landfills, averaging over 

120 acres in size with an average depth 

of over 40 feet, and at over 735 active 

on-site surface impoundments, 

averaging over 50 acres in size with an 

average depth of 20 feet. 

B. Background 

The Agency first solicited comments 

on the regulation of CCR in a proposed 

rule published in the Federal Register 

on June 21, 2010. This proposal, under 

the Resource Conservation and 

Recovery Act (RCRA), addressed the 

risks from disposal of CCR generated 

from the combustion of coal at electric 

utilities and from independent power 

producers. Two regulatory options were 

proposed. Under the first option, EPA 

proposed to list CCR as special waste 

subject to regulation under subtitle C of 

RCRA, when destined for disposal in 

landfills or surface impoundments. 

Under this option, CCR would require 

‘‘cradle-to-grave’’ management and 

would be subject to requirements for, 

among other things, composite liners, 

groundwater monitoring, structural 

stability requirements, corrective action, 

closure/post closure care and financial 

assurance. States would be required to 

adopt the rule before it went into effect 

and a permitting program would be 

established with direct federal 

oversight. The subtitle C option, as 

proposed, would also effectively result 

in the closure of all CCR surface 

impoundments. 

Under the second option, EPA 

proposed to regulate the disposal of CCR 

under subtitle D of RCRA by issuing 

minimum national criteria. Similar to 

the subtitle C option, this option would 

require composite liners, groundwater 

monitoring, structural stability 

requirements, corrective action, and 

closure/post closure care. However, 

consistent with the available statutory 

authority under subtitle D, EPA 

proposed this option to be a selfimplementing rule with no direct 

federal oversight, with an effective date 

six months after publication in the 

Federal Register. This option required 

all unlined surface impoundments to 

either retrofit to a composite liner or 

close within five years. 

After reviewing all the comments and 

additional data received, EPA is 

promulgating this final rule to regulate 

the disposal of CCR as solid waste under 

subtitle D of RCRA. This rule addresses 

the risks from structural failures of CCR 

surface impoundments, groundwater 

contamination from the improper 

management of CCR in landfills and 

surface impoundments and fugitive dust 

emissions. The rule has also been 

designed to provide electric utilities and 

independent power producers 

generating CCR with a practical 

approach for implementation of the 

requirements and has established 

implementation timelines that take into 

account, among other things, other 

upcoming regulatory actions affecting 

electric utilities and site specific 

practical realities. In order to ease 

implementation of the regulatory 

requirements for CCR units with state 

programs, EPA is also providing the 

opportunity for states to secure approval 

of its CCR program through the State 

Solid Waste Management Plan 

(‘‘SWMP’’). EPA strongly recommends 

that states take advantage of this process 

by revising their SWMPs to address the 

issuance of the revised federal 

requirements in this final rule, and to 

submit revisions of these plans to EPA 

for review. EPA would then review and 

approve the revised SWMPs provided 

they demonstrate that the minimum 

federal requirements in this final rule 

will be met. In this way, EPA’s approval 

of a revised SWMP signals EPA’s 

opinion that the state SWMP meets the 

minimum federal criteria. 

C. What types of CCR units are covered 

by this rule? 

The final rule applies to owners and 

operators of new and existing landfills 

and new and existing surface 

impoundments, including all lateral 

expansions of landfills and surface 

impoundments that dispose or 

otherwise engage in solid waste 

management of CCR generated from the 

combustion of coal at electric utilities 

and independent power producers. The 

requirements of the rule also apply to 

CCR units located off-site of the electric 

utilities’ or independent power 

producers’ facilities that receive CCR for 

disposal. In addition, the rule applies to 

certain inactive CCR surface 

impoundments (i.e., units not receiving 

CCR after the effective date of the rule) 

at active electric utilities’ or 

independent power producers’ facilities, 

regardless of the fuel currently used at 

the facility to produce electricity (e.g. 

coal, natural gas, oil), if the CCR unit 

still contains CCR and liquids. 

The requirements do not apply to: (1) 

CCR landfills that ceased receiving CCR 

prior to the effective date of the rule; (2) 

CCR units at facilities that have ceased 

producing electricity (or electricity and 

other thermal energy) prior to the 

effective date of the rule; (3) CCR 

generated at facilities that are not part 

of an electric utility or independent 

power producer, such as manufacturing 

facilities, universities, and hospitals; (4) 

fly ash, bottom ash, boiler slag, and flue 

gas desulfurization materials, generated 

primarily from the combustion of fuels 

(including other fossil fuels) other than 

coal, for the purpose of generating 

electricity unless the fuel burned 


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consists of more than fifty percent coal 

on a total heat input or mass input basis, 

whichever results in the greater mass 

feed rate of coal; (5) CCR that is 

beneficially used; (6) CCR placement at 

active or abandoned underground or 

surface coal mines; or (7) municipal 

solid waste landfills (MSWLF) that 

receive CCR. 

D. What minimum national criteria are 

being established for CCR landfills and 

CCR surface impoundments? 

This final rule establishes minimum 

national criteria for CCR landfills, CCR 

surface impoundments, and all lateral 

expansions of CCR units including 

location restrictions, liner design 

criteria, structural integrity 

requirements, operating criteria, 

groundwater monitoring and corrective 

action requirements, closure and postclosure care requirements, and 

recordkeeping, notification, and internet 

posting requirements. 

1. Location Restrictions. To ensure 

there will be no reasonable probability 

of adverse effects on health or the 

environment from the disposal of CCR 

in CCR landfills, CCR surface 

impoundments, and all lateral 

expansions of CCR landfills and CCR 

surface impoundments (together ‘‘CCR 

units’’), this final rule establishes five 

location restrictions. The location 

criteria include restrictions relating to 

placement of CCR above the uppermost 

aquifer, in wetlands, within fault areas, 

in seismic impact zones, and in unstable 

areas. All of these location restrictions 

require the owner or operator of a CCR 

unit to demonstrate that they meet the 

specific criteria. As discussed elsewhere 

in this preamble, the five location 

restrictions apply to all new CCR 

landfills, all new and existing CCR 

surface impoundments, and all lateral 

expansions of CCR units; however, 

existing CCR landfills are only subject to 

the location restriction for unstable 

areas. Units that do not meet these 

restrictions can retrofit or make 

appropriate engineering demonstrations 

to meet this criteria. This final rule 

requires owner or operators of existing 

CCR units that cannot make the required 

demonstrations to close, while owners 

or operators of new CCR units and all 

lateral expansions who fail to make the 

required demonstrations are prohibited 

from placing CCR in the CCR unit. 

2. Liner Design Criteria. The final rule 

also establishes liner design criteria to 

help prevent contaminants in CCR from 

leaching from the CCR unit and 

contaminating groundwater. All new 

CCR landfills, new CCR surface 

impoundments, and lateral expansions 

of CCR units must be lined with 

composite liner, which is a liner system 

consisting of two components—a 

geomembrane and a two-foot layer of 

compacted soil—installed in direct and 

uniform contact with one another. The 

final rule allows an owner or operator 

to construct a new CCR unit with an 

alternative composite liner, provided 

the alternative composite liner performs 

no less effectively than the composite 

liner. In addition, new landfills are 

required to operate with a leachate 

collection and removal system which is 

designed to remove excess leachate that 

may accumulate on top of the composite 

(or alternative composite) liner. Existing 

CCR landfills are not required to close 

or retrofit with a composite (or 

alternative composite) liner and a 

leachate collection and removal system. 

These existing CCR units can continue 

to receive CCR after this rule is in effect; 

however, the CCR units must meet all 

applicable groundwater monitoring and 

corrective action criteria to address any 

groundwater releases promptly. Existing 

CCR surface impoundments can also 

continue to operate as designed. 

However, if the existing CCR surface 

impoundment was not constructed with 

a composite (or alternative composite) 

liner or with at least two feet of 

compacted soil with a specified 

hydraulic conductivity, the rule would 

require the unit to retrofit or close if the 

CCR surface impoundment detects 

concentrations of one or more 

constituents listed in appendix IV at 

statistically significant levels above the 

groundwater protection standard 

established by the rule. 

3. Structural Integrity Requirements. 

To help prevent the damages associated 

with structural failures of CCR surface 

impoundments, the final rule 

establishes structural integrity criteria 

for new and existing surface 

impoundments (and all lateral 

expansions) as part of the design 

criteria. While the applicability of the 

structural integrity requirements to 

individual CCR surface impoundments 

vary depending on factors such as dike 

heights and the potential for loss of life, 

environmental damage and economic 

loss if there is a dike failure, the final 

rule establishes requirements for owner 

or operators to conduct a number of 

structural integrity-related assessments 

regularly. These include: (1) Conducting 

periodic hazard potential classification 

assessments to assess the potential 

adverse incremental consequences that 

would occur if there was a failure of the 

CCR surface impoundment; (2) 

conducting periodic structural stability 

assessments by a qualified professional 

engineer to document whether the 

design, construction, operation and 

maintenance is consistent with 

recognized and generally accepted good 

engineering practices; and (3) 

conducting periodic safety factor 

assessments to document whether the 

CCR unit achieves minimum factors of 

safety for slope stability. If a CCR unit 

required to conduct a safety factor 

assessment fails to demonstrate that the 

unit achieves the specified factors of 

safety, the owner or operator must close 

the unit. In addition, certain CCR 

surface impoundments are required to 

develop an emergency action plan 

which defines the events and 

circumstances involving the CCR unit 

that represent an emergency and 

identifies the actions that will be taken 

in the event of a safety emergency. 

4. Operating Criteria. The operating 

criteria include air criteria for all CCR 

units, run-on and run-off controls for 

CCR landfills, hydrologic and hydraulic 

capacity requirements for CCR surface 

impoundments, and periodic inspection 

requirements for all CCR units. These 

criteria address the day-to-day 

operations of CCR units and are 

established to prevent health and 

environmental impacts from CCR units. 

The air criteria address the pollution 

caused by windblown dust from CCR 

units, and require owners and operators 

to minimize CCR from becoming 

airborne at the facility. The run-on 

controls for CCR landfills minimize the 

amount of surface water entering the 

unit that will help prevent erosion, 

surface discharges of CCR in solution or 

suspension, and will mitigate the 

generation of landfill leachate, while 

run-off controls help prevent erosion, 

protect downstream surface water from 

releases from the unit, and minimize 

storm water run-off volume and 

velocity. CCR surface impoundments 

are subject to hydrologic and hydraulic 

capacity requirements to ensure the unit 

can safely handle flood flows, which 

will help prevent uncontrolled 

overtopping of the unit or erosion of the 

materials used to construct the surface 

impoundment. The final rule also 

requires periodic inspections of CCR 

units to identify any appearance of 

structural weakness or other conditions 

that are not consistent with recognized 

and generally accepted good 

engineering standards. 

5. Groundwater Monitoring and 

Corrective Action. The groundwater 

monitoring and corrective action criteria 

require an owner or operator of a CCR 

unit to install a system of monitoring 

wells and specify procedures for 

sampling these wells, in addition to 

methods for analyzing the groundwater 

data collected, to detect the presence of 


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21305 

hazardous constituents (e.g., toxic 

metals) and other monitoring 

parameters (e.g., pH, total dissolved 

solids) released from the units. The final 

rule establishes a groundwater 

monitoring program consisting of 

detection monitoring, assessment 

monitoring and corrective action. Once 

a groundwater monitoring system and 

groundwater monitoring program has 

been established for a CCR unit, the 

owner or operator must conduct 

groundwater monitoring and, if the 

monitoring demonstrates an exceedance 

of a groundwater protection standard for 

any of the identified constituents in 

CCR, must initiate corrective action. 

6. Closure and Post-Closure 

Requirements. The closure and postclosure care criteria require all CCR 

units to close in accordance with 

specified standards and to monitor and 

maintain the units for a period of time 

after closure, including the groundwater 

monitoring and corrective action 

programs. These criteria are essential to 

ensuring the long-term safety of closed 

CCR units. Closure of a CCR unit must 

be completed either by leaving the CCR 

in place and installing a final cover 

system or through removal of the CCR 

and decontamination of the CCR unit. 

The final rule establishes timeframes to 

initiate and complete closure activities, 

and authorize owners or operators to 

obtain time extensions due to 

circumstances beyond the facility’s 

control. As discussed elsewhere in this 

preamble, the rule also establishes 

alternative closure procedures in 

situations where an owner or operator is 

closing a CCR unit, but has no 

alternative CCR disposal capacity or is 

permanently closing the coal-fired 

boiler unit in the foreseeable future. 

Finally, owners and operators are 

required to prepare closure and postclosure care plans describing these 

activities. 

7. Record Keeping, Notification, and 

Internet Posting Requirements. The final 

rule requires owners or operators of CCR 

units to record certain information in 

the facility’s operating record. In 

addition, owners and operators are 

required to provide notification to States 

and/or appropriate Tribal authorities 

when the owner or operator places 

information in the operating record, as 

well as to maintain a publicly accessible 

internet site for this information. 

8. Severability. EPA intends that the 

provisions of this rule be severable. In 

the event that any individual provision 

or part of this rule is invalidated, EPA 

intends that this would not render the 

entire rule invalid, and that any 

individual provisions that can continue 

to operate will be left in place. The 

following tables provide a summary of 

the specific technical requirements 

applicable to existing and new CCR 

landfills, existing and new CCR surface 

impoundments, and all lateral 

expansions of CCR units. 


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ER17AP15.000</GPH>asabaliauskas on DSK5VPTVN1PROD with RULES

CCR Landfill Requirements 

Existing CCR Landfills New CCR Landfil

Required? 1 I Rule Section Required? 1 

Requirement 

Location Restrictions: " 

Placement Above the " 

Wetlands " 

Fault Areas " 

Seismic Impact Zones " 

Unstable Areas " 

" 

" " 

Composite Liner " 

Leachate Collection and Removal System " 

Groundwater Monitoring and Corrective Action " I §257.90- §257.98 I " 

Weekly Inspections 

Fugitive Dust Controls " §257.80 " 

Run-on, Run-off Controls " §257.81 " 

Surface Water Protection2 " §257.3-3 " 

Closure Requirements " §257.100- §257.103 " 

Post-Closure Care " §257.104 " Recordkeeping Requirements " §257.105 " 

Notification " §257.106 " 

Publicly Accessible Internet Site Requirements " §257.107 " 

1 '1/ =required, - = not required. 

2 In existing regulations at 40 CFR part 257, subpart A. 

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CCR Surface Impoundment Requirements 

Existing Surface Impoundments New Surface Impoundm

Requirement 

Structural Integrity Criteria: 

Marker 3 

Hazard Potential Classification Assessments 3 

Emergency Action Plan 3 

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CCR Surface Impoundment Requirements 

Existing Surface Impoundments New Surface Impoundm

Five feet high AND 20 acre-feet, or 20 feet high Five feet high AND 2

Requirement 

Yes No Yes 

Required?' Rule Section Required? Rule Section Required?' Rule Section 

Hydrologic & Hydraulic Capacity Requirements ,j §257.82 ,j §257.82 ,j §257.82 

Surface Water Protection4 -v §257.3-3 -v §257.3-3 -v §257.3-3 

Closure Requirements -v §257.100- -v §257.100- -v §257.100- 

&257.103 &257.103 &257.103 

Post-Closure Care -v §257.104 -v §257.104 -v §257.104 Recordkeeping Requirements -v §257.105 -v §257.105 -v §257.105 

Notification Requirements -v §257.106 -v §257.106 -v §257.106 

Publicly Accessible Internet Site Requirements -v §257.107 -v §257.107 -v §257.107 

1 "1/ = required, - = not required. 

2 Existing CCR surface impoundments are required to be constructed with two feet of compacted soil with a hydraulic conductivity of no more than 1 xl o·7 em/s

requirements of §257.70(b), or an alternative liner that meets the requirements of §257.70(c). 

3 This requirement does not apply to an incised CCR surface impoundment. 

4 In existing regulations at 40 CFR part 257, subpart A. 
Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21309 

E. When must owners or operators of 

CCR landfills and CCR surface 

impoundments meet the minimum 

national criteria? 

The rule becomes effective six months 

after the publication date of this rule. 

The final rule establishes timeframes for 

certain technical criteria based on the 

amount of time determined to be 

necessary to implement the 

requirements (e.g., installing the 

groundwater monitoring wells and 

establishing the groundwater 

monitoring program). In establishing 

these timeframes, EPA accounted for 

other Agency rulemakings that are 

anticipated to also affect the owners or 

operators of CCR units, namely the 

Effluent Limitations Guidelines and 

Standards for the Steam Electric Power 

Generating Point Source Category (78 

FR 34432; proposed rule issued June 7, 

2013) and the Carbon Pollution 

Emission Guidelines for Existing 

Stationary Sources: Electric Utility 

Generating Units (79 FR 34830; 

proposed rule issued June 18, 2014). 

Specifically, EPA developed 

implementation timeframes that would 

ensure that owner or operators of CCR 

units would not be required to make 

decisions about those CCR units without 

first understanding the implications that 

such decisions would have for meeting 

the requirements of all applicable EPA 

rules. 

F. Deferral of Final Bevill Determination 

This rule defers a final Bevill 

Regulatory Determination with respect 

to CCR that is disposed in CCR landfills 

and CCR surface impoundments until 

additional information is available on a 

number of key technical and policy 

questions. This includes information 

needed to quantify the risks of CCR 

disposal, and the potential impacts of 

recent Agency regulations on the 

chemical composition of CCR. The 

Agency also needs further information 

on adequacy of the state programs. 

G. Beneficial Use 

The final rule retains the Bevill 

exclusion for CCR that is beneficially 

used, and provides a definition of 

beneficial use to distinguish between 

beneficial use and disposal. 

H. Implementation 

Because the regulations have been 

promulgated under sections 1008(a), 

4004(a), and 4005(a) of RCRA, the rule 

does not require permits, does not 

require states to adopt or implement 

these requirements, and EPA cannot 

enforce these requirements. Instead, 

states or citizens can enforce the 

requirements of this rule under RCRA’s 

citizen suit authority; the states can also 

continue to enforce any state regulation 

under their independent state 

enforcement authority. (For a more 

detailed discussion of EPA authorities 

under RCRA and its relationship to this 

rule, see 75 FR 35128, June 21, 2010). 

EPA recognizes the significant role 

states play in implementing these 

requirements and EPA strongly 

encourages states to revise their SWMPs 

to show how these new criteria will be 

implemented. EPA would then review 

and approve the revised plan provided 

it demonstrates that the minimum 

federal requirements in this final rule 

will be met. In this way, EPA’s approval 

of a revised plan signals EPA’s opinion 

that the State’s SWMP meets the 

minimum federal criteria. For a more 

detailed discussion on the role of the 

states in implementing this rule, please 

refer to Unit IX of this document. 

I. Characterization of Baseline Affected 

Entities and CCR Management Practices 

This action will affect CCR generated 

by coal-fired electric utility plants in the 

NAICS industry code 221112 (i.e., the 

‘‘Fossil Fuel Electric Power Generation’’ 

industry within the NAICS 22 

‘‘Utilities’’ sector code). Based on 2012 

electricity generation data published by 

the Energy Information Administration 

(EIA), the Regulatory Impact Analysis 

(RIA) for this action estimated that a 

total of 478 operational coal-fired 

electric utility plants in this NAICS 

code could be affected by this action. 

These plants are owned by 242 entities 

consisting of 166 companies, 17 

cooperative organizations, 58 state or 

local governments, and one federal 

agency. A sub-total of 81 of the 242 

owner entities (i.e., 33 percent may be 

classified as small businesses, small 

organizations, or small governments). 

The 478 coal-fired electric utility plants 

operate a total of 1,045 CCR 

management units (735 surface 

impoundments and 310 landfills). These 

478 plants generate 110 million tons of 

CCR, consisting of 201 plants (42 

percent) disposing in on-site landfills, 

169 (35 percent) disposing in on-site 

ponds, and 197 (41 percent) disposing 

in off-site landfills. Because some plants 

use more than one CCR management 

method, these plant counts exceed 478 

total plants. In addition, 293 of the 478 

plants supply CCR for beneficial uses in 

at least 14 industries. Nineteen of the 

293 plants solely supply CCR for 

beneficial uses. As of 2012, CCR 

beneficial uses (i.e., industrial 

applications) involved about 52 million 

tons annually. 

J. Summary of Estimated Regulatory 

Costs and Benefits 

The EPA estimated future regulatory 

compliance costs and expected future 

human health and environmental 

protection benefits can be found in the 

RIA document which is available from 

the docket for this action. The estimated 

costs and benefits for the CCR rule are 

incremental to the baseline (current) 

practices by the electric utility industry 

to manage CCR in accordance with (a) 

existing state government 

environmental regulations and (b) 

utility company CCR management 

methods. 

The RIA estimates the cost of the rule 

over a 100 year period because of: (1) 

CCR unit lifespans (40 years to 80 years 

of age); (2) groundwater migration 

(estimated time to peak potential 

exposures of CCR through groundwater 

migration to drinking water wells is 75 

years); and (3) latency periods for onset 

of illness after exposure to CCR, which 

can average 20 years. 

The table below summarizes the 

estimated incremental costs and benefits 

of the rule. The RIA estimates costs to 

comply with the 12 pollution control 

requirements associated with the rule, 

as well as estimated monetized values 

for 11 expected benefits, and discusses 

11 other non-monetized benefits. 

EPA ESTIMATED INCREMENTAL COSTS & BENEFITS OF THE CCR RULE

[millions 2013$ over 100-year period of analysis 2015–2114] 

3% Discount 

rate 

7% Discount 

rate 

A. Annualized Values 

A1. Total Costs ................................................................................................................................................. $735 $509 

A2. Total monetized benefits ............................................................................................................................ $294 $236 

A3. Net Benefits (A2–A1) ................................................................................................................................. ($441) ($441) 

A4. Benefit to Cost Ratio (A3/A1) .................................................................................................................... 0.40 0.46 


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EPA ESTIMATED INCREMENTAL COSTS & BENEFITS OF THE CCR RULE—Continued 

[millions 2013$ over 100-year period of analysis 2015–2114] 

3% Discount 

rate 

7% Discount 

rate 

B. Present Value 

B1. Total Costs ................................................................................................................................................. $23,200 $7,260 

B2. Total monetized benefits ............................................................................................................................ $8,710 $3,360 

B3. Net Benefits (B2–B1) ................................................................................................................................. ($14,490) ($3,900) 

B4. Benefit to Cost Ratio (B2/B1) .................................................................................................................... 0.38 0.46 

II. Statutory Authority 

These regulations are established 

under the authority of sections 1006(b), 

1008(a), 2002(a), 3001, 4004, and 

4005(a) of the Solid Waste Disposal Act 

of 1970, as amended by the Resource 

Conservation and Recovery Act of 1976 

(RCRA), as amended by the Hazardous 

and Solid Waste Amendments of 1984 

(HSWA), 42 U.S.C. 6906(b), 6907(a), 

6912(a), 6944 and 6945(a). 

RCRA section 1006(b) directs EPA to 

integrate the provisions of RCRA for 

purposes of administration and 

enforcement and to avoid duplication, 

to the maximum extent practicable, with 

the appropriate provisions of other EPA 

statutes. Section 1006(b) conditions 

EPA’s authority to reduce or eliminate 

RCRA requirements on the Agency’s 

ability to demonstrate that the 

integration meets RCRA’s protectiveness 

mandate (42 U.S.C. 6005(b)(1)). See 

Chemical Waste Management v. EPA, 

976 F.2d 2, 23, 25 (D.C. Cir. 1992). 

RCRA section 1008(a) authorizes EPA 

to publish ‘‘suggested guidelines for 

solid waste management.’’ 42 U.S.C. 

6907(a). RCRA defines solid waste 

management as ‘‘the systematic 

administration of activities which 

provide for the collection, source 

separation, storage, transportation, 

transfer, processing, treatment, and 

disposal of solid waste.’’ 42 U.S.C. 

6903(28). 

Pursuant to section 1008(a)(3), the 

guidelines are to include the minimum 

criteria to be used by the states to define 

the solid waste management practices 

that constitute the open dumping of 

solid waste or hazardous waste and are 

prohibited as ‘‘open dumping’’under 

section 4005. Only those requirements 

promulgated under the authority of 

section 1008(a)(3) are enforceable under 

section 7002 of RCRA. 

RCRA section 4004 generally requires 

EPA to promulgate regulations 

containing criteria for determining 

which facilities shall be classified as 

sanitary landfills (and therefore not 

‘‘open dumps’’). The statute directs that, 

‘‘at a minimum, the criteria are to 

ensure that units are classified as 

sanitary landfills only if there is no 

reasonable probability of adverse effects 

on health or the environment from 

disposal of solid wastes at such 

facility.’’ 42 U.S.C. 6944(a). 

RCRA section 4005(a), entitled 

‘‘Closing or upgrading of existing open 

dumps’’ generally establishes the key 

implementation and enforcement 

provisions applicable to EPA 

regulations issued under sections 

1008(a) and 4004(a). Specifically, this 

section prohibits any solid waste 

management practices or disposal of 

solid waste that does not comply with 

EPA regulations issued under RCRA 

section 1008(a) and 4004(a). 42 U.S.C. 

6944(a). See also 42 U.S.C. 6903(14) 

(definition of ‘‘open dump’’). This 

prohibition takes effect ‘‘upon 

promulgation’’ of any rules issued under 

section 1008(a)(3) and is enforceable 

through a citizen suit brought pursuant 

to section 7002. As a general matter, this 

means that facilities must be in 

compliance with any EPA rules issued 

under this section no later than the 

effective date of such rules, or be subject 

to a citizen suit for ‘‘open dumping’’ 42 

U.S.C. 6945. RCRA section 4005 also 

directs that open dumps, i.e., facilities 

out of compliance with EPA’s criteria, 

must be ‘‘closed or upgraded.’’ 

Section 7004 lays out specific 

requirements relating to public 

participation in regulatory actions under 

RCRA. Subsection (b) provides that 

‘‘[p]ublic participation in the . . . 

implementation, and enforcement of 

any regulation under this chapter shall 

be provided for, encouraged, and 

assisted by the Administrator.’’ 42 

U.S.C. 6974(b). 

A. Regulation of Solid Wastes Under 

RCRA Subtitle D 

Solid wastes that are neither a listed 

nor characteristic hazardous waste are 

subject to the requirements of RCRA 

subtitle D. Subtitle D of RCRA 

establishes a framework for federal, 

state, and local government cooperation 

in controlling the management of nonhazardous solid waste. The federal role 

is to establish the overall regulatory 

direction, by providing minimum 

nationwide standards that will protect 

human health and the environment, and 

to provide technical assistance to states 

for planning and developing their own 

environmentally sound waste 

management practices. The actual 

planning and any direct implementation 

of solid waste programs under RCRA 

subtitle D, however, remains a state and 

local function, and the Act envisions 

that states will devise programs to deal 

with state-specific conditions and 

needs. EPA has no role in the planning 

and direct implementation of the 

minimum national criteria or solid 

waste programs under RCRA subtitle D, 

and has no authority to enforce the 

criteria. However, states are not required 

to adopt solid waste management 

programs, and thus, Congress developed 

a statutory structure that creates 

incentives for states to implement and 

enforce the federal criteria, but that does 

not necessarily rely on or require a 

regulatory entity to oversee or 

implement them. While Congress 

developed the statutory structure to 

create incentives for states to implement 

and enforce the federal criteria, it does 

not require them to do so. As a result, 

subtitle D is also structured to be selfimplementing. 

RCRA sections 1008(a)(3) and 4004(a) 

delegate broad authority to EPA to 

establish regulations governing the 

management of solid waste. Under 

section 4004(a) EPA is charged with 

establishing requirements to ensure that 

facilities will be classified as sanitary 

landfills ‘‘only if there is no reasonable 

probability of adverse effects on health 

or the environment from the disposal of 

solid waste’’ at the facility. Or in other 

words, under section 4004(a) EPA is 

charged with issuing regulations to 

address all ‘‘reasonable probabilities of 

adverse effects’’ (i.e., all reasonably 

anticipated risks) to health and the 

environment from the disposal of solid 

waste. Section 1008(a)(3) expands EPA’s 

authority to address the risks from any 

of the listed activities. Specifically, EPA 

is authorized to establish requirements 

applicable to ‘‘storage, transportation, 

transfer, processing, treatment, and 

disposal of solid waste.’’ (42 U.S.C. 

6907(a), 6903(28)). 


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1EPA also may act if the handling, storage, 

treatment, transportation, or disposal of such wastes 

may present an imminent and substantial 

endangerment to health or the environment, 

pursuant to RCRA section 7003. 

EPA interprets the standard in section 

4004(a) to apply equally to criteria 

issued under sections 1008(a)(3) and 

4004(a); namely that the criteria must 

ensure that a facility is to be classified 

as a sanitary landfill, and thus allowed 

to continue to operate, ‘‘only if there is 

no reasonable probability of adverse 

effects on health or the environment’’ 

from either the disposal or other solid 

waste management practices at the 

facility. Thus, under the combined 

authority conferred by sections 

1008(a)(3) and 4004(a), a facility is an 

‘‘open dump’’ if it engages in any 

activity involving the management of 

solid waste that does not meet the 

standard in section 4004(a); or in other 

words, any activity involved with the 

management of solid waste that presents 

a reasonable probability of causing 

adverse effects on health or the 

environment. EPA also interprets these 

provisions to authorize the 

establishment of criteria that define the 

manner in which facilities upgrade or 

close, consistent with the standard in 

section 4004(a), to ensure there will be 

no reasonable probability of adverse 

effects on health or the environment. 

As discussed previously, Congress 

created a regulatory structure that 

limited EPA’s role to the creation of 

national criteria that would operate 

even in the absence of a regulatory 

entity to oversee or implement the 

criteria. Under RCRA section 4005(a), 

upon promulgation of criteria under 

section 1008(a)(3), any solid waste 

management practice or disposal of 

solid waste that constitutes the ‘‘open 

dumping’’ of solid waste is prohibited. 

The federal standards apply directly to 

the facility (are self-implementing) and 

facilities are directly responsible for 

ensuring that their operations comply 

with these requirements. States are not 

required to incorporate or implement 

these requirements under any state 

permitting program or other state law 

requirement, and EPA is not authorized 

to impose such requirements, directly or 

indirectly on the states. States and 

citizens may enforce this prohibition 

(and therefore, the federal criteria) using 

the authority under RCRA section 

7002.1

The statute also creates incentives to 

states to implement the criteria. Chief 

among the incentives is a greater role in 

implementation and enforcement of the 

solid waste program, including to a 

limited extent the ability to give 

facilities that are operating within their 

state additional time to come into 

compliance with newly promulgated 

EPA criteria. Specifically, if the facility 

is located in a state with a plan that was 

approved under section 4003(b), the 

state may grant the facility an extension 

of up to five years from the date the 

final rule was published in the Federal 

Register to come into compliance with 

EPA regulations, provided: (a) The 

facility is listed in a state inventory of 

open dumps; and (b) the facility has 

demonstrated that it has considered 

other public or private alternatives for 

solid waste management to comply with 

the prohibition on open dumping and is 

unable to utilize such alternative. For 

facilities that meet these requirements, 

the state may establish a ‘‘schedule for 

compliance’’ which specifies a schedule 

of remedial measures, including an 

enforceable sequence of actions or 

operations, leading to compliance with 

the requirements ‘‘within a reasonable 

time (not to exceed five years from the 

date of publication of criteria under 

section [1008] (a)(3) of this title).’’ 42 

U.S.C. 6945(a). 

As a consequence of this statutory 

structure—the requirement to establish 

national criteria and the absence of any 

requirement for direct regulatory 

oversight—to establish the criteria EPA 

must demonstrate, through factual 

evidence available in the rulemaking 

record, that the final rule will achieve 

the statutory standard (‘‘no reasonable 

probability of adverse effects on health 

or the environment’’) at all sites subject 

to the standards based exclusively on 

the final rule provisions. This means 

that the standards must account for and 

be protective of all sites, including those 

that are highly vulnerable. 

III. Background 

A. EPA’s Proposed Rule 

On June 21, 2010 (75 FR 35128), EPA 

proposed to regulate CCR under RCRA 

to address the risks from the disposal of 

CCR generated from the combustion of 

coal at electric utilities and independent 

power producers. As described in the 

proposal, CCR are residuals generated 

from the combustion of coal and include 

fly ash, bottom ash, boiler slag (all 

composed predominantly of silica and 

aluminosilicates), and flue gas 

desulfurization (FGD) materials 

(predominantly Ca-SOX compounds) 

and can be managed in either wet 

(surface impoundments) or dry 

(landfills) disposal systems. EPA noted 

in the proposed rule that the 

constituents of most environmental 

concern in CCR are metals, such as 

antimony, arsenic, barium, beryllium, 

cadmium, chromium, lead, mercury, 

nickel, selenium, silver and thallium. 

EPA also presented data showing 

numerous instances where these 

constituents (especially arsenic) have 

leached at levels of concern from 

unlined and inadequately clay-lined 

landfills and surface impoundments. 

In the proposal, EPA revisited its 

August 1993 and May 2000 Bevill 

Regulatory Determinations regarding 

CCR generated at electric utilities and 

independent power producers. The 

results from this effort led the Agency 

to consider two primary options for the 

management of CCR and thus, propose 

two alternative regulatory strategies. 

Under the first option, EPA proposed to 

reverse its August 1993 and May 2000 

Bevill Regulatory Determinations (58 FR 

42466 and 65 FR 32214 respectively) 

regarding CCR and to list these residuals 

as special wastes subject to regulation 

under subtitle C of RCRA when they are 

destined for disposal in landfills or 

surface impoundments. Under this 

proposed option, CCR would be 

regulated from the point of generation to 

the point of final disposition and would 

generally be subject to the existing 

subtitle C regulations at 40 CFR parts 

260 through 268, as well as the 

permitting requirements in 40 CFR part 

270, and the state authorization process 

in 40 CFR parts 271–272. Among other 

things, the regulatory requirements 

included waste characterization, 

location restrictions, liner and, if 

applicable, leachate collection 

requirements for land disposal units, 

fugitive dust controls, groundwater 

monitoring and corrective action 

requirements, closure and post-closure 

care requirements, financial assurance, 

permitting requirements, and 

recordkeeping and reporting 

requirements. This option also imposed 

requirements on generators and 

transporters of CCR destined for 

disposal, including manifesting (if the 

CCR destined for disposal is sent offsite). However, in light of practical 

difficulties in implementing certain 

subtitle C regulatory requirements, EPA 

also proposed to revise selected 

requirements under the subtitle C 

option. Consequently, EPA proposed, 

pursuant to its authority under section 

3004(x) of RCRA, modifications to the 

CCR landfill and surface impoundment 

liner and leak detection system 

requirements, the effective dates for the 

land disposal restrictions, and the 

surface impoundment retrofit 

requirements. EPA also proposed to 

establish new land disposal prohibitions 

and treatment standards for both 

wastewater and non-wastewater forms 

of CCR. In part, the proposed 


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2 In the proposal, the Agency stated that the 

RCRA subtitle D alternative did not include 

proposed financial responsibility requirements and 

that any such requirements would be proposed 

separately. The Agency solicited comment on 

whether financial responsibility requirements 

under CERCLA section 108(b) should be a key 

Agency focus under a RCRA subtitle D approach. 

While the Agency received numerous comments 

urging the Agency to establish financial 

responsibility as part of the subtitle D option, the 

CERCLA 108(b) option did not receive significant 

support. As discussed in the proposal and reiterated 

here, EPA will not be requiring financial assurance 

requirements as part of this rule. The Agency 

however will continue to investigate the use of 

other statutory authorities (e.g., CERCLA) to 

establish financial responsibility requirements for 

owners or operators of CCR landfills, CCR surface 

impoundments and any lateral expansion. 

3While EPA cannot enforce the subtitle D 

proposed rules, EPA can take action under section 

7003 of RCRA to abate conditions that ‘‘may present 

an imminent and substantial endangerment to 

health or the environment.’’ EPA can also use the 

imminent and substantial endangerment authorities 

under the CERCLA, or under other federal 

authorities to address those circumstances where a 

unit(s) may pose a threat. 

4 In considering whether to retain or to reverse 

the August 1993 and May 2000 Regulatory 

Determinations regarding the Bevill exemption of 

CCR destined for disposal, the Agency re-examined 

the RCRA section 8002(n) study factors. These eight 

study factors are: (1) Source and volumes of CCR 

generated per year; (2) present disposal and 

utilization practices (which includes evaluation of 

existing state regulatory oversight and beneficial 

use); (3) potential danger, if any, to human health 

and the environment from the disposal and reuse 

of CCR; (4) documented cases in which danger to 

human health or the environment from surface 

runoff or leachate has been proved; (5) alternatives 

to current disposal methods; (6) the cost of such 

alternative disposal methods; (7) the impact of the 

alternative disposal methods on the use of coal and 

other natural resources; and (8) the current and 

potential utilization of CCR (see 75 FR 35128). 

modifications to the treatment standards 

would result in the closure of existing 

surface impoundments and the 

prohibition of all new surface 

impoundments. (See 75 FR 35128 for a 

complete discussion of this proposed 

option). 

Under the second option, EPA 

proposed to retain the August 1993 and 

May 2000 Bevill Regulatory 

Determinations and to regulate CCR 

disposal under subtitle D of RCRA by 

issuing national minimum criteria to 

ensure the safe disposal of CCR in 

surface impoundments and landfills. 

Under this option, CCR would remain 

classified as a non-hazardous RCRA 

solid waste. EPA proposed to establish 

technical requirements, many of which 

were nearly identical to the technical 

standards proposed under the subtitle C 

option. The technical standards 

included, among other things, locations 

standards, liner and leachate collection 

requirements, groundwater monitoring 

and corrective action standards for 

releases from the units, operating 

criteria, such as fugitive dust control, 

closure and post-closure care 

requirements, and recordkeeping and 

reporting requirements. Under this 

option, EPA did not propose to establish 

regulatory requirements that would 

restrict the generation, transportation, 

storage, or treatment of CCR prior to 

disposal, nor did EPA propose to 

establish financial assurance 

requirements under RCRA.2 Also, 

because of subtitle D’s limitations, the 

proposed rule did not require permits; 

nor could EPA enforce the national 

minimum criteria. Rather, states or 

citizens could enforce the national 

minimum criteria under RCRA’s citizen 

suit authority, and states could continue 

to enforce any state regulation that 

applies to CCR under their independent 

state enforcement authority. 

The subtitle D proposed option was 

designed to be self-implementing, 

meaning that the requirements were 

such that facilities could comply with 

the regulatory requirements without the 

need to interact with a regulatory 

authority. EPA sought to enhance the 

protectiveness of the proposed option 

by requiring certified demonstrations by 

an independent registered professional 

engineer to provide verification that the 

regulatory requirements were being 

adhered to. In addition, the option 

provided for state and public 

notification of the certifications, as well 

as required posting of certain 

information on a Web site maintained 

by the facility and in the operating 

record. (See 75 FR 35128 for a complete 

discussion of this proposed option).3

The Agency also described other 

alternatives considered. For example, 

one subtitle D option, called ‘‘D-prime’’ 

was structured so that all existing CCR 

surface impoundments could continue 

to receive CCR after the effective date of 

the rule for the remainder of the unit’s 

useful life, irrespective of their liner 

type, provided the other provisions of 

the subtitle D option were met (e.g., 

groundwater monitoring). (See 75 FR 

35128 for a complete discussion of this 

and other possible regulatory 

alternatives on which the Agency 

solicited comment.) 

Under both the subtitle C and subtitle 

D alternatives, EPA proposed 

establishing dam safety requirements to 

address the structural integrity of 

surface impoundments. EPA also 

proposed not to change the May 2000 

Regulatory Determination for 

beneficially used CCR, which are 

currently exempt from the hazardous 

waste regulations under section 

3001(b)(3)(A) of RCRA. EPA also did not 

propose to address the placement of 

CCR in mines, or non-minefill uses of 

CCR at coal mine sites. 

In addition to proposing these two 

regulatory options for the management 

of CCR, EPA identified many issues on 

which it solicited comment, 

information, and data. Certain 

solicitations were very general, such as 

comments on alternative options for 

regulating CCR, while other requests for 

comment were very specific in nature, 

for example, whether clay liners 

designed to meet a specified hydraulic 

conductivity might perform differently 

in practices than modeled in the risk 

assessment. (The Agency requested 

comment on issues throughout the 

preamble; however specific issues for 

which EPA solicited comment can be 

found at 75 FR 35221–34224.) 

B. Comments Received on the Proposed 

Rule 

The Agency received over 450,000 

comments on the proposed rule. The 

majority of the commenters focused on 

which regulatory path the Agency 

should pursue for regulating CCR, i.e., 

RCRA’s subtitle C or subtitle D. A 

number of commenters, however, 

argued that no additional regulation was 

necessary and that the states were 

adequately regulating the management 

of CCR. Generally, environmental 

groups and individual citizens favored a 

subtitle C rule arguing that state 

programs have failed and damage cases 

are growing in number. State 

organizations, individual states, and 

industry groups (electric utilities, 

recycling firms, trade associations), 

largely favored a subtitle D rule with a 

permitting program. 

One area that received extensive 

comment was the re-evaluation of the 

eight Bevill study factors.4 Numerous 

commenters provided detailed analysis 

related to the study factors and provided 

their own interpretations of the data 

(e.g., state programs and damage cases). 

Other areas that received significant 

comment included beneficial use and 

the risk assessment. 

Discussion of the specific comments 

germane to this rulemaking are provided 

in the relevant sections of this 

document. 

C. Other Actions During Which 

Comment Was Taken 

1. Public Hearings 

EPA conducted eight public hearings 

during the months of August, 

September, and October in 2010. There 

were over 1300 individual speakers at 

the eight public hearings that 

commented on the proposed rule. 

Testimony at the public hearings 

focused generally on whether EPA 


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5The focus of the Assessment Program was to 

assess the structural integrity of CCR 

impoundments meeting specified criteria. The 

Agency did not include, as part of its evaluation, 

the assessment of other conditions/characteristics of 

the impoundment that may present potential risks 

to human health or the environment, i.e., 

groundwater contamination due to an insufficient 

liner design. 

6EPA issued two Notices of Data Availability (75 

FR 35128 (October 21, 2010) and 78 FR 46940 

(August 2, 2013)) specifically soliciting comment on 

the information generated by the Assessment 

Program and the materials posted on our Web site. 

should adopt a subtitle C or subtitle D 

approach for regulating CCR. Many 

commenters were also concerned with 

fugitive dust emissions and the affect 

these emissions had on their health and 

overall well-being. Other commenters 

were concerned that adopting a subtitle 

C rule for CCR would negatively affect 

the beneficial use of the material. In 

addition to their testimonies that were 

entered into the rulemaking record, over 

1200 additional documents were 

submitted in hard copy and entered into 

the docket (see EPA–HQ–RCRA–2009– 

0640). 

2. Notices of Data Availability 

Subsequent to the proposed rule, the 

Agency published several Notices of 

Data Availability (NODAs), the first on 

October 21, 2010, (75 FR 64974); the 

second on October 12, 2011 (76 FR 

63252) and the third on August 2, 2013 

(78 FR 46940). Specifically: 

• The first NODA invited comment 

on the responses EPA received on 

Information Collection Requests that 

were sent to electric utilities on their 

CCR surface impoundments, as well as 

reports and materials related to the site 

assessments EPA had conducted on a 

subset of these impoundments. 

• The second NODA invited 

comment on a number of topics, 

including (1) chemical constituent data 

from coal combustion residuals; (2) 

facility and waste management unit 

data; (3) information on additional 

alleged damage cases; (4) the adequacy 

of state programs; and (5) beneficial use. 

• The third NODA invited comment 

on (1) supplemental data for the risk 

assessment; (2) supplemental data for 

the RIA; (3) information regarding largescale fill; and (4) data on the CCR 

Assessment Program. EPA also sought 

comment on two technical issues 

associated with the requirements for 

CCR management units: closure 

requirements and regulation of overfills 

(i.e., CCR management units built 

directly over pre-existing CCR landfills 

or CCR surface impoundments). 

Specific comments received on each 

of the three NODAs are discussed in the 

relevant sections of this rule. 

3. Effluent Limitations Guidelines and 

Standards for the Steam Electric Power 

Generating Point Source Category 

Proposed Rule 

On June 7, 2013 (78 FR 34432), EPA 

proposed a regulation that would 

strengthen the controls on discharges 

from certain steam electric power plants 

by revising the technology-based 

effluent limitation guidelines (ELG) and 

standards for the steam electric power 

generating point source category. As 

part of this proposal, EPA discussed its 

current thinking on how a final RCRA 

CCR rule might be aligned and 

structured to account for any final 

requirements adopted under the ELG for 

the Steam Electric Power Generating 

point source category. Two primary 

means of integrating the two rules were 

discussed: (1) Coordinating the design 

of any final substantive CCR regulatory 

requirements and (2) coordinating the 

timing and implementation of the rules 

to allow facilities to coordinate their 

compliance planning and 

implementation and to protect 

electricity reliability for consumers. 

EPA stated that consistent with RCRA 

section 1006(b), effective coordination 

of any final RCRA requirements with 

the ELG requirements would be sought 

in order to minimize the overall 

complexity of the two regulatory 

structures, and facilitate 

implementation of engineering, 

financial, and permitting activities. EPA 

solicited comments on how any final 

CCR final rule might be aligned and 

structured to account for any final 

requirements adopted under the ELG for 

the Steam Electric Power Generation 

point source category. 

D. EPA’s CCR Assessment Program 

In March 2009, the Agency’s CCR 

Assessment Program (herein referred to 

as the Assessment Program) was 

initiated. This effort was in response to 

the December 22, 2008 dike failure of a 

coal ash impoundment at the Tennessee 

Valley Authority (TVA) Kingston Fossil 

Plant in Harriman, Tennessee where 

over one billion gallons of coal ash 

slurry were released, affecting more 

than 300 acres, including residences 

and infrastructure. The TVA Kingston 

impoundment failure ignited a nationwide concern over the safety of coal ash 

impoundments; and EPA was tasked 

with determining whether the potential 

existed for similar impoundment 

failures at other coal-fired power plants. 

In response, EPA developed the 

Assessment Program to evaluate the 

structural stability and safety of all coal 

ash impoundments throughout the 

country.5 As of September 2014, 559 

impoundments had been assessed at 

over 230 coal-fired power plants. 

The Assessment Program began as a 

separate effort from the development of 

this final rule.6 However, the 

information and experience developed 

in carrying out the site assessments 

during the Assessment Program is 

directly relevant to many of the issues 

addressed in this rulemaking, and 

provide further technical support for 

many of the technical criteria. 

Consequently, many of the final 

technical criteria were developed in 

direct response to findings from the site 

assessments. For example, several of the 

technical criteria contained in the 

proposed rule were modified to account 

for the widely accepted engineering 

methodologies and practices used in 

conducting the site assessments, as well 

as current facility practices documented 

during the assessments. In a few 

instances, the criteria were 

supplemented to better align the 

technical requirements with the 

Assessment Program. Included among 

the final criteria that directly rely on the 

Assessment Program are the provisions 

relating to structural integrity 

assessments to address factors of safety, 

periodic reassessments, hazard potential 

classifications, and the hydrologic and 

hydraulic capacity of CCR surface 

impoundments. These requirements are 

further discussed in Unit VI of this 

preamble. 

The Assessment Program focused on 

impoundments meeting four general 

criteria that were designed to identify 

the units most likely to present the same 

risks as the collapsed TVA 

impoundment: (1) Above ground or 

diked; (2) of sufficient height to be 

susceptible to structural failure (i.e., six 

feet); (3) receiving CCR; and (4) located 

at operating coal-fired power plants 

selling power to the electric grid. Also 

included in the assessments were a 

number of inactive impoundments, i.e., 

impoundments not receiving CCR but 

still containing CCR and/or liquid. The 

Agency included these inactive units in 

the assessment reasoning that these 

units would be as susceptible to 

structural failure as units currently 

receiving CCR, given that they still 

contained CCR and maintained an 

ability to impound liquid (i.e., the unit 

had not been breached). The 

Assessment Program did not evaluate, 

however, incised (not having above 

ground berms or dikes) impoundments 

or landfills (not containing liquid 

slurried CCR wastes). EPA chose not to 

assess these units because they did not 

share the characteristics of 


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7ASDSO identified for EPA key documents to 

review including Federal Energy Regulatory 

Commission (FERC) and MSHA guidance. 

8The results of this effort are either presented on 

a facility by facility basis or are summarized by 

round. All of these data have been posted on the 

Agency Web site. 

9 It is important to note that during the 

assessment, no physical drilling, coring or sampling 

was conducted, while on site; however, studies 

were reviewed that often included such 

information. 

impoundments likely to raise concern 

for catastrophic releases, and because no 

known catastrophic structural failures 

were associated with these types of 

units. 

Prior to initiating the assessments, 

EPA consulted with two key dam safety 

organizations, the Association of State 

Dam Safety Officials (ASDSO) and the 

Mine Safety and Health Administration 

(MSHA) to better understand how these 

federal and state dam inspection 

programs operated, including how 

earthen dams and impoundments were 

assessed.7 These groups provided the 

Agency with critical insight and 

information for inspecting and 

evaluating CCR impoundments. The 

Agency also reviewed various technical 

documents relating to dam safety and 

conducting impoundment inspections, 

many of which were recommended by 

these organizations. They were: (1) U.S. 

Army Corp of Engineers (USACE) 2008 

National Inventory of Dams (NIDS); (2) 

Federal Emergency Management 

Agency’s (FEMA) Federal Guidelines for 

Dam Safety—Hazard Potential 

Classification System for Dams (April 

2004); (3) FEMA’s Risk Prioritization 

Tool for Dams User Manual (March 

2008); (4) MSHA’s Handbook (PH07– 

01); (5) MSHA’s Coal Mine 

Impoundment Inspection and Plan 

Review Handbook (October 2007); and 

(6) MSHA’s Engineering and Design 

Manual: Coal Refuse Disposal Facility 

(May 2009); (7) ASDSO’s ‘‘Summary of 

State Dam Safety Laws and 

Regulations,’’ (2000); (8) ASDSO’s 

‘‘Owner Responsible Periodic 

Inspection Guidance,’’ (2005); (9) 

‘‘Guidelines for Inspections of Existing 

Dams.’’ New Jersey Department of 

Environmental Protection—Dam Safety 

(January 2008). 

In developing the criteria that were 

used to conduct the assessments, a 

standard rating system was developed to 

classify the units’ suitability for 

continued safe and reliable operation. 

EPA modeled its impoundment 

condition rating criteria on those 

developed by the State of New Jersey 

(see reference above). 

1. Conducting the Site Assessments 

In order to prioritize the assessments, 

a preliminary hazard potential 

classification ranking was identified for 

each impoundment, based on criteria 

developed by the FEMA and found 

generally in USACE’s NID. EPA elected 

to evaluate first those impoundments 

with a high hazard potential 

classification, which signifies that a 

failure or mis-operation of the unit 

would probably result in the loss of 

human life. 

Upon initiation of the Assessment 

Program, every owner or operator of a 

CCR impoundment was contacted by 

the Agency and supplied with 

information on the objectives of the 

assessment and how the assessments 

were to be conducted. Assessments 

were conducted in rounds, consisting of 

groups of 12–26 facilities per round.8

Prior to each site assessment, to ensure 

uniformity throughout the study, a 

statement of work and an impoundment 

field checklist was developed and 

adhered to during the assessment. 

To ensure objectivity, EPA contracted 

with professional engineers (PEs) in the 

state where the impoundment was 

located who were experts in the area of 

dam safety to perform the site 

assessments. Each individual 

assessment was performed by PEs 

qualified in the areas of geotechnical 

engineering, hydrology and hydraulics, 

and overall dam safety. Upon evaluation 

of a robust set of technical documents 

addressing dam safety and inspections 

as well as comprehensive discussions 

with key dam safety organizations, the 

Assessment Program developed a 

comprehensive set of factors that were 

to be used to evaluate the overall safety 

of CCR surface impoundments, which 

concluded that, among other important 

factors, the static and seismic factors of 

safety, hydrologic and hydraulic 

capacity, liquefaction potential analysis 

and a post-liquefaction stability analysis 

if the soils of the embankment were 

identified to be susceptible to 

liquefaction, and operation and 

maintenance protocols, e.g. 

instrumentation monitoring, inspection 

program, emergency response protocols 

were critical parameters for assessing 

the overall safety of CCR surface 

impoundments. 

The individual evaluations or 

assessments were conducted at each 

impoundment at each facility using 

standard, accepted engineering 

practices, including a visual assessment 

of the CCR surface impoundment, 

interviews with site personnel, a review 

of the history of the CCR surface 

impoundment, and a review of 

engineering documentation related to 

the design, construction, operation, and 

maintenance of the impoundments, 

including available technical analyses. 

At each site visit, additional 

documentation was collected and 

reviewed as available, including 

descriptions, along with supporting 

information, of: (1) The impoundment, 

including location, size, age, design 

and/or alterations to the design, and the 

amount of residuals currently in the 

unit; (2) known, measured settlement of 

the impoundment embankment; (3) 

known, measured movement of the 

impoundment embankment; (4) 

observed erosion of the impoundment 

embankment; (5) seepage; (6) leakage; 

(7); observed cracking of the 

impoundment embankment; (8) 

deterioration, such as scarps, boils, or 

sloughs, of the — embankment; (9); 

seismicity; (10) internal stresses; (11) 

functioning of foundation drains and 

relief wells; (12) stability of critical 

slopes adjacent to the units; and (13) 

regional and site geological conditions. 

If available, state and federal 

inspections reports were also reviewed.9

In addition, for each assessment, the 

following factors were identified, to the 

extent feasible, for evaluation: (1) The 

presence and adequacy of spillways; (2) 

hydrologic and hydraulic capacity of the 

unit; (3) overall structural adequacy and 

stability of structures under all credible 

loading conditions through a review of 

static, seismic, and liquefaction analyses 

with determined factors of safety; (4) 

soil, groundwater, surface water, 

geology, and geohydrology 

characteristics associated with the unit, 

including hydrological data 

accumulated since the impoundment 

was constructed or last inspected; (5) a 

history of the performance of the 

management unit through analysis of 

data from monitoring instruments, 

interviews with facility personnel, and 

review of available operating records; 

(6) quality and adequacy of 

maintenance, surveillance, and methods 

of unit operations for the protection of 

public safety; (7) location of schools, 

hospitals, or other critical 

infrastructures within five miles down 

gradient of the impoundment; and (8) 

whether the impoundment is located 

within federally designated flood plains. 

Finally, each impoundment and any 

associated spillways were evaluated to 

determine whether the impoundment 

and the spillways could withstand the 

loading or overtopping from appropriate 

inflow design flood events. 

Each CCR surface impoundment was 

classified with a hazard potential 

classification following the New Jersey 

Department of Environmental Protection 


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10As noted many times in this document, states 

play a critical role in implementing and overseeing 

these units. To assist states in this effort, EPA has, 

in the majority of cases directly provided the states 

with all of the information from our assessments. 

The Assessment Program reports may be accessed 

at: http://www.epa.gov/wastes/nonhaz/industrial/

special/fossil/surveys2/index.htm. 

Bureau of Dam Safety and Flood 

Control’s hazard potential ranking. Each 

impoundment was classified with a 

hazard potential classification of either; 

‘‘high,’’ ‘‘significant,’’ ‘‘low,’’ or ‘‘lessthan-low.’’ The hazard potential 

classification was a qualitative 

assessment of the potential adverse 

incremental consequences of a dam 

failure. 

At the conclusion of each assessment, 

a report was generated and the 

impoundment was given a condition 

rating of either; satisfactory, fair, poor, 

or unsatisfactory. The condition ratings 

were based on the availability of 

information on the unit and evaluation 

of the previously mentioned factors, 

including the static, seismic, and 

liquefaction factors of safety. No 

impoundments received an 

‘‘unsatisfactory’’ rating. Numerous 

impoundments were, however, rated as 

‘‘poor,’’ often for lack of appropriate 

technical documentation in the 

aforementioned areas. ‘‘Poor’’ or ‘‘fair’’ 

ratings were also an indication that 

additional measures were needed to 

improve the stability of the unit. Of 559 

impoundments assessed, 241 received a 

condition rating of ‘‘satisfactory,’’ 166 

received a condition rating of ‘‘fair,’’ 

and 152 received a ‘‘poor’’ condition 

rating. 

It is important to note that the 

condition rating did not necessarily 

imply that the unit had inadequate 

structural integrity. On the contrary, in 

many instances a structurally sound 

impoundment may have been given a 

condition rating or ‘‘fair’’ or ‘‘poor’’ 

based on other factors such as a lack of 

documented information on the unit or 

insufficient operations and maintenance 

protocols. For example, an 

impoundment could be rated as ‘‘poor’’ 

if it lacked the appropriate technical 

documentation and analyses regarding 

structural or hydrologic and hydraulic 

analyses. EPA rated numerous units as 

‘‘poor’’ based primarily on unavailable 

technical analyses. 

Once the assessment was performed, 

a draft report was prepared. Draft 

reports were reviewed by the 

appropriate state agency, the utility, and 

by EPA.10 Once comments were 

received and incorporated, a final report 

was issued along with recommendations 

for additional actions to be taken by the 

facility (if needed). Facilities then 

developed action plans and schedules to 

implement the recommendations. EPA 

also informed facility owners and 

operators that in addition to 

implementing their action plans, they 

need to adopt an ongoing, routine 

program to assess each surface 

impoundment and to take necessary 

corrective measures to ensure the units’ 

continued structural integrity. 

2. Assessment Program Findings 

Upon completion of the Assessment 

Program, a review was undertaken to 

ascertain the key findings or lessons 

learned from the effort. These key 

findings included: (1) The majority of 

CCR surface impoundments are 

currently inspected on a periodic basis; 

(2) most utilities were readily able to 

supplement outdated or missing 

information with new or updated 

evaluations of their impoundments after 

the on-site portion of EPA’s assessment 

was conducted; (3) in response to the 

assessment report recommendations, 

facilities typically willingly conducted 

remedial actions; (4) interaction with 

the states and the utilities assured 

accuracy in the final assessment reports; 

(5) placing site assessment materials on 

an internet site assured that the public, 

states, and utilities had full access to 

information about the design and 

operation of CCR impoundments and 

did not present either homeland 

security or other confidentiality 

concerns; (6) static, seismic, and 

liquefaction analyses did not pose a 

significant technical or cost burden on 

facilities since many already routinely 

conducted these types of evaluations; 

(7) state regulatory bodies viewed the 

assessments as a means to further 

support existing assessment programs; 

and (8) the use of PEs to certify all final 

reports ensured that the assessments 

reflected the PE’s best judgments. 

3. Assessment Program’s Support for the 

Structural Integrity Requirements of the 

Rule 

As noted, the findings from EPA’s 

Assessment Program provide technical 

and factual support for many of the final 

requirements for structural stability in 

this rule. A more detailed discussion of 

several of the most significant of these 

is presented below. Additional 

discussion of the relevance of these 

findings is included throughout Unit VI 

of this document. 

a. Periodic Inspections/Assessments 

Consistent with the findings from the 

assessments and with EPA’s 

recommendations to facilities as part of 

the Assessment Program, this rule 

requires that all CCR surface 

impoundments be inspected at intervals 

not exceeding seven days for any 

appearances of actual or potential 

structural weakness and other 

conditions that are disrupting or have 

the potential to disrupt the operation or 

safety of the CCR surface impoundment. 

Monitoring of instrumentation is also 

required to be conducted at intervals not 

exceeding 30 days. The Assessment 

Program found that virtually all utility 

companies conduct some sort of 

periodic inspection or monitoring at 

CCR surface impoundments, although 

practices varied among facilities and 

between states. The Assessment 

Program also found that while many 

facilities were conducting regularly 

scheduled inspections, some did not 

adequately document the results of 

these inspections. 

In the final rule, CCR surface 

impoundments exceeding a specified 

size threshold, i.e., height of five feet or 

more and capacity of 20 acre-feet or 

more or a height of 20 feet or more, are 

required to perform annual inspections 

as well as two assessments of structural 

stability quinquennially, (i.e., every five 

years) that include a structural stability 

assessment of specified parameters and 

a factor of safety assessment. Annual 

inspections are broader in scope than 

weekly inspections and are conducted 

to ensure that the design, construction, 

operation and maintenance of the CCR 

unit is consistent with recognized and 

generally accepted good engineering 

standards. Annual inspections must 

include a review of available 

information regarding the status and 

condition of the unit and a visual 

inspection to identify signs of distress or 

malfunction of the unit and appurtenant 

structures. The annual inspections must 

be conducted by a qualified professional 

engineer. 

The Assessment Program also 

reviewed how detailed structural 

stability reviews and inspections were 

recommended to be conducted by 

FEMA, MSHA, and the USACE 

guidelines and found that such 

inspections were recommended to take 

place every three to five years. Review 

of state dam safety programs 

demonstrated that similar detailed 

inspections were also conducted on a 

three-to-five year cycle. Therefore, in 

the final rule, EPA is requiring that 

structural integrity assessments, 

including the calculation of factors of 

safety under various loading conditions, 

be conducted within 18 months of 

publication of the rule, and be repeated 

every five years. The five year review 

timeframe is based on documentation 

showing that the factual bases for such 

reviews are only sound for that time 


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11Rapid (or sudden) drawdown is a condition in 

earthen dikes that may develop when the 

embankment becomes saturated through seepage 

during a high pool elevation in the reservoir. Rapid 

drawdown becomes a threat to the dike when the 

reservoir pool is drawn down or lowered at a rate 

significantly higher than the excess poor water 

pressure within the dike can dissipate. Typically, 

rapid drawdown scenarios are considered for dikes 

with reservoirs used for water supply and 

management or agricultural supply. In these 

scenarios, a high pool elevation is maintained in the 

reservoir in storage months. Subsequently, the 

water supply is drawn on in months where there 

is a demand for the reservoirs contents. This 

drawing down of the pool can present issues for the 

structural integrity of the unit. However, the 

management of CCR surface impoundments differs 

from that of conventional water supply reservoirs. 

CCR surface impoundments are never used for 

water supply, and the only instance in which EPA 

determined through its Assessment Program that 

rapid drawdown loading conditions would be 

relevant to CCR surface impoundments was in the 

event that the CCR surface impoundment had 

already released the contents of the impoundment 

through a breach of the dike or emergency 

discharge. Since the threat of release of CCR and the 

reservoir has already been realized, any failure due 

to rapid drawdown of the embankment is no longer 

critical to the overall containment of the nowreleased contents of the CCR unit. 

12Wieland, M., ‘‘Seismic Design and Performance 

Criteria for Large Storage Dams’’, Proc. 15th World 

Conf. on Earthquake Engineering, Lisbon, Portugal, 

Sep. 24–28, 2012. 

period, and is consistent with federal 

dam safety guidance, specifically 

FEMA. FEMA recommends in Federal 

Guidelines for Dam Safety that dams be 

formally assessed at a frequency not to 

exceed five years by a qualified 

professional engineer. EPA has adopted 

this timeframe to maintain consistency 

with FEMA guidance. The inspection 

and assessment requirements in this 

rule will ensure that there are consistent 

and uniform inspection and assessment 

practices across states and facilities and 

will ensure that problems related to 

their stability will be promptly 

identified and remediated as necessary. 

b. Static, Seismic, and Liquefaction 

Factors of Safety 

(1) Static Factors of Safety. 

Factor of safety (FOS) means the ratio 

of the forces tending to resist the failure 

of a structure, as compared to the forces 

tending to cause such failure as 

determined by accepted engineering 

practice. This analysis is used to 

determine whether a CCR surface 

impoundment’s dikes are engineered to 

withstand the specific loading 

conditions that can be reasonably 

anticipated to occur during the lifetime 

of the unit without failure of the dike, 

if accepted good engineering practices 

are employed. Static factors of safety 

refer to the factors of safety (FOS) under 

static loading conditions that can 

reasonably be anticipated to occur 

during the lifetime of the unit. Static 

loading conditions are unique from 

other loading conditions (e.g., seismic, 

liquefaction) in that static loading 

conditions are those which are in 

equilibrium, meaning the load is at rest 

or is applied with constant velocity. 

EPA reviewed a series of USACE 

guidance documents addressing how to 

determine static FOS. These documents 

included, but were not limited to, 

Engineer Manual EM 1110–2–1902 

‘‘Slope Stability’’ (October 2003), and 

EM 1110–2–1902 ‘‘Stability of Earth and 

Rock-Fill Dams.’’ The Agency also 

assessed the recommendations on how 

to conduct static analysis contained in 

the Engineering and Design Manual for 

Coal Refuse Disposal Facilities, 

originally published by the Mining 

Enforcement and Safety Administration 

(MESA) in 1975 and updated for MSHA 

in May 2009, and in particular Chapter 

6, ‘‘Geotechnical Exploration, Material 

Testing, Engineering Analysis and 

Design.’’ Based on recommendations 

from ASDSO, among others, the Agency 

adopted the USACE guidance to 

determine static FOS, both in the 

Assessment Program and in this 

rulemaking, as these manuals are 

recognized throughout industry as the 

standard routinely used in field 

assessment of structural integrity. 

In EPA’s Assessment Program all CCR 

units were assessed to determine their 

static FOS. Each assessment classified a 

CCR unit as having sufficient structural 

stability under static loading conditions 

if analysis of critical sections of 

embankments demonstrated FOS that 

met or exceeded the values defined by 

USACE for static specific loading 

conditions. EPA found that most CCR 

surface impoundments exhibited 

sufficient calculated factors of safety 

under static loading conditions. EPA 

also found that in those CCR units 

which insufficient factors of safety 

against failure due to static loading were 

calculated, the owner or operator was 

able to implement actions which 

increased the factors of safety under 

static loading conditions to acceptable 

levels. Oftentimes, these implemented 

actions were of a simple nature, such as 

installing riprap (rock armoring the 

slopes) or buttressing the slopes. 

Similarly, this rule adopts the static 

FOS from USACE Engineer Manual EM 

1110–2–1902 ‘‘Slope Stability,’’ with the 

exception of the rapid drawdown 

loading condition,11 which was 

determined not to be relevant to CCR 

surface impoundments. EPA found the 

factors of safety identified by EM 1110– 

2–1902, specifically the Maximum 

Storage pool, Maximum Surcharge pool, 

and End-Of-Construction loading 

conditions, provided consistent, 

achievable levels of safety in CCR 

surface impoundment dikes, 

comprehensively assessed static 

stability, and provided sufficient 

consideration of compounding stresses 

on dikes (e.g., factors of safety values 

greater than 1.00 to account for 

unanticipated loadings acting in 

conjunction or misidentified strength of 

materials). 

(2) Seismic Factor of Safety. 

Seismic FOS means the FOS 

determined using analysis under 

earthquake conditions for a seismic 

loading event, based on the U.S. 

Geological Survey (USGS) seismic 

hazard maps for seismic events with a 

specified return period for the location 

where the CCR surface impoundment is 

located. The seismic FOS analysis is 

used to determine whether a dam would 

remain stable during an earthquake or 

other seismic event. The Agency relied 

on guidance from USACE and MSHA to 

evaluate the appropriate methods to 

determine if a dam would remain stable 

during a seismic event. This includes 

the USACE guidance Engineer Circular 

1110–2–6061: Safety of Dams—Policy 

and Procedures 2204, Engineer Circular 

1110–2–6000: Selection of Design 

Earthquakes and Associated Ground 

Motions 2008, and Engineer Circular 

1110–2–6001: Dynamic Stability of 

Embankment Dams 2004). EPA also 

reviewed MSHA’s 2009 Engineering and 

Design Manual for Coal Refuse Disposal 

Facilities, in particular Chapter 7, 

‘‘Seismic Design: Stability and 

Deformation Analyses.’’ These 

documents are viewed by ASDSO, 

FEMA and MSHA as generally accepted 

guidance on how to conduct seismic 

stability analyses. 

As noted earlier, in performing the 

assessments, EPA directed its 

engineering contractors to assess 

seismic stability of CCR impoundments 

during and following a seismic event 

with a 2% probability of exceedance in 

50 years (i.e. probable earthquake 

within approximately 2,500 years) and a 

horizontal spectral response 

acceleration for 1.0-second period (5% 

of Critical Damping). EPA selected this 

return period for determining the 

maximum design earthquake (MDE) by 

first considering the operating life 

anticipated for CCR surface 

impoundments. EPA has identified the 

operating life of CCR surface 

impoundments to range between 40–80 

years. EPA then consulted the United 

States Geological Survey (USGS) and 

ASDSO to determine a conservative 

probability that should be used in the 

assessments.12 To reduce the likelihood 

of a CCR unit failing during a seismic 


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13https://www.eeri.org/products-page/

monographs/soil-liquefaction-during-earthquakes3/. 

14Seed, H. B., and Idriss, I. M., 1982, ‘‘Ground 

Motions and Soil Liquefaction During 

Earthquakes,’’ Monograph No. 5, Earthquake 

Engineering Research Institute, Berkeley, California, 

pp. 134. 

15 Youd, T. L., Idriss, I. M., 2001, ‘‘Liquefaction 

Resistance of Soils: Summary report from the 1996 

and 1998 NCEER/NSF Workshops on Evaluation of 

Liquefaction Resistance of Soils.’’ Journal of 

Geotechnical and Geoenvironmental Engineering, 

ASCE. 

16United States EPA, Office of Research and 

Development, 1995, EPA/600/R–95/051, RCRA 

Subtitle D (258) Seismic Design Guidance for 

Municipal Solid Waste Landfill Facilities. Available 

as of the Writing of this policy at www.epa.gov/

clhtml/pubtitle.html on the U.S. EPA Web site. 

event, the Agency assessed various 

return periods and chose a conservative 

2500 year return period. The use of this 

‘‘return’’ period was chosen because it 

is conservative, reflects the fact that 

many CCR impoundments are located in 

active seismic zones, and the use of a 

conservative ‘‘return’’ period ensures 

that if a unit meets the seismic FOS it 

is unlikely to fail under most seismic 

events. By evaluating seismic stability 

under a conservative return period and 

requiring the unit to maintain structural 

stability under that design seismic 

event, the likelihood of a seismic event 

occurring at the location of the CCR 

surface impoundment in which the 

strength of the unit is exceeded and the 

unit fails is considerably reduced. 

Additionally, the unit can reasonably be 

anticipated to withstand seismic events 

of a more frequent return period (i.e., 

smaller magnitude). 

The Agency assessed CCR 

impoundments and classified them as 

having seismic stability if modeling 

results of critical failure surfaces were 

calculated to have a FOS greater than 

1.0 under the specified seismic loading 

condition. The Assessment Program 

found that most CCR impoundments did 

meet the required seismic FOS. This 

rule also adopts this seismic stability 

FOS under the 2% probability of 

exceedance in 50 years event. 

The Assessment Program found that 

many CCR impoundments had not 

undergone static or seismic analyses in 

sufficient detail that an independent 

professional engineer could assert that 

they were stable. The assessments gave 

impoundments a condition rating of 

‘‘poor’’ if the utility was unable to 

provide static and seismic studies of 

their units conducted in a fashion 

which represented acceptable 

professional engineering practice. As 

the Assessment Program advanced, 

many utilities independently conducted 

new or updated static and seismic 

analyses of CCR surface impoundments 

in anticipation of their facilities being 

assessed. By the end of the program, 

virtually all facilities had conducted or 

were in the process of conducting static 

and seismic analyses. While some 

utilities noted concern over the costs of 

conducting additional static or seismic 

stability studies, none found that 

completing these studies presented any 

significant engineering challenges. 

(3) Liquefaction Factors of Safety 

Liquefaction FOS means the factor of 

safety determined using analysis under 

liquefaction conditions. Liquefaction is 

a phenomenon which typically occurs 

in loose, saturated or partially-saturated 

soils in which the effective stress of the 

soils reduces to zero, corresponding to 

a total loss of shear strength of the soil. 

The most common occurrence of 

liquefaction is in loose soils, typically 

sands. The liquefaction FOS 

determination in the final rule is used 

to determine if a CCR unit would 

remain stable if the soils of the 

embankment of the CCR unit were to 

experience liquefaction. EPA relied 

primarily on one source to evaluate the 

appropriate methods to determine if a 

dam would remain stable under 

liquefaction conditions. This source was 

‘‘Soil Liquefaction during Earthquakes,’’ 

Idriss and Boulanger, Earthquake 

Engineering Research Institute, 2008.13

EPA also reviewed several technical 

resources regarding soil liquefaction, 

including ‘‘Ground Motions and Soil 

Liquefaction During Earthquakes,’’ Seed 

and Idriss, 1982,14 ‘‘Liquefaction 

Resistance of Soils: Summary report 

from the 1996 and 1998 NCEER/NSF 

Workshops on Evaluation of 

Liquefaction Resistance of Soils,’’ Youd 

and Idriss, 2001,15 and Seismic Design 

Guidance for Municipal Solid Waste 

Landfill Facilities, US EPA, Office of 

Research and Development, 1995.16

These documents are viewed as 

generally accepted guidance on how to 

conduct liquefaction potential analyses 

and residual strength analyses under 

post-liquefaction conditions. 

As noted earlier, in performing the 

assessments, EPA assessed the 

liquefaction potential of soils that 

compose the embankments of the CCR 

unit to determine if the soils present in 

the embankment were of the soil 

classification and configuration that was 

susceptible to liquefaction. This 

determination was based on evidence 

available through interviews with 

facility personnel, construction 

documentation, or representative soil 

sampling, such as information provided 

by corings and borings. Identical to the 

requirements for seismic factor of safety 

calculation, EPA selected a return 

period for a seismic event for analysis 

of liquefaction potential, under a 

seismic loading which may induce 

liquefaction in embankments, of a 2% 

probability of exceedance in 50 years. 

The discussion of the selection of this 

return period can be found in the 

‘‘Seismic Factor of Safety’’ section 

above. 

The Agency assessed CCR 

impoundments and classified them as 

having stability under liquefaction 

conditions if representative soil 

sampling, anecdotal evidence from 

interviews with facility personnel, or 

construction documentation indicated 

that there was no susceptibility to 

liquefaction of the embankment soils or 

if modeling or analysis in critical failure 

planes in the embankment expected to 

be susceptible to liquefaction were 

calculated to have a FOS greater than 

1.00 under post-liquefaction conditions. 

The Assessment Program found that 

most CCR surface impoundments did 

not contain soils in detrimental volumes 

or configurations in the embankment 

that would indicate susceptibility to 

liquefaction. However, the assessment 

effort found that in embankments with 

a presence of soils susceptible to 

liquefaction, most CCR surface 

impoundments did not meet the 

required liquefaction FOS. 

The Assessment Program found that 

many CCR surface impoundments had 

not undergone liquefaction potential 

analyses or post-liquefaction residual 

strength analyses in those instances in 

which liquefaction potential was 

identified (i.e., soils subject to 

liquefaction were present). The 

assessments gave impoundments a 

condition rating of ‘‘poor’’ if there was 

no information available to characterize 

the soils of the embankment, and a 

condition rating of ‘‘poor’’ or ‘‘fair’’ if 

post-liquefaction residual strength 

analysis of soils previously identified as 

being susceptible to liquefaction had not 

been available, with the rating 

dependent on the determined severity of 

the liquefaction potential in the 

embankment. Impoundments with 

calculated liquefaction factors of safety 

which did not meet or exceed 1.00 were 

given a condition rating of ‘‘poor.’’ 

As the Assessment Program advanced, 

many utilities independently conducted 

new or updated liquefaction potential 

analyses or residual strength analyses of 

CCR surface impoundments in 

anticipation of their facilities being 

assessed. By the end of the program, 

virtually all facilities had conducted or 

were in the process of conducting 

liquefaction potential analyses or 

residual strength analyses. While some 

utilities noted concern over the costs of 


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17US Bureau of Reclamation (USBR), ‘‘Water 

Operation and Maintenance Bulletin No. 222,’’ 

Denver, Colorado, December 2007. 

18http://www.oregon.gov/odot/hwy/bridge/docs/

bddm/pdfs/psha.pdf. 

19Canadian Dam Association. Canadian Dam 

Safety Guidelines, 2007, 88 pp. 

20Sonmez, H., 2003. Modification of the 

liquefaction potential index and liquefaction 

susceptibility mapping for a liquefaction-prone area 

(Inegol, Turkey), Env. Geology, (44): 862–871. 

21Seed, R.B., Cetin, O.K., Moss, R.E.S., 

Kammerer, A.M., Wu, J., Pestana, J.M., Riemer, 

M.F., Sancio, R.B., Bray, J.D., Kayen, R.E., Faris, A., 

2003. Recent advances in soil liquefaction 

engineering: a unified and consistent framework, 

26th annual ASCE L.A. Geot. Spring Sem., Long 

Beach, California, April 30, 71 pp. 

conducting additional liquefaction 

potential or residual strength studies, 

none found that completing these 

studies presented any significant 

engineering challenges. 

Based on its experience in the 

Assessment Program and subsequent 

review of numerous technical resources, 

EPA determined that a post-liquefaction 

residual strength factor of safety in the 

embankment of 1.00 is not sufficient. 

Liquefaction potential analysis and 

post-liquefaction residual strength 

analysis involves a larger degree of 

uncertainties, e.g., liquefiable stratum 

configuration, in assumptions and 

analysis which must be accounted for 

with a factor of safety above 1.00. The 

final rule therefore requires CCR surface 

impoundments which are constructed of 

soils determined to be susceptible to 

liquefaction to meet or exceed a 

liquefaction factor of safety of 1.20. EPA 

has determined that 1.20 is an 

appropriate liquefaction factor of safety 

based on several technical guidances 

and memos, including Federal 

Guidelines for Dam Safety: Earthquake 

Analyses and Design of Dams, 

Document 65, FEMA May 2005, which 

states that ‘‘post-liquefaction factors of 

safety are generally required to be a 

minimum of 1.2 to 1.3.’’ 17 18 19 20 21

c. Impoundment Height and 

Relationship to Regulatory 

Requirements 

During the Assessment Program, the 

Agency reviewed the stability issues 

related to various heights of 

impoundments. The Assessment 

Program concluded that impoundments 

with heights less than five feet or those 

retaining less than 20 acre feet were 

unlikely to cause significant 

environmental or economic loss should 

they undergo a catastrophic failure. The 

Agency’s review of MSHA and FEMA 

guidance also noted that ‘‘small’’ units 

were unlikely to cause significant losses 

should they fail. Based on the Agency’s 

experience and FEMA and MSHA’s 

guidance, the Agency has concluded 

that there is a substantial benefit in 

having impoundments which exceed a 

specified size threshold, i.e., height of 

five feet or more and capacity of 20 acrefeet or more or a height of 20 feet or 

more determine their static, seismic, 

and liquefaction FOS on a regular basis. 

The analyses and experience gained in 

conducting the Assessment Program 

indicates that a catastrophic failure of a 

CCR surface impoundment is unlikely 

to occur so long as the factors of safety 

are maintained or exceeded throughout 

the unit’s operating life. This conclusion 

is also consistent with relevant guidance 

and regulations which do not require 

such evaluations for units below a 

certain size threshold. 

d. Hazard Potential Ratings 

Each impoundment assessed in the 

Assessment Program was given a Hazard 

Potential Classification rating of either 

Less-than-Low, Low, Significant, and 

High. Previous classifications were 

reviewed and amended as necessary to 

reflect guidance developed for the 

Assessment Program. The hazard 

potential ratings refer to the potential 

for loss of life or damage if there is a 

dam failure. The ratings do not refer to 

the condition or structural stability of 

the dam. Four hazard potential 

classifications were used in assessing 

the impoundments in the Assessment 

Program: 

High Hazard Potential—Dams 

assigned the high hazard potential 

classification are those where failure or 

mis-operation will probably cause loss 

of human life. 

Significant Hazard Potential—Dams 

assigned the significant hazard potential 

classification are those dams where 

failure or mis-operation results in no 

probable loss of human life, but can 

cause economic loss, environment 

damage, disruption of lifeline facilities, 

or impact other concerns. Significant 

hazard potential classification dams are 

often located in predominantly rural or 

agricultural areas, but could be located 

in areas with population and significant 

infrastructure. 

Low Hazard Potential—Dams 

assigned the low hazard potential 

classification are those where failure or 

mis-operation results in no probable 

loss of human life and low economic 

and/or environmental losses. Losses are 

principally limited to the owner’s 

property. 

Less Than Low Hazard Potential— 

Dams which do not pose high, 

significant, or low hazard potential. 

There is a substantial benefit in 

having owners or operators of all CCR 

impoundments determine the hazard 

potential classification of their units. 

The Assessment Program found that 

many CCR surface impoundments had 

not been given a hazard potential 

classification and consequently, their 

potential threat to human health and the 

environment if a failure were to occur 

was not clearly identified, nor had 

response plans been developed to 

respond to any catastrophic failure. 

Moreover, these classifications should 

be updated over time, particularly to 

account for changes such as population 

growth, construction of key 

infrastructure, or changes to the 

impoundment’s size or operation. The 

Assessment Program also found that 

some states do not classify CCR 

impoundments as ‘‘dams’’ and therefore 

those units may not be required to 

determine their hazard potential 

classification or otherwise evaluate the 

potential effects of a catastrophic 

failure. Consistent with the guidance 

from ASDSO, FEMA, and the state of 

New Jersey, this rule requires that all 

diked CCR impoundments determine 

their hazard potential classification 

according to the definitions set out in 

this regulation. For those units with a 

hazard potential classification of 

significant or high, the owner or 

operator of such impoundments is also 

required to develop an Emergency 

Action Plan to address the higher 

potential impacts of a potential failure. 

e. Condition Ratings 

While the rule does require facilities 

to evaluate the same engineering factors 

that went into developing these ratings, 

the rule does not require that each 

impoundment be given a condition 

rating. After evaluation of the use of 

these ratings, the Agency determined 

that the rating may have relied too 

heavily on subjective factors. For that 

reason, this rule requires that the 

qualified professional engineer certify, 

based on quantitative determinations, 

that an impoundment meets the 

requirements for FOS and hydraulic and 

hydrologic capacity. This approach is 

less subjective and allows the 

professional engineer to make 

quantifiable certifications. 

IV. Bevill Regulatory Determination 

Relating to CCR From Electric Utilities 

and Independent Power Producers 

As discussed in the preceding 

sections, in the proposed rule EPA 

reopened its August 1993 and May 2000 

Regulatory Determinations regarding 

CCR generated at electric utilities and 

independent power producers, to reevaluate whether regulation of CCR 

under RCRA subtitle C is necessary in 

light of subsequent information. EPA 

explained that this was based on several 


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22For more information on HQs please see Unit 

X. Risk Assessment of this preamble. 

relatively recent developments, such as 

a newly completed quantitative risk 

assessment that concluded that the 

disposal of CCR in unlined waste 

management units posed substantial 

risks, with upper end risk estimates 

ranging from 10¥2–10¥4. Citing to the 

recent structural failures of surface 

impoundments, the proposed rule also 

noted that these wastes have caused 

greater damage to human health and the 

environment than EPA originally 

estimated. Finally, EPA explained that 

recently collected information regarding 

the existing state regulatory programs 

had called into question whether those 

programs, in the absence of national 

minimum standards specific to these 

wastes, had sufficiently improved to 

address the gaps originally identified in 

the May 2000 Regulatory Determination. 

EPA ultimately concluded that federal 

regulation of this material was 

necessary, but did not reach any 

conclusion as to whether regulation 

under subtitle D would be sufficient or 

whether regulation under subtitle C 

would be necessary to adequately 

address the risks. 

Of the over 450,000 comments 

received on the proposed rule, the vast 

majority focused on whether the Bevill 

exemption should be retained, and the 

corresponding question of whether CCR 

regulations should be established under 

RCRA subtitle C or subtitle D. In terms 

of the sheer numbers, the majority of 

commenters supported a decision to 

revoke the Bevill exemption and to 

regulate CCR under a subtitle C rule. 

These commenters, largely individual 

members of the public and 

environmental groups, generally argued 

that the Bevill exemption should be 

revoked because state programs have 

failed to adequately regulate the 

disposal of CCR and because the risks 

associated with the management of 

these wastes are significant. In support 

of both points, these commenters 

pointed to the fact that the number of 

damage cases that have been discovered 

has increased substantially since the 

original 2000 Regulatory Determination, 

and have continued to grow since 

publication of the proposed rule in 

2010. 

By contrast, state organizations, 

individual states, and industry groups 

(electric utilities, recycling firms, trade 

associations), largely favored a subtitle 

D rule. Overall, these commenters raised 

concern about the costs of the subtitle 

C regime, arguing that the subtitle C 

requirements were more stringent than 

necessary to address the risks from CCR 

disposal. Commenters also raised 

concern that regulation of these wastes 

under subtitle C would negatively affect 

the beneficial use of these materials, 

arguing that the stigma associated with 

regulating the disposal of CCR as a 

hazardous waste would ‘‘cripple’’ the 

current beneficial reuse market. Many of 

these commenters also argued that EPA 

lacks the legal authority to regulate 

these wastes under subtitle C on a 

variety of grounds, including claims that 

EPA entirely lacks the authority to 

revisit its Bevill Regulatory 

Determination, and that EPA had failed 

to comply with statutory procedures in 

doing so. 

A. Deferral of a Final Decision on the 

Bevill Regulatory Determination for CCR 

Destined for Disposal 

In determining whether the Bevill 

exemption should be retained for CCR, 

EPA must evaluate and weigh eight 

factors that were enumerated in section 

8002(n) of RCRA. 42 U.S.C. 

6921(b)(3)(C). The eight factors are: (1) 

The source and volumes of CCR 

generated per year; (2) present disposal 

and utilization practices; (3) potential 

danger, if any, to human health or the 

environment from the disposal and 

reuse of CCR; (4) documented cases in 

which danger to human health or the 

environment from surface run-off or 

leachate has been proved; (5) 

alternatives to current disposal 

methods; (6) the cost of such alternative 

disposal methods; (7) the impact of 

those alternatives on the use of coal and 

other natural resources; and (8) the 

current and potential utilization of CCR. 

42 U.S.C. 6982(n). 

EPA addressed each of these study 

factors in the 1988 and 1999 Reports to 

Congress, and in reaching our decisions 

in the August 1993 and the May 2000 

Regulatory Determinations to maintain 

the Bevill exemption for CCR. 58 FR 

42466 (August 9, 1993); 65 FR 32214 

(May 22, 2000). Consequently, in 

considering whether to reverse these 

Regulatory Determinations for CCR 

destined for disposal, EPA reexamined 

the RCRA section 8002(n) study factors 

against all of the available data, which 

included both the data that formed the 

basis for the May 2000 Regulatory 

Determination and the most recent data 

available. (See 75 FR 35150–35156.) 

As discussed at length in the 

proposed rule, three of these factors 

weighed the most heavily in the 

Agency’s decision to reconsider its 

previous Regulatory Determinations. 

(See 75 FR 35133 and 35156–35158.) 

The first of these related to the extent of 

the risks posed by the current 

management of these wastes. Since the 

2000 Regulatory Determination, EPA 

had completed a quantitative risk 

assessment that estimated significant 

risks to human health and the 

environment. EPA’s 2010 CCR risk 

assessment estimated the cancer risk 

from arsenic that leaches into 

groundwater from CCR managed in 

units without composite liners to 

exceed EPA’s typical risk thresholds of 

10¥4 to 10¥6. For example, depending 

on various assumptions about disposal 

practices (e.g., whether CCR is codisposed with coal refuse), groundwater 

interception and arsenic speciation, the 

90th percentile risks from unlined 

surface impoundments ranged from 2 × 

10¥3 to 1 × 10¥4. The risks from clay 

lined surface impoundments ranged 

from 7 × 10¥2 to 4 × 10¥5. Similarly, 

estimated risks from unlined landfills 

ranged from 5 × 10¥4 to 3 × 10¥6, and 

from 2 × 10¥4 to 5 × 10¥9 for clay-lined 

landfills. EPA’s risk assessment also 

estimated Hazard Quotients (HQs) 22

above 1 for other metals, including 

selenium and lead in unlined and claylined units. However, a number of 

technical questions were raised 

regarding this quantitative risk 

assessment that called into question the 

accuracy of these risk estimates. 

A second and equally significant 

consideration related to how effectively 

state regulatory programs address the 

risks associated with the improper 

management of these wastes. The 

existing reports on state regulatory 

programs had called into question 

whether the trend in improving state 

regulatory regimes that EPA identified 

in May 2000 had materialized to the 

degree anticipated in the Regulatory 

Determination. EPA noted concern 

about the lack of substantial details 

regarding the full extent of state 

regulatory authority over the disposal of 

these materials, and the manner in 

which states have, in practice, 

implemented this oversight. 

The final consideration, which is 

tightly related to the first two, was the 

recent information documenting 

continued instances involving the 

contamination of ground or surface 

water from the management of these 

wastes. Since the 2000 Regulatory 

Determination EPA had gathered or 

received information on 67 ‘‘proven or 

potential’’ cases involving damage to 

(i.e., contamination of) ground and 

surface water, and to human health and 

the environment from improper 

management of CCR in landfills and 

surface impoundments. These also 

included cases involving the structural 

failure of surface impoundments and 

the catastrophic release of CCR. 


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21320 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

23Because EPA is deferring its final Bevill 

Determination, EPA has not responded to 

comments that pertain exclusively to that issue. 

However EPA has responded to significant 

comments that relate to topics that are otherwise 

relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage 

cases to support certain aspects of the technical 

requirements, EPA has responded to comments 

relating to the accuracy of the facts involved in the 

damage cases. EPA has not, however, responded to 

many comments on state programs because the 

Agency has made no final conclusions on the 

adequacy of those programs and is not relying on 

state programs to support any of the final rule’s 

provisions. 

24Thorneloe, S, Kosson, D., Sanchez, F., 

Garrabrants, A.C., and Helms, G., Evaluating the 

Fate of Metals in Air Pollution Control Residues 

from Coal-Fired Power Plants, Environ. Sci. 

Technol. 2010, 44, 7351–7356. 

For each of these key areas, EPA 

identified a number of issues on which 

the absence of critical information 

prevented the Agency from reaching an 

initial decision on whether to revise the 

Bevill Determination. Some of these 

issues or uncertainties have been 

resolved during the development of the 

final rule, either as a result of 

information received from commenters 

or through additional information and 

analyses EPA obtained or developed, 

which were held out for comment in 

subsequent NODAs. See 75 FR 35128 

(October 21, 2010) and 78 FR 46940 

(August 2, 2013). However, as discussed 

in more detail below, critical 

information necessary to make a final 

Regulatory Determination is still lacking 

in two of these three areas. This 

information bears directly on the extent 

and magnitude of the risks over the 

course of the next several years, and the 

degree to which those risks can be 

managed sufficiently under each of the 

two regulatory structures available to 

the Agency. In the absence of this 

information, EPA is unable to reach a 

conclusion on the issue that is central 

to a Bevill Determination: Whether the 

risks presented by management of CCR 

waste streams can only be adequately 

mitigated through regulation under 

RCRA subtitle C. As a consequence, 

EPA is deferring a final Regulatory 

Determination for these wastes.23

Nevertheless, the record is clear that 

current management of these wastes can 

present, and in many cases has 

presented, significant risks to human 

health and the environment. Although 

EPA cannot reach conclusions as to the 

full extent or magnitude of those risks 

over the long term, the current level of 

risk clearly warrants the issuance of 

federal standards to ensure consistent 

management practices and a national 

minimum level of safety. 

In the following sections, EPA 

describes the information that was 

obtained over the course of the 

rulemaking relating to each area of 

concern, and the extent to which the 

new information addressed the issue. 

1. Risks Posed by Current Management 

of CCR and Potential Danger to Human 

Health From the Disposal of CCR 

In the proposed rule, EPA specifically 

noted that several uncertainties 

remained in the Agency’s quantitative 

risk analysis of the current management 

of CCR. Chief among these uncertainties 

was the evolving character and 

composition of CCR due to electric 

utility upgrades and retrofits of multipollutant controls needed to comply 

with the emerging Clean Air Act (CAA) 

requirements, which could present new 

or otherwise unforeseen contaminant 

issues (e.g., addition of calcium bromide 

to coal prior to combustion increasing 

mercury capture; use of selective 

catalytic reduction for post-NOX

controls forming hexavalent chromium). 

As EPA explained, changes to fly ash 

and other types of CCR is expected to 

occur as a result of increased use and 

application of advanced air pollution 

control technologies in coal-fired power 

plants. These technologies include flue 

gas desulfurization (FGD) systems for 

SO2 control, selective catalytic 

reduction (SCR) systems for NOX

control, and activated carbon injection 

(ACI) systems for mercury control. 

These technologies are being installed 

or are expected to be installed in 

response to federal regulations, state 

regulations, legal consent decrees, and 

voluntary actions taken by industry to 

adopt more stringent air pollution 

controls. Use of these more advanced air 

pollution control technologies reduces 

air emissions of metals and other 

pollutants in the flue gas of a coal-fired 

power plant by capturing and 

transferring the pollutants to the fly ash 

and other air pollution control residues. 

Previous EPA studies of whether 

increased pollutant content would 

increase the risks correspondingly were 

inconclusive. For example, EPA 

evaluated the environmental fate of 

metals that are captured in CCR through 

use of enhanced air pollution controls, 

by characterizing the leaching behavior 

of 73 air pollution control residues, 

using the Leaching Environmental 

Assessment Framework (LEAF) 

methodology. Materials were tested over 

the pH conditions and liquid/solid 

ratios expected during management via 

land disposal or beneficial use. Leachate 

concentrations for most metals were 

highly variable over a range of coal type, 

facility configurations, and air pollution 

control residues. In addition, the data 

showed significantly different leaching 

behavior for similar residue types and 

facility configurations. Overall, the 

variability in leaching of the metals in 

the CCR was greater than the variability 

in totals concentrations by several 

orders of magnitude, suggesting that 

total pollutant content may not be 

predictive of leaching behavior, and 

consequently the risks.24

The Agency received no data from 

commenters that would aid in resolving 

this uncertainty. To try to establish 

some parameters around the 

uncertainty, EPA attempted to develop 

estimates of the extent to which this 

issue could meaningfully affect the 

risks. 

As an initial step, EPA focused on 

mercury pollution controls, as mercury 

levels in these wastes was an issue of 

particular concern in the public 

comments. It has been established that 

mercury pollution controls can affect 

both the mercury content and the 

general leaching behavior of ash (US 

EPA 2006, 2008, 2009). Using the 

limited data available, EPA attempted to 

evaluate the extent to which mercury 

controlled wastes could ultimately 

affect the overall risk associated with 

disposal of CCR. 

EPA conducted a sensitivity analysis 

that filtered the full 2014 risk 

assessment results for the subset of fly 

ash samples generated by facilities that 

have currently installed ACI systems. 

The samples were collected from five 

different facilities that were either 

installing or evaluating an ACI system 

for increasing mercury capture. At each 

facility, samples were collected both 

before and after the installation of an 

ACI system. Ultimately the results were 

inconclusive, likely because of the small 

sample size, and EPA can draw no 

conclusions about the exact effects of 

ACI systems on the risks from CCR 

disposal. Nevertheless, the analysis 

provided some useful information. 

Capturing and transferring pollutants 

from air emission to the fly ash and 

other air pollution control residues 

would normally be expected to increase 

the risks associated with disposal of 

these wastes. EPA’s analyses, however, 

showed only a marginal difference in 

risks for ash generated with or without 

the use of an ACI system, and in some 

instances the risks decreased slightly 

with the addition of activated carbon. 

The significance of these results should 

not be overstated—the observed 

decreases were not consistent and were 

thought to be an artifact of the relatively 

small number of model iterations. It is 

also important to remember that these 

results provide no information about the 

potential effects from the installation of 


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25 Garrabrants A.C., D.S. Kosson, H.A. van der 

Sloot, F. Sanchez and O. Hjelmar (2010) 

Background information for the Leaching 

Environmental Assessment Framework (LEAF) Test 

Methods, EPA–600/R–10/170, U.S. Environmental 

Protection Agency, Air Pollution Prevention and 

Control Division, December 2010. 

Garrabrants A.C., D.S. Kosson, L. Stefanski, R. 

DeLapp, P.F.A.B. Seignette, H.A. van der Sloot, P. 

Kariher and M. Baldwin (2012a) Interlaboratory 

Validation of the Leaching Environmental 

Assessment Framework (LEAF) Method 1313 and 

Method 1316, EPA/600/R–12/623, U.S. 

Environmental Protection Agency, Air Pollution 

Prevention and Control Division, September 2012. 

Garrabrants A.C., D.S. Kosson, R. DeLapp, P. 

Kariher, P.F.A.B. Seignette, H.A. van der Sloot, L. 

Stefanski and M. Baldwin (2012b) Interlaboratory 

Validation of the Leaching Environmental 

Assessment Framework (LEAF) Method 1314 and 

Method 1315, EPA–600/R–12/624, U.S. 

Environmental Protection Agency, Air Pollution 

Prevention and Control Division, September 2012. 

26 Kosson D.S., van der Sloot, H.A., Seignette, 

P.F.A.B. 2014. Leaching Test Relationships, 

Laboratory-to-Field Comparisons and 

Recommendations for Leaching Evaluation using 

the Leaching Environmental Assessment 

Framework (LEAF), EPA–600/R–14/061. EPA Office 

of Research and Development, National Risk 

Management Research Laboratory, Research 

Triangle Park, NC, 27711. December. 

27Sanchez F., R. Keeney, D.S. Kosson and R. 

DeLapp (2006) Characterization of MercuryEnriched Coal Combustion Residues from Electric 

Utilities using Enhanced Sorbents for Mercury 

Control, EPA–600/R–06/008, U.S. Environmental 

Protection Agency, Air Pollution Prevention and 

Control Division, February 2006. 

Sanchez F., D.S. Kosson, R. Keeney, R. DeLapp, 

L. Turner and P. Kariher (2008) Characterization of 

Coal Combustion Residues from Electric Utilities 

using Wet Scrubbers for Multi-pollutant Control, 

EPA–600/R–08/077, U.S. Environmental Protection 

Agency, Air Pollution Prevention and Control 

Division, July 2008. 

Kosson D.S., F. Sanchez, P. Kariher, L.H. Turner, 

R. DeLapp, and P. Seignette (2009) Characterization 

of Coal Combustion Residues from Electric 

Utilities—Leaching and Characterization Data, 

EPA–600/R–09/151, U.S. Environmental Protection 

Agency, Air Pollution Prevention and Control 

Division, December 2009. 

28Thorneloe S.A., D.S. Kosson, F. Sanchez, A.C. 

Garrabrants and G. Helms (2010) ‘‘Evaluating the 

fate of metals in air pollution control residues from 

coal-fired power plants,’’ Environmental Science 

and Technology, 44, 7351–7356. 

FGD systems for SO2 control, or SCR 

systems for NOX control, any of which 

could also significantly affect the 

characteristics of the wastes. But these 

results also suggest that EPA should be 

cautious about assuming that the risks 

will necessarily increase as a result of 

the imposition of additional air 

pollution controls. 

Other uncertainties in the risk 

assessment developed for the proposal 

related to the extent to which some 

sampled data with high concentrations 

of constituents used in the risk 

assessment accurately reflect coal ash 

leaching from landfills or surface 

impoundments. For example, as 

explained in the proposed rule, some 

data reflected pore water taken in the 

upper section of a surface impoundment 

where coal refuse was placed. There 

were acid generating conditions and 

high concentrations of arsenic, but the 

data demonstrated that the underlying 

coal ash neutralized the acid conditions 

and greatly reduced the arsenic which 

leached from the bottom of the 

impoundment. EPA also noted that 

much of the pore water samples and 

leachate data were several years old, 

and questions had been raised whether 

these data accurately reflected current 

management practices. Finally, EPA 

noted that recent research indicated that 

traditional leach procedures (e.g., 

Toxicity Characteristic Leaching 

Procedure (TCLP) and Synthetic 

Precipitation Leaching Procedure 

(SPLP)) may underestimate the actual 

leach rates of toxic constituents from 

CCR under different field conditions. 

First, regarding the question of 

appropriate pH conditions in CCR units, 

and the resulting leachate 

concentrations in impoundments where 

coal refuse was placed, EPA obtained 

data during the development of this rule 

directly relevant to this issue. A survey 

conducted by the Electric Power 

Research Institute (EPRI) in 1995 had 

shown that 34 percent of unlined 

landfills and 68 percent of unlined 

surface impoundments actively 

managed CCR with coal refuse. 

However, more recent data collected by 

EPA as part of the Clean Water Act ELG 

rulemaking in 2009–2010 indicates that 

this management practice has declined 

significantly to approximately five 

percent of current units. 

EPA also obtained sufficient data to 

resolve concerns about the accuracy of 

the concentrations in pore water and 

leachate used in the risk assessment. 

EPA received a substantial amount of 

data on CCR chemical constituents from 

commenters, which included total 

concentrations, pore water, and leaching 

test results for various types of CCR, i.e., 

bottom ash, FGD gypsum, FGD sludge, 

fly ash cenospheres, boiler slag, and 

combined waste streams. This included 

data from several EPRI reports, which 

provided field leachate results for 

bottom ash, fly ash, and FGD solids 

from a number of landfills and surface 

impoundments. EPA also received 

leachate data from the Alaska 

Department of Environmental 

Conservation, the Michigan Department 

of Natural Resources and Environment 

(MI DNRE), and from the Maryland 

Department of the Environment on total 

metals, TCLP, and SPLP results for 

bottom ash and fly ash. Included among 

these data were TCLP results for 102 

CCR samples and 12 FGD gypsum 

samples, and two landfill leachate 

samples, as well as several laboratory 

reports on CCR leachate from 2008 

through 2010. EPA also received several 

reports from the University of North 

Dakota Energy & Environmental 

Research Center, with leaching test 

results for 58 fly ash, five FGD, and four 

FGD gypsum samples using various 

leaching methods other than TCLP, and 

TCLP mercury results for 15 fly ash 

samples, as well as leaching test results 

for five fly ash and two bottom ash 

samples using 18-hr, 30-day, and 60-day 

leach methods, plus bulk and trace 

element data for five fly ash samples, 

two bottom ash samples, and one slag 

sample. (See 76 FR 63252, October 12, 

2011.) 

In addition to the data submitted by 

commenters, EPA’s Office of Research 

and Development (ORD), in 

collaboration with Vanderbilt 

University (VU), developed additional 

CCR leaching data using a revised 

methodology, the Leaching 

Environmental Assessment Framework, 

or LEAF, consisting of four methods that 

evaluate leaching potential for various 

waste forms at different plausible pH 

values and liquid-solid ratios, in order 

to more accurately simulate leaching 

potential over a variety of field 

conditions. The LEAF methods went 

through validation working with 20 

different laboratories, different waste 

matrices, and documented in two EPA 

reports finding good agreement between 

the labs for the four methods.25 In 

addition, EPA compiled decades of data 

for ten different case studies to compare 

field and laboratory leach data.26 These 

data also showed LEAF methods to be 

a good predictor of field leachate 

behavior using geochemical speciation 

modeling for factors such as oxidation 

that are difficult to account for in the 

lab. When considered along with the 

methods validation, the field-to-lab 

leachate data comparison provides 

additional confidence that LEAF 

methods can more accurately predict 

environmental release over a range of 

materials, waste form, pH, liquid-solid 

ratio, and other parameters influencing 

leaching behavior such as calcium 

depletion for a material. 

In updating the risk assessment for 

the final rule, EPA relied on surface 

impoundment pore water data and 

impoundment wastewater data, 

including the data submitted by 

commenters. For landfills, EPA only 

used LEAF data to characterize the 

leachate for the range of materials 

resulting from various air pollution 

control technologies. The CCR data 

documented in three EPA reports 27 and 

summarized in Thorneloe et al, 2010 28


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provides a robust characterization of air 

pollution control residues from coalfired power plants and indicates that 

leaching rates can vary by several orders 

of magnitude, depending on pH levels 

and the amount of liquid that comes 

into contact with the CCR solids (i.e., 

the liquid to solid ratio). 

The 2014 risk assessment incorporates 

these new data, and accounts for both 

the pH of the waste in field conditions, 

as well as the liquid-to-solid ratio of the 

leachate and CCR, which effectively 

addresses the concerns raised in the 

proposed rule that TCLP and SPLP 

methods could underestimate leachate 

concentrations. 

A further area of uncertainty related 

to one of the primary inputs into the 

risk assessment. As noted in the 

proposed rule, the Agency’s risk 

estimates were based on the existing 

cancer slope factor of 1.5 mg/kg/d¥1 for 

arsenic in EPA’s Integrated Risk 

Information System (IRIS). However, 

EPA noted that was in the process of 

revaluating the arsenic cancer slope 

factor in light of recent 

recommendations from the National 

Research Council (NRC) of the National 

Academy of Sciences (NAS) in ‘‘Critical 

Aspects Arsenic in Drinking Water, 

2001 Update.’’ In the proposal, EPA 

estimated that using this NRC data 

analysis would increase the individual 

risk estimates by approximately 17 

times. 

EPA is currently evaluating the 

arsenic cancer slope factor in light of 

more recent NRC recommendations, 

regarding the approach and the science 

for estimating cancer and non-cancer 

risk in ‘‘Critical Aspects of EPA’s IRIS 

Assessment of Inorganic Arsenic, (NRC 

2013).’’ EPA is in the process of 

implementing these recommendations, 

but to date has been unable to finalize 

its IRIS reassessment. Nor did EPA 

receive any other information during the 

development of this final rule that 

would help to resolve this uncertainty. 

A final source of uncertainty in the 

risk assessment developed for the 

proposed rule related to the potential 

impact from the interception of 

contaminated groundwater plumes by 

surface water bodies that exist between 

a waste management unit and a downgradient drinking water well. It is 

common for coal-fired utilities to be 

located near water bodies, which are 

used as a source of cooling water and 

waste conveyancing. Releases from 

surface impoundments located in close 

proximity to water bodies can be 

intercepted, which can significantly 

affect the contaminants that reach 

drinking water wells. For example, 

surface impoundments are commonly 

placed next to rivers, which can 

intercept the leachate plume and 

prevent contamination of drinking water 

wells on the other side of the river. 

Also, in such circumstances the 

direction of groundwater flow on both 

sides of the river may be towards the 

river; thus, the drinking water well on 

the opposite side of a river may not be 

impacted. 

Over the course of the rulemaking, 

EPA was able to obtain sufficient data 

to model the impact from interception 

of contamination by surface water 

bodies. The risk assessment developed 

for the final rule accounts for the 

interception of the groundwater 

contamination plume by surface water 

bodies, and the resulting decrease in 

constituent mass to downstream 

drinking water sources. As a 

consequence of this modeling, the 

median risks for surface impoundments 

and landfills were substantially lower 

than both the high-end and median risks 

modeled in the 2010 risk assessment, 

i.e., by approximately an order of 

magnitude. 

2. Adequacy of Existing State Regulatory 

Oversight 

The assessment of state regulatory 

programs in the proposed rule was 

based largely on two reports: A joint 

U.S. Department of Energy (DOE) and 

EPA study completed in 2006, ‘‘Coal 

Combustion Waste Management at 

Landfills and Surface Impoundments, 

1994–2004,’’ and a 2009 survey 

conducted by the Association of State 

and Territorial Solid Waste Management 

Officials (ASTSWMO). EPA’s 

preliminary conclusion was that while 

states seem to be regulating landfills to 

a greater extent than in 2000, significant 

gaps in state programs appeared to 

remain, particularly with respect to the 

oversight of surface impoundments. 

In reaching this conclusion EPA noted 

the following findings from the DOE/

EPA study: only 19 percent (three out of 

19) of the surveyed surface 

impoundment permits included 

requirements addressing groundwater 

protection standards (i.e., contaminant 

concentrations that cannot be exceeded) 

or closure/post-closure care, and only 

12 percent (two out of 12) of surveyed 

units were required to obtain bonding or 

financial assurance. The EPA/DOE 

report also concluded that 

approximately 30 percent of the net 

disposable CCR generated was 

potentially exempt from all state solid 

waste permitting requirements (EPA/

DOE Report at pp 45–46). For example, 

at the time of the report, Alabama did 

not regulate CCR disposal under any 

state waste authority and nor had a dam 

safety program. Texas (the largest coal 

ash producer) did not require permits 

for waste managed on-site, which is 

defined as waste managed at any site 

owned by the generator, up to 50 miles 

away from the generating facility. 

Finally, the report found that a number 

of states only regulated surface 

impoundments under CWA authorities, 

and consequently primarily addressed 

the risks from effluent discharges to 

navigable waters, but did not require 

liners or groundwater monitoring. 

The more recent 2009 ASTSWMO 

survey reached similar conclusions. 

With respect to liner requirements, 36 

percent of surveyed states did not have 

minimum liner requirements for CCR 

landfills, while 67 percent did not have 

CCR liner requirements for surface 

impoundments. Similarly, 19 percent of 

states surveyed did not have minimum 

groundwater monitoring requirements 

for landfills and 61percent did not have 

groundwater monitoring requirements 

for surface impoundments. The 2009 

ASTSWMO survey also indicated that 

only 36 percent of states regulated the 

structural stability of surface 

impoundments. 

In the proposal, EPA identified 

several issues that complicated its 

preliminary assessment and prevented 

the Agency from reaching overall 

conclusions as to the adequacy of state 

regulatory programs. First, EPA raised 

concern about the absence of any real 

details in the two reports regarding how 

states, in practice, oversee the disposal 

or other solid waste management of 

CCR. For example, even though the 

disposal units might not be regulated 

under the state solid waste provisions, 

some states may use performance based 

standards or implement requirements to 

control CCR landfills and surface 

impoundments under other state 

programs. Second, EPA noted that most 

of the more recent data primarily 

focused on the requirements applicable 

to new management units, which only 

represented approximately 10 percent of 

currently operating units. EPA had 

little, if any, information that described 

the extent to which states and utilities 

had implemented requirements, such as 

groundwater monitoring, on the many 

existing landfills and surface 

impoundments that receive CCR. 

Moreover, the information in the record 

for the proposal with respect to these 

older units was fifteen years old. EPA 

assumed it to be unlikely that states 

would have required existing units to 

install liners, but suggested states may 

have been more likely to have imposed 

groundwater monitoring for such units 

over the last 15 years. 


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EPA also identified several issues that 

would be relevant to the Agency’s 

evaluation of the overall adequacy of 

state regulatory programs. Specifically, 

EPA explained that it would consider 

how state regulatory programs have, in 

practice, evaluated and imposed 

requirements to address: (1) Leachate 

collection; (2) groundwater monitoring; 

(3) whether a unit must be lined and the 

type of liner needed; (4) the 

effectiveness of existing management 

units as opposed to new management 

units; (5) whether the state requires 

routine analysis of CCR; (6) whether 

financial responsibility requirements are 

in place for the management of CCR; (7) 

the extent of permit requirements, 

including under what authorities these 

disposal units are permitted, the types 

of controls that are included in permits, 

and the extent of oversight provided by 

the states, (8) whether state programs 

include criteria for siting new units; (9) 

the extent of requirements for corrective 

action, post-closure monitoring and 

maintenance; (10) the state’s pattern of 

active enforcement and public 

involvement; and (11) whether or not 

these facilities have insurance against 

catastrophic failures. 

EPA received a substantial amount of 

information on state programs from 

commenters. Extensive comments were 

submitted by a coalition of 

environmental groups, outlining the 

alleged gaps in state regulatory 

programs applicable to the management 

of CCR. These comments contained a 

comprehensive analysis of 37 state 

programs based on the findings of the 

DOE/EPA 2006 report as well as on an 

independent compilation of state 

program requirements. According to 

these commenters’ analysis, only four 

states (representing approximately four 

percent of the CCR generated in the U.S. 

in 2005) required groundwater 

monitoring in all new and existing 

landfills, and only six states 

(representing approximately 19 percent 

of the CCR generated in 2005) required 

groundwater monitoring in all new and 

existing surface impoundments; only 

five states (representing approximately 

seven percent of the CCR generated in 

2005) required composite liners for all 

new landfills; and only four states 

(representing approximately 19 percent 

of the CCR generated) required 

composite liners for all new surface 

impoundments. The commenters’ 

analysis discounted any state law that 

included any provision that granted 

permit writers discretion to modify the 

requirement on a case-by-case basis, 

and/or to grant waivers and exemptions 

based on the waste’s toxicity, onsite 

location, and management practice. 

EPA also received comments from 

ASTSWMO, the Environmental Council 

of the States (ECOS), and 36 individual 

states. In its comments, ASTSWMO 

submitted a report with revisions of the 

aggregated statistics in its 2009 report, 

which they claim demonstrated that 

state CCR programs were more robust 

than described in the proposed rule. 

These commenters generally agreed 

with EPA’s conclusion that state 

requirements for key CCR requirements 

are typically more robust for landfills 

than for surface impoundments. 

ASTSWMO’s comments included the 

following examples: 71 percent of the 

surveyed states required a liner for 

landfills, compared to 65 percent that 

required that surface impoundments be 

lined; 87 percent of surveyed states 

required groundwater monitoring at 

landfills, compared to 67 percent of 

states that required groundwater 

monitoring at surface impoundments; 

and while 83 percent of surveyed states 

required structural stability monitoring 

at landfills, only 64 percent of surveyed 

states required it at surface 

impoundments. The sole exception 

related to permit requirements, where 

the report claimed that 91 percent of the 

surveyed states required a permit of 

some type for surface impoundments, as 

compared to 86 percent of states that 

required a permit for landfills. In 

addition, ASTSWMO claimed that all 42 

surveyed states had the authority to 

require remediation. The report also 

alleged that in 43 of 44 states, states had 

the authority to require surface 

impoundments to implement repair and 

maintenance efforts during operation. 

ASTSWMO also claimed that 43 out of 

44 states required that steps be taken to 

protect human health and the 

environment, and that 41 of 43 states 

also had authority to require closure. 

According to this revised survey, state 

requirements also vary with respect to 

whether they applied to all waste units, 

or only to new units or lateral 

expansions. ASTSWMO stated that in 

34 percent of the surveyed states, liner 

requirements applied equally to new 

and existing landfills, and to both 

existing and new surface impoundments 

in 46 percent of the surveyed states. 

Similarly, ASTSWMO stated that 

groundwater monitoring was required 

for both existing and new landfills in 82 

percent of the surveyed states, and to 

both existing and new surface 

impoundments in 74 percent of the 

surveyed states. 

Nineteen states and state 

organizations also directly responded to 

the environmental groups’ report by 

submitting comments on their programs, 

although only four of these states were 

among the leading CCR generators: 

Kentucky, North Dakota, Ohio, and 

Michigan. These states identified 

specific instances where the assertions 

made by the environmental groups were 

factually incorrect or omitted relevant 

information. In response to both the 

proposed rule and the NODA (76 FR 

63252, October 12, 2011) most states 

provided only summaries of their 

regulatory programs rather than detailed 

descriptions. 

As EPA explained in the proposed 

rule, there are significant limitations to 

the kind of aggregated survey statistics 

presented in ASTSWMO’s comments. 

Such statistics fail to provide the 

information necessary to meaningfully 

address the question of how, in practice, 

state programs regulate the relevant 

risks presented by the management or 

disposal of CCR, which was the issue 

that EPA explained was necessary to 

resolve. For example, even assuming 

that 91 percent of the surveyed states 

actually do require a permit of some 

type for surface impoundments, this 

provides no information on the nature 

or extent of the specific requirements in 

the permit. As noted in the proposal, 

most CCR surface impoundments are 

regulated under a NPDES permit, and 

while the risks from effluent discharges 

to navigable waters are addressed, these 

units are not subject to the provisions 

designed to protect groundwater, such 

as liners or groundwater monitoring. 

Nor does it address the extent of the 

requirement; for example, although 

Texas generally requires landfills to be 

permitted and to monitor groundwater, 

the majority of CCR units are exempt 

from these requirements because all 

industrial wastes managed on-site (i.e., 

any site owned by the generator, up to 

50-miles away from the generator’s 

facility) are exempt. Finally, since the 

ASTSWMO survey does not identify the 

individual surveyed states but merely 

presents aggregated statistics, this 

information cannot be correlated with 

the amount of CCR generated, which 

significantly limits its value; for 

example, information demonstrating the 

strength of the regulatory program in a 

state responsible for two percent of the 

net CCR generated nationally is less 

significant than similar information on 

a state responsible for 25 percent of the 

net CCR generated. 

In addition to the information 

provided by commenters, EPA 

independently reviewed state statutes 

and regulations, with a more detailed 

focus on the 16 states responsible for 

approximately 74 percent of the CCR 

generated in 2009. It is clear from this 


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29See 30 TX ADC 335.2(d); 

30 Georgia, Illinois, Indiana, Iowa, Montana, Ohio, 

Pennsylvania, and South Carolina. 

review, as well as from information 

submitted by the commenters, that the 

degree of state regulatory oversight of 

these wastes and the overall 

protectiveness of the particular state 

programs varies widely. 

Overall, the information from 

commenters and from EPA’s own 

review of state programs generally 

confirms EPA’s original conclusion that 

significant gaps remain in many state 

programs. Some programs provide 

minimal or no regulatory oversight of 

CCR units. For example, Arizona, New 

Mexico, and Utah have no regulations 

applicable to CCR units or entirely 

exempt CCR from state regulations 

governing solid waste. Similarly, 

Mississippi, Montana, and Texas (the 

largest coal-ash producer) exempt the 

on-site disposal of CCR (as ‘‘nonhazardous industrial solid waste’’) from 

some or all key requirements, such as 

permits or groundwater monitoring.29

Such exemptions would cover most of 

the disposal of CCR within the state, as 

the majority of utilities dispose of their 

CCR on-site. Other states, such as 

Florida, Indiana, Ohio and 

Pennsylvania, exempt CCR landfills or 

‘‘monofills’’ from many requirements. 

For example, Indiana regulations 

consider surface impoundments that are 

dredged at least annually to be ‘‘storage 

units’’ that are exempt from solid waste 

regulations, including from corrective 

action requirements. Many of these 

states are among the leading generators 

of CCR wastes. In total, EPA estimates 

that approximately 20 percent of the net 

disposable CCR is entirely exempt from 

state regulatory oversight. 

State programs that entirely exempt 

CCR management from regulatory 

oversight, however, are the exception. 

Most states do regulate the management 

of CCR to varying degrees, although the 

particular requirements can vary 

significantly. Still, some general 

conclusions can be drawn. 

Most CCR surface impoundments are 

permitted exclusively under NPDES or 

other surface water pollution prevention 

programs. In these states, requirements 

to protect groundwater, such as liners or 

groundwater monitoring systems, are 

frequently less robust than the 

corresponding requirements applicable 

to CCR landfills. 

Many state programs require that new 

disposal units be lined and groundwater 

monitoring systems installed, although 

many exempt existing waste units from 

the liner and groundwater monitoring 

requirements. Consequently, for newer 

units, the facts are less alarming: 89 

percent of the 114 CCR surface 

impoundments constructed between 

1994 and 2010 have liners, and 70 

percent have composite liners. 

Similarly, 37 of 45 CCR surface 

impoundments EPA surveyed had 

installed groundwater monitoring 

systems. By contrast, 79 percent of the 

landfills constructed during this 

timeframe had installed liners, but only 

58 percent were composite-lined. 

However the majority of the older (pre1994) waste units still lack liners; 63 

percent of older landfills have no liners 

and 63 percent and 24 percent of older 

surface impoundments have either no 

liners or clay liners, respectively. 

Information on the extent of 

groundwater monitoring at older units 

was either unavailable, or was too 

unreliable to support any conclusions as 

to the overall number or percentage of 

older units with groundwater 

monitoring systems in most states. 

ASTSWMO’s comments in response to 

the October 2011 NODA identified eight 

states 30 that required groundwater 

monitoring at existing facilities, but 

only a few of these states addressed this 

issue in their comments. EPA has some 

anecdotal evidence on the status of 

groundwater monitoring in six states, 

including four states that are among the 

leading CCR generators. In the wake of 

the Kingston TVA spill, groundwater 

monitoring wells were installed at 

12 of Illinois’s existing surface 

impoundments, almost doubling the 

number of monitored surface 

impoundments in the state. However, 55 

additional surface impoundments, both 

active and inactive, still lack 

groundwater monitoring systems. In 

Ohio, 44 CCR units, out of a total of 57 

CCR units in the state (42 surface 

impoundments and 15 landfills) still 

lack groundwater monitoring, even 

though all of the surface impoundments 

were permitted decades ago under 

Ohio’s NPDES program. Ohio 

acknowledged in their comments that 

the extent of groundwater risks in the 

state is poorly documented, as 40 out of 

44 unlined CCR units do not have a 

groundwater monitoring system. In sum, 

the available information is limited, but 

at least some of that information 

indicates that significant gaps remain 

with respect to the implementation of 

groundwater monitoring requirements 

under some state regulatory programs. 

Of the states that require groundwater 

monitoring, most appear to require 

monitoring wells to be placed around 

the waste unit boundary, although the 

distance from the unit boundary varies 

from 50 feet to 150 meters. However, 

some state programs also authorize a 

buffer zone or a ‘‘zone of discharge,’’ 

which allows the facility to defer 

remediation of groundwater 

contamination for some period of time, 

usually until the contaminant plume 

has migrated to the facility site 

boundary. Florida, Illinois, North 

Dakota, and Tennessee are among that 

states with such a regulatory provision. 

For example, under Florida regulations, 

primary and secondary maximum 

contaminant levels (MCLs) do not apply 

even beyond the ‘‘zone of discharge,’’ 

absent a specific order by state 

regulatory authorities. 

Most state programs allow the state 

regulatory authority to grant variances 

or exemptions for some or all of the 

requirements based on site-specific 

factors. For example, all of the following 

states require groundwater monitoring 

at CCR surface impoundments, but also 

authorize the regulatory authority to 

exempt or waive those requirements: 

Alabama, Florida, Georgia, Illinois, 

Indiana, Kentucky, North Carolina, 

North Dakota, Pennsylvania, and West 

Virginia. Contrary to the analysis 

presented by the environmental groups’ 

comments, the mere fact that state law 

grants a permit authority the discretion 

to tailor requirements to account for a 

facility’s site specific conditions does 

not support a conclusion that the 

regulatory program is necessarily 

inadequate. In fact, EPA noted in the 

proposal that one of the strengths of the 

subtitle C program was that, as a result 

of the permit process, requirements 

could be tailored to account for site 

specific conditions. Nor does the 

existence of a waiver process provide 

any evidence of actual practices; in their 

comments, a few states acknowledged 

that state law allowed for variances, but 

asserted that none had been requested. 

To complicate matters further, several 

states explained that while state law 

does not mandate certain requirements, 

state regulatory authorities have, in 

practice, begun to require them in more 

recent permits. For example, several 

states, including Ohio, Texas, Michigan, 

Florida, and Kentucky, noted that recent 

practice was to require older disposal 

units to retrofit or close where they 

failed to meet relevant standards. 

Similarly, it appears that in the 16 

leading CCR-generating states, 94 

percent of new landfills have installed 

liners (either composite or clay), 

although only 19 percent of these state 

programs actually mandate CCR 

landfills to install a liner. And although 

only six percent of these state programs 

require installation of a liner in a new 

surface impoundment, 75 percent of 


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31EPA also received several additional reports 

that contained allegations of further damage cases. 

However, because these were submitted after the 

close of the comment period, EPA did not evaluate 

these damage cases for this rulemaking or otherwise 

consider the information in those reports. 

new CCR surface impoundments in 

these states are lined. 

All of this information suggests that, 

at least in some cases, the concerns 

raised in the proposal regarding the 

protectiveness of state programs remain 

warranted. But it also is clear it would 

be impossible to accurately evaluate 

whether, in practice, state programs are 

protective without reviewing individual 

permit decisions and permit 

requirements. Such an evaluation would 

necessarily involve not only a review of 

the specific permit requirements, but 

also the site conditions and other factual 

bases supporting the decision to impose 

the particular requirements. 

Unfortunately, this information was not 

provided by commenters or found in 

any source currently available to the 

Agency. 

3. Documented Cases in Which Danger 

to Human Health or the Environment 

From Surface Run-off or Leachate Has 

Been Proved 

In the proposed rule, EPA described 

the information it had compiled on 

specific cases where CCR 

mismanagement had caused harm to 

human health or the environment since 

the 2000 Regulatory Determination. 

Specifically, EPA explained that it had 

identified 27 proven damage cases: 17 

cases of damage to groundwater, and ten 

cases of damage to surface water, seven 

of which are ecological damage cases. 

Sixteen of the 17 proven damage cases 

to groundwater involved disposal in 

unlined units; for the one additional 

unit, it is unknown whether the unit 

was lined. EPA also identified 40 

potential damage cases to groundwater 

and surface water. The Agency noted 

that these numbers likely 

underestimated the number of damage 

cases and its expectation that additional 

cases of damage would be found if a 

more comprehensive evaluation was 

conducted, particularly since much of 

this waste has been (and continues to 

be) managed in unlined disposal units. 

EPA also noted its concern that several 

of the new damage cases involved 

activities that differ from prior damage 

cases, including the catastrophic release 

of waste due to the structural failure of 

CCR surface impoundments, such as the 

dam failures that occurred in Martins 

Creek, Pennsylvania and Kingston, 

Tennessee, as well as the large-scale 

placement, akin to disposal, of CCR, 

under the guise of ‘‘beneficial use.’’ 

EPA noted as well that it had received 

new reports from industry and 

environmental and citizen groups 

regarding damage cases. Industry 

provided information to demonstrate 

that many of EPA’s listed proven 

damage cases did not meet EPA’s 

criteria for a damage case to be 

considered ‘‘a proven damage case,’’ 

that had been developed for purposes of 

the Bevill Regulatory Determinations. 

Environmental and citizen groups, on 

the other hand, had submitted reports 

alleging the existence of more recent 

damage cases beyond those EPA had 

previously documented. 

EPA raised questions concerning the 

following areas associated with the 

damage cases; first, whether the damage 

cases discovered to date accurately 

reflected the true number of damage 

cases associated with the 

mismanagement of CCR. Second, EPA 

highlighted concern regarding the 

accuracy of the available information on 

damage cases, as in certain instances, 

much of the information was largely 

anecdotal. EPA therefore specifically 

solicited comments from state 

regulatory authorities and the facilities 

involved with the incidents, in the hope 

of obtaining direct evidence of the facts 

in each case and to obtain a better 

understanding of the nature of the 

damage caused by past and current 

management practices. For the same 

reason, on October 12, 2011, EPA 

published a NODA, soliciting comment 

on the extensive reports received during 

the original comment period on the 

proposed rule. (See 76 FR 63252.) 

As discussed in more detail in Unit XI 

of this document, EPA received a 

significant number of comments on this 

topic, both during the original comment 

period on the proposal, and in response 

to the NODA. EPA received information 

on additional damage cases from a 

number of citizen groups, including the 

report from Environmental Integrity 

Project and Earthjustice titled, ‘‘Out of 

Control: Mounting Damages From Coal 

Ash Waste Sites,’’ which presented 

information on 31 alleged CCR damage 

cases that were not included or were not 

recognized as damage cases in EPA’s 

July 2007 report. EPA also received an 

August 26, 2010 report by the 

Environmental Integrity Project, 

Earthjustice, and the Sierra Club titled 

‘‘In Harm’s Way: Lack of Federal Coal 

Ash Regulations Endangers Americans 

and Their Environment,’’ which 

presented an additional 39 alleged CCR 

damage cases.31 EPA also received 

information on ten additional damage 

cases from state officials in Michigan 

and Wisconsin. 

EPRI submitted two draft reports 

titled ‘‘Evaluation of Coal Combustion 

Product Damage Cases: Volume 1: Data 

Summary and Conclusions’’ (finalized 

in July 2010), and ‘‘Evaluation of Coal 

Combustion Product Damage Cases: 

Volume 2: Case Summaries’’ (finalized 

in September 2010). In these reports, 

EPRI provided information that, they 

claimed, showed that many of EPA’s 

previously identified ‘‘proven’’ damage 

cases did not meet EPA’s criteria for a 

damage case to be considered ‘‘proven.’’ 

In response to the 2010 NODA, USWAG 

submitted a report that reviewed the 70 

additional damage cases submitted by 

citizen groups as part of their comments 

on the proposed rule. These reports 

focused primarily on the degree to 

which the contamination had been 

contained ‘‘on-site’’ or had migrated offsite of the facility. 

In Unit XI of this document, EPA 

discusses at length all of the comments 

received and its subsequent analysis of 

the information obtained throughout the 

rulemaking. In sum, after analyzing all 

of the information submitted in 

response to this rulemaking, EPA has 

confirmed a total of 157 cases, both 

proven and potential, in which CCR 

mismanagement has caused damage to 

human health and the environment. 

Although EPA expects that additional 

damage cases will be discovered in 

response to the installation of the 

groundwater monitoring systems 

required by the final rule, overall EPA 

has a significantly better understanding 

of the extent and nature of the damage 

caused by CCR mismanagement than 

when the proposed rule was issued. 

EPA has sufficient confidence in the 

veracity of the information collected to 

rely on it in making decisions in this 

rule. 

4. Conclusions 

EPA explained in the proposed rule 

that the decision on whether to retain 

the Bevill exemption is inherently 

discretionary, in that it ultimately 

requires the Agency to make a policy 

judgment as to the appropriate balance 

among the eight statutory factors. Chief 

among the several principles that EPA 

stated would guide its decision was that 

any action must protect human health 

and the environment. To this end, EPA 

singled out three key areas of analyses 

that bear directly on that guiding 

principle: the extent of the risks posed 

by mismanagement of CCR; the 

adequacy of state programs to ensure 

proper management of CCR; and the 

extent and nature of damage cases. 

The first of these largely related to the 

2010 quantitative risk assessment of the 

potential for contamination to 


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32For more information on HQs please see Unit 

X. Risk Assessment of this preamble. 

groundwater. During the rulemaking, 

EPA received information that allowed 

the Agency to resolve two of the four 

primary uncertainties identified in the 

proposal. The risk assessment has been 

revised with updated pore water 

concentration data and with LEAF 

leachate data, and accounts for the 

potential reduction of contaminants 

reaching drinking water sources due to 

interception of contamination by surface 

water bodies. However, two sources of 

uncertainty remain: the potential effect 

of pollution control technologies on the 

CCR characteristics, and the appropriate 

IRIS value for arsenic. 

EPA’s risk assessment evaluated 

current management practices, and 

generally did not attempt to account for 

or evaluate the potential for future 

changes in the wastes. While EPA has 

great confidence in the assessment, its 

ability to definitively resolve this 

question is therefore limited, given the 

very real potential for significant 

changes in CCR characteristics and 

constituents in the near future, due to 

the required installation of pollution 

control technologies. Changes in the 

CCR characteristics are particularly 

significant, as the risk assessment 

concluded that one of the parameters 

most likely to affect the agency’s risk 

estimates was the characteristic of the 

wastes. 

With respect to the second area, EPA 

is unable to reach any definitive 

conclusions as to whether state 

regulatory programs are so deficient that 

the level of federal oversight under 

subtitle C is necessary. Specifically, 

EPA cannot determine from the 

available information how states, in 

practice, have implemented regulatory 

requirements. At this point, only limited 

conclusions are possible. 

Clear deficiencies exist in some state 

regulatory programs, and questions 

remain with respect to others. And 

many of these concerns exist with 

respect to programs in states responsible 

for the majority of CCR generation and 

disposal. However, most state programs, 

although they vary considerably, are not 

clearly deficient on their face. But it is 

equally clear that exclusive reliance on 

the regulatory programs as written, 

without any examination of how states 

have implemented those requirements 

in practice, would not support sweeping 

conclusions about the overall adequacy 

of state programs. It is critical to ensure 

that any decision accurately accounts 

for how the states have exercised their 

judgment in implementing those 

requirements, before concluding that 

state programs cannot adequately 

oversee the management of CCR without 

the degree of federal involvement 

mandated by subtitle C. 

Notwithstanding EPA’s inability to draw 

conclusions on the overall adequacy of 

state programs, the high degree of 

variation across state programs strongly 

supports the need for federal 

requirements to establish a consistent 

national standard of groundwater and 

human health protection. 

In contrast to the other two areas 

identified in the proposed rule, while 

some uncertainty remains with respect 

to the damage cases—namely, whether 

the 157 identified to date represent the 

total number of damage cases caused by 

CCR mismanagement, and whether 

some of the ‘‘potential’’ damage cases 

should be classified as ‘‘proven’’ 

damage cases—at this point, EPA has 

concluded that the available 

information provides a sufficient 

evidentiary base on which decisions can 

be made. In the absence of the necessary 

information on two of the three critical 

areas, however, EPA cannot reach any 

final conclusions regarding the 

appropriate balance among the eight 

statutory factors. Consequently, EPA is 

also not reaching any final conclusions 

as to whether a damage case is best 

categorized as ‘‘proven’’ or ‘‘potential.’’ 

Such a finding is relevant only to the 

Bevill Regulatory Determination. 

However, as discussed in more detail 

in Unit XI of this document, the damage 

cases provide extremely valuable 

evidence that is directly relevant to the 

question of whether and how to regulate 

CCR waste. For example, the damage 

cases provide ‘‘real world’’ evidence 

against which to compare EPA’s risk 

modeling estimates, such as evidence 

regarding the frequency with which 

particular constituents leach into 

groundwater. They also provide direct 

evidence regarding specific waste 

management practices at electric 

utilities, along with the potential 

consequences of those practices. 

Finally, both the specifics of the damage 

cases and the fact that they continue to 

occur provide strong evidence of the 

need for this rule under subtitle D while 

EPA obtains the information that will 

allow the Agency to make a final 

Regulatory Determination for these 

wastes. 

Thus, even though EPA is not able to 

reach a final conclusion on the 

Regulatory Determination for these 

wastes, the totality of the information in 

the rulemaking record clearly 

demonstrates that the risks associated 

with the current management and 

disposal of CCR remain substantial. 

EPA’s risk assessment concluded that 

the cancer risks from unlined surface 

impoundments ranged from 3 × 10¥4 for 

trivalent arsenic to 4 × 10¥5 for 

pentavalent arsenic. Non-cancer risks 

from these same units also significantly 

exceeded EPA’s level of concern, with 

estimates ranging from an HQ of 2 for 

thallium, to HQs 32 of 4 for molybdenum 

and 8 for trivalent arsenic. The risks 

associated with unlined landfills were 

also estimated to be significant, with 

cancer risks of 2 × 10¥5 for trivalent 

arsenic. It is important to note that these 

risk numbers are based on national 

disposal practices. Risks at an 

individual site may be even higher 

based on individual site conditions, 

waste characteristics, and management 

practices. EPA’s risk assessment 

identified the potential for higher risks 

based on different waste pH values and 

management practices. Multiple 

constituents presented higher risks 

when considered in waste management 

units that co-dispose both ash and coal 

refuse at more acidic pHs or FGD wastes 

at more basic pHs. For example, the 

modeled cancer risks for the co-disposal 

of ash and coal refuse (pH 1.7–8.2) 

ranged between 10¥3 for trivalent 

arsenic to 4 × 10¥4 for pentavalent 

arsenic. Non-cancer risks were similarly 

high, ranging between and an HQ of 13 

for cobalt, and HQs of 14 for pentavalent 

arsenic to 26 for trivalent arsenic, based 

on the ingestion of contaminated 

drinking water. Although this 

management practice is declining, 

recent information indicates that 

approximately five percent of facilities 

continue to co-dispose of ash and coal 

refuse in surface impoundments. 

Moreover, EPA’s risk estimates are 

consistent with the continued damage 

cases compiled through this rulemaking. 

As further discussed in Unit XI of this 

document, EPA has confirmed that 157 

cases of proven or potential 

contamination of groundwater have 

occurred in states across the nation 

since the initial Regulatory 

Determination. These damage cases 

were primarily associated with unlined 

units and were most frequently 

associated with releases of arsenic. 

While new units are typically 

constructed with composite liners, 

which under EPA’s current risk 

assessment adequately mitigate the 

risks, older units still comprise the 

overwhelming majority of currently 

operating units. EPA’s data show that 

approximately 63 percent of currently 

operating surface impoundments and 

landfills are unlined, and thus more 

prone to leach contaminants into 

groundwater. Analysis of the 

information from the damage cases also 

demonstrates that unlined surface 


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33ACAA (American Coal Ash Association). 2013. 

2012 Coal Combustion Product (CCP) Production & 

Use Survey Report. Farmington Hills, MI 48331. 

Available online at: http://www.acaa-usa.org/

Portals/9/Files/PDFs/

revisedFINAL2012CCPSurveyReport.pdf 

impoundments typically operate for 20 

years before they begin to leak. Most of 

the currently operating surface 

impoundments are between 20 and 40 

years old. 

The age of the units also has 

implications for their structural stability 

and the potential for catastrophic 

releases. Of the approximately 735 CCR 

surface impoundments currently 

operating in the United States, a certain 

percentage have a great potential for loss 

of human life and environmental 

damage in the event of catastrophic 

failure. Based on the information 

collected from EPA’s Assessment 

Program, 318 surface impoundments 

have either a high or significant hazard 

potential rating, at least 13 of which 

were not designed by a professional 

engineer. Of the total universe of surface 

impoundments, approximately 186 of 

these units were not designed by a 

professional engineer. Surface 

impoundments are generally designed 

to last the typical operating life of coalfired boilers, on the order of 40 years. 

However, many impoundments are 

aging; based on the subset of units for 

which age data were available, 

approximately 195 active surface 

impoundments exceed 40 years of age; 

56 units are older than 50 years, and 340 

are between 26 and 40 years old. In 

recent years, problems have continued 

to arise from these units, which appear 

to be related to the aging infrastructure, 

and the fact that many units may be 

nearing the end of their useful lives. For 

example, as a result of the 

administrative consent order issued 

after the December 2008 spill, TVA 

conducted testing which showed that 

another dike at TVA’s Kingston, 

Tennessee plant had significant safety 

deficiencies. Collectively, these facts 

indicate a high likelihood that in the 

absence of any regulatory action, such 

units will leak in the near future, or are 

currently leaking, undetected, since 

groundwater monitoring is not installed 

at many of these older units. Moreover, 

damage cases continue to occur; in 

response to EPA’s CERCLA 104(e) 

information request letter, a total of 35 

units at 25 facilities reported historical 

releases. These range from minor spills 

to a spill of 0.5 million cubic yards of 

water and fly ash. And as recently as 

February 2014, CCR slurry was released 

into the Dan River from an inactive 

surface impoundment in North 

Carolina. 

All of which demonstrates a 

compelling need for a uniform system of 

requirements to address these risks 

without waiting for the information and 

analyses necessary to complete a final 

Regulatory Determination. EPA will 

continue to monitor these critical areas, 

and will provide the public with an 

additional opportunity to comment on 

any proposed Regulatory Determination, 

prior to issuing a final Regulatory 

Determination. 

B. Final Regulatory Determination 

Regarding Beneficial Use 

EPA generally proposed to retain the 

May 2000 Regulatory Determination that 

beneficially used CCR did not warrant 

federal regulation under subtitle C of 

RCRA. As EPA stated in the May 2000 

Regulatory Determination, ‘‘In the 

[Report to Congress], we were not able 

to identify damage cases associated with 

these types of beneficial uses, nor do we 

now believe that these uses of coal 

combustion wastes present a significant 

risk to human health and the 

environment. While some commenters 

disagreed with our findings, no data or 

other support for the commenters’ 

position was provided, nor was any 

information provided to show risk or 

damage associated with agricultural use. 

Therefore, we conclude that none of the 

beneficial uses of coal combustion 

wastes listed above pose risks of 

concern.’’ (See 65 FR 32230.) EPA noted 

that since the original Regulatory 

Determination, the Agency had found 

no data or other information to indicate 

that existing efforts of states, EPA, and 

other federal agencies had been 

inadequate to address the 

environmental issues associated with 

the beneficial use of CCR that were 

originally identified in the Regulatory 

Determination. EPA explained that it 

had proposed this approach in 

recognition that some uses of CCR, such 

as encapsulated uses in concrete, and 

use as an ingredient in the manufacture 

of wallboard, provide benefits and raise 

minimal health or environmental 

concerns. Consequently, EPA 

preliminarily concluded that 

encapsulated uses of CCR, which are 

common in many consumer products, 

did not merit regulation based on the 

available information. 

However, EPA noted that the issues 

were more difficult with respect to 

unencapsulated uses of CCR and 

specifically solicited comment on 

whether such uses should continue to 

be included as ‘‘beneficial use’’ under 

the Bevill exemption. EPA explained 

that unencapsulated uses have raised 

concerns and therefore merited closer 

attention. For example, the placement of 

unencapsulated CCR on the land, such 

as in road embankments or in 

agricultural uses, presented a set of 

issues similar to those that caused the 

Agency to propose to regulate CCR 

destined for disposal. But the Agency 

also acknowledged that the amounts 

and, in some cases, the manner in 

which CCR is used—i.e., subject to 

engineering specifications and material 

requirements rather than landfilling 

techniques—are potentially very 

different from land disposal. 

EPA is retaining the original 2000 

Regulatory Determination for CCR that 

is beneficially used. EPA has made this 

determination based on consideration of 

the available information and the RCRA 

section 8002(n) study factors. 

1. Source and Volume of CCR Generated 

Each Year 

The American Coal Ash Association 

(ACAA) conducts a voluntary, annual 

survey of the coal-fired electric utility 

industry to track the quantities of CCR 

generated and beneficially used. 

According to the latest survey, the 

electric utility industry generated nearly 

110 million tons of CCR in 2012. 

Approximately 39 million tons of these 

CCR was identified by ACAA as 

beneficially used in either encapsulated 

or unencapsulated products. An 

additional 12.8 million tons were placed 

in mine-fill operations, while the 

remaining 57.8 million tons were 

disposed of in landfills and surface 

impoundments (ACAA, 2013).33

2. Present Utilization Practices 

Based on the beneficial use rates 

reported by ACAA, approximately 50 

percent of the CCR beneficially used on 

an annual basis falls into two categories: 

(1) Fly ash used as a direct substitute for 

Portland cement during the production 

of concrete (referred to as ‘‘fly ash 

concrete’’); and (2) FGD gypsum used as 

a replacement for mined gypsum in 

wallboard (referred to as ‘‘FGD gypsum 

wallboard’’). Specifically, the 2012 

ACAA survey indicates that the largest 

encapsulated beneficial uses of CCR, by 

more than a factor of two, are fly ash 

used in ‘‘concrete/concrete products/

grout’’ (12.6 million tons) and FGD 

gypsum used in ‘‘gypsum panel 

products’’ (7.6 million tons). 

3. Potential Danger, if Any, to Human 

Health or the Environment From the 

Reuse of CCR 

The risks associated with the disposal 

of CCR stems from the specific nature of 

that activity; that is, the disposal of CCR 

in (often unlined) landfills or surface 

impoundments, with thousands, if not 

millions, of tons placed in a single 


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34For more information on this risk assessment 

see EPA’s Notice of Regulatory Determination on 

Wastes from the Combustion of Fossil Fuels (65 FR 

32214, May 22, 2000). 

concentrated location. And in the case 

of surface impoundments, the CCR is 

managed with water, under a hydraulic 

head, which promotes rapid leaching of 

contaminants into neighboring 

groundwater. The beneficial uses 

identified as excluded under the Bevill 

exemption for the most part present a 

significantly different risk profile. 

a. Encapsulated Beneficial Uses 

An encapsulated beneficial use is one 

that binds the CCR into a solid matrix 

that minimizes mobilization into the 

surrounding environment. Examples of 

encapsulated uses include, but are not 

limited to: (1) Filler or lightweight 

aggregate in concrete; (2) a replacement 

for, or raw material used in production 

of, cementitious components in concrete 

or bricks; (3) filler in plastics, rubber, 

and similar products; and (4) raw 

material in wallboard production. 

Since publication of the proposal, 

EPA has developed a methodology for 

evaluating encapsulated beneficial uses. 

A copy of the methodology can be found 

at http://www2.epa.gov/coalash/

methodology-evaluating-encapsulatedbeneficial-uses-coal-combustionresiduals. EPA applied this 

methodology to the two largest CCR 

uses—the use of fly ash as a 

replacement for Portland cement in 

concrete, and the use of FGD gypsum as 

a replacement for mined gypsum in 

wallboard. A complete copy of the 

evaluation can be found at http://

www.epa.gov/wastes/conserve/imr/

ccps/pdfs/ccr_bu_eval.pdf. 

The evaluation considered products 

that meet relevant physical and 

performance standards, that conform to 

standard design specifications, and that 

incorporate fly ash and FGD gypsum 

from pollution control devices currently 

used in the United States. Based on the 

findings of the evaluation, the Agency 

concluded that environmental releases 

of constituents of potential concern 

from CCR fly ash concrete and FGD 

gypsum wallboard during use by the 

consumer are comparable to or lower 

than those from analogous non-CCR 

products, or are at or below relevant 

regulatory and health-based benchmarks 

for human and ecological receptors. 

b. Unencapsulated Uses 

EPA acknowledged in the proposal 

that unencapsulated uses generally 

presented more difficult issues than 

encapsulated uses. CCR can leach toxic 

metals at levels of concern, so 

depending on the characteristics of the 

CCR, the amount of material placed, 

how it is placed, and the site conditions, 

there is a potential for environmental 

concern. However, EPA cannot 

extrapolate from the risk assessments 

conducted to evaluate the management 

practices associated with CCR landfills 

and CCR surface impoundments, 

because the exposure patterns are too 

dissimilar: The amounts and manner 

involved with beneficial use are very 

different than the thousands, if not 

millions of tons of CCR that are 

mounded in a single concentrated 

location in a landfill. And the potential 

exposures are entirely unlike surface 

impoundments, where CCR is managed 

with water under a hydraulic head, 

which promotes more rapid leaching of 

contaminants. By contrast ‘‘beneficial 

uses,’’ even unencapsulated uses, are 

typically subject to engineering 

specifications, and for certain uses, 

federal oversight, and material 

requirements. For example, fly ash used 

as a stabilized base course in highway 

construction is subject to both 

regulatory standards under the U.S. 

Department of Transportation (DOT) 

and the Federal Highway 

Administration (FHWA), and 

engineering specifications, such as the 

ASTM C 593 test for compaction, the 

ASTM D 560 freezing and thawing test, 

and a seven day compressive strength 

above 2760 kPa (400 psi). (See 75 FR 

35163–35165 for additional examples.) 

In 1999, EPA conducted a risk 

assessment of certain agricultural uses 

of CCR, since this practice was 

considered the most likely to raise 

human health or environmental 

concerns.34 EPA estimated the risks 

associated with such uses to be within 

the range of 1 × 10¥6. These results as 

well as EPA’s conclusion that the use of 

CCR in agricultural settings was the 

most likely use to raise concerns, caused 

EPA to conclude that none of the 

beneficial uses identified in the 2000 

Regulatory Determination warranted 

federal regulation, because ‘‘we were 

not able to identify damage cases 

associated with these types of beneficial 

uses, nor do we now believe that these 

uses of coal combustion wastes present 

a significant risk to human health or the 

environment.’’ (65 FR 32230, May 22, 

2000.) 

EPA also noted that beneficially using 

secondary materials conserves natural 

resources, and can serve as an important 

alternative to disposal. 

4. Documented Cases in Which Damage 

to Human Health or the Environment 

From Surface Run-off or Leachate Has 

Been Proved 

To date, EPA has seen no evidence of 

damages from the encapsulated 

beneficial uses of CCR that EPA 

identified in the proposal. For example, 

there is wide acceptance of the use of 

CCR in encapsulated uses, such as 

wallboard, concrete, and bricks because 

the CCR is bound into products. 

However, as of the date of the proposed 

rule, seven proven damage cases 

associated with unencapsulated uses 

have occurred, in which large quantities 

of unencapsulated CCR were used 

indiscriminately to re-grade the 

landscape or to fill old quarries or gravel 

pits. The proposed rule discussed two of 

these cases. (See 75 FR 35147.) The first 

case was in Gambrills, Maryland and 

involved the disposal of fly ash and 

bottom ash (beginning in 1995) in two 

sand and gravel quarries. EPA considers 

this site a proven damage case, because 

groundwater samples from residential 

drinking wells near the site include 

heavy metals and sulfates at or above 

groundwater quality standards, and the 

state of Maryland is overseeing 

remediation. The second case is the 

Battlefield Golf Course in Chesapeake, 

Virginia where 1.5 million yards of fly 

ash were used as fill and to contour a 

golf course. Groundwater contamination 

above MCLs has been found at the edges 

and corners of the golf course, but not 

in residential wells. An EPA study in 

April 2010, established that residential 

wells near the site were not impacted by 

the fly ash and, therefore, EPA does not 

consider this site to be a proven damage 

case. However, due to the onsite 

groundwater contamination, EPA 

considers this site to be a potential 

damage case. 

During the development of this final 

rule, EPA obtained information on a 

comparable situation in which large 

quantities of unencapsulated CCR were 

placed on the land in a manner that 

presented significant concerns. The AES 

coal-fired power plant in Puerto Rico 

lacked capacity to dispose of their CCR 

on-site, and off-site landfills in Puerto 

Rico were prohibited from accepting 

CCR. In lieu of transporting their CCR 

off of the island for disposal, AES 

created an aggregate (‘‘AGREMAX’’) 

with the CCR generated at their facility, 

and used the aggregate as fill in housing 

developments and in road projects. Over 

two million tons of this material was 

used between 2004 and 2012. 

Currently, there is insufficient 

information to determine whether 

groundwater has been contaminated as 


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a result of this practice, and thus, EPA 

cannot classify this as either a proven or 

potential ‘‘damage case.’’ Nevertheless, 

the available facts illustrate several of 

the significant concerns associated with 

unencapsulated uses. Specifically, the 

AGREMAX was applied without 

appropriate engineering controls and in 

volumes that far exceeded the amounts 

necessary for the engineering use of the 

materials. Inspections of some of the 

sites where the material had been 

placed showed use in residential areas, 

and to environmentally vulnerable 

areas, including areas close to wetlands 

and surface waters and over shallow, 

sole-source drinking water aquifers. In 

addition, some sites appeared to have 

been abandoned. 

Consistent with the proposed rule, 

EPA does not consider the practices 

described in this section to be beneficial 

use, but rather waste management that 

would be subject to the requirements of 

the final rule. 

5. Alternatives to Current Disposal 

Methods, the Costs of Such Alternatives, 

and the Impact of Such Alternatives on 

the Use of Coal and Other Natural 

Resources 

The beneficial use of CCR is a primary 

alternative to current disposal methods. 

And as EPA has repeatedly concluded, 

it is a method that, when performed 

correctly, can offer significant 

environmental benefits, including 

greenhouse gas (GHG) reduction, energy 

conservation, reduction in land disposal 

(along with the corresponding 

avoidance of potential CCR disposal 

impacts), and reduction in the need to 

mine and process virgin materials and 

the associated environmental impacts. 

a. Greenhouse Gas and Energy Benefits 

The beneficial use of CCR reduces 

energy consumption and GHG 

emissions in a number of ways. Three 

of the most widely recognized beneficial 

applications of CCR are the use of coal 

fly ash as a substitute for Portland 

cement in the manufacture of concrete, 

the use of FGD gypsum as a substitute 

for mined gypsum in the manufacture of 

wallboard, and the use of CCR as a 

substitute for sand, gravel, and other 

materials in structural fill. Reducing the 

amount of cement, mined gypsum, and 

virgin fill produced by substituting CCR 

leads to large supply chain-wide 

reductions in energy use and GHG 

emissions. Specifically, the RIA 

estimates three-year rolling average of 

53,054,246 million British thermal units 

(MMBtu) per year in energy savings and 

11,571,116 tons per year in GHG (i.e., 

carbon dioxide and methane) emissions 

reductions in 2015. This estimate is 

likely to underestimate the total benefits 

that can be achieved from all beneficial 

uses. Furthermore, the use of fly ash 

generally makes concrete stronger and 

more durable. This results in a longer 

lasting material, thereby marginally 

reducing the need for future cement 

manufacturing and corresponding 

avoided emissions and energy use. 

b. Benefits From Reducing the Need To 

Mine and Process Virgin Materials 

CCR can be substituted for many 

virgin materials that would otherwise 

have to be mined and processed for use. 

These virgin materials include 

limestone to make cement, and Portland 

cement to make concrete; mined 

gypsum to make wallboard, and 

aggregate, such as stone and gravel for 

uses in concrete and road bed. Using 

virgin materials for these applications 

requires mining and processing, which 

can impair wildlife habitats and disturb 

otherwise undeveloped land. It is 

beneficial to use secondary materials— 

provided it is done in an 

environmentally sound manner—that 

would otherwise be disposed of, rather 

than to mine and process virgin 

materials, while simultaneously 

reducing waste and environmental 

footprints. Reducing mining, processing 

and transport of virgin materials also 

conserves energy, avoids GHG 

emissions, and reduces impacts on 

communities. 

c. Benefits From Reducing the Disposal 

of CCR 

Beneficially using CCR instead of 

disposing of it in landfills and surface 

impoundments also reduces the need 

for additional landfill space and any 

risks associated with their disposal. In 

particular, the United States disposed of 

over 57.8 million tons of CCR in 

landfills and surface impoundments in 

2012, which is equivalent to the space 

required of 20,222 quarter-acre home 

sites under eight feet of CCR. 

As discussed in the final rule RIA, the 

current beneficial use of CCR as a 

replacement for industrial raw materials 

(e.g., Portland cement, virgin stone 

aggregate, lime, gypsum) provides 

substantial annual life cycle 

environmental benefits for these 

industrial applications. Specifically, the 

three-year rolling average of 

environmental benefits estimated for 

2015 includes: (1) 53,054,246 MMBtu 

per year in energy savings; (2) 1,661,900 

million gallons per year in water 

savings; (3) 11,571,116 tons per year in 

GHG (i.e., carbon dioxide and methane) 

emissions reductions; (4) 45,770 tons of 

criteria air pollutant (i.e., NOX, SOX, 

particulate matter, and CO) emissions 

reductions; and (5) 3,207 pounds of 

toxic air pollutant (i.e., mercury and 

lead) emissions reductions. All together, 

the beneficial use of CCR in 2015 is 

estimated to provide over $2.3 billion in 

annual national environmental benefits. 

In addition, since EPA estimates annual 

baseline disposal costs of approximately 

$2.4 billion for the just over 50 percent 

of tons disposed each year, current 

beneficial use and minefilling also 

result in annual material and disposal 

cost savings of approximately $2 billion 

annually. 

6. Current and Potential Utilization of 

CCR 

In 2012, nearly 36 percent (39 million 

tons) of CCR were beneficially used 

(excluding minefill operations) and 

nearly 12 percent (12.8 million tons) 

were placed in minefills. (This 

compares to 23 percent of CCR that were 

beneficially used, excluding minefilling, 

at the time of the May 2000 Regulatory 

Determination, and represents a 

significant increase.) 

7. Conclusions 

On balance, after considering all of 

the available information, EPA has 

concluded that the most appropriate 

approach toward beneficial use is to 

retain the May 2000 Regulatory 

Determination that regulation under 

subtitle C of the beneficial use of CCR 

is not warranted. EPA has also 

determined that regulation under 

subtitle D is generally not necessary for 

these beneficial uses. 

As discussed in the preceding section, 

the most important of the section 

8002(n) factors are those relating to the 

potential risks to human health and the 

environment. See e.g., Horsehead 

Resource Development Co. v. EPA, 16 

F.3d 1246, 1258 (D.C. Cir, 1994) 

(Upholding EPA’s interpretation that 

wastes resulting from the combustion of 

mixtures of Bevill-exempt and nonexempt wastes could only retain Bevillexempt status so long as the combustion 

waste remained of low toxicity); EDF v. 

EPA, 852 F.2d 1316, 1328–1329 (D.C. 

Cir. 1988) (Overturning EPA rule that 

included as Bevill exempt, wastes that 

were not of low toxicity). EPA is 

adopting this Regulatory Determination 

in recognition that many uses of CCR, 

such as encapsulated uses in concrete, 

and use as an ingredient in the 

manufacture of wallboard, provide 

environmental benefits and raise 

minimal health or environmental 

concerns. To date, the information 

available does not demonstrate the 

existence of any risks associated with 

encapsulated uses of CCR that merit 


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21330 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

35The Agency is currently developing a 

Framework to address the risks associated with the 

beneficial use of unencapsulated materials. This 

Framework is expected to be finalized in 2015. See 

Unit VI of this document for more information. 

36EPA has worked with the states to support the 

development of a national database on state 

beneficial use determinations. Information on the 

beneficial use determination database can be found 

on the Northeast Waste Management Officials’ 

Association (NEWMOA) Web site at http://

www.newmoa.org/solidwaste/bud.cfm. This 

database helps states share information on 

beneficial use decisions providing for more 

consistent and informed decisions. 

regulation under either subtitle C or 

subtitle D of RCRA. 

While there can be some risks 

associated with unencapsulated uses— 

for example, the placement of 

unencapsulated CCR on the land, such 

as in large scale fill operations or in 

agricultural uses, depending on the 

specific site conditions—in general the 

amounts and, in some cases, the manner 

in which they are used are very different 

than land disposal. For example, 

agricultural uses involve the placement 

of inches rather than tons of CCR, and 

placement of CCR in a thin layer rather 

than mounded in a single concentrated 

location. In addition, these uses are 

subject to engineering specifications and 

materials requirements, which will limit 

the ultimate amount of material placed 

on the land. 

EPA recognizes that several proven 

damage cases involving the large-scale 

placement, akin to disposal, of CCR 

have occurred under the guise of 

‘‘beneficial use’’— the ‘‘beneficial’’ use 

being the filling up of old quarries or 

gravel pits, or the re-grading of 

landscape with large quantities of CCR. 

EPA did not consider this type of use as 

a ‘‘beneficial’’ use in its May 2000 

Regulatory Determination, and still does 

not consider this type of use to be 

covered by the exclusion. Therefore, the 

final rule explicitly removes these types 

of uses from the category of beneficial 

use, and from this Regulatory 

Determination. As discussed in the next 

section of this preamble, EPA has 

adopted criteria in the final rule to 

ensure that inappropriate uses that 

effectively are disposal will be regulated 

as disposal. The final rule expressly 

defines the placement of CCR in sand 

and gravel pits or quarries as disposal in 

a landfill. In addition, the final rule 

provides that the use of large volumes 

of CCR in restructuring landscape that 

does not meet specific criteria will 

constitute disposal. 

While EPA has not definitively 

concluded that all unencapsulated 

beneficial uses are ‘‘safe,’’ based on the 

current record for this rulemaking, EPA 

is unable to point to evidence 

demonstrating that the unencapsulated 

uses subject to this Determination 

warrant federal regulation. While the 

absence of demonstrated harm in this 

instance is not proof of safety, neither is 

the lack of information proof of risk.35

In this regard, EPA notes that many 

states have developed beneficial use 

programs that allow the use of CCR, 

provided they are demonstrated to be 

non-hazardous materials; and many 

require a site specific assessment before 

authorizing placement on the land of 

large amounts of unencapsulated CCR. 

For example, Wisconsin’s Department of 

Natural Resources has developed a 

regulation (NR 538 Wis. Adm. Code), 

which includes a five-category system to 

allow for the beneficial use of industrial 

by-products, including coal ash, 

provided they meet the specified 

criteria. In addition, the ASTSWMO 

2006 Beneficial Use Survey Report 

states that a total of 34 of the 40 

reporting states, or 85 percent, indicated 

they had either formal or informal 

decision-making processes or beneficial 

use programs relating to the use of solid 

wastes. (http://www.astswmo.org/Files/

Policies_and_Publications/Solid_Waste/

2007BUSurveyReport11-30-07.pdf) 36

Because EPA has not identified 

significant risks associated with the 

beneficial uses covered by this 

Regulatory Determination, the adequacy 

of these state programs does not factor 

into EPA’s Determination. Nevertheless, 

to the extent that that these materials do 

have the potential to pose risk at an 

individual site, the fact that many states 

exercise regulatory oversight of these 

materials provides an additional level of 

assurance. 

Finally, EPA does not wish to inhibit 

or eliminate the measurable 

environmental and economic benefits 

derived from the use of this valuable 

material given the current lack of 

evidence affirmatively demonstrating an 

environmental or health risk. 

Consequently, EPA is confident that the 

combination of the final rule, EPA 

guidance, current industrial standards 

and practices, and in many cases, state 

regulatory oversight is sufficient to 

address concerns associated with the 

beneficial uses to which this 

Determination applies. 

V. Development of the Final Rule— 

RCRA Subtitle D Regulatory Approach 

As previously discussed in Unit II of 

this document, the authority to develop 

and promulgate the national minimum 

criteria governing the disposal of CCR in 

landfills and surface impoundments is 

found under the provisions of sections 

1008(a), 4004, and 4005(a) of RCRA (i.e., 

subtitle D of RCRA). These authorities, 

however, do not provide EPA with the 

ability to issue permits, require states to 

issue permits, approve state programs to 

operate in lieu of the federal program, 

or to enforce any of the requirements 

addressing the disposal of CCR. 

Consequently, EPA designed the 

proposed RCRA subtitle D option to 

ensure that the requirements will 

effectively protect human health and the 

environment within those limitations. 

The final rule establishes selfimplementing requirements—primarily 

performance standards—that owners or 

operators of regulated units can 

implement without any interaction with 

regulatory officials. 

In developing the subtitle D option for 

the proposal, EPA considered a number 

of existing programs as relevant models. 

EPA drew most heavily on the existing 

40 CFR part 258 program applicable to 

MSWLFs. While this program does not 

address CCR disposal in surface 

impoundments, it provided EPA with a 

general regulatory framework that 

addressed all aspects of disposal in 

certain land-based units. Given the 

Agency’s expansive history and 

experience with these requirements, 

EPA concluded that the part 258 criteria 

with certain modifications for other 

land-based disposal units (i.e., surface 

impoundments) represented a 

reasonable balance between ensuring 

the protection of human health and the 

environment from the risk of CCR 

disposal and the absence of any 

regulatory oversight. (See 75 FR 35192– 

35195.) 

EPA also considered that many of the 

technical requirements developed to 

specifically address the risks from the 

disposal of CCR as part of the subtitle 

C alternative would be equally justified 

under a RCRA subtitle D regulatory 

regime. The factual record—i.e., the risk 

analysis and the damage cases— 

supporting such requirements was the 

same, irrespective of the statutory 

authority under which the Agency was 

operating. Thus, several of the 

provisions under RCRA subtitle D either 

corresponded to the proposal under 

RCRA subtitle C, or were modeled after 

the existing subtitle C requirements; for 

example, EPA proposed the same 

MSHA-based structural stability 

standards for surface impoundments 

under the subtitle C and subtitle D 

options. However, because there is no 

corresponding guaranteed permit 

mechanism under the RCRA subtitle D 

requirements, EPA also considered the 

40 CFR part 265 interim status 

requirements for hazardous waste 

facilities, which were designed to 

operate in the absence of a permit. 

These requirements were particularly 


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relevant in developing the requirements 

for surface impoundments since such 

units are not regulated under 40 CFR 

part 258. Beyond their selfimplementing design, these 

requirements provided a useful model 

because, based on decades of experience 

in implementing these requirements, 

EPA had assurance that these 

requirements were protective for a 

variety of waste, under a wide variety of 

site conditions. 

In an effort to ensure that the 

proposed RCRA subtitle D requirements 

would achieve the statutory standard of 

‘‘no reasonable probability of adverse 

effects on health and the environment’’ 

in the absence of guaranteed regulatory 

oversight, EPA also proposed to require 

facilities to obtain third party 

certifications and to provide enhanced 

state and public notifications of actions 

taken to comply with the regulatory 

requirements. Specifically, EPA 

proposed that certain technical 

demonstrations made by the owner or 

operator be certified by an independent 

registered professional engineer or 

hydrologist, in order to provide 

verification and otherwise ensure that 

the provisions of the rule were properly 

applied. EPA also provided a regulatory 

definition of the term, ‘‘independent 

registered professional engineer or 

hydrologist,’’ to identify the minimum 

qualifications necessary to make these 

certifications. While EPA acknowledged 

that relying upon a third party 

certification was not the same as relying 

upon a state or federal regulatory 

authority and was not expected to 

provide the same level of independence 

as a state permit program, the 

availability of meaningful third party 

(i.e., independent) verification provided 

critical support that the rule would 

achieve the statutory standard, as it 

would provide at least some degree of 

control over a facility’s discretion in 

implementing the rule. 

As part of the notification 

requirements, EPA further proposed that 

all owners and operators create and 

maintain an operating record and 

publically accessible Web site, 

containing comprehensive 

documentation of compliance with the 

rule. EPA also proposed that owners or 

operators provide notification to the 

state and the public of third party 

certifications as well as other 

information documenting actions taken 

to comply with the technical criteria of 

the rule. 

A. The Self-Implementing Approach 

While the vast majority of state and 

industry commenters supported 

regulating the management of CCR 

under subtitle D of RCRA, a very limited 

number of commenters favored the 

proposed self-implementing option. 

Most commenters argued that if the 

Agency were to adopt the proposed 

subtitle D approach it would most 

certainly result in parallel and 

redundant regulatory programs for CCR 

in many states, creating an unworkable 

situation for industry, as well as the 

state. Some commenters argued that 

under this dual regulatory approach, an 

owner or operator of a CCR unit could 

conceivably be in non-compliance with 

both a federal requirement and an 

independently administered state 

regulatory requirement, subjecting the 

owner or operator to both a citizen suit 

enforcement action in federal court for 

the alleged violation and to a wholly 

separate enforcement action in state 

court for violation of the parallel state 

requirement. Commenters argued that 

this regulatory construct made no sense 

and would waste federal and state 

judicial resources and company 

resources, as well as possibly resulting 

in inconsistent federal and state court 

determinations with respect to an 

identical regulatory requirement. It also 

could result in duplicative federal and 

state penalties for essentially the same 

regulatory infraction. 

Commenters further argued that the 

prescriptive one-size-fits-all approach 

was overly stringent and inflexible and 

had the potential to greatly disrupt 

implementation of a state’s regulatory 

programs, which have been tailored to 

provide for site specific conditions and 

situations. Moreover, commenters 

argued that because of the many state 

regulatory programs addressing CCR 

disposal, there would be many instances 

where state requirements could be in 

conflict with, in addition to, or separate 

from the federal requirements and it was 

unclear how these differences would be 

resolved. 

Many commenters simply argued that 

a permitting program similar to that for 

MSWLFs was the only viable approach 

for the regulation of CCR. A significant 

number of commenters, however, 

proposed various alternative approaches 

for regulating CCR disposal under 

subtitle D of RCRA. One option would 

have EPA allow qualified state programs 

to directly administer the subtitle D 

requirements for CCR when the state 

regulatory program meets or exceeds the 

federal requirements, thereby 

minimizing duplicative regulations and 

avoiding the self-implementing ‘‘one 

size fits all’’ approach contained in 

EPA’s proposal. This option, 

commenters reasoned, could be 

implemented utilizing a process 

developed by the Agency for evaluating 

whether the state’s CCR regulations 

were equivalent to the federal minimum 

criteria (much like EPA does now in the 

case of MSWLFs under 40 CFR part 

258). Another suggested approach 

involved EPA clarifying that a state can 

be more restrictive than the federal rule, 

and that where a state has a subtitle D 

regulatory program that is more 

restrictive, the state program and 

permitting process would take 

precedence over any selfimplementation aspects of a final rule. 

(The proposed rule had simply stated 

that an owner or operator must comply 

with any other applicable federal, state, 

tribal or local laws or other 

requirements.) Commenters also 

proposed a third option, similar to the 

40 CFR part 258 program, recognizing 

that EPA cannot approve state programs 

in this rule. Specifically, 40 CFR part 

258 provides a definition for ‘‘Director 

of an approved state’’ that means they 

are the chief administrative officer of a 

state agency responsible for 

implementing the state permit program 

that is deemed to be adequate by EPA 

under regulations published pursuant to 

sections 2002 and 4005 of RCRA. The 

commenters suggested that the final rule 

adopt a similar approach by defining a 

‘‘state permit program’’ and allowing a 

state permit program that met the 

definition to approve compliance with a 

specified regulatory requirement, e.g., 

landfill design. The commenter 

suggested the following definition: 

‘‘state permit program means a permit 

program implemented by a state agency 

that adopts and implements the 

minimum requirements for the disposal 

of coal combustion residuals outlined in 

this final rule.’’ The commenter claimed 

that such an approach should not affect 

enforcement through citizen suits under 

RCRA section 7002 or by EPA under 

RCRA section 7003. Taking such an 

approach, commenters reasoned, would 

allow states to utilize their own 

enforcement authority and not rely 

upon the citizen suit authority under 

RCRA section 7002. Furthermore, 

allowing states to consider alternative 

approaches to the technical standards 

may give states an incentive to adopt the 

minimum requirements of the final 

federal rule into their state permit 

programs. 

As noted, many commenters 

suggested that EPA rely on the same 

combination of RCRA statutory 

authorities, i.e., RCRA sections 4010(c) 

and 4005(c), to establish controls for 

CCR units that it employed in 

promulgating federally enforceable 

subtitle D rules for MSWLFs and for 

non-MSWLFs that receive household 


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hazardous waste and small quantity 

generator waste under 40 CFR parts 257 

and 258. RCRA sections 4010(c) and 

4005(c), the commenters reasoned, 

provides EPA that authority because 

non-hazardous waste CCR disposal 

facilities have the potential to receive 

household wastes or conditionally 

exempt small quantity generator waste, 

whether or not such waste is actually 

received at the CCR disposal facility. 

Commenters contended that the 

combination of these two provisions 

could enable EPA to promulgate nonhazardous waste rules for CCR that 

could be directly administered through 

state permitting programs and backed 

up by direct EPA enforcement powers in 

those states that fail to adequately 

implement the federal rules. Such an 

approach, commenters concluded 

provides the Agency with the 

enforcement authority it desires under a 

subtitle D regulatory program, while 

enabling states to have a prominent role 

in the administration of any subtitle D 

rules, and preventing the duplication of 

potentially conflicting federal and state 

controls. 

Finally, some commenters encouraged 

EPA to request from Congress the 

statutory authority necessary to propose 

non-hazardous regulations under 

subtitle D that could be implemented by 

the states and provide federal 

enforceability (similar to RCRA’s part 

258 requirements for MSWLFs). 

Commenters argued that states should 

be allowed to enforce compliance 

through a traditional permitting system, 

and that solid waste operating permits 

are critical to ensuring coal ash disposal 

facilities design, construct, operate and 

close their waste facilities safely. 

Commenters argued that permits are 

important because they can dictate the 

use of specific operating practices and 

control technologies that may be 

essential for minimizing releases. 

Permits also provide an important 

enforcement vehicle, as well as a 

process by which the public can be 

informed and participate in the siting, 

operation and closure of the waste 

disposal unit. 

While the Agency appreciates 

commenters’ attempts to craft 

alternative approaches to address the 

limitations in the proposed selfimplementing subtitle D option, EPA 

has not ‘‘chosen’’ to design standards 

under subtitle D that are selfimplementing. The sections of RCRA 

that are currently applicable to CCR— 

sections 1008(a), 4004(a), and 4005(a)— 

only authorize the Agency to establish 

minimum national criteria that apply to 

‘‘facilities.’’ 

As previously discussed, these 

provisions do not authorize EPA to 

require that facilities obtain a permit 

from EPA or a state. The fact that 

section 4004(a) does not contain any 

provision that either expressly requires 

a permit to manage waste, such as in 

section 3005, or that requires states to 

adopt a permit program, such as in 

section 4004(c)(1), provides strong 

evidence that Congress did not 

authorize EPA to impose such a 

requirement on facilities managing solid 

waste. Compare 42 U.S.C. 6925(a), 

6944(a), and 6945(c)(1). This is further 

confirmed by the fact that Congress 

thought it necessary to expressly add 

provisions to require state permit 

programs in 4010(c) and 4005(c). And 

the fact that the HSWA provisions are 

limited to two specifically enumerated 

types of units provides further evidence 

that Congress intended to authorize EPA 

to require permits only for these units. 

The restriction that the criteria apply 

only to ‘‘facilities’’ also means that EPA 

cannot establish any requirements on 

states or state programs, either directly 

or indirectly. This means, for example, 

that EPA cannot adopt a regulation that 

restricts certain provisions to those 

‘‘state permit programs’’ that meet EPA 

requirements, as one commenter 

suggested, since this would indirectly 

regulate state programs—leaving aside 

that EPA never proposed anything of the 

sort. This also means that EPA cannot 

require a facility to obtain state 

approval, as this not only presupposes 

the existence of a state permit program, 

but also that the state will approve the 

facility action on the basis of EPA’s 

criteria. EPA cannot condition a 

facility’s compliance on actions beyond 

its control. 

However, these provisions restrict 

EPA’s authority only. The legislation is 

clear that these are minimum 

requirements only, and without 

preemptive effect; states may therefore 

impose more stringent requirements, 

including the requirement that CCR 

facilities obtain a permit. This is also 

wholly consistent with longstanding 

EPA interpretations. See 44 FR 53438, 

53439 (September 13, 1979) (‘‘the 

standards established in the criteria 

constitute minimum requirements. 

These criteria do not preempt other state 

and federal requirements. Nothing in 

the Act precludes the imposition of 

additional obligations under authority 

of other laws on parties engaged in solid 

waste disposal.’’); see also 44 FR 45066 

(July 31, 1979) (‘‘EPA establishes only 

‘minimum’ requirements under this 

portion of the Act which should not 

prevent States from developing broader 

programs or stricter standards under 

authority of State law.’’). States may also 

incorporate the federal requirements 

into state law—whether through 

revisions to existing legislation or 

regulation, or through incorporating 

them into any permits issued to CCR 

facilities. Such an approach would also 

resolve commenters’ concerns about the 

potential for ‘‘parallel and redundant 

regulatory programs.’’ 

While subtitle C and 4005(c) provide 

for state oversight on rule 

implementation and allow approved 

state requirements to operate in lieu of 

federal criteria, the Agency lacks the 

authority to do so under the subsections 

of RCRA currently applicable to CCR. 

The provisions applicable to solid 

waste—sections 1008(a)(3), 4003, 

4004(a) and 4005(a)—establish a 

regulatory structure that differs in key 

respects from those established under 

subtitle C and for MSWLFs under 

section 4005(c). Under subtitle C and 

section 4005(c), Congress required EPA 

to establish federal criteria that will 

serve as national minimum standards, 

which is comparable to the authority 

under section 4004(a). But subtitle C 

and section 4005(c) also include 

detailed provisions governing both the 

state implementation of those 

requirements and the relationship 

between the federal requirements and 

the state programs that implement them. 

No comparable provisions appear in 

either section 4004(a) or section 4003, 

which governs the approval of state 

SWMPs. And the consequences of these 

omissions are significant. 

Subtitle C of RCRA contains several 

provisions that establish the 

relationship between the federal 

program and state requirements; these 

include provisions authorizing EPA to 

approve state programs and to retain a 

direct role in the implementation of the 

federal minimum requirements, whether 

through continued oversight of state 

implementation or direct 

implementation of the regulations. See, 

42 U.S.C. 6926, 6928(a)(2), and 6929. 

For purposes of this issue, the most 

critical of these is the explicit direction 

in section 3006 that authorized state 

programs ‘‘operate in lieu of the Federal 

program.’’ 42 U.S.C. 6926(b), (c)(1). See 

also 42 U.S.C. 6929 (prohibiting the 

adoption of less stringent state 

requirements than those in EPA 

regulations, and authorizing states to 

establish more stringent requirements). 

The provisions for MSWLFs under 

section 4005(c) are less detailed, but 

establish a similar regulatory structure. 

Section 4005(c)(1) expressly directs the 

states to ‘‘adopt and implement a permit 

program or other system of prior 

approval and conditions,’’ for covered 


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facilities in order to implement federal 

requirements established for such 

facilities. 42 U.S.C. 6945(c)(1). The 

statute directs EPA to determine the 

adequacy of such programs, and directs 

EPA to enforce the federal requirements 

in states that have not adopted an 

adequate program. 42 U.S.C. 

6945(c)(1)(C), (2). While less detailed 

than the provisions under subtitle C, 

section 4005(c) establishes a system that 

is equally predicated on mandated 

implementation by a state regulatory 

authority of the federal requirements, 

rather than the potential coexistence of 

two separate regulatory systems. 

The absence of any similar provisions 

in the ‘‘solid waste’’ provisions of 

subtitle D demonstrates that Congress 

intended to create a different regulatory 

structure. EPA’s role under sections 

1008(a)(3) and 4004(a) is to establish 

minimum criteria to determine which 

facilities ‘‘shall be classified as sanitary 

landfills and which shall be classified as 

open dumps,’’ and to encourage states to 

use the criteria as a part of their solid 

waste management planning. Under this 

regulatory structure, Congress intended 

that the federal requirements apply 

directly to facilities and operate 

independent of state involvement, 

unless the state chooses to do otherwise. 

The ability to approve state SWMPs 

under section 4003 does not alter this 

relationship. Indeed, the fact that 

Congress thought it necessary to revise 

section 4005 to include the specific 

provisions in subsection (c) confirms 

that Congress did not believe such 

authority already existed under sections 

4003 and 4004. 

Approval of a state’s SWMP pursuant 

to section 4003 qualifies the state to 

receive federal funds (no longer 

available) and authorizes the state to 

issue compliance schedules; but unlike 

under section 3006 or 4005(c), an 

authorized plan does not affect the 

federal minimum standards themselves, 

or authorize states to do so. Section 

4003 contains nothing that explicitly or 

implicitly authorizes state requirements 

to operate ‘‘in lieu of’’ the federal 

requirement as a consequence of EPA 

approval of the state plan. The closest 

analogue is that states with an approved 

plan may establish a ‘‘timetable or 

schedule’’ to bring existing open dumps 

into compliance with the federal 

requirements; but notably, Congress 

only authorized the state to modify the 

timeframes by which such facilities 

must be in compliance, not the 

substantive requirements themselves. 42 

U.S.C. 6945(a). 

The combination of this regulatory 

structure and the need to demonstrate 

that the final rule achieves section 

4004(a)’s protectiveness standard based 

on the record at the time the rule is 

promulgated also effectively limits 

EPA’s ability to establish the kind of 

regulatory provisions commenters have 

requested (i.e., establish an alternative 

that allows a state permit program to 

approve a less stringent technical 

requirement based on site specific 

conditions). Because as discussed in 

Unit IV of this document, EPA is 

currently unable to reach a conclusion 

regarding the adequacy of state 

programs, EPA cannot demonstrate that 

such an alternative would meet the 

section 4004(a) standard. And in the 

absence of a mandatory mechanism for 

subsequent public involvement and 

review, which would create decisions 

with their own record, subject to 

judicial review in their own right, the 

lack of such information is dispositive. 

With respect to the proposal to rely on 

RCRA sections 4010(c) and 4005(c) 

authorities, EPA also disagrees that this 

is a viable option. As the comment 

appears to acknowledge, construing 

sections 4010(c) and 4005(c) to apply to 

CCR units on the basis that they could 

potentially receive conditionallyexempt small quantity generator waste 

is inconsistent with EPA’s longstanding 

interpretation of those sections. EPA 

directly addressed this issue nearly 20 

years ago in the preamble for EPA’s final 

rules at 40 CFR part 257, subpart B. In 

that discussion which we summarize in 

the next several paragraphs, EPA 

explained that the proposed rule was 

written to provide that only those nonmunicipal non-hazardous waste 

disposal units which meet the 

requirements in §§ 257.5 through 257.30 

‘‘may receive’’ CESQG waste, as 

required by RCRA section 4010(c). Any 

non-municipal non-hazardous waste 

disposal unit that did not meet the 

proposed requirements may not receive 

CESQG hazardous wastes. The proposal 

was written to apply to non-municipal 

non-hazardous waste disposal units that 

receive CESQG waste for storage, 

treatment, or disposal, including such 

units as surface impoundments, 

landfills, land application units and 

waste piles. The regulatory definition of 

the term ‘‘disposal’’ cover all placement 

of wastes on the land. See 40 CFR 257.2. 

EPA further noted that several 

commenters addressed the Agency’s 

interpretation of the statutory language 

‘‘may receive.’’ One commenter 

supported the Agency’s decision to limit 

the proposed regulatory requirements to 

only those non-municipal nonhazardous waste disposal units that 

receive CESQG wastes. Another 

commenter, however, stated that a 

closer reading of section 4010(c) reveals 

that Congress was not only concerned 

about modifying the criteria for 

‘‘facilities that may receive hazardous 

household wastes or hazardous wastes 

from small quantity generators . . .’’ but 

also for ‘‘facilities potentially receiving 

such wastes.’’ According to the 

commenter, the ‘‘may receive’’ clause of 

the first sentence in section 4010(c) 

merely refers to whether a facility may 

legally receive CESQG waste for 

disposal. The ‘‘potentially receiving 

such wastes’’ clause of the third 

sentence of Section 4010(c) refers to the 

actual potential for such facilities to 

receive CESQG wastes. The potential for 

CESQG waste to be disposed of at many 

types of industrial D landfills is high 

even with the proposed prohibition 

under § 261.5. It is the ‘‘potentially 

receiving’’ clause that specifically 

commands the Agency to promulgate 

provisions for all industrial facilities 

that could potentially receive CESQG 

wastes. 

EPA disagreed with the commenter’s 

interpretation of the statutory language 

in RCRA section 4010(c). More 

specifically, for a number of reasons, the 

Agency did not believe that the 

statutory language cited by the 

commenter evidenced congressional 

intent that the revised criteria 

promulgated in the rule should address 

disposal of solid waste in all industrial 

disposal facilities. First, EPA believed 

that the commenter erred by focusing 

only on the ‘‘facilities potentially 

receiving’’ language in the last sentence 

of section 4010(c). If one reviews this 

language together with the statutory 

language in RCRA section 4010(a), it is 

clear that Congress did not intend for 

the revised criteria being promulgated 

in this rule to apply to all industrial 

landfills. 

RCRA section 4010(a) required EPA to 

conduct a study of the then existing 

guidelines and criteria issued under 

RCRA sections 1008 and 4004 which 

were applicable to ‘‘solid waste 

management and disposal facilities, 

including, but not limited to landfills 

and surface impoundments.’’ 42 U.S.C. 

6949a(a). This statutory language does 

indeed suggest that EPA was to study a 

wide range of solid waste disposal 

facilities, including industrial landfills. 

(As the commenter stated, because the 

information on industrial disposal 

facilities was quite limited, EPA’s report 

to Congress did focus on municipal 

landfills.) 

However, the statutory language in 

section 4010(c) directing EPA to 

promulgate a rule revising the criteria in 

40 CFR part 257 limits the rule’s 

applicability only to those facilities 

which may receive hazardous 


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household waste or small quantity 

generator waste. 42 U.S.C. 6949a(c). If 

Congress had intended the revised 

criteria under section 4010(c) to apply 

to all solid waste disposal facilities, 

including industrial landfills and 

surface impoundments, it clearly could 

have done so by enacting language 

similar to that already used in section 

4010(a). 

Secondly, the legislative history of 

RCRA section 4010 suggests that 

Congress expressly rejected a provision 

that would have required rules to be 

promulgated under section 4010(c) to 

apply to the entire universe of RCRA 

subtitle D solid waste disposal facilities. 

Indeed, the House version of section 

4010 would have required EPA to 

promulgate revised guidelines and 

criteria such that they would be 

applicable to all ‘‘solid waste 

management and disposal facilities, 

including, but not limited to landfills 

and surface impoundments. . . .’’ H.R. 

2867, section 30, 98th Cong., 1st Sess. 

(as introduced in the Senate on 

November 9, 1983). However, the 

Conference Committee instead adopted 

a Senate amendment which limited the 

scope of the revised criteria to those 

facilities that may receive hazardous 

household waste or small quantity 

generator waste. H. Rept. No. 98–1133, 

98th Cong., 2d Sess., at 116–117. 

Another indication that RCRA section 

4010(c) was not intended to cover the 

entire universe of solid waste disposal 

facilities is the fact that subsequent to 

the enactment of section 4010(c) (as part 

of the Hazardous and Solid Waste 

Amendments in 1984), a number of bills 

were introduced in Congress which 

would have either authorized or 

required EPA to issue additional 

regulations that would address all 

disposal facilities receiving industrial 

waste as opposed to addressing those 

which may receive CESQG waste as 

stated in section 4010(c). See, e.g., H.R. 

3735, ‘‘Waste Materials Management 

Act of 1989,’’ section 324 (would have 

required EPA to promulgate standards 

for the management of industrial solid 

waste) (Luken Bill); S. 1113, ‘‘Waste 

Minimization and Control Act of 1989,’’ 

section 204 (would have required EPA 

to promulgate requirements for facilities 

that manage different types of industrial 

waste) (Baucus Bill). Neither of these 

provisions (although neither was 

enacted) would have been necessary if 

RCRA section 4010(c) required EPA to 

promulgate revised criteria for all types 

of industrial disposal facilities. (See 61 

FR 34252, 34254–55 (July 1, 1996).) 

The commenter on the proposed CCR 

rule makes essentially the same 

argument based on the same language in 

4010(c) that EPA rejected in the 1996 

rule. The commenter provided no legal 

analysis that contravenes the basis for 

EPA’s interpretation of subtitle D. EPA 

thus declines to reopen or reconsider 

this interpretative question. EPA also 

notes that in any case, information in its 

record for this rulemaking indicates that 

CCR landfills or surface impoundments 

do not actually or potentially receive 

CESQG wastes. 

Nevertheless, EPA recognizes that this 

regulatory structure gives rise to 

legitimate concerns about the potential 

for duplicative or conflicting state and 

federal regulatory systems. EPA has 

adopted measures to address these 

concerns within the confines of the 

regulatory structure that Congress 

established in subtitle D. First, EPA has 

made every effort to ensure that the final 

rule does not establish any requirements 

that truly conflict with existing state 

programs. To clarify, this does not mean 

that the requirements are necessarily the 

same, but rather that it is possible to 

comply with both federal and state 

requirements simultaneously. Or in 

other words, compliance with the more 

stringent standard—whether federal or 

state—will ensure compliance with the 

less stringent. Based on the comments 

received, EPA is aware of no example of 

a situation in which truly conflicting 

requirements will exist. Second, as 

discussed, these regulations do not 

constrain or direct state action. States 

can impose more stringent or different 

requirements, such as requiring a 

permit. Nor does the regulation require 

the state to enforce the federal 

requirements; even with promulgation 

of the final rule, the decision to bring an 

action under section 7002 remains 

entirely within the state’s discretion. 

Third, as discussed in greater detail in 

Unit IX of this document, EPA has 

developed a number of measures to 

clarify the relationship between an 

individual state program, or particular 

requirements, and the federal criteria. 

Specifically, for those states that choose 

to submit a revised SWMP that 

incorporates the federal criteria, EPA 

intends to rely on the existing processes 

in 40 CFR part 256 relating to approval 

of SWMPs. EPA expects that approval of 

a state SWMP, while it cannot prevent 

a citizen group from filing a lawsuit, 

will carry substantial weight in any 

court proceeding charged with 

determining whether compliance with 

state requirements constitutes 

compliance with the federal criteria. 

B. Enforceability of the Subtitle D 

Approach 

Numerous commenters raised concern 

that reliance on a RCRA citizen suit as 

the basic enforcement mechanism to 

address non-compliance with the CCR 

requirements presents environmental 

justice concerns. Commenters argued 

that as a practical matter, this selfimplementing approach would result in 

unenforced regulations affecting 

neighborhoods where environmental, 

legal, and technical services are 

unavailable or difficult to obtain. 

Commenters stated that it would be 

highly unreasonable for EPA to place 

the burden of enforcement of the CCR 

regulations on citizens, arguing that it is 

EPA’s duty to make sure federal 

regulations protecting human health 

and the environment are enforced fairly 

and effectively, and that enforcement by 

citizen suits puts an unacceptable 

burden on low income populations 

located near these facilities. 

Commenters contended that 

environmental justice communities 

were the least likely to mount a serious 

challenge to the industry because low 

income people are often less welleducated, have less access to computers 

and internet technology, are less 

knowledgeable of how to access and 

interpret environmental data, and are 

the least likely to have the resources for 

a time consuming legal battle. 

Commenters argued that given the high 

number of damage cases in this 

industry, it was clear that the industry 

cannot police itself and neither can state 

governments. For these reasons, 

commenters asserted that the 

regulations and the enforcement must 

come from the federal level. 

Conversely, other commenters were 

encouraged by the opportunity to 

enforce the rule through citizen suits, 

stating that it would result in very 

effective regulation since citizens have 

shown no reluctance to challenge 

companies that they believe are not 

responsibly following environmental 

regulations. Similarly, other 

commenters noted that other incentives 

existed to comply with the regulations, 

including the possibility of state and 

third party litigation (for both regulatory 

compliance and actual damages), and 

the requirements of investors, lenders, 

and insurers to demonstrate compliance 

with environmental requirements, i.e., 

investors and lenders typically 

condition capital investments and loans 

on environmental compliance. 

Commenters also noted that incentives 

to comply were created by 

environmental insurance policies, 

which ‘‘invariably exclude damage 

claims arising from non-compliance 

from covered events’’ as well as typical 

corporate policies that call for 


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environmental compliance as a standard 

operating procedure. 

Other commenters focused on the role 

of the professional engineer in the selfimplementing framework, arguing that 

EPA is requiring the certifying 

professional to inappropriately take on 

a quasi-regulatory and enforcement role 

which places the certifying professional 

at great risk of being subject to nuisance 

lawsuits from project opponents, 

creating a scenario where some 

professionals may decline to be 

involved in such reviews. Still other 

commenters argued with EPA’s basic 

premise that the RCRA subtitle D 

program lacks federal enforceability. 

Commenters contended that EPA’s 

concerns about the lack of direct federal 

enforcement authority failed to 

recognize the significant enforcement 

opportunities available under existing 

law, namely the ‘‘imminent and 

substantial endangerment authority’’ 

under RCRA section 7003 to take action 

against any CCR unit that posed a risk 

to human health and the environment, 

as well as, the imminent and substantial 

endangerment authorities under 

CERCLA, as well as other federal 

authorities, including the federal Clean 

Water Act, to address circumstances 

where a CCR unit posed a threat. 

EPA acknowledges that the lack of 

federal enforcement under Subtitle D 

presents challenges. However, as 

discussed above, issuing minimum 

national standards under the authority 

that is currently applicable to CCR (i.e., 

subtitle D) is significantly more 

protective than the current federal 

standards in part 257 that apply to these 

wastes. It is more consistent with EPA’s 

obligations under RCRA to put in place 

the additional protections that, based on 

the information currently available, are 

needed to protect health and the 

environment. As part of those 

requirements, EPA has developed a 

number of provisions designed to 

facilitate citizens to enforce the rule 

pursuant to RCRA section 7002. Chief 

among these is the requirement to 

publicly post monitoring data, along 

with critical documentation of facility 

operations, so that the public will have 

access to the information to monitor 

activities at CCR disposal facilities. 

Moreover, as noted elsewhere, a state 

seeking EPA’s approval for a State 

SWMP would be required to conduct a 

public comment process to avail itself of 

the benefits of an EPA’s approval. 

EPA also agrees that the Agency 

retains the authority to bring an action 

under RCRA section 7003, as well as 

other statutes, when the facts support 

the necessary findings. However, an 

action under section 7003 does not 

enforce the requirements of this rule. 

Certainly, EPA believes that the failure 

to comply with the requirements of the 

rule increases the probability that an 

imminent and substantial endangerment 

may arise, but the fact that a facility has 

not complied with one or more of the 

requirements of this rule does not per se 

establish that a section 7003 order is 

warranted. 

The Agency also acknowledges that 

the self-implementing frameworks could 

potentially place certifying 

professionals at risk for lawsuits; several 

of the performance standards in the 

proposed rule were adopted from part 

258, which were designed to operate in 

the context of an approved state 

program, under the oversight of a state 

regulatory authority, rather than a 

purely private entity. In part due to this 

concern, the Agency has re-evaluated 

the performance standards throughout 

the final rule, and has revised them 

where necessary to ensure that the 

requirements are sufficiently objective 

and technically precise that a qualified 

professional engineer will be able to 

certify that they have been met. 

C. Reliance on Certification by 

Independent Qualified Professional 

Engineers 

As previously discussed, the majority 

of commenters were highly skeptical of 

a regulatory approach that substituted 

state oversight with an owner or 

operator hiring a consultant or 

professional, i.e., an independent 

registered professional engineer or 

hydrologist, to certify compliance with 

a federal regulatory requirement and 

posting that information on an internet 

site. More specifically, commenters 

were concerned that relying almost 

entirely on professional certifications 

for ensuring regulatory compliance did 

not seem like a reliable way to provide 

for protection of human health and or 

the environment. 

As explained in Unit IV.A of this 

document, EPA is issuing national 

minimum criteria under subtitle D to 

put in place the technical requirements 

the Agency has determined are 

necessary to protect human health and 

the environment from the disposal of 

CCR in surface impoundments and 

landfills, while the Agency completes 

its Bevill Determination. EPA is relying 

on the certification in this context to 

partially compensate for one of the more 

significant limitations under the 

authorities currently applicable to CCR: 

The lack of any guaranteed regulatory 

oversight mechanism. However, EPA 

disagrees that the rules rely ‘‘almost 

entirely’’ on professional engineers to 

protect human health and the 

environment. The final rule relies on 

multiple mechanisms to ensure that the 

regulated community properly 

implements requirements in this rule. 

As one part of this multi-mechanism 

approach, owners or operators must 

obtain certifications by qualified 

individuals verifying that the technical 

provisions of the rule have been 

properly applied and met. However, a 

more significant component supporting 

EPA’s determination that the technical 

requirements will achieve the level of 

protection required under section 

4004(a) is the performance standards 

that the rules lay out. These standards 

impose specific technical requirements, 

and, even where they provide 

flexibility, will operate to significantly 

constrain the facility’s activities and 

discretion. The certifications required 

by the rule supplement these technical 

requirements, and while they are 

important, they are not the sole 

mechanism ensuring regulatory 

compliance. 

The rule also contains a number of 

provisions requiring the owner or 

operator to document their compliance 

with the rule’s technical requirements, 

and to post those documents on a 

publically available Web site in a timely 

and transparent manner. The rule also 

requires owners or operators to notify 

State Directors of numerous actions, 

including that certified demonstrations 

have been completed. This transparency 

will facilitate citizen and state oversight 

and overall enforcement of the 

requirements. Finally, the rule 

establishes specific timeframes by 

which these actions must occur, 

including timeframes by which facilities 

must document compliance with the 

various technical requirements in the 

rule. Timeframes have been established 

for: (1) Technical compliance 

demonstrations made by the owner or 

operator; (2) certifications made by a 

qualified professional engineer verifying 

the technical accuracy and veracity of 

the compliance demonstration; (3) 

notifications made to the State Director; 

(4) submittals (e.g., data, reports and 

other documentation) to the operating 

record; and (5) postings to the owner or 

operator’s publicly accessible internet 

site. Further details pertaining to all of 

these requirements can be found in the 

Recordkeeping, Notification, and 

Posting of Information to the Internet 

section of the regulations published in 

this rule. 

1. Changes to the Definition of 

Independent Registered Professional 

Engineer or Hydrologist 

EPA proposed to define ‘‘independent 

registered professional engineer or 


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37While the definition did not require the 

independent registered professional engineer or 

hydrologist to be licensed, the preamble did state 

that EPA expects that professionals in the field will 

have adequate incentive to provide an honest 

certification, given that the regulations require that 

the engineer not be an employee of the owner or 

operator of the CCR landfill or CCR surface 

impoundment, and that they operate under penalty 

of losing their license, implying that the 

professional was, in fact, licensed. This narrative 

and the title of independent registered professional 

engineer caused many commenters to assume that 

the certifiers indeed had to be licensed professional 

engineers. (See 75 FR 35194, June 21, 2010.) 

hydrologist’’ to mean a scientist or 

engineer who is not an employee of the 

owner or operator of a CCR landfill or 

CCR surface impoundment, who has 

received a baccalaureate or postgraduate degree in the natural sciences 

or engineering, and who has sufficient 

training and experience in groundwater 

hydrology and related fields as may be 

demonstrated by state registration, 

professional certifications, or 

completion of accredited university 

programs that enable that individual to 

make sound professional judgment 

regarding the technical information for 

which a certification under this subpart 

is necessary. 

Many comments were received on the 

definition. Some commenters agreed 

with the proposed definition, but most 

commenters argued that significant 

changes were needed. These changes 

included removing the requirement that 

the engineer be ‘‘independent,’’ adding 

the word ‘‘qualified,’’ and limiting the 

ability to make certifications to 

‘‘licensed’’ professional engineers. Still 

other commenters felt that EPA should 

broaden the qualifications beyond a 

professional engineer or hydrologist, to 

include geologists, hydrogeologists, 

groundwater scientists or ‘‘other 

qualified environmental professionals’’ 

among the individuals able to certify 

regulatory demonstrations. 

By far the issue receiving the most 

comment was whether the Agency 

should require a professional engineer 

to be ‘‘independent.’’ Commenters 

disagreed with EPA that the certification 

must be made by an independent 

registered professional engineer (i.e., not 

an employee of the owner or operator of 

the CCR unit). Commenters argued that 

most utilities employ a number of 

professional engineers that typically 

possess the most relevant experience 

and knowledge about the unit, and that 

company-employed engineers and 

hydrologists were in a much better 

technical position to certify technical 

provisions of the rule were being met. 

Furthermore, commenters asserted that 

these professionals would be subject to 

the same state registration and licensing 

requirements as those not employed by 

the facility and would have an equally 

strong incentive to maintain their 

licenses in good standing as those that 

are independent of the utility. These 

commenters also pointed to several EPA 

rulemakings in which EPA allowed 

‘‘qualified’’ professional engineers to 

make the kind of certifications 

contemplated by this rulemaking, 

without requiring that they be 

‘‘independent.’’ Commenters also 

contended that state licensing and 

registration programs help to ensure that 

all professionals exercise proper 

judgment or ‘‘independence’’ regarding 

the operation of CCR landfills and CCR 

surface impoundments. Similarly, 

commenters claimed that a professional 

engineer without the required expertise 

would refuse to make any certifications 

for which they were not qualified. Some 

commenters suggested that EPA provide 

some criteria requiring demonstrated 

experience and training. Commenters 

also took issue with the fact that the 

definition focused entirely on 

groundwater hydrology and failed to 

include training or experience in other 

areas that would also be necessary to 

effectively certify specific technical 

criteria of the rule (e.g., structural 

integrity, composite liner design). 

The definition EPA proposed for 

‘‘independent registered professional 

engineer or hydrologist,’’ focused on 

three components that were intended to 

define the minimum qualifications 

necessary to independently verify that a 

specific technical standard was met and 

to provide sufficient objectivity to 

reduce the opportunity for abuse. These 

components were: (1) The individual 

was a scientist or engineer by academic 

training or education; (2) the individual 

was not an employee of the owner or 

operator of the CCR unit; and (3) the 

individual had sufficient training in 

groundwater hydrology or related fields. 

The proposed definition did not require 

the individual to be a licensed 

professional engineer or hydrologist; 

instead the Agency prohibited the 

individual providing the certification 

from being an employee of the owner or 

operator of the CCR unit, reasoning that 

this requirement would provide some 

degree of independent verification of 

facility practices.37 The Agency stated 

that the availability of meaningful 

independent verification was critical to 

EPA’s ability to conclude that the 

performance standards laid out in the 

proposed rule would meet the RCRA 

section 4004 protectiveness standard. 

In the course of developing this final 

rule, the Agency concluded that it 

needed to better define the connection 

between the technical requirements of 

the rule and the technical qualifications 

an individual must possess to certify the 

demonstrations being made by the 

owner or operator of the CCR unit. In 

doing so, the Agency looked for 

direction in the following rules, the 

‘‘Resource Conservation and Recovery 

Act (RCRA) Burden Reduction 

Initiative’’ (71 FR 16826, April 4, 2006) 

and the ‘‘Oil Pollution Prevention and 

Response; Non-Transportation-Related 

Onshore and Offshore Facilities rule (67 

FR 47042, July 17, 2002). In both of 

these actions, the Agency had come to 

similar conclusions. First, that 

professional engineers, whether 

independent or employees of a facility, 

being professionals, will uphold the 

integrity of their profession and only 

certify documents that meet the 

prescribed regulatory requirements; and 

that the integrity of both the 

professional engineer and the 

professional oversight of boards 

licensing professional engineers are 

sufficient to prevent any abuses. (For an 

example see: 67 FR 47084, July 17, 

2002.) And second, that in-house 

professional engineers may be the 

persons most familiar with the design 

and operation of the facility and that a 

restriction on in-house professional 

certifications might place an undue and 

unnecessary financial burden on owners 

or operators of facilities by forcing them 

to hire an outside engineer. 

Reviewing these other regulatory 

actions and the Agency’s rationale for 

making its decisions, has led the Agency 

to a similar conclusion with regard to 

this rule—that it is unnecessary to 

require the individual making 

certifications under this rule to be 

‘‘independent.’’ Thus the final rule does 

not prohibit an employee of the facility 

from making the certification, provided 

they are a professional engineer that is 

licensed by a state licensing board. The 

personal liability of the professional 

engineer provides strong support for 

both the requirement that certifications 

must be performed by licensed 

professional engineers, and for 

removing the requirement that the 

engineer be ‘‘independent.’’ 

While other commenters argued that 

the word ‘‘independent’’ should be 

retained because an independent review 

and certification avoids any potential of 

conflict of interest, the Agency is 

convinced that an employee of a facility, 

who is a qualified professional engineer 

and who has been licensed by a state 

licensing board would be no more likely 

to be biased than a qualified 

professional engineer who is not an 

employee of the owner or operator. 

Moreover, it is not clear that an in-house 

engineer faces a greater economic 

temptation than an independent 


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engineer seeking to cultivate an ongoing 

relationship with a client. EPA has 

concluded that the programs established 

by state licensing boards provide 

sufficient guarantees that a professional 

engineer, regardless of whether he/she 

is ‘‘independent’’ of the facility, will 

give a fair technical review. 

As an additional protection, the 

Agency has re-evaluated the 

performance standards throughout the 

final rule to ensure that the 

requirements are sufficiently objective 

and technically precise that a qualified 

professional engineer will be able to 

certify that they have been met. 

The Agency agrees with concerns that 

a professional engineer may not be 

qualified to address all the varied 

aspects of CCR landfill and CCR surface 

impoundment design, and has amended 

the definition to clarify and strengthen 

the qualifications of the individual 

authorized to certify the technical 

demonstrations under the rule. In the 

proposed rule, the Agency did not 

require an independent registered 

professional engineer to be licensed, 

only that they be an engineer or 

hydrologist who had received a 

baccalaureate or post graduate degree in 

the natural sciences with training and 

experience in groundwater hydrology or 

a related field. While the term 

‘‘independent registered professional 

engineer or hydrologist’’ conveyed to 

some commenters that the individual 

was in fact ‘‘licensed,’’ the definition in 

the proposal did not require it. 

Furthermore, as noted by commenters, 

the proposed definition focused 

primarily on hydrogeology expertise 

and did not include training and 

experience qualifications necessary to 

accurately certify some of the 

requirements being promulgated in the 

rule, e.g., landfill and surface 

impoundment design and construction, 

structural stability assessments, analysis 

of unstable areas. In reviewing this 

proposed requirement, the Agency has 

determined that specifying exact 

qualifications and or experience for the 

professional engineer is neither 

necessary nor practical, given the range 

of technical specifications that will 

require certification. EPA has therefore 

adopted a more succinct requirement 

focused on the professional engineer’s 

qualifications to perform the task or 

certification. 

In making this change, the Agency 

was again strongly influenced by the 

‘‘Resource Conservation and Recovery 

Act (RCRA) Burden Reduction 

Initiative’’ rule. (See 71 FR 16826, April 

4, 2006.) In that rule, EPA amended the 

majority of RCRA provisions requiring 

the certification of an ‘‘independent, 

qualified, registered, professional 

engineer’’ to substitute the phrase, a 

‘‘qualified professional engineer,’’ 

reasoning that a requirement for a 

qualified professional engineer 

maintains the most important 

components of any certification 

requirement: (1) That the engineer be 

qualified to perform the task based on 

training and experience; and (2) that she 

or he be a professional engineer licensed 

to practice engineering under the title 

Professional Engineer which requires 

following a code of ethics with the 

potential of losing his/her license for 

negligence (see 71 FR 16868.) 

In the ‘‘Burden Reduction Rule’’ the 

Agency concluded that a professional 

engineer is able to give fair and 

technical review because of the 

oversight programs established by the 

state licensing boards that will subject 

the professional engineer to penalties, 

including the loss of license and 

potential fines if certifications are 

provided when the facts do not warrant 

it. In fact, this personal liability of the 

professional engineer is one of the 

primary reasons that commenters to the 

‘‘Burden Reduction Rule’’ supported the 

idea that RCRA certifications should 

only be done by licensed professional 

engineers (See 71 FR 16868.) Upon 

further analysis and reflection, the 

Agency sees no reason to deviate from 

the position EPA held in that rule. 

Despite some concerns raised by 

commenters that problems could occur 

if an owner or operator hires an 

engineering firm that is small, 

inexperienced, or operating outside of 

their past professional practice, the 

Agency continues to believe that with 

the protections afforded by the specific 

performance standards in this rule and 

the standards and ethics to which a 

qualified professional engineer is 

subject, situations in which an 

unqualified or un-licensed engineer 

certifies a technical demonstration will 

be avoided. Furthermore, it is important 

to reiterate that state licensing boards 

can investigate complaints of negligence 

or incompetence on the part of 

professional engineers, and may impose 

fines and other disciplinary actions, 

such as cease-and-desist orders or 

license revocation. (See 71 FR 16868.) In 

light of the third party oversight 

provided by the state licensing boards in 

combination with the numerous 

recordkeeping and recording 

requirements established in this rule, 

the Agency is confident that abuses of 

the certification requirements will be 

minimal and that human health and the 

environment will be protected. 

The Agency wants to make it clear 

that qualified professional engineers can 

utilize a qualified team of professionals 

in performing the analyses that underlie 

these certifications. In most instances, 

EPA expects that the basis for 

certification by a qualified professional 

engineer will be the result of a team of 

professionals (e.g., geologists, 

hydrologists, scientists and engineers) 

who have collectively worked together 

in order to provide the data and 

analyses necessary for the professional 

engineer to certify the specific 

demonstration. 

The Agency is convinced that the 

change to the certification requirements 

to allow the use of in-house expertise 

will not compromise environmental 

safety. Professional engineers employed 

by a facility are more familiar with the 

facility’s particular situation and are in 

a position to provide more on-site 

review and oversight of the activity 

being certified. To this end, the Agency 

is also requiring that the qualified 

professional engineer be licensed in the 

state in which the CCR unit is located. 

The Agency has made this decision for 

a number of reasons, but primarily 

because state licensing boards can 

provide the necessary oversight on the 

actions of the professional engineer and 

investigate complaints of negligence or 

incompetence as well as impose fines 

and other disciplinary actions such as 

cease-and-desist orders or license 

revocation. Oversight may not be as 

rigorous if the professional engineer is 

operating under a license issued from 

another state. 

Finally, the Agency disagrees with 

comments that professional geologists or 

geoscientists should be added to the list 

of those professionals that have 

expertise and authority to certify 

compliance with certain RCRA subtitle 

D regulatory requirements. In 

developing this final rule, the Agency 

has re-considered the qualifications 

necessary to certify compliance with the 

technical requirements of the rule and is 

limiting compliance certifications to 

qualified professional engineers only. 

While some environmental 

professionals, e.g., hydrologists, 

geologists may be qualified to make 

certain certifications, EPA is not 

convinced that hydrologists or 

geologists licensed by a state are held to 

the same standards as a professional 

engineer licensed by a state licensing 

board. For example, it is unclear that 

hydrologists or geologists are subject to 

the rigorous testing required by 

professional engineers or that state 

licensing boards can investigate 

complaints of negligence or 

incompetence. Further, professional 

engineers have licensing boards in all 50 

states, a standard not achieved by other 


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professional disciplines. Consequently, 

hydrologists, geologists, or other 

professionals may only perform 

analyses that underlie the certification, 

but it is the responsibility of a qualified 

professional engineer to make the actual 

certification. 

D. State and Public Notifications of 

Certifications 

To address concerns about the 

absence of adequate regulatory oversight 

under subtitle D, EPA proposed to 

require state and public notifications of 

the third party certifications, as well as 

other information documenting the 

decisions made or actions taken by the 

owner or operator to comply with the 

technical criteria in the rule. As stated 

in the proposal and reiterated here, the 

Agency cannot conclude that the 

regulations promulgated in this rule will 

ensure there is no reasonable probability 

of adverse effects on health or the 

environment unless there is a 

mechanism for states and citizens, as 

the entities responsible for enforcing the 

rule, to effectively monitor or oversee its 

implementation. Mandated 

documentation and transparency of the 

owner or operator’s actions to comply 

with the rule provides this mechanism, 

and will help to minimize the potential 

for abuse. The proposal specified that 

the documentation of how the various 

technical standards had been met were 

to be placed in the facility’s operating 

record, along with notification to the 

appropriate state authority. 

Additionally, EPA proposed to require 

the owner or operator to maintain a Web 

site available to the public that would 

also provide access to this 

documentation. EPA proposed that 

owners or operators post notices and 

relevant information on the internet site 

with a link clearly identified as being a 

link to notifications, reports, and 

demonstrations required under the 

regulations. While EPA recognized that 

the internet is currently the most widely 

accessible means for gathering and 

disseminating information, the Agency 

also solicited comments regarding 

alternative methods to provide 

notifications to the public and the 

states. The Agency also solicited 

comment on whether to require the 

establishment of a publicly accessible 

internet site to provide regulatory 

information to the public and the states, 

including whether there could be 

homeland security implications 

associated with internet posting of 

information, and whether the posting 

would duplicate information that is 

already available to the public through 

the state. 

In response to most of these 

proposals, the Agency received little 

comment. Significant comment, 

however, was received on the publicly 

accessible internet site. Commenters 

argued that absent specific statutory 

authorization, it was inappropriate for 

EPA to delegate a regulatory oversight 

function to the regulated community by 

requiring the creation of a Web site and 

posting of regulatory compliance 

information. Commenters identified at 

least three substantial problems 

associated with ‘‘outsourcing 

information management 

responsibilities’’ to CCR facilities. First, 

commenters argued that EPA lacked the 

authority to impose such a requirement. 

Specifically, the commenters alleged 

that no statute authorizes EPA to 

demand that private parties act as an 

information clearinghouse for 

information pertaining to EPA’s 

regulatory functions, either generally or 

in the specific context of CCR. To the 

contrary, the commenters argued, public 

information access statutes, such as the 

Freedom of Information Act are 

predicated on an assumption that 

information held by the government is 

presumptively public, while 

information held by a private entity 

presumptively is not. 

Second, some commenters were 

concerned that facilities would not post 

information the facility deems to be 

confidential (e.g., the structural stability 

of ash pond impoundments) and by 

attempting to outsource the information 

management role to industry, EPA 

effectively allows industry to make the 

initial determination as to 

confidentiality and places the burden on 

citizens and EPA to take action to 

compel disclosure. 

Third, commenters were concerned 

that citizen groups would not accept an 

electric utility’s self-reported 

information, regardless of the amount of 

effort the facility exerts to ensure the 

accuracy of the information, without a 

regulatory agency acting as the 

intermediary or providing some degree 

of oversight (e.g., EPA’s Toxic Release 

Inventory, EPA’s Biennial Report of 

hazardous waste facilities). By requiring 

citizen groups to obtain their 

information from industry instead of a 

regulator, the commenters argued that 

EPA is inviting conflict as to the 

adequacy of data and the sufficiency of 

the utilities’ responses to citizen groups’ 

requests for clarification or additional 

information. The fact that the industry 

has provided information to a federal 

agency, subject to criminal penalties for 

providing false information, provides a 

useful public assurance of the integrity 

of the information. 

Other commenters stated that the 

proposed requirement to maintain a 

Web site was excessive, and generated 

a regulatory burden upon companies 

that serves no useful function. 

Commenters urged that the same 

purpose could be served simply through 

making the certification of the registered 

professional engineer available on the 

Web site. Other commenters argued that 

internet posting of information on a 

surface impoundment’s construction 

raised homeland security issues. These 

commenters alleged that the information 

‘‘can be extremely sensitive and may 

contain information that could be used 

by certain individuals with an intent to 

destroy a dam (e.g., engineering 

information on the structure’s 

foundation, detailed information on 

physical and engineering properties, the 

basis for the structure hazard 

classification, slope stability 

information, etc.).’’ 

Finally, some commenters offered an 

alternative to the requirement to 

establish and maintain a publicly 

accessible internet site. Under this 

alternative the information would be 

included in the owner or operator’s 

operating record only, and persons with 

‘‘legitimate interests in reviewing these 

data’’ could make a written request to 

the owner or operator or the permitting 

authority to obtain the information. The 

commenters alleged that this would also 

allow the owner, operator, and federal 

and state authorities to know the names 

and identities of all organizations 

requesting information on the facility, 

which would help protect against the 

misuse of these data. 

EPA disagrees that RCRA section 

4004(a) does not authorize EPA to 

require facilities to disclose all of the 

information required under these final 

rule provisions. Section 4004(a) 

delegates broad authority to EPA to 

establish criteria governing facilities’ 

management of solid waste, requiring 

only that such criteria ensure that there 

will be no reasonable probability of 

adverse effects on health or the 

environment from the disposal of solid 

waste. The statute imposes no limits on 

the actions EPA may require facilities to 

perform to achieve that level of 

protection. Moreover, unlike other 

statutes, e.g., the Toxic Substances 

Control Act, or the Federal Insecticide, 

Rodenticide and Fungicide Act, RCRA 

contains neither provisions that grant 

facilities the right to withhold 

regulatory compliance information from 

the public, nor provisions that establish 

any reasonable expectation that such 

information will be kept confidential. 

To the contrary, section 7004 explicitly 

provides that ‘‘[p]ublic participation in 


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the . . . implementation, and 

enforcement of any regulation under 

this chapter shall be provided for, 

encouraged, and assisted by the 

Administrator.’’ 42 U.S.C. 6974(b). And 

in fact, this kind of information would 

routinely be publically available under 

the permitting process for hazardous 

waste facilities. Accordingly, RCRA 

provides more than ample authority to 

support these requirements. 

As repeatedly discussed throughout 

this preamble, under section 4004(a) 

EPA must be able to demonstrate, based 

on the record available at the time the 

rule is promulgated that the final rule 

provisions will achieve the statutory 

standard. EPA explained in the proposal 

that a key component of EPA’s support 

for determining that the rule achieves 

the statutory standard is the existence of 

a mechanism for states and citizens to 

monitor the situation, such as when 

groundwater monitoring shows 

evidence of potential contamination, so 

that they can determine when 

intervention is appropriate. The 

existence of effective oversight measures 

provides critical support for the 

statutory finding, particularly with 

respect to some of the more flexible 

alternatives EPA has adopted in certain 

of the technical standards in response to 

commenters’ requests for greater 

flexibility. These ‘‘transparency’’ 

requirements serve as a key component 

by ensuring that the entities primarily 

responsible for enforcing the 

requirements have access to the 

information necessary to determine 

whether enforcement is warranted. 

Unlike a federal or state regulatory 

authority, private citizens cannot access 

a private facility to conduct inspections. 

While EPA encourages states to adopt 

and implement a CCR regulatory 

program, and seek EPA’s approval of it 

via a state SWMP, EPA cannot require 

it. The final rule therefore must 

establish oversight mechanisms that 

will function effectively even in the 

absence of a state regulatory authority. 

Such notifications will also reduce 

the incentives for owners or operators to 

abuse the rule’s self-implementing 

requirements, and can improve 

compliance. Indeed, the public 

disclosure of information is an 

increasingly common and important 

regulatory tool, as evidenced by the 

2010 guidance issued by the Office of 

Management and Budget (OMB), with 

principles to assist agencies in using 

information disclosure to achieve 

regulatory objectives. 

Thus, even if the commenters were 

correct that there exists a general 

‘‘presumption’’ that information held by 

private entities need not be made 

publically available, that presumption 

can be, and has been, effectively 

rebutted by the facts at hand. 

None of the alternatives offered by the 

commenters would fulfill these same 

objectives. For example, simply making 

the certification of the qualified 

professional engineer available on the 

Web site without the underlying 

support information fails to provide the 

same incentives because no one could 

evaluate the accuracy of that 

certification. This alternative could also 

present the same concerns raised in 

comments on other sections of the rule, 

i.e., that such a requirement could place 

the engineer at great risk of being 

subject to lawsuits. Requiring persons 

with ‘‘legitimate interests in reviewing 

these data’’ to request the data from the 

owner or operator also fails to provide 

an effective guarantee, as facilities that 

have failed to comply will have a strong 

incentive to withhold information 

documenting their non-compliance, 

however ‘‘legitimate’’ the request. And 

as noted, the absence of a guaranteed 

state permitting program means that 

requiring citizens to request information 

from such entities is also not a viable 

alternative. Given the absence of a 

guaranteed regulatory authority, EPA 

also disagrees that posting such 

information on a company internet site 

is necessarily duplicative, particularly 

in those states that have no regulatory 

program for controlling CCR. In 

addition, state requirements, whether 

pursuant to permits or other regulatory 

mechanisms, may not necessarily 

correspond to the requirements of this 

rule. 

EPA acknowledges that parties may 

be suspicious of information selfreported by regulated entities. However, 

it is important to remember that 

facilities that provide information in 

compliance with these regulation 

remain subject to the penalties for 

providing false information under 18 

U.S.C. 1001, even though the 

information will not be submitted to 

EPA. For example, the Tenth Circuit has 

held that federal jurisdiction lies under 

18 U.S.C. 1001 when a defendant has 

submitted false information to a state 

delegated to enforce a federal 

environmental statute. United States v. 

Wright, 988 F.2d 1036 (10th Cir. 1993) 

(defendant submitted false monitoring 

reports required by the Safe Drinking 

Water Act to Oklahoma officials). This 

is consistent with rulings in other areas 

that the false statement need not be 

made directly to the federal government. 

United States v. Uni Oil Co., 646 F.2d 

946, 954–55 (9th Cir. 1981); see also 

United States v. Patullo, 709 F.2d 1178, 

1180 (7th Cir. 1983); United States v. 

Ross, 77 F.3d 1525, 1544 (7th Cir. 1996) 

(‘‘This court has repeatedly found the 

submission of a fraudulent statement to 

a private (or non-federal government) 

entity to be within the jurisdiction of a 

federal agency where the agency has 

given funding to the entity and 

fraudulent statements cause the entity to 

utilize the funds improperly.’’). As 

commenters recognized, the potential 

for criminal penalties under 18 U.S.C. 

1001 provides a significant guarantee, as 

well as a strong incentive for 

compliance. 

EPA also disagrees with the 

comments raising concern about the 

homeland security implications of 

posting information on a CCR surface 

impoundment’s construction, as it 

relates to structural stability. Much of 

the information relevant to an 

impoundment’s structural stability is 

currently available through Google Earth 

or through EPA’s Web site. For example, 

EPA’s Web site currently provides 

access to all of the information from the 

responses to EPA’s original 104(e) 

information requires and the 

information obtained through the CCR 

Assessment Program. This information 

can be accessed at the following pages: 

http://www.epa.gov/osw/nonhaz/

industrial/special/fossil/surveys/

index.htm, http://www.epa.gov/osw/

nonhaz/industrial/special/fossil/

surveys2/index.htm, and http://

www.epa.gov/osw/nonhaz/industrial/

special/fossil/ccrs-fs/index.htm. 

Moreover, the Department of Homeland 

Security has cleared both the internet 

posting of all of the information 

currently on EPA’s Web site, as well as, 

in general, information on the design, 

hydraulic parameters, volume of 

contained liquids and solids, and 

hazard rating of all major CCR surface 

impoundments across the U.S. 

VI. Development of the Final Rule— 

Technical Requirements 

A. Applicability 

EPA proposed general provisions to 

identify those solid waste disposal units 

subject to the proposed RCRA subpart D 

requirements (i.e., CCR landfills and 

CCR surface impoundments as defined 

under proposed § 257.40(b)). The 

applicability section also identified 

three of the existing subpart A criteria 

that would continue to apply to these 

facilities: § 257.3–1 Floodplains, 

§ 257.3–2 Endangered Species, and 

§ 257.3–3 Surface Water. Consistent 

with RCRA section 4004(c), EPA 

specified an effective date of 180 days 

after publication of the final rule. 

The Agency received numerous 

comments on this part of the rule. In 


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general, commenters were concerned 

with three specific areas. First, 

commenters requested additional 

clarification as to the specific sources of 

CCR that would be subject to the 

requirements of the rule, i.e., CCR 

generated by the electric utilities and 

independent power producers. Second, 

commenters requested clarification on 

the applicability of the proposed 

regulations to MSWLFs disposing of 

CCR and third, the definition and status 

of ‘‘uniquely associated wastes.’’ 

Uniquely associated wastes are 

addressed in Unit XIII of this preamble. 

EPA also received numerous comments 

regarding the proposal to apply the rule 

to ‘‘inactive’’ CCR surface 

impoundments that had not completed 

closure prior to the effective date of the 

rule. 

EPA is finalizing minimum national 

criteria that apply to owners and 

operators of new and existing CCR 

landfills and CCR surface 

impoundments, including any lateral 

expansions of these units that dispose, 

or otherwise conduct solid waste 

management of CCR generated from the 

combustion of coal at electric utilities 

and independent power producers. The 

rule applies only to CCR units at 

‘‘active’’ electric utilities and 

independent power producers, i.e., 

those that generate electricity, regardless 

of the fuel currently used to produce 

electricity. However, disposal units at 

facilities that are ‘‘closed’’—i.e., the 

entire facility has been permanently 

taken out of service and no longer 

produces electricity—are outside of the 

scope of this rule. 

Unless otherwise provided, the rule 

applies to CCR units located both onsite and off-site of the electric utility or 

independent power producer. 

1. CCR Generated by Non-Utility Boilers 

The requirements of this rule do not 

apply to wastes, including fly ash, 

bottom ash, boiler slag, and FGD 

materials generated at facilities that are 

not part of the electric power sector or 

an independent power producer and 

that use coal as the fuel in non-utility 

boilers, such as manufacturing facilities, 

universities, and hospitals. Industries 

that primarily burn coal to generate 

power for their own purposes (i.e., nonutilities), also known as combined heat 

and power (CHP) plants, are primarily 

engaged in business activities, such as 

agriculture, mining, manufacturing, 

transportation, and education. The 

electricity that they generate is mainly 

for their own use, but any excess may 

be sold in the wholesale market. 

According to the Energy Information 

Administration (EIA), CHPs produced 

less than one percent of the total 

electricity generated from coal 

combustion in 2013 and, similarly, 

burned less than one percent of the total 

coal consumed for electricity generation 

or less than 5 million tons (http://

www.eia.gov/electricity/data.cfm). 

EPA never proposed to include these 

wastes in the rule because EPA lacked 

critical data from these facilities that 

would allow us to address key Bevill 

criteria (see 75 FR 35165). These other 

industries, and the manufacturing 

industries in particular, generate other 

types of wastes which are likely to be 

mixed or co-managed with the CCR at 

least at some facilities. As a result, the 

chemical compositions of the comanaged wastes are likely to be 

fundamentally different from the 

chemical composition of CCR generated 

by electric utilities or independent 

power producers. In addition, EPA 

noted that insufficient information was 

available on non-utility boilers burning 

coal to determine whether a regulatory 

flexibility analysis would be required 

under the Regulatory Flexibility Act, 

and to conduct one if it is necessary. 

Without such data, we were unable to 

fully assess CCR wastes from non-utility 

operations and indicated that we would 

decide on an appropriate course of 

action for these wastes after completing 

this rulemaking (see 75 FR 35129). 

Several commenters stated that EPA’s 

decision to propose limiting the scope 

of the rule only to CCR generated by the 

electric power sector (electric utilities 

and independent power producers) was 

arbitrary. These commenters claimed 

that CCR generated by the electric 

power sector and CCR generated by nonutilities are generally comparable in 

physical and chemical composition and 

are typically managed similarly. As a 

result, these commenters suggested that 

EPA amend the applicability of the rule 

to subject all facilities that generate CCR 

to the same disposal requirements. EPA 

also received comments maintaining 

that important differences exist between 

CCR generated by electric power sector 

facilities and non-utility facilities, and 

that supported EPA’s proposed decision 

to exclude CCR generated by nonutilities from the rule. Differences 

identified by the commenters included 

waste management issues (e.g., mixing 

and subsequent co-management of nonutility CCR and other industrial wastes 

generated by non-utilities), CCR 

generation rates, CCR management unit 

design, and CCR management unit 

operation. In response to our request for 

additional information, a few 

commenters provided either waste 

characterization data for non-utility CCR 

or information on alleged damage cases 

involving non-utility CCR. 

Based on the proposed rule, EPA 

cannot include these facilities in this 

final rule, even if the Agency had 

concluded that it had received the 

necessary information from 

commenters. EPA specifically stated its 

intention to exclude them, and clearly 

stated that it had not assessed the 

operations. (See 75 FR 35166.) The 

Agency provided no indication of any 

intention to include such facilities, and 

did not solicit comment on such an 

option. Moreover, under the 

Administrative Procedure Act, the 

public must be given the opportunity to 

comment on not only the information 

that would support such an action, but 

also EPA’s evaluation of that 

information, and the reasoning behind 

the Agency’s decision. And with respect 

to this subset of facilities, no such 

opportunity has been presented. EPA 

will consider the information provided 

by commenters at a future point, and 

will determine whether the information 

is sufficient to address key Bevill 

criteria and to decide on the appropriate 

regulatory scheme for disposal of CCR 

generated by non-utilities. Accordingly, 

this rule does not apply to owners and 

operators of landfills and surface 

impoundments in which CCR are 

disposed that were generated by nonutility boilers burning coal. 

2. CCR Generated Primarily From the 

Combustion of Fuels Other Than Coal 

These requirements also do not apply 

to fly ash, bottom ash, boiler slag, and 

flue gas desulfurization materials, 

generated primarily from the 

combustion of fuels (including other 

fossil fuels) other than coal, for the 

purpose of generating electricity unless 

the coal comprises more than fifty 

percent (50%) of the fuel burned on a 

total heat input or mass input basis, 

whichever results in the greater mass 

feed rate of coal (see § 266.112). Fuel 

mixtures that contain less than 50% 

coal are not considered to be CCR, but 

other fossil fuel wastes. Other fossil 

fuels that are typically co-combusted 

with coal are oil and natural gas. In the 

May 22, 2000 Regulatory Determination, 

EPA determined that it is not 

appropriate to establish national 

regulations applicable to oil combustion 

wastes (OCW) because: (1) We found in 

most cases that OCW, whether managed 

alone or co-managed, are rarely 

characteristically hazardous; (2) we 

have not identified any beneficial uses 

that are likely to present significant 

risks to human health or the 

environment; (3) we identified no 

significant ecological risks posed by 


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38One significant difference however is that 

MSWLFs are required to have financial assurance, 

a requirement not applicable to CCR under the 

subtitle D requirements. 

39 ‘‘No person shall (a) Cause or threaten or allow 

the discharge or emission of any contaminant into 

the environment in any state so as to cause or tend 

to cause air pollution in Illinois, either alone or in 

combination with contaminants from other sources, 

or so as to violate regulations or standards adopted 

by the Board under this Act; (b) Construct, install 

or operate any equipment, facility, vehicle, vessel, 

or aircraft capable of causing or contributing to air 

pollution or designed to prevent air pollution, of 

any typed designated by Board regulations, (1) 

without a permit granted by the Agency unless 

otherwise exempt by this Act or Board regulations; 

or (2) in violation of any conditions imposed by 

such permit.’’ 

land disposal of OCW; (4) we identified 

only one documented damage case 

involving OCW in combination with 

coal combustion wastes, and it did not 

affect human receptors; and (5) except 

for two unlined surface impoundments, 

we have not identified any significant 

risks to human health and the 

environment associated with any waste 

management practices. Similarly, EPA 

determined that regulating natural gas 

combustion wastes is not warranted 

because the burning of natural gas 

produces virtually no solid waste. 

Therefore, the Agency has determined 

that regulations for wastes generated 

primarily from the combustion of fuels 

(including other fossil fuels) other than 

coal are not warranted unless the fuel 

mixture consists primarily of coal. 

3. Placement of CCR in Minefilling 

Operations 

Consistent with the approach in the 

proposed rule, this rule does not apply 

to CCR placed in active or abandoned 

underground or surface coal mines. The 

U. S. Department of Interior (DOI) and 

EPA will address the management of 

CCR in minefills in a separate regulatory 

action(s). EPA will work with the OSM 

to develop effective federal regulations 

to ensure that the placement of coal 

combustion residuals in minefill 

operations is adequately controlled. In 

doing so, EPA and OSM will consider 

the recommendations of the National 

Research Council (NRC), which, at the 

direction of Congress, studied the 

health, safety, and environmental risks 

associated with the placement of CCR in 

active and abandoned coal mines in all 

major U.S. coal basins. The NRC 

published its findings on March 1, 2006, 

in a report entitled ‘‘Managing Coal 

Combustion Residues (CCR) in Mines,’’ 

which is available at http://

books.nap.edu/

openbook.php?isbn=0309100496. 

The report concluded that the 

‘‘placement of CCR in mines as part of 

coal mine reclamation may be an 

appropriate option for the disposal of 

this material. In such situations, 

however, an integrated process of CCR 

characterization, site characterization, 

management and engineering design of 

placement activities, and design and 

implementation of monitoring is 

required to reduce the risk of 

contamination moving from the mine 

site to the ambient environment.’’ The 

NRC report recommended that 

enforceable federal standards be 

established for the disposal of CCR in 

minefills to ensure that states have 

specific authority and that states 

implement adequate safeguards. The 

NRC Committee on Mine Placement of 

Coal Combustion Wastes also stated that 

OSM and its SMCRA state partners 

should take the lead in developing new 

national standards for CCR use in mines 

because the framework is in place to 

deal with mine-related issues. 

Consistent with the recommendations of 

the National Academy of Sciences, EPA 

anticipates that the U.S. Department of 

the Interior (DOI) will take the lead in 

developing these regulations. EPA will 

work closely with DOI throughout that 

process. 

4. Municipal Solid Waste Landfills 

The issue receiving the majority of 

comment in this section focused on the 

applicability of the rule to MSWLFs 

accepting CCR. The vast majority of 

commenters on this issue requested that 

EPA clarify that permitted MSWLFs, 

receiving CCR as daily cover or for 

disposal were not covered by the rule. 

While most CCR is currently disposed 

of at electric utility owned CCR landfills 

or surface impoundments, there is no 

prohibition against disposing of CCR in 

state-permitted MSWLFs. However, 

many commenters interpreted the 

proposed CCR subtitle D regulations to 

apply to a state permitted MSWLF 

disposing of CCR, which as a 

consequence would be subject to the 

additional burden of posting 

documentation to a Web site, having a 

professional engineer review 

certification, etc. (See 75 FR 35210, 

where the preamble states that under a 

subtitle D regulation, regulated CCR 

wastes shipped off-site for disposal 

would have to be sent to facilities that 

meet the standards above.) Commenters 

argued that since MSWLFs were never 

mentioned in the proposed rule, that it 

should be made clear that the rule did 

not apply to these facilities. 

Commenters further contended that 

since the requirements for CCR landfills 

were directly modeled from the MSWLF 

requirements found at 40 CFR part 258, 

disposal in MSWLFs would be 

protective of human health and the 

environment. Commenters also 

contended that a benefit of MSWLFs 

would be their ability to provide 

additional capacity for the disposal of 

CCR as utilities seek to close, upgrade, 

or develop their own compliant CCR 

disposal sites. 

EPA recognizes that there are 

MSWLFs that either accept CCR for 

disposal, use CCR for as daily cover, or 

both. Since the proposed and final 

RCRA subtitle D standards for CCR 

landfills are modeled after the standards 

for MSWLFs found at 40 CFR part 258, 

EPA has concluded that disposal of CCR 

in MSWLFs is as protective as disposal 

in a CCR landfill and that permitted 

MSWLFs are not subject to the 

requirements of this rule. Like the 

MSWLF requirements, the CCR 

technical criteria require new units to 

have composite liners or their 

equivalent, and all units are subject to 

location restrictions, run-on and run-off 

controls, fugitive dust controls, 

groundwater monitoring and corrective 

action, closure and post-closure care 

requirements.38

While the MSWLF fugitive dust 

criteria (air criteria) are not as specific 

as those in this rule, § 258.4(a) states 

that owners or operators of all MSWLFs 

must ensure that the units not violate 

any applicable requirements developed 

under a State Implementation Plan (SIP) 

approved or promulgated by the 

Administrator pursuant to section 110 

of the Clean Air Act, as amended. It is 

expected that states will impose 

additional requirements to address 

fugitive dusts, of the sort codified in 

Illinois’ 415 ILCS 5/9(a)(2012) 39 and 

enforced by the state (see People of the 

State of Illinois v. KCBX Terminals 

Company, Injunction no. 2013CH24788 

in the Circuit Court of Cook County, 

Illinois. Moreover, if used as a daily 

cover, § 258.21 requires that the 

alternative cover (i.e., CCR) control 

disease, vectors, odors, blowing litter, 

and scavenging without presenting a 

threat to human health and the 

environment. 

The Agency is not requiring MSWLFs 

that receive CCR for disposal or for use 

as daily cover to modify their 

groundwater monitoring programs to 

comply with the rule; however the 

Agency expects that State Directors will 

require MSWLFs to modify their 

MSWLF permits to address the addition 

of CCR to the unit as it relates to 

groundwater monitoring and corrective 

action. Section 258.54(a)(2) allows for 

the Director of an approved state to 

establish an alternative list of inorganic 

indicator parameters for a MSWLF unit 

if the alternative parameters provide a 

reliable indication of inorganic releases 


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from the MSWLF unit to the 

groundwater (i.e., as would be the case 

if CCR was disposed in the MSWLF 

unit). In determining alternative 

parameters, the Director shall consider, 

among other things: (1) The types, 

quantities, and concentrations in wastes 

managed at the MSWLF unit; (2) the 

mobility, stability, and persistence of 

waste constituents or their reaction 

products in the unsaturated zone 

beneath the MSWLF unit; and (3) the 

detectability of indicator parameters, 

waste constituents, and reaction 

products in the groundwater. In 

situations where the MSWLF unit is 

receiving CCR for disposal and/or daily 

cover, EPA expects the controlled 

management of CCR in these units. 

Specifically, EPA expects State 

Directors to utilize the provisions in 

§ 258.54(a)(2) to revise the detection 

monitoring constituents to include those 

constituents being promulgated in this 

rule under § 257.90. These detection 

monitoring constituents or inorganic 

indicator parameters are: boron, 

calcium, chloride, fluoride, pH, sulfate 

and total dissolved solids (TDS). These 

inorganic indicator parameters are 

known to be leading indicators of 

releases of contaminants associated with 

CCR and the Agency strongly 

recommends that State Directors add 

these constituents to the list of indicator 

parameters to be monitored during 

detection monitoring of groundwater if 

and when a MSWLF decides to accept 

CCR. 

The Agency has concluded that CCR 

can readily be handled in permitted 

MSWLFs provided that they are 

evaluated for waste compatibility and 

placement as required under the part 

258 requirements. Furthermore, 

consistent with the recordkeeping 

requirements in § 258.29, the Agency 

further expects State Directors to 

encourage MSWLF units receiving CCR 

after the effective date of this rule to do 

so pursuant to a ‘‘CCR acceptance plan’’ 

that is maintained in the facility 

operating record. This plan would 

assure that the MSWLF facility is aware 

of the physical and chemical 

characteristics of the waste received 

(i.e., CCR) and handles it with the 

additional precautions necessary to 

avoid dust, maintain structural integrity, 

and avoid compromising the gas and 

leachate collection systems of the 

landfill so that human health and the 

environment are protected. While the 

Agency sees no need to impose 

duplicative requirements for MSWLFs 

that receive CCR for disposal or daily 

cover; development of these acceptance 

plans as well as a revised list of 

groundwater detection monitoring 

constituents will help ensure that CCR 

is being managed in the most protective 

manner consistent with the Part 258 

requirements. 

5. Inactive CCR Surface Impoundments 

The final rule also applies to 

‘‘inactive’’ CCR surface impoundments 

at any active electric utilities or 

independent power producers, 

regardless of the fuel currently being 

used to produce electricity; i.e., surface 

impoundments at any active electric 

utility or independent power producer 

that have ceased receiving CCR or 

otherwise actively managing CCR. 

While it is true that EPA exempted 

inactive units from the part 258 

requirements in 1990, the original 

subtitle D regulations at 40 CFR part 257 

(which are currently applicable to CCR 

wastes) applied to ‘‘all solid waste 

disposal facilities and practices’’ except 

for eleven specifically enumerated 

exemptions (none of which are 

relevant). 40 CFR 257.1(c). See also, 40 

CFR 257.1(a)(1)–(2). And as discussed in 

greater detail below, subtitle D of RCRA 

does not limit EPA’s authority to active 

units—that is, units that receive or 

otherwise manage wastes after the 

effective date of the regulations. EPA 

has documented several damage cases 

that have occurred due to inactive CCR 

surface impoundments, including the 

release of CCR and wastewater from an 

inactive CCR surface impoundment into 

the Dan River which occurred since 

publication of the CCR proposed rule. 

As discussed in the proposal, the risks 

associated with inactive CCR surface 

impoundments do not differ 

significantly from the risks associated 

with active CCR surface impoundments; 

much of the risk from these units is 

driven by the hydraulic head imposed 

by impounded units. These conditions 

remain present in both active and 

inactive units, which continue to 

impound liquid along with CCR. For all 

these reasons, the Agency has 

concluded that inactive CCR surface 

impoundments require regulatory 

oversight. 

The sole exception is for ‘‘inactive’’ 

CCR surface impoundments that have 

completed dewatering and capping 

operations (in accordance with the 

capping requirements finalized in this 

rule) within three years of the 

publication of this rule. EPA considers 

these units to be analogous to inactive 

CCR landfills, which are not subject to 

the final rule. As noted, EPA’s risk 

assessment shows that the highest risks 

are associated with CCR surface 

impoundments due to the hydraulic 

head imposed by impounded water. 

Dewatered CCR surface impoundments 

will no longer be subjected to hydraulic 

head so the risk of releases, including 

the risk that the unit will leach into the 

groundwater, would be no greater than 

those from CCR landfills. Similarly, the 

requirements of this rule do not apply 

to inactive CCR landfills—which are 

CCR landfills that do not accept waste 

after the effective date of the 

regulations. The Agency is not aware of 

any damage cases associated with 

inactive CCR landfills, and as noted, the 

risks of release from such units are 

significantly lower than CCR surface 

impoundments or active CCR landfills. 

In the absence of this type of evidence, 

and consistent with the proposal, the 

Agency has decided not to cover these 

units in this final rule. 

Under both the subtitle C and subtitle 

D options, EPA proposed to regulate 

‘‘inactive’’ CCR surface impoundments 

that had not completed closure prior to 

the effective date of the rule. EPA 

proposed that if any inactive CCR 

surface impoundment had not met the 

interim status closure requirements (i.e., 

dewatered and capped) by the effective 

date of the rule, the unit would be 

subject to all of the requirements 

applicable to CCR surface 

impoundments. Under the subtitle C 

option, those requirements would have 

included compliance with the interim 

status and permitting regulations. Under 

subtitle D, such units would have been 

required to comply with all of the 

criteria applicable to CCR surface 

impoundments that continued to 

receive wastes, including groundwater 

monitoring, corrective action, and 

closure. 

EPA acknowledged that this 

represented a departure from the 

Agency’s long-standing implementation 

of the regulatory program under subtitle 

C. While the statutory definition of 

‘‘disposal’’ has been broadly interpreted 

to include passive leaking, historically 

EPA has construed the definition of 

‘‘disposal’’ more narrowly for the 

purposes of implementing the subtitle C 

regulatory requirements. For examples 

see 43 FR 58984 (Dec. 18, 1978); and 45 

FR 33074 (May 1980). Although in some 

situations, post-placement management 

has been considered to be disposal 

triggering RCRA subtitle C regulatory 

requirements, e.g., dredging of 

impoundments or management of 

leachate, EPA has generally interpreted 

the statute to require a permit only if a 

facility treats, stores, or actively 

disposes of the waste after the effective 

date of its designation as a hazardous 

waste. EPA explained that relying on a 

broader interpretation was appropriate 

in this instance given that the 


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substantial risks associated with 

currently operating CCR surface 

impoundments, i.e., the potential for 

leachate and other releases to 

contaminate groundwater and the 

potential for catastrophic releases from 

structural failures, were not measurably 

different than the risks associated with 

‘‘inactive’’ CCR surface impoundments 

that continued to impound liquid, even 

though the facility had ceased to place 

additional wastes in the unit. EPA noted 

as well that the risks are primarily 

driven by the older existing units, 

which are generally unlined. 

In the section of the preamble 

discussing the subtitle D option, EPA 

did not expressly highlight the 

application of the rule to inactive CCR 

surface impoundments, but generally 

explained that EPA’s approach to 

developing the proposed subtitle D 

requirements for surface impoundments 

(which are not addressed by the part 

258 regulations that served as the model 

for the proposed landfill requirements) 

was to seek to be consistent with the 

technical requirements developed under 

the subtitle C option. (See 75 FR 35193.) 

(‘‘In addition, EPA considered that 

many of the technical requirements that 

EPA developed to specifically address 

the risks from the disposal of CCR as 

part of the subtitle C alternative would 

be equally justified under a RCRA 

subtitle D regime . . . The factual 

record—i.e., the risk analysis and the 

damage cases—supporting such 

requirements is the same, irrespective of 

the statutory authority under which the 

Agency is operating . . . Thus several of 

the provisions EPA is proposing under 

RCRA subtitle D either correspond to 

the provisions EPA is proposing to 

establish for RCRA subtitle C 

requirement. These provisions include 

the following regulatory provisions 

specific to CCR that EPA is proposing to 

establish: Scope and applicability (i.e., 

who will be subject to the rule criteria/ 

requirements) . . .’’) (emphasis added). 

EPA received numerous comments on 

this aspect of the proposal. On the 

whole, the comments were focused on 

EPA’s legal authority under subtitle C to 

regulate inactive and closed units, as 

well as inactive and closed facilities. 

One group of commenters, however, 

specifically criticized the proposed 

subtitle D regulation on the grounds that 

it failed to address the risks from 

inactive CCR surface impoundments. 

The majority of commenters, however, 

argued that RCRA does not authorize 

EPA to regulate inactive or closed 

surface impoundments. These 

commenters focused on two primary 

arguments: first, that RCRA’s definition 

of ‘‘disposal’’ cannot be interpreted to 

include ‘‘passive migration’’ based on 

the plain language of the statute, and 

second, that such an interpretation 

conflicted with court decisions in 

several circuits, holding that under 

CERCLA ‘‘disposal’’ does not include 

passive leaking or the migration of 

contaminants. 

In support of their first argument, 

commenters argued that the plain 

language of RCRA demonstrates that the 

requirements are ‘‘prospective in 

nature’’ and thus cannot be interpreted 

to apply to past activities, i.e., the past 

disposals in inactive CCR units. They 

also argued that the absence of the word 

‘‘leaching’’ from the definition of 

‘‘disposal’’ clearly indicates that 

Congress did not intend to cover passive 

leaking or migration from CCR units. 

The commenters also selectively quoted 

portions of past EPA statements, 

claiming that these demonstrated that 

EPA had conclusively interpreted RCRA 

to preclude jurisdiction over inactive 

units and facilities. In particular, they 

pointed to EPA’s decision in 1980 not 

to require permits for closed or inactive 

facilities. 

Commenters cited several cases to 

support their second claim. These 

include Carson Harbor Vill. v. Unocal 

Corp., 270 F.3d 863 (9th Cir. 2001); 

United States v. 150 Acres of Land, 204 

F.3d 698, 706 (2000); ABB Industrial 

Systems v. Prime Technology, 120 F.3d 

351, 358 (2d Cir. 1997); United States v. 

CMDG Realty Co., 96 F.3d 706, 711 (3rd 

Cir. 1996); Joslyn Mfg. Co. v. Koppers 

Co., 40 F.3d 750, 762 (5th Cir. 1994); 

Delaney v. Town of Carmel, 55 F. Supp. 

2d 237, 256 (S.D.N.Y. 1999); see also 

Interfaith Cmty. Org. v. Honey-Well Intl 

Inc., 263 F. Supp. 2d 796, 846 n.10 

(D.N.J. 2003). The commenters 

acknowledged that these cases were all 

decided under CERCLA, but claim that 

the cases are all equally dispositive with 

respect to RCRA’s definition of disposal 

because CERCLA specifically 

incorporates by reference RCRA‘s 

statutory definition of disposal. 

As an initial matter, it is important to 

correct certain misunderstandings 

contained throughout a number of the 

comments. First, EPA did propose to 

include inactive units under the subtitle 

D alternative. EPA clearly signaled its 

intent to cover the same universe of 

units and facilities covered under the 

subtitle C proposal. EPA did not include 

a corresponding discussion in its 

explanation of the subtitle D alternative 

because application of the criteria to 

inactive units did not represent such a 

significant departure from EPA’s past 

practice or interpretation. As discussed 

in more detail below, the original 

subtitle D regulations applied to all 

existing disposal units. See 40 CFR 

257.1(a)(1)–(2), (c) and 43 FR 4942– 

4943, 4944. 

Second, several commenters criticized 

EPA’s purported proposal to cover both 

‘‘closed’’ and ‘‘inactive’’ surface 

impoundments, using the terms 

interchangeably. These same 

commenters also refer to both ‘‘inactive 

facilities’’ and ‘‘inactive units.’’ These 

are all different concepts, and EPA 

clearly distinguished between them. 

EPA proposed to regulate only 

‘‘inactive’’ surface impoundments that 

had not completed closure of the surface 

impoundment before the effective date. 

‘‘Inactive’’ surface impoundments are 

those that contain both CCR and water, 

but no longer receive additional wastes. 

By contrast, a ‘‘closed’’ surface 

impoundment would no longer contain 

water, although it may continue to 

contain CCR (or other wastes), and 

would be capped or otherwise 

maintained. There is little difference 

between the potential risks of an active 

and inactive surface impoundment; both 

can leak into groundwater, and both are 

subject to structural failures that release 

the wastes into the environment, 

including catastrophic failures leading 

to massive releases that threaten both 

human health and the environment. 

This is clearly demonstrated by the 

recent spill in the Dan River in North 

Carolina, which occurred as the result of 

a structural failure at an inactive surface 

impoundment. Similarly, as 

demonstrated by the discovery of 

additional damage cases upon the recent 

installation of groundwater monitoring 

systems at existing CCR surface 

impoundments in Michigan and Illinois, 

many existing CCR surface 

impoundments are currently leaking, 

albeit currently undetected. These are 

the risks the disposal rule specifically 

seeks to address, and there is no logical 

basis for distinguishing between units 

that present the same risks. 

EPA did not propose to require 

‘‘closed’’ surface impoundments to 

‘‘reclose.’’ Nor did EPA intend, as the 

same commenters claim, that ‘‘literally 

hundreds of previously closed . . . 

surface impoundments—many of which 

were properly closed decades ago under 

state solid waste programs, have 

changed owners, and now have 

structures built on top of them—would 

be considered active CCR units.’’ 

Accordingly, the final rule does not 

impose any requirements on any CCR 

surface impoundments that have in fact 

‘‘closed’’ before the rule’s effective 

date—i.e., those that no longer contain 

water and can no longer impound 

liquid. 


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40 It is also clear that certain subtitle C 

requirements in fact do apply to inactive units, for 

example, section 3004(u) requires facilities to clean 

up releases from inactive units located on the 

facility site. 

Further, EPA never proposed that the 

rule would apply to inactive facilities. 

The proposal was clear that the 

regulations would apply to active 

facilities—i.e., those that continue to 

generate electricity for distribution to 

the public, and those that continue to 

manage CCR. Consistent with that 

proposal, the final rule applies only to 

inactive surface impoundments at active 

electric utilities, i.e., facilities that are 

actively generating electricity 

irrespective of the fuel used. 

Finally, some comments focused on 

issues that were specific to the plain 

language of subtitle C provisions. While 

most of the issues the commenters 

raised relate equally to EPA’s authority 

under both subtitles C and D, because 

the final rule establishes standards 

under subtitle D of RCRA, EPA has not 

addressed comments that are purely 

relevant or applicable to the extent of 

EPA’s authority under subtitle C. 

a. Plain Language of RCRA and EPA’s 

Past Interpretations 

Under both subtitle C and subtitle D, 

EPA’s authority to regulate ‘‘inactive’’ 

units primarily stems from the agency’s 

authority to regulate ‘‘disposal.’’ The 

term is defined once in RCRA and 

applies to both subtitles C and D. 

Moreover, the definition explicitly 

includes ‘‘leaking’’ and ‘‘placing of any 

solid waste . . . into or on any land so 

that such [waste] or any constituent 

thereof may enter the environment . . . 

or be discharged into any waters, 

including groundwaters.’’ 42 U.S.C. 

6903(3). 

Commenters focused on the past 

statements that EPA cited in the 

proposal in acknowledging that the 

Agency was proposing to revise its 

interpretation for this rulemaking. In 

general, the comments misconstrue the 

significance of these past statements. 

The cited passages merely explain that 

the permitting requirements in subtitle 

C were written to be ‘‘prospective in 

nature’’ and as a consequence, EPA has 

chosen to interpret ‘‘disposal’’ more 

narrowly in that context. Thus EPA’s 

historic interpretation under subtitle C 

was not based on an interpretation that 

the plain language of RCRA’s definition 

of ‘‘disposal’’ precluded reaching 

inactive units, but on a determination 

that a narrower interpretation would be 

reasonable in light of specific language 

in sections 3004 and 3005, and the 

practical consequences of applying 

these requirements to inactive 

facilities.40

None of EPA’s past statements 

included any interpretation that 

‘‘leaking’’ does not include leaking from 

an inactive disposal unit, or that the 

statutory definition of ‘‘disposal’’ cannot 

be interpreted to apply to the current 

consequences of past disposals. To the 

contrary, EPA was clear in the original 

1978 proposed hazardous waste 

regulations that leaking from inactive 

disposal units constitutes ‘‘disposal’’ 

under RCRA. 

Neither RCRA nor its legislative 

history discusses whether section 3004 

standards for owners and operators of 

hazardous waste treatment, storage, or 

disposal facilities apply or were 

intended to apply to inactive facilities, 

i.e., those facilities which have ceased 

receiving, treating, storing, and 

disposing of wastes prior to the effective 

date of the subtitle C regulations. ‘‘This 

is an important issue, however, because 

some, and perhaps most, inactive 

facilities may still be ‘‘disposing of 

waste’’ within the meaning of that term 

in Section 1004(3) of RCRA. ‘Disposal’ 

includes: the discharge, dumping, 

spilling, leaking, . . . of any solid waste 

or hazardous waste into or on any land 

or water so that such solid waste or 

hazardous waste or any constituent 

thereof may enter the environment or be 

emitted into the air or discharged into 

any waters, including groundwaters. 

Many inactive facilities may well be 

leaking solid or hazardous waste into 

groundwater and thus be ‘‘disposing’’ 

under RCRA.’’ 43 FR 58984 (emphasis 

added). 

Note as well that EPA declined to 

impose requirements on ‘‘inactive 

facilities’’ not ‘‘inactive units at active 

facilities,’’ which are the entities 

covered in this final CCR rule. Further, 

the complications discussed in 1978 

were specific to inactive or closed 

facilities: the concern that the present 

owner of the land on which an inactive 

site was located might have no 

connection (other than present 

ownership of the land) with the prior 

disposal activities. Id. These 

considerations are not relevant to 

inactive CCR surface impoundments at 

active electric utilities. 

EPA further clarified this position in 

the 1980 final hazardous waste rule, 

explaining that, while the Agency did 

not generally intend to regulate those 

portions of facilities that had closed 

before the effective date, there were 

exceptions to this, and that in 

individual cases, inactive portions of a 

facility—or in other words, inactive 

units, might be regulated. 

[O]wners and operators which continue to 

operate after the effective date of the 

regulations must ensure that portions of 

facilities closed before the effective date of 

these rules do not interfere with the 

monitoring or control of active portions. This 

requirement regulates the facility which 

operates under the RCRA regulations, 

although it may require the owner or operator 

before he receives a permit, or, as a permit 

condition, to take certain measures on 

portions of his facility closed before the 

effective date of these regulations. 

45 FR 33068. (See also 45 FR 33170.) 

In other words, EPA was clear that its 

jurisdiction under RCRA extended to 

these portions of the facility but that the 

Agency had made a policy choice not to 

exert its regulatory jurisdiction as a 

general matter over inactive facilities, 

choosing instead to rely on section 7003 

and CERCLA to address the risks and 

require clean-up of these sites. EPA has 

adopted a substantially similar 

approach here, requiring the current 

owner or operator of an active facility to 

address the risks associated with an 

inactive portion of the facility that could 

potentially interfere with the monitoring 

or control of the actively operating 

portion of the facility through leaking 

contaminants or other releases. 

Similarly, in the 1980 final rules, EPA 

expressly declined to revise the 

regulatory definition of disposal to 

exclude accidental or unintentional 

releases. EPA noted that ‘‘[r]egardless of 

whether a discharge of hazardous waste 

is intentional or not, the human health 

and environmental effects are the same. 

Thus intentional and unintentional 

discharges are included in the definition 

of ‘disposal.’ ’’ (See 45 FR 33068.) While 

EPA revised other provisions to clarify 

that a permit would not be required for 

accidental discharges, EPA was clear 

that such activities are properly 

considered to be ‘‘disposal.’’ 

By contrast, EPA’s past 

implementation of subtitle D, following 

from the legislative history and the 

statutory language, consistently applied 

regulatory requirements equally to all 

facilities, without distinguishing 

between active and inactive or new and 

existing facilities. 

Congress was clear that subtitle D was 

intended to specifically address the 

problem of abandoned leaking ‘‘open 

dumps’’ scattered across the country, 

‘‘where frequently the use of the site for 

waste disposal is neither authorized nor 

supervised.’’ H. Rep. No. 94–1491, p 37, 

94th Cong., 2d Sess (1976). For example, 

the report described the consequences 

when ‘‘the City of Texarcana Arkansas/ 

Texas, abandoned its six open dumps, 

in 1968’’ to support the need to require 

open dumps to upgrade or close. 


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41The regulations establish eleven specifically 

enumerated exemptions, none of which are relevant 

to the units at issue. 

Similarly, in describing the need for the 

legislation, the House report stated: 

Disposal of solid wastes, including 

hazardous wastes, can have adverse 

environmental impacts in several ways. The 

following paragraphs discuss five different 

types of such impacts. 

(i) Perhaps the most pernicious effect is the 

contamination of groundwater by leachate 

from land disposal of waste. About half of the 

U.S. domestic water supply is from 

underground water, and thus is potentially 

subject to contamination. Such 

contamination is particularly vexing because 

often it is discovered after the damage is 

done and because the contamination is very 

long lasting. Thus leachate from a landfill or 

dump may not show up for years, maybe not 

even until after the landfill is closed. 

Id. at 89 (emphasis added). 

Consequently, subtitle D of RCRA 

provides clear authority to address 

inactive or abandoned disposal sites. 

The relevant provisions of RCRA 

subtitle D do not distinguish between 

‘‘active’’ and ‘‘inactive’’ disposal units. 

Nor do any of the relevant provisions tie 

jurisdiction to the receipt or disposal of 

waste after a specific date. 

RCRA section 1004(14) defines an 

‘‘open dump’’ as ‘‘any facility or site 

where solid waste is disposed of which 

is not a sanitary landfill which meets 

the criteria promulgated under section 

[4004] of this chapter and which is not 

a facility for disposal of hazardous 

waste.’’ 42 U.S.C. 6903(14) (emphasis 

added). Section 4004(a) delegates broad 

authority to EPA to determine the 

facilities that will be considered ‘‘open 

dumps,’’ without any requirement that 

the units or facilities be in operation. 

‘‘[T]he Administrator shall promulgate 

regulations containing criteria for 

determining which facilities shall be 

classified as sanitary landfills and 

which shall be classified open dumps 

within the meaning of this chapter.’’ 42 

U.S.C. 6944(a). Section 4005(a), which 

is titled, ‘‘Closing or upgrading of 

existing open dumps,’’ is also not 

limited in scope: ‘‘Upon promulgation 

of criteria under [1008(a)(3)] of this title, 

any solid waste management practice of 

disposal of solid waste or hazardous 

waste which constitutes the open 

dumping of solid or hazardous waste is 

prohibited, . . .’’ 42 U.S.C. 6945(a) 

(emphasis added). See also, section 

4003(a)(3), requiring state plans to 

provide for the closing or upgrading of 

‘‘all existing open dumps’’). 42 U.S.C. 

6943(a)(3) (emphasis added). 

Consistent with the statutory 

provisions, EPA’s current subtitle D 

regulations at 40 CFR part 257 apply to 

‘‘all solid waste disposal facilities and 

practices’’ whether active or inactive, 

and did not differentiate between new 

and existing facilities.41 40 CFR 

257.1(c). See also, 40 CFR 257.1(a)(1)– 

(2). EPA was clear in both the proposed 

and final rules that the rules applied to 

all existing facilities: ‘‘These criteria for 

the classification of disposal facilities 

apply to all ‘‘solid waste’’ and 

‘‘disposal’’ facilities, which are defined 

in the Act [in] (section 1004).’’ 43 FR 

4942–4943, 4944. The final rule was 

equally clear: ‘‘These criteria apply to 

the full range of facilities and practices 

for ‘‘disposal’’ of ‘‘solid waste,’’ as those 

terms are defined in the Act.’’ 44 FR 

53440. (See also 44 FR 53438.) The final 

rule describes eight categories of 

materials or activities that are excluded; 

inactive facilities or units are not among 

them. This stands in stark contrast to 

the hazardous waste regulations, which, 

as discussed, specifically exempted 

inactive facilities from the permitting 

and associated regulatory requirements. 

b. Case Law on the Definition of 

Disposal 

EPA also disagrees with the 

commenters’ second claim that 

regulating inactive surface 

impoundments would be inconsistent 

with case law in six circuits. The 

commenters are correct that some courts 

have held that the subsequent passive 

migration of contamination left on-site 

is insufficient to support liability 

against a third party that merely owned 

the property under CERCLA. But the 

commenters misconstrue this case law 

and fundamentally overstate its 

significance to the issue at hand. Of 

greater significance, however, is that 

federal courts have almost universally 

reached different conclusions under 

RCRA, holding that the statutory 

definition of disposal does include the 

passive migration of contamination from 

previously disposed of wastes. 

As an initial matter, the issue decided 

by the courts in the cited CERCLA cases 

was narrower than the commenters 

allege; these cases generally focused on 

whether current or past owners of land 

contaminated by the activities of other 

owners were liable for passive migration 

that occurred during their ownership of 

the land. This is very different than the 

situation at hand, in which regulatory 

requirements are being imposed to 

address the existing and future 

contamination caused by the past and 

current activities of the current owner. 

In addition, these decisions were 

largely predicated on language that is 

unique to CERCLA, rather than on a 

definitive reading of RCRA’s definition 

of disposal. See, e.g., United States v. 

CMDG Realty Co., supra at 712–717. For 

example, in CMDG Realty, the court 

found that passive migration was not 

disposal because Congress had clearly 

distinguished between ‘‘releases,’’ and 

‘‘disposal,’’ defining the two terms 

differently and imposing liability on 

different parties for the two activities. 

Id. Accord, Carson Harbor Village, 

supra, at 880–885; ABB Industrial 

Systems v. Prime Technology, supra at 

358. 

Moreover, even under CERCLA courts 

have not universally reached the same 

conclusions on whether ‘‘passive 

migration’’ can be considered 

‘‘disposal.’’ See, e.g., Nurad, Inc. v. 

William E. Hooper & Sons Co., 966 F.2d 

837, 844–46 (4th Cir. 1992) (concluding 

that because the definition of disposal 

includes ‘‘leaking,’’ prior owners are 

liable if they acquired a site with 

leaking barrels or underground storage 

tanks even though the prior owner’s 

actions are purely passive); ABB 

Industrial Systems, Id., n.3 (expressly 

declining to decide whether passive 

migration could ever be considered 

‘‘disposal’’). 

But in any event, courts have 

consistently interpreted RCRA to apply 

to passive migration. Two cases under 

RCRA are the most directly analogous to 

the current situation as they address the 

extent of EPA’s authority to regulate 

based on the statutory definition of 

‘‘disposal’’: In re Consolidated Land 

Disposal Regulation Litigation, 938 F.2d 

1386 (D.C. Cir. 1991), and United States 

v. Power Engineering Co., 10 F. Supp. 

2d 1145 (D. Colo. 1998), aff’d 191 F.3d 

1224 (10th Cir. 1999). In both cases, the 

court considered whether EPA could 

impose or enforce regulatory 

requirements to address passive 

migration under the interpretation that 

this constituted ‘‘disposal’’ under 

RCRA. And in both cases the court 

agreed that RCRA’s definition 

encompassed such activities. 

The issue in Consolidated Land 

Disposal was whether EPA could 

require closed hazardous waste facilities 

to obtain a ‘‘post-closure’’ permit. 938 

F.2d at 1388–1389. EPA had relied on 

the definition of disposal to support the 

regulation, concluding that a facility ‘‘at 

which hazardous wastes have been 

disposed by placement in or on the 

land’’ remains subject to both permitting 

and regulation because ‘‘such hazardous 

wastes or constituents may continue 

‘leaking’ or ‘may enter the environment 

or be emitted . . . or discharged . . .’ ’’ 

into the environment.’’ Id. Similar to the 

commenters’ current arguments, the 

petitioners argued that under § 3005, a 

permit can only be required for ‘‘onVerDate Sep<11>2014 19:48 Apr 16, 2015 Jkt 235001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\17APR2.SGM 17APR2

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42Under RCRA’s financial assurance regulations, 

owners and operators of hazardous waste facilities 

must document that they have sufficient resources 

to close their facilities and pay third-party claims 

that may arise. 

going activities’’—the treatment, storage, 

or disposal of waste at such facilities— 

not for the facility itself post-closure. 

The petitioners argued that 

linguistically, ‘‘disposal . . . is not a 

continuing activity but occurs anew 

each time waste is placed into or on 

land.’’ The D.C. Circuit summarily 

rejected the petitioners’ interpretation, 

holding that this ‘‘may be one way in 

which the word is used in ordinary 

language, but is not necessarily how it 

is used in the statute; the equation of 

‘‘disposal’’ with ‘‘leaking,’’ which is a 

continuous phenomenon rather than a 

discrete event, is enough to blunt the 

sting of the petitioners’ point.’’ Id. This 

case is essentially dispositive of the 

issue, given the similarities between the 

requirement for a post-closure permit 

and the final requirements applicable to 

inactive CCR surface impoundments. 

Electric utilities retain ownership and 

control over these existing CCR units, 

just as hazardous waste facilities retain 

ownership and control over the closed 

units subject to post-closure permitting. 

In both situations, EPA requirements are 

designed to address both the existing 

and future risks of further ‘‘releases’’ or 

‘‘leaking’’ from these units—i.e., further 

disposal, as that term is defined in 

section 1004. 

Similarly, in Power Engineering the 

court considered whether under section 

3008 of RCRA, EPA could bring an 

action to compel the operator of a metal 

refinishing plant to comply with the 

state’s RCRA regulations relating to 

financial assurance.42 10 F. Supp.2d at 

1159. The defendants argued that since 

they were not currently disposing of 

waste, they were operating in 

compliance with state regulations and 

were exempt from financial assurance 

requirements. The court disagreed. It 

held that the use of the word ‘‘leaking’’ 

in the definition of ‘‘disposal’’ indicated 

that the leaching of hazardous waste 

into the groundwater constitutes the 

continuing disposal of hazardous waste. 

Id. at 1159–60 (‘‘Because the definition 

of ‘‘disposal’’ includes the word 

‘‘leaking,’’ disposal occurs not only 

when a solid waste or a hazardous waste 

is first deposited onto ground or into 

water, but also when such wastes 

migrate from their initial disposal 

location.’’). 

Courts in several circuits have also 

considered whether the passive 

migration of previously dumped waste 

constitutes a current or ongoing 

violation of RCRA, i.e., illegal 

‘‘disposal,’’ under the citizen suit 

provisions of section 7002(a)(1)(A). 

Most have concluded that it does. See, 

Scarlett & Associates v. Briarcliff Center 

Partners, 2009 WL 3151089 (N.D. Ga 

2009) (deciding to ‘‘follow the majority 

rule’’ and holding that ‘‘the continued 

presence of migrating waste constitutes 

a continuing violation under the 

RCRA’’); Marrero Hernandez v. Esso 

Standard Oil Co., 597 F. Supp. 2d 272, 

283 (D.P.R. 2009) (holding that 

unremedied, migrating contamination is 

not a wholly past violation); Cameron v. 

Peach County, GA, No. 5:02–CV–41–1 

(CAR), 2004 WL 5520003 (M.D. Ga. 

2004) (holding that the continued 

presence of illegal contamination that 

remains remedial constitutes a 

continuing violation, even though the 

acts of unlawful disposal occurred in 

the past); California v. M&P 

Investments, 308 F. Supp. 2d 1137, 

1146–1147 (E.D. CA 2003) (Allowing 

RCRA 7002 claim of continuing 

violation to proceed on evidence that 

wastes ‘‘continue to exist 

unremediated’’ as a result of improper 

discharge that had ceased over 20 years 

prior to filing of suit); Aurora National 

Bank v. TriStar Marketing, 990 F. Supp. 

1020, 1025 (N.D. Ill. 1998) (‘‘Although 

subsection (a)(1)(A) does not permit a 

citizen suit for wholly past violations of 

the statute, the continued presence of 

illegally dumped materials generally 

constitutes a ‘continuing violation’ of 

the RCRA, which is cognizable under 

§ 6972(a)(1)(A).’’) (internal citation 

omitted); City of Toledo v. Beazer 

Materials & Servs., Inc., 833 F. Supp. 

646, 656 (N.D. Ohio 1993) (‘‘[T]he 

disposal of wastes can constitute a 

continuing violation so long as no 

proper disposal procedures are put into 

effect or as long as the waste has not 

been cleaned up and the environmental 

effects remain remediable.’’); Gache v. 

Town of Harrison, 813 F. Supp. 1037, 

1041–42 (S.D.N.Y. 1993) (‘‘The 

environmental harms do not stem from 

the act of dumping when waste 

materials slide off the dump truck but 

rather after they land and begin to seep 

into the ground, contaminating soil and 

water. So long as wastes remain in the 

landfill threatening to leach into the 

surrounding soil and water, a 

continuing violation sure may exist.’’); 

Acme Printing Ink Co. v. Menard, Inc., 

812 F. Supp. 1498, 1512 (E.D. Wisc. 

1992) (‘‘RCRA includes in its broad 

definition of ‘disposal’ the continuous 

leaking of hazardous substances. . . . 

Accordingly, leaking of hazardous 

substances may constitute a continuous 

or intermittent violation of RCRA.’’); 

Fallowfield Dev. Corp. v. Strunk, No. 

89–8644, 1990 WL 52745 (E.D. Pa. 1990) 

(‘‘If a person disposes of hazardous 

waste on a parcel of property, the 

hazardous waste remains in that 

property insidiously infecting the soil 

and groundwater aquifers. In other 

words, the violation continues until the 

proper disposal procedures are put into 

effect or the hazardous waste is cleaned 

up.’’). It is particularly notable that 

these cases were all decided under 

subsection (A); in contrast to subsection 

(B), section 7002(a)(1)(A) does not 

include any reference to liability for 

past actions or for prior owners. 

Compare, 42 U.S.C. 6972(a)(1)(A) and 

(B). In reaching their holdings, 

therefore, the courts necessarily relied 

[solely] on the reach of the statutory 

definition of ‘‘disposal,’’ which is at the 

heart of EPA’s authority to regulate 

inactive CCR surface impoundments. 

Courts have also addressed the limits 

of RCRA’s definition of ‘‘disposal’’ is in 

the context of an EPA action under 

RCRA section 7003. Section 7003 

authorizes EPA to obtain injunctive 

relief for actions, including disposal that 

‘‘may present an imminent and 

substantial endangerment to health or 

the environment.’’ 42 U.S.C. 6973(a). 

Several courts have evaluated whether 

an inactive disposal site, where no 

affirmative acts of disposal are 

occurring, constitute an ‘‘imminent and 

substantial endangerment’’ under this 

provision. Once again, most courts 

accept a definition of disposal that 

encompasses leaking or contaminant 

migration from previously discarded 

wastes. See United States v. Price, 523 

F. Supp. 1055, 1071 (D.N.J. 1981), aff’d 

United States v. Price, 688 F.2d 204 (3rd 

Cir. 1982) (‘‘There is no doubt, however, 

that [section 70003] authorizes the 

cleanup of a site, even a dormant one, 

if that action is necessary to abate a 

present threat to the public health or the 

environment.’’) citing S. Rep. No. 96– 

848, 96th Cong., 2d Sess., at 11 (1980); 

H. R. Rep. 96–1016 (Part I), 96th Cong., 

2nd Sess., at 21 reprinted in [1980] U.S. 

Code Cong. & Ad. News, 6119, 6124; 

United States v. Waste Indus., 734 F.2d 

159 (4th Cir. 1984) (Rejecting district 

court interpretation that disposal only 

includes ‘‘active human conduct’’ based 

on the inclusion of ‘‘leaking’’ in the 

definition of disposal, and interpreting 

the ‘‘movement of the waste after it has 

been placed in a state of repose [to be] 

encompassed in the broad definition of 

disposal’’); United States v. Diamond 

Shamrock Corp., 12 Envtl. L. Rep. 

20819, 20821 (N.D. Ohio May 29, 1981) 

(noting that ‘‘a disposal clearly requires 

no active human conduct’’); United 

States v. Conservation Chemical Co., 


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619 F. Supp. 162, 200 (D. Mo. 1985) 

(‘‘ ‘disposal’ occurs. . .when [wastes] 

migrate from their initial location’’). See 

also S. Rep. 98–284, p 58 (98th Cong. 1st 

Sess.) (‘‘The Environmental Protection 

Agency and the Department of Justice 

have used the equitable authority and 

[sic] granted in section 7003 to seek 

court orders directing those persons 

whose past or present acts have 

contributed to or are contributing to the 

existence of an imminent and 

substantial endangerment to abate such 

conditions. This has been an intended 

use of the section 7003 since 1976. . . . 

An [sic] evidenced by the definition of 

‘disposal’ in section 1004(3), which 

includes the leaking of hazardous 

wastes, section 7003 has always 

provided the authority to require the 

abatement of present conditions of 

endangerment resulting from past 

disposal practices, whether intentional 

or unintentional.’’). 

While EPA continues to maintain that 

the statutory definition of disposal does 

in fact authorize regulation of inactive 

CCR surface impoundments, this is not 

the sole basis for that authority. Under 

section 1008(a)(3), EPA is authorized to 

establish criteria governing solid waste 

management, which includes the 

‘‘storage’’ of solid waste. 42 U.S.C. 

6904(28) and 6908(a)(3). RCRA’s 

definition of ‘‘storage’’ is limited to 

hazardous waste; under subtitle D, 

therefore, the definition Congress 

intended was the dictionary definition, 

which incontrovertibly covers the 

activities associated with continuing to 

maintain CCR in inactive surface 

impoundments. For example, Merriam 

Webster defines ‘‘storage’’ as ‘‘the state 

of being kept in a place when not being 

used’’ and ‘‘the act of putting something 

that is not being used in a place where 

it is available, where it can be kept 

safely, etc.’’ 

Finally, consistent with the proposed 

rule and the final Regulatory 

Determination in Unit IV.B of this 

document, the final rule does not apply 

to CCR that is beneficially used. 

6. Beneficial Use 

The proposed rule generally 

distinguished between the disposal of 

CCR and the beneficial use of CCR. 

Disposal activities would be subject to 

regulation under one of two alternative 

regulatory schemes. But under either 

alternative, beneficial use would remain 

Bevill exempt and would not be subject 

to regulation. The proposal identified 

specific criteria that would be used to 

distinguish between legitimate 

beneficial uses of CCR and the disposal 

of CCR. These criteria were largely 

drawn from the approach contained in 

the May 2000 Bevill Regulatory 

Determination. The criteria were: 

—The material used must provide a 

functional benefit. For example, CCR in 

concrete increases the durability of 

concrete—and is more effective in 

combating degradation from salt water; 

synthetic gypsum serves exactly the 

same function in wallboard as mined 

gypsum, and meets all commercial 

specifications; CCR as a soil amendment 

adjusts the pH of soil to promote plant 

growth. 

—The material substitutes for the use 

of a virgin material, conserving natural 

resources that would otherwise need to 

be obtained through practices, such as 

extraction. For example, the use of FGD 

gypsum in the manufacture of wallboard 

(drywall) decreases the need to mine 

natural gypsum, thereby conserving the 

natural resource and conserving energy 

that otherwise would be needed to mine 

natural gypsum; the use of fly ash in 

lieu of Portland cement reduces the 

need for cement. CCR used in road bed 

replace quarried aggregate or other 

industrial materials. 

—Where relevant product 

specifications or regulatory standards 

are available, the materials meet those 

specifications, and where such 

specifications or standards have not 

been established, they are not being 

used in excess quantities. For example, 

when CCR is used as a commercial 

product, the amount of CCR used is 

controlled by product specifications, or 

the demands of the user. Fly ash used 

as a stabilized base course in highway 

construction is part of many engineering 

considerations, such as the ASTM C 593 

test for compaction, the ASTM D 560 

freezing and thawing test, and a seven 

day compressive strength above 2760 

kPa (400 psi). If excessive volumes of 

CCR are used—i.e., greater than were 

necessary for a specific project,—that 

could be grounds for a determination 

that the use is not beneficial, but rather 

is being disposed of. 75 FR 35162– 

35163. 

EPA explained that in the case of 

agricultural uses, CCR would be 

expected to meet appropriate standards, 

constituent levels, prescribed total 

loads, application rates, etc. EPA has 

developed specific standards governing 

agricultural application of biosolids. 

While the management scenarios differ 

between biosludge application and the 

use of CCR as soil amendments, EPA 

stated that the Agency would consider 

application of CCR for agriculture uses 

not to be a legitimate beneficial use if 

they occurred at constituent levels or 

loading rates greater than EPA’s 

biosolids regulations allow. (75 FR 

35162–35163, June 21, 2010) 

EPA proposed to codify these criteria 

in the term, ‘‘beneficial use of coal 

combustion products (CCPs).’’ This 

definition stated that the beneficial use 

of CCPs was the use of CCPs that 

provides a functional benefit; replaces 

the use of an alternative material, 

conserving natural resources that would 

otherwise need to be obtained through 

practices such as extraction; and meets 

relevant product specifications and 

regulatory standards (where these are 

available). CCPs that are used in excess 

quantities (e.g., the field-applications of 

FGD gypsum in amounts that exceed 

scientifically-supported quantities 

required for enhancing soil properties 

and/or crop yields), placed as fill in 

sand and gravel pits, or used in large 

scale fill projects, such as restructuring 

the landscape, are excluded from this 

definition. (75 FR 35129–35130, June 

21, 2010). 

Commenters generally supported the 

criteria in the proposal but raised 

concern that the criteria lacked 

specificity; some commenters stated that 

the criteria were those that states 

already considered in doing their 

beneficial use determination. 

Commenters also suggested the use of a 

‘‘no toxics’’ provision and others 

suggested that the criteria include a 

requirement that ‘‘environmental 

benefits’’ be achieved. A more general 

comment raised by several commenters 

was that the proposed criteria failed to 

establish any standard that ensured 

protection of human health and the 

environment. Finally, one commenter 

raised concern that EPA’s approach to 

beneficial use, and particularly to large 

scale fill operations, inappropriately 

assumed that these operations 

constituted the disposal of solid waste, 

which, the commenter claimed was 

inconsistent with a series of judicial 

decisions. 

There are generally three critical 

issues in determining whether a 

material is regulated under RCRA 

subtitle D: whether the material is a 

‘‘solid waste,’’ whether the activity 

constitutes ‘‘disposal,’’ and whether 

regulation of the disposal is warranted. 

Although there can be some overlap 

between these issues in that the same 

facts may be relevant to each of them, 

understanding the distinction between 

them is critical to understanding the 

final approach to the beneficial use of 

CCR adopted in this rulemaking. 

In order to be subject to RCRA, the 

material must be a solid waste. The 

statute defines a solid waste as ‘‘any 

garbage, refuse . . . and other discarded 

material. . . .’’ 42 U.S.C. 6903(27). As 

EPA noted in the proposed rule, for 

some beneficial uses, CCR is a raw 


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43See, for example, ‘‘Effects of coal fly ash 

amended soils on trace element uptake in plant,’’ 

S.S. Brake, R.R. Jensen, and J.M. Mattox, 

Environmental Geology, November 7, 2003 

available at http://www.springerlink.com/content/

3c5gaq2qrkr5unvp/fulltext.pdf; See information 

regarding the Town of Pines Groundwater Plume at 

http://www.epa.gov/region5superfund/npl/sas_

sites/INN000508071.htm. Also see additional 

information for this site at http://www.epa.gov/

region5/sites/pines/#updates. 

material used as an ingredient in a 

manufacturing process that have never 

been ‘‘discarded,’’ and thus, would not 

be considered solid wastes under the 

existing RCRA regulations. For example, 

synthetic gypsum is a product of the 

FGD process at coal-fired power plants. 

In this case, the utility designs and 

operates its air pollution control devices 

to produce an optimal product, 

including the oxidation of the FGD to 

produce synthetic gypsum. In this 

example, after its production, the utility 

treats FGD as a valuable input into a 

production process, i.e., as a product, 

rather than as something that is 

intended to be discarded. Wallboard 

plants are sited in close proximity to 

power plants for access to raw material, 

with a considerable investment 

involved. Thus, FGD gypsum used for 

wallboard manufacture is a product 

rather than a waste or discarded 

material. This use and similar uses of 

CCR that meet product specifications 

would not be regulated under the final 

rule. 

However, this does not describe the 

majority of CCR, which are 

unambiguously wastes; after generation 

in the boiler, they are placed into 

landfills or surface impoundments. 

While they may subsequently be 

dredged from these units and reused, 

placement in a landfill or surface 

impoundment presents prima facie 

evidence of discard. At the time the 

material is placed into the unit, the 

utility is not treating the material as a 

valuable product or otherwise seeking to 

protect the material for use. Although 

the material may subsequently be 

reused if a buyer is found, the material 

is originally placed in the unit with the 

intent to let it remain in place if no 

buyer is found. The waste designation 

does not change merely because a 

material in a surface impoundment or 

landfill may in the future be beneficially 

reused. 

For those materials that are ‘‘wastes’’ 

the second issue becomes relevant: 

whether the activities involved with the 

material constitutes ‘‘disposal’’ or ‘‘solid 

waste management.’’ The statute 

distinguishes between these activities 

and ‘‘use;’’ several activities are listed in 

the definitions of ‘‘disposal’’ and ‘‘solid 

waste management’’ and ‘‘use’’ is not 

among them. See 42 U.S.C. 6903(3) and 

(28). In general, commenters agreed that 

the three criteria in the proposal, and 

discussed above, would identify those 

activities that were properly considered 

to be legitimate beneficial uses rather 

than disposal. As several commenters 

noted, many state beneficial use 

programs rely on similar (or identical) 

criteria. And for encapsulated uses, EPA 

agrees that these three criteria are 

sufficient to distinguish between the 

activities that will be regulated as 

disposal under this final rule and those 

that will be considered beneficial use. 

Accordingly, EPA has adopted them in 

the final definition of ‘‘beneficial use.’’ 

But as EPA acknowledged in the 

proposal, the issues are more difficult 

with regard to unencapsulated uses. 

Because these uses involve the direct 

placement of CCR on the land, they are 

clearly more analogous to activities that 

have consistently been considered to be 

‘‘disposal.’’ RCRA defines disposal to 

specifically include the ‘‘placing of any 

solid waste or hazardous waste into or 

on any land or water so that such solid 

waste or hazardous waste or any 

constituent thereof may enter the 

environment . . .’’ 42 U.S.C. 6903(3). 

The issue is further complicated by the 

fact that there can be risks associated 

with placement of unencapsulated CCR 

on the land. As described in the 

proposal, CCR can leach toxic metals at 

levels of concern. The major risks 

associated with the placement of 

unencapsulated CCR on the land for 

beneficial use involved using large 

volumes of CCR to restructure the 

landscape, such as occurred at the 

Battlefield golf course, and placement in 

quarries and sand and gravel pits, such 

as occurred at the Gambrills, Maryland 

site. EPA acknowledged in the proposal 

that these types of operations would be 

subject to regulation as disposal, and so 

were not directly on point. However, 

because these damage cases involved 

the placement of unencapsulated CCR 

on the land, they raised questions 

regarding the safety of other uses of 

unencapsulated CCR that involved 

direct placement on the land. In 

addition, previous risk analyses do not 

address many of the use applications 

currently being implemented, and have 

not addressed the improved leachate 

characterization methods. EPA also 

noted that some scientific literature 

indicates that the uncontrolled (i.e., 

excessive) application of CCR can lead 

to the potentially toxic accumulation of 

metals.43

As noted, several commenters raised 

concern that EPA’s beneficial use 

criteria did not include any standard 

that ensured protection of human health 

and the environment. EPA agrees that a 

criterion that accounted for the potential 

risks of the land placement of 

unencapsulated CCR would be an 

appropriate element to include in 

differentiating between disposal and 

beneficial use. RCRA’s definition of 

disposal includes some elements related 

to risk: specifically, the definition 

includes as a relevant concept that the 

waste or any constituent of concern 

‘‘may enter the environment.’’ In this 

regard it is also relevant that not all 

disposal activities are regulated by EPA 

under subtitle D; rather, EPA only 

regulates those that present risks that 

exceed the Agency’s acceptable risk 

levels. 

Building off of these concepts, the 

Agency has developed an additional 

criterion to address both the question of 

whether the activity is appropriately 

considered to be ‘‘disposal,’’ and the 

question of whether that ‘‘disposal’’ 

warrants regulation. Because uses that 

fail to meet the beneficial use criteria 

will be considered disposal and would 

therefore be considered disposal subject 

to the final regulation, this fourth 

criterion was designed to exclude uses 

likely to present the same risks as the 

management practices regulated under 

other sections of the final rule. Thus, the 

final criterion directly correlates to the 

practices and the risks that the disposal 

regulations are designed to address: the 

risks associated with the placement of 

large quantities of CCR in a single 

concentrated location, such as a CCR 

landfill, as documented in the 2014 risk 

assessment and the damage cases. 

As discussed in more detail below, to 

be considered a ‘‘beneficial use,’’ prior 

to initiating an activity that involves 

placing unencapsulated CCR on the 

land in amounts greater than 12,400 

tons, in non-roadway applications, the 

user must demonstrate that 

environmental releases to groundwater, 

surface water, soil and air are 

comparable to or lower than those from 

analogous products made without CCR, 

or that environmental releases to 

groundwater, surface water, soil and air 

will be at or below relevant regulatory 

and health-based benchmarks for 

human and ecological receptors during 

use. 

EPA acknowledges that there may be 

risks associated with uses that are below 

this threshold, depending on the 

characteristics of the CCR, the amount 

of material and the manner in which it 

is placed, and (perhaps most important) 

the site conditions. Consequently, all 

unencapsulated uses, including use in 

road construction and agriculture, 

should be conducted with care, 

according to appropriate management 


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practices, and with appropriate 

characterization of the material and the 

site where the material will be placed. 

However, as discussed in the previous 

section, because the amounts and, in 

some cases, the manner in which the 

CCR are used are very different from the 

land disposal modeled in the risk 

assessment, EPA cannot extrapolate 

from the risk assessment to reach 

conclusions regarding the risks these 

uses may pose. And in the absence of 

such information, EPA cannot establish 

criteria to regulate these uses. 

a. Final Definition of the Term 

‘‘Beneficial Use of CCR’’ 

The final beneficial use criteria are as 

follows: (1) The CCR must provide a 

functional benefit; (2) The CCR must 

substitute for the use of a virgin 

material, conserving natural resources 

that would otherwise need to be 

obtained through practices such as 

extraction; (3) the use of CCR must meet 

relevant product specifications, 

regulatory standards, or design 

standards when available, and when 

such standards are not available, CCR 

are not used in excess quantities; and (4) 

when unencapsulated use of CCR 

involves placement on the land of 

12,400 tons or more in non-roadway 

applications, the user must demonstrate 

and keep records, and provide such 

documentation upon request, that 

environmental releases to groundwater, 

surface water, soil and air are 

comparable to or lower than those from 

analogous products made without CCR, 

or that environmental releases to 

groundwater, surface water, soil and air 

will be at or below relevant regulatory 

and health-based benchmarks for 

human and ecological receptors during 

use. Any use that fails to comply with 

all of the relevant criteria will be 

considered to be disposal of CCR, 

subject to all of the requirements in the 

disposal regulations, and the user will 

be considered to be the owner or 

operator of a CCR disposal unit. 

Encapsulated uses need only comply 

with the first three criteria. 

Unencapsulated uses involving 

placement on the land of 12,400 tons or 

more in non-roadway applications that 

fail to meet all of the beneficial use 

criteria are considered a CCR unit. As 

previously noted, the first three criteria 

were discussed in the proposal and 

commenters generally supported these 

criteria, which establish flexible 

performance standards. As discussed 

above, the Agency has developed an 

additional criterion in response to 

comments, which generally reflects the 

issues discussed in the proposal. This 

additional criterion is designed to 

address the environmental and human 

health concerns associated with largescale, unencapsulated uses that have 

features similar to landfills. These four 

criteria are discussed in greater detail in 

the sections below. Any user of CCR 

that, at a later time, believes that there 

could be a health or environmental 

issue associated with their beneficial 

use should work with their state agency 

to address any potential issue. 

As noted above, encapsulated uses of 

CCR must only comply with the first 

three criteria. Encapsulated beneficial 

uses are those that bind the CCR into a 

solid matrix that minimizes their 

mobilization into the surrounding 

environment. Examples of encapsulated 

uses include, but are not limited to: (1) 

Filler or lightweight aggregate in 

concrete; (2) a replacement for, or raw 

material used in production of, 

cementitious components in concrete or 

bricks; (3) filler in plastics, rubber, and 

similar products; and (4) raw material in 

wallboard production. 

Compliance with the first three 

criteria suffices because, as discussed in 

Unit IV of this document, the available 

information demonstrates that 

encapsulated uses of CCR raise minimal 

health or environmental concerns. The 

Agency did not receive any data to 

contradict this assessment during any of 

the comment periods. In addition, since 

publication of the proposal, the Agency 

conducted a study of FGD gypsum in 

wallboard and fly ash concrete, which 

further supports this conclusion. This 

study ‘‘Coal Combustion Residual 

Beneficial Use Evaluation: Fly Ash 

Concrete and FGD Gypsum Wallboard’’ 

(February 2014) concluded that 

‘‘environmental releases of constituents 

of potential concern (COPCs) from CCR 

fly ash concrete and FGD gypsum 

wallboard during use by the consumer 

are comparable to or lower than those 

from analogous non-CCR products, or 

are at or below relevant regulatory and 

health-based benchmarks for human 

and ecological receptors.’’ 

Criteria 1: CCR must provide a 

functional benefit. This criterion is 

designed to ensure that the material 

performs a genuine function in the 

product or use; while it need not 

improve product performance when 

compared to the material for which it is 

substituting, CCR must genuinely be a 

necessary component of the product. In 

other words, there must be a legitimate 

reason for using CCR in the product 

other than the fact that it is an 

alternative to disposal of the material, 

e.g., the material fulfils material 

specifications. For example, CCR 

provides a functional benefit when used 

as a replacement for cement in concrete 

because the CCR increases the durability 

of the concrete and is also more 

effective against degradation from salt 

water. FGD gypsum serves the same 

function in the production of wallboard 

as mined gypsum, and meets all product 

specification. Additionally, CCR can be 

used to adjust the pH of soils thereby 

increasing and promoting plant growth. 

One commenter noted that many 

states already consider whether the 

material provides a functional benefit 

when making beneficial use 

determinations under their regulatory 

programs. The Agency agrees that this is 

an important criterion in determining 

whether a use is a ‘‘beneficial use.’’ To 

the extent that a state regulatory 

program has determined that a 

particular use provides a functional 

benefit, this may serve as evidence that 

this criterion has been met. 

Criteria 2: CCR must substitute for the 

use of a virgin material, conserving 

natural resources that would otherwise 

need to be obtained through practices, 

such as extraction. This criterion is 

intended to ensure that the use is truly 

‘‘beneficial’’ from an environmental 

perspective. Examples of CCR used as a 

substitute for a virgin material include 

FGD gypsum for mined gypsum and the 

use of fly ash in lieu of Portland cement 

thereby reducing the need for cement. 

The use of FGD gypsum in the 

manufacture of wallboard reduces the 

need to use virgin gypsum, thereby 

conserving natural resources (virgin 

gypsum) while conserving valuable 

energy that would be needed to mine 

the virgin gypsum. Similarly, the use of 

CCR fly ash in lieu of Portland cement 

reduces the overall need for cement. 

CCR used in a road bed application 

substitutes for the use of quarried 

natural materials that provide structural 

support for the road surface. 

One commenter again highlighted that 

many states consider this criterion in 

their current state beneficial use 

programs. The Agency agrees that this 

second criterion is appropriate, and that 

conserving natural resources is an 

important function that should be 

encouraged. Here as well, potential 

users of CCR materials may choose to 

rely on a state determination to provide 

evidence that this criterion has been 

met. 

Criteria 3: The use of CCR must meet 

relevant product specifications, 

regulatory standards, or design 

standards, when available, and where 

such specifications or standards have 

not been established, CCR may not be 

used in excess quantities. This criterion 

was intended to address both the 

legitimacy of the use and the potential 

environmental and human health 


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44Commenters argued that, at least in agronomic 

settings, there is no incentive to use excess amounts 

because it simply increases the grower’s cost. 

consequences associated with the use of 

excess quantities of CCR, particularly 

unencapsulated CCR. If excessive 

volumes of CCR are used—i.e., greater 

than necessary for a specific project— 

that calls into question whether the 

purpose of the application was in fact a 

sham to avoid compliance with the 

disposal regulations. In addition, the 

record demonstrates that the risks from 

use of CCR are more likely to be 

associated with large volumes, 

particularly for unencapsulated uses. 

The Agency has modified this 

criterion slightly from the proposed 

rule. The proposed rule merely 

referenced ‘‘relevant product 

specifications or regulatory standards’’ 

and EPA was concerned that this was 

too narrow, and might not incorporate 

all of the relevant technical information 

currently available that provides 

guidance on what constitutes an excess 

amount. Consequently, in the final 

definition the Agency has added the 

phrase ‘‘design standards.’’ Design 

standards are different from product 

specifications, because they include 

things other than ‘‘products.’’ An 

example of a ‘‘design standard’’ would 

be technical guidance specifying that six 

inches of CCR is to be used in 

constructing a road. 

EPA received several comments on 

this provision, several of which 

criticized the sole reliance on 

engineering performance standards. For 

example, one commenter questioned 

how the Agency would quantify 

acceptable amounts for each use if no 

specifications or standards were in 

place. One commenter stated that the 

Agency needs to rely on more than the 

existence of engineering performance 

standards or comparisons to typical 

application rates of mined materials as 

coal combustion wastes are unique 

materials and comparisons to typical 

rates of application of natural gypsum or 

other soil amendments are 

inappropriate. Another commenter 

suggested a provision that would 

require users to follow a plan to only 

use what is necessary to reach the 

desired effect, in lieu of product 

specifications. 

EPA purposely did not attempt to 

establish product specifications for each 

potential beneficial use application. The 

potential products are too varied, and in 

many instances EPA lacks the necessary 

expertise (e.g., to develop 

manufacturing specifications for 

individual products.). Nor is such an 

approach necessary. When CCR 

substitutes for other materials, the 

amount used is typically controlled by 

product specifications, particularly for 

encapsulated uses. Product 

specifications currently exist for many, 

if not most, of the significant uses of 

CCR and can be found in a variety of 

sources. For example, as previously 

described, fly ash used as a stabilized 

base course in highway construction is 

subject to both regulatory standards 

under DOT/FHWA, and engineering 

specifications, such as the ASTM C 593 

test for compaction, the ASTM D 560 

freezing and thawing test, and a sevenday compressive strength above 2760 

kPa (400 psi). 

Similarly, in an agricultural setting, 

EPA expects all appropriate standards, 

constituent levels, prescribed total 

loads, and application rates to be met. 

For example, EPA has developed 

specific standards governing the 

agricultural application of biosolids. 

While the management scenarios differ 

between biosludge application and the 

use of CCR as soil amendments, EPA 

would consider application of CCR for 

agriculture uses not to be a legitimate 

beneficial use if they occurred at 

constituent levels or loading rates 

greater than EPA’s biosolids regulations. 

Several commenters also noted that 

agronomic rates currently exist for 

certain items such as peanuts, cotton, 

tomatoes, corn and soybeans.44 EPA 

would generally consider application of 

CCR above these rates, or any other rate 

that has been scientifically justified, to 

constitute disposal rather than 

beneficial use. 

Many other sources of technical 

reports and documents exist for other 

uses. ASTM Standard E2277–03 

provides standard guidance and a 

methodology for using CCR in a 

structural fill and includes a 

consideration of engineering properties 

and behaviors, testing procedures, and 

design considerations relevant to 

constructing a structural fill project 

using CCR. Industry guidance, such as 

USWAG’s ‘‘Engineering and 

Environmental Guidance on the 

Beneficial Use of Coal Combustion 

Products in Engineered Structural Fill 

Projects’’ may also provide information 

relevant to this issue. Further, some 

states, such as Wisconsin and Virginia, 

have developed environmental guidance 

for evaluating the suitability of a site 

prior to construction of a CCR structural 

fill. 

While many of these documents do 

not establish binding requirements, nor 

is EPA seeking to make them binding on 

users, they provide evidence of the 

design and construction practices, 

including the amounts that are typically 

used throughout the industry, and 

provide a basis on which to evaluate 

whether excessive quantities have been 

used in a particular application. These 

types of documents are also relevant in 

making judgments on the larger 

question—whether the activity is 

legitimate reuse or merely sham 

disposal. In essence, product 

specifications serve the same function 

as the requirement suggested by a 

commenter for a plan to only use what 

is necessary to reach the desired effect. 

Commenters were also concerned that 

the proposed standards, and particularly 

this criterion, did not include any 

provision that would ensure that CCR 

reuse was protective of human health 

and the environment. One commenter 

stated that product specifications and 

engineering standards do not speak to 

environmental risk or consumer 

exposure. This same commenter was 

concerned that the proposed criteria 

used circular logic by stating that excess 

materials were not to be used in cases 

where specifications or standards have 

not been established. Another 

commenter criticized this criterion 

because it did not include threshold 

levels that protect public health from 

the range of toxicants routinely found in 

coal ash. 

EPA generally disagrees that the 

requirement to ensure that excessive 

volumes have not been used is 

unrelated to environmental and safety 

concerns. Minimizing the amount of 

material used in a product or released 

to the environment decreases potential 

exposures to the material. EPA agrees, 

however, that an additional criterion 

that more directly addresses the 

potential health and environmental 

risks is appropriate for unencapsulated 

uses, which present the greater potential 

for exposures of concern. As discussed 

in more detail below, the Agency has 

added a criterion to specifically require 

users of unencapsulated CCR to 

demonstrate that environmental and 

health related standards have been met. 

The criterion is a general performance 

standard that is equally applicable to all 

sites and uses and will account for a 

wide variety of potential exposures. By 

contrast, in order to establish toxicant 

‘‘threshold levels,’’ EPA would need to 

develop risk assessments that account 

for the wide variety of potential uses 

and exposures. This is neither practical 

nor feasible, given the site specific 

nature of the potential risks and the 

myriad of potential uses. In addition, 

EPA disagrees that this is necessary, as 

the performance standard laid out in the 

fourth criterion will appropriately 

address the risks documented in the 

current record for these uses. 


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Furthermore, as the Agency has 

previously stated in the May 2000 

Regulatory Determination and the 2010 

proposal, leaving the Bevill 

determination in place for beneficial use 

does not conflict with EPA’s view that 

certain beneficial uses, e.g., use in road 

construction and agriculture, should be 

conducted with care, according to 

appropriate management practices, and 

with appropriate characterization of the 

material and the site where the 

materials will be placed. EPA has 

concluded that the potential risks of 

these uses do not warrant federal 

regulation, but can be addressed, if 

necessary, in other ways. 

State programs exist and have the 

expertise to address beneficial use 

applications. In addition, the Agency is 

currently developing a framework to 

address the risks associated with the 

beneficial use of unencapsulated 

materials. This framework is expected to 

be finalized in 2015; the framework will 

be available to assist in the 

implementation of issues associated 

with the unencapsulated uses of CCR. 

The Agency has also been working with 

the U.S. Department of Agriculture to 

address the risks associated with the 

agricultural use of CCR. In conclusion, 

the Agency believes that sufficient tools 

are available (or will soon be available) 

to address the site-specific risks 

associated with the beneficial use of 

CCR. 

Criteria 4: When unencapsulated use 

of CCR involving placement on the land 

of 12,400 tons or more in non-roadway 

applications, the user must demonstrate 

and keep records, and provide such 

documentation upon request, that 

environmental releases to groundwater, 

surface water, soil and air are 

comparable to or lower than those from 

analogous products made without CCR, 

or that environmental releases to 

groundwater, surface water, soil and air 

will be at or below relevant regulatory 

and health-based benchmarks for 

human and ecological receptors during 

use. The Agency has established an 

environmental criterion to protect 

human health and the environment in 

response to numerous comments 

received on the proposal raising concern 

that additional provisions were 

necessary to ensure that unencapsulated 

uses of CCR needed to be conducted in 

an environmentally protective manner. 

The Agency discussed in the proposed 

rule the ways in which the use of CCR 

in an unencapsulated manner could 

affect groundwater, surface water, air 

and be associated with dust emissions. 

This fourth ‘‘environmental’’ criterion 

requires potential users to addresses 

potential risks from all of these 

pathways in order to avoid compliance 

with the final disposal requirements. 

Existing sources of guidance and 

standards (e.g., ASTM E2277–03 and 

USWAG’s ‘‘Engineering and 

Environmental Guidance on the 

Beneficial Use of Coal Combustion 

Products in Engineered Structural Fill 

Projects,’’ to name just two that are 

currently available), are available and 

may provide useful assistance for 

determining if the use of CCR are 

comparable to or lower than those from 

analogous products made without CCR, 

or that environmental releases to 

groundwater, surface water, soil and air 

will be at or below relevant regulatory 

and health-based benchmarks for 

human and ecological receptors during 

use. Information (e.g., modeling results, 

proposed designs, risk assessments, etc.) 

that have been proposed or developed to 

comply with state standards that 

explicitly address the environmental 

impacts of unencapsulated uses may 

also be relevant to this determination. 

i. Source of the 12,400 Ton Threshold 

and Fill Operations. 

As discussed earlier in this section, 

the fourth criterion was designed to 

address whether the activity is 

appropriately considered to be 

‘‘disposal’’ and whether that ‘‘disposal’’ 

warrants regulation. Thus, the final 

criterion correlates to the practices and 

the risks at issue: The placement of large 

quantities of CCR in a single 

concentrated location, as documented 

by the 2014 risk assessment and the 

damage cases. 

In the proposed rule, EPA explained 

that the risks of greatest concern from 

unencapsulated beneficial uses were 

associated with the placement of CCR in 

quarries and sand and gravel pits, and 

with large scale fill operations used to 

re-grade the landscape. EPA generally 

proposed to define these operations as 

‘‘disposal’’ rather than ‘‘beneficial use.’’ 

As discussed below, EPA has retained 

that approach with respect to the 

placement in sand and gravel pits and 

quarries; consequently the fourth 

criterion need not account for these 

uses. By contrast, EPA has not 

definitively concluded that ‘‘large scale 

fill operations,’’ per se, constitute the 

disposal of CCR. This is because EPA 

agrees with commenters that, if 

constructed correctly, large scale fill 

operations can meet all of the criteria for 

a beneficial use. But EPA also agrees 

that these applications can present risks 

to human health and the environment, 

and therefore has drafted the fourth 

criterion to specifically address the risks 

presented by these operations. The 

fourth criterion is thus tied to the 

Agency’s general approach to large scale 

fill. 

The Agency acknowledged in the 

proposal that additional guidance was 

warranted on what would constitute a 

large scale fill operation, and received 

numerous comments on this issue in 

response to the proposal. EPA requested 

comments again on the topic of large 

scale fills in a Notice of Data 

Availability (NODA). 78 FR 46940 

(August 2, 2013). The NODA discussed 

the fact that many commenters on the 

proposed CCR rule stated that EPA 

should have developed a size criterion 

to define large scale fill operations. One 

commenter suggested 5,000 cubic yards 

as a size criterion for a CCR landfill, but 

did not provide a basis for this. Other 

commenters suggested size criteria but 

for different reasons than defining 

disposal criteria; for example, 

Wisconsin has a standard where all CCR 

used for unconfined and confined ‘‘fill 

projects exceeding 5,000 cubic yards 

require concurrence by the State prior to 

commencement of the project.’’ 

Similarly, West Virginia stated that 

‘‘unencapsulated use of CCR as 

structural fills not exceeding 10,000 

cubic yards are approvable on a case-bycase basis.’’ 

In the NODA, EPA identified three 

different types of data sets that could 

provide information relevant to 

developing appropriate criteria or to 

otherwise defining what constitutes a 

‘‘large scale’’ fill operation. EPA 

solicited comment on the adequacy of 

the data sets and whether EPA should 

consider them for the purpose of 

creating criteria or a definition. The 

three data sets were: (1) The size of the 

structural fills that have resulted in 

damage cases; (2) the distribution of 

landfill sizes, derived either from an 

EPA Office of Water’s questionnaire or 

from the landfill size distribution used 

in the proposed rule; and (3) the size 

distribution for large scale fills that have 

been constructed in North Carolina. 

Many commenters argued that it was 

entirely inappropriate for EPA to specify 

in the rule when a project constitutes 

beneficial use simply by volume or 

amount of structural fill necessary to 

construct a stable base for a building. 

Commenters argued that a large scale fill 

operation, if designed appropriately, 

constituted a legitimate beneficial use. 

In fact, industry commenters universally 

claimed that they were not aware of any 

damage cases or adverse environmental 

impacts associated with structural fills 

that had adhered to industry guidance 

(e.g., ASTM standard E2277–03 for 

structural fills and the USWAG 

Engineering and Environmental 

Guidance on the Beneficial Use of CCPs 


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45 In November 2014, EPA received reports 

alleging that extensive groundwater monitoring data 

collected by the Wisconsin Department of Natural 

Resources demonstrated a correlation between 

beneficial uses of unencapsulated CCR below these 

thresholds and contaminated drinking water wells 

in southeastern Wisconsin. Insufficient time was 

available to allow EPA to evaluate these reports as 

part of this rulemaking. However, EPA will 

continue to evaluate the issues associated with 

unencapsulated uses of CCR, and to the extent 

available data demonstrate the need for revisions to 

these criteria, EPA will initiate the necessary 

rulemaking procedures. 

in Engineered Structural Fill Projects), 

and argued that the history of welldesigned and implemented engineered 

structural fills demonstrate that CCR can 

serve as a valuable resource in avoiding 

disturbing native ground to secure 

borrow soils where fill materials are 

needed to establish a final grade for a 

project site that meets the need of the 

proposed final use. To this end, the 

commenters also acknowledged that site 

characterization and characterization of 

the CCR are fundamental to the 

construction of fills across the U.S. 

Similarly, other commenters stated that 

size should not be the only criterion 

used to define large scale fill operations 

and highlighted that the site conditions, 

including such features as the hydraulic 

conductivity of the area, should also be 

an important criterion to consider. Still 

other commenters stated that CCR 

landfills cannot include large scale fill 

CCR beneficial use projects because 

such operations do not involve disposal 

of a solid waste. Rather, industry 

commenters argue that the 

determination as to what is disposal as 

opposed to beneficial use should be a 

determination that rests solely with 

state agencies. These commenters 

suggested that the determination as to 

whether a particular fill project 

constituted disposal, rather than 

beneficial use should be based on a 

series of factors, and not simply a sizecut-off. Finally, other commenters 

argued that the Agency incorrectly 

presumed that only large scale fill 

operations could cause environmental 

damage, and suggested that rather than 

regulating large scale fill operations 

solely on the basis of the volume or the 

amount of CCR involved, the 

information available to EPA from 

damage cases and monitoring data 

suggests that an additional, if not 

primary criteria for regulating fill 

operations, including those involved in 

highway construction, should include 

the prevention of CCR coming into 

contact with water. Focusing on the 

risks of concern—that large scale fills 

were effectively operating as landfills— 

the Agency reviewed the database of 

landfills used in the 2014 risk 

assessment and has established a 

threshold limit that corresponds to the 

smallest size landfill in the risk 

assessment database. EPA selected this 

threshold as the trigger for requiring an 

affirmative demonstration by the user 

that there will be no releases of concern 

as a consequence of the land 

application, because the available 

evidence in the record (i.e., the 2014 

risk assessment) demonstrates that at 

these volumes the potential risks are of 

such significance to warrant regulation. 

Based on this evidence, the burden then 

shifts to the potential user to 

demonstrate that these potential risks do 

not exist at the particular site or have 

been adequately mitigated. Under this 

approach, unencapsulated beneficial 

use applications greater than or equal to 

12,400 tons can still be conducted 

without becoming subject to the 

disposal regulations by using 

engineering principles, such as a liner 

system, and demonstrating that 

environmental releases to groundwater, 

surface water, soil and air are 

comparable to or lower than those from 

analogous products made without CCR, 

or that environmental releases to 

groundwater, surface water, soil and air 

will be at or below relevant regulatory 

and health-based benchmarks for 

human and ecological receptors. EPA 

agrees that the volume of CCR involved 

should not be the sole basis for 

determining whether an operation 

constitutes disposal. As such, the 

Agency is requiring the use of the fourth 

criterion in order to address any 

potential risks associated with 

unencapsulated uses of CCR that are in 

excess of 12,400 tons. Users will be 

required to make an affirmative 

demonstration relating to the potential 

environmental releases and the 

potential risks of the application (in 

addition to requiring compliance with 

the other three criteria). Specifically, 

users will be required to demonstrate 

that environmental releases to 

groundwater, surface water, soil and air 

are comparable to or lower than those 

from analogous products made without 

CCR, or that environmental releases to 

groundwater, surface water, soil and air 

will be at or below relevant regulatory 

and health-based benchmarks for 

human and ecological receptors during 

use. EPA expects such determinations to 

take into account a wide variety of 

factors, including the hydraulic 

conductivity of the area, proximity of 

the material to water, and the likelihood 

of contact with water. EPA also expects 

that such determinations would take 

into account, as many commenters 

acknowledged to be appropriate and 

necessary, the need for site 

characterization and characterization of 

the CCR. The fourth criterion was 

adopted in part, to address commenters’ 

concern that the EPA should include a 

criterion that prevents the placement of 

CCR in water sources. These are 

legitimate concerns; existing damage 

cases show that the placement of CCR 

in sand and gravel pits was almost 

always associated with CCR being 

placed in contact with water. The fourth 

criterion will require the user to 

demonstrate that environmental releases 

to groundwater, surface water, soil and 

air are comparable to or lower than 

those from analogous products made 

without CCR, or that environmental 

releases to groundwater, surface water, 

soil and air will be at or below relevant 

regulatory and health-based benchmarks 

for human and ecological receptors 

during use. As a consequence of this 

requirement, EPA expects that 

significant changes may need to be 

made in order to proceed with a 

proposed use; for example, conducting 

the required assessment, may 

demonstrate that the only way to 

achieve the performance standard is to 

install engineering features, such a liner, 

as part of the proposed project. 

Application of unencapsulated CCR to 

the land in volumes less than the 12,400 

tons will not require an affirmative 

demonstration to be considered a 

beneficial use. While the Agency has 

sufficient information to document that 

unencapsulated uses can present a 

hazard, based on the current rulemaking 

record, EPA lacks the information 

necessary to demonstrate that 

unencapsulated uses in smaller amounts 

are likely to present a risk.45 In other 

words, the evidence relating to these 

uses is not sufficient to shift the burden 

to the potential user to affirmatively 

demonstrate the safety of the proposed 

use. Nevertheless, the Agency expects 

potential users of unencapsulated CCR 

below this threshold to work with the 

states to determine the potential risks of 

the proposed use at the site and to adopt 

the appropriate controls necessary to 

address the risks. In this regard, EPA 

notes that the composition and leaching 

behavior of CCR being beneficially used 

may change over time due to upgrades 

in air pollution controls devices at coalfired power plants. Further, initial 

determinations for existing beneficial 

use (BU) applications may have relied 

on single-point pH test methods (e.g., 

TCLP, SPLP) that, depending on actual 

field conditions in which the 

applications are occurring, can underor over-estimate leachate 

concentrations. Scientific advancements 


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in leach test protocols have found that 

the degree of leaching can vary by 

several orders of magnitude. 

Accordingly, states overseeing CCR BU 

programs are encouraged to closely 

evaluate existing BU applications in 

light of ongoing scientific advances in 

tools and technologies to ensure these 

applications remain protective of 

human health and the environment. In 

addition, the Agency is working to 

provide assistance to states and 

potential users; this includes the release 

of the Agency’s Industrial Waste 

Evaluation Model (IWEM), and the 

development of a framework for 

systematically assessing unencapsulated 

BU applications to aid in assessing 

whether there are environmental risks 

associated with site specific structural 

fills. 

ii. Exclusion of Roadway Applications 

from the 4th Criterion. In the 2010 

proposal, the Agency stated that the 

placement of unencapsulated CCR on 

the land, such as in road embankments, 

presented concerns, but that the amount 

and the manner in which they are 

used—subject to engineering 

specifications and material 

requirements rather than landfilling 

techniques—are very different from land 

disposal. The Agency highlighted the 

2005 guidance that was developed by 

EPA, FHWA, DOE, ACAA, and USWAG, 

addressing the appropriate 

methodologies and engineering 

requirements for the use of coal ash in 

highway construction. Lastly, the 

Agency noted the difference in terms of 

volume; the difference between the 

amounts of CCR that could be disposed 

of in a landfill vs. the amount of CCR 

used in the construction of a roadbase 

(typically on the order of six to twelve 

inches thick). 

EPA received a number of comments 

requesting that the definition of a CCR 

landfill exclude CCR used in highway 

and road construction projects and 

similar beneficial use projects 

authorized by an appropriate state 

agency. These commenters reasoned 

that the ‘‘arbitrary cutoff’ discussed in 

the NODA would inappropriately 

capture such uses. 

The Agency has excluded roadways 

and associated embankments from the 

fourth criterion because the methods of 

application are sufficiently different 

from CCR landfills that EPA cannot 

extrapolate from the available risk 

information to determine whether these 

activities present similar risks. 

Roadways are subject to engineering 

specifications that generally specify 

CCR to be placed in a thin layer (e.g., 

six to 12 inches) under a road. The 

placement under the surface of the road 

limits the degree to which rainwater can 

influence the leaching of the CCR. 

There are also significant differences 

between the manner in which roadways 

and landfills can potentially impact 

groundwater. These include the nature 

of mixing in the media, the leaching 

patterns, and how input infiltration 

rates are generated. First, CCR landfills 

are typically a homogenously mixed 

system, and as a result, there are no 

spatial variations of the chemical and 

physical properties of the media (for 

example, bulk density, hydraulic 

conductivity and contaminant 

concentration). By contrast, roadways 

are generally constructed of several 

layers with different material properties 

(heterogeneity). This difference affects 

the hydraulic conductivity of a mass of 

CCR in a landfill, as compared to CCR 

placed in an embankment. Any 

potential leaching will tend to spread 

over the length of the embankment, as 

opposed to the leaching in a downward 

motion that would occur in a 

homogenously filled landfill. 

Finally, (and perhaps most critically) 

the construction of roads and associated 

embankments are supervised and 

approved by State and/or Federal 

Department of Transportation (DOT) 

engineers who ensure compliance with 

engineering specifications 

While EPA is exempting roadbed 

applications of 12,400 tons or larger 

from the fourth criterion, EPA is 

mindful of situations where large 

quantities of CCR have been used 

without appropriate engineering 

controls or where placement on the land 

has apparently far exceeded those 

necessary for the engineering use of the 

materials. One such situation occurred 

in Puerto Rico with CCR generated by 

the AES Coal Fired Power Plant in 

Guayama. As discussed in Unit IV.B of 

this document, CCR and an aggregate 

created from them (‘‘AGREMAX’’) were 

being used as fill in housing 

developments and in road projects. Over 

two million tons of this material was 

used between 2004 and 2012. When 

made aware of the situation, EPA raised 

concerns over the use of CCR and 

AGREMAX based on the fact that the 

Environmental Quality Board had not 

imposed engineering controls, specified 

appropriate uses, or otherwise limited 

the use of AGREMAX by the end users. 

Inspections of some of the sites where 

the material had been placed showed 

use in residential areas, areas close to 

wetlands and surface waters and/or over 

shallow sole source drinking water 

aquifers. In addition, in some cases the 

volumes appeared to be in excess of 

what was necessary for engineering uses 

and some sites appeared to be 

abandoned. This kind of situation will 

be directly addressed by the new 

beneficial use criteria promulgated in 

the final rule. To qualify as a beneficial 

use, the use of AGREMAX would need 

to meet all four of the criteria—that is, 

it must provide a functional benefit, 

substitute for a virgin material, meet 

product specifications, and in this case, 

the user would be required to make the 

environmental demonstration for the 

non-roadbed applications. 

iii. Kinds of unencapsulated uses of 

CCR required to comply with the fourth 

criterion. 

Unencapsulated uses of CCR are 

numerous and range, in total use, from 

hundreds of thousands of tons to 

millions of tons per year. These 

applications include, as examples, the 

following: (1) Flowable fill; (2) 

structural fills; (3) soil modification/

stabilization; (4) waste stabilization/

solidification; (5) use in agriculture as a 

soil amendment; and (6) aggregate. 

Many of these unencapsulated uses, 

other than structural fills, are not 

generally expected to be used in 

amounts that would require an 

environmental demonstration under the 

fourth criterion. And for several of these 

applications, which can be structurally 

very different from landfills, EPA 

expects that even if these applications 

are used in amounts greater than 12,400 

tons, potential users will be easily able 

to meet the performance standard. For 

example, the use of CCR for soil 

modification or stabilization, 

agriculture, waste stabilization/

solidification, aggregate or flowable fill 

applications, is generally not similar to 

the mounding that occurs in a landfill 

situation. These differences can have a 

tremendous bearing on the leaching 

potential of the CCR materials. 

Structural fills, however, can be larger 

applications and so may be required to 

demonstrate compliance with the 

environmental standards in the fourth 

criterion more frequently. In addition, 

because structural fills can be similar to 

the landfills regulated in the final 

disposal rule, some proposed 

applications may need to install 

engineering features to meet the 

performance standard. 

iv. Demonstration that 

‘‘environmental releases to 

groundwater, surface water, soil and air 

are comparable to or lower than those 

from analogous products made without 

CCR, or that environmental releases to 

groundwater, surface water, soil and air 

will be at or below relevant regulatory 

and health-based benchmarks for 

human and ecological receptors during 

use.’’ 


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The environmental fourth criterion 

requires a potential use of CCR to 

compare analogous products or to 

perform an environmental assessment 

evaluating whether releases to the 

environment are at or below relevant 

regulatory and health-based benchmarks 

for human and ecological receptors 

during use. A demonstration should 

consider the development of a 

conceptual model to assist in the 

determination of whether the 

environmental criteria contained in the 

definition of the term ‘‘beneficial use of 

CCR’’ can be demonstrated. Numerous 

potential pathways exist and these 

should be evaluated as necessary 

depending on the potential application 

of the CCR. Potential exposure pathways 

include exposure to groundwater, 

surface water, air, and soils. Generation 

of dust, leaching to groundwater and 

surface water, inhalation of mercury, 

and plant uptake are areas that need to 

be evaluated. A complete evaluation of 

the types of releases, the types of 

exposure and the receptors that may be 

potentially affected by a potential 

application will need to be conducted. 

A screening comparison will need to be 

performed comparing the 

concentrations of individual 

constituents of potential concern to the 

following benchmarks: human soil 

ingestion, ecological soil, tap water 

ingestion, fish ingestion, surface water, 

sediment, and inhalation. As an 

example, a user could compare a 

mercury concentration to a human 

health screening benchmark with an 

inhalation value of 300 ng/m3. Existing 

documents that can be used to gain an 

understanding of conceptual models, 

pathways and regulatory limits include: 

Risk Assessment Guidance for 

Superfund, Exposure Factors 

Handbook, Volumes I, II and III, Risk 

Assessment Guidance for Superfund 

Volume I: Human Health Evaluation 

Manual Part A, Industrial Waste 

Management Model (IWEM) Technical 

Backgrounds Document, Exposure 

Factors Handbook, Human and 

Ecological Risk Assessment of Coal 

Combustion Wastes. In addition, 

although it is not directly applicable, a 

potential user of unencapsulated CCR 

may find it useful to consult the 

previously mentioned ‘‘Coal 

Combustion Residual Beneficial Use 

Evaluation: Fly Ash Concrete and FGD 

Gypsum Wallboard’’ and the 

‘‘Methodology for Evaluating 

Encapsulated Beneficial Uses of Coal 

Combustion Residuals’’ to assist in the 

determination of whether the 

unencapsulated CCR is comparable to or 

lower than those from analogous 

products made without CCR, or that 

environmental releases to groundwater, 

surface water, soil and air will be at or 

below relevant regulatory and healthbased benchmarks for human and 

ecological receptors during use. 

After the effective date of the final 

rule, any potential user of CCR that 

makes the demonstration in the fourth 

criterion must keep records and provide 

such documentation upon request. 

b. Placement in Sand and Gravel Pits 

and Quarries 

EPA proposed that, without 

exception, unencapsulated CCR placed 

in sand and gravel pits, and quarries 

should not constitute beneficial use, but 

disposal. The Agency highlighted a 

number of damage cases that involved 

the filling of old, unlined quarries or 

gravel pits with large quantities of 

unencapsulated CCR, under the guise of 

‘‘beneficial use.’’ Because of the damage 

cases and the concern that in such 

instances, sand and gravel pits and 

quarries were essentially operating as 

landfills, EPA proposed to define the 

placement of CCR in sand and gravel 

pits or quarries as land disposal that 

would be subject to regulation under 

either of the proposed regulatory 

options. The proposal specifically 

defined a CCR landfill as a disposal 

facility or part of a facility where CCR 

are placed in or on land and which is 

not a land treatment facility, a surface 

impoundment, an underground 

injection well, a salt dome formation, a 

salt bed formation, an underground 

mine, a cave, or a corrective action 

management unit. For purposes of this 

part, landfills also include piles, sand 

and gravel pits, quarries, and/or large 

scale fill operations. Sites that are 

excavated so that more coal ash can be 

used as fill are also considered CCR 

landfills. 

Commenters stated that there were 

numerous examples of harm caused by 

the unencapsulated ‘‘reuse’’ in sand and 

gravel pits and quarries, which 

demonstrate that these unencapsulated 

uses were merely disposal in disguise, 

and must be regulated stringently under 

Subtitle C of RCRA to prevent the risks 

they pose of contaminating 

groundwater, surface water, and 

ecological systems with heavy metals 

and other harmful pollutants. In 

particular, they argue that ‘‘There have 

already been at least 13 damage cases 

caused by the disposal of coal ash in 

sand and gravel pits or former quarries 

that led to contamination of water 

sources and/or ecological damages.’’ 

Some commenters also agreed that 

placement in sand and gravel pits and 

quarries should not be considered 

beneficial use. For example, one 

commenter agreed that CCR placement 

in sand and gravel pits and quarries is 

‘‘disposal’’ and not beneficial use while 

another commenter wrote that it 

concurs that large-scale fills in quarries 

in poorly engineered applications can 

cause negative impacts. Other 

commenters highlighted that damage 

cases related to sand and gravel pits and 

quarries were old practices that no 

longer take place. These commenters 

argued that while sand and gravel 

quarries have been used to dispose of 

CCR, it is not correct to assume that 

with proper engineering and 

environmental standards that CCR 

cannot be used beneficially to reclaim 

quarries for uses such as recreational 

areas, commercial or industrial uses, or 

to aesthetically improve the 

characteristics of the land. 

EPA is finalizing its proposal that 

placement of CCR in sand and gravel 

pits constitutes disposal, rather than 

beneficial use. The final definition of a 

CCR landfill explicitly includes 

placement of CCR in sand and gravel 

pits and quarries. EPA has adopted this 

approach because the practice has 

resulted in numerous damage cases as a 

result of the highly permeable strata 

typically present at such sites. 

Moreover, while the commenters may 

be correct that ‘‘with proper engineering 

measures, placement in sand and gravel 

pits and quarries can be conducted 

safely’’, they submitted no data to 

support this contention. The only 

engineering features the available 

information demonstrate would be 

protective are those that have been 

determined to be necessary for CCR 

landfills—i.e., composite liners and 

groundwater monitoring. And in the 

absence of these features, any future 

placement in sand and gravel pits and 

quarries could not meet the performance 

standard in the fourth criterion: i.e., that 

environmental releases to groundwater, 

surface water, soil and air will be at or 

below relevant regulatory and healthbased benchmarks for human and 

ecological receptors during use. 

B. Definitions 

EPA proposed definitions for a 

number of key terms used in the 

proposed subtitle D rule that the Agency 

determined were necessary for the 

proper interpretation of the proposed 

requirements, e.g., coal combustion 

residuals, existing CCR landfill. (See 75 

FR 35196–97, June 21, 2010.) In 

addition, EPA also proposed definitions 

for terms that were specific to certain 

regulatory requirements, e.g., seismic 

impact zone. 


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EPA is finalizing many of the 

regulatory definitions that were 

proposed, some with modifications. 

Several definitions that were proposed 

have been removed because they are no 

longer relevant to this rulemaking and a 

number of new definitions have been 

added. Specifically, definitions that 

have been removed from the final rule 

include: natural water table, probable 

maximum precipitation, surface water, 

systemic toxicants and upstream toe. 

New definitions are discussed in the 

technical section of the rule for which 

they apply. The majority of the 

regulatory definitions contained in the 

proposed rule have been retained in the 

final rule, as proposed or with minor 

clarifying changes. These definitions are 

codified in § 257.53 and include the 

following: acre foot, active life, aquifer, 

area capacity curves, areas susceptible 

to mass movement, coal combustion 

residuals (CCR), displacement, facility, 

factor of safety, fault, freeboard, 

groundwater, hazard potential 

classification, high hazard potential 

surface impoundment, significant 

hazard potential surface impoundment, 

low hazard potential surface 

impoundment, holocene, hydraulic 

conductivity, karst terrain, lithified 

earth material, maximum horizontal 

acceleration in lithified earth material, 

new CCR landfill, new CCR surface 

impoundment, operator, owner, poor 

foundation conditions, recognized and 

generally accepted good engineering 

practices, representative sample, runoff, run-on, sand and gravel pit or 

quarry, seismic impact zone, state, 

structural components, unstable area, 

uppermost aquifer, and waste boundary. 

Several definitions received a 

significant number of comments and 

upon further evaluation by EPA have 

been modified to better explain their 

meaning or intent. This includes the 

definitions for the following terms: CCR 

landfill or landfill, CCR surface 

impoundment or impoundment, 

existing CCR landfill and existing CCR 

surface impoundment. These 

comments, along with the revisions 

made in response are discussed in more 

detail below. In addition, EPA has 

revised a number of definitions, or 

added new definitions, to be consistent 

with revisions made in the 

corresponding technical requirements. 

These are discussed in the various 

sections of the preamble that address 

the specific technical requirement. For 

example, as discussed in Unit V of this 

document, EPA has revised the 

definition of ‘‘independent registered 

professional engineer or hydrologist’’ to 

‘‘qualified professional engineer’’ to 

address the concerns raised in 

comments. 

1. Definition of CCR Landfill 

EPA proposed to define a CCR landfill 

as a disposal facility or part of a facility 

where CCR is placed in or on land and 

which is not a land treatment facility, a 

surface impoundment, an underground 

injection well, a salt dome formation, a 

salt bed formation, an underground 

mine, a cave, or a corrective action 

management unit. For purposes of this 

subpart, landfills also include piles, 

sand and gravel pits, quarries, and/or 

large scale fill operations. Sites that are 

excavated so that more coal ash can be 

used as fill are also considered CCR 

landfills. (See 75 FR 35239.) The 

Agency received a significant number of 

comments on the proposed definition. 

These comments focused almost 

exclusively on the inclusion of ‘‘largescale fill operations’’ and ‘‘piles’’ within 

the definition of CCR landfill. Regarding 

large-scale fills, commenters argued that 

one of the fundamental problems with 

the proposed definition was that it 

assumed all CCR placed in large scale 

fill operations constituted ‘‘disposal’’ of 

CCR (and that these operations therefore 

constitute CCR landfills) rather than 

beneficial use. Commenters further 

argued that CCR is often used in 

engineered fills, such as road base and 

road embankments and that these 

legitimate beneficial use operations 

should not be subject to the CCR landfill 

regulations. 

Commenters also argued that ‘‘piles’’ 

should be omitted from the definition of 

a CCR landfill for a variety of reasons. 

Several commenters argued that 

including the word ‘‘pile’’ was overly 

broad and insufficiently prescriptive 

and would inappropriately capture ongoing or short-term CCR management 

activities that did not constitute 

disposal, such as storage for beneficial 

use. These commenters also raised 

concern that including ‘‘piles’’ in the 

definition of CCR landfill without 

further clarification or specificity, i.e., 

when used as part of a beneficial use 

operation, would negatively affect 

beneficial use activities. Other 

commenters raised concern that the 

term ‘‘piles’’ was too vague, and 

suggested that whether piles were 

treated as CCR landfills should be 

determined by the size of the piles, or 

the intent for which such piles exist. 

These commenters suggested the 

Agency should exclude small piles of 

CCR that are staged and/or consolidated 

prior to transport or placement for 

disposal. These commenters argued that 

subjecting all CCR piles to all of the 

landfill requirements was ‘‘illogical and 

inappropriate.’’ 

Certain commenters argued that piles 

should not be regulated under this rule 

because they do not present a significant 

risk to the environment, as evidenced by 

a lack of damage cases. Alternately, 

other commenters suggested that if EPA 

were to regulate piles, the Agency 

should consider a regulatory strategy 

other than regulation as a CCR landfill. 

One alternative regulatory strategy 

suggested was to include an option 

establishing a limit (e.g., 180 days) on 

the amount of time that the CCR could 

be allowed to be maintained in a pile 

without regulation as a CCR landfill. 

Another option suggested was to 

develop a set of reasonable design and 

operating standards consistent with the 

uses and risks posed by piles. Such 

design standards could include the 

requirement for a low permeability 

underlayment or base such as asphalt, 

concrete or a high density polyethylene 

(HDPE) liner. Operating standards could 

include such provisions as labeling, and 

the requirement to remove at least 90 

percent of the contents every 90 days, 

with a full cleanout annually. 

EPA believes the suggested option to 

establish a time limit would be difficult 

to oversee and verify. States and citizens 

would have no way to determine when 

CCR is placed in a pile and when the 

CCR was subsequently removed. 

Therefore, EPA is rejecting this 

suggested option. The suggested option 

to develop appropriate design and 

operating standards is essentially the 

approach EPA has adopted, as discussed 

in more detail below. However, the final 

design and operating standards differ 

according to the management practices, 

and include measures to control fugitive 

dust, and for certain practices, require 

the installation of a composite liner and 

leachate collection system. 

EPA discussed its final approach to 

large-scale fill operations in Unit V of 

this document; the definition of a CCR 

landfill has been revised to be 

consistent with the approach described 

in that section. As explained at length, 

EPA has adopted a final approach that 

distinguishes between beneficial use 

and the ‘‘disposal’’ of CCR. Activities 

that meet the definition of beneficial use 

are not subject to these regulations. 

Activities that do not meet all of the 

criteria in the definition of a beneficial 

use—and in particular, such activities 

that involve the placement of 

unencapsulated CCR on the land—are 

considered disposal and are subject to 

the requirements of this final rule. 

Consistent with this approach the final 

definition of a CCR landfill has been 

revised to clarify that it includes ‘‘the 


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use of CCR that does not meet the 

definition of a beneficial use of CCR.’’ 

Waste piles, including those used to 

temporarily store or manage CCR on-site 

prior to disposal in a CCR landfill or 

subsequent beneficial use, have been 

retained within the definition of a CCR 

landfill. In making this determination 

the Agency was strongly influenced by 

the similarities in the potential risks 

posed by both waste piles and CCR 

landfills to human health, groundwater 

resources, or the air if improperly 

managed. Both CCR piles and CCR 

landfills are subject to external factors 

such as rain and wind, which can 

adversely affect human health and the 

environment. For example, uncontrolled 

run-on and run-off can result in ponding 

of water in and around the unit 

resulting in increased leachate which 

has the potential to affect groundwater. 

Similarly, absent dust control measures, 

such as the conditioning of CCR, both 

CCR landfills and CCR piles have the 

potential to generate significant amount 

of fugitive dust. Indeed, CCR piles are 

generally more susceptible to the 

creation of fugitive dusts. And contrary 

to the commenters’ contention about the 

absence of damage cases, the single 

most frequent issue presented during 

the public hearings was the allegation 

by individual citizens of damage caused 

by fugitive dusts from neighboring CCR 

facilities. Moreover, the same pollution 

control measures, such as liners, 

leachate collection systems, and 

groundwater monitoring, will address 

the potential adverse effects from both 

of these units. As such, the Agency sees 

no reason to treat piles and landfills 

differently. 

EPA also disagrees that the inclusion 

of CCR piles would capture on-going or 

short-term CCR management activities 

that do not constitute disposal. 

Irrespective of whether the facility is 

using the pile as ‘‘temporary storage’’ or 

ultimately intends to direct the CCR to 

beneficial use, by placing the CCR on 

the land with no containment or other 

method of preventing environmental 

exposures, the facility is engaging in an 

activity that clearly falls within the 

statutory definition of disposal. See 42 

U.S.C. 6903(3)(‘‘placing of solid waste 

. . . on any land, so that such solid 

waste . . . or any constituent thereof 

may enter the environment.’’) Moreover, 

even where the facility intends the pile 

to be ‘‘temporary,’’ some amount of CCR 

inevitably remains in place. And if this 

was not the case, under section 

1008(a)(3), EPA is authorized to 

establish criteria governing all aspects of 

solid waste management—which 

explicitly is defined to include 

‘‘storage’’ as well as all of the other 

activities identified by the 

commenters—to ensure the protection 

of human health and the environment. 

See 42 U.S.C. 6903(28). 

Nevertheless, EPA agrees that not 

every activity that involves the 

management of CCR must occur in a 

unit that meets all of the technical 

requirements of a CCR landfill (e.g., 

groundwater monitoring). The key 

concern EPA is seeking to address with 

the inclusion of piles is the 

uncontrolled exposure from the 

extended, repeated, or indefinite 

placement of large amounts of 

unconsolidated CCR directly on the 

land. To the extent those exposures are 

controlled, whether through the use of 

tanks or some other kind of containment 

measures, the practice is neither 

considered to be a ‘‘pile’’ nor disposal 

in a landfill. 

To clarify this, and in response to the 

concern that the term ‘‘piles’’ was too 

vague, EPA has adopted a definition of 

the term ‘‘CCR pile’’ to identify those 

‘‘piles’’ that are subject to the disposal 

requirements in this regulation. The 

final regulation specifies that a CCR pile 

means any non-containerized 

accumulation of solid, non-flowing CCR 

that is placed on the land. This 

definition mirrors the existing definition 

of ‘‘waste pile or pile’’ from the part 257 

regulations, (i.e., the regulations that 

currently apply to CCR facilities), as 

well as the definition in part 260. The 

use of the phrase ‘‘non-containerized’’ is 

not intended to require that all activities 

occur within tanks or containment 

structures, but merely that specific 

measures have been adopted to control 

exposures to human health and the 

environment. This could include 

placement of the CCR on an impervious 

base such as asphalt, concrete, or a 

geomembrane; leachate and run-off 

collection; and walls or wind barriers. 

CCR managed in such a fashion would 

not be CCR piles and, therefore, not CCR 

landfills subject to this regulation. To 

further clarify how this relates to EPA’s 

overall approach to beneficial use it is 

important to distinguish between CCR 

that is actually being used beneficially 

and CCR that may someday be used 

beneficially. CCR that is currently being 

used beneficially—for example, fly ash 

that has been transferred to a cement 

manufacturer and that is stored off-site 

in a ‘‘temporary pile,’’ and that complies 

with all of the criteria in the definition 

to be considered a beneficial use 

including the fourth criterion relating to 

the placement of large quantities of 

unconsolidated CCR on the land— 

would not be subject to the regulations 

applicable to CCR disposal. 

Accordingly, the final regulation 

specifies that practices that meet the 

definition of beneficial use of CCR are 

not subject to the ‘disposal’’ 

requirements of the rule. 

By contrast, CCR located on-site that 

may someday be used beneficially but is 

not yet beneficially used remains 

subject to the disposal rule. Given that 

landfills and surface impoundments can 

be periodically dredged to provide 

material for beneficial use, any other 

approach would be impracticable, and 

would exclude from regulation many of 

the greatest sources of risk. An example 

of a ‘‘pile’’ that is not yet beneficially 

used is unconsolidated CCR placed on 

the land, that have been designated by 

the CCR facility to be transferred to 

another location for subsequent 

beneficial use (e.g., use as road bed) in 

the near future. 

Several commenters also suggested 

that the definition of a CCR landfill 

should explicitly exclude the use of 

CCR at surface coal mining and 

reclamation operations, to reflect the 

Agency’s intention not to cover such 

activities. The Agency agrees and has 

revised the definition to explicitly 

provide that the term CCR landfill does 

not include the use of CCR at coal 

mining and reclamation operations. 

Consequently, the Agency is 

finalizing a definition of ‘‘CCR landfill 

or landfill’’ that can be found in 

§ 257.73. On a related matter, the 

definition of CCR landfill or landfill 

contains the terms ‘‘sand and gravel pits 

or quarries.’’ EPA proposed a ‘‘sand and 

gravel pit and/or quarry’’ to mean an 

excavation for the commercial 

extraction of aggregate for use in 

construction projects. The Agency 

received comments on the definition of 

sand and gravel pit and/or quarry 

suggesting that the term ‘‘commercial 

extraction’’ was too narrow. Specifically 

commenters were concerned it would 

exclude non-commercial extraction, 

such as gravel pits operated by 

municipalities, and exclude metallic 

mineral mines, nonmetallic mining for 

other than sand and gravel, and coal 

mines. EPA agrees that the use of the 

term ‘‘commercial extraction’’ renders 

the proposed definition too narrow, as 

there is no basis for distinguishing 

between commercial and noncommercial extraction, either because of 

the risks these activities pose, or any 

other consideration relevant to this 

rulemaking. EPA is, therefore, revising 

‘‘sand and gravel pit and/or quarry’’ to 

mean an excavation for the extraction of 

aggregate, minerals, or metals. The term 

sand and gravel pit and/or quarry does 

not include subsurface or surface coal 

mines. 


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2. Definition of CCR Surface 

Impoundment 

EPA proposed to define a CCR surface 

impoundment to mean a facility or part 

of a facility which is a natural 

topographic depression, man-made 

excavation, or diked area formed 

primarily of earthen materials (although 

it may be lined with man-made 

materials) which is designed to hold an 

accumulation of CCR containing free 

liquids, and which is not an injection 

well. Examples of CCR surface 

impoundments are holding, storage, 

settling, and aeration pits, ponds and 

lagoons. CCR surface impoundments are 

used to receive CCR that have been 

sluiced (flushed or mixed with water to 

facilitate movement), or wastes from wet 

air pollution control devices, often in 

addition to other solid wastes. 

The Agency received many comments 

on the proposed definition of CCR 

surface impoundment. The majority of 

commenters argued that the definition 

was overly broad and would 

inappropriately capture surface 

impoundments that are not designed to 

hold an accumulation of CCR. 

Commenters were concerned that the 

proposed definition could be 

interpreted to include downstream 

secondary and tertiary surface 

impoundments, such as polishing, 

cooling, wastewater and holding ponds 

that receive only de minimis amounts of 

CCR. Commenters reasoned that these 

types of units in no practical or 

technical sense could be described as 

units ‘‘used to receive CCR that has been 

sluiced.’’ 

Other commenters raised concern that 

the definition did not differentiate 

between temporary and permanent 

surface impoundments. Commenters 

stated that many facilities rely on shortterm processing and storage before 

moving CCR off-site for beneficial use or 

permanent disposal and that these units 

should not be required to comply with 

all of the technical criteria required for 

more permanent disposal 

impoundments. 

Upon further evaluation of the 

comments, the Agency has amended the 

definition of CCR surface impoundment 

to clarify the types of units that are 

covered by the rule. After reviewing the 

comments, EPA reviewed the risk 

assessment and the damage cases to 

determine the characteristics of the 

surface impoundments that are the 

source of the risks the rule seeks to 

address. Specifically, these are units 

that contain a large amount of CCR 

managed with water, under a hydraulic 

head that promotes the rapid leaching of 

contaminants. These risks do not differ 

materially according to the management 

activity (i.e., whether it was 

‘‘treatment,’’ ‘‘storage’’ or ‘‘disposal’’) 

that occurred in the unit, or whether the 

facility someday intended to divert the 

CCR to beneficial use. However, EPA 

agrees with commenters that units 

containing only truly ‘‘de minimis’’ 

levels of CCR are unlikely to present the 

significant risks this rule is intended to 

address. 

EPA has therefore revised the 

definition to provide that a CCR surface 

impoundment as defined in this rule 

must meet three criteria: (1) The unit is 

a natural topographic depression, manmade excavation or diked area; (2) the 

unit is designed to hold an 

accumulation of CCR and liquid; and (3) 

the unit treats, stores or disposes of 

CCR. These criteria correspond to the 

units that are the source of the 

significant risks covered by this rule, 

and are consistent with the proposed 

rule. EPA agrees with commenters that 

relying solely on the criterion from the 

proposed rule that the unit be designed 

to accumulate CCR could inadvertently 

capture units that present significantly 

lower risks, such as process water or 

cooling water ponds, because, although 

they will accumulate any trace amounts 

of CCR that are present, they will not 

contain the significant quantities that 

give rise to the risks modeled in EPA’s 

assessment. By contrast, units that are 

designed to hold an accumulation of 

CCR and in which treatment, storage, or 

disposal occurs will contain substantial 

amounts of CCR and consequently are a 

potentially significant source of 

contaminants. However, EPA disagrees 

that impoundments used for ‘‘short-term 

processing and storage’’ should not be 

required to comply with all of the 

technical criteria applicable to CCR 

surface impoundments. By ‘‘shortterm,’’ the commenters mean that some 

portion of the CCR is removed from the 

unit; however, in EPA’s experience 

these units are never completely 

dredged free of CCR. But however much 

is present at any given time, over the 

lifetime of these ‘‘temporary’’ units, 

large quantities of CCR impounded with 

water under a hydraulic head will be 

managed for extended periods of time. 

This gives rise to the conditions that 

both promote the leaching of 

contaminants from the CCR and are 

responsible for the static and dynamic 

loadings that create the potential for 

structural instability. These units 

therefore pose the same risks of releases 

due to structural instability and of 

leachate contaminating ground or 

surface water as the units in which CCR 

are ‘‘permanently’’ disposed. 

The final definition makes extremely 

clear the impoundments that are 

covered by the rule, so an owner or 

operator will be able to easily discern 

whether a particular unit is a CCR 

surface impoundment. CCR surface 

impoundments do not include units 

generally referred to as cooling water 

ponds, process water ponds, wastewater 

treatment ponds, storm water holding 

ponds, or aeration ponds. These units 

are not designed to hold an 

accumulation of CCR, and in fact, do not 

generally contain significant amounts of 

CCR. Treatment, storage, or disposal of 

accumulated CCR also does not occur in 

these units. Conversely, a constructed 

primary settling pond that receives 

sluiced CCR directly from the electric 

utility would meet the definition of a 

CCR surface impoundment because it 

meets all three criteria of the definition: 

It is a man-made excavation and it is 

designed to hold an accumulation of 

CCR (i.e., directly sluiced CCR). It also 

engages in the treatment of CCR through 

its settling operation. The CCR may be 

subsequently dredged for disposal or 

beneficial use elsewhere, or it may be 

permanently disposed within the unit. 

Similarly, secondary or tertiary 

impoundments that receive wet CCR or 

liquid with significant amounts of CCR 

from a preceding impoundment (i.e., 

from a primary impoundment in the 

case of a secondary impoundment, or 

from a secondary impoundment in the 

case of a tertiary impoundment), even if 

they are ultimately dredged for land 

disposal elsewhere are also considered 

CCR surface impoundments and are 

covered by the rule. To illustrate 

further, consider a diked area in which 

wet CCR is accumulated for future 

transport to a CCR landfill or beneficial 

use. The unit is accumulating CCR, 

while allowing for the evaporation or 

removal of liquid (no free liquids) to 

facilitate transport to a CCR landfill or 

for beneficial use. In this instance, the 

unit again meets all three definition 

criteria, it is a diked area (i.e., there is 

an embankment), it is accumulating 

CCR for ultimate disposal or beneficial 

use; and it is removing any free liquids, 

(i.e., treatment). As such, this unit 

would meet the definition of CCR 

surface impoundment. In all of these 

examples significant quantities of CCR 

are impounded with water under a 

hydraulic head that will be managed for 

extended periods of time. This gives rise 

to the conditions that both promote the 

leaching of contaminants from the CCR 

and are responsible for the static and 

dynamic loadings that create the 

potential for structural instability. These 

units therefore all pose the same risks of 


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releases due to structural instability and 

of leachate contaminating ground or 

surface water. 

3. Definition of Existing CCR Landfill 

EPA proposed to define an existing 

CCR landfill to mean a CCR landfill 

which was in operation on, or for which 

construction commenced prior to the 

effective date of the final rule. The 

proposed definition specified that a CCR 

landfill has commenced construction if 

the owner or operator has obtained the 

federal, state, and local approvals or 

permits necessary to begin physical 

construction; and either: (1) A 

continuous on-site, physical 

construction program has begun; or (2) 

the owner or operator has entered into 

contractual obligations—which cannot 

be cancelled or modified without 

substantial loss—for physical 

construction of the CCR landfill to be 

completed within a reasonable time. 

In response to the proposed 

definition, the Agency received several 

comments arguing that the use of the 

phrase ‘‘was in operation on, or for 

which construction commenced prior 

to’’ would lead to confusion. 

Commenters contended that most units 

defined as CCR landfills at some point 

in time ‘‘were in operation’’ and had 

‘‘commenced construction’’ prior to the 

effective date of the regulation. 

Commenters claimed that this definition 

would unnecessarily capture thousands 

of closed structural fill projects, 

including residential properties, 

commercial properties used by small 

businesses, and many recreational 

facilities. Furthermore, commenters 

doubted that EPA intended for the rule 

to cover all of these units and urged the 

Agency to clarify that closed units are 

excluded from the definition of existing 

CCR landfill. 

Other commenters argued that the 

proposed definition of existing CCR 

landfill should be modified to include 

lateral expansions of operation units 

where such an expansion is within the 

site footprint of an area already 

approved and permitted by the state for 

the landfill. Commenters contended that 

while the proposed definition included 

undeveloped areas within the footprint 

of an approved permitted site, it also 

required that the construction be 

initiated at the site or that some type of 

binding contractual obligation be 

present. Commenters contended that the 

existence of a contractual obligation 

unfairly subjects undeveloped, yet 

approved permitted areas to design and 

operating standards for new CCR 

landfills based merely on the existence 

of a contract to commence construction. 

Commenters argued that such a 

distinction was arbitrary and capricious 

and provided no practical benefit. Other 

commenters questioned the usefulness 

of requiring a contractual obligation at 

all. As written, the commenters argued, 

that the definition was vague, 

unenforceable, and thus, not protective 

of human health and the environment. 

Commenters reasoned that there was no 

definitive or generally accepted 

meaning for the term ‘‘substantial loss’’ 

or the term ‘‘reasonable time’’ and an 

owner or operator, sensing that these 

proposed rules may be passed, could 

sign a contract now with minimum 

predetermined cancellation or 

modification penalties and a contract 

term of say five years or even longer to 

avoid the new unit requirements, i.e., a 

composite liner. 

The commenters are correct that EPA 

did not intend to cover inactive landfills 

under this rule. The Agency agrees that, 

as drafted, the proposed definition 

could cause confusion. EPA therefore 

deleted the phrase ‘‘was in operation on 

the effective date of the rule’’ and has 

substituted the phrase ‘‘that receives 

CCR both before and after [the effective 

date of the rule].’’ EPA also agrees that 

the phrase ‘‘commenced construction 

prior to the effective date of the rule’’ 

could similarly cause confusion. 

Therefore, the Agency has made a 

similar revision, by adding the phrase 

‘‘and receives CCR on or after [the 

effective date of the rule]’’ after the 

phrase ‘‘for which construction 

commenced prior to [the effective date 

of the rule].’’ These revisions will clarify 

which units are covered by the technical 

requirement of the rule and alleviate 

any confusion. EPA is also making 

conforming modifications to the 

definition of existing CCR surface 

impoundment. 

EPA disagrees that lateral expansions 

should be considered to be ‘‘existing’’ 

based solely on the fact that such an 

expansion is within the site footprint of 

an area already approved and permitted 

by the state. EPA has frequently 

distinguished between the types of 

requirements applicable to new and 

existing units, reasoning that in many 

instances, risk mitigation measures 

would be adequate such that existing 

units need not wholly retrofit to meet 

the new ‘‘state of the art.’’ For new 

units, however, the balance is generally 

struck in favor of requiring a greater 

degree of risk prevention, rather than 

relying solely on risk mitigation 

measures. In determining whether a unit 

is ‘‘new’’ or ‘‘existing,’’ EPA has 

historically considered that the equities 

lie in favor of considering a unit to be 

‘‘existing’’ when there has been an 

irretrievable commitment of resources 

on the part of the facility. That has not 

occurred merely because permits have 

been obtained. While admittedly 

resources have been committed, at this 

stage modifications to the design and 

construction of the unit are still feasible. 

Specifically, the critical differences 

between the requirements applicable to 

new and existing CCR landfills are the 

type of liner that must be installed and 

the location restrictions that apply. 

Compliance with these requirements 

can be addressed through modifications 

to the design and construction of the 

unit, and are therefore readily feasible 

until construction has begun. 

EPA agrees with those commenters 

who were concerned that the phrase, 

‘‘the owner or operator has entered into 

contractual obligations—which cannot 

be cancelled or modified without 

substantial loss—for physical 

construction of the CCR landfill to be 

completed within a reasonable time,’’ is 

vague and potentially subject to abuse. 

While this phrase has been included in 

other EPA regulations, those regulations 

operate within a regulatory program 

overseen by a regulatory authority. No 

similar guarantee exists under these 

regulations. EPA could not discover a 

definitive or generally accepted 

meaning for the terms ‘‘substantial loss’’ 

or ‘‘reasonable time,’’ or develop 

sufficiently objective and determinate 

criteria for these concepts. 

Consequently, the Agency has decided 

to remove this provision from the 

definition of existing CCR landfill. EPA 

is retaining the two most important 

elements of the definition that will 

effectively determine whether the 

facility has irretrievably committed 

resources such that it would not 

reasonable to require compliance with 

all of the requirements applicable to 

new units. Accordingly, a unit will be 

considered to be existing if, first, the 

owner or operator has obtained the 

federal, state, and local approvals or 

permits necessary to begin physical 

construction; and second, that a 

continuous on-site, physical 

construction program has begun (i.e., 

groundbreaking has occurred). 

Therefore, EPA is finalizing the 

definition of existing CCR landfill that 

can be found in § 257.53. 

4. Definition of Existing CCR Surface 

Impoundment 

EPA proposed to define an existing 

CCR surface impoundment to mean a 

surface impoundment which was in 

operation on, or for which construction 

commenced prior to the effective date of 

the final rule. The proposal also 

specified that a CCR surface 

impoundment has commenced 


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construction if the owner or operator 

has obtained the federal, state, and local 

approvals or permits necessary to begin 

physical construction; and either: (1) A 

continuous on-site, physical 

construction program has begun; or (2) 

the owner or operator has entered into 

contractual obligations—which cannot 

be cancelled or modified without 

substantial loss—for physical 

construction of the CCR landfill to be 

completed within a reasonable time. 

EPA received many of the same 

comments on the definition of an 

existing CCR surface impoundment that 

were received on an existing CCR 

landfill. This included comments 

requesting clarification that the term did 

not include impoundments that had 

ceased receiving CCR before the 

effective date of the rule. Commenters 

also suggested that EPA modify the 

definition to include the phrase that the 

surface impoundment ‘‘was in operation 

and had not yet ceased receiving CCR 

prior to the effective date of the rule’’ to 

make clear that the definition did not 

encompass units that are no longer 

receiving CCR on the effective date of 

the rule, even though the unit may not 

have completed final closure prior to 

the rule’s effective date. Commenters 

reasoned that units no longer receiving 

CCR on the effective date of the rule are 

not ‘‘in operation’’ and therefore should 

not be subject to the standards 

applicable to active units. Commenters 

also requested that EPA clarify that the 

definition of ‘‘existing CCR surface 

impoundment’’ include units that were 

in operation on the effective date of the 

rule and that periodically dredged out 

during the operating life of the 

impoundment. Commenters contended 

that while this may seem self-evident, 

EPA needed to clarify that these 

impoundments would not be 

characterized as ‘‘new CCR surface 

impoundments.’’ 

The Agency is generally conforming 

the definition of an existing CCR surface 

impoundment to the revised definition 

of an existing CCR landfill. Although 

inactive CCR surface impoundments are 

covered by the final rule (unlike 

inactive CCR landfills), EPA decided it 

would provide greater clarity to 

establish a section specific to inactive 

CCR surface impoundments rather than 

merely including such units within the 

definition of an existing CCR surface 

impoundment. As discussed in greater 

detail in Unit VI.A of this document, 

under § 257.100, any CCR surface 

impoundment that continues to 

impound CCR and water after the 

effective date of the rule, must either (1) 

breach, dewater, and place a cover on 

the unit within three years or (2) must 

comply with all of the requirements 

applicable to existing CCR surface 

impoundments. Without the need to 

account for inactive CCR surface 

impoundments within the definition, 

the definitions of ‘‘existing’’ landfills 

and surface impoundments should be 

the same. 

Thus, the Agency has removed the 

term ‘‘in operation’’ from the definition 

and has instead focused on when the 

surface impoundment received or will 

receive CCR. EPA has also deleted the 

provision that would have allowed a 

unit to be considered to be ‘‘existing’’ 

based on the existence of a contract. 

Accordingly, for purposes of this rule, a 

CCR surface impoundment will be 

considered to be ‘‘existing’’ if the unit 

received CCR both before and after the 

effective date of the rule. For example, 

if a CCR surface impoundment received 

CCR prior to the effective date and was 

in the process of dredging on the 

effective date with the intent of 

receiving additional CCR after the 

effective date, the unit would still be 

considered to be an ‘‘existing’’ rather 

than a new unit. Conversely, if a unit 

received CCR prior to the effective date 

and was no longer receiving CCR, this 

unit would be considered ‘‘inactive,’’ 

and would only be subject to the 

technical criteria applicable to 

‘‘existing’’ CCR surface impoundments 

if they had not completed closure 

within three years. Similarly, if a CCR 

surface impoundment had commenced 

construction prior to the effective date 

with the intention of receiving CCR on 

or after the effective date of the rule, the 

unit would be considered an ‘‘existing’’ 

unit only if the physical construction 

program had begun (e.g., 

groundbreaking had occurred) with the 

appropriate federal, state and local 

approvals or permits in place. But if 

prior to the effective date of the rule, the 

permits had been obtained but the 

physical construction of the unit had 

not begun (e.g., groundbreaking had not 

occurred), the unit would be considered 

‘‘new’’ and would be subject to all the 

applicable technical criteria for new 

CCR surface impoundments. Therefore, 

the Agency is finalizing the definition of 

existing CCR surface impoundment that 

can be found in § 257.53. 

C. Location Restrictions and Individual 

Location Requirements 

In the proposed rule, EPA stated that 

any RCRA subtitle D regulation would 

need to ensure that CCR landfills, CCR 

surface impoundments and all lateral 

expansions were appropriately sited to 

ensure that no reasonable probability of 

adverse effects on health or the 

environment from the disposal of CCR 

would occur. Under the subtitle D 

option, EPA proposed location 

restrictions for CCR units which 

included requirements relating to the 

placement of CCR in five general 

locations: (1) Above the natural water 

table; (2) wetlands; (3) fault areas; (4) 

seismic impact zones; and (5) unstable 

areas. The proposed requirements relied 

in large measure, on the record EPA 

developed to support the 40 CFR part 

258 requirements for MSWLFs and on 

EPA’s Guide for Industrial Waste 

Management (EPA530–R–03–001, 

February 2003). EPA also chose to add 

one additional location restriction that 

would ban the placement of CCR units 

within two feet of the upper limit of the 

natural water table. This proposed 

requirement was originally included in 

the proposed rule, Standards for the 

Management of Cement Kiln Dust (64 

FR 45631, August 20, 1999) because of 

the potential damage to groundwater 

caused by the management of cement 

kiln dust at sites located below the 

natural water table. While the proposed 

cement kiln dust rule has not yet been 

finalized, EPA extended this reasoning 

to CCR by applying the same location 

restriction to CCR units. The proposed 

applicability of these location 

requirements varied depending on 

whether the unit was an existing or new 

CCR landfill, an existing or new CCR 

surface impoundment, or a lateral 

expansion of such units. For example, 

for existing CCR landfills, the Agency 

proposed that only the location 

requirement for unstable areas would 

apply. By contrast, the proposed rule 

applied all of the location restrictions to 

new CCR landfills and all CCR surface 

impoundments, both existing and 

new—an approach consistent with 

RCRA subtitle C and Congressional 

distinctions between the risks presented 

by landfills and surface impoundments. 

(See 75 FR 35198–35199.) This meant 

that owners or operators would need to 

close existing CCR surface 

impoundments located less than two 

feet above the natural water table, or for 

existing CCR units in sensitive but not 

prohibited locations, make a technical 

demonstration that the unit met the 

requirements of a performance standard 

that serves as the alternative to the 

location restriction, retrofit the unit so 

that it could meet the performance 

standard, or close. For those CCR units 

that need to close (i.e., owners or 

operators that could not make the 

necessary technical demonstrations), 

EPA proposed that the unit must close 

within five years of the effective date of 

the rule. If closure could not occur 

within the five year timeframe, the 


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46Rowe, C.L., Hopkins, W.A., Congdon, J.D., 

2002. Ecotoxicological Implications of Aquatic 

Disposal of Coal Combustion Residues in the 

United States: A Review. Environmental Monitoring 

and Assessment, Vol. 80, pp. 207–276. 

Agency proposed allowing for a case-bycase extension for up to two more years 

if the facility demonstrated that there 

was no alternative disposal capacity and 

no immediate threat to health or the 

environment. 

EPA proposed not to impose all of the 

location requirements on existing CCR 

landfills based on the conclusion that 

CCR landfills pose less risk and are 

structurally less vulnerable than 

existing CCR surface impoundments. 

EPA also raised concern that a 

significant number of these CCR 

landfills could be located in areas 

subject to these requirements, 

(particularly wetlands), which could 

cause disposal capacity shortfalls in 

certain regions of the U.S., if existing 

CCR landfills in these locations were 

required to close. Disposal capacity 

shortfalls can pose significant 

environmental and public health 

concerns based on the potential for 

significant disruption of solid waste 

management state-wide from the closure 

of these units. EPA concluded that these 

risks would be greater than the potential 

risks from allowing existing CCR 

landfills to remain in these locations, 

given that these units would be subject 

to all of the design and operating 

requirements of the rule. To ensure the 

accuracy of its preliminary conclusions, 

the Agency requested commenters to 

provide any available information 

regarding the number of existing CCR 

landfills located in these sensitive areas. 

The Agency also sought information 

regarding the extent to which CCR 

landfill capacity would be affected by 

applying all of the location restrictions 

to existing CCR landfills, the extent to 

which facilities could comply with the 

proposed performance standards, and 

the costs that would be incurred to 

retrofit existing CCR landfills to meet 

these standards. 

The Agency received numerous 

comments in response to the Agency’s 

request for additional information 

regarding the extent to which landfill 

capacity would be affected by applying 

all the proposed subtitle D location 

restrictions to existing CCR landfills. 

Commenters generally agreed with the 

Agency that applying the other location 

restrictions to existing CCR landfills 

would cause a significant decrease in 

disposal capacity across the country, 

although they did not provide any data 

or information which would support 

this concern. Commenters noted, 

however, that if existing CCR landfills 

located in these areas were to close, it 

would greatly complicate operations at 

many utilities. Affected facilities would 

need to find additional disposal 

capacity, which would require utilities 

to procure new real estate on which to 

site a new CCR landfill (which may be 

a significant distance from a power 

plant), obtain a new disposal permit for 

the CCR landfill (which can take an 

extended period of time), and 

potentially transport significant 

volumes of CCR great distances to 

newly-permitted facilities. Commenters 

argued that there was simply no 

environmental basis for causing this 

level of disruption to utility CCR 

disposal practices. 

EPA received no data or information 

in response to the Agency’s request for 

the costs associated with retrofitting a 

CCR surface impoundment or CCR 

landfill to meet the demonstrations for 

existing units. Similarly, the Agency 

received little to no information in 

response to EPA’s request for additional 

information on the location of these 

facilities. Some commenters 

acknowledged that specific states were 

located in some of these restricted areas 

but did not provide specific information 

on specific units. 

Overwhelmingly, the issue receiving 

the most comment was EPA’s intention 

to subject existing CCR surface 

impoundments to all of the new 

location criteria. Commenters 

contended that subjecting existing units 

to all of the location criteria was a 

radical departure from the location 

restriction provisions of the existing 

MSWLF rules on which the subtitle D 

option is based (i.e., existing MSWLFs 

are only subject to the floodplains and 

unstable areas restrictions) without any 

justification for regulating CCR surface 

impoundments more stringently than 

existing CCR landfills. Commenters 

argued that EPA must demonstrate that 

there are increased risks posed by each 

CCR surface impoundments based on its 

location; otherwise, they claimed, there 

was no justification for EPA to subject 

CCR surface impoundments to more 

stringent location restrictions. Some 

commenters suggested that a more 

reasonable approach would be to limit 

the restrictions for existing CCR surface 

impoundments to unstable areas, 

consistent with the approach proposed 

for existing CCR landfills. Finally, 

commenters raised concern about the 

inconsistency between the preamble 

language and the corresponding 

regulatory text. Specifically, the 

preamble stated EPA’s intention to 

apply all of the location criteria to all 

CCR surface impoundments (existing 

and new) while the proposed regulatory 

language applied all location criteria 

only to new CCR surface impoundments 

and lateral expansions. 

1. Applicability of the Location Criteria 

to Existing CCR Surface Impoundments 

EPA acknowledges the discrepancies 

between the preamble language and the 

regulatory text regarding the proposed 

regulatory language for the location 

restrictions as it applies to existing CCR 

surface impoundments. In the proposed 

rule, the regulatory language should 

have included, ‘‘all surface 

impoundments’’ as opposed to only 

‘‘new surface impoundments.’’ 

EPA disagrees that in order to justify 

national minimum standards applicable 

to existing CCR surface impoundments, 

the Agency must demonstrate an 

adverse impact to human health and the 

environment from each individual unit, 

based on the specific risks posed at each 

location. As an initial matter, it is well 

established that an agency may regulate 

a class of similarly situated entities 

through rulemaking, rather than on the 

basis of an individualized assessment of 

every entity that will be subject to the 

rule. And indeed, Congress specifically 

directed EPA to proceed by rulemaking 

to establish minimum national 

standards under RCRA sections 1008(a) 

and 4004(a). Moreover, section 4004(a) 

does not require a demonstration of 

actual impacts, merely that these units 

present an unacceptable risk of harm. 

Thus, it is sufficient for EPA to establish 

a factual record demonstrating that the 

specific location restrictions in the final 

rule are necessary for CCR units 

(landfills and surface impoundments), 

as a class, to ensure that there will be 

no reasonable probability of adverse 

effects on health or the environment. As 

discussed in greater detail in the next 

section and in Unit X of the preamble, 

the factual record supports the need for 

all of the location standards for existing 

CCR surface impoundments imposed by 

this rule. 

The Agency also rejects the suggestion 

that EPA establish the same location 

restrictions for both existing CCR 

landfills and CCR surface 

impoundments. As laid out in the 

proposal and elsewhere in this final rule 

in greater detail, the risks associated 

with CCR surface impoundments are 

substantially higher than the risks 

associated with CCR landfills, by 

approximately an order of magnitude. 

Surface impoundments are utilized by 

45 percent of coal-fired power plants 

and in 2000 accounted for disposal of 

one-third of all CCR generated.46 Unlike 

landfills, CCR surface impoundments 


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47Zillmer, M. and Fauble, P., 2004. Groundwater 

Impacts from Coal Combustion Ash Disposal Sites 

in Wisconsin. Waste & Materials Management, 

Wisconsin Department of Natural Resources, PUB– 

WA 1174 2004. 

48Cases of damage attributable to disposal of coal 

combustion residuals are summarized in the 

appendix to the preamble of the proposed rule, 75 

FR 35230–35239, June 21, 2010, and can be found 

in the RCRA Docket. 

contain slurried residuals that remain in 

contact with ponded waters until 

closure. In a statewide investigation of 

impacts to groundwater quality from 

CCR disposal sites, the Wisconsin 

Department of Natural Resources 

reported that closed sites which 

originally contained sluiced coalcombustion residuals displayed 

extremely elevated mean arsenic levels 

(as high as 364 mg/l).47 The highest 

contaminant concentrations in the study 

were associated with sluiced CCR 

residuals. In addition, releases of toxic 

contaminants to surface water and 

groundwater from mostly unlined CCR 

surface impoundments and ponds are a 

relevant factor in 34 of 40 cases of 

proven damage to the environment (as 

well as in several cases of ‘‘potential’’ 

damage to the environment) from 

mismanagement of CCR.48 In many of 

these cases, effluent discharges from the 

surface impoundments caused 

significant ecological damage to aquatic 

life in nearby streams and wetlands. In 

one case, in 2002, the structural stability 

of a CCR surface impoundment was 

directly compromised by sinkhole 

development, leading to the release of 

2.25 million gallons of CCR slurry. In 

another, an unusually weak foundation 

of ash and silt beneath a CCR surface 

impoundment (i.e., man-made unstable 

ground) was identified as one of several 

likely factors contributing to the dike 

failure that in 2008 resulted in the 

largest CCR spill in United States 

history. 

Unlike RCRA subtitle C, subtitle D 

does not explicitly authorize EPA to 

establish different standards for existing 

and new units, and Congress 

specifically intended subtitle D to 

address the risks from existing, 

abandoned ‘‘open dumps.’’ In the 

proposed rule preamble, EPA explained 

the rationale for applying these 

provisions to existing CCR surface 

impoundments, and the commenters 

have submitted nothing to rebut that 

rationale. Thus, EPA maintains its 

determination that application of the 

location standards to existing CCR 

surface impoundments is necessary to 

achieve the standard in section 4004(a). 

Absent these location restrictions, the 

risk of impacts to human health and the 

environment from releases from CCR 

units, including from the rapid and 

catastrophic destruction of CCR surface 

impoundments, sited in these sensitive 

areas would exceed acceptable levels. 

Given that the risks associated with CCR 

surface impoundments are substantially 

higher than the risks posed by CCR 

landfills, this is the appropriate 

regulatory course for existing CCR 

surface impoundments. 

In this rule, EPA is finalizing location 

restrictions that will ensure that CCR 

units are appropriately sited, that the 

structure of the CCR unit will not be 

adversely impacted by conditions at the 

site, and that overall there will be ‘‘no 

reasonable probability of harm to 

human health or the environment’’ due 

to the location of the CCR unit. EPA is 

finalizing different sets of location 

restrictions depending on whether the 

unit is a CCR landfill or CCR surface 

impoundment and whether it is an 

existing or new unit. Lateral expansions 

fall within the definitions of new units 

and are treated accordingly. These 

standards provide minimum national 

siting and performance criteria for all 

CCR units. The location restrictions 

under § 257.60 through § 257.64 

include: (1) Placement above the 

uppermost aquifer; (2) wetlands; (3) 

fault areas; (4) seismic impact zones; 

and (5) unstable areas. Each of these 

locations is generally recognized as 

having the potential to impact the 

structure of any disposal unit negatively 

and as such, increase the risks to human 

health or the environment through 

structural failures or leaching of 

contaminants into the groundwater. 

Under the final rule and as proposed, 

new CCR landfills, existing and new 

CCR surface impoundments, and all 

lateral expansions will be required to 

comply with all of the location 

restrictions. Existing CCR landfills 

however, will be subject to only two of 

the location restrictions—floodplains, 

and unstable areas. As noted in the 

proposed rule, and restated here, 

existing landfills and surface 

impoundments are already subject to 

the location standards in subpart A of 

40 CFR part 257 for floodplains, 

endangered species and surface waters. 

The final rule does not change this 

requirement, and so facilities should 

already be in compliance. The Agency 

is finalizing, as proposed, the unstable 

area location restriction for existing CCR 

landfills because the record clearly 

shows that failure of CCR units in these 

areas (e.g., due to instabilities in Karst 

terrains) have and in all likelihood 

would continue, in the absence of the 

restrictions in the final rule, to result in 

damage caused by the release of CCR 

constituents, affecting both groundwater 

and surface waters. As the Agency 

stated in the proposed rule, the impacts 

resulting from the failure of CCR units 

from location instability are of far more 

concern than any disposal capacity 

concerns resulting from the closure of 

existing CCR units in unstable areas. 

Conversely, and also consistent with 

the proposed rule, EPA is not applying 

the following location restrictions to 

existing CCR landfills: The requirement 

to construct a unit with a base located 

no less than 1.52 meters (five feet) above 

the upper limit of the uppermost 

aquifer, as well as the siting restrictions 

applicable to wetlands, fault areas, and 

seismic impact areas. Existing CCR 

landfills pose lower risks and are 

structurally less vulnerable than 

existing CCR surface impoundments. In 

addition, disposal capacity shortfalls, 

which could result if existing CCR 

landfills in these locations were 

required to close, raise greater 

environmental and public health 

concerns than the potential failure of 

the CCR landfills in these locales. 

2. Placement Above the Uppermost 

Aquifer 

Under § 257.60(a) EPA is requiring 

new CCR landfills, existing and new 

CCR surface impoundments and all 

lateral expansions to be constructed 

with a base that is located no less than 

1.52 meters (five feet) above the 

uppermost aquifer, or to demonstrate 

that there will not be an intermittent, 

recurring, or sustained hydraulic 

connection between any portion of the 

base of the CCR unit and the uppermost 

aquifer due to normal fluctuations in 

groundwater elevations (including 

groundwater elevations during the wet 

season). Existing surface impoundments 

that fail to achieve this standard must 

close. New CCR landfills, new CCR 

surface impoundments and all lateral 

expansions of existing and new CCR 

landfills and CCR surface 

impoundments cannot be constructed 

unless they meet one of these two 

standards. In response to comment, the 

Agency has modified the criteria in two 

ways. First, EPA has replaced ‘‘a base 

that is located a minimum of two feet 

above the upper limit of the natural 

water table’’ with ‘‘a base no less than 

1.52 meters (five feet) above the 

uppermost aquifer.’’ EPA received 

comment explaining that fluctuations in 

groundwater levels in many geological 

settings can exceed ten feet over the 

course of the year, and alleging that the 

proposed two foot minimum buffer 

between the base of the unit and the top 

of the water table would therefore be 

insufficiently protective. The 


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49A phenomenon usually created by the recharge 

of groundwater from a manmade structure, such as 

a surface impoundment, into a permeable geologic 

material, resulting in outward and upward 

expansion of the free water table. Mounding can 

alter groundwater flow rates and direction; 

however, the effects are usually localized and may 

be temporary, depending upon the frequency and 

duration of the surface recharge events. 

50For example, evaluations can be done to 

estimate groundwater mounding such as 

pubs.usgs.gov/sir/2010/5102/, 

www.groundwatersoftware.com/calculator_9_

commenter recommended that the 

minimum vertical separation be at least 

three to five feet from the base of the 

liner components. After additional 

research, EPA is finalizing a minimum 

buffer of five feet instead of two feet. 

EPA’s research confirmed the 

commenter’s claims. In addition, EPA 

determined that several states consider 

five feet between the base of the surface 

impoundment and the top of the 

uppermost aquifer to be the minimum 

distance that is protective of human 

health and the environment. These are 

California, Michigan, Nebraska, New 

York, West Virginia, and Wisconsin. 

The Agency has concluded from 

geographic and climatic spacing of these 

states that the hydrogeologic conditions 

within them encompass the range of 

conditions found in the United States. 

Therefore, EPA is finalizing a minimum 

buffer of five feet instead of two feet. 

EPA is also clarifying the definition of 

the natural water table. As some 

commenters noted, there are many 

factors (hydrologic and geologic 

settings, nearby pumping, etc.) that 

influence the location of the 

groundwater table making it difficult to 

determine the ‘‘natural’’ level. In 

addition, as noted, local site-specific 

hydrogeologic conditions within the 

aquifer may cause the natural 

groundwater table to exceed five feet 

and vary as much as ten feet. To account 

for the possibility of such large seasonal 

fluctuations, EPA is revising the 

definition of ‘‘uppermost aquifer’’ to 

specify that the measurement of the 

upper limit of the aquifer must be made 

at a point nearest to the natural ground 

surface to which the aquifer rises during 

the wet season. This definition of 

‘‘uppermost aquifer’’ will encompass 

large seasonal variations, and is a more 

appropriate parameter than ‘‘seasonal 

high groundwater table’’ as suggested by 

several commenters and the proposed 

‘‘natural water table’’ because it is more 

clearly defined. 

In § 257.60(a) the term uppermost 

aquifer has the same definition as under 

the general provisions of § 257.40: The 

geologic formation nearest the natural 

ground surface that is an aquifer, as well 

as lower aquifers that are hydraulically 

interconnected with this aquifer within 

the facility’s property boundary. This 

definition includes a shallow, deep, 

perched, confined or unconfined 

aquifer, provided it yields usable water. 

Although EPA originally proposed that 

all CCR surface impoundments be 

located ‘‘. . . . above the upper limit of 

the natural water table’’, the Agency is 

amending this requirement and 

replacing ‘‘water table’’ with 

‘‘uppermost aquifer’’ to make it 

consistent with the way natural 

underground water sources are 

described elsewhere in the rule. EPA 

made a second revision to the criteria 

that were originally proposed. As an 

alternative to requiring that the CCR 

units described in this section be 

constructed with a base that is located 

no less than five feet above the 

uppermost aquifer, owners and 

operators may instead demonstrate that 

there will not be an intermittent, 

recurring, or sustained hydraulic 

connection between any portion of the 

base of the CCR unit and the uppermost 

aquifer due to normal fluctuations in 

groundwater elevations (including 

groundwater elevations during the wet 

season). 

This alternative standard was 

developed in response to concerns from 

commenters that a single depth to the 

aquifer failed to account for the wide 

variations in the level of water table 

fluctuations in different regions of the 

country. For example, arid regions of 

the country, such as Arizona, under 

normal conditions generally do not 

experience the same degree of 

fluctuations in groundwater elevations 

as more temperate regions, such as 

Minnesota. Accordingly, EPA developed 

an alternative performance standard 

focused on the conditions identified in 

the damage cases and the risk 

assessment that this location criterion 

was designed to prevent: Specifically, 

where the groundwater elevation is high 

enough to intersect the base of the waste 

management unit. In such situations, 

this hydraulic connection can enhance 

the transport of contaminants of concern 

from the CCR unit into groundwater. By 

requiring owners and operators to 

ensure that these conditions do not 

occur, the alternative standard to allow 

owners and operators to account for 

situations where there are relatively 

small variations in groundwater levels 

and a buffer of five feet is not necessary. 

This will also ensure that a CCR unit 

need not address situations where an 

infrequent, unexpected event (e.g., 

hurricane) could cause a brief, 

temporary condition where the 

uppermost aquifer rises to less than the 

prescribed five feet but which would 

not in and of itself constitute a longterm threat to the aquifer. However, 

where normal fluctuations in 

groundwater elevation (including, but 

not limited to, seasonal or temporal 

variations, groundwater withdrawal, 

mounding effects,49 etc.) will result in 

the failure of the unit to meet the 

performance standard (i.e., no 

intermittent, recurring, or sustained 

hydraulic connection between the base 

of the CCR unit and the uppermost 

aquifer), the unit must close. 

In some recent damage cases, 

placement of large volumes of CCR into 

highly permeable strata in the disposal 

area promoted CCR-water interactions. 

For example, from 1995 to 2006 in Anne 

Arundel County, Maryland 4.6 million 

tons of CCR were placed directly in two 

sand and gravel quarries without a 

geomembrane liner or leachate 

collection system. Rainwater infiltration 

into exposed CCR coupled with 

groundwater-CCR interactions and the 

transmissivity characteristics of local 

strata contributed to rapid migration of 

heavy metals, including antimony, 

arsenic, cadmium, nickel, and thallium 

to residential drinking water wells 

located near the mine pits and 

significant deterioration of water quality 

as a result of placement of CCR. 

Similarly, from 1980 to 1997 in Lansing, 

Michigan, around 0.5 million tons of 

coal ash was dumped for disposal into 

a gravel pit with an elevated water table. 

A remedial investigation has established 

that groundwater mounding has 

immersed the CCR into the upper 

aquifer resulting in on-site exceedances 

of groundwater quality protection 

standards for sulfate, manganese, lead, 

selenium, lithium, and boron. 

Placement of CCR into un-engineered, 

unlined units in permeable strata has 

plainly led to adverse impacts to 

groundwater. The phrase ‘‘normal 

fluctuations’’ has been used to clarify 

that EPA does not intend for the facility 

to account for extraordinary or highly 

aberrant conditions (e.g., one-in-a 

million or ‘‘freak’’ events). Normal 

fluctuation can include those resulting 

from natural as well as anthropogenic 

sources. Natural sources that could 

affect groundwater levels include, but 

are not limited to precipitation, run-off, 

and high river levels. Anthropogenic 

sources that could affect groundwater 

levels include groundwater withdrawal, 

pumping, well(s) abandonment, and 

groundwater mounding. In satisfying 

this location restriction, it may be 

necessary for a professional engineer to 

model these effects before he can make 

the necessary certifications.50 EPA also 


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hantush_mounding.htm, and www.ndwrcdp.org/

documents/wu-ht-02-45/wuht0245_electronic.pdf. 

51See, e.g., dnr.wi.gov/topic/stormwater/

standards/gw_mounding.html. 

52See, e.g., U.S. EPA (Environmental Protection 

Agency). 2013. Groundwater Level and Well Depth 

Measurement. SESDPROC–105–R2. Region 4. 

Athens, GA. Available online at: www.epa.gov/

region4/sesd/fbqstp/Groundwater-LevelMeasurement.pdf. 

53Lemly, A.D. 2010. Op.cit. 

54Lemly, A.D.2010. Op. cit. 

55Rowe, C.L. et. al. 2002. Op. cit. 

notes that this modeling may include 

the same considerations already 

evaluated under some state programs.51

EPA expects that owners and operators 

will have sufficient information to 

determine whether their CCR unit meets 

either performance standard. Most, if 

not all, of this information would be 

information a facility would typically 

have as part of normal operations (e.g., 

the depth of the CCR unit itself), or that 

will be developed as part of 

implementing other rule requirements. 

For example, through the groundwater 

monitoring system required under 

§§ 257.90–257.98, the facility can obtain 

water level measurements in a sufficient 

number of locations (e.g., monitoring 

wells, piezometers) to use in 

determining whether they satisfy either 

performance standard. Similarly, under 

§ 257.91 a thorough characterization of 

the geology and hydrogeology of the site 

must be conducted. Finally, EPA notes 

that available technology and guidance 

are available for using existing 

groundwater monitoring wells, like 

those required under this final rule, to 

measure groundwater levels.52

3. Wetlands 

In § 257.61 of this rule, EPA is 

finalizing the regulatory text essentially 

as proposed. Specifically, EPA is 

adopting a prohibition on locating all 

CCR surface impoundments and new 

CCR landfills, as well as lateral 

expansions of existing CCR units, in 

wetlands as defined in 40 CFR 232.2, 

absent specific demonstrations made by 

the owner or operator that ensure the 

CCR unit will not degrade sensitive 

wetland ecosystems. These provisions 

place the burden of proof for these 

demonstrations directly on the owner or 

operator (the discharger). The owner or 

operator must make the results of these 

demonstrations available in the facility 

record. Failure to make any of the 

demonstrations will bar siting of the 

CCR unit in a wetland. 

In 2003, disposal of CCR in natural or 

man-made aquatic basins accounted for 

nearly one-third of all CCR land 

disposal. Historically, aquatic disposal 

of CCR has been attractive economically 

to facilities because of its lower overall 

cost relative to dry management and the 

ease of handling of residuals. During 

aquatic disposal, CCR is commonly 

piped as a slurried mixture to surface 

impoundments designed to retain the 

solids in contact with water for the life 

of the unit. Particulate solids from the 

waste stream gravitationally settle while 

clarified waters ultimately discharge 

into nearby streams and wetlands. 

The term ‘wetlands’ refers to those 

areas inundated or saturated by surface 

or groundwater at a frequency and over 

a duration sufficient to support a 

prevalence of vegetation typically 

adapted for life in saturated soil 

conditions. Wetlands include marshes, 

swamps, bogs and similar areas that are 

commonly located between open water 

and dry land. Under the CWA, wetlands 

are considered ’special aquatic sites’ 

deserving of special protection because 

of their ecologic significance. Wetlands 

are very important, fragile ecosystems 

that must be protected, and EPA has 

long identified wetlands protection as a 

high priority. 

Undisturbed, natural wetlands 

provide many benefits to society by 

improving water quality, providing 

essential breeding, rearing, and feeding 

grounds for fish and wildlife, reducing 

shoreline erosion, and absorbing 

flooding waters and pollution. Wetlands 

are also commercial source areas of 

products for human use such as timber, 

fish, and shellfish. Recreational hunters 

harvest wetland-dependent waterfowl. 

Wetland environments, however, may 

be adversely impacted by releases of 

wastes from co-located industrial 

facilities. Wetland ecosystems can be 

degraded by accidental discharges that 

can change the habitat value for fish and 

wildlife by obstructing surface water 

circulation patterns, altering substrate 

elevation, dewatering, or permanent 

flooding. 

In support of the provisions finalized 

in this rule, EPA is citing several 

damage cases, including 30 cases of 

‘‘proven’’ damage to the environment 

that involve aquatic disposal of CCR, 14 

of which involve impacts to wetlands 

from release of CCR. For example, at the 

Hyco Reservoir in Roxboro, North 

Carolina from 1966 to 1990 the lake 

received contaminated effluent from 

coal ash disposal basins that were 

authorized by National Pollutant 

Discharge Elimination System (NPDES) 

permits under the CWA. High levels of 

the trace element selenium 

bioaccumulated in aquatic food chains 

(phytoplankton), poisoning 

invertebrates and fish in the lake, 

particularly species of sport fish 

(bluegill, largemouth bass), causing 

reproductive failure and severe declines 

in fish populations in the late 1970’s 

and early 1980’s. Consequently, from 

1988–2001 the North Carolina 

Department of Health and Human 

Services (NCDHHS) issued a 

consumption restriction advisory for 

selenium contamination in fish from the 

reservoir. In 1990, a dry ash handling 

system was implemented resulting in 

lower selenium discharge and reduced 

mean selenium concentration in 

reservoir waters. As of 2005, 

concentrations of selenium in fish 

tissues remained above a toxic threshold 

even with reduced influx of selenium, 

due to migration of the element from 

contaminated sediments to benthic food 

chains. The total monetized value of 

damage can be divided among ecologic 

factors (e.g., major impacts on fish), 

recreational factors (e.g., fishing trips 

not taken), depreciated real estate 

values, aesthetic factors, and human 

health damages (e.g., losses due to stress 

and anxiety from knowing ecosystem is 

poisoned) and is estimated at $877 

million.53

Although this consideration is not 

relevant for purposes of establishing the 

minimum national criteria under RCRA 

sections 1008(a) and 4004(a), the 

rulemaking record demonstrates that the 

monetary cost of environmental damage 

from releases of CCR at surface 

impoundments could be considerable. A 

report on the environmental damage 

caused by releases of CCR at 22 sites 

estimates the total cost of poisoned fish 

and wildlife at the surface 

impoundment sites at $2.32 billion. At 

twelve of these sites the releases were 

legally permitted under the CWA. Five 

of the 22 cases were caused by 

structural failures, two resulted from an 

unpermitted discharge, and one was 

from a landfill.54 Effluent contaminated 

with coal combustion residues is 

directly linked with high loadings of 

toxic metals in the discharge areas of 

aquatic basins, where some metals 

(primarily arsenic, cadmium, 

chromium, copper, lead, and selenium) 

have accumulated in aquatic food 

chains.55 In a research overview 

(literature synthesis) on the 

environmental effects of disposal of 

CCR, Rowe et al. (2002) listed adverse 

biological responses, including 

histopathological, behavioral, and 

physiological (reproductive, energetic, 

and endocrinological) effects, that have 

been observed in some vertebrates and 

invertebrates following exposure to and 

bioaccumulation of CCR-related 

contaminants. 

Under the criteria finalized in this 

rule, in order to locate a CCR unit or 


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21364 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

lateral expansion in a wetland, the 

owner or operator must: (1) Successfully 

rebut the presumption that an 

alternative site (i.e., one that does not 

involve a wetland) is reasonably 

available for the CCR unit or lateral 

expansion; (2) show that the 

construction or operation of the unit 

will not cause or contribute to violations 

of any applicable state water quality 

standard, violate any applicable toxic 

effluent standard or prohibition, 

jeopardize the continued existence of 

endangered or threatened species or 

critical habitats, or violate any 

requirement for protection of a marine 

sanctuary; (3) show that the CCR unit or 

lateral expansion will not cause or 

contribute to significant degradation of 

wetlands; and (4) demonstrate that steps 

have been taken to attempt to achieve 

no net loss of wetlands. 

In addition to these requirements, 

other federal laws may be applicable in 

siting a CCR unit in a wetland. These 

include: Sections 401, 402, and 404 of 

the CWA; the Rivers and Harbors Act of 

1989; the National Environmental 

Policy Act; the Migratory Bird 

Conservation Act; the Fish and Wildlife 

Coordination Act; the Coastal Zone 

Management Act; the Wild and Scenic 

Rivers Act; and the National Historic 

Preservation Act. In addition, the use of 

a wetlands location for a CCR unit may 

require a permit from the U.S. Army 

Corps of Engineers. To the extent these 

are applicable, compliance with these 

RCRA criteria does not alleviate the 

need to comply with these other federal 

requirements, and the owner or operator 

of the facility remains responsible for 

ensuring compliance with all applicable 

federal and state requirements. 

The rule adopts a regulatory 

presumption that a less damaging 

alternative to locating a disposal unit in 

a wetland exists, unless the owner or 

operator can demonstrate otherwise. 

Thus, when proposing to locate a new 

facility or lateral expansion in a 

wetland, owners and operators must be 

able to demonstrate that alternative sites 

are not available and that the impact to 

wetlands is unavoidable. If this 

presumption is not clearly rebutted, 

then the CCR unit may not be sited in 

a wetland location. Such an analysis 

necessarily includes a review of 

reasonable alternatives to locating or 

laterally expanding CCR units in 

wetlands. As part of the evaluation of 

reasonable (that is, available and 

feasible) alternatives the owner or 

operator must show, and a qualified 

professional engineer must verify, that 

operation or construction of the CCR 

unit will not: (1) Violate any applicable 

state water quality standards; (2) cause 

or contribute to the violation of any 

applicable toxic effluent standard or 

prohibition; (3) cause or contribute to 

violation of any requirement for the 

protection of a marine sanctuary; and 

jeopardize the continued existence of 

endangered or threatened species or 

critical habitats. 

When evaluating the impacts of a CCR 

unit on a wetland, the owner or operator 

must ensure that the unit cannot cause 

or contribute to significant wetland 

degradation. Therefore, the owner or 

operator and the qualified professional 

engineer must: (1) Verify the integrity of 

the CCR unit, and its ability to protect 

ecological resources by addressing the 

erosion, stability, and migration 

potential of native wetland soils, and 

dredged and fill materials used to 

support the unit; (2) verify that the 

design and operation of the CCR unit 

minimizes impacts on fish, wildlife, and 

other aquatic resources and their 

habitat(s) from any release of coal 

combustion residuals; (3) evaluate the 

effects of catastrophic release of CCR to 

the wetland and the resulting impacts 

on the environment; and (4) verify that 

ecological resources in the wetland are 

sufficiently protected, including 

consideration of the volume and 

chemistry of the CCR managed in the 

unit; and any additional factors, as 

necessary. 

When a wetland functions properly, it 

provides water quality protection, fish 

and wildlife habitat, natural floodwater 

storage, and reduction in the erosive 

potential of surface water. A degraded 

wetland is less able to effectively 

perform these functions. For this reason, 

wetland degradation is as big a problem 

as outright wetland loss, though often 

more difficult to identify and quantify. 

Any change in hydrology can 

significantly alter the soil chemistry and 

plant and animal communities. The 

common hydrologic alterations that can 

lead to significant degradation in 

wetland areas include: (1) Deposition of 

fill material, including CCR; (2) drainage 

for development; (3) dredging and 

stream channelization for development; 

(4) diking and damming to form ponds 

or impoundments; (5) diversion of CCRbearing waters or other flows to or from 

wetlands; (6) addition of impervious 

surfaces in the watershed, thereby 

increasing water and CCR-bearing runoff into wetlands. These activities can 

mobilize CCR-bearing sediment; and 

once the sediment is discharged into the 

environment, toxic metals in CCR can 

become available to organisms within 

the wetland. Consequently, while the 

mere presence of one or more of these 

activities does not necessarily 

demonstrate that the CCR unit causes or 

contributes to significant degradation, 

the fact that they may do so means these 

activities need to be carefully evaluated. 

In determining what constitutes 

‘‘significant’’ degradation, it is 

important to understand that although 

wetlands are capable of absorbing 

pollutants from the surface water, there 

is a limit to their capacity to do so. For 

the purposes of this rule, the primary 

pollutants of concern are CCR-bearing 

sediment and toxic metals. Although the 

risk assessment did not assess the 

exposure and hazard to wetlands, these 

can originate from uncontrolled run-off 

from the facility, fugitive dust from 

uncovered CCR landfills and piles, and 

uncontrolled discharge from CCR units 

(landfills, waste piles, surface 

impoundments). A clear example of 

biologically significant degradation in 

wetlands is when these toxic metals 

accumulate in benthic and aquatic food 

chains as a result of uncontrolled runoff. 

Another is obrution (smothering) of 

benthic organisms from discharge(s) of 

CCR to surface water, thereby 

jeopardizing the continued existence of 

organisms or critical habitats within the 

wetland. EPA notes that there are other 

requirements established under this rule 

that can also be relevant in this context, 

as they have the potential to reduce the 

likelihood that facility operations will 

cause or contribute to significant 

wetland degradation. EPA anticipates 

that as the facility begins to implement 

all of the requirements under this rule, 

the facility will consider how 

modifications to facility operations to 

address one requirement can affect 

compliance with other requirements. 

After consideration of these factors, if 

an existing CCR unit cannot meet all of 

the requirements in paragraphs (1)–(3) 

(i.e., if it causes or contributes to 

significant degradation, or if no 

reasonable alternative to locating a new 

CCR unit in wetlands is available), the 

facility can comply with the location 

criterion by compensatory steps that 

must be taken to achieve no net loss of 

wetlands (as defined by acreage and 

function). Owners or operators must 

first take measures to avoid impacts to 

wetlands. If potential impacts cannot be 

avoided, all reasonable steps are to be 

taken to minimize such impacts to the 

extent feasible. Appropriate measures 

(for example, engineered containment 

systems to control discharge of leachate 

or surface water run-off to wetlands) 

will likely be site-specific and should be 

incorporated into the design and 

operation of the CCR unit. Any 

remaining unavoidable impacts must be 

offset, or compensated for through all 

appropriate and feasible compensatory 

mitigation actions. This compensatory 


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56Sibson, R.H. 2003. Thickness of the Seismic 

Slip Zone. Bulletin of the Seismological Society of 

America, Vol. 93, No. 3, pp. 1169–1178. 

mitigation may take the form of 

restoration (re-establishment or 

rehabilitation of a wetland), 

establishment (creation of a man-made 

wetland where one did not previously 

exist), enhancement (improving one or 

more wetland functions), and 

preservation (permanent protection of 

important wetlands through 

implementation of appropriate legal and 

physical mechanisms). The functions 

and values of a wetland will vary based 

on any number of site specific 

characteristics, including location, 

wetland type, hydrology, degradation, 

and whether it is natural or constructed 

to treat waste. Strictly limited to the 

application of the wetlands location 

requirements under this rule, any 

assessment of the nature and extent of 

mitigation required under the CCR rule 

shall consider these kinds of 

characteristics, including wetlands 

designed for the treatment of CCR. The 

Agency recognizes that the function and 

value of a particular man-made wetland 

constructed to perform a wastewater 

treatment function may present a 

unique situation that may affect both the 

determination of whether the wetland is 

significantly degraded, and the nature 

and extent of any required 

compensatory mitigation. This 

discussion refers only to the wetlandsrelated requirements of this rule and 

does not affect any requirements or 

obligations under the Federal Water 

Pollution Control Act (33 U.S.C. 1251, et 

seq.) and its implementing regulations. 

Although EPA is not finalizing an 

outright ban on siting of existing or new 

CCR units in wetlands, the Agency 

continues to believe that discharges to 

wetlands of pollutants that can be 

reasonably avoided should be avoided. 

Therefore, the amount and quality of 

compensatory mitigation may not 

substitute for avoiding and minimizing 

impacts. For purposes of this rule, EPA 

assumes CCR units that are designed to 

avoid discharge of CCR into wetlands 

have less adverse impact to the aquatic 

environment than CCR units that 

ultimately discharge such residuals in 

wetlands. 

4. Fault Areas 

In § 257.62 of this rule, EPA is 

banning the location of new CCR 

landfills, existing and new CCR surface 

impoundments, and all new lateral 

expansions within 60 meters (200 feet) 

of a fault that has had displacement in 

Holocene time, unless the owner or 

operator demonstrates that an 

alternative setback distance of less than 

60 meters (200 feet) will prevent damage 

to the structural integrity of the unit. For 

existing surface impoundments, the 

demonstration is required only if the 

unit is located closer than 60 meters 

(200 feet) to an active Holocene fault. If 

a demonstration cannot be made, the 

existing surface impoundment must 

close. These requirements have been 

adopted with only minor changes from 

the proposal, and will minimize the 

risks associated with CCR units located 

in fault areas. 

Stresses produced during earthquake 

motion can cause serious damage to 

landfill integrity via seismically 

induced ground failure and associated 

rupture of liner systems and subsequent 

damage to leachate collection systems. 

Or if the unit is unlined, seismic motion 

could disrupt landfill caps and 

foundation soils that impede migration 

of percolating water. Potential damage 

to CCR units resulting from structures 

located across a fault include surface 

breakage, cracks and fissures between 

fill and confining slopes, slope failure 

via landslides, liquefaction-induced 

lateral spreading and settlement of the 

pile, disruption of surface water and 

drainage control systems, and rupture of 

leachate collection systems. In 

impoundments, for example, interior 

dike failure and leakage, and rupture of 

multilayer liner systems would also be 

of concern. Failure of the leachate 

collection system may prevent removal 

of generated leachate, allowing it to 

pond on the liner. If the liner system is 

ruptured, this may create a pathway for 

leachate to migrate into and 

contaminate the uppermost aquifer. In 

addition to the potential damage to 

leachate collection and liner systems, 

the integrity of the landfill slopes could 

also be impaired by fault rupture, 

potentially exposing coal combustion 

residuals to surface run-off. 

The best protection is to avoid 

locating new CCR landfills and all CCR 

surface impoundments across faults and 

fault zones subject to displacement. For 

new units or lateral expansions there is 

no need to construct units in these 

areas. For existing surface 

impoundments, the Agency has been 

unable to find any way to retrofit or 

engineer the unit to be protective. A 

setback distance of 60 meters (200 feet) 

from the outermost damage zone of a 

Holocene fault will provide an adequate 

margin of safety to protect the facility 

from displacements due to surface 

faulting and any associated damage 

because 60 meters typically covers the 

zone of deformation where the ground 

may be bent or warped as a consequence 

of fault movement. By including this as 

a siting requirement for new units the 

risk of rupture of the unit, including any 

liner and leachate collection systems, 

due to surface faulting will be 

minimized. 

Observations of engineered landfill 

response during earthquake motion 

come primarily from California where 

field data have been reported from 

MSWLFs (including some meeting the 

current part 258 standards) affected by 

strong shaking from six major nearby 

earthquakes. In these large magnitude 

events (M ≥ 6.7), bedrock peak 

horizontal ground accelerations, an 

index of the intensity of earthquake 

motion, endured by the landfills were in 

excess of 0.3g. Engineered dry MSWLFs 

in California are reported to have 

performed well after strong earthquake 

motion (no documented incidence of an 

earthquake-induced release of 

contaminants harmful to human health 

or to the environment). Minor cracking 

of cover soils and breaking of vertical 

wells and headers were among the most 

common types of damage reported at 

MSWLFs subject to strong ground 

shaking. In the 1994 Northridge 

earthquake, only one landfill compliant 

with RCRA Part 258 standards 

experienced tears in a liner (a 

geomembrane liquid barrier): One tear 

23 meters in length. However, there is 

little data on seismic stability and 

performance from industrial solid waste 

landfills with geosynthetic liners or 

units with water-saturated CCR waste. 

The Agency, therefore, remains 

concerned over the potential instability 

of engineered disposal units, and 

particularly CCR surface 

impoundments, under seismic loadings. 

Accordingly, EPA is prohibiting new 

CCR landfills, CCR surface 

impoundments, and any new extensions 

from sites located within an active fault 

zone, unless the owner or operator 

makes a demonstration, certified by a 

qualified professional engineer, that an 

alternative setback distance of less than 

60 meters will prevent damage to the 

structural integrity of the unit. 

EPA is clarifying its definition of fault 

to incorporate updated technical 

information.56 Although a fault can be 

thought of as a simple planar surface 

across which there has been measurable 

displacement of one side relative to the 

other, field-based observations show 

fault architecture to often be complex. 

In the geologic literature faults 

developed in the upper crust are 

characterized as zones of brittle 

deformation composed of linked fault 

segments, with each segment composed 

of one or more subparallel, curved, or 

anastomosing fault cores nested within 


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57Bryant, W.A. and Hart, E.W., 2007. FaultRupture Zones in California. Special Publication 42 

(Interim Revision), California Division of Mines and 

Geology, Sacramento, California. 

58The seismic location standard requires a 

demonstration that a CCR disposal unit can 

withstand the stresses imposed by peak ground 

acceleration during earthquake motion. The seismic 

factor of safety is a unitless measure of strength 

calculated for fill material assuming earthquake 

conditions. It is the ratio of material shear strength 

relative to the magnitude of shear forces acting on 

the material. For a CCR disposal unit, the seismic 

location demonstration could be composed of 

numerous factor of safety calculations showing that 

the structural components of the unit have factors 

of safety greater than or equal to 1.00. 

59 Kavazanjian, E., 1999. Seismic Design of Solid 

Waste Containment Facilities. Proceedings of the 

Eight Canadian Conference on Earthquake 

Engineering Vancouver, BC, pp. 51–89. 

a damage zone. Some fault zones may 

contain broad deformational features 

such as pressure ridges and sags rather 

than clearly defined fault scarps or 

shear zones.57 Fault cores are regions of 

high strain slip that have accommodated 

most of the displacement and are 

marked by mylonites, cataclastites, and 

gouge, whereas the damage zone is 

characterized by low strain structures 

mechanically related to the growth of 

the fault zone such as small faults, 

fractures, veins and folds. To avoid 

displacement that would damage unit 

integrity, it is best to restrict new CCR 

landfills and surface impoundments, 

and all new extensions, to locations no 

less than 60 meters from the outermost 

damage zone created by an active fault. 

Fault zones can range from one meter to 

several kilometers in width. 

For purposes of this section, a fault is 

considered active if it has moved during 

Holocene time. Holocene time is 

defined as the geological epoch which 

began at the end of the Pleistocene, at 

11,700 years BP (before present), and 

continues to the present. In the field, 

evidence for Holocene activity may be 

hard to obtain. Therefore, the Agency 

cautions that faults which show no 

evidence for Holocene activity may not 

necessarily be inactive. 

To investigate active faults, EPA 

expects owners and operators of CCR 

units to follow standard engineering and 

geologic practices. Technical 

considerations include: (1) A geologic 

reconnaissance of the site to determine 

the location of active faults. Such a 

reconnaissance would include utilizing 

the seismic analysis maps and tools 

(Quaternary fault maps, earthquake 

probability maps) of the United States 

Geological Survey (USGS) Earthquake 

Hazards Program (http://

earthquake.usgs.gov/hazards/apps/); 

and (2) a site fault characterization 

within 1000 meters of a site to 

determine whether it is within 60 

meters of an active fault. Such 

characterizations would include 

subsurface exploration, including 

drilling or trenching, to locate any fault 

zones and evidence of faulting, 

trenching perpendicular to any faults or 

lineaments found within 60 meters of 

the site, and determination of the age of 

any displacements. Based on this 

information, the qualified professional 

engineer would prepare a report that 

delineates the location of any active 

(Holocene) fault, including any damage 

zones, and the associated 60 meter 

setback. To take advantage of an 

alternative setback distance of less than 

60 meters, the owner or operator must 

make a demonstration, certified by a 

qualified professional engineer, that the 

CCR landfill, surface impoundment, or 

lateral expansion has a foundation or 

base capable of providing support for 

the structure, and capable of 

withstanding hydraulic pressure 

gradients to prevent failure due to 

settlement, compression, or uplift, and 

all effects of ground motions resulting 

from at least the maximum surface 

acceleration expected from a probable 

earthquake. 

5. Seismic Impact Zones 

In § 257.63, EPA is adopting the 

provisions applicable to seismic impact 

zones, as proposed. The rule prohibits 

new CCR landfills, existing and new 

CCR surface impoundments and all 

lateral extensions from being located in 

seismic impact zones unless the owner 

or operator makes a demonstration, 

certified by a qualified professional 

engineer, that all containment 

structures, including liners, leachate 

collection systems, and surface water 

control systems, are designed to resist 

the maximum horizontal acceleration in 

lithified earth material from a probable 

earthquake. A Seismic impact zone 

means an area having a 2% or greater 

probability that the maximum expected 

horizontal acceleration, expressed as a 

percentage of the earth’s gravitational 

pull (g), will exceed 0.10 g in 50 years. 

Seismic zones, which represent areas of 

the United States with the greatest 

seismic risk, are mapped by the U.S. 

Geological Survey and readily available 

for all the U.S. (http://

earthquake.usgs.gov/hazards/apps/). 

Maximum Horizontal Acceleration in 

lithified earth material means the 

maximum expected horizontal 

acceleration at the ground surface as 

depicted on a seismic hazard map, with 

a 98% or greater probability that the 

acceleration will not be exceeded in 50 

years, or the maximum expected 

horizontal acceleration based on a sitespecific seismic risk assessment. This 

requirement translates to a 10% 

probability of exceeding the maximum 

horizontal acceleration in 250 years. 

For units located in seismic impact 

zones, as part of any demonstration, 

owners and operators should include: 

(1) A determination of the expected 

peak ground acceleration from a 

maximum strength earthquake that 

could occur in the area; (2) a 

determination of the site-specific 

seismic hazards such as soil settlement; 

and (3) a facility design that is capable 

of withstanding the peak ground 

acceleration. Seismic designs broadly 

should include a response analysis to 

quantify the demands of earthquake 

motion on facility structures (i.e., 

landfills, surface impoundments, liners, 

covers, leachate collection systems, 

surface water handling systems), 

liquefaction analyses of both waste and 

foundation soils to evaluate stability 

under seismic loading, and a slope 

stability and deformation analyses. 

Design modifications to accommodate 

seismic risks should include use of 

conservative design factors, use of 

ductile materials, built-in redundancy 

for critical system components, and 

other measures capable of mitigating the 

potential for seismic upset.58

Following trends in earthquake 

engineering, seismic design criteria for 

new CCR landfills, new CCR surface 

impoundment and all lateral expansions 

should be based on a ‘‘withstand 

without discharge’’ standard.59 EPA 

interprets the performance standard in 

this criterion (‘‘designed to resist the 

maximum horizontal acceleration in 

lithified earth material from a probable 

earthquake’’) to require any new CCR 

unit located in a seismic impact zone to 

be designed to withstand seismic 

motion from a credible earthquake 

without damage to the foundation or to 

the structures that control leachate, 

surface drainage, or erosion. In other 

words, the CCR unit must be able to 

withstand an expected earthquake 

without discharging waste or 

contaminants. The owner or operator 

must make a demonstration, certified by 

a qualified professional engineer, that 

the CCR unit has a foundation or base 

capable of providing support for the 

structure, and capable of withstanding 

hydraulic pressure gradients to prevent 

failure due to settlement, compression, 

or uplift and all effects of ground 

motions resulting from at least the 

maximum surface acceleration expected 

from a probable earthquake. In practice, 

the Agency recognizes that the CCR unit 

may sustain some limited damage 

during an earthquake, but ultimately, 

the CCR unit design must remain 


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capable of preventing harmful release of 

CCR, leachate, and contaminants both 

during and after the seismic event. 

6. Unstable Areas 

EPA laid out its rationale for these 

requirements in the proposal at 75 FR 

35201. No significant comments were 

received on either this rationale or the 

specific regulatory provisions. 

Consequently, EPA is adopting the 

regulatory text as proposed. 

Specifically, under § 257.64(a) new and 

existing CCR landfills, new and existing 

CCR surface impoundments and all 

lateral expansions are prohibited from 

sites classified as unstable areas unless 

the owner or operator makes a 

demonstration, certified by a qualified 

professional engineer, that engineering 

measures have been incorporated into 

the CCR unit’s design to ensure that the 

structural components will not be 

disrupted. EPA considers a structural 

component to include any component 

used in the construction and operation 

of CCR landfill or CCR surface 

impoundment that is necessary to 

ensure the integrity of the unit and to 

ensure that the contents will not be 

released to the environment, including 

liners, leachate collection system, 

embankments, spillways, outlets, final 

covers, inflow design flood controls 

systems. Liners and leachate collection 

systems require a firm, secure 

foundation to maintain their integrity, 

and may be disrupted as a result of 

uneven settlement induced by 

hydrocompaction. Similarly, sudden 

differential movement resulting from 

CCR placement and the consequent 

exceedance of the weight-bearing 

strength of subsurface materials in 

unstable areas can destroy liners and 

damage the unit’s structural integrity, 

resulting in catastrophic release of CCR. 

It is essential for the owner or operator 

of any CCR unit to extensively evaluate 

the adequacy of the subsurface 

foundation support for the structural 

components of the unit. Therefore, the 

Agency is making this demonstration 

mandatory for all CCR units; existing 

CCR units for which a demonstration 

cannot be made must be closed. 

EPA has adopted the following 

definitions without material change 

from the proposal: Unstable area means 

a location that is susceptible to natural 

or human-induced events or forces 

capable of impairing the integrity of 

some or all of the structural components 

responsible for preventing releases from 

a CCR unit. Natural unstable areas 

include those areas that have poor soils 

for foundations, areas susceptible to 

mass movements, and karst terrains. 

Structural components mean liners, 

leachate collection systems, final covers, 

run-on/run-off systems, and any other 

component used in the construction and 

operation of a CCR unit. Poor 

foundation conditions means those 

areas where features exist which may 

result in inadequate foundation support 

for the structural components of a CCR 

unit. Areas susceptible to mass 

movement means those areas of 

influence (i.e., areas characterized as 

having an active or substantial 

possibility of mass movement) where 

the movement of earth material at, 

beneath, or adjacent to the CCR unit, 

because of natural or man-induced 

events, results in the downslope 

transport of soil and rock material by 

means of gravitational influence. Areas 

of mass movement include, but are not 

limited to, landslides, avalanches, 

debris slides and flows, solifluction, 

block sliding, and rock fall. Karst terrain 

means an area where karst topography, 

with its characteristic erosional surface 

and subterranean features, is developed 

as the result of dissolution of limestone, 

dolomite, or other soluble rock. 

Characteristic physiographic features 

present in karst terrains include, but are 

not limited to, dolines (sinkholes), 

vertical shafts, sinking streams, caves, 

seeps, large springs, and blind valleys. 

The owner or operator must consider 

at a minimum, the following factors 

when determining whether an area is 

unstable: (1) On-site or local soil 

conditions that may result in significant 

differential settling; (2) on-site or local 

geologic or geomorphologic features; 

and (3) on-site or local human-made 

features or events (both surface and 

subsurface). To evaluate subsurface 

conditions for purposes of 

§ 257.64(c)(3), EPA considers it essential 

that the owner or operator conduct a 

geotechnical site investigation, certified 

by a qualified professional engineer, to 

identify any potential thick layers of soil 

that are soft and compressible (e.g., 

loess, unconsolidated clays, wetland 

soils), which could cause a significant 

amount of post-construction differential 

settlement of foundation soils, adjacent 

embankments, and slopes unless 

improved. In addition, it is essential 

that the investigation identify on-site or 

local soil conditions that are conducive 

to downslope movement of soil, rock, 

and/or debris (alone or mixed with 

water) under the influence of gravity. 

Local topography, surface and 

subsurface soils, surface slope angles, 

surface drainage and run-off patterns, 

seepage patterns, rock mass 

orientations, joint patterns, fissures, and 

any other landscape factors that could 

influence downslope movement should 

be identified. Anthropogenic activities 

that could induce instability include 

mining, cut and fill activities during 

construction, excessive drawdown of 

groundwater, which may cause 

excessive settlement or bearing capacity 

failure of foundation soils, and use of an 

old landfill as the foundation for a new 

landfill without verification of complete 

settlement of the underlying wastes. 

In designing a new CCR unit located 

in an unstable area, recognized and 

generally accepted good engineering 

practices dictate that a stability 

assessment should be conducted to 

prevent a destabilizing event from 

damaging the structural integrity of the 

component systems. For CCR units this 

involves three components: (1) An 

evaluation of subsurface conditions, (2) 

an analysis of slope stability, and (3) an 

examination of related design needs. In 

addition to explaining site constraints, 

identifying any soft soils, and 

recommending any appropriate ground 

improvement techniques, the 

assessment report should include a 

description of: The site, site geology; 

and investigative methodology; the 

results from all site investigations 

including subsurface exploration, field 

and laboratory tests, and test results; the 

subsurface profile, recommended 

foundation types, depths, and bearing 

capacities; the water content, grain-size 

distribution, shear strength, plasticity, 

and liquefaction potential of foundation 

soils and subsoils; and other foundation 

consolidation and settlement issues 

relevant to site development. 

In addition to assessing the ability of 

soils and rocks to serve as a foundation, 

it is essential that the report also 

include a stability assessment of 

excavated sideslopes, aboveground 

embankments or dikes, and retaining 

structures. The slope stability analyses 

are performed as part of an evaluation 

of the design configuration under all 

potential hydraulic and loading 

conditions, including conditions that 

may exist during construction of a 

lateral or vertical expansion. As part of 

any demonstration, owners and 

operators should make an assessment, 

certified by a qualified professional 

engineer, that finalized site 

embankments and slopes are able to 

maintain a stable condition. In addition 

to evaluating the potential for postconstruction differential settlement, the 

stability assessment should also 

consider seepage-induced saturation 

and softening of soils, particularly at 

CCR surface impoundments and CCR 

landfill sites that manage effluent. 

Engineering considerations for CCR 

landfills and lateral expansions located 

in unstable areas are expected to be 


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21368 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

60For examples, see Garlanger, J.E., Foundation 

Design in Florida Karst. Online presentation by 

Ardaman & Associates. http://www.ardaman.com/

foundation_design.htm. 

61The definition of hydraulic conductivity is 

being promulgated as proposed, and will mean the 

rate at which water can move through a permeable 

medium (i.e., the coefficient of permeability). 

62The terms compacted soil and compacted clay 

are used interchangeably, i.e., when referring to a 

compacted soil liner this is the same as referring to 

a compacted clay liner (CCL). 

similar to those for MSWLFs, which can 

be found in EPA’s 1993 Technical 

Manual on Solid Waste Disposal 

Facility Criteria (EPA530–R–93–017). 

For surface impoundments the relevant 

design criteria are found in the Agency’s 

1991 Technical Resource Document on 

Design, Construction and Operation of 

Hazardous and Non-Hazardous Waste 

Surface Impoundments (EPA/530/SW– 

91/054). Any stability assessment 

should consider the following: (1) The 

adequacy of the subsurface exploration 

program; (2) the liquefaction potential of 

the embankment, slopes and foundation 

soils; (3) the expected behavior of the 

embankment slopes, and foundation 

soils when they are subjected to seismic 

activity; (4) the potential for seepageinduced failure; and (5) the potential for 

differential settlement. 

For facilities in areas of karst, to 

support the demonstration required 

under the regulations, the owner or 

operator would need to evaluate the 

subsurface conditions to ensure that the 

unit is located away from the influence 

of potential sinkholes. For areas where 

the solution-weathered limestone is 

close to the surface (e.g., Florida) 

recognized and generally accepted good 

engineering practices dictate that there 

must be no conduits beneath the CCR 

unit that allow piping of groundwater 

into the karst aquifer, or shallow caves 

that could cause sudden collapse of the 

unit foundation. Where unconsolidated 

sediments cover underlying limestone, 

piping is commonly marked by 

paleosinks where sands and clays from 

the overburden have filled solution 

cavities in the underlying limestone.60

Local hydraulic gradients in paleosinks 

typically point downward. EPA 

generally expects the potential for 

sinkhole development to be minimal at 

locations in karst areas where there are 

no paleosinks, or historical record of 

sinkhole development, and where there 

are no local hydraulic gradients that 

point downward. 

In making a demonstration, it is 

important for owners and operators of 

CCR landfills and surface 

impoundments in karst areas to 

adequately characterize subsurface 

conditions. Karst hydrogeology is 

complex, since contaminant flows can 

occur along paths and networks that are 

discreet and tortuous, and groundwater 

monitoring wells must be capable of 

detecting any contaminants released 

from the CCR unit into the karst aquifer. 

Therefore, the owner or operator will 

need to ensure, with verification by a 

qualified professional engineer, that 

monitoring wells installed in 

accordance with § 257.91 will intercept 

these pathways. Verification will 

usually necessitate the use of tracers to 

track groundwater flow towards offsite 

seeps or springs from the uppermost 

aquifer beneath the facility. 

Any engineered solution employed to 

mitigate weak ground strength in karst 

areas must be able to prevent the kind 

of foundation collapse and settlement 

that could lead to sudden release to the 

environment of CCR with its toxic 

constituents and associated leachate. 

Solution cavities present at the site 

should be filled with grout or other 

suitable stiff material to avoid further 

crumbling and erosion. Where 

necessary, CCR unit foundations could 

be reinforced with engineered ground 

supports such as concrete footings that 

bridge voids. Larger caverns could be 

filled with concrete to underpin the 

CCR unit foundation by transferring 

load to the cavern floor. However, such 

engineered solutions are complex and 

costly, and the best protection is not to 

site CCR landfills and surface 

impoundments in karst areas. 

Nevertheless, this rule does not ban the 

location of CCR landfills, surface 

impoundments, or lateral extensions in 

karst areas. 

7. Closure of Existing CCR Landfills and 

Existing CCR Surface Impoundments 

The final provisions of § 257.60 

require owners or operators of an 

existing CCR surface impoundment to 

demonstrate that the unit meets the 

minimum requirements for placement 

above the uppermost aquifer (i.e., 

constructed with a base located no less 

than 1.52 meters (five feet) above the 

upper limit of the uppermost aquifer) no 

later than 42 months after the date of 

publication of this rule in the Federal 

Register. 

Owners and operators of existing CCR 

surface impoundments subject to 

§§ 257.61–257.64 of this rule and 

existing CCR landfills subject to 

§ 257.64, must complete demonstrations 

by the date corresponding to 42 months 

from publication of this rule. The 

Agency is setting the compliance 

deadline at 42 months to allow owners 

and operators time to complete the 

requisite studies (e.g., to adequately 

characterize seasonal variations in the 

elevation of the top of the uppermost 

aquifer) and to complete any 

engineering measures necessary to allow 

the CCR unit to meet the performance 

standards. If closure is warranted, it 

must be initiated no later than 48 

months from publication of this rule. 

Closure and post-closure care must be 

done in accordance with §§ 257.100– 

103; which allow certain regulatory 

flexibilities provided specific conditions 

are met. 

D. Design Criteria—Liner Design 

EPA proposed that existing CCR 

landfills without a composite liner 

could continue to operate and receive 

CCR without violating the open 

dumping prohibition. Conversely, EPA 

proposed that existing CCR surface 

impoundments would be required to 

retrofit with a composite liner system, 

as defined in the proposed rule, within 

five years of the effective date of the rule 

or to close. EPA also proposed that all 

new CCR units must be constructed 

with a composite liner and leachate 

collection and removal system. 

In the proposal, EPA defined a 

composite liner to mean a liner system 

consisting of two components; the 

upper component consisting of a 

minimum 30-mil flexible membrane 

liner (FML), and the lower component 

consisting of at least a two-foot layer of 

compacted soil with a hydraulic 

conductivity of no more than 1 × 10¥7

cm/sec.61 FML components consisting 

of high density polyethylene (HDPE) 

were required to be at least 60-mil thick; 

and the FML component was required 

to be installed in direct and uniform 

contact with the compacted soil 

component. 

EPA solicited comment on a number 

of issues, including: (1) Whether EPA 

should allow facilities to use an 

alternative design for new CCR units; (2) 

whether clay liners designed to meet a 

1 × 10¥7 cm/sec hydraulic conductivity 

might perform differently in practice 

than modeled in the risk assessment, 

including a request for specific data on 

the hydraulic conductivity of clay liners 

associated with CCR units; and (3) 

whether the effectiveness of such 

additives as organosilanes, would allow 

the use of these additives in lieu of 

composite liners. (See 75 FR 35203 and 

35222.) 62 With respect to the last two 

issues, the Agency received little 

comment. However, in response to the 

use of alternative liner designs in lieu of 

a composite liner (as defined in the 

rule), significant comment was received. 

Commenters advocated for a number of 

alternative composite liner designs, 

with a majority recommending that a 


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21369 

63Current terminology favors the use of 

geomembrane liner or GM when referring to flexible 

membrane liners or FMLs. Hereafter in the 

preamble, except when referring to specific 

comments or the proposed rule, and in the final 

rule, the Agency will use the term geomembrane 

liner or GM in place of flexible membrane liner or 

FML. 

64See proposed § 257.71 which states that an 

existing CCR surface impoundment shall be 

constructed with a composite liner and a leachate 

collection system between the upper and lower 

components of the composite liner; where a 

composite liner means a system consisting of two 

components; the upper component consisting of a 

minimum 30-mil flexible membrane liner (FML) 

and a lower component consisting of at least a twofoot layer of compacted soil with a hydraulic 

conductivity of no more than 1 × 10¥7 cm/sec. The 

FML component would be required to be installed 

in direct and uniform contact with the compacted 

soil component (see 75 FR 35243). 

65See for example comments from the states of 

Alaska (EPA–HQ–RCRA–2009–0640–06409); 

Florida (EPA–HQ–RCRA–2009–0640–06846); and 

North Carolina (EPA–HQ–RCRA–2009–0640– 

09282) available at www.regulations.gov. 

66 Geomembranes (GMs), which are flexible 

membrane liners (FMLs), are thin materials 

manufactured from polymers and reinforced with 

woven fabric or fibers which are used as hydraulic 

barriers. Resins used to manufacture geomembrane 

liners typically include high density polyethylene 

(HDPE), linear low density polyethylene (LLDPE), 

low density linear polyethlene (LDLPE), very low 

density polyethylene (VLDPE) and polyvinyl 

chloride (PVC). Geomembranes manufactured using 

HDPE are the least flexible of the geomembranes. 

67USEPA, ‘‘Assessment and Recommendations 

for Improving the Performance of Waste 

Containment Systems,’’ EPA 600/R–02/029, 

December 2002. http://nepis.epa.gov/Adobe/PDF/

P1001O83.pdf. 

68USEPA, ‘‘Assessment and Recommendations 

for Improving the Performance of Waste 

Containment Systems,’’ EPA 600/R–02/029, 

December 2002. 

69USEPA, ‘‘Guide for Industrial Waste 

Management,’’ Chapter 7 (http://www.epa.gov/osw/ 

nonhaz/industrial/guide/pdf/chap7b.pdf). 

geosynthetic clay liner (GCL) be allowed 

as an alternative to the lower 

component of the composite liner. Other 

commenters stated that GCLs alone 

should be allowed as an alternative to 

the proposed composite liner. Still 

others argued that alternative liner 

designs, such as an FML/FML 63

provided a level of performance similar 

to the proposed composite liner system 

and should be allowed. Conversely, 

there were also comments opposing the 

use of any alternative liners, claiming 

that alternatives have not been proven 

to be effective. 

EPA also received significant 

comment on the actual design of the 

composite liner system proposed by the 

Agency as it pertained to CCR surface 

impoundments (see 75 FR 35202– 

35203).64 Commenters argued that the 

proposed requirement for a leachate 

collection and removal system in a CCR 

surface impoundment was illogical 

since it would have to be constructed 

between the lower component (two feet 

of compacted soil) and upper 

component (flexible membrane liner) 

and the proposed rule specifically states 

that the flexible membrane liner 

component must be installed in direct 

and uniform contact with the 

compacted soil component. 

Commenters reasoned that the inclusion 

of a leachate collection and removal 

system between the upper and lower 

components precluded direct and 

uniform contact between the two 

components and that placing a leachate 

collection and removal system between 

the lower and upper components of a 

composite liner would compromise the 

integrity of the composite liner. With 

regard to this last point, the Agency has 

reviewed the requirements for a 

proposed composite liner system as it 

would pertain to CCR surface 

impoundments and agrees that the 

leachate collection and removal system 

requirements proposed for CCR surface 

impoundments would be 

counterproductive; EPA proposed this 

requirement in error. The integrity of 

the composite liner system is indeed 

dependent upon the direct and uniform 

contact of the upper GM component 

with the lower soil component. The 

proposed requirement for CCR surface 

impoundments to construct a leachate 

collection system between the FML and 

soil components would prevent the 

direct and uniform contact of the upper 

and lower components and, therefore, 

compromise the integrity of the 

composite liner. For this reason, EPA is 

not requiring a leachate collection and 

removal system for new surface 

impoundments or any lateral expansion 

of a CCR surface impoundment. 

While EPA agrees with those 

commenters arguing that new CCR units 

should only be installed with a 

composite liner system of some kind, 

the Agency has concluded that not all 

alternative designs for a composite liner 

system should necessarily be rejected as 

insufficiently protective. Many 

commenters provided strong and 

compelling evidence that the specific 

composite liner system described in the 

proposed rule was not always feasible or 

necessary to protect groundwater 

resources and that alternate composite 

liner designs could be equally 

protective, and may be a necessity in 

many areas of the country where soil 

with the appropriate hydraulic 

conductivity may not be available (e.g., 

Alaska).65

In re-evaluating the proposed 

requirement for a composite liner 

system, EPA was influenced by a 

number of factors.66 First, the data 

provided by commenters showing the 

performance of a GM/GCL design. 

Second, EPA’s own studies showing 

that a GM/GCL liner can be constructed 

to achieve hydraulic efficiencies in the 

range of 99 to 99.9% which meets or 

exceeds the hydraulic performance of a 

GM/compacted clay liner (CCL) 

design.67 In addition, these high 

efficiencies demonstrate that the GCL 

component of a GM/GCL composite 

liner is at least as effective in impeding 

leakage through holes in the GM 

component of the composite liner 

system as a CCL with a hydraulic 

conductivity no more than 1 × 10¥7 cm/ 

sec.68 In fact, EPA has developed 

guidance for the selection and 

installation of various types of liners 

including a GM/GCL.69 And third, EPA 

was influenced by the many comments 

arguing that a ‘‘one-size-fits all’’ 

approach to liner design stifles design 

innovation and regulatory flexibility in 

addressing site specific factors such as 

geologic or climatic conditions. These 

commenters reasoned that if EPA 

established some type of performance 

standard for composite liners, it would 

mitigate the negative impacts of a ‘‘onesize fits all’’ regulatory framework. 

1. Development of Composite Liner 

Design Criteria 

In this final rule EPA is requiring all 

new CCR units to be designed and 

constructed with a composite liner as 

specified in § 257.70. EPA is also 

providing the owner or operator with an 

option to install an alternative 

composite liner provided it meets the 

required performance standard and it is 

certified by a qualified professional 

engineer. EPA has concluded, consistent 

with many of the comments received 

and its own analysis, that an alternative 

composite liner for new CCR units is 

warranted if it can be shown to be 

equivalent to the performance of a 

composite liner and affords the same 

protections to groundwater resources as 

a composite liner. The Agency is 

promulgating this alternative option to 

provide flexibility in designing and 

constructing a protective composite 

liner system that addresses site specific 

conditions and situations. The Agency 

acknowledges that it was overly 

prescriptive by requiring one particular 

type of liner rather than relying on a 

performance standard to define the 

lower component of the composite liner. 

The overwhelming amount of data 

supporting the effectiveness of a GC/

GCL liner has convinced the Agency 

that the final rule should allow for some 

flexibility in composite liner designs. As 

such, the Agency is allowing new CCR 

units to be designed and constructed 


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70 ‘‘Assessment and Recommendations for 

Improving the Performance of Waste Containment 

Systems.’’ 

71 ‘‘Geosynthetic Clay Liners Used in Municipal 

Solid Waste Landfills,’’ http://www.epa.gov/wastes/ 

nonhaz/municipal/landfill/geosyn.pdf; 

‘‘Geosynthetic Clay Liners in Waste Containment,’’ 

http://www.epa.gov/superfund/remedytech/tsp/

download/2001_meet/prez/carson.pdf; and 

‘‘Assessment and Recommendations for Improving 

the Performance of Waste Containment Systems,’’ 

http://nepis.epa.gov/Adobe/PDF/P1001O83.pdf. 

72 ‘‘Assessment and Recommendations for 

Improving the Performance of Waste Containment 

Systems.’’ 

with an alternative composite liner, as 

described below, provided the lower 

component of the composite liner meets 

a specified performance standard that 

ensures it functions in a manner 

equivalent to the composite liner system 

defined in the rule. 

Composite liner systems installed in 

either a CCR landfill or CCR surface 

impoundment provide an effective 

hydraulic barrier by combining the 

complementary properties of the two 

different liner components. The 

geomembrane provides a highly 

impermeable layer that can maximize 

leachate collection and removal in a 

CCR landfill or minimize infiltration of 

leachate in a CCR surface 

impoundment, while the soil 

component (e.g., CCL) serves as a 

backup in the event of any leakage/

infiltration from the geomembrane 

occurs. Data indicate that alternatives to 

the lower component of the composite 

liner system (e.g., GCLs) are available 

and can perform at a level equivalent to 

a compacted soil liner, based on a 

comparison of their flow rates with two 

feet of compacted soil with a hydraulic 

conductivity of no more than 1 × 10¥7

cm/sec. 

2. Liner Designs That Would Not Meet 

the Requirements of a Composite Liner 

or Alternative Liner 

Contrary to the arguments made by 

several commenters, EPA has concluded 

that a composite liner consisting of two 

30-mil GMs (GM/GM) will not provide 

an equivalent degree of protection as a 

composite liner consisting of a GM and 

two feet of compacted soil, or an 

alternative composite liner such as a 

GM/GCL. While GMs have the 

advantages of extremely low rates of 

water permeation, the disadvantages of 

a composite liner consisting of two GMs 

include leakage through occasional GM 

imperfections and punctures, potential 

for slippage along the interface between 

the GMs, and GM embrittlement over 

time. Furthermore, a critical component 

of a composite liner is the compacted 

soil or GCL component beneath the GM 

layer that will impede the flow of liquid 

that may leak through a hole or defect 

in the GM. This added protection 

cannot be achieved using two GMs for 

the composite liner. Additionally, the 

potential exists for liquid transport 

through the GMs through holes caused 

by punctures, tears, flawed seams, etc. 

If a puncture occurs, the puncture could 

compromise both GMs and create a 

conduit for liquid flow to underlying 

permeable soil. Moreover, a liner system 

consisting of two GMs in contact with 

each other poses the risk of creating a 

slip plane that may compromise the 

stability of the disposal unit (although 

EPA acknowledges that using textured 

GMs would reduce or eliminate this 

particular risk). These data are 

documented in EPA research.70

Consistent with the previous 

determination, EPA has also determined 

that the double liner system set forth in 

Florida regulations (see Florida Rules 

62–701.400(3)(c), F.A.C) also does not 

meet the level of performance achieved 

by EPA’s composite liner system or the 

alternative liner system. While this 

double liner system provides the 

advantage of a leak detection system 

between the two GMLs, the lower 

composite liner, consisting of a 60-mil 

HDPE over six inches of soil with a 

saturated hydraulic conductivity of less 

than or equal to 1 × 10¥5 cm/sec, is not 

equivalent to a GM over two feet of 

compacted soil with a hydraulic 

conductivity of less than or equal to 1 

× 10¥7 cm/sec. To be hydraulically 

equivalent, soil with a hydraulic 

conductivity of 1 × 10¥5 cm/sec would 

need to be on the order of 100 times 

thicker than soil with a hydraulic 

conductivity of less than or equal to 1 

× 10¥7 cm/sec. Similarly, a lower 

composite liner consisting of a 60-mil 

HDPE over a GCL with a hydraulic 

conductivity not greater than 1 × 10¥7

cm/sec would require a GCL thickness 

of 24 inches to be equivalent to a GM 

over two feet of compacted soil with a 

hydraulic conductivity of less than or 

equal to 1 × 10¥7 cm/sec. 

EPA has also examined the 

performance of GCLs approved for use 

as alternatives to composite liners in 

MSWLFs.71 The EPA report titled 

‘‘Assessment and Recommendations for 

Improving the Performance of Waste 

Containment Systems,’’ 72 concluded 

that if a CCL or GCL is used alone, 

liquid migration can occur over the 

entire area of the liner that is subject to 

a hydraulic head. The report also 

concluded that in a composite liner, 

leakage will only occur at the location 

of the geomembrane penetration (e.g., 

hole, tear), and will be much slower 

than flow through an orifice due to the 

hydraulic impedance provided by the 

CCL or GCL alone. The report also 

evaluated, among other characteristics, 

the hydraulic efficiencies of a GM/GCL 

composite liner system for 28 cells at 

seven landfills. Liner hydraulic 

efficiencies were reported between 97% 

and 100%. However, potential stability 

problems were reported with GCLs 

constructed on slopes greater than 10 

H:1 V (5.7°), and GCLs may not be 

appropriate for the disposal of liquid 

wastes or sludges. The Agency is also 

concerned that GCLs, being much 

thinner than the two feet of compacted 

soil required for composite liners, may 

allow for the flow of liquids through the 

GCL at a faster rate than through two 

feet of compacted soil. Taking all of this 

information into account, the Agency 

remains unconvinced that a GCL alone 

is a viable alternative to a composite 

liner. 

3. Design Requirements 

a. Existing CCR Landfills 

As proposed, the final rule allows 

existing CCR landfills as defined in 

§ 257.54, to continue to operate without 

retrofitting with a composite liner and 

leachate collection and removal system. 

As previously discussed, given the 

volume of the material currently 

managed in CCR landfills, the potential 

for disruption in CCR disposal capacity 

if existing CCR landfills were required 

to retrofit would be significant. 

Significant disruptions in the state-wide 

solid waste management (and possibly 

power generation) are associated with 

significant risks to public health and the 

environment in their own right. EPA has 

concluded that these risks are greater 

than the risks associated with allowing 

unlined CCR landfills to continue to 

operate. Further, existing CCR landfills 

will be required to comply with the 

extensive groundwater monitoring and 

corrective action requirements, among 

others, to ensure that any groundwater 

releases from the CCR unit are identified 

and promptly remediated, which will 

significantly mitigate the risks from 

these existing units. By themselves, the 

risk assessment results and the risk 

migration from the other regulatory 

requirements in this rule would not 

support a decision to allow these CCR 

units to continue to operate on a 

national basis. But when the risks 

associated with the level of disruption 

EPA estimates to be possible from 

requiring existing CCR landfills to 

retrofit are also included, the totality of 

the evidence supports a determination 

that allowing these units to continue 

operating meets the section 4004(a) 

standard. 


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73Existing CCR surface impoundments will not 

be required, as was proposed, to retrofit to a 

composite liner or close within five years of the 

effective date of the rule (see 57 FR 35202). 

b. Existing CCR Surface Impoundments 

In a departure from the proposed rule 

and after considerable evaluation and 

analysis, the Agency is finalizing a 

provision to allow all existing CCR 

surface impoundments to remain in 

operation provided certain conditions 

are met.73 Owners or operators of 

existing CCR surface impoundments are 

required, within one year of the 

effective date of the rule, to document, 

certified by a qualified professional 

engineer, whether the unit is 

constructed with any one of the three 

liner types: (1) A liner consisting of a 

minimum of two feet of compacted soil 

with a hydraulic conductivity of no 

more than 1 × 10¥7 cm/sec; (2) a 

composite liner that meets the 

requirements of § 257.70(b); or (3) an 

alternative liner that meets the 

requirements of § 257.70(c). In some 

instances, owners or operators may have 

information readily available to 

determine if an existing CCR surface 

impoundment is constructed with one 

of the three liner types listed above. On 

the other hand, this information may 

not be readily available and may require 

an owner or operator to conduct an 

engineering evaluation to determine if 

the unit was constructed with any of the 

three liner type. Factors such as the 

availability of engineering personnel 

and weather may impede the 

engineering evaluation. Therefore, EPA 

believes that 12 months from the 

effective date, or 18 months from 

publication of the rule, is a reasonable 

amount of time to make the 

determination of whether the existing 

CCR surface impoundment was 

constructed with one of the three liner 

types described above. Existing surface 

impoundments with liners that meet the 

criteria established for any of the three 

specified liner types are considered to 

be an ‘‘existing lined CCR surface 

impoundments.’’ These existing lined 

surface impoundments can continue to 

operate until the owner or operator 

decides to initiate closure, provided the 

unit does not meet other requirements 

of the rule that independently mandate 

closure of the unit (e.g., location criteria 

(§§ 257.60–257.64) or structural 

integrity factors of safety (§ 257.73)). 

Existing unlined CCR surface 

impoundments must also cease 

receiving CCR and initiate closure if an 

owner or operator determines, at any 

point in time, as part of its groundwater 

monitoring program that the 

concentrations of one or more 

constituents listed in appendix IV to 

part 257 are detected at a statistically 

significant level above the groundwater 

protection standard established for that 

unit. EPA agrees with the many 

commenters who argued that existing 

unlined CCR surface impoundments 

should not be required to close 

prematurely if they are operating as 

designed and are complying with all of 

the requirements of the rule, including 

all groundwater protection standards. 

Taking into account the additional 

protections required under this rule 

(e.g., location restrictions, groundwater 

monitoring, corrective action, structural 

integrity criteria, inspections and 

fugitive dust controls), the Agency has 

concluded that the risks posed by 

unlined CCR surface impoundments 

that are not ‘‘leaking’’ (i.e., exceeding 

any groundwater protection standard) 

are not sufficient to warrant requiring 

these units to close. However, once a 

groundwater protection standard is 

exceeded (i.e., the unit is leaking), 

without any type of liner system in 

place, leachate will flow through the 

unit and into the environment 

unrestrained and the only corrective 

action strategy that EPA can determine 

will be effective at all sites nation-wide 

requires as its foundation the closure of 

the unit. 

EPA acknowledges that it may be 

possible at certain sites to engineer an 

alternative to closure of the unit that 

would adequately control the source of 

the contamination and would otherwise 

protect human health and the 

environment. However, the efficacy of 

those engineering solutions will 

necessarily be determined by individual 

site conditions. As previously 

discussed, the regulatory structure 

under which this rule is issued 

effectively limits the Agency’s ability to 

develop the type of requirements that 

can be individually tailored to 

accommodate particular site conditions. 

Under sections 1008(a) and 4004(a), 

EPA must establish national criteria that 

will operate effectively in the absence of 

any guaranteed regulatory oversight 

(i.e., a permitting program), to achieve 

the statutory standard of ‘‘no reasonable 

probability of adverse effects on health 

or the environment’’ at all sites subject 

to the standards. EPA was unable to 

develop a performance standard that 

would allow for alternatives to closure, 

but would also be sufficiently objective 

and precise to minimize the potential 

for abuse. There are too many factors 

that determine whether a particular 

engineering solution will meet the 

section 4004(a) standard at a particular 

site. And the risks of these units are 

simply too high. 

Conversely, existing lined surface 

impoundments that exceed their 

groundwater protection standard are in 

a better position to manage the leak 

because it is usually caused by some 

localized or specific defect in the liner 

system that can more readily be 

identified and corrected. Consequently, 

this rule is not requiring existing lined 

CCR surface impoundment to close if an 

exceedance of a groundwater protection 

standard is detected; rather the Agency 

is affording the owner or operator with 

the opportunity to rely on corrective 

action measures to bring the risks back 

to acceptable levels (i.e., control the 

source of the release and remediate the 

contamination), without mandating 

closure of the unit. 

c. New CCR Landfills and New CCR 

Surface Impoundments and All Lateral 

Expansions 

Both the CCR damage case history and 

the risk assessment clearly show the 

need for and the effectiveness of 

appropriate liners in reducing the 

potential for groundwater 

contamination at CCR landfills and CCR 

surface impoundments. Accordingly, 

EPA is finalizing liner and leachate 

collection and removal system 

requirements for new CCR landfills and 

all lateral expansions of these units. 

Similarly, EPA is finalizing liner 

requirements for new CCR surface 

impoundments and all lateral 

expansions of these units. 

Specifically, EPA is requiring new 

CCR landfills, new CCR surface 

impoundments, and all lateral 

expansions be constructed with a 

composite liner (see § 257.70). The 

composite liner must consist of two 

components; an upper component 

consisting of a minimum 30-mil 

geomembrane liner (GM), and a lower 

component consisting of at least a twofoot layer of compacted soil with a 

hydraulic conductivity of no more than 

1 × 10¥7 centimeters per second (cm/

sec). GM components consisting of high 

density polyethylene (HDPE) must be at 

least 60-mil thick and the GM or upper 

liner component must be installed in 

direct and uniform contact with the 

compacted soil or lower liner 

component 

New CCR landfills or lateral 

expansions of these units are also 

required to be constructed with a 

leachate collection and removal system 

designed to maintain less than a 30- 

centimeter depth of leachate over the 

composite liner. A leachate collection 

and removal system is not required for 

new CCR surface impoundments 


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74See for example EPA’s Composite Model for 

Leachate Migration with Transformation Products 

(EPACMTP) at http://www.epa.gov/epawaste/

nonhaz/industrial/tools/cmtp/, ‘‘Assessment and 

Recommendations for Improving the Performance 

of Waste Containment Systems.’’ Giroud, J.P., BaduTweneboah, K. and Soderman, K.L., 1997, 

‘‘Comparison of Leachate Flow Through Compacted 

Clay Liners and Geosynthetic Clay Liners in 

Landfill Liner Systems,’’ Geosynthetics 

International, Vol. 4, Nos. 3–4, pp. 391–431 (http:// 

www.geosyntheticssociety.org/Resources/Archive/

GI/src/V4I34/GI-V4-N3&4-Paper7.pdf), and ‘‘Design 

Considerations for Geosynthetic Clay Liners (GCLs) 

in Various Applications,’’ Geosynthetic Research 

Institute, January 9, 2013 (http://www.geosyntheticinstitute.org/grispecs/gcl5.pdf). 

75 ‘‘Technical Guidance Document: Quality 

Assurance and Quality Control for Waste 

Containment Systems.’’ U.S. Environmental 

Protection Agency. Risk Reduction Engineering 

Laboratory, Office of Research and Development, 

Cincinnati, OH 45268. EPA/600/R–93/182. 

September 1993. 

76Hardin, PE, Christopher D, and Perotta, PE Nick 

L. ‘‘Operations and Maintenance Guidelines for 

Coal Ash Landfills—Coal Ash Landfill are NOT the 

Same as Subtitle D Solid Waste Landfills’’. 

Presented at the 2011 World of Coal Ash 

Conference; May 9–12, 2011 in Denver, Colorado. 

http://www.flyash.info/2011/127-Hardin-2011.pdf. 

because, as previously discussed, a 

leachate collection system installed 

between a single composite liner system 

is not practicable and would 

compromise the integrity of the 

composite liner system. 

In addition, in response to comments 

on the proposed rule, EPA is allowing 

alternatives to the lower component of 

the composite liner system provided the 

flow rate through the lower component 

is no greater than the flow rate through 

two feet of compacted soil with a 

hydraulic conductivity of 1 × 10¥7 cm/ 

sec. The lower component must also be 

a recognized liner material; e.g., soil, 

clay, or GCL. Alternative composite 

liners using compacted soil or clay as 

the lower component must be 

constructed with the upper component 

in intimate contact with the lower 

component; i.e., the geomembrane must 

be installed to ensure good and uniform 

contact with the lower component. The 

hydraulic conductivity for the two feet 

of compacted soil used in the flow rate 

comparison must be no greater than 1 × 

10¥7 cm/sec. The hydraulic 

conductivity of the lower component 

must be determined using recognized 

and generally accepted engineering 

methods, for example, ASTM D5084–10, 

‘‘Standard Test Methods for 

Measurement of Hydraulic Conductivity 

of Saturated Porous Materials Using a 

Flexible Wall Permeameter,’’ ASTM 

International, West Conshohocken, PA, 

2012, DOI: 10.1520/D5084–10, 

www.astm.org for compacted soils or 

clays, or ASTM Standard D6766–12, 

‘‘Standard Test Method for Evaluation 

of Hydraulic Properties of Geosynthetic 

Clay Liners Permeated with Potentially 

Incompatible Aqueous Solutions,’’ 

ASTM International, West 

Conshohocken, PA, 2012, DOI: 10.1520/ 

D6766–12, www.astm.org for GCLs. The 

flow rate comparison for the lower 

component must be made using Darcy’s 

Law for gravity flow through porous 

media, which is an empirical law which 

states that the velocity of flow through 

porous media is directly proportional to 

the hydraulic gradient. The use of 

Darcy’s Law to calculate fluid flow 

through porous media is a wellestablished and generally accepted 

engineering methodology, and is the 

foundation for EPA’s Composite Model 

for Leachate Migration with 

Transformation Products (EPACMTP) 

and is generally recognized to evaluate 

steady state flow of liquids through soils 

and GCLs.74 EPACMTP is a subsurface 

fate and transport model EPA uses to 

simulate the impact of the release of 

constituents present in waste that is 

managed in land disposal units. 

Accordingly, the flow rate comparison 

for the lower component of alternative 

composite liner must be made using the 

following equation which is derived 

from Darcy’s Law. 

where: 

Q = flow rate, 

A = surface area of the liner, 

q = flow rate per unit area, 

k = hydraulic conductivity of the liner, 

h = hydraulic head above the liner, and 

t = thickness of the liner. 

A qualified professional engineer 

must certify that the design and 

construction of either the composite 

liner or the alternative composite liner 

meets the requirements of §§ 257.70(b) 

or (c). 

EPA has also supplemented the 

composite liner criteria for landfills 

with performance standards that 

provide more precise direction to the 

professional engineer regarding the 

‘‘recognized and generally accepted 

good engineering practices’’ that need to 

be used in the design and construction 

of composite liner systems to ensure 

that the liner system will continue to 

perform as designed. These criteria, 

which have been codified at 

§§ 257.70(b) and 257.70(c), have been 

adopted in response to comments 

requesting that EPA provide the 

professional engineers that will be 

required to certify that CCR units meet 

the requirements of the rule, with more 

precise and objective criteria. These 

criteria reflect the engineering 

specifications necessary to prevent liner 

failures resulting from improper design 

and construction and to ensure that the 

liner will continue to perform correctly. 

These provisions will ensure not only 

that the liner is properly designed and 

constructed, but also that the system 

will continue to safely perform 

throughout the landfill’s active life and 

through post closure care. The criteria 

have been adopted from the technical 

provisions proposed under the subtitle 

C provisions for CCR landfills, and are 

consistent with design requirements set 

forth for hazardous waste landfills 

regulated under part 265 of RCRA, as 

well as existing guidance and 

recognized good engineering practices 

for the design and construction of 

MSWLFs.75

Specifically, the Agency is modifying 

the composite and alternative liner 

design requirements by requiring the 

composite or alternative liner to be 

chemically compatible with the CCR 

and of adequate strength and thickness 

to prevent failure. The liner system 

must also provide appropriate shear 

strength between the two components to 

prevent sliding of the upper component. 

In addition, the Agency is requiring that 

liners be placed on an adequate 

foundation and installed to cover all 

areas that might come into contact with 

the CCR. 

For new CCR landfills, which are 

required to have a leachate collection 

and removal system designed and 

operated to maintain less than a 30 

centimeter depth of leachate, the 

Agency is also requiring, that the 

leachate collection and removal system 

be constructed of sufficient strength and 

thickness to prevent collapse from the 

pressure of the CCR and to minimize 

clogging during the active life and post 

closure care period.76

4. Vertical Expansions of New and 

Existing CCR Landfills and All Lateral 

Expansions 

In the proposed rule, EPA stated that 

CCR landfills could vertically expand 

without retrofitting, in order to alleviate 

concerns with regard to CCR disposal 

capacity in the short term. In the few 

comments to the proposed rule which 

mentioned vertical expansions of 

landfills, commenters requested that the 

Agency clarify the design standards that 

vertical expansions would have to meet. 

Information collected to date, which is 

included in the docket supporting the 

final rule, leads the Agency to conclude 

there are no issues unique to vertical 

expansions of CCR landfills that warrant 

modifications to the technical standards 


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being promulgated in this rule. 

Therefore, vertical expansions of 

existing CCR landfills are not subject to 

the provisions governing new units, but 

are subject to all applicable 

requirements for existing CCR landfills. 

To be clear however, while the location 

requirements relating to the placement 

above the water table, wetlands, fault 

areas, and seismic impact zones do not 

apply to existing CCR landfills, all of 

these restrictions apply to lateral 

expansions of existing CCR units, as 

well as new CCR units. Consequently, 

under this rule, owners or operators of 

existing CCR landfills can continue to 

vertically expand their existing facilities 

in these locations, but must comply 

with the provisions governing new units 

if they wish to laterally expand. 

5. Construction of New CCR Landfills or 

Any Lateral Expansion Over an Existing 

CCR Unit 

On August 2, 2013, EPA published a 

NODA that among other things, 

solicited comment regarding a particular 

type of CCR management unit described 

by some commenters in the proposed 

rule as ‘‘overfills’’ (see 78 FR 46940). 

Overfills are CCR landfills constructed 

over a closed CCR surface 

impoundment. As discussed in the 

NODA, in developing the proposed rule, 

EPA was not aware that CCR was 

managed in this fashion and so did not 

either evaluate this specific 

management scenario or propose 

technical requirements specifically 

tailored to this type of unit. Under the 

proposed rule, these types of units 

would need to comply with both the 

requirements applicable to the closure 

of surface impoundments or landfills, 

and with all of the technical 

requirements applicable to new 

landfills. Information collected since the 

proposal confirmed that the practice of 

constructing overfills for the disposal of 

CCR is conducted with some regularity, 

and raised questions as to whether 

overfills would be effectively regulated 

under the proposed technical 

requirements of the rule. In the NODA, 

to aid in the development of final 

technical requirements, EPA solicited 

data and information that directly 

addressed existing engineering 

guidelines or practices applicable to this 

units, as well as any regulatory 

requirements governing the siting, 

design, construction, and long-term 

protectiveness of these units for the 

disposal of CCR. 

The Agency received numerous 

comments on the NODA. The majority 

of commenters agreed that overfills are 

commonly employed to allow 

continuing use of CCR disposal sites 

and to avoid the need to develop CCR 

management units at other sites. Some 

commenters added that: (1) The 

engineering design of an overfill can 

increase the stability of the underlying 

surface impoundment or landfill; (2) the 

use of an overfill facility reduces the 

need for new infrastructure 

construction; and (3) an overfill avoids 

having to transport CCR significant 

distances for off-site disposal. 

Other commenters mentioned that 

several states had experience with 

overfills and have applied requirements 

such as liner systems, monitoring wells, 

and stormwater modeling on a case-bycase basis using best engineering 

practices. They added that overfills pose 

unique construction and operational 

issues depending on the site and the 

characteristics of the underlying unit, 

and that the construction of these units 

will therefore vary to account for these 

conditions. Commenters identified 

several issues requiring additional 

attention during design and 

construction of overfills including 

seismic and static liquefaction, 

settlement, foundation improvement, 

partial overfills, groundwater upwelling, 

groundwater monitoring, and 

wastewater infrastructure. 

Upon review of these comments and 

further evaluation, the Agency has 

concluded that while there may be 

technical issues relating to the design, 

construction, and maintenance of 

overfills, the technical standards for 

CCR landfills are sufficiently flexible 

that no modifications are necessary to 

accommodate such units. For example, 

while the design and construction of 

groundwater monitoring systems may be 

technically more challenging, the final 

standards already allow for the 

construction of a multi-unit system. The 

performance standards and technical 

specifications laid out in the technical 

criteria developed for this rule are 

equally as applicable to overfills (and as 

protective) as to other new units. In 

essence, EPA is retaining the approach 

from the proposal that overfills will 

need to comply with both the 

requirements applicable to the closure 

of surface impoundments or landfills, 

and with all of the technical 

requirements applicable to new 

landfills. Thus, overfills cannot be 

constructed unless the underlying 

foundation—i.e., the existing CCR 

surface impoundment has first been 

dewatered, capped, and completely 

closed. And because overfills are 

considered to be ‘‘new CCR landfills,’’ 

the design and construction of such 

units must comply with the technical 

requirements that address foundation 

settlement, overall and side slope 

stability, side slope and subgrade 

reinforcement, and leachate collection 

and groundwater monitoring system 

requirements, which will all need to be 

evaluated independent of the 

underlying CCR unit to ensure that the 

overfill design is environmentally 

protective. This evaluation must also be 

certified by a qualified professional 

engineer. 

Under the location standards 

applicable to new CCR units, subgrade 

soils must be capable of providing stable 

structural support to the new liner 

system. A foundation composed of 

unconsolidated materials, such as CCR 

that is susceptible to slip-plane failure, 

is an unstable area (man-made) and, 

under provisions of this rule, is 

therefore a prohibited location for new 

CCR units. The TVA Kingston ash fill 

failure was at least partly attributable to 

slip-plane failure of saturated CCR that 

made up the subgrade and foundation 

beneath the unit. 

Similarly, prudent and standard 

engineering practice for new CCR 

landfills requires that the base and side 

slopes of the overlying CCR landfill be 

able to maintain the structural integrity 

of the unit. If necessary, the subgrade 

should be reinforced with a geotextile 

fabric, or otherwise improved, to 

stabilize existing CCR in the underlying 

unit and to minimize tensile strain in 

the liner system. Slopes should be 

reinforced to prevent downhill sliding 

and to protect the leachate drainage 

system. 

EPA is aware from comments that at 

least one facility is consolidating wet 

CCR in an active CCR surface 

impoundment through placement of dry 

ash over the wet CCR, and thereby 

converting the impoundment to a dry 

landfill, without stabilizing the CCR in 

the unit or capping the unit. This 

practice will no longer be permitted 

under the final rule criteria. Although 

no modifications were determined to be 

necessary to the individual technical 

criteria, EPA has added specific 

provisions that clarify the status of 

overfills, and clearly prohibit 

construction of a CCR landfill over a 

CCR surface impoundment unless the 

CCR in the underlying unit has first 

been dewatered and the unit is capped 

and completely closed. Dewatering, 

capping and closure of the underlying 

CCR unit prior to construction of the 

overlying CCR landfill renders the CCR 

overfill less susceptible to slip-plane 

failure. Conversion of an impoundment 

to a landfill without these measures 

involves a complex construction process 

that is highly site specific; EPA was 

unable to develop sufficiently objective 

performance standards that could be 


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77 In the proposed rule under proposed § 257.71— 

Design criteria for existing CCR surface 

impoundments, the Agency only required the 

hazard potential classification for which the facility 

is designed and a detailed explanation of the basis 

for the classification (§ 257.71(d)(1)) ‘‘as may be 

available’’ (§ 257.71(d)). Similarly the computed 

minimum factor of safety for slope stability of the 

CCR retaining structure(s) and the analyses used in 

the determination (§ 257.71(d)(11) ‘‘as may be 

available’’ (§ 257.71(d)). 

independently verified outside of a 

supervised permit program. Because 

this rule is self-implementing EPA is, 

therefore, prohibiting construction of 

new CCR landfills over operational CCR 

surface impoundments to prevent the 

creation of structurally unstable units 

that could lead to catastrophic failures. 

E. Design Criteria—Structural Integrity 

Under the design criteria 

requirements, EPA proposed to establish 

structural stability standards for existing 

and new CCR surface impoundments 

and lateral expansions of these units 

based on a combination of existing 

federal programs and requirements 

applicable to dam safety. The proposed 

rule was largely based on the 

requirements promulgated for coal 

slurry impoundments regulated by the 

MSHA at 30 CFR 77.216. (See 75 FR 

35176.) EPA also developed aspects of 

the proposal based on the USACE and 

FEMA’s dam safety programs. 

Consistent with the MSHA 

requirements, EPA proposed that 

existing and new CCR surface 

impoundments that could impound 

CCR to an elevation of five feet or more 

above the upstream toe of the structure 

and have a storage volume of 20 acre 

feet or more, or that impound CCR to an 

elevation of 20 feet or more above the 

upstream toe of the structure would be 

required to provide detailed information 

on the history of construction of the 

existing CCR surface impoundment and 

to meet certain performance standards. 

Specifically, facilities would need to (1) 

develop plans for the design, 

construction, and maintenance of 

existing impoundments, (2) conduct 

periodic inspections by trained 

personnel knowledgeable in 

impoundment design and safety, and (3) 

provide an annual certification by an 

independent registered professional 

engineer that all construction, 

operation, and maintenance of 

impoundments is in accordance with 

the approved plan. 

EPA also proposed to require the 

facility to obtain certification from a 

professional engineer that the ‘‘design of 

the CCR surface impoundment is in 

accordance with current, prudent 

engineering practices for the maximum 

volume of CCR slurry and CCR 

wastewater which can be impounded 

therein and for the passage of run-off 

from the design storm which exceeds 

the capacity of the CCR surface 

impoundment. To support this 

performance standard, EPA proposed to 

require the facility to conduct specific 

analyses, and to provide information on 

critical structures. This includes the 

proposed requirements to compute the 

minimum factor of safety for slope 

stability of the retaining structures of 

the unit, including the methods and 

calculations used to determine each 

factor of safety, and to provide 

information on the physical and 

engineering properties of the 

foundations of the CCR surface 

impoundment, any foundation 

improvements, drainage provisions, 

spillways, diversion ditches, outlet 

instrument locations and slope 

protections, and area capacity curves. 

EPA proposed to require more extensive 

information from new CCR surface 

impoundments addressing the design, 

construction, and maintenance of the 

new CCR unit, recognizing that such 

information may not be available for 

existing units.77 In addition, EPA 

proposed to require existing and new 

CCR surface impoundments of a 

specified size to calculate and report the 

hazard potential classification of the 

unit. Finally, EPA proposed that any 

CCR surface impoundments classified as 

having a high or significant hazard 

potential, as certified by an independent 

registered professional engineer, be 

required to develop and maintain an 

Emergency Action Plan defining the 

responsible persons and actions to be 

taken in the event of a dam safety 

emergency. 

The Agency solicited comment on a 

number of issues relating to the 

proposed structural stability 

requirements. In particular, the Agency 

solicited comment on the scope of these 

requirements and whether they should 

apply to all CCR surface impoundments 

regardless of height and/or storage 

volume or whether EPA should adopt, 

as proposed and consistent with the 

MSHA requirements, the size cut-off 

described in the proposed rule; i.e., 

impounding CCR to an elevation of five 

feet or more above the upstream toe of 

the structure and have a storage volume 

of 20 acre feet or more, or impounding 

CCR to an elevation of 20 feet or more 

above the upstream toe of the structure. 

EPA also solicited comment on 

several alternative strategies for 

regulating the structural stability of CCR 

surface impoundments in lieu of 

regulation under RCRA subtitle D. The 

first alternative involved using NPDES 

permits rather than RCRA regulations to 

address dam safety and structural 

integrity. The second strategy would 

eliminate the structural integrity 

requirements from the RCRA subtitle D 

rule and, instead, have EPA establish 

and fund a program for conducting 

annual (or at some other frequency) 

structural stability assessments of CCR 

surface impoundments having a ‘‘high’’ 

or ‘‘significant’’ hazard potential rating 

as defined by criteria developed by the 

USACE for the NID. EPA would conduct 

these assessments and, using 

appropriate authorities already available 

under RCRA, CERCLA, and/or the Clean 

Water Act, would require facilities to 

respond to issues identified with their 

CCR surface impoundments. The 

rationale behind this suggested 

approach was that annual inspections 

would be far more cost effective than 

the phase-out of CCR surface 

impoundments—approximately $3.4 

million annually for annual 

assessments, as compared to the $876 

million annual cost of a rule that also 

phased out CCR. EPA also solicited 

comments on the effectiveness of this 

approach in ensuring the structural 

integrity of CCR surface impoundments. 

(See for example: 75 FR at 35176, 

35223.) 

On October 21, 2010, EPA published 

a NODA announcing that EPA intended 

to consider the information that had 

been developed through the Agency’s 

Assessment Program as part of the CCR 

rulemaking. The NODA described the 

Assessment Program, and solicited 

comment on ‘‘the extent to which both 

the CCR surface impoundment 

information collection request responses 

and assessment materials on the 

structural integrity of these 

impoundments should be factored into 

EPA’s final rule on the Disposal of Coal 

Combustion Residuals from Electric 

Utilities.’’ (See 75 FR 35128.) This 

included the responses to information 

requests that EPA originally sent to 

electric utilities, as well as reports and 

materials related to the site assessments 

developed through the Assessment 

Program. At that time, EPA had 

completed the assessments and the final 

reports for 53 units. On August 2, 2013, 

EPA published another NODA soliciting 

public comment on the additional 

assessments that had been completed 

since the 2010 NODA. In all, this 

included draft and final reports for a 

total of 522 units and 209 facilities. EPA 

again solicited comment on the extent to 

which this information should be taken 

into account as part of this rulemaking. 

EPA received numerous comments on 

the proposed structural stability 

requirements. Many of these fell within 

two general areas: (1) EPA’s approach of 


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78See: Federal Guidelines for Dam Safety: Hazard 

Potential Classification for Dams, Federal 

Emergency Management Agency (‘‘FEMA’’) 

(reprinted January 2004). Under the FEMA dam 

safety classification system, a ‘‘low hazard potential 

classification’’ means that failure or mis-operation 

of the impoundment ‘‘results in no probable loss of 

human life and low economic and/or 

environmental losses. Losses are principally limited 

to owner’s property.’’ 

79See e.g., New Mexico Rules and Regulations 

Governing Dam Design, Construction and Dam 

Safety (e.g., requiring dam site security, an 

instrumentation plan for monitoring and evaluating 

dam performance, and an operation and 

maintenance manual and emergency action plan 

only for dams with a high or significant hazard 

potential); see also NMAC sections 19.25.12.11(G)– 

(J). 

establishing the structural stability 

requirements, along with EPA’s 

proposed reliance on MSHA’s size 

thresholds to determine the 

applicability for the majority of 

structural stability requirements; and (2) 

the level of detail laid out in the 

technical criteria themselves. 

With respect to the overall regulatory 

approach, the majority supported both 

the concept of structural stability 

requirements for existing and new CCR 

surface impoundments, and the 

adoption of the MSHA size threshold for 

complying with the majority of the 

structural stability requirements. EPA 

received comments from a number of 

state entities (the Association of State 

Dam Safety Officials (ASDSO) and the 

Association of State and Territorial 

Solid Waste Management Officials 

(ASTSWMO)) suggesting that EPA 

incorporate federal dam safety 

guidelines rather than rely solely on 

MSHA’s dam safety guidelines. 

Commenters were concerned that the 

MSHA regulations ‘‘only exist to protect 

miners on mine property, and not the 

downstream public.’’ They urged that 

any EPA regulation also include 

consideration of hazards to the 

downstream public. These commenters 

also requested that EPA ‘‘incorporate 

specific safety standards consistent with 

the Federal Guidelines for Dam Safety,’’ 

referencing standards contained in 

FEMA documents 93, 333, 64, 94 and 

65. 

Little support was expressed for the 

alternative strategies presented in the 

proposal for addressing structural 

stability. Some comments were received 

suggesting additional alternatives. One 

commenter suggested that EPA consider 

limiting the volume of ‘‘primary 

containment ponds’’ to 10 acre-feet, 

reasoning that this provision would 

likely eliminate much of the concern 

regarding catastrophic failures, like 

TVA, and actually reduce the amount of 

slurry released in the event of a 

structural failure. Other commenters 

argued that EPA should limit the 

structural requirements to CCR surface 

impoundments both meeting the 

proposed size threshold and having a 

hazard potential classification of ‘‘high’’ 

or ‘‘significant’’ hazard potential rating 

based on FEMA’s criteria for dam 

safety.78 Commenters argued that a 

failure of a CCR surface impoundment 

with a ‘‘low hazard potential 

classification’’ posed only a low risk for 

on-site economic or environmental 

losses and would avoid the imposition 

of costly, arbitrary and unnecessary 

regulatory burdens on the owner or 

operator. In addition, commenters 

contended that this regulatory approach 

would be consistent with many state 

dam regulatory programs that apply 

dam integrity standards only to ‘‘high’’ 

or ‘‘significant’’ potential hazard 

facilities and would promote 

consistency with existing state 

controls.79 Several commenters also 

suggested that EPA consider adding 

regulatory language or preamble 

discussion to assist owners or operators 

of CCR surface impoundments in 

interpreting the specific technical 

requirements in the regulation. 

EPA disagrees with the suggestion 

that the Agency finalize a mandatory 

size limitation for operating CCR surface 

impoundments. While limiting the 

volume of CCR surface impoundments 

to ten acre-feet would limit the volume 

of CCR released in the event of a 

structural failure, limiting the size of 

CCR surface impoundments to 10 acrefeet may not always be practicable; nor 

does EPA believe that such a restriction 

is truly necessary to ensure that the 

section 4004(a) standard will be met. 

Many CCR surface impoundments are 

much larger than ten acre-feet and have 

been operating for many years without 

a structural failure. While EPA 

acknowledges that this fact in no way 

guarantees that a failure will not occur, 

the Agency is convinced that the 

implementation of all of the combined 

regulatory requirements in this rule 

(e.g., location criteria, structural 

integrity, inflow design flood controls 

and inspection requirements) provides 

the necessary safeguards that will 

ensure that CCR surface impoundments 

are designed, constructed, operated, and 

maintained to minimize the risks 

associated with a catastrophic release of 

impounded CCR due to structural 

failure. While limiting the size of CCR 

surface impoundments will reduce risks 

because there will be a lower volume of 

waste in the unit, the Agency is not 

convinced that, in practice, such a 

requirement would meaningfully reduce 

the risks at many facilities. EPA expects 

that such a restriction would only cause 

facilities to construct either several 

small units or a multi-unit system. 

Failure of one unit can lead to 

progressive failure of other units in the 

system, and thus, ultimately this may 

not reduce the total volume of waste 

that could be released into the 

environment. EPA also disagrees that 

structural stability requirements should 

only apply to ‘‘high’’ or ‘‘significant’’ 

potential hazard facilities. Similarly, 

EPA disagrees with commenters that 

structural integrity requirements should 

only apply to owners or operators of 

CCR surface impoundments that both 

meet the specified size criteria and have 

either a high hazard or significant 

hazard potential classification. Even for 

CCR units with a low hazard potential 

classification, EPA is still concerned 

with the risk to human health and the 

environment from any structural failure 

of a CCR unit. As discussed previously 

in Unit VI.C of this document, the 

environmental effects of the failure of 

even a low hazard potential 

impoundment can still be significant, 

given the size of these units, the nature 

of the material in the unit, and the 

potential volumes that could be 

released. Contamination of surface 

waters and groundwater resources is 

still a significant threat when CCR units 

of this size fail, irrespective of the lower 

likelihood that a release will affect 

human health, as reflected in the low 

hazard potential classification. 

Consequently, one focus of this rule is 

preventing any release, catastrophic or 

otherwise, of CCR to the environment, 

and limiting all structural stability 

requirements commenters suggested 

would be inconsistent with this goal. 

The Agency agrees that the final 

regulation should incorporate 

provisions that address the hazards to 

the downstream public. Accordingly, 

the final rule incorporates a number of 

provisions consistent with the FEMA 

Guidelines, including a requirement 

that owners and operators know each 

CCR unit’s hazard potential 

classification, as this is part of owners 

and operators’ responsibility to actively 

ensure the integrity of their CCR unit(s) 

and that their operations do not 

endanger human health or the 

environment. EPA also agrees that the 

requirements should be differentiated 

based on the potential severity of the 

consequence posed by the unit’s failure, 

and therefore the hazard potential can 

be relevant in determining the 

stringency of particular requirements. 

However, the hazard potential is, at 

best, only an indicator of the potential 

damage that may be incurred from the 


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80For example, EPA relied on hazard potential to 

trigger the requirement for an Emergency Action 

Plan, which will identify the actions necessary to 

minimize damage to life and property. As damage 

to life and property are the factors directly 

addressed in hazard potential classification, 

reliance on the classification is an appropriate 

determinant for this requirement. 

structural failure of the unit, and so EPA 

has generally not relied on hazard 

potential as the sole basis for 

determining the structural integrity 

requirements that are necessary for a 

CCR unit.80 Although the hazard 

potential classification can serve as a 

proxy for the amount of water and CCR 

that could potentially be released to the 

environment in the event of a CCR 

surface impoundment failure, the 

amount of water and CCR potentially 

released is more directly correlated to 

the actual height and storage volume of 

the CCR surface impoundment. In 

addition, it is widely recognized that the 

hazard potential classification of an 

individual unit can often fail to 

encompass the overall magnitude of a 

release on human health and the 

environment. CCR surface 

impoundments can frequently be part of 

a facility’s run-off system that is 

responsible for routing surface waters to 

a drainage basin or watershed. As 

previously discussed, the failure of a 

CCR unit that is part of such a system 

has the potential to inundate 

downstream surface water units and 

water bodies, resulting in progressive 

failures of other units, including other 

CCR surface impoundments at the 

facility, which in turn can have a much 

greater environmental impact than the 

failure of just the one unit for which a 

hazard potential classification was 

made. Using a ‘‘height and/or volume’’ 

threshold to determine the applicability 

of the structural integrity criteria 

ensures that CCR units with the 

potential to cause these progressive 

failures in downstream surface water 

management units are appropriately 

overseen and regulated. CCR surface 

impoundments exceeding a specified 

height and/or capacity threshold also 

pose a higher degree of risk of release 

of CCR to the environment than other 

types of CCR surface impoundments 

(e.g., incised or ‘‘small’’ CCR units). For 

all of these reasons, the size of the CCR 

unit, rather than the hazard potential 

classification, is the best indicator of 

potential severity of release of CCR to 

the environment and should therefore 

be the primary basis on which structural 

integrity criteria are applied. As such, 

EPA is promulgating, as proposed, a 

regulatory strategy that establishes some 

requirements for all CCR surface 

impoundments, but relies primarily on 

size as the basis for determining the 

majority of the specific technical criteria 

for minimizing risk from structural 

failure. 

Regarding the second major issue 

presented in the comments, as noted 

previously, EPA received comments 

requesting the Agency to provide either 

more specific regulatory language or 

further guidance in the preamble, so 

that parties could certify that the CCR 

surface impoundment met the rule’s 

overall performance standard. 

Commenters contended that guidance 

would be particularly critical if EPA did 

not establish more specific technical 

criteria, as owners or operators will be 

vulnerable to lawsuits for noncompliance. In addition, state officials 

requested that EPA adopt more specific 

standards consistent with those adopted 

under FEMA’s Federal Guidelines for 

Dam Safety. As discussed throughout 

this section in more detail, EPA has 

adopted clarifications to the regulation, 

particularly in the sections on structural 

stability and safety factors, to more 

precisely lay out the specific technical 

standards that are considered to be the 

‘‘generally accepted and recognized 

good engineering practices’’ that must 

be met. EPA relied extensively on 

existing MSHA requirements, FEMA’s 

Federal Guidelines for Dam Safety, and 

guidance issued by the U.S. Army Corps 

of Engineers, as they were applied 

throughout EPA’s Assessment Program, 

to supplement the technical detail 

originally contained in the proposed 

rule. EPA has also modified the criteria, 

where necessary, so they better reflect 

the information and experience 

developed through the Assessment 

Program, e.g., the engineering criteria 

used to evaluate the CCR surface 

impoundments and to make 

recommendations to improve the 

structural stability of the units. 

In this rule, the Agency is finalizing 

structural integrity criteria to ensure 

that CCR surface impoundments are 

designed, constructed, operated, and 

maintained in a manner that ensures the 

structural integrity of the CCR surface 

impoundment throughout its active life 

(i.e., through closure of the CCR unit), 

detects actual or potential releases of 

CCR as early as practicable, and 

prevents catastrophic failures. Many of 

the requirements have been adopted 

without revision from the proposed rule 

for some requirements, however, as 

noted EPA has provided additional 

language to clarify the final regulation. 

These clarifications have been made in 

response to comments urging EPA to 

finalize regulatory requirements that 

were more precise or sufficiently 

objective (i.e., a specific standard of 

performance) to allow a qualified 

professional engineer to reasonably 

certify that the requirements of the rule 

have been met. These specific regulatory 

clarifications are discussed throughout 

this section. 

A further change is that the final rule 

requires facilities to periodically 

reassess several elements of the 

structural integrity performance 

standards (i.e., re-assess every five 

years). Finally, in contrast to the 

programs established by MSHA and 

FEMA, the final rule establishes certain 

minimum requirements for all CCR 

surface impoundments. This is based on 

the fact that, unlike the dams regulated 

under other federal programs, the 

material in all CCR units is harmful, so 

even small releases can present 

environmental and human health 

concerns. But the majority of the 

structural integrity requirements vary 

depending on whether the CCR surface 

impoundment or lateral expansion 

exceeds particular size thresholds. The 

rulemaking record clearly demonstrates 

that these larger CCR surface 

impoundments present a greater risk of 

catastrophic failure, and therefore 

require a more robust set of regulatory 

requirements to ensure their continued 

structural integrity. The final rule’s 

implementation of a size threshold for 

structural integrity requirements is 

consistent with the approach taken by 

the majority of dam safety programs and 

regulation. 

These modifications are being made 

to better reflect the protections 

necessary to ensure that: (1) Structural 

integrity is maintained throughout the 

operational life of a CCR unit; and (2) 

the risk of catastrophic failure is 

minimized. The changes being made in 

this rule have been directly influenced 

by comments received, the observations 

and the conclusions drawn from EPA’s 

Assessment Program, and the 

recommendations made by both MSHA 

and FEMA regarding dam safety. They 

are also generally consistent with the 

regulatory requirements of many other 

state and other federal agencies 

regulating dam safety. 

1. Overview of Technical Criteria 

Except for incised units, owners or 

operators of all existing and new CCR 

surface impoundments and any lateral 

expansion of these CCR units are 

required to: (1) Place a permanent 

identification marker on or immediately 

adjacent to the CCR units with the name 

associated with the CCR unit and the 

name of the owner or operator of the 

CCR unit; (2) conduct an initial hazard 

potential assessment to determine the 

current hazard potential classification of 


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81Height means the vertical measurement from 

the downstream toe of the CCR surface 

impoundment at its lowest point to the lowest 

elevation of the crest of the CCR surface 

impoundment. 

82 Incised CCR surface impoundments are not 

required to perform a hazard potential classification 

assessment because hazard potential classifications 

are based on the failure of a dam, diked surface 

impoundment, or other water-retaining structure 

and the adverse incremental impacts that may 

result from the failure. Because incised CCR surface 

impoundments, as defined in this rule, do not have 

a diked portion which may fail, the incised CCR 

surface impoundment cannot have a hazard 

potential classification. This final rule covers CCR 

surface impoundment failures and releases due to 

other potential failure modes (i.e., which do not 

pose an immediate catastrophic threat to human 

health or the environment), such as a release 

through the liner of the unit or through failure of 

underlying structures, in the location restrictions, 

design criteria, and operating criteria of the rule. 

83See: Federal Guidelines for Dam Safety: Hazard 

Potential Classification for Dams, Federal 

Emergency Management Agency (‘‘FEMA’’) 

(reprinted January 2004). Under the FEMA dam 

safety classification system, a ‘‘low hazard potential 

classification’’ means that failure or mis-operation 

of the impoundment ‘‘results in no probable loss of 

human life and low economic and/or 

environmental losses. Losses are principally limited 

to owner’s property.’’ 

the CCR unit; (3) conduct periodic (i.e., 

every five years) hazard potential reassessments; (4) develop an Emergency 

Action Plan (EAP) if the hazard 

potential classification of the CCR unit 

is classified as either a high- or 

significant hazard potential; and (5) 

maintain the CCR unit with vegetated 

slopes or other forms of slope 

protection. 

Owners or operators of CCR surface 

impoundments that either have a height 

of five feet or more and a storage volume 

of 20 acre feet or more, or a height of 

20 feet or more are required to comply 

with the following additional structural 

integrity criteria: (1) Document the 

design and construction of the CCR 

surface impoundment; (2) conduct an 

initial structural stability assessment; (3) 

conduct an initial safety factor 

assessment; and (4) conduct periodic 

(not to exceed five years) structural 

stability and safety factor assessments.81

Owners and operators of CCR units that 

fail to make the safety factor assessment 

or fail to meet the factors of safety 

specified in the rule must stop placing 

CCR in the unit and initiate closure. 

The structural integrity requirements 

of the final rule require the compilation 

of construction history of the existing 

CCR surface impoundment within one 

year of the effective date of the rule. 

Within two months of the effective 

date of the rule, the structural integrity 

requirements (§ 257.73) state that the 

owner or operator must install a 

permanent marker on the existing CCR 

surface impoundment. This timeframe 

is being promulgated as proposed, as 

EPA did not receive comments on the 

timeframe for installation of a 

permanent marker. 

2. Structural Integrity Requirements 

Applicable to All CCR Surface 

Impoundments 

a. Hazard Potential Classification 

Assessments 

A hazard potential classification 

provides an indication of the potential 

for danger to life, development, or the 

environment in the event of a release of 

CCR from a surface impoundment. In 

this rule, an owner or operator of any 

existing or new CCR surface 

impoundment or any lateral expansion 

of a CCR surface impoundment must 

determine which of the following 

hazard potential classifications 

characterizes their particular CCR 

unit.82 These classifications are: a high 

hazard potential CCR surface 

impoundment, a significant hazard 

potential CCR surface impoundment; 

and a low hazard potential CCR surface 

impoundment and are defined as 

follows: 

• High hazard potential CCR surface 

impoundment means a diked surface 

impoundment where failure or misoperation will probably cause loss of 

human life. 

• Significant hazard potential CCR 

surface impoundment means a diked 

surface impoundment where failure or 

mis-operation results in no probable 

loss of human life, but can cause 

economic loss, environmental damage, 

disruption of lifeline facilities, or 

impact other concerns. 

• Low hazard potential CCR surface 

impoundment means a diked surface 

impoundment where failure or misoperation results in no probable loss of 

life and low economic and/or 

environmental losses. Losses are 

principally limited to the surface 

impoundment’s owner’s property. 

Owners and operators of all CCR 

surface impoundments must determine 

each unit’s hazard potential 

classification through a hazard potential 

classification assessment. Hazard 

potential classification assessments 

must be certified by a qualified 

professional engineer and 

documentation must be provided that 

supports the basis for the current hazard 

potential rating. An initial hazard 

potential assessment must be conducted 

within one year of the effective date of 

the rule for existing units and prior to 

the initial receipt of CCR in the unit for 

new units or lateral expansions. Hazard 

potential classifications, structural 

stability assessments, and safety factor 

assessments require significant planning 

and coordination, such as detailed sitework and investigations, modeling and 

analysis, design and construction 

planning and implementation, and postconstruction investigation. Many of 

these efforts take several months to 

complete, compounded by the fact that 

much of the work cannot be completed 

in cold-weather or heavy-rain seasons. 

As commenters noted, it is imperative 

that the owner or operator maintain a 

current assessment of a unit’s hazard 

potential classification, rather than 

develop a single one-time classification 

‘‘for which the facility was designed.’’ 

(See proposed § 257.71(d)(10).) 

Moreover, FEMA recommends that a 

unit’s hazard potential classification 

should be reviewed no less frequently 

than every five years in order to take 

into account changes in the factors that 

are the basis for which a hazard 

potential classification is made (e.g., 

changed reservoir or downstream 

development).83 Based on this 

information, EPA determined that a 

periodic reassessment of a CCR surface 

impoundment’s hazard potential 

classification is a necessary component 

in maintaining the accuracy of the unit’s 

hazard potential classification, as well 

as the overall safety of the unit. 

Consequently, EPA is requiring the 

owner or operator of a CCR surface 

impoundment to reassess the hazard 

potential classifications of their CCR 

unit and to have that classification, 

certified by a qualified professional 

engineer, at least every five years. 

EPA has continued to rely on FEMA 

requirements as the basis for general 

CCR surface impoundment safety 

requirements, e.g., inflow design flood 

selection, inspection criteria, earthquake 

analyses and design for several reasons: 

(1) Structural failure risks for CCR 

surface impoundments are similar to the 

risks from the larger dam universe for 

which FEMA intends its guidance; and 

(2) risks to downstream development 

from CCR surface impoundment failures 

are equal or similar to those presented 

by other types of dams’ failures. 

In this rule, hazard potential 

classifications define the consequences 

in the event of a failure of a CCR surface 

impoundment. The classification is 

separate from the structural stability of 

a CCR unit or the likelihood of the 

impoundment failing. A surface 

impoundment that meets or exceeds all 

of the structural stability criteria and 

safety factors of this rule would still be 

classified as ‘‘high hazard potential’’ if, 

in the event of failure, loss of life would 

be likely to occur. 


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84A high-hazard potential impoundment, for 

example, must be designed with sufficient spillway 

capacity to manage flow from the probable 

maximum flood, whereas a low hazard potential 

unit need only account for a 100 year flood. 

85See: ‘‘Federal Guidelines for Dam Safety: 

Emergency Action Planning for Dams,’’ FEMA 64/ 

July 2013.A. 

The hazard potential classification of 

the CCR surface impoundments is an 

essential element in determining how to 

properly design, construct, operate, and 

maintain a CCR surface impoundment. 

As such, the final rule bases the 

stringency of some technical 

requirements, in part, on the potential 

for adverse impacts on the failure of the 

CCR unit, as quantified by the hazard 

potential classification of this rule. 

Specifically, the requirements become 

more stringent as the potential for loss 

of life and/or property damage 

increases. This is reflected in both the 

criteria established under the structural 

stability assessments, .e.g., where the 

combined capacity of all spillways must 

adequately manage flow during and 

following peak discharge from the 

specified inflow design flood based on 

the hazard potential classification of the 

unit—and in the hydrologic and 

hydraulic capacity requirements, which 

are similarly specified based on the 

hazard potential classification of the 

CCR unit (see §§ 257.73(d)(2)(v); 

257.74(d)(2)(v) and 257.82 

respectively).84 Additionally, high and 

significant hazard potential CCR surface 

impoundments must develop a written 

Emergency Action Plan which 

establishes emergency action 

procedures in the event of a previously 

defined emergency. 

b. Emergency Action Plan 

An Emergency Action Plan (EAP) is a 

document that identifies potential 

emergency conditions at a CCR surface 

impoundment and specifies actions to 

be followed to minimize loss of life and 

property damage. Typically an EAP 

includes: (1) Actions the owner or 

operator will take to moderate or 

alleviate a problem at the CCR unit; (2) 

actions the owner or operator will take, 

in coordination with emergency 

management authorities, to respond to 

incidents or emergencies related to the 

CCR surface impoundment; (3) 

procedures owner or operators will 

follow to issue early warning and 

notification message to responsible 

downstream emergency management 

authorities; (4) inundation maps to 

allow owners and operators of the CCR 

unit and emergency management 

authorities to identify critical 

infrastructure and population-at-risk 

sites that may require protective 

measures, warning and evacuation 

planning; and (5) delineation of the 

responsibilities of all those involved in 

managing an incident or emergency and 

how the responsibilities should be 

coordinated and implemented.85 As 

FEMA guidance suggests, and EPA 

reiterates here, the level of detail in the 

EAP should be commensurate with the 

potential impact of a surface 

impoundment failure or other 

operational incident (e.g., its hazard 

potential classification). A surface 

impoundment with low potential 

hazard impact should not require an 

extensive evaluation or be subject to an 

extensive planning process, while highhazard and significant hazard surface 

impoundments would typically require 

a much larger emergency planning 

effort. In addition, high hazard and 

significant hazard surface 

impoundments tend to involve more 

entities that must coordinate 

responsibilities and greater efforts 

would generally be necessary to 

effectively respond to an incident with 

such a surface impoundment than to a 

similar incident involving a low-hazard 

surface impoundment. As such, every 

EAP must be tailored to specific site 

conditions. 

EPA is promulgating, as proposed, a 

provision that requires any CCR surface 

impoundment that is determined by the 

owner or operator, through the 

certification by a qualified professional 

engineer, to be either a high hazard 

potential CCR surface impoundment or 

a significant hazard potential CCR 

surface impoundment to prepare and 

maintain a written EAP. While EPA 

agrees that the level of detail contained 

in an EAP should be commensurate 

with its hazard potential rating, EPA has 

concluded that at a minimum, the EAP 

must: (1) Define responsible persons 

and the actions to be taken in the event 

of a CCR surface impoundment-safety 

emergency; (2) provide contact 

information for emergency responders, 

including a map which delineates the 

downstream area which would be 

affected in the event of a failure and a 

physical description of the CCR surface 

impoundment; (3) include provisions 

for an annual face-to-face meeting or 

exercise between representatives of the 

owner or operator of the CCR unit and 

the local emergency responders; and (4) 

define conditions that initiate 

implementation of the EAP and define 

emergency response actions which must 

be implemented upon the detection of 

these conditions, including all persons 

responsible for the implementation of 

the emergency response actions. The 

first three of these four requirements 

were proposed as part of the EAP and 

are being promulgated without revision. 

The fourth requirement, which requires 

facilities to explicitly define the 

conditions by which the EAP is 

activated, was inadvertently omitted 

from the proposal, and is being added 

to the final rule to ensure that the EAP 

includes at least the basic requirements 

necessary to function effectively. 

The owner or operator must amend 

the written EAP whenever there is a 

change in conditions that would 

substantially affect the written EAP in 

effect, e.g., change in personnel, change 

in emergency responder contact 

information, a change in the CCR 

surface impoundments’ designation 

from a significant-hazard potential 

classification to a high-hazard potential 

classification, or the vertical expansion 

of the CCR unit (i.e., increase in the 

amount of CCR that potentially could be 

released.) Consistent with the 

requirements for hazard potential 

classification reassessments, the Agency 

is requiring, at a minimum that the EAP 

be reassessed at least every five years. If 

an owner or operator determines that, as 

part of it periodic hazard potential reassessment that the unit no longer is 

classified as a high-hazard or a 

significant-hazard potential 

classification, but is now classified as a 

low hazard potential CCR surface 

impoundment, then the owner or 

operator of the CCR unit is no longer 

subject to the requirement to prepare 

and maintain an EAP, effective when 

such documentation is placed into the 

facility’s operating record. If, however, 

during the reassessment effort it is 

determined that an existing CCR unit 

classified as a low hazard potential has 

been re-classified as either a significanthazard or high-hazard potential, the 

owner or operation must prepare an 

EAP for the CCR unit within six months 

of completing such a periodic hazard 

potential re-assessment. 

Although the owner or operator is 

responsible for developing and 

maintaining the EAP, which must be 

certified by a qualified professional 

engineer, the plan should be developed 

and implemented in close coordination 

with all applicable emergency 

management authorities, including the 

appropriate local, state, and federal 

authorities. Generally, these 

coordination efforts, along with the 

EAP, provide emergency management 

authorities with the necessary 

information to facilitate the 

implementation of their responsibilities, 

and so, it is vital that the development 

of the EAP be coordinated with 

emergency responders and other 

entities, agencies, and jurisdictions, as 


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21379 

86This rapid drawdown is not included in the 

rule’s factors of safety assessments. The protection 

against rapid drawdown requirement of this 

provision is concerned with the rapid drawdown of 

adjacent water bodies acting upon the downstream 

slope of the CCR surface impoundment rather than 

the rapid drawdown of the impounded reservoir of 

the CCR surface impoundment acting upon the 

upstream slope of the CCR surface impoundment. 

87http://www.fema.gov/media-library-data/

20130726-1446-20490-2338/fema-534.pdf. 

88http://www.fema.gov/media-library-data/

20130726-1446-20490-2338/fema-534.pdf. 

appropriate. After the initial EAP has 

been developed and placed in the 

operating record and on the owner or 

operator’s internet site, it should be 

periodically reviewed and updated on a 

regular basis, as it can become outdated 

and ineffective. While the Agency is 

only requiring the EAP to be re-assessed 

every five years, it is recommended that 

the EAP be reviewed at least annually 

for appropriateness, accuracy, and 

adequacy so as to remain current. EPA 

recommends that the EAP be promptly 

updated to address changes in 

personnel, contact information and/or 

significant changes to the facility or 

emergency procedures. Even if no 

revisions are necessary, the review 

should be documented. 

The initial EAP must be prepared 

within 18 months from the effective 

date of the rule. In order to prepare an 

EAP, the owner or operator must 

accurately and comprehensively 

identify potential failure modes and atrisk development, and therefore 

completion of the emergency action 

plan needs to follow the completion of 

the initial hazard potential 

classification, structural stability 

assessment, and safety factor 

assessments, during which this 

information will be generated. 

c. Vegetated Slopes of Dikes and 

Surrounding Areas 

EPA proposed to require both new 

and existing CCR surface 

impoundments that exceed the MSHA 

size thresholds to document the slope 

protection measures that have been 

adopted and to compute the minimum 

factors of safety for slope stability, in 

order to support the certification from 

an independent professional engineer 

that the unit has been designed in 

accordance with ‘‘generally accepted 

engineering standards.’’ EPA is 

promulgating the requirement that all 

CCR surface impoundments have 

adequate slope protection because EPA 

determined through the Assessment 

Program that slope protection is an 

essential element in preventing slope 

erosion and subsequent deterioration of 

CCR unit slopes. EPA is requiring slope 

protection for all units, not just units 

exceeding the size threshold of the final 

rule, because EPA has identified that 

slope protection on CCR units is a 

generally accepted good practice which 

reduces the occurrence of erosion, 

degradation of surface waters due to 

run-off from the CCR unit, enhances 

slope stability, and that vegetated cover 

is an easily accomplished practice in the 

vast majority of climates where CCR 

surface impoundments are located. In 

conducting the Assessment Program, the 

protective cover of slopes of the CCR 

surface impoundment was determined 

to be relevant to the overall condition 

rating of all units, irrespective of size. 

This is consistent with FEMA guidance, 

which also lays out specifications for 

the ideal vegetative cover for a dam. 

EPA has adopted this requirement to be 

consistent with its findings from the 

Assessment Program, and in response to 

comments, and has elaborated on the 

slope protection measures necessary to 

achieve the factors of safety. The final 

rule provides performance standards 

drawn primarily from FEMA guidance, 

as applied during the Assessment 

Program. 

All CCR surface impoundments are 

required to be designed, constructed, 

operated, and maintained with adequate 

slope protection to protect against 

surface erosion at the site. Slope 

protection is necessary to ensure that 

dike or embankment erosion does not 

occur. Additionally, slope protection is 

required of all CCR surface 

impoundments to maintain the stability 

of the CCR surface impoundment slope 

under rapid drawdown events 86 and 

low pool conditions of water bodies that 

may abut the CCR surface impoundment 

and are outside the control of the owner 

or operator, e.g., a natural river which 

the slopes of the CCR surface 

impoundment run down to and abut. 

The slope protection can act as a 

stabilizer in the slope of the 

embankment during rapid drawdown 

events. Adequate slope protection can 

be achieved in most climates through 

simple vegetation, typically a healthy, 

dense stand of low-growing grass, or 

other similar vegetative cover. In arid 

climates where the upkeep of vegetation 

is inhibited, alternate forms of slope 

protection, including rip-rap, or rockarmor is typically used. Additional 

slope protective measures are available 

and effective in certain circumstances, 

including but not limited to rock, 

wooden pile, or concrete revetments, 

vegetated wave berms, concrete facing, 

gabions, geotextiles, or fascines. 

The owner or operator must ensure 

that the slopes of the CCR surface 

impoundment are protected from 

erosion by appropriate engineering 

slope protection measures. It is 

recommended throughout embankment 

technical literature that vegetative cover 

not be permitted to root too deeply, 

precipitating internal embankment 

issues. The rule requires a vegetative 

cover limit to prevent the establishment 

of rooted vegetation, such as a tree or a 

bush on the CCR surface impoundment 

slope. EPA has concluded that a 

vegetative cover of no more than six 

inches above the face of the 

embankment is adequate and is the 

uppermost limit for vegetative cover 

height for this final rule. In developing 

this requirement, EPA was strongly 

influenced by information contained in 

the FEMA document entitled, 

‘‘Technical Manual for Dam Owners: 

Impacts of Plants on Earthen Dams’’ 87

in determining an appropriate 

vegetative cover height for CCR surface 

impoundments. Six inches represents a 

vegetative height which prevents any 

trees, bushes, or shrubbery from rooting 

deeply enough to warrant additional 

removal measures outside of simple 

mowing. Furthermore, the height 

prescribed by the final rule represents a 

maximum height of vegetative cover to 

allow for adequate observation of the 

slope of the CCR unit during inspection. 

Vegetative cover in excess of six inches 

above the slope of the dike would 

prevent the adequate observation of the 

slope of the CCR unit and detection of 

structural concerns such as animal 

burrows and minor sloughs, amongst 

others concerns. Consistent with FEMA 

guidance, as applied during the 

Assessment Program, other slope 

protection, such as rock armoring or 

vegetated berms, would also be 

considered adequate.88

3. Structural Integrity Criteria 

Applicable to CCR Surface 

Impoundments Exceeding a Specific 

Size Threshold 

The structural integrity criteria 

discussed in this section of the 

preamble apply to existing and new 

CCR surface impoundments and any 

lateral expansion with: (1) A height of 

five feet or more and a storage volume 

of 20 acre-feet or more; or (2) a height 

of 20 feet or more. The rule defines 

height as the vertical measurement from 

the downstream toe of the CCR surface 

impoundment at its lowest point to the 

lowest elevation of the crest of the CCR 

surface impoundment. The downstream 

toe is defined as the junction of the 

downstream slope or face of the CCR 

surface impoundment with the ground 

surface. This final rule considers the 

lowest elevation of the crest of the CCR 


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89http://www.msha.gov/regs/complian/PILS/

2013/PIL13-IV-01.asp. 

surface impoundment to be the 

maximum storage elevation of the 

reservoir or pool of the CCR unit, e.g., 

the invert of the lowest-elevation 

spillway. EPA is implementing this size 

threshold because it comports with 

thresholds established by other federal 

and state agencies regulating dam 

integrity and/or safety. Specifically, for 

the implementation of the size threshold 

of this final rule, EPA relied on the 

identical size parameters, i.e., height of 

five feet and capacity of 20 acre-feet, 

which is promulgated in MSHA coal 

slurry impoundment regulations in 30 

CFR 77.216. 

In the proposed rule, EPA used the 

size cut-off promulgated by MSHA in 

their dam safety requirements for coal 

slurry impoundments at 30 CFR part 77. 

In proposing this cut-off, EPA reasoned 

that the MSHA requirements affecting 

coal slurry impoundments were directly 

applicable and relevant to CCR surface 

impoundments and provided a size 

threshold that, when applied to the 

rule’s structural integrity criteria, would 

generally meet RCRA’s mandate to 

ensure protection of human health and 

the environment by minimizing the 

potential for catastrophic failure. 

Specifically, EPA proposed that surface 

impoundments: (1) Impounding CCR to 

an elevation of five feet or more above 

the upstream toe of the structure and 

can have a storage volume of 20 acrefeet or more; or (2) impounding CCR to 

an elevation of 20 feet or more above the 

upstream toe of the structure would be 

subject to the structural stability criteria. 

EPA also proposed to define upstream 

toe as the junction of the upstream slope 

of the dam with the ground surface, 

with the height of the CCR unit 

measured from the upstream toe or 

water-borne toe of the CCR unit. 

While little comment was received on 

adopting this size threshold or the 

accompanying definition of upstream 

toe, the Agency was concerned that the 

size threshold presented in the 

proposed rule did not reflect standard 

measuring protocols used by other 

federal agencies and the dam sector in 

determining the size of a dam or, in the 

case of this rule, surface impoundment. 

Of particular concern to the Agency was 

the fact that EPA’s own Assessment 

Program was measuring the height of a 

CCR unit from the downstream toe 

rather than the upstream toe, which was 

specified in the MSHA regulatory 

requirement and the subsequent CCR 

proposed rule. 

A review of MSHA, FEMA and the 

USACE regulations and guidance, as 

well as the guidance of several state 

agencies that oversee dam safety, 

revealed that dam or surface 

impoundment height is more 

appropriately measured from the 

downstream and not the upstream toe of 

the unit. EPA based this conclusion on 

the near-universal position of dam 

safety guidance that the downstream 

slope height of the dike is of primary 

concern in the design, construction, 

operation, and maintenance of the dam 

or surface impoundment. Virtually all of 

the dam safety regulations, including 

state and federal guidance and 

regulations, that EPA reviewed 

considered measured dam height to be 

taken from the downstream slope of the 

dike. Some of these guidance and 

regulations include FEMA ‘‘Federal 

Guidelines for Dam Safety,’’ U.S. Army 

Corps ‘‘National Inventory of Dams,’’ 

and MSHA Metal and Nonmetal 

Tailings and Water Impoundment 

Inspection requirements in 30 CFR part 

56 and § 57.20010.89 This information, 

coupled with the information on the 

methodology used in the Assessments 

Program, convinced the Agency that a 

revised description of the CCR surface 

impoundment size cutoff was necessary, 

specifically requiring the height of the 

CCR unit to be measured from the 

downstream toe. 

a. Design and Construction Information 

The first element of the structural 

integrity criteria applicable to CCR units 

exceeding the specified size threshold 

requires the owner or operator to 

compile and place in the operating 

record design and construction 

information pertaining to the CCR unit. 

Among other things, this provision 

requires the following documentation to 

be provided by the owner or operator: 

(1) The name of the owner or operator 

of the unit; (2) the name of the unit; and 

(3) any identification number assigned 

by the state. In addition, it requires that 

the owner or operator identify: (5) The 

location of the CCR unit on a U.S. 

Geological Survey Map or a topographic 

map of equivalent scale; (6) provide 

dimensional drawings of the CCR unit 

with pertinent engineering structures 

and appurtenances identified; (7) 

describe the purpose of the CCR unit; 

and (8) identify the name and size of the 

watershed affecting the CCR unit, if any. 

Detailed information is also required 

documenting: (9) The design and 

construction of the unit including dates 

and descriptions of each zone or stage 

constructed; (10) instrumentation used 

to monitor the operation of the CCR 

unit, (11) spillway and diversion design 

descriptions and construction 

specifications; and (12) provisions for 

surveillance, maintenance and repair of 

the CCR unit. 

While these requirements apply to 

both existing and new CCR surface 

impoundments, existing CCR surface 

impoundments are required to compile 

this information only ‘‘to the extent 

available,’’ within one year of the 

effective date of the rule. Conversely, 

new CCR surface impoundments or any 

lateral expansion must compile all of 

the information listed prior to the initial 

receipt of CCR. For existing CCR surface 

impoundments, EPA acknowledges that 

much of the construction history of the 

surface impoundment maybe unknown 

or lost. EPA’s Assessment Program 

confirmed that many owners or 

operators of CCR units did not possess 

documentation on the construction 

history or operation of the CCR unit. 

Information regarding construction 

materials, expansions or contractions of 

units, operational history, and history of 

events was frequently difficult for the 

owners or operators to obtain. The 

Assessment Program also confirmed the 

Agency’s initial assumption that this 

information, in many instances, will be 

difficult to compile. Therefore, in this 

rule, EPA is using the phrase ‘‘to the 

extent available’’ and clarifying that the 

term requires the owner or operator to 

provide information on the history of 

construction only to the extent that such 

information is reasonably and readily 

available. EPA intends facilities to 

provide relevant design and 

construction information only if factual 

documentation exists. EPA does not 

expect owners or operators to generate 

new information or provide anecdotal or 

speculative information regarding the 

CCR surface impoundment’s design and 

construction history. 

There are several other requirements 

under the design and construction 

criteria requiring clarification. First, the 

Agency is amending the requirement 

that all dimensional drawings of the 

CCR unit (see § 257.73(b)(vii) and 

§ 257.74(b)(vii)) use a uniform scale of 

one inch equals 100 feet. After further 

consideration, EPA has deleted this 

requirement and has replaced the 

proposed scale of 1 inch equals 100 feet 

with the phrase ‘‘at a scale that details 

engineering structures and 

appurtenances relevant to the design, 

construction, operation, and 

maintenance of the CCR unit.’’ EPA 

made this change in response to 

comments arguing that this level of 

detail was unnecessary. EPA agrees that, 

given the extremely large variety in the 

size of CCR units, a prescriptive scale 

for all drawings of all CCR units is not 

necessary in many cases; this level of 

detail would be excessive for most 


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90http://www.publications.usace.army.mil/

Portals/76/Publications/EngineerManuals/EM_

1110-2-2300.pdf. 

units. The Agency is also clarifying, (see 

§ 257.73(b)(2) and § 257.74(b)(2)) that if 

an owner or operator determines that a 

significant change has occurred in the 

information/documentation previously 

compiled under this provision, the 

owner or operator must update the 

relevant information and place it in the 

operating record. 

b. Types of Assessments 

A second element of the structural 

integrity criteria is the requirement for 

specific technical assessments of the 

CCR unit. Consistent with the 

requirements outlined in the proposed 

rule, two technical assessments are 

required for all CCR units exceeding the 

specified size threshold: (1) A structural 

stability assessment; and (2) a safety 

factor assessment. The owner or 

operator of an existing CCR surface 

impoundment is required to conduct an 

initial assessment addressing both 

structural stability and safety factors 

within one year of the effective date of 

the rule. New CCR surface 

impoundments or any lateral expansion 

of a CCR unit are required to complete 

the initial assessment prior to placing 

CCR into the unit. Following the initial 

assessments, EPA is also requiring 

periodic re-assessments of both a CCR 

surface impoundment’s structural 

stability and factors of safety. EPA 

proposed to require an annual 

recertification, but in a departure from 

the proposed rule, EPA is only requiring 

these re-assessments to be conducted on 

a regular basis, not to exceed once every 

five years. In making this regulatory 

change, the Agency has relied heavily 

on the dam safety guidance established 

by FEMA in the document titled, 

Federal Guidelines for Dam Safety that 

a formal inspection, including ‘‘. . . a 

review to determine if the structures 

(i.e., CCR surface impoundments) meet 

current accepted design criteria and 

practices . . .’’ be taken at an interval 

not to exceed five years. EPA has 

interpreted this guidance to be 

applicable to both the structural 

stability assessment and the safety factor 

assessment. 

A demonstration must be completed 

within the assessment period for the 

specific type of assessment. This means 

that, within this timeframe the owner or 

operator must demonstrate that the CCR 

unit meets all of the requirements of 

each type of assessment, as certified by 

a qualified professional engineer. It also 

means that the owner or operator must 

have taken all measures necessary to 

bring the unit into compliance with all 

of the requirements for assessments of 

this final rule within the assessment 

period. If the owner or operator cannot 

demonstrate that the unit meets these 

factors of safety (or otherwise fails to 

comply with the structural stability 

requirements) within the appropriate 

timeframe, the unit must initiate 

closure. 

i. Periodic Structural Stability 

Assessments 

In order to ensure the proper upkeep 

and operation of the CCR unit, the 

owner or operator must demonstrate 

that the CCR surface impoundment has 

been designed, constructed, operated 

and maintained to provide structural 

stability. Specifically, consistent with 

the proposal, the final rule requires the 

owner or operator to demonstrate that 

the design, construction, operation, and 

maintenance of the CCR surface 

impoundment is consistent with 

recognized and generally accepted good 

engineering practices for the maximum 

volume of CCR and water that can be 

impounded therein. As discussed 

previously, EPA has elaborated on this 

overall performance standard in 

response to comments from the 

engineers who would be required to 

make these certifications, urging EPA to 

specify more precisely the standards 

that must be met. Specifically the final 

rule focuses on the critical structural 

aspects of the CCR surface 

impoundment that EPA identified in the 

proposed rule, and identifies the 

minimum elements that a professional 

engineer must provide engineering 

details on or otherwise address. In 

certain cases, the final criteria identify 

specific engineering performance 

standards. EPA relied on existing MSHA 

requirements, FEMA dam safety 

guidance, and guidance issued by the 

USACE, as applied throughout EPA’s 

Assessment Program to develop these 

criteria. Consistent with the proposal, 

these demonstrations must be certified 

by a qualified professional engineer. 

Each of these criteria is discussed in 

more detail below. 

In addition to implementing adequate 

slope protection against erosion, which 

is a structural stability requirement 

applicable to all CCR units, the owner 

or operator of a CCR surface 

impoundment exceeding the specified 

size threshold must demonstrate that 

the unit, including any vertical and 

lateral expansions, is constructed with 

‘‘stable foundations and abutments.’’ A 

stable foundation is an essential element 

of surface impoundment construction 

and prevents differential settlement of 

the embankment which can result in 

adverse internal stresses with the 

embankment cross-section. Soils tend to 

consolidate when subjected to loadings 

for extended periods, which can lead to 

strain incompatibility, a phenomena 

which prevents the full development of 

peak strength of the foundation. The 

stability of foundations and abutments 

can be determined by engineering 

monitoring, representative soil 

sampling, and modeling. Similarly, 

cohesion between the abutments of the 

CCR surface impoundment and the 

embankment of the CCR surface 

impoundment is critical. Frequently, 

CCR surface impoundments are subject 

to cracking and excessive seepage and 

piping in the groins where the abutment 

and embankment meet. These adverse 

conditions may lead to further structural 

deficiencies which threaten the safety of 

the CCR surface impoundment. 

Consistent with general engineering 

construction methodologies, the 

structural stability assessment also 

requires the owner or operator to 

determine whether the CCR surface 

impoundment has been mechanically 

compacted to a density sufficient to 

withstand the range of loading 

conditions in the CCR unit.90

Compaction of a dike or embankment is 

considered essential, as the compaction 

of soils leads to an increase in density 

and subsequently strength. Soil 

mechanics theory has established that 

the density of a soil corresponds to the 

moisture content and strength of the 

soil. The rule requires the owner or 

operator make this determination for all 

dikes of a CCR surface impoundment. 

EPA notes that a number of existing 

voluntary consensus standards are 

available that can be useful in making 

this determination. For example, ASTM 

D 698 establishes a performance 

standard of 95% of the maximum 

standard Proctor density. Similarly, 

ASTM D 1557 establishes a standard of 

90% of the maximum modified Proctor 

density. Alternatively, in certain 

instances, such as soils consisting of 

more than 30% material retained on the 

3⁄4 in. sieve, Proctor testing is not 

appropriate and the relative density 

criteria can be met. In such cases, EPA 

recommends a 70% relative density. 

These specific soil compaction criteria 

are ubiquitous throughout engineering 

construction as sufficient to support 

engineered works based on the 

requirements. They are also consistent 

with the standards promulgated by the 

state of New Mexico’s dam safety 

program in order to ensure proper 

compaction during construction of new 

CCR surface impoundments. 

EPA recognizes that it would be 

highly difficult for owners or operators 


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of older units to certify with any 

certainty that the unit’s construction 

meets the specific numeric compaction 

criteria found in the ASTM standards. 

New units, however, can easily meet 

these standards, and should therefore be 

designed and constructed to meet the 

numeric compaction criteria. 

The owner or operator must also 

design, construct, operate, and maintain 

the CCR surface impoundment spillway 

or spillways with appropriate material 

so as to prevent the degradation of the 

spillway, as well as to ensure that the 

CCR surface impoundment has adequate 

spillway capacity to manage the outflow 

from a specific inflow design flood. In 

addition, a demonstration must be made 

that the CCR surface impoundment has 

been designed, constructed, operated, 

and maintained with inflow design 

flood controls and/or spillway capacity 

to manage peak discharge during and 

following inflow design floods. This 

demonstration is required to ensure the 

CCR surface impoundments will have 

adequate hydrologic and hydraulic 

capacity to prevent such failures as 

overtopping and excessive internal 

seepage and erosion. Spillways must be 

designed to withstand discharge from 

the inflow design flood without losing 

their structural form and leading to 

discharge issues, such as erosion or 

overtopping of the embankment. This 

requirement is covered in more detail in 

the hydrologic and hydraulic capacity 

requirements for CCR surface 

impoundments section of this rule. 

EPA is not requiring a facility to 

include any demonstration relating to 

the potential for rapid, or sudden, 

drawdown loading condition. Rapid or 

sudden drawdown is a condition in 

earthen embankments in which the 

embankment becomes saturated through 

seepage in an extended high pool 

elevation in the reservoir. A threat to the 

embankment emerges when the 

reservoir pool is drawn down or 

lowered at a rate significantly higher 

than the excess poor water pressure 

within the embankment can diminish. 

Typically, rapid drawdown scenarios 

are considered for embankments with 

reservoirs used for water supply and 

management, emergency reservoirs, or 

agricultural supply, in which the 

reservoir is rapidly discharged from the 

structure. In these scenarios, a high pool 

elevation is maintained in the reservoir 

in storage months. Subsequently, the 

water supply is drawn on in months 

where there is a high demand for the 

reservoir’s contents. This drawing down 

of the pool can affect the structural 

stability of the unit. However, the 

management of CCR surface 

impoundments differs from that of 

conventional water supply, emergency, 

and agricultural reservoirs. The only 

instance of a rapid drawdown of a CCR 

surface impoundment which EPA has 

identified is in the event of a massive 

release of the reservoir of the CCR 

surface impoundment due to a failure of 

the dike of the CCR surface 

impoundment. In this instance, a 

massive release has occurred or is 

occurring. A subsequent failure of the 

upstream or internal embankment due 

to this rapid drawdown would only 

precipitate further embankment failure 

and not any further release of the 

contents of the impoundment, as the 

contents of the surface impoundment 

would have already been released. In 

these instances, remediation of a failure 

in a rapidly drawn-down section would 

be necessary prior to filling of the unit, 

but is not a concern precipitating a 

release of impounded contents. 

A second consideration regarding 

rapid drawdown, however, is the rapid 

drawdown of a water body adjacent to 

the slope of the CCR surface 

impoundment which may periodically 

inundate the slope. Many CCR surface 

impoundments are located in areas in 

which the downstream slope of the CCR 

surface impoundment runs down to a 

lake, stream, or river. In such instances, 

rapid drawdown must be considered for 

the stability of the downstream slope of 

the embankment in the event of a rapid 

drawdown in the lake, stream, or river 

pool elevation or stage. Because the 

water ponded against the downstream 

slope of the CCR surface impoundment 

provides a stabilizing load on the slope 

of the CCR surface impoundment, the 

rapid or gradual loss of this stabilizing 

force must be considered in the analysis 

of the CCR surface impoundment. The 

rule, therefore, requires that existing 

and new CCR surface impoundments 

and any lateral expansions of such units 

with a downstream slope that can be 

inundated by an adjacent water body, 

such as rivers, streams, or lakes, be 

constructed with downstream slopes 

that will maintain structural integrity in 

events of low pool or rapid drawdown 

of the adjacent water body. This ensures 

that the structural integrity of the 

downstream slope of the CCR surface 

impoundment will be maintained, even 

though the conditions of an adjacent 

surface water body may be outside the 

owner or operator’s control. 

ii. Periodic Safety Factor Assessments 

As previously discussed, EPA 

received comment requesting the 

Agency to supplement the proposed 

technical criteria to assist owners or 

operators of CCR surface impoundments 

in interpreting the factor of safety 

determination required by proposed 

§ 257.71(d)(12). EPA proposed that 

facilities compute ‘‘a minimum factor of 

safety for slope stability of the CCR 

retaining structure(s),’’ and to provide 

the methods and calculations used to 

determine each factor of safety. In 

reviewing the proposed requirement, 

the Agency agrees that further 

elaboration on the requirement is 

necessary to ensure that engineers can 

accurately assess a CCR unit’s structural 

stability using factor of safety 

calculations, and would be valuable to 

ensure a consistent national standard. 

EPA has therefore revised the criteria to 

be consistent with the criteria 

developed and used to assess these 

impoundments as part of the 

Assessment Program. 

Accordingly, the final rule requires 

demonstrations of structural integrity 

using accepted engineering 

methodologies under specific loading 

conditions. Owners or operators must 

conduct and have certified by a 

qualified professional engineer, an 

initial assessment, supported by the 

appropriate engineering calculations, 

documenting whether the CCR unit 

achieves the following minimum factors 

of safety: (1) The calculated static factor 

of safety under the long-term, maximum 

storage pool loading condition, which 

must equal or exceed 1.50; (2) the 

calculated static factor of safety under 

the maximum surcharge pool loading 

condition, which must equal or exceed 

1.40; (3) the calculated seismic factor of 

safety, which must equal or exceed 1.00; 

and (4) the calculated liquefaction factor 

of safety, which must equal or exceed 

1.20. In addition to the safety factors 

specified for existing CCR surface 

impoundments, new CCR surface 

impoundments and any lateral 

expansion must also comply with a fifth 

safety factor, the calculated static factor 

of safety under the end-of-construction 

loading condition, which must equal or 

exceed 1.30. 

The minimum static factors of safety 

are adopted directly from the USACE’s 

Engineer Manual EM 1110–2–1902 

entitled, ‘‘Slope Stability.’’ As discussed 

in more detail in Unit III of this 

document, EPA relied heavily on this 

manual and applied these specific 

factors of safety during its Assessment 

Program, and it is widely considered the 

benchmark in the dam engineering 

community for slope stability and 

methodology and analysis. 

The seismic factor of safety is adopted 

from review of several dam safety 

guidance documents, including USACE 

guidance Engineer Circular 1110–2– 

6061: Safety of Dams-Policy and 

Procedures 2204, Engineer Circular 


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91https://www.eeri.org/products-page/

monographs/soil-liquefaction-during-earthquakes3/. 

92http://epa.ohio.gov/portals/34/document/

guidance/gd_660.pdf. 

93http://www.ferc.gov/industries/hydropower/

safety/guidelines/fema-65.pdf. 

94Seed, H.B., and Idriss, I.M., 1982, ‘‘Ground 

Motions and Soil Liquefaction During 

Earthquakes,’’ Monograph No. 5, Earthquake 

Engineering Research Institute, Berkeley, California, 

pp. 134. 

95 Youd, T.L., Idriss, I.M., 2001, ‘‘Liquefaction 

Resistance of Soils: Summary report from the 1996 

and 1998 NCEER/NSF Workshops on Evaluation of 

Liquefaction Resistance of Soils.’’ Journal of 

Geotechnical and Geoenvironmental Engineering, 

ASCE. 

96Additional information regarding special 

analysis methodologies can be found in 

publications from the U.S. Army Corps of Engineers 

Engineering Publications or geotechnical journals 

and scholarly articles. 

1110–2–6000: Selection of Design 

Earthquakes and Associated Ground 

Motions 2008, and Engineer Circular 

1110–2–6001: Dynamic Stability of 

Embankment Dams 2004. EPA also 

reviewed MSHA’s 2009 Engineering and 

Design Manual for Coal Refuse Disposal 

Facilities, in particular Chapter 7, 

‘‘Seismic Design: Stability and 

Deformation Analyses.’’ These 

documents are viewed by ASDSO, 

FEMA and MSHA as generally accepted 

guidance on how to conduct seismic 

stability analyses. EPA chose the factor 

of safety of 1.00 because the 1.00 

quantity represents the condition of the 

slope in which the strength of resistance 

to loading is equal to the anticipated 

loading stress acting upon the 

embankment, or the value which 

represents stability under the 

appropriate loading condition. 

The liquefaction factor of safety is 

adopted from review of several dam 

safety guidance and liquefaction 

guidance, including ‘‘Soil Liquefaction 

During Earthquakes,’’ Idriss and 

Boulanger, Earthquake Engineering 

Research Institute, 2008,91

‘‘Geotechnical and Stability Analyses 

for Ohio Waste Containment Facilities,’’ 

Ohio EPA, Sept. 14, 2004, Chapter 5,92

and Federal Guidelines for Dam Safety: 

Earthquake Analyses and Design of 

Dams, Document 65, FEMA May 

2005.93 EPA also reviewed several 

technical resources regarding soil 

liquefaction, including ‘‘Ground 

Motions and Soil Liquefaction During 

Earthquakes,’’ Seed and Idriss, 1982,94

‘‘Liquefaction Resistance of Soils: 

Summary report from the 1996 and 1998 

NCEER/NSF Workshops on Evaluation 

of Liquefaction Resistance of Soils,’’ 

Youd and Idriss, 2001,95 and Seismic 

Design Guidance for Municipal Solid 

Waste Landfill Facilities, US EPA, Office 

of Research and Development, 1995. 

EPA chose a liquefaction factor of safety 

of 1.20, identifying that consideration of 

liquefaction potential and postliquefaction residual strength slope 

stability included several uncertainties 

in assumptions and analysis which 

must be accounted for in a factor of 

safety above unity (i.e., 1.00). FEMA 

guidance explicitly states that ‘‘postliquefaction factors of safety are 

generally required to be a minimum of 

1.2 to 1.3.’’ 

In conjunction with this requirement, 

EPA continues to require periodic reassessments of the safety factor 

calculations, but as discussed, has 

modified the frequency to be no less 

than once every five years for all 

affected CCR units. Periodic 

reassessments are necessary to account 

for factors that are subject to change and 

can adversely affect the structural 

stability of a CCR unit, e.g., age, use, 

volume of material contained within, 

and to reflect the dynamic nature of a 

CCR surface impoundment and the 

loads to which the dikes of the CCR 

surface impoundment may reasonably 

be expected to become subject to both 

the requirement to periodically reassess 

safety factor calculations and the fiveyear timeframes are consistent with the 

guidance set forth by other federal 

agencies in assessing dam safety, 

including MSHA, FEMA, and the 

USACE. For example, FEMA’s Federal 

Guidelines for Dam Safety explicitly 

recommends that a dam be formally 

reassessed at an interval not to exceed 

every five years, and EPA has adopted 

this minimum frequency of assessment 

in this final rule. 

(a) General Safety Factor Assessment 

Considerations 

Generally accepted engineering 

methodologies specify that the 

determination of the structural stability 

factors of safety specified above is to be 

calculated by the qualified professional 

engineer using conventional analysis 

procedures or, if necessary, special 

analysis procedures. Conventional 

analysis procedures include, but are not 

limited to, limit equilibrium methods of 

slope stability analysis, whereas, special 

analysis procedures include, but are not 

limited to, finite element methods, finite 

difference methods, three-dimensional 

methods, or probabilistic methods. 

Whichever methodology is used to 

determine the factors of safety of the 

CCR surface impoundment, the 

qualified professional engineer must 

document the methodology used, as 

well as the basis for using that 

methodology, and the analysis must be 

supported by appropriate engineering 

calculations. 

Limit equilibrium methods compare 

forces, moments, and stresses which 

cause instability of the mass of the 

embankment to those which resist that 

instability. The principle of the limit 

equilibrium method is to assume that if 

the slope under consideration were 

about to fail, or at the structural limit of 

failure, then one must determine the 

resulting shear stresses along the 

expected failure surface. These 

determined shear stresses are then 

compared with the shear strength of the 

soils along the expected failure surface 

to determine the factor of safety. Limit 

equilibrium methods include, but are 

not limited to, methods of slices. The 

most commonly applicable method of 

slices are the ordinary method of slices 

or Modified Swedish Method, Bishop’s 

Modified Method, force equilibrium 

methods, Janbu’s method, Morgenstern 

and Price’s method, or Spencer’s 

Method. 

If conventional analysis procedures 

yield results that indicate complex 

failure mechanisms or the need for 

estimation of displacements, such as the 

need to determine internal stresses or 

displacements in an embankment or 

account for 3-dimensional effects in an 

embankment, special analysis 

procedures may be necessary to 

calculate factors of safety. Special 

analysis procedures include, but are not 

limited to: (1) The finite element 

method; (2) the finite difference method; 

(3) the three-dimensional limit 

equilibrium analysis method; or (4) the 

probabilistic method.96

Structural stability factors of safety 

need to be met in all cross-sections of 

the CCR surface impoundment since the 

failure of any cross-section of the CCR 

surface impoundment can result in the 

loss of the reservoir and stored CCR 

material in the CCR surface 

impoundment. However, it is not 

necessary to require the facility to fully 

analyze and calculate factors of safety 

for all cross sections under the specific 

loading conditions identified above. 

Rather, it is sufficient to calculate the 

factors of safety under both static, 

seismic, and liquefaction loading 

conditions only for the critical cross 

section of the CCR surface 

impoundment embankment, provided 

the facility carefully analyzes each cross 

section to properly identify the critical 

cross section. EPA has adopted this 

approach because the critical crosssection(s) represents a ‘‘most-severe’’ 

case and it is reasonably anticipated that 

all other cross-sections of the 

embankment will exceed the calculated 

factors of safety of the critical crosssection(s). The final rule therefore 

adopts this approach. The final rule 


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97U.S. Army Corps of Engineers ‘‘Slope Stability’’ 

manual. 

98E.g., FEMA’s Federal Guidelines for Dam 

Safety: Earthquake Analyses and Design of Dams. 

defines the critical cross section of the 

embankment of a CCR surface 

impoundment to be that which is 

anticipated to be most susceptible 

amongst all cross sections of the 

embankment to structural failure based 

on several engineering considerations 

for the given loading condition, such as 

soil composition of the cross-section, 

phreatic surface level within the cross 

section, grade of the upstream and 

downstream slopes of the cross section, 

and presence or lack of reinforcing 

measures in the cross-section as 

opposed to other cross-sections, such as 

buttressing or slope protection on the 

slopes of the cross section. Due to the 

variance of qualitative and quantitative 

properties of embankment structural 

strength, EPA expects that a prudent 

engineering analysis will need to 

consider multiple cross sections to 

ensure proper selection of a critical 

cross section. 

(b) The Calculated Static Factor of 

Safety Under the Long-Term, Maximum 

Storage Pool Loading Condition 

It is generally accepted practice to 

analyze the stability of the downstream 

slope of the dam embankment for 

steady-state seepage (or steady seepage) 

conditions with the reservoir at its 

normal operating pool elevation 

(usually the spillway crest elevation) 

since this is the loading condition the 

embankment will experience most. This 

condition is called steady seepage with 

maximum storage pool. The maximum 

storage pool loading is the maximum 

water level that can be maintained that 

will result in the full development of a 

steady-state seepage condition. 

Maximum storage pool loading 

conditions need to be calculated to 

ensure that the CCR surface 

impoundment can withstand a 

maximum expected pool elevation with 

full development of saturation in the 

embankment under long-term loading. 

The final rule requires that the 

calculated static factor of safety for the 

critical cross section of the CCR surface 

impoundment under the long-term 

maximum storage pool loading 

condition meet or exceed 1.5. The 

generally accepted methodology for 

determining the long-term, maximum 

storage pool loading condition considers 

conditions at the CCR surface 

impoundment that exist for a length of 

time sufficient for steady-state seepage 

or hydrostatic conditions to fully 

develop within the embankment of the 

CCR unit.97 The maximum storage pool 

loading needs to consider a pool 

elevation in the CCR unit that is 

equivalent to the lowest elevation of the 

invert of the spillway, i.e., the lowest 

overflow point of the perimeter of the 

embankment. The generally accepted 

methodology for the calculation of the 

factors of safety uses shear strengths 

expressed as effective stress and with 

pore water pressures that correspond to 

the long-term condition. Pore-water 

pressures should be estimated from the 

most reliable of the following sources: 

(1) Field measurements of pore 

pressures in existing slopes; (2) past 

experience and judgment of the 

qualified professional engineer; (3) 

hydrostatic pressure computation for 

conditions of no flow; or (4) steady-state 

seepage analysis using flow nets or 

finite element analyses. 

(c) The Calculated Static Factor of 

Safety Under the Maximum Surcharge 

Pool Loading Condition 

The maximum surcharge pool loading 

condition is calculated to evaluate the 

effect of a raised level (e.g., flood 

surcharge) on the stability of the 

downstream slope. This ensures that the 

CCR surface impoundment can 

withstand a temporary rise in pool 

elevation above the maximum storage 

pool elevation for which the CCR 

surface impoundment may normally be 

subject under inflow design flood stage, 

for a short-term until the inflow design 

flood is passed through the CCR surface 

impoundment. The final rule requires 

that the calculated static factor of safety 

for the critical cross section of the CCR 

surface impoundment under the longterm maximum surcharge pool loading 

condition meet or exceed 1.4. 

Similar to the long-term, maximum 

loading condition, a prudent evaluation 

of the maximum surcharge pool loading 

condition needs to consider conditions 

at the CCR unit to exist for a length of 

time sufficient for steady-state seepage 

or hydrostatic conditions to fully 

develop within the embankment of the 

CCR surface impoundment. The 

maximum surcharge pool is considered 

a temporary pool that is higher than the 

maximum storage pool; the maximum 

surcharge loading condition should 

therefore consider a temporary 

condition in the pool at which the pool 

exists temporarily above the maximum 

storage pool elevation in the event of an 

inflow design flood and spillway 

discharge condition in the reservoir, i.e., 

above the lowest invert of the spillway 

during the anticipated inflow design 

flood. 

(d) The Calculated Seismic Factor of 

Safety 

All CCR surface impoundments, 

including any lateral expansions that 

exceed the size threshold must meet a 

seismic factor of safety equal to or 

greater than 1.0. EPA has included this 

requirement because the mechanics and 

response phenomena of geotechnical 

structures vary radically under dynamic 

loading from those under static loading. 

Consequently, reliance on the factors of 

safety under static loading is not 

sufficient to evaluate the structural 

stability of a CCR surface impoundment. 

Standard engineering methodology and 

guidance support EPA’s conclusion that 

adequate seismic analysis of embanked 

structures is essential to ensure the 

continued structural stability of a 

geotechnical structure under dynamic, 

or seismic, loading is warranted.98

As discussed in the section of this 

preamble addressing the location 

criteria, all CCR surface impoundments 

must also be capable of withstanding a 

design earthquake without damage to 

the foundation or embankment that 

would cause a discharge of its contents. 

To further support the location criteria 

established in this rule, CCR surface 

impoundments and any lateral 

expansion exceeding a specific height 

and/or volume threshold must be 

assessed under seismic loading 

conditions for a seismic loading event 

with a 2% probability of exceedance in 

50 years, equivalent to a return period 

of approximately 2,500 years, based on 

the USGS seismic hazard maps for 

seismic events with this return period 

for the region where the CCR unit is 

located. EPA chose the 2% exceedance 

probability in 50 years event based on 

its common use in seismic design 

criteria throughout engineering. See for 

example, ASCE 7 Minimum Design 

Loads for Buildings and Other 

Structures, International Building Code. 

Moreover, USGS seismic hazard maps, 

dictate that the life of a structure and 

the realistic probability of event 

occurrence be considered in the design 

of lateral force resisting systems for 

structures. As discussed in the 

Regulatory Impact Assessment, the 

expected life of a CCR surface 

impoundment can exceed 50 years. 

Consistent with the location criteria for 

seismic impact zones, EPA adopted 2% 

as a reasonable probability of 

occurrence. 

Under standard engineering 

methodologies, seismic analysis 

includes several procedures to 

adequately analyze the structural 


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99FEMA Doc. 65 ‘‘Earthquake Analyses and 

Design of Dams;’’ http://www.ferc.gov/industries/

hydropower/safety/guidelines/fema-65.pdf. 

strength of a CCR surface impoundment 

during dynamic, i.e., seismic, loading. 

Such analyses would typically need to 

include the appropriate characterization 

of ground motions at the site of the CCR 

surface impoundment for the 2% 

probability in 50 years seismic event.99

In addition, the peak ground 

acceleration (PGA), velocity, and 

displacement should be selected using 

historic records, site-specific 

observations, or magnitude-distance 

attenuation relations. Additionally, the 

analysis would need to include an 

appropriate duration of earthquake, 

considering accelorograms for the 

anticipated event. Appropriate elastic 

response spectra should be selected 

using engineering methodology for 

selection, such as the Newmark-Hall 

Spectrum or other appropriate 

published spectra, USGS Probabilistic 

Maps, or site-specific response spectra. 

(e) The Calculated Liquefaction Factor 

of Safety 

All CCR surface impoundments, 

including any lateral expansions that 

exceed the size threshold and have been 

determined to contain soils susceptible 

to liquefaction must meet a liquefaction 

factor of safety equal to or greater than 

1.20. A prudent engineering analysis of 

structural stability also includes a 

liquefaction potential analysis and 

analysis of post-liquefaction static 

factors of safety. As discussed 

previously, liquefaction is a 

phenomenon which typically occurs in 

loose, saturated or partially-saturated 

soils in which the effective stress of the 

soils reduces to zero, corresponding to 

a total loss of shear strength of the soil. 

The most common occurrence of 

liquefaction is in loose soils, typically 

sands. The liquefaction FOS 

determination in the final rule is used 

to determine if a CCR unit would 

remain stable if the soils of the 

embankment of the CCR unit were to 

experience liquefaction. Liquefaction 

analysis is only necessary in instances 

where CCR surface impoundments 

show, through representative soil 

sampling, construction documentation, 

or anecdotal evidence from personnel 

with knowledge of the CCR unit’s 

construction, that soils of the 

embankment are susceptible to 

liquefaction. 

EPA has included this requirement 

because the mechanics and response 

phenomena of geotechnical structures 

vary radically following induced 

liquefaction, i.e., post-liquefaction. 

Similar to the requirement for seismic 

factors of safety, liquefaction factors of 

safety are necessary because reliance on 

static loading is not sufficient to 

evaluate the structural stability of a CCR 

surface impoundment. Standard 

engineering methodology and guidance 

support EPA’s conclusion that adequate 

liquefaction potential analyses and postliquefaction residual strength slope 

stability analyses of embanked 

structures is essential to ensure the 

continued structural stability of a 

geotechnical structure following 

dynamic loading. 

Under standard engineering 

methodologies, liquefaction potential 

analysis and post-liquefaction stability 

analysis includes several procedures to 

adequately analyze the structural 

strength of a CCR surface impoundment. 

Because only certain soils, such as loose 

sands, are susceptible to liquefaction, 

the rule requires only embankments 

constructed of such soils identified 

through liquefaction potential analysis 

to meet liquefaction factors of safety. 

Such liquefaction potential analysis 

would need to include proper soil 

characterization of the embankment 

soils for soil age and origin, fines 

content and plasticity index, water 

content, saturation, and maximum 

current, past, and anticipated future 

phreatic surface levels within the 

embankment, foundation, or abutments, 

location beneath the natural ground 

surface, and penetration resistance 

whether through standard penetration 

testing (SPT) or, ideally, cone 

penetration testing (CPT). Postliquefaction stability analysis would 

need to include detailed 

characterization of the site conditions, 

identification of the minimum 

liquefaction-inducing forces based on 

soil characterization, determination of 

seismic effect on liquefied layers of the 

embankment, and calculation of factors 

of safety against each liquefied layer of 

the embankment. 

(f) The Calculated Static Factor of Safety 

Under the End-of-Construction Loading 

Condition 

The End-of-Construction loading 

condition must be calculated for new 

CCR surface impoundments to ensure 

that the CCR surface impoundment can 

withstand a ‘‘first-filling’’ of the 

embankment, during which time the 

embankment first become saturated and 

is subject to phreatic flow through the 

cross-section. 

Embankments are typically 

constructed in layers with soils at or 

above their optimum moisture content 

that undergo internal consolidation 

because of the weight of the overlying 

layers. Embankment layers may become 

saturated during construction as a result 

of consolidation of the layers or by 

rainfall. Because of the low permeability 

of fine-grained soils of which many 

embankments are constructed and the 

relatively short time for construction of 

the embankment, there can be little 

drainage of the water from the soil 

during construction: resulting in the 

development of significant pore 

pressures. Soils with above optimum 

moisture content will develop pore 

pressures more readily when compacted 

than soils with moisture contents below 

optimum. In general, the most severe 

construction loading condition is at the 

end of construction. 

The final rule requires that the 

calculated static factor of safety for the 

critical cross section of the CCR surface 

impoundment under end of 

construction loading conditions meet or 

exceed 1.30. The End-of-Construction 

loading condition is analyzed for new 

construction under their initial filling 

condition, following the completion of 

construction. Undrained shear strength 

conditions are typically assumed for the 

End-of-Construction loading condition. 

Both the upstream and downstream 

slopes of the embankment are analyzed 

for this condition 

(g) Failure To Demonstrate Minimum 

Safety Factors or Failure To Complete a 

Timely Safety Factor Assessment 

As previously discussed, the rule 

requires an owner or operator to 

document that the calculated factors of 

safety for each CCR surface 

impoundment achieve the minimum 

safety factors specified in the rule. For 

any CCR surface impoundment that 

does not meet these requirements, the 

owner or operator must either take any 

engineering measure necessary to 

ensure that the unit meets the 

requirements by the rule’s deadlines, or 

cease placement of CCR and non-CCR 

waste into the unit and initiate closure 

of such CCR unit as provided in section 

257.102 within six months. Similarly, if 

an owner or operator fails to complete 

the initial safety factor assessment or 

any subsequent periodic factor safety 

assessment by the deadlines established 

in the rule, the owner or operator must 

cease placing CCR and non-CCR waste 

into the unit and initiate closure within 

six months. 

(h) Vertical Expansions of CCR Surface 

Impoundments and Structural Integrity 

Criteria 

It is not uncommon for the owner or 

operator to raise the crest of a CCR 

surface impoundment to accommodate 

the additional capacity needs of the 


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100As evidenced in 42 U.S.C. 6971(f), Congress 

intended that the Occupational Safety and Health 

Administration (OSHA) be able to enforce its 

regulations to protect workers exposed to hazardous 

waste and that EPA and OSHA would work together 

to ensure that. EPA is clarifying that it intends that 

the CCR disposal rule not preempt applicable 

OSHA standards designed to protect workers 

exposed to CCRs; thus EPA’s final rule on CCR 

disposal will apply in addition to any applicable 

OSHA standards. The Agency has added specific 

regulatory language in this section to address this 

intent. 

101For instance, photographic evidence provided 

by Susan Holmes, the Bokoshe Environmental 

Cause Group (B.E. Cause), Bokoshe, Oklahoma. See 

Earthjustice’s brief background coverage at: http:// 

earthjustice.org/blog/2011-april/not-having-fun-inbokoshe-ok, and ABC News’ Oklahoma Town Fears 

Cancer, Asthma May Be Linked to Dump Site, 

March 29, 2011: http://abcnews.go.com/US/

oklahoma-town-fears-cancer-asthma-linked-dumpsite/story?id=13240312. 

102A compilation of damage cases can be found 

in the docket supporting this rule. 

facility. The record documents that CCR 

surface impoundments are commonly 

expanded from the original design or asbuilt construction, through such 

‘‘vertical expansions,’’ including where 

a CCR surface impoundment changes 

from a ‘‘small’’ CCR unit (i.e., below the 

height and/or volume threshold) to a 

‘‘large’’ CCR unit (i.e., exceeding the 

height and/or volume threshold). In 

these situations, the owner or operator 

of the CCR unit becomes subject to 

additional structural integrity 

requirements as a result of the vertical 

expansion. Realizing that these newly 

created CCR units will require some 

time to meet the structural integrity 

requirements, the Agency is allowing 

one year from the completion of the 

vertical expansion for the owner or 

operator to comply with the 

requirements of §§ 257.73 or 257.74, as 

applicable. 

F. Operating Criteria—Air Criteria 

EPA proposed to require CCR 

landfills, CCR surface impoundments 

and any lateral expansion to control the 

creation of fugitive dust. Specifically, 

EPA proposed that facilities must 

ensure that fugitive dust either not 

exceed the standard of 35 mg/m3, 

established as the level of the 24-hour 

National Ambient Air Quality Standards 

(NAAQS) for fine particulate matter 

(PM–2.5), or any alternative standard 

established pursuant to applicable 

requirements developed under a State 

Implementation Plan (SIP) approved or 

promulgated by the Administrator 

pursuant to section 110 of the CAA (see 

75 FR 55175). Consistent with the 

numerical standard, EPA proposed to 

require that CCR units be managed to 

control the wind dispersal of dust, and 

that CCR landfills also be required to 

emplace wet conditioned CCR (i.e., 

wetting CCR with water to a moisturecontent that prevents wind dispersal 

and facilitates compaction, but does not 

result in free liquids) into the unit. EPA 

also required that documentation of the 

measures taken to comply with the 

requirements be certified by an 

independent registered professional 

engineer. EPA proposed these 

requirements based on the results of a 

screening level analysis of the risks 

posed by fugitive dust from CCR 

landfills, which showed that without 

fugitive dust controls, levels at nearby 

locations could exceed 35 mg/m3, 

established as the level of the 24-hour 

PM 2.5 NAAQS for fine particulate. 

These measures were also intended to 

reduce the excessive cancer risks 

associated with the inhalation of 

hexavalent chromium. This potential 

risk would apply to over six million 

people who live within the census 

population data ‘‘zip code tabulation 

areas’’ for the 495 rule-affected electric 

utility plant locations. (See 75 FR 

35215.) 100

As part of the proposal, EPA solicited 

comments on the following fugitive dust 

issues: (1) The location of air monitoring 

stations near CCR landfills or CCR 

surface impoundments; and (2) 

information on any techniques, such as 

wetting, compaction, or daily cover that 

are or can be employed to reduce 

exposures to fugitive dust. The Agency 

received no information from 

commenters on either of these issues. 

The majority of comments received, 

however, took issue with the proposed 

technical standard of 35 ug/m3. 

Commenters argued that, as proposed, 

the standard would be impossible to 

implement because the Agency 

provided no information on particle 

size, form of the standards, whether an 

averaging period is available, point of 

compliance or how one considers 

upwind sources. More generally, 

however, commenters argued that the 

proposed provisions were unnecessary 

because fugitive dust issues were 

adequately addressed by existing air 

rules through the development and 

implementation of NAAQS, such as 

PM10 and PM2.5. These same 

commenters acknowledged, however, 

that if the Agency established a criterion 

to control fugitive dusts, a more 

appropriate and reasonable standard 

could be based on best management 

practices or BMPs. To that end, 

commenters offered information 

suggesting that CCR landfills typically 

used compaction, regular wetting and 

temporary covers in conjunction with 

visual air monitoring to effectively 

control fugitive dust at their facilities, 

and that these practices were included 

in facility operating plans. 

As discussed in the proposed rule, 

EPA’s decision to address fugitive dust 

was based on a peer review of the 2010 

draft Risk Assessment, 2007 NODA 

stakeholder comments, photographic 

documentation of fugitive dust 

associated with the management of CCR, 

Agency actions to control fugitive 

emissions during the clean-up of the 

December 2008 TVA Kingston spill, and 

OSHA’s Material Safety Data Sheets 

(now Safety Data Sheets (SDS)) 

requirements for coal ash. These lines of 

evidence have been bolstered since the 

proposal, by evidence collected during 

the eight 2010 CCR public hearings, 

where stakeholders provided extensive 

feedback about fugitive dust impacts 

associated with CCR management at 

facilities adjacent to their residences, 

and by documented reports on fugitive 

dust issues provided by citizen 

groups.101 The stakeholders called for 

federal oversight to address those 

instances where complaints were 

seemingly ignored by state regulators 

and/or where state administrative 

enforcement measures failed to compel 

the utilities to effectively amend their 

dust emission control management 

practices. The Agency followed up on 

the complaints with state agencies and 

compiled a preliminary database on 

documented and alleged fugitive dust 

damage cases.102

In support of this rule, EPA compiled 

records of over 20 documented fugitive 

dust cases, in addition to several alleged 

cases that could not be verified. The 

documented cases indicate that fugitive 

dust concerns arise in all phases of the 

CCR life cycle—from conveyor belt 

transfer at the coal-fired power plant, 

through stockpiling and transport for 

disposal/beneficial use, and up to final 

disposition. Fugitive dust also is a 

potential concern associated with 

both—landfills and surface 

impoundments. Whereas a nexus 

between fugitive dust impacts and CCR 

landfill operations was to be expected, 

EPA discovered that fugitive dust was 

also of concern at CCR surface 

impoundments, either under conditions 

of windy winter spells affecting CCR 

exposed above or next to the CCR 

surface impoundment boundary, or due 

to the total CCR surface impoundment 

evaporation in arid areas. 

Very few studies have been 

undertaken to test the health impacts 

caused by fugitive dust emissions, and 

of those few, due to inherent 

limitations, all failed to prove that 

fugitive dust was the cause of the 

documented health concerns. For 

example, in the wake of the January 


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103 (i) Coal Fly Ash Landslide, Forward Township, 

Allegheny County, Pennsylvania, ASTDR Health 

Consultation June 1, 2006: http://

www.atsdr.cdc.gov/HAC/pha/CoalFlyAsh

Landslide/CoalFlyAshLandslideHC060106.pdf (ii) 

Results of the Health Investigation Following Fly 

Ash Contamination in Forward Township, 

Allegheny County, Pennsylvania, Allegheny County 

Health Department, July 2005: http://

www.achd.net/air/pubs/pdf/Forward%20Fly%20

Ash%20Study%202005.pdf. 

104 Millsboro Inhalation Exposure and 

Biomonitoring Study. State of Delaware Department 

of Natural Resources and Environmental Control, 

Department of Health and Social Services, Dover 

(RTI Project 0213061), DE, May 2013: http://www.

dnrec.delaware.gov/Admin/Documents/Millsboro_

Inhalation_Exposure_and_Biomonitoring_Study_

Final_Repor_05282013.pdf. 

105Critic chides cancer study: Indian River plant 

results called lame. Delawareonline, May 28, 2013: 

http://www.delawareonline.com/article/20130528/

NEWS/305280081/. 

2005 coal ash pile collapse at the 

Rostosky Ridge Road, in Allegheny 

County, Pennsylvania, both the federal 

and county studies 103 failed to test 

during this period and missed the 

narrow exposure window that would 

have possibly demonstrated a link 

between the event and the short-term 

health symptoms (e.g., sore throat, 

cough, fever, nausea, fatigue, diarrhea, 

and headaches) contracted by residents 

who ultimately removed approximately 

1,500 tons of fly ash from their 

properties immediately after the 

incident without the benefit of any 

protective respiratory gear. The federal 

and county studies also found no 

evidence of long-term arsenic poisoning 

of the tested individuals. For recurring 

instances of CCR dispersion in the air at 

the Indian River Power Plant, Millsboro, 

Delaware, three consecutive state 

studies tentatively established other risk 

factors as the probable cause for a lung 

cancer cluster in a down-wind location 

of the presumable source term (CCR 

fugitive dust blowing of a landfill and 

stack emissions).104 Critics claim that 

these studies used too small of a sample, 

and were not designed to capture the 

impact of long-term exposure to 

pollution.105

Nevertheless, in eleven other cases, 

states adopted measures to address 

concerns from fugitive dust emissions; 

these included conducting lung-cancer 

cluster and other health studies, 

conducting particle dispersion studies, 

issuing Notices of Violation and 

Consent Orders to the responsible 

facilities, waiving landfill cover 

exemptions, and requiring dust 

management plans for newly permitted 

CCR landfills. In addition, in several 

instances, citizens filed lawsuits or 

reached an out-of-court settlement with 

the primary responsible party; and in 

one case, OSHA imposed a steep fine on 

the owners of a facility manufacturing 

abrasive blasting and roofing materials 

from slag produced at a nearby coalfired power plant, for willfully exposing 

their workers to dangerously high levels 

of hazardous dust, and for failing to 

provide adequate breathing protection 

and training for workers at the facility. 

According to stakeholder allegations, 

fugitive dusts generated by these same 

materials also adversely impacted 

residents in the facility’s immediate 

vicinity. 

As previously stated, many 

commenters argued that the proposed 

numeric particulates standard was 

incompatible with the air quality 

requirements established under the 

States’ Implementation Plans (SIPs) or 

with provisions set up by the states in 

their Title V Clean Air Permits to the 

power producers. In addition, the 

commenters argued that the proposed 

standard lacked technical details to 

facilitate effective implementation, and 

that implementation of the standard 

required specialized equipment and 

advanced training to carry out a 

judicious reading and interpretation of 

opacity, a proxy measure for the level of 

fugitive dust emissions. In light of these 

comments, EPA re-evaluated the 

existing CAA standards applicable to 

these units; 40 CFR 70.2 identifies 

fossil-fuel-fired steam electric plants of 

more than 250 million BTU/hour heat 

input as potential sources of fugitive 

dust (PM sources) that must be covered 

by state permitting, and 40 CFR 70.3 

stipulates that fugitive emissions from a 

part 70 source shall be included in the 

permit application and the part 70 

permit in the same manner as stack 

emissions, regardless of whether the 

source category is included in the list of 

sources contained in the definition of 

major source. Based on these applicable 

CAA requirements, the Agency agrees 

that the adoption of a PM standard 

under the final rule would entail a 

potential for duplication or 

inconsistency with applicable stateestablished standards in SIP permits. 

EPA also acknowledges the challenges 

involved in measuring the proposed 

compliance standard. Because fugitive 

dust is emitted from non-point sources, 

it cannot be easily measured by 

conventional methods. Usually, 

regulations developed by the states to 

control fugitive dust stipulate that no 

person or source shall cause or allow, 

from any activity, any emissions of 

fugitive particulate matter that are 

visible to an observer who looks 

horizontally along the source’s property 

line. A quantitative measurement of 

fugitive dust levels (EPA’s Reference 

Method 9) would require measuring 

opacity, which, as the commenters 

noted, necessitates specialized technical 

training, trainee certification, and 

judicious application of 

instrumentation. 

Therefore, rather than requiring a 

potentially redundant and challengingto-implement quantitative standard, 

EPA is substituting a performance 

standard for fugitive dust control. This 

standard requires owners or operators of 

a CCR unit to adopt measures that will 

effectively minimize CCR from 

becoming airborne at the facility, 

including CCR fugitive dust originating 

from CCR units, CCR piles, roads, and 

other CCR management activities. The 

Agency considers this standard to be 

consistent with the intent of the 

proposed rule, with the added 

advantage of allowing facilities the 

flexibility to determine the appropriate 

measures to achieve regulatory 

compliance at their individual site. This 

standard and the accompanying 

regulatory requirements supporting its 

implementation, will achieve the 

statutory obligation of ‘‘no reasonable 

probability of adverse effects on human 

health and the environment.’’ 

As in the proposal, the Agency is also 

requiring documentation of the 

measures taken to comply with the 

technical standard in a ‘‘CCR fugitive 

dust control plan’’ (herein referred to as 

‘‘plan’’). Consistent with the proposal, 

the plan must be certified by a qualified 

professional engineer and placed in the 

operating record and on the owner or 

operators publicly accessible internet 

site. The plan requires owners or 

operators to elaborate on the types of 

activities applicable and appropriate for 

the conditions at the facility that will be 

employed to minimize CCR from 

becoming airborne at the facility. 

Examples of control measures that may 

be appropriate include: Locating CCR 

inside an enclosure or partial enclosure; 

operating a water spray or fogging 

system; reducing fall distances at 

material drop points; using wind 

barriers, compaction, or vegetative 

covers; establishing and enforcing 

reduced vehicle speed limits; paving 

and sweeping roads; covering trucks 

transporting CCR; reducing or halting 

operations during high wind events; or 

applying a daily cover. 

The initial plan must be completed by 

the effective date of the rule (i.e., within 

six months of publication). Because this 

is an initial plan, and because it must 

be completed within a short timeframe, 

EPA acknowledges that the facility may 

only be able to present its initial 

judgment of the measures that it 

anticipates are likely to be effective 

based on the information that is readily 

available within this six month 


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21388 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

106Spray-on adhesives, surfactants, aqueous 

foamers, humectants (calcium, magnesium, ad 

sodium chloride and their mixtures), and polymer 

solutions and emulsions. See, for instance ‘‘The 

Role of Chemicals in Controlling Coal Dust 

Emissions’’ Benetech, Inc. available at http://

pdf.ebooks6.com/download.php?id=139860 or 

Peterson, Edwin. ‘‘An Aid to Fugitive Materials 

Control in Coal Ash Applications’’ presented at the 

World of Coal Ash (WOCA) conference—May 9–12, 

2011 in Denver, Colorado. 

107 In the proposed rule under the RCRA subtitle 

D option, EPA jointly proposed run-on and run-off 

requirements for CCR landfills and CCR surface 

impoundments under proposed § 257.81. In this 

final rule, EPA has modified the ‘‘run-on and runoff’’ requirements and is providing separate 

requirements for CCR landfills and CCR surface 

impoundments. CCR surface impoundments are 

now subject to the hydrologic and hydraulic 

capacity requirements at § 257.82. This new section 

of the rule more appropriately addresses flow 

management issues at CCR surface impoundments. 

timeframe. EPA anticipates that owners 

or operators may need to revise the plan 

as they gain additional information and 

experience implementing the 

regulations. In recognition of this, the 

final rule also requires that the CCR 

fugitive dust control plan include a 

description of the procedures the owner 

or operator will follow to periodically 

assess the effectiveness of the control 

plan. Consistent with other plans 

required in this rule, the owner or 

operator may amend the written CCR 

fugitive dust control plan at any time. 

However, the owner or operator must 

amend the written plan whenever there 

is a change in conditions that would 

substantially affect the written plan in 

effect, such as the construction and 

operation of a new CCR unit. The plan 

and any subsequent amendments must 

be certified by a qualified professional 

engineer. 

In addition, the Agency is 

promulgating with a slight modification 

the requirement for owners and 

operators of all CCR landfills and any 

lateral expansion to emplace CCR as 

conditioned CCR, as well as the 

definition of conditioned CCR. 

Conditioned CCR has been defined to 

mean CCR wetted with water to a 

moisture content that will prevent wind 

dispersal, but will not result in free 

liquids, consistent with the definition in 

the proposed rule. In response to several 

commenters’ requests, and upon further 

evaluation the Agency is allowing that 

in lieu of water, CCR conditioning may 

be accomplished with an appropriate 

chemical dust suppression agent.106 As 

with other requirements of this rule, in 

order to ensure that the provisions of 

the fugitive dust criteria are maintained 

throughout the operating life of the CCR 

unit, the Agency is requiring that the 

owner or operator prepare an annual 

CCR fugitive dust control report, 

describing the actions taken to control 

CCR fugitive dust, a record of all citizen 

complaints, and a summary of any 

corrective measures taken. The first 

annual report must be completed no 

later than 14 months after placing the 

initial CCR fugitive dust control plan in 

the facility’s operating record. The 

owner or operator has completed the 

annual CCR fugitive dust control report 

when the plan has been placed in the 

facility’s operating record. 

The general public, as well as the 

Agency, is highly concerned with 

potential risks associated with CCR 

fugitive dusts. This was readily 

apparent during the public hearings and 

from the many comments received on 

this issue. The Agency continues to 

receive information regarding this 

human health and environmental 

concern. While the subtitle D provisions 

of this rule lack permitting oversight 

mechanisms to control fugitive dust 

from CCR units, it is clear to the Agency 

that additional substantive actions was 

needed to facilitate citizen suit 

enforcement of this criteria. 

Consequently, the Agency are adding a 

specific requirement to the CCR fugitive 

dust control plan to require owners and 

operators of all CCR units to develop 

and implement formal procedures to log 

citizen complaints involving CCR 

fugitive dust events. These complaints 

must, then, be included as part of the 

annual CCR fugitive dust control report. 

This report must be placed in the 

operating record and on the owner or 

operator’s publicly accessible internet 

site. Promulgation of these measures 

will subject the owner or operator of the 

CCR disposal facility to public and state 

scrutiny, and create an incentive for the 

owner or operator of the CCR disposal 

facility to improve compliance with the 

fugitive dust control requirements. 

G. Operating Criteria—Run-On and 

Run-Off Controls for CCR Landfills 

EPA’s proposal required owners or 

operators of CCR landfills and all lateral 

expansions to design, construct and 

maintain a run-on control system to 

prevent flow onto the active portion of 

these units during the peak discharge 

from a 24-hour, 25-year storm. As 

described in the proposed rule, run-on 

controls are designed to prevent erosion, 

which may damage the physical 

structure of the landfill, prevent the 

surface discharge of CCR in solution or 

suspension; and to minimize the 

downward percolation of run-on 

through wastes, creating leachate. 

Similarly, EPA proposed run-off 

controls in order to collect and control, 

at a minimum, the water volume 

resulting from a 24-hour, 25-year storm. 

This standard was proposed in order to 

protect surface waters from 

contamination. Under the existing 40 

CFR part 257 requirements, to which 

CCR units are currently subject, run-off 

must not cause a discharge of pollutants 

into waters of the United States that is 

in violation of the National Pollutant 

Discharge Elimination System (NPDES) 

under section 402 of the Clean Water 

Act. EPA did not propose to revise the 

existing requirement, but merely 

incorporated it for ease of the regulated 

community. 

The Agency proposed the 24-hour 

period because it was a timeframe that 

included storms of high intensity with 

short duration and storms of low 

intensity with long duration. EPA 

believed that this was a widely used 

standard that had been incorporated 

into the hazardous waste landfills and 

MSW landfills regulatory requirements. 

At the time, EPA had no information 

that warranted a more restrictive 

standard for CCR landfills. EPA received 

no significant comment on the proposed 

requirements, and for the most part, is 

adopting the proposed requirements 

without revision. However, in an effort 

to clarify and provide more direction to 

the owner or operator and the certifying 

qualified professional engineer, the 

Agency has added additional regulatory 

language that more specifically 

describes the technical criteria 

established under this section of the 

rule. 

The run-on and run-off controls of the 

final rule require that the owner or 

operator prepare the initial run-on and 

run-off control system plan within 18 

months of publication of the rule. Runon and run-off control system plan 

reporting may require design, 

construction, and post-construction 

implementation. In instances where 

run-on and run-off capacity is 

insufficient, installing additional 

capacity may involve construction of 

diversion structures such as swales or 

ditches. Many of these efforts may 

require several months of design and 

construction, compounded by the fact 

that much of the work cannot be 

completed in cold-weather or heavyrain seasons. 

1. Run-On and Run-Off Controls for CCR 

Landfills and All Lateral Expansions 107

All CCR landfills and all lateral 

expansions must be designed, 

constructed, operated, and maintained 

with a run-on control system to prevent 

flow onto the active portion of the CCR 

unit from the peak discharge from a 24- 

hour, 25-year storm and a run-off 

control system to collect and control at 


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21389 

108Under existing part 257 requirements, to 

which CCR units are currently subject, runoff must 

not cause a discharge of pollutants into waters of 

the United States that is in violation of the National 

Pollutant Discharge Elimination System (NPDES) 

under section 402 of the Clean Water Act (40 CFR 

257.3–3). EPA did not propose to revise this 

requirement but is merely incorporating it here for 

ease of the regulated community. 

least the volume of water resulting from 

a 24-hour, 25-year storm from the active 

portion of the CCR unit.108

Consistent with the proposal, the rule 

requires the owner or operator of a CCR 

landfill or lateral expansion to prepare 

an initial run-on and run-off control 

system plan for the CCR unit. For 

existing CCR landfills, the plan must be 

prepared by the owner or operator no 

later than one year from the effective 

date of the rule. For new CCR landfills 

and any lateral expansion of a CCR 

landfill, the plan must be prepared no 

later than the date of initial placement 

of CCR in the landfill or lateral 

expansion. The plan must document 

how the run-on and run-off control 

systems have been designed and 

constructed to meet the requirements of 

rule and must be supported by 

appropriate engineering calculations. 

The run-on and run-off control system 

plan must be certified by a qualified 

professional engineer and is considered 

prepared when the owner or operator 

has placed the plan in the facility’s 

operating record. 

The rule also provides for the owner 

or operator to amend the plan at any 

time (e.g., prior to receipt of CCR in the 

CCR unit, during the operating life of 

the CCR unit, during closure of the CCR 

unit, or following closure of the CCR 

unit) provided the revised plan is 

placed in the facility’s operating record. 

The owner or operator must, however 

revise the plan whenever there is a 

change in the conditions that would 

substantially affect the written plan in 

effect (e.g., closure of an existing portion 

or cell of the CCR landfill, resulting in 

a possible change in the size of the 

‘‘active portion’’ of the CCR landfill). 

In addition, consistent with other 

provisions in this rule, the Agency is 

requiring that the run-on and run-off 

control system plan be reviewed, and 

where necessary, revised or updated at 

least every five years. The Agency is 

specifying this periodic review in order 

to address factors having the potential to 

influence the run-on and run-off control 

system. Among other things, CCR 

landfills can be subject to build-out, 

operational changes, and surface cover 

changes, all of which have the potential 

to significantly alter run-on and run-off 

flows to and from the active portion of 

the CCR landfill. Changes in storm 

intensity and duration, as well as 

upstream catchment area characteristics, 

can alter flows that may significantly 

affect a previously adequate run-on and 

run-off control system. A mandated five 

year review of a control system plan is 

consistent with accepted good 

engineering practices and protocols for 

proper maintenance of operational 

systems supporting the overall 

performance of a CCR landfill. It is also 

consistent with the proposed 

requirement that an owner or operator 

‘‘maintain’’ the run-on and run-off 

control system. EPA interprets this to 

require the owner or operator to ensure 

that the run-on and run-off control 

system is kept in a condition that meets 

the requirements of the rule, i.e., that 

the run-on and run-off control system 

both prevents flow onto the active 

portion of the unit during the peak 

discharge from a 24-hour, 25-year storm 

and collects and controls at least the 

water volume resulting from a 24-hour, 

25-year storm event for the duration of 

the CCR landfill’s operational life. A 

requirement to conduct a review of the 

control plan at least once every five 

years merely provides an explicit 

mechanism to ensure this occurs in a 

manner that facilitates citizen and state 

oversight. 

The date of preparing the initial plan 

is the basis for establishing the deadline 

to complete the first subsequent plan; 

i.e., the subsequent plan must be 

completed within five years of the prior 

plan. The owner or operator may 

complete any required plan prior to the 

required deadline and must place the 

completed plan into the facility’s 

operating record within the five year 

timeframe. A qualified professional 

engineer must certify that the run-on 

and run-off control system plan, 

including any subsequent amendments, 

meets the run-on and run-off control 

system requirements of this final rule. 

a. Run-On Control 

Consistent with the proposal, EPA is 

defining run-on to mean any liquid that 

drains over land onto any part of a CCR 

landfill or any lateral expansion of a 

CCR landfill. In surface water 

hydrology, run-on is a quantity of 

surface run-off, or excess rain, 

snowmelt, or other sources of water, 

which flows from an upstream 

catchment area onto a specific 

downstream location. This rule requires 

that the CCR landfill be designed, 

constructed, operated, and maintained 

to prevent flow onto the active portion 

of the CCR landfill during the peak 

discharge from a 24-hour, 25-year storm. 

EPA has adopted this requirement to 

minimize the amount of surface water 

entering the CCR landfill and to 

minimize disruption of the CCR 

landfills operation due to storm water 

inflow. Uncontrolled or undesirable 

storm water run-on may have significant 

impacts on the stability of the slopes of 

a CCR landfill and continued safe 

operation of the CCR landfill, due to 

such phenomena as erosion and 

infiltration. 

b. Run-Off Control 

EPA has adopted the definition of 

run-off from the proposal without 

revision. Run-off means any liquid that 

drains over land from any part of the 

CCR landfill. Effectively, run-off is the 

portion of rainwater, snowmelt, or other 

liquid which does not undergo 

abstraction, such as infiltration, and 

travels overland. Typically, run-off is 

the product of the inability of water to 

infiltrate into soil due to saturation or 

infiltration rate capacity being 

exceeded. The rule requires that the 

CCR landfill be designed, constructed, 

operated, and maintained to collect and 

control at least the water volume 

resulting from a 24-hour, 25-year storm. 

The owner or operator must design, 

construct, operate, and maintain the 

CCR landfill in such a way that any runoff generated from at least a 24-hour, 

25-year storm must be collected through 

hydraulic structures, such as drainage 

ditches, toe drains, swales, or other 

means, and controlled so as to not 

adversely affect the condition of the 

CCR landfill. EPA has promulgated 

these requirements to minimize the 

detention time of run-off on the CCR 

landfill and minimize infiltration into 

the CCR landfill, to dissipate storm 

water run-off velocity, and to minimize 

erosion of CCR landfill slopes. An 

additional concern with run-off from 

CCR landfills is the water quality of the 

run-off, which may collect suspended 

solids from the landfill slopes. EPA 

acknowledges that the run-off 

requirements will also minimize the 

amount of run-off related pollution 

generated by the landfill run-off. 

c. Run-On and Run-Off Control System 

Plan 

The owner or operator of any CCR 

landfill must prepare an initial run-on 

and run-off control system plan 

documenting, with supporting 

engineering calculations, how the 

control systems have been designed and 

constructed to meet the requirements of 

the rule. This has been adopted without 

revision from the proposal. In most 

cases, EPA expects this documentation 

will include in addition to the 

supporting engineering calculations, 

references and drawings regarding the 


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21390 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

109EPA referred to FEMA’s ‘‘Federal Guidelines 

for Dam Safety: Selecting and Accommodating 

Inflow Design Floods for Dams’’ in evaluating the 

adequacy of the CCR surface impoundment’s 

hydrologic and hydraulic capacity during its 

assessment effort. 

110http://www.usbr.gov/ssle/damsafety/Risk/

BestPractices/16- 

FloodOvertoppingPP20121126.pdf. 

identification of the 24-hour, 25-year 

storm for the location of the CCR 

landfill, a characterization of the rainfall 

abstractions, including but not limited 

to depression storage and infiltration, 

the selection and basis of an appropriate 

run-off model, the selection and basis of 

an appropriate run-on or run-off routing 

model, and the selection and design of 

an appropriate run-on and run-off 

management system (e.g., swales, 

ditches, retention or detention ponds). 

Consideration of the above factors 

would generally constitute a 

comprehensive review of the hydraulic 

and hydrologic processes associated 

with the design of a run-on and run-off 

control system plan. EPA recognizes 

that over time, any number of factors, 

e.g., expansion of the facility, could 

affect a change in the run-on and runoff control system plan. Consequently in 

the final rule EPA is providing for 

flexibility in this area by stating that the 

plan can be amended by the owner or 

operator at any time during the life of 

the CCR landfill, provided the 

amendments are placed in the operating 

record and on the facility’s publicly 

accessible Internet site. 

H. Operating Criteria—Hydrologic and 

Hydraulic Capacity Requirements for 

CCR Surface Impoundments 

As discussed in the previous section, 

EPA proposed to require owners or 

operators of CCR landfills to design, 

construct, operate, and maintain: (1) A 

run-on control system to prevent flow 

onto the active portion of the unit 

during the peak discharge from a 24- 

hour, 25-year storm; and (2) a run-off 

control system to collect and control, at 

a minimum, the water volume resulting 

from the same 24-hour, 25-year storm. 

EPA also proposed to apply these same 

run-on and run-off requirements to all 

CCR surface impoundments and lateral 

expansions. 

Commenters overwhelmingly 

disagreed with EPA’s decision to apply 

the same run-on and run-off 

requirements to both CCR landfills and 

CCR surface impoundments, arguing 

that a ‘‘control system to prevent flow 

onto the active portion of the surface 

impoundment’’ was at odds with a 

commonly employed practice of using 

CCR surface impoundments to manage 

incoming storm water and other inflow. 

While some commenters reasoned that 

preventing run-on may be appropriate 

for CCR landfills and CCR surface 

impoundments surrounded by aboveground dikes, the proposed requirement 

was entirely inappropriate for units 

specifically designed to retain storm 

water from an adjoining watershed or to 

operate as part of a facility’s overall 

storm water management system. 

Numerous commenters suggested that 

instead of the run-on prevention 

provision for CCR surface 

impoundments, EPA adopt a 

requirement specifying that CCR surface 

impoundments be designed to 

accommodate ‘‘peak discharge events.’’ 

Other commenters argued that storm 

water run-on controls were only 

appropriate during and after the closure 

of CCR surface impoundments; while 

still other commenters suggested that 

EPA remove entirely the run-on and 

run-off requirements because CCR 

surface impoundments were typically 

designed to impound and discharge 

storm water flow far in excess of a 25- 

year/24-hour storm event. 

In evaluating the arguments against 

the requirements to prevent flow onto 

the CCR surface impoundment, the 

Agency was strongly influenced by 

guidance developed by FEMA for 

selecting and accommodating hydraulic 

and hydrologic inflow and outflow as 

well as the application of this guidance 

to the CCR surface impoundments 

evaluated as part of EPA’s Assessment 

Program.109 A review of FEMA guidance 

confirmed commenters’ contentions that 

managing flow both to and from dams 

and impoundments was a widely used 

practice, and a preferable management 

strategy for accommodating storm water 

flows. This was further confirmed by 

observations made during EPA’s 

Assessment Program; EPA frequently 

observed units designed to detain or 

retain storm water inflows of an 

upstream catchment area to manage 

CCR, and/or to receive storm water 

inflow as part of the facility’s overall 

storm water management system. 

Moreover, EPA relied on the same 

FEMA guidance to assess the adequacy 

of the hydrologic and hydraulic capacity 

of the CCR surface impoundments. In 

conducting these assessments, EPA 

considered a number of factors 

including operating freeboard, 

catchment area, hydrologic structures’ 

inflow and outflow ratings, design 

precipitation event, spillway presence 

and capacity, and unit operating 

procedures to make this determination. 

The adequacy of the capacity was 

determined using FEMA guidance for 

selecting and accommodating inflow 

design floods (IDF) for dams. (Note: The 

use of the terminology related to 

‘‘inflow design flood’’ for CCR surface 

impoundments rather than ‘‘run-on’’ 

and ‘‘run-off’’ is more directly 

applicable to the hydraulic and 

hydrologic capacity of CCR surface 

impoundments to adequately manage 

both the inflow and outflow from a 

design flood.) 

During its assessment effort, EPA also 

found that, contrary to commenter’s 

arguments CCR surface impoundments 

were often not designed to address 

floods in excess of a 24-hour, 25-year 

storm event. Rather many CCR surface 

impoundments were deficient in their 

hydrologic and hydraulic capacity 

requirements due to factors such as lack 

of operating freeboard, 

misunderstanding of the actual 

contributory area, lack of 

documentation, undersized decant 

structures, undersized spillways, and 

lack of spillways. 

EPA also disagrees with the comment 

asserting that storm water controls are 

only appropriate during and after 

closure of CCR surface impoundments. 

Hydrologic and hydraulic capacity, as 

determined by an effective design flood 

control system, is an essential element 

of the overall structural integrity and 

safety of a CCR surface impoundment. 

CCR surface impoundments are subject 

to any number of stresses throughout 

their operational life; one of the most 

common causes of a dike or 

embankment failure being the inability 

of the CCR unit to adequately pass or 

manage flood flows resultant from direct 

or indirect precipitation. These failures 

can occur at any point in the CCR unit’s 

life, not solely during and after closure, 

and are usually due to inadequate 

hydrologic and hydraulic capacity, 

leading to internal erosion due to 

seepage and piping, erosion of 

spillways, overtopping erosion, and 

overstressing of the embankment. 

Furthermore, according to the U.S. 

Bureau of Reclamation, a common dam 

failure mode is due to overtopping, 

accounting for 30% of the failures in the 

U.S. over the last 75 years.110

Overtopping is the direct result of lack 

of adequate hydrologic and hydraulic 

capacity of a dam or surface 

impoundment. Therefore, EPA is not 

modifying the regulation as suggested 

by the commenter. 

In light of comments received, 

observations made during EPA’s 

Assessment Program, and guidance 

developed by FEMA, EPA has 

concluded that it was inappropriate to 

propose to prohibit all run-on discharge 

or inflow from storm water to CCR 

surface impoundments. EPA has also 


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21391 

111 Federal Guidelines for Dam Safety: Selecting 

and Accommodating Inflow Design Floods for 

Dams. August 1, 2013. FEMA P–94. 

112All discharge from the CCR surface 

impoundment must be handled in accordance with 

the surface water requirements under § 257.3–3. 

113 Incised CCR surface impoundment means a 

CCR surface impoundment which is constructed by 

excavating entirely below the natural ground 

surface, holds an accumulation of CCR entirely 

below the adjacent natural ground surface, and does 

not consist of any constructed diked portion. 

concluded that run-on and run-off 

criteria are inappropriate for CCR 

surface impoundments, and that a more 

appropriate standard involves 

determining the hydrologic and 

hydraulic capacity of a unit, measured 

by its inflow design flood or IDF. 

Therefore, EPA is amending the 

proposed run-on and run-off 

requirements for CCR surface 

impoundments to require owners or 

operators of all CCR surface 

impoundments to design, construct, 

operate, and maintain hydraulic and 

hydrologic capacity to adequately 

manage flow both into and from a CCR 

surface impoundment during and after 

the peak discharge resulting from the 

inflow design flood, based on the 

Hazard Potential Classification of the 

CCR surface impoundment. 

The final rule requires the preparation 

of the initial inflow design flood control 

system plan within 18 months of 

publication of the final rule. In many 

cases, inflow design flood control 

system plan reporting may require 

design, construction, and postconstruction implementation in order to 

provide sufficient hydrologic and 

hydraulic (H/H) capacity for the CCR 

unit. In instances where H/H capacity is 

insufficient, installing additional 

capacity may involve spillway 

construction or decant structure 

construction or installation. Many of 

these efforts may require several months 

of design and construction, 

compounded by the fact that much of 

the work cannot be completed in coldweather or heavy-rain seasons. 

1. Inflow Design Flood Controls for CCR 

Surface Impoundments and All 

Expansions 

The Agency has concluded that the 

proposed requirement preventing runon to a CCR surface impoundment was 

both impractical and unwarranted and 

could possibly disrupt effective storm 

water management systems operating at 

CCR facilities. Therefore, consistent 

with FEMA guidance, the Agency is 

modifying this requirement to require 

an owner or operator of an existing or 

new CCR surface impoundment or any 

lateral expansion to design, construct, 

operate, and maintain H/H capacity of 

CCR surface impoundments to: (1) 

Adequately manage flow into the CCR 

surface impoundment during and 

following the peak discharge of the 

inflow design flood; and (2) adequately 

manage flow from the CCR unit to 

collect and control the peak discharge 

resulting from the inflow design flood. 

The inflow design flood is based on the 

hazard potential classification of the 

unit as required by § 257.73 and 

§ 257.74 of this rule.111 The inflow 

design floods for specific hazard 

potential classifications are as follows: 

(1) The probable maximum flood (PMF) 

for high hazard potential CCR surface 

impoundments; (2) the 1000-year flood 

for significant hazard potential CCR 

surface impoundments; (3) the 100-year 

flood for low hazard potential CCR 

surface impoundments; and (4) the 25- 

year flood for incised CCR surface 

impoundments.112

EPA has based this revised 

requirement on the FEMA’s guidance 

entitled, ‘‘Selecting and 

Accommodating Inflow Design Floods 

for Dams,’’ which represents current 

and accepted practices in dam 

engineering and provides a consistent 

and uniform standard that has been 

adopted throughout dam engineering. 

Incised CCR surface impoundments, 

as defined in this rule, are also required 

to meet inflow design flood 

requirements.113 While incised units do 

not pose the same potential for release 

as a diked unit, i.e., breach of dike and 

release of CCR, overtopping of an 

incised unit does represent a potential 

environmental hazard warranting 

control. EPA acknowledges, however, 

that overtopping of an incised unit 

would result in a release of CCR 

material through a surcharge flow, i.e., 

flow of a temporary stage overtopping 

the ‘‘crest’’ of the incised CCR surface 

impoundment, and would not 

precipitate the degradation of a dike and 

potential subsequent breach of a dike 

and massive release of contents of the 

CCR surface impoundment. To reflect 

the lower risks associated with such 

releases, and because incised CCR 

surface impoundments are not required 

to determine their hazard potential 

classification, the Agency is requiring 

that incised CCR surface impoundments 

only must accommodate a 25-year flood 

for the hydrologic and hydraulic 

capacity requirements of the rule. EPA 

chose the 25-year flood for incised CCR 

surface impoundments to maintain 

consistency with the proposed rule, 

which required that all units 

accommodate a 25-year storm event. As 

part of these requirements, EPA is also 

finalizing a definition of inflow design 

flood and flood hydrograph. Inflow 

design flood has been defined to mean 

the flood hydrograph that is used to 

design or modify the CCR surface 

impoundment and its appurtenant 

works, and flood hydrograph has been 

defined to mean the temporal 

distribution of inflow into a CCR surface 

impoundment. 

2. Inflow Design Flood Control Systems 

Controlling the inflow and outflow of 

the CCR surface impoundment reduces 

the risks of hydrologic failure, which 

include overtopping erosion, internal 

excessive seepage and piping, erosion of 

spillways, and overstressing of the 

structural components of the CCR 

surface impoundment. The CCR surface 

impoundment’s H/H capacity is to be 

designed based on the unit’s hazard 

potential classification as determined by 

a qualified professional engineer. To 

meet the performance standard in the 

rule, the CCR surface impoundment 

must be designed to have adequate H/ 

H capacity to ensure that rainfall and 

watershed characteristics have been 

accounted for, the hydraulic ratings of 

all intake structures are adequate and 

free of obstruction, operating freeboard 

is adequate, all spillways and decant 

structures have adequate capacity, and 

all downstream hydraulic structures 

have adequate capacity. While not 

required, an antecedent flood study may 

be necessary to characterize the 

condition of the CCR surface 

impoundment under normal operating 

conditions. 

EPA recognizes that in many 

impoundment configurations, an inflow 

design flood may be limited to the direct 

precipitation that falls within the 

perimeter of the CCR surface 

impoundment during a storm event, due 

to the lack of storm water inflow routing 

from adjacent catchment areas. Other 

CCR surface impoundments may have 

storm water or other hydrologic 

contributions from various catchment 

areas or other sources. The final rule’s 

hydraulic and hydrologic capacity 

standards require all CCR surface 

impoundments to have adequate 

hydraulic and hydrologic capacity to 

accommodate all contributory inflow to 

CCR surface impoundments, regardless 

of the inflow’s origin. 

The hydraulic and hydrologic 

capacity requirements will minimize the 

potential for overtopping to occur from 

normal or abnormal operations, 

overfilling, wind and wave action, 

rainfall, and run-on, and will ensure 

that the unit is operated with 

appropriate consideration of these 

potentially adverse conditions. The 

Agency notes, however, that the 

operating freeboard of a CCR surface 


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impoundment is subject to fluctuations, 

deviating from original design 

assumptions and specifications. 

Additionally, EPA notes that routine 

maintenance and alterations of 

hydraulic structures associated with the 

CCR surface impoundments, e.g., decant 

structures and spillways, can adversely 

impact the hydrologic and hydraulic 

capacity of the CCR surface 

impoundment. At no point should the 

inflow design flood exceed the capacity 

of the CCR surface impoundment, 

regardless of fluctuations in freeboard, 

maintenance of hydraulic structures, or 

other potential obstructions to the 

hydraulic and hydrologic capacity of the 

unit. The owner or operator must 

account for operational changes or 

diminished capacity in the calculation 

of hydraulic and hydrologic capacity of 

the CCR unit. 

3. Inflow Design Flood Control System 

Plan 

The owner or operator of an existing 

CCR surface impoundment must 

prepare an initial inflow design flood 

control system plan to document that 

the design and construction of the 

system will achieve the rule’s 

performance standards no later than 18 

months after the publication of this rule 

in the Federal Register. New CCR 

surface impoundments or lateral 

expansions of CCR surface 

impoundments must prepare an initial 

inflow design flood control system plan 

no later than the date of initial receipt 

of CCR in the unit. The owner or 

operator must obtain a certification from 

a qualified professional engineer that 

the plan meets all applicable 

requirements of the rule for inflow 

design flood control system plans. The 

plan must also be supported by 

appropriate engineering calculations. 

This documentation should also include 

references, and drawings regarding the 

identification of the design storm for the 

catchment area affecting the CCR 

surface impoundment and the CCR 

surface impoundment itself, a 

characterization of the rainfall 

abstractions, including but not limited 

to depression storage and infiltration in 

the upstream catchment area affecting 

the CCR surface impoundment. In 

addition, EPA expects supporting 

documentation to address the selection 

and basis of an appropriate run-off 

model and an appropriate run-on or 

run-off routing model; the identification 

and characterization of any intake or 

decant structures of the CCR surface 

impoundment; an appropriate 

characterization of the spillway(s) of the 

CCR surface impoundment and their 

capacity; and characterization of 

downstream hydraulic structures which 

ultimately receive the discharge from 

the CCR surface impoundment. Finally, 

the owner or operator must comply with 

the recordkeeping, notification and 

internet requirements specified in the 

rule for the plan. 

The owner or operator may amend the 

written inflow design flood control 

system plan at any time prior to receipt 

of CCR in the CCR unit, during the 

operating life of the CCR unit, during 

closure of the CCR unit, or following 

closure of the CCR unit provided the 

revised plan is placed in the facility’s 

operating record. The owner or operator 

must amend the written inflow design 

flood control system plan whenever 

there is a change in the conditions that 

would substantially affect the written 

plan in effect. The owner or operator of 

the CCR surface impoundment must 

also periodically update the inflow 

design flood control system plan. The 

owner or operator must review or 

update an existing plan at a frequency 

no less than every five years. Changes in 

storm characteristics (e.g., intensity and 

duration) and upstream catchment area 

characteristics, hazard potential 

classifications, as well as build-out, 

operational changes, and diminishing 

available capacity, all have the potential 

to influence inflow design flood 

volumes and therefore the effectiveness 

of the existing inflow design flood 

control systems. A periodic review of 

the plan to address these and other 

factors is necessary to ensure that the 

hydrologic and hydraulic capacity of the 

unit is maintained over time. An update 

of the inflow design flood control 

system plan should document any 

modifications pertinent to the inflow 

design flood control system. 

The owner or operator may amend the 

written inflow design flood control 

system plan at any time and must place 

the revised plan in the facility’s 

operating record. However, the owner or 

operator must amend the written inflow 

design flood control system plan 

whenever there is a change in the 

conditions that would substantially 

affect the written plan in effect. The 

owner or operator of the CCR unit must 

also review and, where necessary, 

update an inflow design flood control 

system plan every five years. As part of 

this review, the owner or operator must 

obtain certification from a qualified 

professional engineer must certify that 

the inflow design flood control system 

plan, and any subsequent amendments 

continues to meet the requirements of 

the rule. The date of completion of the 

initial plan is the basis for establishing 

the deadline to complete the first 

subsequent plan. The owner or operator 

may complete any required plan prior to 

the required deadline, and must place 

the completed plan into the facility’s 

operating record within a reasonable 

amount of time. 

I. Operating Criteria—Inspection 

Requirements for CCR Surface 

Impoundments 

EPA proposed structural stability 

requirements for CCR surface 

impoundments based on the longstanding MSHA requirements, with only 

minor modifications. These structural 

stability requirements were covered in 

various sections of the proposed rule 

(see specifically proposed §§ 257.71, 

257.72, 257.83, and 257.84). Section 

257.83 addressed requirements for 

periodic inspections of CCR surface 

impoundments. In proposing these 

requirements, the Agency concluded 

that periodic inspections were critical to 

ensure that any problems relating to 

structural stability are quickly identified 

and remedied to prevent catastrophic 

releases, such as occurred at Martins 

Creek, Pennsylvania and TVA’s 

Kingston, Tennessee facility. The 

proposed rule required owners or 

operators to conduct: (1) Weekly 

inspections to detect potentially 

hazardous conditions or structural 

weakness; and (2) annual inspections to 

assure that the design, operation, and 

maintenance of the surface 

impoundment was in accordance with 

generally accepted engineering 

standards. EPA proposed that weekly 

inspections be conducted by a person 

qualified to recognize specific signs of 

structural instability and other 

hazardous conditions by visual 

observation and, if applicable, to 

monitor instrumentation. The proposed 

rule also required annual inspection 

reports from an independent registered 

professional engineer, certifying that the 

design, operation, and maintenance of 

the CCR surface impoundment was in 

accordance with generally accepted 

engineering standards. Consistent with 

the annual inspection requirements, 

EPA, as part of its recordkeeping 

requirements also proposed that owners 

or operators of CCR surface 

impoundments annually document and 

report on, among other things: (1) 

Changes in the geometry of the 

impounding structure; (2) location and 

type of instrumentation monitoring the 

unit; (3) the minimum, maximum and 

present depth and elevation of the 

impounded water, sediment or slurry 

for the reporting period; and (4) storage 

capacity of the impounding structure 

(see 75 FR at 35246). 

The annual inspection provisions also 

required that if a potentially hazardous 


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114See ‘‘Federal Guidelines for Dam Safety’’ 

Federal Emergency Management Agency. 

(Reprinted April 2004). 

condition developed, the owner or 

operator must immediately take several 

actions: Eliminate the potentially 

hazardous condition; notify potentially 

affected persons and state and local first 

responders; notify and prepare to 

evacuate, if necessary, all personnel 

from the property who may be affected 

by the potentially hazardous 

condition(s); and direct a qualified 

person to monitor all instruments and 

examine the structure at least once 

every eight hours, or more often as 

required by an authorized representative 

of the state. Finally, the proposed rule 

required that inspection and monitoring 

reports be maintained in the facility 

operating record and placed on the 

facility’s publicly accessible Internet 

site as well as promptly reporting the 

results of the inspection or monitoring 

to the state. 

EPA specifically requested comment 

on whether to cover all CCR 

impoundments for stability (including 

the inspection requirements), regardless 

of height and storage volume, whether 

to use the cut-offs in the MSHA 

regulations, or whether other 

regulations, approaches, or size cut-offs 

should be used. The Agency further 

requested commenters who believed 

that other regulations or size cut-offs 

should be used (and not the size cut-offs 

established in the MSHA regulations) to 

provide the basis and technical support 

for their position. (75 FR 35176, 35223). 

In response to EPA’s general solicitation 

for alternative size cut-offs, the Agency 

received little response. However, many 

commenters questioned EPA’s decision 

to require inspections for all CCR 

surface impoundments, given that the 

other structural stability requirements 

were triggered only if the CCR unit 

exceeded the proposed size threshold 

(consistent with MSHA requirements). 

Commenters argued that there was no 

basis to require inspections of all CCR 

surface impoundments given that units 

below the specified size threshold had 

a much lower risk of catastrophic 

failure. A more limited requirement the 

commenter’s argued, was supported by 

MSHA’s decision to regulate only those 

‘‘larger’’ sized units. Other commenters 

argued that inspection timeframes 

should take into account site specific 

conditions at the site and be based on 

the recommendations of an independent 

registered professional engineer. 

Commenters reasoned that while, in 

theory, a short inspection interval (i.e., 

a weekly inspection) should increase 

the chances of finding an adverse 

condition, the judgment of a qualified 

professional engineer to establish the 

frequency and focus, as well as the 

purpose of the dam safety inspection 

was a far more effective method for 

detecting and preventing the 

development of a potentially adverse 

situation. Still other commenters 

questioned the overall value of a weekly 

inspection if, as proposed, no 

documentation of the results was 

required. 

In reviewing the proposed regulatory 

language, it appears an error was made. 

Although the preamble generally stated 

that the proposed regulatory 

requirements addressing stability 

(which included inspections) applied 

only to those CCR surface 

impoundments exceeding the specified 

size threshold established by the MSHA 

regulations, the regulatory text required 

inspections for all CCR units. The final 

rule requires weekly general inspections 

and monthly instrumentation 

inspections to be conducted for all CCR 

surface impoundments. Periodic 

inspections of all CCR units are a 

necessary practice to ensure that the 

overall structural integrity of the CCR 

unit is maintained and that actual and 

potential structural weaknesses and 

other hazardous conditions are quickly 

identified and remediated throughout 

the active life of the unit. All CCR 

surface impoundments pose some risk 

of release—whether from a catastrophic 

failure or from a more limited structural 

failure, such as occurred at Duke 

Energy’s Dan River plant. Periodic 

inspections are a generally accepted, 

prudent engineering practice that will 

significantly reduce the risks of such 

failures; during the Assessment 

Program, EPA discovered that many 

facilities routinely conduct some sort of 

periodic inspection and monitoring, 

although the frequency varied widely 

between facilities. The final rule merely 

codifies this practice, by establishing a 

consistent minimum timeframe. EPA is 

therefore requiring that all CCR surface 

impoundments be inspected by a 

qualified person both weekly (for visual 

signs of a potentially adverse condition) 

and monthly (for instrumentation 

monitoring). Consistent with the 

proposed rule, EPA is also requiring 

annual inspections for all CCR surface 

impoundments that exceed the specified 

size threshold of: (1) A height of five 

feet and a storage capacity of 20 acrefeet; or (2) a height of 20 feet, must also 

be inspected no less than annually by a 

qualified professional engineer. These 

inspection requirements are generally 

being promulgated as proposed, with 

minor technical clarifications. 

The final inspection requirements 

have been drawn heavily from 

guidelines established by FEMA for dam 

safety, under which maintaining 

structural integrity involves continuous 

evaluation of the unit, based on periodic 

inspections. To be most effective, FEMA 

suggests, and EPA concurs, that 

inspections be varied with respect to 

both the time interval between 

inspections and the level of detail of the 

inspection. FEMA guidance, in part, 

suggests that inspections can be 

categorized as either: Visual 

observations to identify abnormal 

conditions (i.e., informal inspections); 

field inspections by a professional 

engineer (i.e., intermediate inspections); 

and a technical review to determine if 

the unit meets current and accepted 

design criteria and practices (i.e., formal 

inspection).114 In general, FEMA 

recommends that inspections focusing 

on visual observations should be 

conducted often (e.g., weekly) while 

more substantive technical evaluation 

should be conducted every year to every 

five years depending on the engineering 

analyses required. (See also the 

preamble discussion on the 

requirements specified in §§ 257.73 and 

257.74 of this rule, in particular the 

discussion addressing the five year time 

interval for structural stability and 

factor of safety reassessments.) 

For the reasons discussed above, EPA 

has concluded, consistent with FEMA 

guidelines, that routine inspections of 

all CCR units are necessary to ensure 

that the units are safely operated and 

that issues that could disrupt the safety 

and continuing operation of these units 

are promptly identified and remediated. 

Accordingly, the final rule requires both 

weekly inspections and monthly 

instrumentation inspections to be 

conducted at all CCR surface 

impoundments to confirm that they are 

operating safely. These inspections must 

be conducted by a qualified person 

trained to recognize specific signs of 

structural instability and other 

hazardous conditions by visual 

observation and if, applicable monitor 

instrumentation. EPA is also retaining 

the annual inspection requirement for 

CCR surface impoundments exceeding 

the specified size threshold established 

in this rule. This inspection must be 

conducted and certified by a qualified 

professional engineer. Units exceeding 

this size threshold pose a higher degree 

of risk of release of CCR to the 

environment than other types of CCR 

surface impoundments (e.g., incised or 

‘‘small’’ CCR units) and as such warrant 

additional regulatory control and 

oversight. 


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115The U.S. Army Corps of Engineers have 

developed useful criteria for post-earthquake 

inspections, specifically their published magnitudeepicenter distance criteria in Table 11.1 of ‘‘Safety 

of Dams—Policy and Procedures,’’ ER 1110–2– 

1156, 31 March 2014.115 The criteria stipulate when 

the dam (or in the case of this rule, CCR surface 

impoundment) should be inspected. 

The final rule requires that both 

weekly inspections of the CCR unit and 

monthly monitoring of CCR unit 

instrumentation be initiated within 6 

months of the publication of the rule. 

Within nine months of the 

publication of the rule, the owner or 

operator must complete the initial 

annual inspection of the CCR unit. 

Initial annual inspection requires the 

retaining of a professional engineer 

along with the familiarization of the 

engineer with the facility and CCR 

units. Additionally, the annual 

inspection should not be conducted 

unless weekly inspection and monthly 

instrumentation monitoring has been 

initiated and established in order to 

generate a body of information for the 

professional engineer to consider. 

Furthermore, in some cold-weather 

regions of the United States, weather 

may inhibit adequate inspection of CCR 

units, whether through snow or ice 

cover. EPA is establishing a timeframe 

of nine months after the publication of 

the rule so as to allow for adequate 

weather conditions for inspection. 

1. Surface Impoundment Inspection 

Requirements 

a. Weekly Inspections 

As presented in the proposed rule and 

finalized here, this rule requires all CCR 

surface impoundments to be examined 

by a qualified person at least once every 

seven days for any appearance of actual 

or potential structural weakness or other 

conditions that are disrupting or that 

have the potential to disrupt the 

operation or safety of the CCR unit. The 

results of the inspection by a qualified 

person must be recorded in the facility’s 

operating record. 

Weekly inspections are intended to 

detect, as early as practicable, signs of 

distress in a CCR surface impoundment 

that may result in larger, more severe 

conditions. They are also designed to 

identify potential issues with hydraulic 

structures that may affect the structural 

safety of the CCR surface impoundment 

and impact the hydraulic and 

hydrologic capacity of the CCR surface 

impoundment. The early detection of 

signs of structural weaknesses is an 

essential preventative measure which 

helps to impede structural failure. The 

required weekly inspections are 

designed to identify such signs of 

structural weakness before they develop 

into larger, debilitating concerns in the 

structural stability of the dike. 

Appearances of structural weakness 

may include, but are not limited to: (1) 

Excessive, turbid, or sediment-laden 

seepage; (2) signs of piping and other 

internal erosion; (3) transverse, 

longitudinal, and desiccation cracking; 

(4) slides, bulges, boils, sloughs, scarps, 

sinkholes, or depressions: (5) 

Abnormally high or low pool levels; (6) 

animal burrows; (7) excessive or lacking 

vegetative cover; (8) slope erosion; and 

(9) debris. 

In addition, EPA is also adopting a 

new provision that requires the 

qualified person to inspect the discharge 

of all outlets of hydraulic structures 

which pass underneath the base of the 

CCR surface impoundment or through 

the dike of the CCR unit for abnormal 

discoloration, flow, or discharge of 

debris or sediment. The requirement is 

being added to aid in the identification 

of any internal or sub-surface issues 

which cannot be reasonably identified 

in a routine visual inspection. Abnormal 

discharges from hydraulic structures are 

often an indication of potential issues 

with the sub-surface or internal integrity 

of the structure. Hydraulic structures, 

particularly corrugated metal pipe, are 

subject to deterioration and corrosion 

over time and, as deterioration 

proceeds, the hydraulic structure 

becomes more susceptible to collapse, 

translation, or malfunction. Issues with 

hydraulic structures within the dike 

may exacerbate structural or operational 

issues with the CCR surface 

impoundment due to the significant 

internal deterioration of the dike via the 

hydraulic structure. As an example, on 

February 2, 2014, Duke Energy’s Dan 

River Fossil Plant experienced a 

structural collapse of a corrugated metal 

storm water discharge pipe which 

passed underneath the interior of a CCR 

surface impoundment. The subsequent 

collapse of the base of the CCR surface 

impoundment led to a massive release 

of CCR to the environment. 

Additionally, the adjacent dike of the 

CCR surface impoundment was severely 

damaged due to the erosion of the 

upstream slope. 

Further, an owner or operator may 

want to consider inspections outside of 

the weekly, seven-day schedule if an 

unanticipated event, such as a flood, 

earthquake, or vandalism occurs on the 

site. While rare in occurrence, these 

events may increase the chances that a 

potential structural stability issue has 

arisen. Prudent CCR management 

practices dictate that a visual 

assessment is warranted after such 

events. For example, after a large flood 

(considered a flood with a return period 

of equal or greater frequency of ten 

years) there is potential for damage, 

including structural damage to the CCR 

surface impoundment, caused by 

increased reservoir levels that inundate 

areas infrequently inundated. The 

slopes of the dike should be inspected 

to ensure that no significant erosion has 

occurred due to the flood, or that any 

large debris or sediment has been 

deposited on the dike. An inspection 

should also be conducted following an 

earthquake where earthquake damage is 

observed or can be reasonably expected, 

where ground motion is felt at the CCR 

surface impoundment or in nearby 

locations, or following established 

magnitude-epicenter distance 

relationships.115

b. Monthly Instrumentation Inspection 

In a departure from the proposed rule, 

EPA is requiring the monitoring of all 

instrumentation supporting the 

operation of the CCR unit to be 

conducted by a qualified person no less 

than once per month. This is a change 

from the proposal which required 

instrumentation to be monitored no less 

than every seven days. 

Many commenters argued that 

requiring inspections every seven days 

was excessive, and that, based on FEMA 

guidelines for dam safety, a more 

reasonable timeframe would be once per 

month for CCR surface impoundments 

with a hazard potential rating of ‘‘high’’ 

and quarterly for those CCR surface 

impoundments with a hazard potential 

rating of ‘‘significant.’’ In considering 

these comments, the Agency was 

influenced by a number of factors 

including the FEMA guidelines 

suggested by the commenters. Also 

weighing heavily in EPA’s decision 

were the observations made as part of 

the Assessment Program, which 

revealed that many CCR units are 

equipped with only ‘‘basic’’ measuring 

devices such as piezometers and pool 

elevation and freeboard instrumentation 

and not the more sophisticated (i.e., 

sensitive) measuring devices for 

measuring pressure, seepage, internal 

movement, slope movement; and 

vibration. These findings strongly 

suggested to the Agency that, given the 

status of current instrumentation 

employed at CCR facilities, weekly 

monitoring would be excessive, 

impractical, and—of greatest 

significance—unlikely to indicate any 

measurable changes in structural 

stability in such a short timeframe. EPA, 

therefore, agrees that a monthly 

timeframe is a more appropriate interval 

for detecting discernible or significant 

changes in the operation of the CCR 


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116For purposed of this requirement, qualified 

means an individual experienced in the operation 

and maintenance of dams and who has been trained 

to recognize signs of concern and structural 

weakness by visual observation, and if applicable, 

to monitor instrumentation. 

unit. EPA has not, however, 

differentiated between high, significant, 

and low hazard potential CCR surface 

impoundments in the requirement that 

instrumentation be monitored monthly, 

as commenters suggested. Through the 

assessment effort, EPA identified that 

typically low hazard potential CCR 

surface impoundments were monitored 

less frequently than high- or significant 

hazard potential CCR surface 

impoundments by the owner or 

operator. Additionally, these low hazard 

potential CCR surface impoundments 

less commonly were equipped with 

sophisticated monitoring 

instrumentation, including remote 

monitoring instrumentation which 

would allow the owner or operator to 

monitor the unit from a remote location. 

Based on these observations, along with 

the limited burden that instrumentation 

monitoring places on the owner or 

operator, the rule requires all CCR 

surface impoundments with 

instrumentation to be monitored 

monthly. 

c. Annual Inspections 

The rule requires owners or operators 

of any CCR surface impoundments 

exceeding the MSHA size threshold 

(i.e., a height of five feet or more and a 

storage volume of 20 acre-feet or more; 

or a height of 20 feet or more) to 

conduct annual inspections of the CCR 

unit throughout its operating life. These 

annual inspections are focused 

primarily on the structural stability of 

the CCR surface impoundment and must 

ensure that the operation and 

maintenance of the CCR surface 

impoundment is in accordance with 

recognized and generally accepted good 

engineering standards. Inspections must 

be conducted and certified by a 

qualified professional engineer.116

Incised CCR surface impoundments, as 

defined in § 257.53 are not subject to the 

annual inspection requirements. Incised 

units present lower risks of structural 

failure, and so weekly inspections are 

sufficient to address any risks associated 

with these CCR units. 

Annual inspections of any CCR 

surface impoundment must include, at 

a minimum: (1) A review of all 

previously generated information 

regarding the status and condition of the 

CCR unit, including, but not limited to, 

all operating records and publicly 

accessible internet site entries, design 

and construction drawings and other 

documentation; (2) a thorough visual 

inspection to identify indications of 

distress, unusual or adverse behavior, or 

malfunction of the CCR unit and 

appurtenant structures; and (3) a 

thorough visual inspection of hydraulic 

structures underlying the base of the 

CCR unit and passing through the dike 

of the CCR unit for structural integrity 

and continued safe and reliable 

operation. Additionally, following each 

inspection, the qualified professional 

engineer must prepare an inspection 

report which documents the following: 

(1) Any changes in geometry of the 

impounding structure since the 

previous annual inspection; (2) the 

location and type of existing 

instrumentation and the maximum 

recorded readings of each instrument 

since the previous annual inspection; 

(3) the approximate minimum, 

maximum, and present depth and 

elevation of the impounded water and 

CCR since the previous annual 

inspection; (4) the storage capacity of 

the impounding structure at the time of 

inspection; (5) the approximate volume 

of the impounded water and CCR at the 

time of the inspection; and (6) any 

appearances of an actual or potential 

structural weakness of the CCR unit, in 

addition to any existing conditions that 

are disrupting or have the potential to 

disrupt the operation and safety of the 

CCR unit and appurtenant structures; 

and (7) any other change(s) which may 

have affected the stability or operation 

of the impounding structure since the 

previous annual inspection. 

This last set of requirements was 

originally presented in § 257.84 of the 

proposed rule (i.e., recordkeeping 

requirements), however, the Agency has 

moved these requirements to the annual 

inspection section of the rule because 

(1) these requirements apply only to 

CCR surface impoundments exceeding 

the specified size threshold, rather than 

all CCR surface impoundments, as 

proposed; (2) must be reported 

annually; and (3) are more appropriately 

housed in the inspection section. 

The owner or operator of existing CCR 

surface impoundments must ensure that 

the initial annual inspection by a 

qualified professional engineer is 

completed and documented with a 

report no later than nine months after 

the publication of the rule. EPA 

established this timeframe for 

completing an initial annual inspection 

based on its experience with the 

Assessment Program. In an effort similar 

to conducting an initial annual 

inspection, the following tasks were 

generally completed within three 

months: Retaining the services of a 

qualified professional engineer, 

developing a scope of work, reviewing 

existing documentation on the CCR 

unit, conducting a thorough field 

inspection, and completing an 

inspection report. Owners and operators 

of new CCR surface impoundment must 

commence annual inspections no later 

than one year from the initial placement 

of CCR into the new unit. An annual 

inspection is not required in any 

calendar year in which the five year 

structural stability reassessment is also 

required to be completed. (See §§ 257.73 

and 257.74.) The report which the 

qualified professional engineer has 

certified must be placed in the facility’s 

operating record and placed on the 

facility’s publicly accessible internet 

site. An annual inspection is considered 

complete when the inspection report 

has been placed in the facility’s 

operating record. Finally, if a deficiency 

is identified during an inspection, the 

owner or operator must take immediate 

measures to remedy the structural 

weakness or disrupting condition as 

soon as feasible. 

J. Operating Criteria—Inspections for 

CCR Landfills 

Under 40 CFR part 258, EPA does not 

require specific inspection requirements 

for MSWLFs. Rather, EPA relies on 

states to establish their own inspection 

criteria and frequency of inspections to 

ensure protection of human health and 

the environment. It is the Agency’s 

understanding that many states require 

owners or operators of MSWLFs to 

conduct either daily, weekly, quarterly 

and annual inspections of these units to 

ensure that the design, construction, 

operation, and maintenance complies 

with all requirements. In addition, 

based on a review of selected state 

regulations most states conduct state 

inspections of operating landfills no less 

than annually. 

Under the proposed subtitle D option, 

EPA did not propose to require 

mandatory inspections of new or 

existing landfills or any lateral 

expansion. However, under the subtitle 

C option, EPA proposed to apply the 

requirements of § 264.303 to permitted 

CCR landfills. Specifically, these 

requirements stated that CCR landfills 

while in operation would be required to 

be inspected weekly and after storms to 

detect evidence of any of the following: 

(1) Deterioration, malfunctions, or 

improper operation of run-on and runoff control systems; (2) proper 

functioning of wind dispersal control 

systems, where present; and (3) the 

presence of leachate in and proper 

functioning of the leachate collection 

and removal system where present. (See 

proposed § 264.1306, 75 FR 35257). 


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Upon further evaluation, the Agency 

has decided, consistent with the weekly 

inspection requirements proposed for 

CCR landfills under the subtitle C 

option, as well as many state 

requirements for MSWLFs, to require all 

existing and new CCR landfills and any 

lateral expansion to conduct, at 

intervals not exceeding seven days, 

inspections by a qualified person for 

any appearances of actual or potential 

structural weakness or any other 

conditions which are disrupting or have 

the potential to disrupt the operation or 

safety of the CCR landfill. In addition, 

EPA is also requiring inspections by a 

qualified professional engineer at 

intervals not exceeding one year to 

ensure that the design, construction, 

operation, and maintenance of the CCR 

landfill is consistent with recognized 

and generally accepted good 

engineering standards. This inspection 

must include a review of all data in the 

operating record as well as a visual 

inspection of the unit to identify signs 

of distress or malfunction that is or 

potentially could affect the safe 

operation of the unit. The qualified 

professional engineer must then also 

prepare a report to identify and discuss 

the findings of the inspection as well as 

a discussion of potential remedies for 

addressing any deficiencies discovered 

during the inspection. The Agency has 

concluded that all CCR landfills should 

be routinely inspected to ensure that 

they are operating as designed and are 

being maintained in compliance with 

the federal criteria. 

The Agency is promulgating these 

inspection requirements based on: (1) A 

review of state municipal landfill 

inspection requirements; and (2) 

comments from parties that clearly 

supported inspections of all CCR 

landfills. The Agency reviewed MSWLF 

inspection checklists in a selected 

number of states to assess the scope of 

these inspections. The Agency also 

conducted a preliminary review of state 

MSWLF regulations for New York, 

Pennsylvania, Ohio, Wisconsin, Illinois, 

Missouri, North Dakota and California. 

All of these states require MSWLF 

owners or operators to conduct a either 

daily, weekly, monthly, quarterly and 

annual inspections addressing the 

following: (1) Proper placement of the 

waste; (2) slope stability and erosion 

control; (3) surface water percolation is 

minimized (i.e. reduce ponding); (4) 

liner systems and leachate collection 

systems are properly operated and 

maintained; (5) water quality 

monitoring systems are maintained and 

operating; (6) dust is controlled; and (7) 

a plan is in place to promptly address 

and correct problems and deficiencies 

discovered during the inspection. The 

Agency also noted during its review of 

state regulations that states reserve the 

right to inspect landfills at any time and 

routinely conduct state inspections on a 

no less than annual basis. CCR landfills 

present at least the same level of risks 

as MSWLFs, and while the operations 

may differ, both operating systems are 

equally susceptible to malfunction. 

Weekly inspections of all CCR landfills 

by a qualified person are therefore 

equally necessary to ensure that 

groundwater monitoring, run-on and 

run-off controls, liner systems, and 

leachate collection systems are operated 

and maintained to reduce adverse 

environmental and human health 

impacts. 

This rule also requires that owners or 

operators of all existing and new CCR 

landfills and any lateral expansion 

conduct an annual inspection, certified 

by a qualified professional engineer, to 

assure that these units are designed, 

constructed, operated, and maintained 

throughout their operating life to ensure 

protection of human health and the 

environment. The Agency finds that 

annual inspections for these units are 

justified for a number of reasons. First, 

CCR landfills are large engineered units 

that require that a variety of design and 

operating parameters be assessed to 

assure that the CCR landfill is operating 

as designed. Of particular concern to the 

Agency is the fact that coal ash is a fine 

grained material that may have the 

potential to compact and clog leachate 

collection systems (see: ‘‘Operations and 

Maintenance Guidelines for Coal Ash 

Landfills’’ Christopher Hardin, et. al. 

2011 World of Coal Ash Conference. 

May 2011). It is reasonable therefore 

that the rule requires annual inspections 

to assure that these liner and leachate 

systems are assessed to assure that they 

are performing their functions as 

designed. Second, a formal annual 

inspection would review data collected 

during weekly inspections and 

determine if any remedial actions are 

need to address deficiencies. Third, the 

annual review by a qualified 

professional engineer ensures that a 

detailed level of engineering analysis of 

operating conditions are evaluated 

which could lead to recommendations 

to address design or operating issues 

that need attention. 

K. Groundwater Monitoring and 

Corrective Action 

EPA is finalizing groundwater 

monitoring and corrective action 

requirements to ensure that 

groundwater contamination at new and 

existing CCR units will be detected and 

cleaned up as necessary to protect 

human health and the environment. 

These requirements reflect 

Congressional intent that protection of 

groundwater be a prime objective of any 

new solid waste regulations. As stated 

in the proposal, EPA’s damage cases and 

risk assessments indicate there is 

significant potential for CCR landfills 

and CCR surface impoundments to 

leach hazardous constituents into 

groundwater, impair drinking water 

supplies and cause adverse impacts on 

human health and the environment. 

Indeed, groundwater contamination is 

one of the key environmental and 

human health risks EPA has identified 

with CCR landfills and CCR surface 

impoundments. Groundwater 

monitoring is a key mechanism for 

facilities to verify that the existing 

containment structures, such as liners 

and leachate collection and removal 

systems, are functioning as intended. 

Thus, in order for a CCR landfill or CCR 

surface impoundment to show no 

reasonable probability of adverse effects 

on health or the environment, a system 

of routine groundwater monitoring to 

detect any contamination from a CCR 

unit, and corrective action requirements 

to address identified contamination, are 

essential. 

EPA proposed to require that a system 

of monitoring wells be installed at all 

new and existing CCR units. The 

regulation would also provide 

procedures for sampling these wells and 

methods for statistical analysis of the 

analytical data derived from the well 

samples to detect the presence of 

hazardous constituents released from 

these CCR units. The Agency proposed 

a groundwater monitoring program 

consisting of detection monitoring and 

assessment monitoring, and a corrective 

action program. This phased approach 

to groundwater monitoring and 

corrective action programs provides for 

a graduated response over time to the 

problem of groundwater contamination 

as the evidence of such contamination 

increases. This allows for proper 

consideration of the transport 

characteristics of CCR constituents in 

groundwater, while protecting human 

health and the environment. 

EPA largely based these proposed 

groundwater monitoring requirements 

on those for MSWLFs in the 40 CFR part 

258 criteria, albeit with certain 

modifications to tailor the requirements 

to the case at hand. In particular, the 

possibility that a state may lack a permit 

program for CCR units made it 

impossible to include some of the 

alternatives available in 40 CFR part 

258, which establish alternative 

standards that allow a state, as part of 


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its permit program to tailor the default 

requirements to account for site specific 

conditions at the individual facility. 

EPA also sought to tailor the proposed 

requirements for CCR units, by 

incorporating certain provisions from 

the interim status regulations, which 

operate in the absence of a permit, and 

by including in several of the proposed 

requirements, a certification by an 

independent registered professional 

engineer that the rule’s requirements 

had been met. 

In the proposed rule, the Agency 

required facilities to install a 

groundwater monitoring system that 

met a specified performance standard 

and that consisted of a minimum of one 

upgradient and three downgradient 

wells at all CCR units. EPA 

acknowledged in the proposal that the 

design of an appropriate groundwater 

monitoring system is particularly 

dependent on site conditions relating to 

groundwater flow, and on the 

development of a system that has a 

sufficient number of wells, installed at 

appropriate locations and depths, to 

yield groundwater samples from the 

uppermost aquifer that represent the 

quality of background groundwater that 

has not been affected by contaminants 

from a CCR unit. EPA’s existing 

requirements under 40 CFR parts 258 

and 264 recognize this, and because 

they operate in a permitting context, 

these requirements provide more 

flexibility in establishing groundwater 

monitoring systems. But because the 

same guarantee of permit oversight is 

not available under the criteria 

developed for the proposal, EPA 

proposed to establish a minimum 

requirement based on the part 265 

interim status regulations, which are 

self-implementing. Long experience 

demonstrates that these monitoring 

requirements will be protective of a 

wide variety of conditions and wastes, 

and that facilities can feasibly 

implement these requirements. EPA also 

noted that in many instances a more 

detailed groundwater monitoring system 

will need to be in place, and EPA 

therefore proposed requiring a 

certification by the independent 

registered professional engineer that the 

groundwater monitoring system is 

designed to detect all significant 

groundwater contamination. 

EPA also proposed to require that 

owners and operators of CCR units 

establish consistent sampling and 

analysis procedures to determine 

whether a statistically significant 

increase in the level of a hazardous 

constituent(s) has occurred, indicating 

the presence of groundwater 

contamination. 

As noted, EPA proposed a phased 

approach to monitoring. The first phase 

is detection monitoring where 

indicators would be monitored to 

determine whether groundwater was 

potentially being contaminated. The 

parameters EPA proposed to be used as 

indicators of groundwater 

contamination were the following: 

Boron, chloride, conductivity, fluoride, 

pH, sulfate, sulfide, and total dissolved 

solids (TDS). In selecting the parameters 

for detection monitoring, EPA chose 

constituents that are present in CCR and 

would rapidly move through the 

subsurface, and thus provide an early 

detection of whether contaminants were 

migrating from the CCR unit. Under the 

proposed rule, monitoring would be 

required no less frequently than 

semiannually. 

When a statistically significant 

increase over background levels is 

detected for any of these parameters, the 

proposed rule required the facility to 

begin an assessment monitoring 

program to determine if releases of CCR 

constituents of concern had occurred. 

The parameters that were proposed for 

assessment monitoring were aluminum, 

antimony, arsenic, barium, beryllium, 

boron, cadmium, chloride, chromium, 

copper, fluoride, iron, lead, manganese, 

mercury, molybdenum, pH, selenium, 

sulphate (sic), sulfide, thallium, and 

total dissolved solids. 

The proposed rule also required that 

whenever monitoring results indicate a 

statistically significant level exceeding 

the groundwater protection standard for 

any of these parameters, the owner or 

operator must start the process for 

cleaning up the contamination, and 

initiate an assessment of corrective 

action remedies. The proposed rule 

required that the assessment of 

correction action remedies be initiated 

within 90 days and then completed 

within 90 days. 

EPA proposed that the assessment of 

corrective measures must consider a 

number of factors, including the 

effectiveness, performance, and time 

needed for the potential remedies. As 

part of the assessment of corrective 

measures, the owner or operator was 

required to identify the source of the 

release. The owner or operator was also 

required to gather data on plume 

definition, fate of the contaminants, 

stratigraphy and hydraulic properties of 

the aquifer. The owner or operator also 

was required to consider whether 

immediate measures to limit further 

plume migration or measures to 

minimize further introduction of 

contaminants to groundwater would be 

necessary. EPA also proposed to require 

the owner or operator to provide 

notification of the corrective measures 

assessment to the State Director, place 

the corrective measures assessment in 

the operating record and on the owner’s 

or operator’s publicly accessible internet 

site, and discuss the results of the 

corrective measures assessment in a 

public meeting with interested and 

affected parties. 

Based on the results of the corrective 

measures assessment, EPA proposed to 

require the owner or operator to select 

a remedy based on a number of factors, 

including: the long- and short-term 

effectiveness and protectiveness of the 

potential remedy, along with the degree 

of certainty that the remedy will prove 

successful; the effectiveness of the 

remedy in controlling the source to 

reduce further releases; the ease or 

difficulty of implementing a potential 

remedy; the degree to which community 

concerns are addressed by a potential 

remedy; and potential risks to human 

health and the environment from 

exposure to contamination prior to 

completion of the remedy. The owner or 

operator was also required to specify as 

part of the selected remedy a schedule 

for initiating and completing remedial 

activities. 

Under the proposed rule, 

implementing the corrective action 

program required the owner or operator 

to establish and implement a corrective 

action groundwater monitoring 

program; implement the corrective 

action remedy selected; and take any 

interim measures necessary to ensure 

the protection of human health and the 

environment, all according to the 

schedule the owner or operator 

developed during the assessment of 

corrective measures. 

The proposed rule also required that 

the owner or operator must demonstrate 

that concentrations of constituents have 

not exceeded the groundwater 

protection standards for three 

consecutive years in order to support a 

determination that the remedy is 

complete. 

The majority of the commenters 

supported ‘‘appropriate groundwater 

monitoring standards for CCR waste 

management units’’ and the 

development of such standards under a 

RCRA subtitle D framework. Comments 

were received on various parts of the 

groundwater monitoring scheme laid 

out in the proposed rule. The majority 

of comments received requested EPA to 

provide ‘‘more flexibility’’ to the 

proposed requirements. Many 

commenters wanted the states to be 

more involved with the process and 

provided comments suggesting that 

additional ‘‘flexibility,’’ such as is 

provided in the 40 CFR part 258 


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regulations for MSWLFs as part of the 

permitting process, be extended to CCR 

units. For example, commenters wanted 

states to have the authority to add or 

drop monitoring constituents; approve 

alternative schedules; modify the 

number of wells needed; allow 

variances; allow alternatives to the point 

of compliance specified in the rule; 

employ alternative methods to detect 

potential groundwater contamination, 

such as leak detection systems; allow 

alternatives to the statistical methods 

used to determine whether groundwater 

contamination has occurred; and to 

replace the qualified professional 

engineer role in the certification 

process. 

For the final rule, EPA has developed 

a groundwater monitoring program that 

is flexible and allows facilities to design 

a system that accounts for site specific 

conditions within specific parameters. 

The final rule establishes an overall 

performance standard that the system 

must meet, lays out the minimum 

requirements of an effective system, and 

requires the owner or operator to design 

a system that achieves that overall 

performance standard based on a full 

characterization of site conditions. 

As described in more detail below, in 

certain cases, EPA was able to develop 

performance standards to serve as 

‘‘more flexible’’ alternatives to the 

technical specifications laid out in the 

proposal. In these instances, the 

available information allowed the 

Agency to develop performance 

standards that were sufficiently 

objective and determinate that EPA 

could conclude that the 4004(a) 

standard would be met nationwide. 

However, many of the commenters’ 

requests related to alternatives that 

would be less stringent than the 

minimum criteria laid out in the 

proposal and were based on arguments 

that state regulators (or facilities) should 

be allowed to ‘‘tailor’’ those 

requirements to sites that did not need 

those particular requirements. As 

explained at length in the proposal, EPA 

is concerned that provisions allowing 

such modifications are particularly 

susceptible to abuse, since in many 

cases the provisions could allow 

substantial cost avoidance. In the 

absence of a mandated state oversight 

mechanism to ensure that the suggested 

modifications are technically 

appropriate, these kinds of provisions 

can operate at the expense of 

protectiveness. In Unit II of this 

preamble, EPA explains the extent of 

our authority to establish criteria under 

RCRA sections 1008(a)(3) and 4004(a), 

including the implications associated 

with the lack of any authority to 

establish a program analogous to part 

258, which relies on approved states to 

implement the federal criteria through a 

permitting program. As a result of the 

statutory structure, this rule is selfimplementing and is designed to 

operate to ensure that facilities will 

manage CCR in a manner that achieves 

the 4004(a) standard even in the absence 

of any regulatory entity available to 

judge the reasonableness of the desired 

alternatives. While some states currently 

do have programs for the regulation of 

CCR, which in some cases may be more 

stringent than this final rule, the federal 

program must be defensible on the 

record in place at the time the final rule 

is adopted. Based on the current 

rulemaking record, in most cases EPA 

lacked the information necessary to 

defend the commenters’ less stringent 

alternatives (i.e., the commenters’ 

requested ‘‘flexibilities’’) to the 

minimum technical criteria specified in 

this rule for these units. Under both the 

subtitle C and part 258 programs, EPA 

can rely on subsequent proceedings to 

develop the information necessary to 

support such tailoring. This is clearly 

neither contemplated nor authorized 

under the regulatory program relevant to 

this rule. 

In addition, given the extremely 

technical nature of these requirements, 

EPA remains concerned that such 

provisions would render the 

requirements appreciably more difficult 

for citizens to effectively enforce. 

Nevertheless, working within these 

constraints this rule specifically allows 

the qualified PE to design a system that 

accounts for site conditions within the 

parameters of the minimum technical 

criteria, and EPA has added language to 

the regulation that expressly clarifies 

this. Moreover, states that have 

programs can continue to impose more 

stringent requirements, and thus can 

require, for example, additional 

monitoring wells, monitoring of 

additional aquifers, and inclusion of 

additional parameters to the detection 

monitoring list or the assessment 

monitoring list. The following 

discussion addresses in more detail the 

technical requirements under 

groundwater monitoring and corrective 

action in the final rule. 

1. Applicability 

Consistent with the provisions in the 

proposed rule, the final rule requires a 

system of monitoring wells to be 

installed at all CCR landfills, CCR 

surface impoundments and lateral 

expansions. Existing CCR units must 

install the groundwater monitoring 

system, develop their groundwater 

sampling and analysis procedures, 

develop background levels for appendix 

III and appendix IV constituents, and 

begin detection monitoring (§ 257.90 

through § 257.94) within two years of 

the effective date of this rule. The 

proposed rule required that existing 

CCR units comply with the groundwater 

monitoring requirements within one 

year of the effective date. EPA proposed 

one year believing that it would be 

feasible for facilities to install the 

necessary systems. EPA also believed 

that a one year timeframe would ensure 

that existing CCR disposal facilities 

begin monitoring groundwater as soon 

as possible, so that releases from 

existing CCR units are detected and 

addressed. Comments received on this 

issue argued that the one-year timeframe 

was not sufficient to complete a 

hydrogeologic study and develop a 

monitoring plan. Several commenters 

requesting more time mentioned staffing 

shortages and limited contractor and lab 

resources. One state, referencing its 

experience relating to development and 

implementation of groundwater 

monitoring systems, said that a one year 

timeframe to investigate, design and 

submit and obtain approval for the 

installation of an effective groundwater 

monitoring system was unreasonable. 

Most commenters thought that a 

timeframe of two years was reasonable. 

After review of the comments received 

on this issue and careful reexamination 

of the actual requirements in the final 

rule, EPA agrees that a one-year 

timeframe is not feasible, and has 

decided to extend the timeframes for 

completing installation of the system, 

including background monitoring, to 

two years. As important as it is to begin 

detecting and addressing releases to 

groundwater, it is equally important that 

these complex systems be designed and 

installed correctly. That generally 

entails a number of activities, many of 

which must occur sequentially, 

including: determining the uppermost 

aquifer, deciding whether to install a 

single or multi-unit monitoring system, 

collecting and evaluating 

hydrogeological information that can be 

used to model the site, characterizing 

the site geology, characterizing the 

groundwater flow beneath the site, 

determining the flow direction and 

hydraulic gradient, establishing 

horizontal and vertical flow direction, 

determining hydraulic conductivity, 

determining groundwater flow rate, 

determining the monitoring wells 

placement, selecting the drilling 

method, designing the monitoring wells, 

developing sampling and analysis 

procedures, choosing a statistical 

method for evaluating the data and 


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beginning detection monitoring. We also 

recognize that in some states, the state 

may require the owner or operator to 

receive state approval before they can 

install a groundwater monitoring 

system. Two years is a more reasonable 

timeframe in which to carry out these 

activities. New CCR landfills, new CCR 

surface impoundments and any lateral 

expansion must comply with these same 

requirements (§§ 257.90 through 257.94) 

before any CCR can be placed in the 

CCR unit. 

Consistent with the proposal, the final 

rule also requires that the owner or 

operator of the CCR facility annually 

certify that each CCR unit is in 

compliance with the groundwater 

monitoring and corrective action 

provisions and provide a copy of this 

certification to the State Director. 

Because this is a self-implementing rule 

that relies on citizen enforcement, it is 

important for the owner or operator of 

the facility to periodically document 

that they are in compliance with the 

existing groundwater monitoring 

requirements, and an annual 

certification is the easiest and most 

effective way to achieve this. While the 

groundwater monitoring data will be 

made available on the owner or 

operator’s publicly accessible Web site 

and in the operating record of the 

facility, the analysis of these data is 

complicated and requires a certain level 

of scientific expertise to analyze the 

data correctly. As such, a document that 

serves as both an interpretative record of 

scientific analysis and regulatory 

compliance is critically important to the 

successful implementation of a selfimplementing rule that is to be enforced 

exclusively by citizens and the states. 

For similar reasons, the certification 

must also be placed in the operating 

record, provided to the State Director, 

and posted on the owner or operator’s 

publicly accessible Web site. 

The groundwater monitoring 

requirements must be met throughout 

the active life of the CCR unit, as well 

as during the closure and post-closure 

care period. 

EPA has added a new provision to 

§ 257.90 to address the corrective action 

requirements that apply when CCR have 

been released into the environment, 

such as from the kind of structural 

failure that occurred with TVA’s 

Kingston Fossil Fuel plant release, or 

from the kind of release that occurred in 

North Carolina at the Dan River. EPA 

inadvertently drafted the corrective 

action requirements in the proposed 

rule to apply exclusively upon detection 

of groundwater contamination caused 

by a leaking unit. However, there is no 

reason to establish different corrective 

action provisions for conducting cleanup operations for different kinds of 

releases; the same general process is 

applicable to all kinds of releases. 

The new provision requires that in the 

event of a release from a CCR unit, the 

owner or operator must immediately 

take all necessary measures to control 

the source(s) of releases so as to reduce 

or eliminate, to the maximum extent 

practicable, further releases of 

contaminants into the environment. The 

owner or operator of the CCR unit is 

also required to comply with all of the 

relevant corrective action requirements 

in §§ 257.96, 257.97, and 257.98. 

2. Groundwater Monitoring System 

Requirements 

EPA received comments that 

supported establishing more 

prescriptive requirements for the design 

of the groundwater monitoring system. 

For example, one commenter argued 

that three downgradient wells are 

insufficient to ensure detection of 

leakage from the very large disposal 

units typically used for CCR; due to 

uncertainty in flow directions, the 

perimeter of the CCR unit must be 

monitored on its cross-gradient, as well 

as downgradient sides. The commenter 

suggested that the minimum number of 

non-background monitoring wells 

should instead be three, plus one for 

every 500 feet of downgradient and 

cross-gradient perimeter of the CCR unit 

(i.e., if the perimeter length adds up to 

1200 feet, the minimum number of 

wells would be five), and that wells 

should be spaced no more than 500 feet 

apart along the downgradient and crossgradient perimeter. EPA also received 

many comments arguing that the 

minimum requirements were overly 

prescriptive, and that the final rule 

should instead allow a professional 

engineer or hydrologist to design ‘‘an 

alternative, but equally effective, 

groundwater monitoring program.’’ The 

majority of comments on groundwater 

monitoring systems requested that EPA 

not promulgate requirements that would 

be incompatible with state 

requirements. 

The final rule provisions are 

fundamentally the same as those in the 

proposal, although EPA has also added 

language to the regulations to better 

clarify how the requirements in the 

various sections collectively operate. 

The final rule establishes a general 

performance standard that all 

groundwater monitoring systems must 

meet: All groundwater monitoring 

systems must consist of a sufficient 

number of appropriately located wells 

(at least one upgradient and three 

downgradient wells) in order to yield 

groundwater samples from the 

uppermost aquifer that represent the 

quality of background groundwater and 

the quality of groundwater passing the 

waste boundary. This is the same 

performance standard included in the 

proposed rule. The objective of a 

groundwater monitoring system is to 

intercept groundwater to determine 

whether the groundwater has been 

contaminated by the CCR unit. Early 

contaminant detection is important to 

allow sufficient time for corrective 

measures to be developed and 

implemented before sensitive receptors 

are significantly affected. To accomplish 

this, the rule requires that wells be 

located to sample groundwater from the 

uppermost aquifer at the waste 

boundary. These requirements have 

been adopted without fundamental 

change from the proposal. 

Because hydrogeologic conditions 

vary so widely from one site to another, 

the rule does not prescribe the exact 

number, location and depth of 

monitoring wells needed to achieve the 

general performance standard. Rather, 

the rule requires the owner or operator 

to install a minimum of one upgradient 

and three downgradient wells, and any 

additional monitoring wells necessary 

to achieve the general performance 

standard of accurately representing the 

quality of the background groundwater 

and the groundwater passing the waste 

boundary. The number, spacing, and 

depths of the monitoring wells must be 

determined based on a thorough 

characterization of the site, including a 

number of specifically identified factors 

relating to the hydrogeology of the site 

(e.g., aquifer thickness, groundwater 

flow rates and direction). Further, any 

owner or operator who determines that 

the specified minimum number of wells 

is adequate must provide a factual 

justification for that decision. Factors 

that may substantiate a reduced density 

of groundwater monitoring wells 

includes simple geology (i.e., horizontal, 

thick, homogenous strata that are 

continuous across site, with no 

fractures, faults, folds, or solution 

channels), a flat and constant hydraulic 

gradient, uniform hydraulic 

conductivity, low seepage velocity, and 

high dispersivity potential. 

In essence, the rule establishes a 

presumption that the minimum of one 

upgradient and three downgradient 

wells is not sufficient, and requires the 

owner or operator to rebut that 

presumption in order to install only this 

minimum. This is fundamentally 

consistent with the proposed rule, 

which required the installation of a 

system that would achieve the general 

performance standard, as well as the 


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‘‘minimum’’ of one upgradient and three 

downgradient wells. The final 

regulation merely makes more explicit 

that both of these requirements must be 

met. 

EPA considered establishing a more 

prescriptive set of requirements, 

including a specified number, location, 

and design of monitoring wells, but 

because of the highly site specific nature 

of developing an adequate groundwater 

monitoring system, determined that it 

lacked sufficient information to be able 

to design a single groundwater 

monitoring system that would be 

nationally protective at all sites. A 

properly designed system must account 

for many variables, most of which are 

highly dependent on the individual 

characteristics of the unit and the 

facility site. Consequently, the final rule 

leaves the exact system design to be 

determined by those at the site, 

including a qualified professional 

engineer, who can tailor the design of 

the system to the unit and site 

conditions. 

Nevertheless, EPA is confident that 

the parameters laid out in the regulation 

will ensure that the design of 

groundwater monitoring systems at CCR 

facilities will be protective. As a 

practical matter, EPA expects that there 

will be few cases, if any, where four 

wells will be sufficient, given that this 

requirement was originally developed 

for hazardous waste management units 

that are typically much smaller than 

CCR units. As mentioned above, a small 

unit with simple geology, a flat and 

constant hydraulic gradient, uniform 

hydraulic conductivity, low seepage 

velocity, and high dispersivity potential 

would be the type of unit for which the 

minimum number of wells could be 

sufficient to meet the overall 

performance standard. Although EPA is 

finalizing a requirement for one 

upgradient and three downgradient 

wells as a regulatory minimum, the 

Agency expects large CCR units to have 

many more wells because most CCR 

sites have hydrologic settings that are 

too complex for the regulatory 

minimum to be adequate. Facilities with 

large CCR units could have as many as 

thirty or more downgradient wells. This 

is because the placement and spacing of 

detection monitoring wells along the 

downgradient perimeter of the CCR unit 

must be based on the abundance, extent, 

and physical/chemical characteristics of 

the potential contaminant pathways. All 

potential pathways need to be 

monitored. 

Therefore, even though EPA is not 

requiring a specific number of wells, the 

Agency is confident that the 

combination of the requirements will 

ensure that protective groundwater 

monitoring systems will be installed. 

The owner or operator is required to 

install a sufficient number of wells to 

meet the performance standard in 

§ 257.91(a)(1) and (2), provide a 

justification if they determine the 

required minimum is adequate, and 

have a qualified professional engineer 

certify that their groundwater 

monitoring system has been designed 

and constructed to ensure that the 

groundwater monitoring will meet this 

performance standard—i.e., accurately 

represent the quality of groundwater 

that has not been affected by leakage 

from any CCR unit—that is, 

groundwater from background wells and 

the quality of groundwater passing the 

waste boundary. 

The final rule establishes certain 

parameters regarding the location of the 

wells. Upgradient background wells 

must be located beyond the upgradient 

extent of potential contamination. 

However, groundwater quality in areas 

where the geology is complex can be 

difficult to characterize. If the facility is 

new, groundwater samples collected 

from both upgradient and downgradient 

locations prior to waste disposal can be 

used to establish background water 

quality. Downgradient wells to monitor 

for any contaminants leaking into the 

groundwater must be located at the 

hydraulically downgradient perimeter 

(i.e., the edge) of the CCR unit or at the 

closest practical distance from this 

location. 

Determining background groundwater 

quality by sampling wells that are not 

hydraulically upgradient may be 

necessary where hydrogeologic 

conditions do not allow the owner or 

operator to determine which wells are 

hydraulically upgradient (e.g., 

floodplains, where nearby surface water 

can influence groundwater). In such 

cases, the rule allows the owner or 

operator to establish groundwater 

quality at existing units by locating 

wells that are not upgradient under 

certain conditions (§ 257.91(a)(1)). This 

provision may be used when 

hydrogeologic conditions do not allow 

the owner or operator to determine 

which wells are hydraulically 

upgradient and when sampling at other 

wells will provide data establishing 

background groundwater quality that is 

equally or more representative than that 

provided by upgradient wells. These 

conditions could include one or more of 

the following: 

• The facility is located above an 

aquifer in which groundwater flow 

directions change seasonally. 

• The facility is located near 

production wells that influence the 

direction of groundwater flow. 

• Upgradient groundwater quality is 

affected by a source of contamination 

other than the CCR unit. 

• The proposed or existing CCR unit 

overlies a groundwater divide or local 

source of recharge. 

• Geologic units present at 

downgradient locations are absent at 

upgradient locations. 

• Karst terrain or fault zones modify 

flow. 

• Nearby surface water (e.g., rivers) 

influences groundwater flow directions. 

Additionally, there is nothing in the 

rule that would prevent the owner or 

operator from monitoring multiple 

aquifers in addition to the uppermost 

significant aquifer. Certain site 

conditions warrant more extensive 

monitoring requirements, as discussed 

in ‘‘Technical Manual Solid Waste 

Disposal Facility Criteria’’, EPA530–R– 

93–017, USEPA, November, 1993, 

Chapter 5, Subpart E, Ground-Water 

Monitoring and Corrective Action. 

Each CCR unit must have its own 

groundwater monitoring system, unless 

the owner or operator chooses to install 

a multiunit groundwater monitoring 

system. The final rule specifies that if a 

multiunit system is installed, it must be 

based on the consideration of several 

factors, including the number, spacing, 

and orientation of the CCR units, the 

hydrogeologic setting, the site history 

and the engineering design of the CCR 

units. A multiunit groundwater 

monitoring system must be equally 

capable of detecting background and 

groundwater contamination at the waste 

boundary as an individual monitoring 

system. This documentation must be 

certified by a qualified professional 

engineer. Whether a single or multi-unit 

system has been installed, the 

monitoring wells must be cased in a 

manner maintaining the integrity of the 

borehole and must be maintained so as 

to meet design specifications. Both of 

these provisions have been adopted 

from the proposal without revision. 

3. Sampling and Analysis Requirements 

EPA received comment on several 

aspects of its proposed requirements for 

conducting groundwater sampling and 

analyses. Specifically mentioned here, 

commenters raised concern about the 

number of samples required to establish 

background concentrations and about 

the statistical test methodologies 

specified in the proposal. As discussed 

below, EPA has modified the rule to 

account for the issues raised by these 

commenters. The sampling and analysis 

requirements in the final rule have 


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otherwise been adopted from the 

proposed rule with only minor 

clarifications. 

The rule provides procedures for 

sampling monitoring wells and methods 

for the statistical analysis of 

groundwater monitoring of appendix III 

(detection monitoring) and appendix IV 

(assessment monitoring) constituents 

that may be released from CCR units. 

The sampling and analysis program 

must include procedures and 

documentation for sample collection 

(including the frequency, water level 

measurements, well purging, field 

analyses, and sample withdrawal and 

collection); sample preservation and 

handling (including sample containers, 

sample preservation, sample storage and 

shipment); chain of custody control; 

analytical procedures (appropriate 

methods can be found in ‘‘Test Methods 

for Evaluating Solid Waste, Physical/

Chemical Methods,’’ SW–846 (USEPA, 

1986), http://www.epa.gov/waste/

hazard/testmethods/sw846/online/

index.htm); and quality assurance/

quality control. More information and 

guidance can be found in ‘‘Technical 

Manual Solid Waste Disposal Facility 

Criteria,’’ EPA530–R–93–017, USEPA, 

November, 1993, Chapter 5, Subpart E, 

Ground-Water Monitoring and 

Corrective Action, as well as the 

‘‘Unified Guidance Document: 

Statistical Analysis of Groundwater 

Monitoring Data at RCRA Facilities,’’ 

March 2009, EPA 530/R–09–007. 

Similar to the approach used in 

designing a groundwater a number of 

system, the final rule adopts a 

combination of a general performance 

standard for groundwater sampling and 

analytical methods, along with 

particular technical specifications that 

must be met. The general performance 

standard requires that the method used 

must accurately measure hazardous 

constituents and other monitoring 

parameters. In addition, the rule 

specifies that groundwater elevations 

must be measured in each monitoring 

well immediately prior to sampling. 

Also, the rate and direction of the 

groundwater flow in the uppermost 

aquifer must be determined each time 

groundwater is sampled. Further, the 

rule specifies that the background 

groundwater quality must be established 

at a hydraulically upgradient well for 

each of the monitoring parameters or 

constituents required by the applicable 

groundwater monitoring program, 

except as provided in § 257.91. The 

number of samples collected to establish 

groundwater quality data must be 

consistent with the appropriate 

statistical procedures determined for the 

specific statistical method chosen. The 

sampling must also be conducted to 

account for both seasonal and spatial 

variability in groundwater quality. 

To establish background levels, the 

proposed rule required that ‘‘a 

minimum of four independent samples 

from each background and 

downgradient well must be collected 

and analyzed . . .’’ 75 FR 35247–35248 

(proposed §§ 257.93(f) and 257.94(b)). 

This is the same sampling protocol that 

EPA adopted for both the subtitle C and 

part 258 groundwater monitoring 

requirements. 

EPA received comments criticizing 

this sampling protocol. Several 

commenters stated that more than the 

required four samples were needed in 

order to adequately represent 

background water quality and reduce 

the number of false negatives. For 

example, one commenter argued that 

EPA should require a minimum of one 

year of monthly monitoring of 

background concentrations to 

characterize fluctuations in parameters 

that will be evaluated statistically. The 

commenter claimed that this would also 

help to ensure that quarterly monitoring 

events are properly timed. Another 

comment stated that more data points 

and time were needed to ensure 

statistical confidence in the data. By 

contrast, another commenter objected to 

the requirement to obtain four 

independent samples, arguing that this 

requirement was unnecessary and 

should be deleted. The commenter 

argued that this requirement was 

inconsistent with EPA’s Unified 

Guidance (EPA, 2009) for Statistical 

Analysis of Groundwater Monitoring 

Data at RCRA Facilities, which specifies 

that replicate samples (i.e., multiple 

samples from the same location during 

a given sampling event) should typically 

be limited to the collection of two 

samples from the same location, rather 

than four. Another commenter 

requested clarification on the number of 

samples required when establishing 

background levels that would serve as 

the point of comparison in determining 

whether a statistically significant 

increase over background levels had 

occurred. 

In response to these comments, EPA 

reviewed the available information to 

determine whether revisions to the 

proposed requirements were warranted. 

More recent information developed 

since the promulgation of the subtitle C 

and part 258 groundwater monitoring 

requirements indicates that statisticians 

now generally consider sample sizes of 

four or less to be insufficient for good 

statistical analysis because the 

observations are too few to adequately 

characterize the parameters of the 

population. Tests utilizing a small 

background sample size have low 

statistical performance in terms of 

power and per-test false positive rates. 

In 2009, EPA issued a guidance 

document that accounts for more recent 

scientific developments, ‘‘Unified 

Guidance Document: Statistical 

Analysis of Groundwater Monitoring 

Data at RCRA Facilities,’’ March 2009, 

EPA 530/R–09–007. This guidance 

recommends a minimum of eight to ten 

independent background observations 

be collected before performing the first 

statistical test. Sample sets of 20 are 

considered optimal. 

RCRA regulations are predicated on 

having appropriate and representative 

background measurements. Samples 

should be tested against data which best 

represent current uncontaminated 

conditions. In addition, as discussed 

further in Unit VI.K.5 below, the 

detection of a statistically significant 

increase over background 

concentrations of the constituents of 

concern will have serious implications 

for unlined surface impoundments, as 

these units will be required to close 

whenever the facility makes such a 

finding. EPA is also cognizant of the 

significant differences between the 

subtitle C and part 258 regulations and 

the final regulations being promulgated 

for CCR units. Both the subtitle C and 

the part 258 MSWLF requirements are 

implemented under permit programs, 

under which regulatory authorities are 

specifically authorized to establish more 

stringent requirements to account for 

scientific advances (among other 

things). EPA expects that current 

permits generally specify a greater 

number of samples than the minimum 

laid out in the regulations (i.e., more 

than four) to determine background 

concentrations. And because of this it is 

less critical that those regulations 

(subtitle C and part 258) reflect the most 

current science. By contrast, as 

previously discussed, the provisions 

adopted under this rule are selfimplementing, and will only be updated 

through a subsequent rulemaking. 

Accordingly, the Agency agrees with the 

comments that four samples would be 

insufficient and has amended the rule to 

require the owner or operator to collect, 

at a minimum, eight statistically 

independent and identically distributed 

(spatially invariant) samples from each 

well for each monitoring parameter. 

Although still a small sample size by 

statistical standards, eight independent 

observations allows for minimally 

acceptable estimates of variability and 

evaluation of trend and goodness-of fit. 

While more samples, including a full 


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year of background monitoring, would 

be scientifically ideal, the Agency 

selected eight samples by balancing the 

minimum number needed to ensure the 

scientific accuracy of the results against 

the need to expedite initiating the 

groundwater monitoring process of 

detecting exceedances, along with any 

necessary corrective action at these 

facilities. 

Background sampling (i.e., the 

requirement to collect eight statistically 

independent samples from each well) 

must be completed for all appendix III 

and IV constituents by the end of the 24 

month period to begin implementation 

of the groundwater monitoring program. 

EPA has also revised the regulatory 

text relating to the number of samples 

that must be collected during 

subsequent sampling events after 

background concentrations have been 

established to clarify how the various 

provisions collectively operate. 

Consistent with the proposal, the final 

rule requires the owner or operator to 

collect and analyze the number of 

samples from each well necessary to be 

consistent with the statistical test 

selected under § 257.93(e) and with the 

unique characteristics of the site, but at 

minimum, to collect at least one sample 

from each background and 

downgradient well. In cases where the 

groundwater is ‘‘well-behaved’’ one 

sample from each compliance well 

could be all that the owner or operator 

would need to conduct the necessary 

comparisons. But if statistical 

assumptions are not met (e.g., the 

observations are not statistically 

independent or background well data 

show trends) a comparison based on a 

single observation will not yield a 

significant result, and will likely result 

in a false positive. Further, detection 

monitoring tests, such as Student’s ttest, look at the difference between the 

sample means (e.g., upgradient vs 

downgradient) to determine when an 

observed difference should be 

considered more than a chance 

fluctuation. Every t-test assumes that the 

observations that make up each data 

group meet the requirements of 

statistical independence and 

stationarity. Therefore, the larger the 

sample size the more significant the 

result. In other words, a facility can 

choose to use only one observation (a 

group size of one), but the chances are 

good that the result derived would be 

non-significant, since there are many 

reasons sample means can vary. 

Consequently, it is likely to be in the 

facility’s best interest to take more 

samples than the minimum, particularly 

in the early stages of monitoring. As 

monitoring continues, each successive 

sample will be added to the sampling 

data base, which will increase the 

confidence in the statistical analyses 

performed. Additional guidance on 

sample size can be found in the 

‘‘Unified Guidance Document: 

Statistical Analysis of Groundwater 

Monitoring Data at RCRA Facilities,’’ 

March 2009, EPA 530/R–09–007. 

The requirements for applying 

statistical procedures in the rule are the 

same as those included in the proposed 

rule, which were based on the statistical 

procedures used in the MSWLF 

regulations. The rule requires the owner 

or operator to select from among the 

listed statistical procedures based on a 

determination that the test is 

appropriate for evaluating groundwater 

at that site. The statistical method 

chosen must be appropriate for the 

distribution of chemical parameters or 

hazardous constituents. The rule has 

been revised to include the clarification 

that normal distributions of data values 

shall use parametric methods and nonnormal distributions shall use nonparametric methods. The rule identifies 

four statistical procedures, along with 

an alternative procedure that must meet 

the performance standard of § 257.93(g). 

The four specific statistical procedures 

provided in this final rule are: (1) A 

parametric analysis of variance followed 

by multiple comparison procedures to 

identify statistically significant evidence 

of contamination; (2) an analysis of 

variance based on ranks followed by 

multiple comparison procedures to 

identify statistically significant evidence 

of contamination; (3) a tolerance or 

prediction interval procedure; and (4) a 

control chart approach. The 

performance standard for the alternative 

method in subsection (g) is the same as 

the performance standard in the 

proposal, with minor revisions. EPA has 

deleted the performance standard 

‘‘protect human health and the 

environment’’ in subsections (3), (4) and 

(5). While that standard is perfectly 

appropriate in a context in which a 

regulatory authority will apply the 

standard, EPA is concerned that a 

qualified professional engineer will be 

unable to certify that any alternative 

statistical method meets that standard. 

EPA received comments from 

professional engineers raising concern 

about their ability to certify that many 

of the requirements in the proposed rule 

had been met without further 

specification or clarification. To address 

those concerns, in those three 

provisions EPA has substituted a more 

objective performance standard that 

more precisely defines the relevant 

issues to be considered. Specifically, the 

subsections now specify that those 

approaches must be ‘‘at least as effective 

as any other approach in this section for 

evaluating groundwater.’’ 

The data objectives of the monitoring, 

in terms of the number of samples 

collected and the frequency of 

collection, must be consistent with the 

statistical method selected. Guidance on 

selecting a specific method is described 

in ‘‘Unified Guidance Document: 

Statistical Analysis of Groundwater 

Monitoring Data at RCRA Facilities,’’ 

March 2009, EPA 530/R–09–007. The 

owner or operator must indicate in the 

operating record the statistical method 

that will be used in the analysis of 

groundwater monitoring results. 

The owner or operator must conduct 

the statistical comparisons between 

upgradient and downgradient wells 

within 90 days of completion of each 

sampling event and receipt of validated 

data. The statistical comparison must be 

conducted in order to determine if a 

statistically significant increase has 

occurred over background levels for 

each parameter or constituent required 

in the particular groundwater 

monitoring program that applies to the 

unit as determined under §§ 257.94(a) or 

257.95(a). This has been adopted 

without revision from the proposal. 

EPA is finalizing as proposed the 

prohibition in § 257.93(b) on field 

filtering groundwater samples because 

filtration of samples for metals analyses 

will not provide accurate information 

concerning the mobility of metals 

contaminants, the primary objective of 

groundwater sampling. Metal 

contaminants may move through 

fractured and porous media not only as 

dissolved species, but also as 

precipitated phases, polymeric species, 

or adsorbed to particles of colloidal 

dimensions (<10 microns). For an 

assessment of mobility, all mobile 

species must be considered, including 

suspended or colloidal particles acting 

as absorbents for contaminants. 

Filtration of groundwater samples for 

metals analyses will not provide 

accurate information concerning the 

mobility of metal contaminants because 

some mobile species in solution are 

likely to be removed by filtration before 

chemical analysis. Significant 

underestimations of mobility may result 

if filters (typically 0.45 micron) are used 

to separate dissolved and particulate 

phases. 

In its approach to sampling EPA is 

specifying in the final rule that owners 

and operators use ‘total recoverable 

metals’ concentrations in measuring 

groundwater quality. Measurement of 

total recoverable metals captures both 

the particulate fraction and dissolved 


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fraction of metals in natural waters. 

Exceedances of ambient water criteria 

on a total recoverable basis are an 

indication that metal loadings could be 

a stress to an ecosystem. 

One commenter argued that to 

prohibit field filtering would potentially 

bias the results artificially high, 

particularly at sites where low yielding 

formations or naturally high levels of 

turbidity in groundwater are 

encountered. However, high turbidity 

can also be the consequence of faulty 

well design and/or construction, which 

causes the introduction of foreign 

materials (high turbidity) through 

created fracture pathways. A properly 

designed well should allow for 

sufficient groundwater flow for 

sampling, minimize the passage of 

materials into the well, and exhibit 

sufficient structural integrity to prevent 

collapse of the intake structure. It is 

vital that the well provide a 

representative hydraulic connection to 

the geologic formation of interest. 

Otherwise the water chemistry 

information cannot be correctly 

interpreted in relation to groundwater 

flow or transport of chemical 

constituents. 

Sampling with no filtration means 

that increased importance is placed on 

proper well construction and purging 

sampling procedures to eliminate or 

minimize sources of sampling artifacts. 

There should be nothing in the well 

design that will lead to high levels of 

turbidity. Groundwater sampling should 

be conducted utilizing EPA protocol 

low stress (low-flow) purging and 

sampling methodology, including 

measurement and stabilization of key 

indicator parameters prior to sampling. 

For purposes of sampling, this final rule 

presumes that a properly constructed 

well is capable of yielding groundwater 

samples with low turbidity (≤5 

Nephelometric Turbidity Units (NTU)), 

and by knowing the cause of turbidity 

the qualified professional engineer will 

be able to optimize well performance 

and reduce turbidity levels, eliminating 

the need for filtration. 

EPA is revising § 257.93(i)(2) to 

specify a time period of 90 days to 

determine if a statistically significant 

increase over background 

concentrations of one of more of the 

contaminants has been detected. As 

proposed, this section specified: 

‘‘Within a reasonable period of time 

after completing sampling and analysis, 

the owner or operator of the CCR 

landfill or surface impoundment must 

determine whether there has been a 

statistically significant increase over 

background at each monitoring well.’’ 

Commenters pointed out that this 

section of the regulation was very vague, 

and potentially unenforceable. Several 

commenters suggested that once 

sampling and analysis had been 

completed, 90 days would be a 

reasonable amount of time to complete 

the statistical analysis to determine 

whether an exceedance had occurred. 

No commenter suggested a longer 

period of time was necessary and that 

timeframe is consistent with the 

Agency’s experience of the timeframes 

necessary to complete such analyses. 

Accordingly, we have revised the 

provision to require the determination 

of a statistically significant increase to 

be made within 90 days of sampling and 

analysis. 

4. Detection Monitoring Program 

With three exceptions, EPA is 

finalizing the regulatory provisions 

relating to detection monitoring as 

proposed. The three revisions are the 

appendix III list of monitoring 

parameters; the required number of 

samples to determine background 

concentrations; and the availability of 

an option to conduct detection 

monitoring on a less frequent basis due 

to a lack of groundwater. 

The detection monitoring phase of the 

groundwater monitoring program in this 

rule requires that the owners or 

operators of CCR units establish 

background concentrations for all 

monitoring parameters (appendix III and 

IV of part 257) and sample at least 

semiannually during the active life of 

the facility, closure, and post closure 

periods for a set of detection monitoring 

indicator parameters (appendix III of 

part 257). 

In response to comments, EPA has 

revised appendix III to delete 

conductivity and sulfide from the list of 

monitoring parameters and to add 

calcium. Thus, the list of parameters 

included on the detection monitoring 

list is boron, calcium, chloride, fluoride, 

pH, sulfate and total dissolved solids 

(TDS). The Agency has deleted 

conductivity from the detection 

monitoring program because it is merely 

a proxy for TDS, which is already 

included on the list of parameters to 

analyze during detection monitoring. 

The Agency has also deleted sulfide 

because it occurs in groundwater only 

under strongly reducing conditions, and 

such conditions are rather rare at CCR 

disposal facilities. Calcium is being 

added to appendix III because it is an 

indicator of the extent of leaching from 

fly ash and FGD gypsum and because of 

the strong demonstrated link between 

the leaching of calcium and arsenic, 

which is one of the primary risk drivers 

identified in the risk assessment. 

As discussed in the preceding section, 

in detection monitoring, a minimum of 

eight independent samples from each 

background and downgradient well 

must be collected and analyzed for the 

appendix III and IV parameters no later 

than 24 months from the effective date 

of the rule. During subsequent sampling 

events, at least one sample from each 

background and downgradient well 

must be collected and analyzed, 

although the total number of samples 

must be consistent with the statistical 

procedures selected and with the 

performance standard in § 257.93(g). See 

discussion above in section 3. Sampling 

and Analysis Requirements. 

Under the proposed rule, monitoring 

would be required no less frequently 

than semiannually. In the final rule, 

semiannual sampling remains the 

general requirement; however, in 

response to comments, EPA has decided 

to include a provision that would allow 

an alternative sampling frequency if 

there is not adequate groundwater to 

flow to sample wells semiannually. 

Specifically, EPA received comment 

stating that there may be instances 

where there simply is not enough water 

available to collect and analyze on a 

semiannual basis, especially in western 

climates where the rate of groundwater 

recharge may be too slow or a lack of 

precipitation exists. The commenter 

also provided an example 

demonstrating that mining practices in 

adjacent areas can greatly alter the 

groundwater flow. Accordingly, EPA 

has included a provision to address the 

situations where there is insufficient 

groundwater available to collect and 

analyze samples around CCR units on a 

semiannual basis. 

An owner or operator seeking to 

establish an alternative frequency must 

demonstrate that less frequent 

monitoring is necessary based on the 

following three factors: (1) Lithology of 

the aquifer and the unsaturated zone; (2) 

hydraulic conductivity of the aquifer 

and the unsaturated zone; and (3) 

groundwater flow rates. In addition, the 

rule requires the owner or operator to 

demonstrate that any alternate sampling 

frequency would be no less effective in 

ensuring that any leakage from the CCR 

unit will be discovered within a 

timeframe that does not materially delay 

the initiation of any necessary 

remediation measures. The owner or 

operator must have a qualified 

professional engineer certify that the 

alternative (i.e., less frequent) 

monitoring will achieve this 

performance standard. The final rule 

also specifies that any alternate 

frequency during the active life 

(including closure) and the post-closure 


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21404 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

117EPA’s Regional Screening Level (RSL) Soil to 

Groundwater Supporting Table (TR = 1E–6, HQ = 

1) May 2014/Mid-atlantic Risk assessment: http://

www.epa.gov/reg3hwmd/risk/human/rbconcentration_table/Generic_Tables/index.htm; 

and Health Consultation: Chesapeake ATGAS 2H 

Well Site Leroy Hill Road, Leroy, Leroy Township, 

Bradford County, Pennsylvania, October 29, 2013. 

U.S. Department of Health and Human Services, 

Agency for Toxic Substances and Disease Registry 

Division of Community Health Investigations 

Atlanta, Georgia. http://www.atsdr.cdc.gov/. 

care period shall be no less than annual. 

As noted, the owner or operator will 

bear the burden of justifying an alternate 

frequency under this regulation, and in 

any court proceeding brought to enforce 

these requirements. This means that any 

uncertainty or lack of information will 

be weighed against the entity seeking to 

justify the alternate frequency. 

Consistent with the proposed rule, if 

the owner or operator determines that 

there is a statistically significant 

increase (SSI) over background for one 

or more of the parameters listed in 

appendix III at any monitoring well at 

the waste boundary, the owner or 

operator must place a notice in the 

operating record and on the facility’s 

internet site indicating which 

parameters have shown statistically 

significant changes from background 

levels and notify the State Director. 

The facility must also then establish 

an assessment monitoring program and 

begin monitoring within 90 days. The 

owner or operator has the opportunity 

to demonstrate that a source other than 

the CCR unit caused the statistically 

significant increase or that the 

statistically significant increase resulted 

from error in sampling, analysis, 

statistical evaluation or a natural 

variation in groundwater quality. 

Within 90 days, the owner or operator 

must prepare a report documenting this 

demonstration which must then be 

certified by a qualified professional 

engineer verifying the accuracy of the 

information in the report. If a successful 

demonstration is made within 90 days, 

the owner or operator may continue 

detection monitoring. If a successful 

demonstration is not made within 90 

days, the owner or operator must 

initiate assessment monitoring. 

Commenters raised concern that 90 

days would not be sufficient to 

complete all of the activities necessary 

to determine whether the detection of 

an SSI was from another source than the 

CCR unit or was based on inaccurate 

results. The Agency recognizes that in 

some circumstances it could take more 

than 90 days to resample and have 

laboratories conduct new analyses, or to 

conduct field investigations to 

determine that another source is causing 

the contamination. As a result, 

§ 257.94(e)(3) does not place an ultimate 

time limit for owners and operators to 

complete the demonstration. However, 

if after 90 days the owner or operator 

has not made a successful 

demonstration, (s)he must begin an 

assessment monitoring program. At this 

stage, there is evidence to indicate that 

a release has occurred from the CCR 

unit, and while EPA agrees that the 

facility may want to confirm that the 

information is accurate, it is critical that 

the facility not delay indefinitely the 

more targeted monitoring to determine 

whether a constituent of concern is 

contaminating groundwater. It would 

not be consistent with the statutory 

standard to allow a facility unlimited 

time to delay taking reasonable steps to 

assess, and if necessary, address 

potential contamination by continuing 

to resample until they obtain a ‘‘better’’ 

answer. Moreover, initiation of an 

assessment monitoring program does 

not involve an irretrievable commitment 

of resources or even a significant 

investment by the facility, but only 

requires the facility to begin more 

targeted sampling for constituents of 

concern. This represents a reasonable 

first step to address a potential threat to 

groundwater. This requirement is also 

in the MSWLF part 258 regulations. For 

more information see 56 FR 51078 

(October 9, 1991). 

Subsequent to initiating the 

assessment monitoring program, if an 

owner or operator demonstrates that the 

statistically significant increase resulted 

from an error in sampling, analysis, 

statistical evaluation, or natural 

variation in groundwater quality, or was 

caused by a source other than the CCR 

unit, the owner or operator may cease 

assessment monitoring and return to 

detection monitoring. If the 

demonstration is successful, the owner 

or operator must have the 

demonstration certified by a qualified 

professional engineer, and is required 

by § 257.94(e)(3) to place a notice in the 

operating record, and on publicly 

accessible Internet site and send a copy 

of the report to the State Director. 

5. Assessment Monitoring Program 

EPA is adopting an assessment 

monitoring program that is largely 

identical to the program laid out in the 

proposal. However, as discussed in 

more detail below, some revisions have 

been made; some were made in 

response to comments, but most are 

conforming changes made to be 

consistent with changes adopted in 

other provisions, such as the detection 

monitoring program described 

previously. 

Consistent with the proposed rule, if 

any of the detection monitoring 

parameters are detected at a statistically 

significant level over the established 

background concentrations, the owner 

or operator must proceed to the next 

step, assessment monitoring. 

Assessment monitoring requires annual 

sampling and analysis for the full list of 

constituents included in appendix IV. 

The number and frequency of samples 

required for assessment monitoring are 

the same as those established for 

detection monitoring. See discussion 

above in 3. Sampling and Analysis 

Requirements. 

EPA has also revised the list of 

constituents in appendix IV by deleting 

the following constituents and 

parameters: Aluminum, boron, chloride, 

copper, iron, manganese, pH, sulfate, 

sulfide, and TDS; and adding the 

following constituents: Cobalt, lithium, 

and radium 226 and 228 combined. The 

following constituents and parameters 

are being removed from appendix IV 

because they are on appendix III and 

therefore will continue to be monitored 

throughout assessment monitoring: 

Boron, chloride, pH, sulfate and TDS. 

Although fluoride is on appendix III, we 

are also retaining it on appendix IV 

because it does have an MCL and was 

found to pose risks in the 2014 risk 

assessment, and therefore is 

appropriately considered to be a 

constituent that is relevant for purposes 

of corrective action. Aluminum, copper, 

iron, manganese, and sulfide have been 

removed because they lack maximum 

contaminant levels (MCLs) and were not 

shown to be constituents of concern 

based on either the risk assessment 

conducted for this rule or the damage 

cases (see Units X and XI of this 

document). Cobalt has been added to 

appendix IV because cobalt was found 

to be a risk driver in the 2014 risk 

assessment, based on certain waste 

management disposal practices that lead 

to highly acidic wastes conditions. 

Lithium is being added to appendix IV 

because it has been detected in several 

proven and potential damage cases at 

levels exceeding EPA’s Regional 

Screening Level (RSL) of soil to 

groundwater and has been determined 

as potentially toxic if consumed 

concurrently with certain drug types.117

Radium 226 and 228 combined (the sum 

of the radioactive isotopes radium-226 

and radium-228) is being added because 

there is evidence from several damage 

cases of exceedances of gross alpha, 

indicating that radium from the disposal 

of CCR may be problematic. Appendix 

IV now contains antimony, arsenic, 

barium, beryllium, cadmium, 

chromium, cobalt, fluoride, lead, 

lithium, mercury, molybdenum, 


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selenium, thallium and radium 226 and 

228 combined. 

If any appendix IV constituents are 

detected in any appendix IV analyses, 

the owner or operator must notify the 

State Director and continue to monitor, 

at least semiannually, for both the 

specific constituents in appendix IV that 

were detected and all parameters in 

appendix III. EPA has decided to also 

include a provision to allow an 

alternative sampling frequency if there 

is not adequate groundwater to flow to 

sample wells semiannually, consistent 

with the revised provision adopted for 

the detection monitoring program. If the 

owner or operator demonstrates at any 

time during assessment monitoring that 

all of the detected appendix III and IV 

constituents are at or below background 

values for two consecutive sampling 

events, (s)he must notify the state and 

may return to detection monitoring. In 

general, EPA expects that appendix III 

constituents are unlikely to remain 

elevated once measures have been taken 

to address the release of the detected 

appendix IV constituents. But should 

appendix III constituent levels remain 

elevated, detection monitoring 

continues to be necessary to determine 

whether another source of 

contamination is present. 

After obtaining the sampling results 

the owner or operator must place a 

notice in the operating record and on 

the facility’s internet site indicating 

which appendix IV constituents have 

been detected and notify the State 

Director. Within 90 days and on at least 

a semiannual basis thereafter, the owner 

or operator must resample all wells, 

conduct analyses for all parameters in 

appendix III and for those constituents 

in appendix IV that were detected in the 

initial assessment monitoring sampling 

event. The results of this resampling 

must be placed in the owner or 

operator’s operating record, as well as 

its publicly accessible internet site. The 

results of the resampling must also be 

sent to the State Director. These 

provisions have been adopted without 

change from the proposal. 

For each appendix IV constituent that 

is detected, a groundwater protection 

standard must be set. The groundwater 

protection standards must be the MCL 

or the background concentration level 

for the detected constituent, whichever 

is higher. If there is no MCL 

promulgated for a detected constituent, 

then the groundwater protection 

standard must be set at background. The 

proposed rule would have allowed the 

owner or operator to establish an 

alternative groundwater protection 

standard for constituents for which 

MCLs have not been established 

provided that the alternative 

groundwater protection standard has 

been certified by an independent 

registered professional engineer and the 

state has been notified that the 

alternative groundwater protection 

standard has been placed in the 

operating record and on the owner’s or 

operator’s publicly accessible internet 

site. This provision had been adopted 

from the part 258 regulations, but was 

determined to be inappropriate in a selfimplementing rule, as it was unlikely 

that a facility would have the scientific 

expertise necessary to conduct a risk 

assessment, and was too susceptible to 

potential abuse. Additionally, numerous 

comments were received suggesting that 

only those constituents with MCLs be 

included in appendix IV. The 

commenters were concerned that only 

MCLs are enforceable. With the 

exception of cobalt, lead, lithium and 

molybdenum (included on appendix IV 

because of their relevance in the risk 

assessment and damage cases), all 

appendix IV constituents have an MCL. 

In the proposed rule, as stated above, 

owner or operators were allowed to 

establish certain types of alternative 

groundwater protection standards. In 

the final rule, if a constituent has no 

MCL (i.e., cobalt, lead, lithium and 

molybdenum), their groundwater 

protection standards will be their 

background levels. These background 

standards are sufficiently precise that 

they are enforceable. 

The owner or operator must compare 

the levels of any detected appendix IV 

constituents to the appropriate 

groundwater protection standard. If the 

concentrations of all appendix IV 

constituents are shown to be at or below 

background values for two consecutive 

sampling events using the statistical 

procedures required by § 257.93, the 

owner or operator of the CCR disposal 

facility must place that information in 

the operating record and on the facility’s 

publicly accessible internet site and 

notify the State Director. The owner or 

operator may then return to detection 

monitoring. 

If the concentrations of any appendix 

III or IV constituents are above 

background values, but all 

concentrations are determined to be 

below the groundwater protection 

standard using the statistical procedures 

required by this rule, the owner or 

operator must continue assessment 

monitoring program. 

If, however, the monitoring indicates 

a statistically significant increase for 

any appendix IV constituent over the 

groundwater protection standard, the 

owner or operator is required to notify 

the State Director and local officials of 

this finding and place a notice in the 

operating record and on the owner or 

operator’s publicly accessible internet 

site. 

The owner or operator also must 

characterize the nature and extent of the 

release. As part of characterizing the 

nature and extent of the release, the 

owner or operator must install 

additional wells, as necessary to define 

the contaminant plume(s) and collect 

data on the nature and estimated 

quantity of the material released. 

Adequate characterization of the release 

is critical in designing and effectively 

implementing a protective corrective 

action program if groundwater 

remediation is necessary. The purpose 

of these additional wells is to delineate 

the contaminant plume boundary and to 

eventually demonstrate the effectiveness 

of corrective action in meeting the 

groundwater protection standard. 

Because the requirements for 

additional monitoring are entirely 

specific to the site conditions and the 

size and nature of the release, the 

Agency is not able to set requirements 

that precisely specify the location or the 

number of additional wells that must be 

installed. Instead EPA has adopted an 

approach that corresponds to the 

approach to designing the original 

groundwater monitoring system under 

§ 257.91. The regulations establish a 

general performance standard (‘‘install 

additional wells as necessary to define 

the contaminant plume’’) and specify a 

true minimum of installing at least one 

well at the facility boundary in the 

direction of contaminant migration in 

order to ascertain whether the 

contaminants have migrated past the 

facility boundary. The regulations also 

establish a rebuttable presumption that 

this minimum is insufficient, requiring 

the owner or operator to justify a 

decision to install only this minimum. 

The requirement to justify the decision 

to only install the minimum number of 

additional wells is a revision from the 

proposal that has been adopted to be 

consistent with the Agency’s overall 

approach to developing an effective 

groundwater monitoring system. 

The Agency has also added some 

clarification to the proposed 

requirement to characterize the nature 

and extent of the release, by requiring 

the owner or operator to collect data on 

the nature and estimated quantity of 

material released, including specific 

information on the constituents listed in 

appendix IV and the levels at which 

they are present in the material released. 

This information will be necessary to 

help the owner or operator characterize 

the release and assist in ultimately 

deciding on a remedy. 


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If contamination has migrated off-site, 

the owner or operator must notify 

individuals who own land or reside on 

land overlying the plume. 

In addition to characterizing the 

nature and extent of the release, the 

owner or operator must initiate an 

assessment of corrective measures 

within 90 days of finding a statistically 

significant increase over background 

concentrations, and select the 

appropriate remedy. During this phase, 

the owner or operator is required to 

continue at least semiannual monitoring 

(or an alternative frequency, no less 

than annually) for all appendix III 

constituents and for those appendix IV 

constituents exceeding the groundwater 

protection standard. To be consistent 

with the provisions in detection 

monitoring, EPA has included a 

provision that would allow the owner or 

operator to demonstrate that a source 

other than their CCR unit caused the 

contamination or that the statistically 

significant increase above groundwater 

protection standards resulted from error 

in sampling, analysis, statistical 

evaluation, or natural variation in 

groundwater quality. This alternative 

option will not delay compliance with 

the next phase of the groundwater 

monitoring and corrective action 

program. Thus, until such a 

demonstration is made, the owner or 

operator must comply with the other 

requirements of this section, including 

initiating the assessment of corrective 

measures. At this stage, the evidence 

that the CCR unit is leaking is stronger, 

and the owner or operator has 

previously had the opportunity to 

demonstrate that the finding was made 

in error under the detection monitoring 

program, so no further delay in 

initiating measures to address any 

groundwater contamination is 

warranted. 

Another change since the proposal is 

that in addition to complying with all of 

the corrective action requirements—i.e., 

initiating an assessment of corrective 

measures, followed by selection of a 

remedy and implementation of a 

corrective action program—if the unit is 

an unlined surface impoundment, it 

must either retrofit or initiate closure. 

Further, where the facility has chosen to 

install a multi-unit groundwater 

monitoring system, the detection of an 

SSI of an appendix IV constituent 

would trigger the corrective action and 

closure (or retrofit) of all of the unlined 

surface impoundments covered by that 

monitoring system, as there will be no 

way to isolate a particular unlined unit 

as the source of the contamination. 

These requirements are discussed in 

more detail in the Closure section. 

6. Assessment of Corrective Measures 

This section of the regulations also 

largely mirrors the analogous provisions 

in the proposed rule. EPA added some 

language to reflect that this section is 

not limited to the remediation of 

groundwater from a leaking CCR unit 

but will also apply to contamination 

caused by any kind of release from a 

CCR unit. EPA also made some minor 

revisions in response to comments, and 

some editorial changes to conform this 

provision to changes made in other 

sections of the rule. 

Consistent with the proposal, 

§ 257.96(a) specifies that the assessment 

of corrective measures must be initiated 

within 90 days of detecting a 

statistically significant increase of any 

of the constituents listed in appendix 

IV, at a level exceeding the groundwater 

protection standard(s), or of otherwise 

documenting a release of contaminants 

from the CCR unit. The regulation also 

requires the assessment of corrective 

measures to be completed in 90 days of 

such a finding, but in response to 

comments, EPA is adopting a provision 

that will allow for a single 60 day 

extension. Multiple commenters argued 

that 90 days was not adequate to 

complete the assessment of corrective 

measures. Commenters stated that for 

situations with complex hydrogeology, 

additional studies and sampling may be 

required in order to assess potential 

contributing offsite sources, background 

levels, and possible remedies. They 

stated that identification of remedy 

alternatives, collection and analysis of 

data used to evaluate remedy 

alternatives, and discussions with 

vendors/contractors regarding 

availability of labor and materials are all 

critical steps in the remedy selection 

process. As explained in the ‘‘Technical 

Manual Solid Waste Disposal Facility 

Criteria,’’ EPA530–R–93–017, USEPA, 

November, 1993, Chapter 5, Subpart E, 

Ground-Water Monitoring and 

Corrective Action, the owner or operator 

will need to: (1) Identify and remediate 

the source of contamination; and (2) 

identify and remediate the known 

contamination. The factors that must be 

considered in assessing corrective 

measures include source evaluation, 

plume delineation, groundwater 

assessment and source control. Based on 

the comments received, as well as the 

Agency’s own experience, EPA 

recognizes that there may be complex 

situations that require more time to 

develop a careful and well-thought out 

corrective measures assessment. 

Therefore, the final rule has been 

modified to allow up to an additional 60 

days to complete the assessment of 

corrective measures, provided that a 

qualified professional engineer certifies 

that the additional time is necessary. 

The initial 90 days plus the additional 

60 days, which is within the range of 

time suggested by the commenters, 

would provide the owner or operator up 

to 150 days to complete the corrective 

measures assessment, which EPA 

expects will be sufficient. The 

certification must be placed in the 

operating record, on the owner’s or 

operator’s publicly accessible internet 

site and submitted to the proper state 

official. 

The rule requires the owner or 

operator to assess the effectiveness of 

potential remedies in meeting the 

objectives of § 257.97 by addressing at 

least: (1) Performance, reliability, ease of 

implementation and potential impacts; 

(2) time requirements; and (3) 

institutional requirements. The 

proposed rule also included 

consideration of the costs of remedy 

implementation. However, that language 

came directly from the MSWLF rule in 

part 258. Because Congress did not 

authorize the consideration of costs in 

establishing minimum national 

standards under RCRA section 4004(a), 

we have removed this factor. In 

evaluating the performance, reliability, 

ease of implementation, and potential 

impacts of each remedy, the owner or 

operator should evaluate whether 

specific remedial technologies are 

appropriate to the problem and the 

ability of those technologies to achieve 

the groundwater protection standards. 

Analysis of a remedy’s reliability should 

include an assessment of the 

effectiveness of the remedy in 

controlling the source of the release and 

its long-term reliability. Source control 

measures need to be evaluated to limit 

the migration of the plume, and to 

ensure an effective remedy. The 

regulation does not limit the definition 

of source control to exclude any specific 

type of measure to achieve this. 

Remedies must control the source of the 

contamination to reduce or eliminate 

further releases by identifying and 

locating the cause of the release. Source 

control measures may include the 

following: Modifying the operational 

procedures (e.g., banning waste 

disposal); undertaking more extensive 

and effective maintenance activities 

(e.g., excavate waste to repair a liner 

failure); or, in extreme cases, excavation 

of deposited wastes for treatment and/ 

or offsite disposal. Construction and 

operation requirements also should be 

evaluated. The analysis of the timing of 

potential remedies should include an 

evaluation of construction, start-up, and 


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completion time. Timing is particularly 

important if contamination has migrated 

off-site. Institutional requirements such 

as local permit or public health 

requirements may affect implementation 

of the remedies evaluated and should be 

assessed by the owner or operator. 

The proposed rule included a 

provision that would allow an owner or 

operator to determine that compliance 

cannot be reasonably achieved with any 

currently available methods. This has 

been deleted from the final rule. The 

Agency determined that without state 

oversight or a permitting program, that 

provision was potentially subject to 

abuse and thus, inappropriate to include 

in a self-implementing rule. 

As part of evaluating potential 

remedies, the owner or operator must 

hold a public meeting to discuss the 

remedies under consideration (prior to 

selecting a final remedy). Once the 

owner or operator has selected a 

remedy, he must place a description of 

the selected remedy in the operating 

record, on the owner or operator’s 

publicly accessible internet site and 

notify the State Director. 

7. Selection of Remedy 

This section of the final rule has been 

adopted with only minor changes from 

the proposal. As in the prior section, 

EPA has revised certain provision to 

reflect that this section will also apply 

to the cleanup of contamination caused 

by a release from a CCR unit. EPA also 

deleted a provision that had been 

adopted from the part 258 regulations, 

but that was determined to be 

inappropriate in a self-implementing 

rule as it was too susceptible to 

potential abuse. 

Based on the results of the corrective 

measures assessment conducted, the 

owner or operator must select a remedy. 

The selected remedy must attain all of 

the performance standards listed in 

subsection (b). Specifically, the remedy 

must protect human health and the 

environment, attain the groundwater 

protection standards, control the 

sources of releases so as to reduce or 

eliminate, to the maximum extent 

practicable, further releases of appendix 

IV constituents into the environment, 

and comply with any relevant standards 

for management of wastes generated as 

a result of the remedial activities. EPA 

included an additional criterion more 

directly related to remediation of 

contamination associated with a release, 

such as from a collapse or structural 

failure of a CCR unit, which requires the 

remedy to ‘‘remove from the 

environment as much of the 

contaminated material that was released 

from the CCR unit as is feasible, taking 

into account factors such as avoiding 

the inappropriate disturbance of 

sensitive ecosystems.’’ Together, these 

criteria reflect the major technical 

components of any kind of clean up 

remedy. 

The rule also specifies decision 

criteria to be considered by the owner 

or operator in selecting the most 

appropriate remedy. These include: (1) 

Long and short term effectiveness, and 

degree of certainty of success; (2) 

effectiveness of remedy in controlling 

the source to reduce further releases; (3) 

ease or difficulty of implementation; 

and (4) community concerns. 

Additionally, the rule requires the 

owner or operator to specify a schedule 

for implementing and completing the 

remedial activities. The rule requires the 

owner or operator to set the schedule 

because it is impossible for EPA to 

establish a single schedule appropriate 

for all possible situations; the schedule 

will necessarily depend on the nature 

and size of the contamination, among 

other factors. The rule outlines six 

factors to be considered in establishing 

a schedule for completing remedies 

(§§ 257.97(d)(1–6)). These factors are: (1) 

Extent and nature of contamination; (2) 

reasonable probabilities of remedial 

technologies in achieving compliance 

with the groundwater protection 

standards; (3) availability of treatment 

or disposal capacity for CCR managed 

during implementation of the remedy; 

(4) potential risks to human health and 

the environment; (5) resource value of 

the aquifer; and (6) other relevant 

factors. EPA had included one 

additional factor in the proposal: ‘‘The 

desirability of utilizing technologies that 

are not currently available, but which 

may offer significant advantages over 

already available technologies in terms 

of effectiveness, reliability, safety, or 

ability to achieve remedial objectives.’’ 

EPA considered that this provision, 

which could be used to justify delaying 

remediation measures, was potentially 

subject to abuse and thus, inappropriate 

to be included in a self-implementing 

rule. 

For similar reasons, EPA deleted the 

provisions in the proposal, subsections 

(e) and (f) that would authorize a facility 

to determine that remediation of a 

release is not necessary. These sections 

which came from the MSWLF rule in 

part 258 are appropriate where there is 

state oversight. The preamble to the 

final MSWLF rule specifically discusses 

situations in which an approved state 

may decide not to require cleanup of 

hazardous constituents released to 

groundwater from a MSWLF (see 56 FR 

51090). However, there is no similar 

guarantee that an individual facility will 

act in the public interest. 

8. Implementation of the Corrective 

Action Program 

The proposed rule required the owner 

or operator to include a schedule for 

initiating the remedial activities in the 

schedule for implementing the remedy 

(§ 257.97(d)). The Agency understands 

that selecting a remedy is closely related 

to the assessment process and cannot be 

accomplished unless a sufficiently 

thorough evaluation of alternatives has 

been completed. The process of 

documenting the rationale for selecting 

a remedy requires that a report be 

placed in the operating record that 

clearly defines the corrective action 

objectives and demonstrates why the 

selected remedy is anticipated to meet 

those objectives. The report must 

identify how the remedy will be 

protective of human health and the 

environment, attain the groundwater 

protection standards (either background 

or MCLs), attain source control 

objectives, and comply with waste 

management standards. 

The selection of a remedy also 

involves a public meeting with 

interested parties before finally selecting 

a remedy. For these reasons, the Agency 

is not establishing a deadline for 

completing the remedy selection 

process, but rather expects it to be 

completed as soon as practicable. Once 

the assessment of corrective measures 

has been completed within the 

timeframe specified in this rule, and the 

public meeting has occurred, the facility 

owner or operator must select a remedy 

and begin implementing that remedy as 

soon as is practicable. It is vitally 

important that the facility selects a 

remedy as soon as practicable and 

begins designing and implementing that 

remedy, so that releases to groundwater 

are addressed without unnecessary 

delay. EPA understands that there are a 

variety of activities that may be 

necessary in order to select the 

appropriate remedy (e.g., discussions 

with affected citizens, state and local 

governments; conducting on-site studies 

or pilot projects); and, once selected, to 

implement the remedy (e.g., securing 

on-site utilities if needed, obtaining any 

necessary permits, etc.). That is why 

EPA does not find it appropriate to set 

specific timeframes for selecting the 

remedy or to begin implementing the 

selected remedy. However, in order to 

ensure that the community is kept 

informed as to the progress of selecting 

and implementing the remedy, EPA is 

requiring that the facility owner or 

operator, on a semiannual basis, post 

status reports/updates on their progress 


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118As evidenced in 42 U.S.C. 6971(f), Congress 

intended that the OSHA be able to enforce its 

regulations to protect workers exposed to hazardous 

waste and that EPA and OSHA would work together 

to ensure that. EPA is clarifying that it intends that 

the CCR disposal rule not preempt applicable 

OSHA standards designed to protect workers 

exposed to CCRs; thus EPA’s final rule on CCR 

disposal will apply in addition to any applicable 

OSHA standards. The Agency has added specific 

regulatory language in this section to address this 

intent. 

to their publicly accessible internet site 

and submit these to the state.118

However, the Agency has concluded 

that it is reasonable to require that once 

a remedy has been chosen, the owner or 

operator of the CCR unit must begin to 

implement that remedy within a 

specified period of time. Consistent 

with the timeframes throughout this 

section, the final rule requires that 

within 90 days of selecting a remedy, 

the owner or operator must have 

initiated corrective measures, including 

any interim measures determined to be 

appropriate, and have established a 

corrective action groundwater 

monitoring program (and begin 

following it). (§ 257.98). This is a 

reasonable timeframe in which to begin 

these activities based on EPA’s long 

experience in conducting and 

overseeing cleanup activities. 

The remedy would be considered 

complete when the owner or operator 

demonstrates compliance with the 

groundwater protection standards for a 

period of three consecutive years, and 

all other actions required to meet the 

performance standards in § 257.97(b) 

have been satisfied (e.g., source control). 

The owner or operator must obtain 

certification that the remedy is complete 

from a qualified professional engineer, 

and must notify the State Director. The 

certification must also be placed in the 

operating record and on the owner or 

operator’s publicly accessible Internet 

site. 

The Agency deleted the provision that 

allows an owner or operator to 

determine that compliance cannot be 

reasonably achieved with any currently 

available methods. The Agency 

determined that without state oversight 

or a permitting program, that provision 

was potentially subject to abuse and 

thus, inappropriate to be included in a 

self-implementing rule. 

9. Timing Overview 

The groundwater monitoring 

regulations require that the owner or 

operator of existing CCR units must 

comply with § 257.90–§ 257.94 within 

30 months of the date of publication of 

the rule. Essentially, that means that by 

the end of 30 months, the owner or 

operator must (1) install the 

groundwater monitoring system; (2) 

document the sampling and analysis 

procedures; (3) establish which 

statistical tests will be used to 

determine exceedances; (4) sample all 

wells to have a minimum of 8 samples 

for all appendix III and IV parameters; 

and (5) determine if there is a 

statistically significant exceedance of 

any appendix III parameter, which 

would trigger assessment monitoring. 

New CCR units must comply with 

§§ 257.90–257.93, including the 

requirement under § 257.94(b) to collect 

and analyze eight independent samples 

from each well for the parameters listed 

in appendix III and IV to this part to 

determine background levels for all 

appendix III and IV constituents, before 

commencing operation. Essentially, that 

means that before receiving CCR waste, 

the owner or operator must (1) install 

the groundwater monitoring system; (2) 

document the sampling and analysis 

procedures; (3) establish which 

statistical tests will be used to 

determine exceedances; and (4) sample 

all wells to have a minimum of eight 

samples for all appendix III and IV 

parameters. 

If assessment monitoring is triggered, 

within three months the owner or 

operator must sample all wells for all 

appendix IV constituents (minimum of 

one sample) and resample (minimum of 

one sample) all wells for all appendix III 

parameters and those appendix IV 

constituents that were detected in the 

first round of sampling. The owner or 

operator could also simultaneously use 

this three month timeframe to 

demonstrate that the statistically 

significant increase found in detection 

monitoring was due to another source or 

sampling and analysis error. While 

conducting assessment monitoring, the 

owner or operator must continue 

sampling for all appendix III 

constituents and any appendix IV 

detected constituents semiannually. The 

owner or operator must sample for all 

appendix IV constituents annually. 

The owner or operator must also 

establish groundwater protection 

standards (MCL or background levels) 

for all appendix IV constituents 

detected during sampling. 

If one or more appendix IV 

constituents are detected at statistically 

significant levels above the groundwater 

protection standards established, or a 

release from a CCR unit has been 

detected, corrective action is triggered. 

The owner or operator must characterize 

the nature and extent of the release by 

installing additional monitoring wells, 

collecting data on the quantity and 

concentration levels of regulated 

constituents in the released material, 

sampling and notifying the State 

Director, local government officials, and 

any persons who own land or reside on 

the land that overlies the plume if the 

plume has migrated off site. The owner 

or operator must also place the 

notification in their operating record 

and on their publicly accessible Internet 

site. 

If corrective action is triggered, within 

three months the owner or operator 

must initiate an assessment of corrective 

measures. If the CCR unit is an unlined 

surface impoundment, the unit must 

stop receiving CCR and non-CCR wastes 

and initiate closure of the unit or begin 

to retrofit the unit within six months. 

The owner or operator could also 

simultaneously use these three months 

to initiate an assessment of corrective 

measures to demonstrate that the 

statistically significant increase found 

during assessment monitoring was due 

to another source or sampling and 

analysis error. 

The assessment of corrective 

measures must be completed in three 

months, with the possibility of an 

additional two months if the owner or 

operator demonstrates the need for 

additional time. The owner or operator 

must continue assessment monitoring 

and provide notification of the 

corrective measures assessment to the 

State Director and place the assessment 

in the operating record and on the 

owner’s or operator’s publicly accessible 

Internet site. The owner or operator also 

must discuss the results of the 

corrective measures assessment at least 

one month prior to selection of remedy 

in a public meeting. 

Within three months of selecting a 

remedy, the owner or operator must 

initiate remedial activities. Corrective 

action is completed when the owner or 

operator demonstrates compliance with 

the groundwater protection standards 

for three consecutive years. 

L. Closure of Inactive Units. 

As discussed in Unit VI.A of this 

document, EPA proposed that inactive 

CCR surface impoundments that had not 

completed closure in accordance with 

specified standards by the effective date 

would be subject to all of the 

requirements applicable to existing CCR 

surface impoundments. EPA adopted 

this approach to create an incentive to 

expedite the closure of these units, with 

all of the significant risk mitigation that 

such a measure would entail. EPA is 

retaining this general approach in the 

final rule, but has revised the provision 

to grant inactive CCR surface 

impoundments more time to complete 

closure, consistent with the other 

closure provisions in the final rule. The 


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119As discussed in the proposed rule, EPA’s 

‘‘Guide for Industrial Waste Management’’ 

documents the general consensus on the need for 

effective closure and post-closure care requirements 

(Chapter 11). This guide can be accessed at 

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

guide/. 

final rule extends the deadline to three 

years from publication of the rule in the 

Federal Register. 

The proposal was based on EPA’s 

belief that the timeframes between 

publication of the final rule and the 

effective date would be sufficient for 

facilities to close inactive CCR surface 

impoundments. This was particularly 

true under the subtitle C option, where 

the timeframe between publication and 

the effective date could be as long as 18 

months, due to the need for subsequent 

action by authorized states. Under the 

proposed rule, the maximum amount of 

time a facility would have to initiate 

and complete closure of a disposal unit 

was seven months. However, as 

discussed elsewhere in this preamble, 

EPA received numerous comments 

raising concern that these timeframes 

would essentially be ‘‘impossible to 

meet’’ for surface impoundments 

located in certain geographic and 

climatic conditions, as well as for all of 

the larger units. These comments 

convinced EPA that it had not 

adequately accounted for the 

complexities inherent in electric 

generating facility operations, and the 

different characteristics of CCR surface 

impoundments in designing the closure 

provisions in the proposal. EPA has 

revised the timeframes applicable to 

closures in the final rule accordingly in 

light of these issues. See Unit VI.M of 

this document. These same 

considerations apply with respect to 

this provision, and additional time is 

therefore necessary to make this option 

truly viable. 

EPA selected three years based 

primarily on two factors. EPA initially 

focused on the minimum amount of 

time necessary to close a CCR surface 

impoundment. As discussed in more 

detail in Unit VI.M of this document, 

there can be a substantial range in the 

amount of time needed to close a 

surface impoundment, depending on, 

for example, the size and location of the 

unit. 

However, a critical factor in EPA’s 

decision is that under this approach 

these units will not be subject to the 

rule’s groundwater monitoring or 

structural stability requirements 

(provided they complete closure within 

three years). Moreover, based on the 

information in the record, it appears 

highly unlikely that groundwater 

monitoring is currently being conducted 

at these units (as discussed in Unit IV.A 

of this document, the information on 

groundwater monitoring requirements 

applicable to existing units was 

extremely sparse, but many older units 

appear to lack effective groundwater 

monitoring systems). EPA considered 

that allowing these inactive units to 

remain in place without taking 

measures to address the continuing 

threat that these units present for a 

substantial amount of time could not be 

justified. EPA therefore focused on the 

amount of time authorized under the 

rule for implementation of the 

groundwater monitoring requirements 

(i.e., 2 years from the effective date) and 

for key structural stability requirements 

(i.e., 18 months to complete key 

analyses). 

As discussed in more detail in the 

next section, the information in the 

record demonstrates that it is feasible to 

complete the closure of CCR surface 

impoundments within three years. EPA 

recognizes that larger CCR surface 

impoundments (i.e., above 40 acres) 

may not be able to close within this 

timeframe. However, to be able to 

support this provision, EPA must 

balance the risk mitigation achieved by 

closure of CCR surface impoundments 

against the risks inherent in allowing 

inactive CCR surface impoundments to 

remain in place for longer periods of 

time. The longer inactive CCR 

impoundments remain without all of 

the protections provided by the final 

rule, the greater the potential for 

significant health and environment 

impacts. Larger units are also the ones 

more likely to present the highest risks, 

and so warrant the greater oversight 

provided by application of all of the 

technical criteria to their operation (and 

closure). Consequently, EPA is unable to 

justify expanding this option to include 

the longer timeframes available under 

§§ 257.102 or 257.103. 

The criteria for conducting the closure 

of inactive CCR surface impoundments 

are essentially the same as those 

applicable to active CCR units. Inactive 

units can either clean close units, or 

close with waste in place, subject to 

same performance standards in 

§ 257.102 for all other CCR units. If an 

inactive CCR surface impoundment is 

completely closed within the three year 

timeframe, no other requirements apply 

to that unit. This means that no 

groundwater monitoring or other postclosure care requirements would apply 

to these units. Once an inactive CCR 

surface impoundment has been 

breached and dewatered, the risks are 

essentially the same as the risks 

associated with an inactive CCR landfill, 

which are not subject to any 

requirements under the final rule. 

However, owners or operators of 

inactive CCR surface impoundments 

that have not completed closure within 

this timeframe must comply with all of 

the requirements applicable to existing 

CCR impoundments. If the facility 

intends to maintain the inactive unit 

indefinitely, whether to provide 

potential future capacity, or to continue 

to dredge the unit to provide material 

for beneficial use, or with the idea that 

it may be repurposed for other facility 

operations (e.g., to manage stormwater), 

there is no basis for distinguishing 

between these units and actively 

managed units on the basis of the 

potential risks. Thus, such units would 

need, for example, to meet all of the 

location and structural stability criteria 

(which could independently compel 

closure of the unit), install the 

groundwater monitoring system, and 

begin to monitor within the timeframes 

established in the final rule. This also 

means that any facility that initiates 

closure under this provision but fails to 

complete it within this timeframe, must 

comply with all groundwater 

monitoring requirements in §§ 257.90– 

98 (e.g., install groundwater monitoring 

wells) as well as all of the post-closure 

care requirements. 

M. Closure and Post-Closure Care 

Closure and post-closure care are an 

integral part of the design and operation 

of CCR landfills and CCR surface 

impoundments.119 EPA solicited public 

comment on closure and post-closure 

care requirements under a subtitle D 

approach in the proposed rule and 

sought additional comment on specific 

closure requirements in a subsequent 

notice of data availability. 

For CCR landfills, the proposed 

closure and post-closure care 

requirements were modeled on current 

regulations that apply to municipal 

solid waste landfills, which are codified 

in part 258. In some cases, the proposed 

requirements were modified to reflect 

the lack of a mandatory permitting 

mechanism (see Unit V.A. of this 

preamble for additional information), in 

addition to other changes EPA believed 

were appropriate to ensure that there 

would be no reasonable probability of 

adverse effects from the wastes that 

remain after a CCR unit had closed. For 

CCR surface impoundments, the Agency 

modeled the proposed requirements on 

current regulations that apply to interim 

status hazardous waste surface 

impoundments, which are codified in 

part 265. Some additional proposed 

provisions were based on requirements 

currently applicable to water, sediment, 

or slurry impoundments and 


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120USEPA, ‘‘Assessment and Recommendations 

for Improving the Performance of Waste 

Containment Systems,’’ EPA/600/R–02/099, 

December 2002. 

121The term ‘‘abandoned’’ is defined in the 

MSHA regulations under 30 CFR 77.217, and as 

applied to an impoundment or impounding 

structure such term means that work on the 

structure has been completed in accordance with a 

plan for abandonment approved by the District 

Manager. 

impounding structures that are 

regulated by the MSHA. See 30 CFR part 

77, subpart C. 

The proposed rule included a number 

of closure and post-closure criteria, 

including: (1) Requirements to prepare 

closure and post-closure plans; (2) 

requirements for conducting closure of 

a CCR unit when the CCR is removed 

and when the CCR is left in place, 

including design criteria for a final 

cover system; (3) timeframes to 

commence and complete closure 

activities; (4) closure and post-closure 

care certification requirements; and (5) 

requirements for conducting postclosure care. The Agency received 

numerous comments on the proposed 

closure and post-closure criteria, with 

the majority of comments pertaining to 

the proposed timeframes for closure 

(i.e., timeframes for commencing and 

completing closure) of a CCR surface 

impoundment. As a result of these 

comments, EPA solicited additional 

comments on the timeframes for closure 

in a NODA published on August 2, 2013 

(NODA 3). See 78 FR at 46944. The 

sections below explain the approach 

and rationale for the final rule closure 

and post-closure care criteria based on 

the comments received in response to 

the proposed rule and the NODA. 

1. Closure Plan 

The Agency proposed to require that 

the owners or operators of CCR landfills 

and CCR surface impoundments prepare 

a written closure plan describing the 

closure of the unit and providing a 

schedule for implementation of the 

plan. 75 FR at 35207–08. The closure 

plan would describe the steps necessary 

to close the CCR unit at any point 

during the active life based on 

recognized and generally accepted good 

engineering practices. The proposal also 

identified the minimum information 

necessary to include in the closure plan. 

This information included: (1) An 

estimate of the largest area of the CCR 

unit that would ever require a final 

cover during the active life of the CCR 

unit; (2) an estimate of the maximum 

inventory of CCR that would ever be 

present on-site over the active life of the 

CCR unit; (3) a description of the final 

cover and the procedures to be used to 

install the final cover; (4) a description 

of how the facility will provide for 

major slope stability following closure; 

(5) a description of the measures the 

owner or operator will adopt to 

preclude the probability of future 

impoundment of water, sediment, or 

slurry; and (6) a schedule for the 

implementation of the closure plan. See 

proposed § 257.100(a) and (g). The 

proposed rule would also have required 

each owner or operator to develop the 

closure plan by the effective date of the 

final rule. Finally, EPA proposed to 

require the owner or operator to have 

the closure plan certified by an 

independent registered professional 

engineer, in addition to complying with 

all of the notification and posting 

requirements under the rule. 

EPA received few public comments 

on either the proposal to develop a 

closure plan or the individual elements 

of the closure plan. Some commenters 

generally supported the requirement for 

an owner or operator to develop a 

closure plan for the CCR unit, and no 

commenters opposed it. However, one 

commenter requested that EPA include 

more specific requirements for slope 

stability in the regulatory language 

beyond the general requirement to 

address major slope stability in the 

closure plan for units that close with 

waste in place. 

The Agency agrees that the proposed 

regulatory language should provide 

more specific criteria defining the 

expectations with regard to major slope 

stability. The proposed regulation 

merely required the owner or operator 

to ‘‘provide for major slope stability’’ in 

the closure plan, or in other words, to 

include measures to ensure that slope 

stability issues will be accounted for in 

designing the final cover. See 75 FR 

35252. 

EPA explained that unit closure must 

provide for major slope stability to 

prevent the sloughing of the cover 

system over the wastes that will remain 

in the CCR unit over the long term. 

Sloughing of a land slope can occur 

when the earth material becomes 

saturated with water and incapable of 

maintaining the slope resulting in the 

movement or sliding of the earth 

material. 75 FR at 35209. Slope stability 

is a critical issue in the design of final 

cover systems for both surface 

impoundments and landfills because 

cover system slope instability has been 

attributed to a number of final cover 

system failures.120 More specifically, the 

primary causes of final cover system 

slope failure during construction have 

been identified as: (1) Placing soil over 

the sideslope geosynthetics from the top 

of the slope downward, rather than the 

toe of the slope upward; (2) using 

presumed values for critical interface 

shear strengths that were not 

conservative; and (3) using interface 

shear strength values from laboratory 

tests performed under conditions not 

representative of the actual field 

conditions. For final cover system slope 

failures after rainfall or thaw, the 

primary causes of failure have been 

identified as: (1) Not accounting for 

seepage forces; (2) clogging of the 

internal drainage layer, which leads to 

increased seepage forces; and (3) not 

accounting for moisture at the 

geomembrane and compacted clay liner 

interface (which weakened the 

interface) due to both rain falling on the 

compacted clay liner surface during 

construction and freeze-thaw effects. 

Given that slope stability is a critical 

issue in the design and eventual 

performance of a final cover system, 

EPA has adopted a new criterion in the 

performance standard that all closures 

must meet: The owner or operator must 

ensure that the CCR unit is closed in a 

manner that will ‘‘provide for major 

slope stability to prevent the sloughing 

or movement of the final cover system 

during closure and throughout the postclosure care period.’’ See 

§ 257.102(d)(1)(iii). Or in other words, 

the owner or operator must design a 

final cover system with any measures 

necessary to ensure that the major 

slopes of the closed CCR unit remain 

stable. Consistent with the proposal, the 

closure plan must discuss how the final 

cover system will achieve the 

performance standards specified in the 

regulation, which will necessarily 

include how the measures taken to 

address major slope stability. As 

explained in the proposed rule, the 

original provision was based on existing 

MSHA standards, specifically the 

requirements under 30 CFR 77.216–5 

which apply to abandoned water, 

sediment or slurry impoundments and 

impounding structures.121 75 FR 35208– 

09. Under these requirements major 

slope stability includes long term 

stability considerations, such as 

‘‘erosion control, drainage, etc.’’ These 

issues are equally relevant to the closure 

of CCR units, and EPA expects facilities 

to account for these factors in their final 

closure plans. 

The remaining information elements 

of the closure plan have been adopted 

without revision (although EPA has 

reorganized the final regulatory text for 

greater clarity). These are briefly 

summarized below: 

a. An estimate of the largest area of 

the CCR unit ever requiring a final cover 

during the active life of the CCR unit. If 


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the owner or operator routinely closes 

portions of a CCR unit as the design 

capacity is reached, the closure plan 

should indicate the largest area of the 

CCR unit that will be open (and 

requiring a final cover) at one time. 

b. An estimate of the maximum 

inventory of CCR ever on-site over the 

active life of the CCR unit. If the owner 

or operator routinely closes portions of 

a CCR unit as the design capacity is 

reached, the closure plan should 

indicate the maximum inventory of CCR 

that will be open (and requiring a final 

cover) at one time. 

c. A description of the final cover and 

the procedures to be used to install the 

final cover. The closure plan should 

also discuss how the closure 

performance standard will be achieved. 

d. A description of the provisions to 

preclude the probability of future 

impoundment of water, sediment, or 

slurry. The final grades of the final 

cover system should promote surface 

water run-off and minimize erosion. The 

closure plan should also discuss the 

steepness of the slopes of the final cover 

system, in addition to the vertical 

spacing and width of benches. 

e. A schedule for the implementation 

of the closure plan. 

This rule also provides new 

procedures for amending an existing 

written closure plan. While the 

proposed rule did not specifically allow 

or require the owner or operator to 

revise an existing closure plan, EPA 

recognizes that available information 

and conditions known at the time the 

closure plan is prepared may very well 

change during the active life of the CCR 

unit, which could be decades in some 

cases. In order to eliminate any 

potential confusion over whether an 

owner or operator is allowed under this 

rule to revise the closure plan to reflect 

a change in conditions or 

circumstances, the final rule adopts new 

procedures for amending a written 

closure plan. These new procedures 

allow the owner or operator to revise the 

closure plan at any time provided the 

revised plan is placed in the facility’s 

operating record, in addition to 

complying with all of the notification 

and posting requirements under the 

rule. Furthermore, the final rule requires 

the closure plan be amended any time 

there is a change in conditions that 

would substantially affect the written 

closure plan in effect. 

Finally, in a departure from the 

proposed rule, the final rule provides 

owners and operators one year from the 

rule’s effective date to prepare the initial 

written closure plan, which is one year 

longer than proposed. EPA made this 

change as part of its effort to coordinate 

the compliance and implementation 

timeframes in the CCR rule with another 

Agency rulemaking—the Effluent 

Limitations Guidelines and Standards 

for the Steam Electric Power Generating 

Point Source Category (ELG) 

rulemaking—that may affect owners and 

operators of CCR units. See 78 FR 

34442. As explained in that proposal, 

consistent with RCRA section 1006(b), 

EPA has sought to effectively coordinate 

any final RCRA requirements with the 

ELG requirements, to minimize the 

overall complexity of these two 

regulatory structures, and to facilitate 

the implementation of engineering, 

financial and permitting activities. 

EPA’s goal is to ensure that the two 

rules work together to effectively 

address the discharge of pollutants from 

steam electric generating facilities and 

the human health and environmental 

risks associated with the disposal of 

CCRs, without creating avoidable or 

unnecessary burdens. 

EPA proposed to require facilities to 

complete a closure plan by the rule’s 

effective date, or six months following 

the rule’s publication. However, this 

would have required owners or 

operators to prepare closure plans 

approximately three months prior to 

publication of the ELG final rule. Given 

that an understanding of the ELG rule 

would likely affect the details and 

content of a closure plan, the Agency 

concluded that it would make no sense 

to require an owner or operator to 

prepare a closure plan within six 

months, only to have them update it 

months later, after the owner or operator 

understands the requirements of both 

the CCR and ELG final rules. No 

measureable environmental or health 

benefit would be gained by having a 

closure plan in place for those three 

months. Moreover, EPA wants to ensure 

that closure plans are well considered, 

and the knowledge that a plan may need 

to be substantially revised in the near 

future could create a contrary incentive. 

By extending the deadline for 

preparation of the closure plan by one 

year, owner or operators will have 

slightly more than six months after the 

ELG rule is published to complete a 

closure plan. This is consistent with the 

six month timeframe EPA originally 

proposed, which as noted, would have 

required completion of the closure plan 

within six months of publication of the 

final CCR rule. 

2. Closure of a CCR Unit Through 

Removal and Decontamination 

The proposed rule would have 

allowed facilities to close a CCR unit 

either through CCR removal and 

decontamination of all areas affected by 

releases from the CCR unit (‘‘clean 

closure’’) or with CCR in place with a 

final cover system. The Agency 

proposed that if the owner or operator 

elects to clean close a CCR unit, CCR 

removal and decontamination are 

complete when constituent 

concentrations throughout the CCR unit 

and any areas affected by releases from 

the CCR unit do not exceed the numeric 

cleanup levels for those constituents 

found in CCR established by the state in 

which the CCR unit is located, to the 

extent that the state has established 

cleanup levels. 75 FR 35208. In the 

absence of state cleanup levels, the 

proposal stated that metals should be 

removed to either statistically 

equivalent background levels, or to 

maximum contaminant levels or healthbased numbers. Once a facility had 

completed clean closure of a CCR unit, 

EPA proposed that post-closure care 

would not be required for that unit. EPA 

also noted that it was considering 

whether to adopt a further incentive for 

clean closure, under which the owner or 

operator could remove the deed 

notation required under the proposed 

rule, once all CCR has been removed 

from the facility and notification 

provided to the state. 

Several commenters urged EPA to not 

require clean closure as the only method 

of closing a CCR unit, arguing that clean 

closure is not feasible or not necessary. 

Others acknowledged that clean closure 

is not only a viable option for their CCR 

units, but in some cases it would be 

‘‘the only prudent closure option.’’ A 

few commenters suggested criteria to 

determine the conditions under which 

clean closure would be appropriate. For 

example, one commenter agreed with 

EPA that the risk-based corrective action 

process (RBCA) would be useful in 

determining whether waste removal is 

appropriate at the site. 

EPA received relatively few 

comments on the specific standards for 

conducting clean closure. One 

commenter identified six criteria that 

should be included in any final 

regulation in order to allow a facility to 

have been deemed to have completed 

clean closure of a CCR surface 

impoundment and thereby avoid postclosure care. Some of the commenter’s 

suggestions were comparable to 

requirements in the proposal. However 

the commenter also included 

requirements to ensure that adequate 

engineering controls were used to 

prevent contamination of soil and 

groundwater during excavation, and 

requirements for quarterly monitoring of 

shallow groundwater beneath the 

surface impoundment for a period of 

five years to demonstrate that no 


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residual CCR was left in place. Finally, 

a number of commenters supported a 

provision that would allow the owner or 

operator to remove the deed notation 

required provided all CCR is removed 

from the site. 

EPA did not propose to require clean 

closure nor to establish restrictions on 

the situations in which clean closure 

would be appropriate. As EPA 

acknowledged in the proposal, most 

facilities will likely not clean close their 

CCR units given the expense and 

difficulty of such an operation. Because 

clean closure is generally preferable 

from the standpoint of land re-use and 

redevelopment, EPA has explicitly 

identified this as an acceptable means of 

closing a CCR unit. However, both 

methods of closure (i.e., clean closure 

and closure with waste in place) can be 

equally protective, provided they are 

conducted properly. Thus, consistent 

with the proposal, the final rule allows 

the owner or operator to determine 

whether clean closure or closure with 

the waste in place is appropriate for 

their particular unit. EPA agrees that the 

RBCA process, using recognized and 

generally accepted good engineering 

practices such as the ASTM Eco–RBCA 

process, can be a useful tool to evaluate 

whether waste removal is appropriate at 

the site. It is, however, not a necessary 

prerequisite. 

EPA has adopted the provisions 

governing clean closure from the 

proposed rule with only one revision. 

The final provisions consist of two 

performance standards: First, the owner 

or operator must remove all CCR from 

the unit and decontaminate all areas 

affected by releases from the CCR 

landfill or surface impoundment. As 

part of meeting this performance 

standard, the final rule requires facility 

owners or operators to remove all 

wastes from the closing unit, and 

remove all liners contaminated with 

CCR waste and CCR waste leachate. The 

final rule also requires the owner or 

operator to remove and decontaminate 

all areas affected by releases from the 

CCR unit. This would require removal 

or decontamination of the underlying 

and surrounding soils and flushing, 

pumping, and/or treating the aquifer. 

The Agency interprets the term ‘‘soil’’ 

broadly to include both unsaturated 

soils and soils containing groundwater. 

Second, the final rule specifies that 

closure has been completed when all 

CCR in the unit and any areas affected 

by releases from the CCR unit have been 

removed and groundwater monitoring 

demonstrates that all concentrations of 

the assessment monitoring constituents 

listed in appendix IV to part 257 do not 

exceed either statistically equivalent 

background levels or MCLs. This 

standard encompasses both saturated 

and unsaturated soils, as well as the 

groundwater. As part of attaining this 

standard, facility owners and operators 

will need to document that any 

contaminants left in the subsoils (i.e., 

contaminated groundwater left in soils 

below the former landfill or 

impoundment) will not impact any 

environmental media including 

groundwater, surface water, or the 

atmosphere in excess of Agencyrecommended limits or factors. 

Typically, any metals in these 

‘‘subsoils’’ in excess of background 

levels are allowed to either naturally 

attenuate, or are removed by flushing. 

Once the facility has removed all of the 

assessment monitoring constituents 

listed in appendix IV down to 

background levels or MCLs the 

groundwater is considered to be ‘‘clean’’ 

and closure is complete. 

EPA disagrees that specific provisions 

requiring the use of adequate 

engineering controls to prevent 

contamination of soil and groundwater 

during excavation are necessary to 

ensure that closure will be protective. 

To the extent that any contamination of 

soil or groundwater has occurred during 

CCR removal, this would constitute a 

release (or an ‘‘area affected by a 

release’’) from the CCR unit, and the 

final performance standard requires the 

facility to ensure that this has been 

removed before closure is deemed to be 

complete. 

Contrary to the commenter’s 

suggestion that quarterly monitoring for 

five years is necessary to demonstrate 

that no residual CCR was left in place, 

the rule requires a facility to document 

that all appendix IV concentrations are 

below MCL or background levels for two 

consecutive sampling events, using the 

statistical procedures in § 257.93(g). 

This is the same sampling required to 

demonstrate under the groundwater 

monitoring program that there is no 

longer a reason to suspect a source of 

contamination, and that consequently 

assessment monitoring can cease. EPA 

selected these provisions as the most 

factually analogous to the circumstances 

surrounding the clean closure of a CCR 

unit. Once a facility has removed the 

waste and any liner, the presumption is 

that the source of contamination has 

been removed as well. Although there 

may be site-specific factors that could 

support the need for a longer monitoring 

period, there is no factual basis to 

require a longer minimum period of 

sampling on a national basis. 

This represents a change from the 

proposal. EPA proposed a performance 

standard that required decontamination 

to either any state established numeric 

cleanup levels for CCR constituents, or 

in the absence of state cleanup levels, 

the removal of metals to either 

statistically equivalent background 

levels, or to MCLs, or health-based 

numbers. This was taken directly from 

the current part 258 standards for 

MSWLFs. EPA has deleted both of these 

standards as inappropriate for these 

units. 

The reference to state established 

clean up levels was inadvertently 

carried over from the existing part 258 

regulations. As explained throughout 

this preamble, EPA is unable to rely on 

state programs to establish the specific 

standards under this rule; the record 

does not contain information on all state 

cleanup standards, and there is no 

mechanism for states to operate 

approved programs in lieu of federal 

programs. 

EPA determined that the requirement 

to clean all soils to background levels 

was equally inappropriate. In practice, 

EPA does not routinely require 

complete removal of all contamination 

(that is, cleanup to ‘background’) from a 

closing unit even for hazardous waste 

units. Requiring CCR units to clean up 

soils to levels before the site was 

contaminated, would be more stringent 

than current hazardous waste policies. 

There is no basis in the current record 

to impose provisions for the 

remediation of CCR units that are more 

stringent than those imposed on 

hazardous wastes. 

Upon completion, the unit is exempt 

from the groundwater monitoring and 

any other post-closure care 

requirements. In addition, the final rule 

adopts the proposal to allow the owner 

or operator to remove the deed notation 

required under § 257.102(i)(4), upon 

certification that clean closure has been 

completed. EPA proposed this option to 

create a further incentive for clean 

closure, and it is clear from the 

commenters, who uniformly supported 

this option, that it does so. Some 

commenters raised concern about the 

effect this option will have on state 

laws, which may not allow the deed 

notation to be removed. EPA notes that 

these criteria do not preempt state laws; 

to the extent state law requires the 

facility to retain a deed notation despite 

the completion of clean closure, those 

requirements will remain in place, 

notwithstanding this final rule. 

3. Closure of a CCR Unit With CCR in 

Place 

The proposed rule would have also 

allowed facilities to close a CCR unit by 

leaving the CCR in place and installing 

a final cover system. The final cover 


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system would have been required to be 

designed and constructed to a have a 

permeability less than or equal to the 

permeability of any bottom liner system 

or the natural subsoils present, or a 

permeability no greater than 1 × 10¥5

centimeters per second (cm/sec), 

whichever is less. The proposal would 

have also required an infiltration layer 

that contains a minimum of 18 inches 

of earthen material and an erosion layer 

containing a minimum of six inches of 

earthen material that is capable of 

sustaining native plant growth to help 

minimize erosion of the final cover. 

These proposed requirements were 

generally modeled after the performance 

standard and technical requirements 

contained in § 258.60 for MSWLFs. 75 

FR 35208. EPA also proposed that the 

final cover system would have to be 

designed to minimize the disruption of 

the final cover through a design that 

accommodates settling and subsidence 

and provides for major slope stability to 

prevent the sloughing of the closed CCR 

unit over the long term. These last two 

criteria are based on existing 

requirements for interim status units 

under RCRA part 265 and MSHA 

requirements under 30 CFR part 77, 

subpart C, respectively. 

As proposed, CCR surface 

impoundments would have been subject 

to an additional set of performance 

standards. The owner or operator of a 

CCR surface impoundment would have 

been required to either drain the CCR 

unit or solidify the remaining wastes. In 

addition, the owner or operator would 

have been required to stabilize the 

wastes to a bearing capacity to support 

the final cover. The proposed criteria 

would also have required that the final 

cover for all CCR units be designed to 

minimize the migration of liquids 

through the closed CCR surface 

impoundment over the long term; 

promote drainage, and accommodate 

settling and subsidence so that the final 

cover’s integrity is maintained. Finally, 

closure of the CCR unit would also have 

been subject to the general performance 

standard that the probability of future 

impoundment of water, sediment, or 

slurry be precluded. 

The Agency also proposed to allow 

owners or operators of CCR units to 

select an alternative final cover design. 

As proposed, the alternative final cover 

design would have required an 

infiltration layer that achieves an 

equivalent reduction in infiltration, and 

an erosion layer that would provide 

equivalent protection from wind and 

water erosion, as the infiltration and 

erosion layers specified for final covers 

described above. In addition, the 

proposed approach for alternative final 

cover designs would have also required 

certification by an independent 

registered engineer, notification being 

provided to the state that the alternative 

final cover design has been placed in 

the facility’s operating record, and 

placement of the alternative final cover 

design on the owner or operator’s 

publicly accessible Internet site. 

a. Final Cover System Design 

EPA received comments supporting 

the proposed approach, while other 

commenters opposed the proposed final 

cover system design requirements. One 

state commenter generally supported 

using the part 258 final cover design 

requirements as a general model for CCR 

units. This commenter also requested 

that the Agency clarify whether new 

CCR units would be required to install 

a composite final cover system given 

that it was proposed that new CCR units 

would be required to designed and 

constructed with a composite bottom 

liner. Another state indicated that its 

state regulations allow final cover 

designs similar to that proposed by EPA, 

although the state requires a 24 inch 

infiltration layer and a 12 inch erosion 

layer. Another commenter referenced 

current research showing that soil-only 

covers may not be effective in 

minimizing infiltration over the long 

term under certain climates. This 

commenter recommended that a 

geomembrane should be made a 

standard component of the cover 

system. Other commenters stated that 

the final cover system should be a 

composite system consisting of a 

synthetic component and a low 

permeability clay component. A state 

commenter offered that post-closure 

maintenance of composite cap system 

incorporating a geomembrane has been 

challenging in that state. Another 

commenter stated that a compacted clay 

liner should not be used as a final cover 

for landfills due to the potential for 

settlement cracking, desiccation 

cracking, and root and animal 

penetration. Instead, it was suggested 

that if a single barrier system is used, 

then a benefit-cost analysis favors a 

geomembrane, and if a composite 

barrier is to be used, a benefit-cost 

analysis favors a composite system of a 

geomembrane and geosynthetic clay 

liner. 

The Agency also received many 

comments on the proposed approach to 

allow the use of alternative final cover 

systems. Most commenters supported 

allowing the use of alternative covers. 

One commenter stated that the use of 

geosynthetic clay liners in lieu of 18 

inches of earthen material for the 

infiltration layer is a commonly 

accepted for cover systems for MSWLFs. 

This commenter also noted that that 

geosynthetic clay liners have 

documented permeability 

characteristics on the order of 1 × 10¥9

cm/sec. Another commenter supported 

allowing the use of alternative cover 

systems because a one-size-fits-all 

approach is not appropriate for final 

cover system designs. A state also 

offered that appropriately designed 

alternative final covers such as capillary 

barrier covers and evapotranspiration 

covers are being successfully used at 

facilities in the state. 

After considering comments received 

regarding final covers, the Agency is 

essentially finalizing the approach in 

the proposed rule with minor revisions. 

The final rule allows owners or 

operators to use a final cover system 

consisting of an infiltration layer and an 

erosion layer, provided the infiltration 

layer has a permeability less than or 

equal to the bottom liner or natural 

subsoils. However, regardless of the 

bottom liner or natural subsoils present, 

the final cover must have a permeability 

no greater than 1 × 10¥5 cm/sec. 

To address the commenters’ concerns 

that the final cover system may not 

function effectively as designed over the 

long term under certain circumstances, 

the rule also includes a performance 

standard that any final cover system 

must meet. This standard is modeled 

after the closure performance standard 

applicable to interim status hazardous 

waste units under § 265.111. The final 

rule requires that any final cover system 

control, minimize or eliminate, to the 

maximum extent practicable, postclosure infiltration of liquids into the 

waste and releases of leachate (in 

addition to CCR or contaminated runoff) to the ground or surface waters. 

Thus, a facility must ensure that in 

designing a final cover for a CCR unit 

they account for any condition that may 

cause the final cover system not to 

perform as designed. This could include 

accounting for site conditions that may 

increase the likelihood that a cover 

would be susceptible to desiccation 

cracking or settlement cracking. Under 

this performance standard, if the cover 

system results in liquids infiltration or 

releases of leachate from the CCR unit, 

the final cover would not be an 

appropriate cover. The final rule 

requires the final cover system design to 

be certified by a qualified professional 

engineer that the design meets both the 

performance standard and cover system 

criteria. 

The final rule does not require the use 

of composite final covers, such as a 

geomembrane underlain by a compacted 

soil infiltration layer. This is also the 


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case in situations for a CCR unit that is 

designed with a composite bottom liner 

or if the permeability of the soil 

underlying the unit is comparable to the 

permeability of a geomembrane. As EPA 

has concluded for municipal solid waste 

landfills, in certain site-specific 

situations it may be possible to 

construct an infiltration layer that 

achieves an equivalent reduction in 

infiltration without matching the 

permeability in the bottom liner 

material. 62 FR 40710. 

Nonetheless, in certain locations, 

composite cover systems may be 

necessary to achieve the rule’s 

performance standards. EPA 

acknowledges that under certain 

circumstances issues can arise with 

compacted clay barriers, particularly 

when used alone. These can include 

desiccation, freeze-thaw sensitivity, and 

distortion due to total and differential 

settlement of the underlying wastes. 

These issues can generally be addressed 

through proper maintenance of the 

cover system; and in fact the final rule 

requires as part of post-closure care that 

the owner or operator maintain the 

integrity and effectiveness of any final 

cover, including making repairs to the 

final cover to correct the effects of 

settlement, subsidence, erosion, or other 

events, and preventing run-on and runoff from eroding or otherwise damaging 

the final cover. Consequently, EPA is 

not mandating the installation of a 

composite liner system. 

However, fewer problems are 

typically seen with the use of composite 

cover systems. And while ongoing 

oversight and proper maintenance is 

necessary to ensure the efficacy of any 

cover system, less effort is generally 

involved to ensure the continued 

performance of a composite cover 

system. EPA therefore generally 

recommends that facilities install a 

composite cover system, rather than a 

compacted clay barrier, as the 

composite system has often proven to be 

more effective (and cost effective) over 

the long term. For these reasons, EPA 

also anticipates that composite cover 

systems will be recommended in many 

circumstances by qualified professional 

engineers. 

The final rule also allows the use of 

an alternative final cover. The rule 

requires that the alternative final cover 

must include infiltration and erosion 

layer that achieve equivalent 

performance as the minimum designs 

specified for final cover systems as 

discussed above. As discussed in the 

proposed rule, EPA included this 

provision to increase the flexibility for 

an owner or operator of a CCR unit to 

account for site-specific conditions. 

Moreover, these provisions will provide 

an opportunity to incorporate future 

technology improvements that would be 

missed if the rule required prescriptive 

design measures. In addition, these 

requirements would not supersede more 

stringent state requirements. Thus, if a 

state either has more prescriptive or 

more stringent standards in its state 

regulations applicable to CCR units, 

those state requirements would control 

any final cover system or alternative 

final cover system design. 

While the rule provides the owner or 

operator flexibility in selecting the final 

cover for the unit, EPA remains 

concerned about the lack of guaranteed 

state oversight on final cover selection. 

A final cover system that does not 

perform as designed may result in 

unacceptable infiltration of water into 

the closed CCR unit that may lead to 

leachate and releases from the unit. To 

address this concern, as well as the 

concerns raised by commenters 

regarding the long-term performance of 

certain cover systems by providing 

further assurance that the final cover 

system will perform over the long term, 

EPA has deleted the proposed provision 

that would have allowed owners or 

operators to shorten the length of the 

post-closure care period. As discussed 

in Unit M.9 below, the final rule 

requires facilities to conduct postclosure care for all CCR units for 30 

years. 

b. Performance Standards When Leaving 

CCR in Place 

EPA received no significant 

comments on the proposed performance 

standards. The Agency is therefore 

finalizing these requirements without 

revision from the proposal (although 

EPA has reorganized the final regulatory 

text for greater clarity). The performance 

standards are summarized below: 

i. As discussed in the previous 

section, the CCR unit must be closed in 

a manner that will control, minimize or 

eliminate, to the maximum extent 

practicable, post-closure infiltration of 

liquids into the waste and releases of 

CCR, leachate, or contaminated run-off 

to the ground or surface waters. 

ii. The CCR unit must be closed in a 

manner that will preclude the 

probability of future impoundment of 

water, sediment, or slurry. 

iii. The CCR unit must be closed in a 

manner that will provide for major slope 

stability, which is discussed is Unit M.1 

of this document for closure plans 

above. 

iv. The CCR unit must be closed in a 

manner that will minimize the need for 

further maintenance of the unit. 

v. The CCR unit must be closed in the 

shortest amount of time consistent with 

recognized and generally accepted good 

engineering practices. The Agency 

added this performance standard to be 

consistent with the final provisions 

applicable for the timeframes for 

initiating and completing the closure of 

CCR units. 

4. Timeframes for Closure 

The Agency proposed that closure of 

a CCR landfill or CCR surface 

impoundment must be initiated by the 

owner or operator no later than 30 days 

following the known final receipt of 

CCR. To address concerns about 

‘‘inactive’’ or abandoned units, the 

proposed rule also provided that a CCR 

unit must initiate closure no later than 

one year after the most recent receipt of 

CCR if the CCR unit had remaining 

capacity and there was a reasonable 

likelihood that the CCR unit would 

receive additional CCR (i.e., the rule 

would have forced the facility to close 

the CCR unit). See 77 FR at 35209 and 

proposed § 257.100(j). In addition, the 

proposed rule would have required an 

owner or operator to complete closure 

activities within 180 days of initiating 

closure. See proposed § 257.100(k). 

Thus, the maximum amount of time a 

facility would have had to initiate and 

complete closure of a CCR unit was 

seven months. 

While the existing closure criteria for 

MSWLFs allow the Director of an 

approved State to grant time extensions 

for closure (both to initiate and to 

complete closure) if steps are taken to 

prevent threats to human health and the 

environment from the unclosed unit, 

EPA proposed not to include similar 

provisions for owners or operators of 

CCR units. At proposal, the Agency 

believed that extending the closure 

deadlines was inappropriate because, in 

the absence of an approved state 

program, the owner or operator could 

unilaterally decide to extend the time 

for closure of a CCR unit, without any 

basis, or oversight by a regulatory 

authority. 75 FR 35209. 

EPA received numerous comments in 

response to the proposed deadlines 

under the subtitle D proposed approach. 

Industry and state commenters stated 

that the proposed deadlines to begin 

and complete closure activities (30 and 

180 days, respectively) are technically 

impracticable and simply too short for 

the vast majority of CCR units, 

especially for CCR surface 

impoundments to complete closure. 

Commenters stated that a 30-day 

deadline to initiate closure activities 

may not be workable in situations such 

as when there are construction 


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limitations due to seasonal or climatic 

conditions, and should not be required 

in circumstances when a coal-fired 

generating unit is temporarily idled 

(e.g., maintenance related outages or an 

outage corresponding with a CCR 

handling system conversion). Regarding 

the amount of time needed to close a 

unit, numerous commenters noted that 

it would be impossible to properly 

complete closure activities within the 

proposed 180 days at most CCR surface 

impoundments due to the length of time 

needed to dewater an impoundment and 

stabilize the wastes prior to constructing 

the final cover system. For example, 

commenters pointed out that dewatering 

of a surface impoundment alone can 

take several years to complete because 

impoundments can be hundreds of acres 

in size. One commenter provided 

information related to an ongoing CCR 

surface impoundment closure where the 

dewatering and ash stabilizing phases of 

closure took two years to complete. 

Commenters also stated that because a 

large number of CCR units will have to 

be closed during roughly the same 

timeframe, facilities may not be able to 

obtain the necessary specialized 

personnel, equipment, and materials 

(e.g., clay or fill material, liner 

materials) to close multiple units 

simultaneously. This issue may be 

further complicated in locations where 

multiple facilities are competing for the 

same limited resources. Commenters 

further argued that adopting the same 

closure deadlines applicable to 

MSWLFs is not appropriate given 

differences in size, design, and 

operation (e.g., CCR surface 

impoundments contain large volumes of 

water, MSWLFs typically close each 

component cell when it reaches its 

disposal capacity). As a result of these 

concerns, commenters recommended 

that EPA extend the deadlines both to 

commence and complete closure 

activities. The majority of the these 

commenters, however, urged EPA not to 

establish specific deadlines for closure 

and instead require facilities to close a 

CCR unit consistent with a closure plan 

approved by a state, or developed and 

certified by a qualified professional, 

such as a professional engineer. 

In a subsequent NODA, the Agency 

solicited additional public comment on 

several different options to address 

these concerns. 78 FR at 46944–46. With 

respect to the deadline to initiate 

closure, EPA presented several 

examples of routine and legitimate 

circumstances in which CCR units 

would not receive CCR for periods 

longer than one year, even though the 

facility intended to continue to use the 

unit. For example, EPA discussed 

circumstances in which the facility 

alternates between two surface 

impoundments, only one of which is 

operational at a time. Once the 

impoundment has reached capacity, the 

facility dewaters the unit, and begins to 

send CCR to the second impoundment. 

Once the unit is dewatered, the CCR is 

excavated and disposed in an adjacent 

landfill. The time to fill these units has 

varied over the years as demand has 

fluctuated, but a typical time to fill a 

unit with CCR is two years, perhaps 

longer, during which the other unit is 

‘‘idle,’’ in that it does not ‘‘receive 

CCR,’’ but it remains operational. 

The Agency also solicited comment 

on a revised approach to the deadline to 

initiate closure. The approach entailed 

establishing a rebuttable presumption 

that if the CCR unit has not received 

waste within a particular period of time 

(e.g., 18–24 months), the CCR unit 

would be considered inactive and unit 

closure would be required to begin 

within a specified time. However, if the 

facility could substantiate that there was 

a reasonable likelihood that the CCR 

unit would again receive CCR in the 

future and also was able to document 

certain findings, the owner or operator 

would not need to immediately 

commence closure of the CCR unit. In 

the NODA, EPA discussed several 

examples of situations that could 

support a demonstration that immediate 

closure of the CCR unit was not 

necessary. One example was if an owner 

or operator could document that a CCR 

unit had been dedicated to a 

temporarily idled coal-fired generating 

unit and there was a reasonable 

likelihood that CCRs would be disposed 

in the CCR unit once the coal-fired 

generating unit resumed operation. 

Another situation presented was a CCR 

unit dedicated to a coal-fired generating 

unit that was not burning coal at the 

time (e.g., electricity was being 

generated with other fuels such as 

natural gas), but the facility needed the 

CCR unit following resumption of coal 

burning. A final example involved 

normal facility operations that include 

periods during which the CCR unit does 

not receive CCR for extended periods 

(e.g., the alternating use of two CCR 

surface impoundments discussed 

above). As part of this approach, the 

Agency solicited comment on whether 

to limit the length of time an owner or 

operator can maintain an idle CCR unit. 

With respect to the deadline for 

completing closure, EPA acknowledged 

in the NODA that different deadlines, at 

least for the larger CCR units, were 

warranted. Information that the Agency 

has obtained throughout the rulemaking 

confirmed commenters’ claims that the 

timeframes originally proposed to 

complete closure of CCR surface 

impoundments will be practicably 

infeasible for the larger impoundments. 

However, the Agency cautioned that any 

ultimate timeframe provided in the rule 

that would be practicable for the largest 

CCR units would be far too long to 

justify as timeframes for closure of the 

smaller impoundments. EPA explained 

that it intended to examine available 

closure plans for CCR surface 

impoundments to determine whether 

there are consistent timeframes or other 

factors that EPA could adopt as part of 

the regulations. EPA specifically 

identified two closure plans of CCR 

units that were scheduled to close as a 

possible source of useful information. 

These plans projected that closure 

would take multiple years to complete 

for modestly-sized CCR surface 

impoundments (i.e., less than 50 acres). 

a. Deadlines To Initiate Closure 

In response to the NODA, most utility 

commenters stated that the time to 

initiate closure should be tied to 

reasonable triggers that account for the 

diverse uses of CCR surface 

impoundments and CCR landfills. In 

particular, these commenters 

recommended that closure not be 

initiated for an idled CCR unit if the 

CCR unit was expected to receive 

additional waste in the future, whether 

CCR or any other waste the unit may be 

authorized to manage. These 

commenters also supported the 

scenarios EPA described in the NODA 

as examples of legitimate situations that 

could warrant delaying the immediate 

closure of a CCR unit. Many of these 

commenters generally agreed that the 

rebuttable presumption alternative 

discussed in the NODA could be an 

appropriate approach for closure, in 

particular for CCR units not covered by 

a state-approved operating plan, 

provided the regulatory approach would 

be implemented in a manner that did 

not restrict other legitimate uses of the 

CCR unit. Many of these commenters 

also asserted that a limit on the length 

of time a CCR unit can remain idle is 

not practical because the owner or 

operator will not be able to predict with 

any degree of certainty how long a CCR 

unit will be idled. Several of these 

commenters also urged EPA to specify 

in the final rule what EPA intended by 

the phrase ‘‘initiation of closure;’’ that 

is, that EPA define the activities or 

actions the owner or operator must take 

by the deadlines specified in the rule. 

A trade organization and other 

commenters warned that strict restraints 

on the initiation (and completion) of 


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closure of CCR units would pre-empt 

opportunities for reclaiming CCR from 

these CCR units for beneficial use of 

CCR. These commenters recommended 

that the final rule create meaningful 

incentives for the beneficial use of CCR 

already in CCR units which will become 

unavailable to reclamation once a final 

cover system is put in place. For 

example, one commenter suggested that 

an incentive could be deferring 

deadlines for closure of a CCR unit if an 

owner or operator reduces its net 

tonnage by a set amount, such as 10,000 

tons per year, if the CCR is beneficially 

used. EPA also received comments from 

several states that generally supported 

the rebuttable presumption concept. 

One state supported a longer rebuttable 

presumption time period of three years 

that could be extended if approved by 

the state on a case-by-case basis. 

After consideration of all of the public 

comments, the Agency is adopting an 

approach that largely mirrors the 

approach outlined in the NODA. 

Closure of a CCR unit is triggered in one 

of three ways. The first is upon the 

known final receipt of waste (CCR or 

otherwise), or when an owner or 

operator removes the known final 

volume of CCR from the CCR unit for 

the purpose of beneficial use of CCR. 

Under these scenarios, the final rule 

requires an owner or operator to 

commence closure of the CCR unit 

within 30 days of such known final 

receipt or known final volume removal, 

whichever date is later. 

The second way closure can be 

triggered relates to ‘‘idled’’ CCR units. 

This applies to situations in which the 

CCR unit has remaining disposal, 

treatment, or storage capacity, or there 

has been a temporary pause in the 

removal activities of CCR from the CCR 

unit. In these situations, the rule 

establishes a presumption that the 

owner or operator must initiate closure 

of the CCR unit no later than two years 

after the most recent receipt of CCR or 

any non-CCR waste stream, or no later 

than two years after the most recent date 

that CCR was removed from the CCR 

unit for the purpose of beneficial use, 

whichever date is later. The rule, 

however, provides procedures for an 

owner or operator of the CCR unit to 

rebut this presumption and obtain 

additional time, provided the owner or 

operator can make the prescribed 

demonstrations. 

The final way closure is triggered is 

when a CCR unit fails to meet certain of 

the technical criteria. Specifically, an 

owner or operator may be compelled to 

close a CCR unit in the following 

circumstances: (1) If the CCR unit has 

been sited inappropriately; i.e., cannot 

meet the applicable location criteria; (2) 

if an unlined CCR surface impoundment 

is found to contaminate groundwater in 

excess of a groundwater protection 

standard; or (3) if a CCR surface 

impoundment cannot demonstrate the 

minimum factors of safety regarding 

structural integrity of the CCR unit. 

When closure is triggered under these 

circumstances, the owner or operator 

must initiate closure of the CCR unit 

within six months. Each of these is 

discussed in more detail below. 

i. ‘‘Known Final Receipt’’ of CCR 

Several commenters suggested that 

the rule not link the deadlines to initiate 

closure solely to when a CCR unit 

ceases to receive CCR. Many of these 

commenters provided information that 

CCR units also serve functions other 

than managing CCR, including the 

management of other wastes or water 

treatment. Thus, while there are periods 

of time that certain CCR units will 

receive both CCR and non-CCR wastes, 

there are also other times when the 

same CCR unit will only receive nonCCR wastes or perform other forms of 

active waste management in the unit, 

e.g., specific water treatment functions. 

EPA agrees that these are legitimate 

waste management activities, and EPA 

is aware of no risks that would warrant 

cessation of such activities simply 

because the unit is no longer receiving 

CCR. Therefore, in response to these 

comments, the final rule no longer 

requires closure based solely upon the 

receipt of CCR. Instead, the final rule 

requires closure to be initiated after the 

CCR unit ceases to receive any waste or 

waste stream into the CCR unit. See 

§ 257.102(e)(1) and (e)(2) in the rule. 

The Agency also agrees with those 

commenters that supported delaying the 

commencement of closure of a CCR unit 

if substantial quantities of CCR are 

removed from the CCR unit for the 

beneficial use of the waste. This could 

include, for example, removal of CCR 

from a CCR unit followed by its use as 

a partial replacement for Portland 

cement. As discussed in Unit IV.B of 

this preamble, EPA has identified 

significant benefits from reducing the 

disposal volumes of CCR in CCR 

landfills and CCR surface 

impoundments, including reduced risks 

associated with the practice of CCR 

disposal, benefits from reducing the 

need to mine and process virgin 

materials, and energy and greenhouse 

gas benefits. EPA finds these potential 

benefits compelling and is therefore 

revising the closure requirements in the 

rule to accommodate the removal and 

beneficial use of CCR. EPA has therefore 

revised the rule to provide that closure 

of an otherwise idled CCR unit is not 

immediately triggered, as long as the 

owner or operator is removing 

substantial quantities of CCR from the 

unit. However, once removal of CCR for 

beneficial use is no longer taking place, 

the rule would require the owner or 

operator to initiate closure of the CCR 

unit. See § 257.102(e)(1) and (e)(2) in the 

rule. 

After considering comments received 

regarding the specific timeframe by 

which closure must be initiated 

following known final receipt of wastes, 

the Agency is finalizing the 30 day 

timeframe from the proposed rule. 

Several commenters expressed concern 

that 30 days is too short because it does 

not account for the potential that 

weather or seasonal concerns may 

interfere or cause substantial delay. The 

Agency acknowledges that weather or 

seasonal effects can delay certain 

activities, but disagrees that the rule 

provision needs to be revised to account 

for those. This provision does not 

require that specific actions or activities 

must be initiated during this 30-day 

period. For example, the rule does not 

require the installation of the final cover 

system (or the commencement of 

removal of CCR from the CCR unit) 

necessarily begin within this 30-day 

period. Instead, the provision is more 

flexible; the owner or operator can 

initiate closure by taking other actions 

necessary to implement the closure plan 

that are not weather or seasonal 

dependent, such as turning off pumps 

supporting sluice lines or taking any 

steps necessary to comply with any state 

or other agency standards that are a 

prerequisite to initiating closure. 

Provided the owner or operator has 

started to take the measures to 

implement the closure plan that can be 

feasibly undertaken, the facility will 

have complied with this requirement. 

The 30-day period remains equally 

appropriate under the wider provision 

that allows closure to be triggered either 

by the known final receipt of all wastes 

in the unit, or upon the known final 

volume removal of CCR for beneficial 

use of CCR. There are no facts unique 

to these circumstances that would 

necessitate an extension beyond the 30 

day timeframe. Furthermore, as the 

terms ‘‘known final receipt’’ and 

‘‘known final volume removal’’ suggest, 

the owner or operator has made the 

determination to cease managing waste 

in the CCR unit, or to cease removing 

CCR from the CCR unit for beneficial 

use purposes. This will likely occur in 

situations where the CCR unit is 

reaching its disposal capacity (or 

treatment capacity when the CCR unit is 

receiving non-CCR waste streams) or the 


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owner or operator intends to close the 

CCR unit for other purposes (e.g., the 

closing of a CCR surface impoundment 

following conversion to dry handling of 

CCR). Given that these situations can 

generally be anticipated and planned for 

in advance, EPA is not aware of 

circumstances that would prevent 

owners or operators from at least 

commencing closure within this 30-day 

period. In summary, the owner or 

operator must commence closure of the 

CCR unit with 30 days of known final 

receipt of CCR or any non-CCR waste 

stream, or within 30 days of known final 

removal of CCR for beneficial use, 

whichever date is later. 

ii. Temporarily Idled Units 

This situation involves CCR units 

with remaining CCR disposal or storage 

capacity (or treatment capacity for nonCCR waste streams) that may sit idle for 

extended periods of time (e.g., 

potentially years at a time); however, 

the owner or operator intends to 

continue to maintain the idled unit to 

receive CCR or non-CCR waste streams 

in the future. EPA proposed that these 

CCR units could remain idle for up to 

one year, but that closure of the CCR 

unit would have to be initiated no later 

than one year after the most recent 

receipt of CCRs. See 75 FR 35252 

(proposed § 257.100(j)). The majority of 

commenters claimed that one year was 

too short and would require the 

premature closure of CCR units that 

would be needed in the future. In 

response to these comments and new 

information documenting examples of 

legitimate circumstances in which CCR 

units were idled for more than one year, 

EPA solicited comment on a revised 

approach to establish longer timeframes 

to initiate closure for temporarily idled 

CCR units. As discussed previously, this 

approach entailed establishing a 

rebuttable presumption that if the CCR 

unit has not received waste within a 

specified period of time (i.e., 18 months 

to two years), the CCR unit would be 

considered inactive and closure of the 

CCR unit would be required. However, 

this time could be extended beyond the 

18 months or two years if the facility 

could substantiate certain findings. See 

78 FR at 46945. 

After considering comments received, 

the Agency is essentially finalizing the 

approach presented in the 2013 NODA. 

Specifically, in situations where the 

CCR unit has remaining disposal or 

storage capacity (or treatment capacity 

for non-CCR wastestreams) and there is 

a reasonable likelihood that the CCR 

unit will receive additional CCR or nonCCR waste in the future, the final rule 

allows the owner or operator to keep the 

CCR unit available for use for up to two 

years. However, if the CCR unit has not 

received CCR or any non-CCR waste 

within two years of the last receipt of 

CCR or any non-CCR waste, whichever 

date is later, the rule requires closure of 

the CCR unit unless the owner or 

operator can document that additional 

time is necessary to accommodate 

routine operations and legitimate waste 

management activities. 

The Agency agrees that it is not 

necessary to require closure of 

temporarily idled CCR units after one 

year. Information in the record 

documents numerous examples of 

legitimate circumstances in which CCR 

units were idled for more than one year. 

In most of the examples provided CCR 

units are temporarily idled for periods 

that can last more than one year, but 

typically use of the CCR units resumes 

within approximately two years. Based 

on this information EPA has concluded 

that a two year timeframe before 

presumptively requiring closure of a 

CCR unit would be more consistent with 

current practice, and is better supported 

by the available information. 

This same information documented 

that there can be situations in which a 

CCR unit is idled for longer periods of 

time (e.g., a coal-fired boiler may be 

idled for years during which another 

fossil fuel is burned (e.g., natural gas), 

and the CCR unit will be needed when 

the utility returns to coal burning. In 

order to obtain additional time beyond 

two years, the owner or operator must 

document in writing both that the CCR 

unit has remaining disposal or storage 

capacity and the facts that support a 

conclusion that there is a reasonable 

likelihood that the CCR unit will accept 

CCR or non-CCR waste in the 

foreseeable future. The facility would 

need to substantiate those findings, 

including the specific reasons the owner 

or operator believes ‘‘that there is a 

reasonable likelihood that CCR will be 

disposed in the waste disposal unit.’’ 

These findings would need to be 

certified by the owner or operator of the 

CCR unit. 

The rule identifies examples of 

specific scenarios that would support a 

determination that there is a continuing 

need for the unit to support future waste 

management activities (e.g., that the 

CCR will resume receiving CCR or nonCCR waste in the future). These are 

intended to be illustrative rather than an 

exclusive list; there may well be 

additional circumstances in which 

routine operations or legitimate waste 

management practices would support 

the necessary determination. The 

particular situations identified in the 

rule generally match those discussed in 

the NODA or reflect situations 

identified in public comments. 

Specifically, the rule identifies four 

particular circumstances: (1) Normal 

plant operations include periods during 

which the CCR unit does not receive 

wastes (CCR or non-CCR waste streams). 

This may include the alternating use 

between one CCR unit that receives CCR 

while dewatering or removing CCR from 

a second unit. (2) The CCR unit is 

dedicated to a coal-fired boiler unit that 

is temporarily idled (i.e., CCR is not 

being generated) and there is a 

reasonable likelihood that the coal-fired 

boiler will resume operations in the 

future. (3) The CCR unit is dedicated to 

an operating coal-fired boiler (i.e., CCR 

is being generated); however, no CCR is 

being placed in the CCR unit because 

the CCR is being entirely diverted to 

beneficial uses, but there is a reasonable 

likelihood that the CCR unit will again 

be used in the foreseeable future. (4) 

The CCR unit currently receives only 

non-CCR waste streams and those nonCCR waste streams are not generated for 

an extended period of time, but there is 

a reasonable likelihood that the CCR 

unit will again receive non-CCR waste 

streams in the future. As noted, a 

facility must substantiate these findings; 

it is not sufficient to merely repeat the 

words of the regulation and conclude 

that additional time is warranted. 

The final rule allows an owner or 

operator to obtain additional two-year 

time extensions for as long as the owner 

or operator continues to be able to 

provide a factual basis to justify the 

need for additional time via a written 

demonstration. Because these idled 

units must continue to comply with all 

applicable technical requirements, 

including those for groundwater 

monitoring, corrective action, and 

structural stability, a fixed or definitive 

limit on the amount of time that a CCR 

unit can sit idle is not necessary. 

In addition, the Agency agrees that 

the final rule should better define the 

actions or activities that constitute 

‘‘initiation of closure’’ of a CCR unit. A 

clear definition will assist in the 

implementation and understanding of 

the rule. Commenters suggested a 

number of actions or activities, any one 

of which would be sufficient to show 

that closure of the CCR unit has been 

initiated. Examples provided by the 

commenters included the removal of 

CCR sluice lines; beginning the 

necessary permitting processes (i.e., 

submitting a completed permit 

application); turning off pumps 

supporting the sluice lines; preparing a 

bid for contractors; or procuring capping 

materials such as clay or top soil. 


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122The tiered timeframes for completing closure 

could be based on the size of the CCR unit (after 

obtaining necessary state and local approvals): (1) 

Within 3 years for an impoundment with an area 

less than 20 acres; (2) Within five years for an 

impoundment between 20 and 50 acres; (3) Within 

8 years for an impoundment between 50 and 75 

acres; (4) Within 10 years for an impoundment with 

an area of 75 acres or more; and (5) Within 180 days 

for a landfill. Under this approach, the owner or 

operator could demonstrate the need for additional 

time to close the CCR unit. 

The final rule specifies that closure 

has been initiated when the owner or 

operator takes two actions. The first 

action is that the owner or operator 

must have permanently ceased placing 

CCR and non-CCR waste streams in the 

CCR unit. As suggested by commenters, 

permanent removal of CCR sluice lines 

or inactivation of the pumping system 

supporting the sluicing operation would 

be evidence that placement of CCR and 

non-CCR waste streams has ceased. The 

second action is that the owner or 

operator must have taken steps to 

implement the written closure plan 

required by the rule. This second action 

would include submitting a completed 

application for any required state or 

agency permit or permit modification in 

order to implement closure of the CCR 

unit, or taking any steps necessary to 

comply with any state or other agency 

standards or regulations that are a 

prerequisite to initiating or completing 

the closure of the CCR unit. Once the 

owner or operator has completed both of 

these actions, closure of the CCR unit 

has been initiated for purposes of this 

rule. See § 257.102(e)(3) in this rule. 

iii. Closure for Cause 

Finally, the Agency is clarifying that 

the closure initiation timeframes 

specified above—the 30 day period for 

known final receipt or known final 

volume removal and the 2 year period 

for temporarily idled CCR units—do not 

apply to closures initiated for cause. As 

discussed elsewhere in the preamble, 

the final rule requires certain CCR 

surface impoundments and CCR 

landfills to close. The situations 

include: Unlined CCR surface 

impoundments whose groundwater 

monitoring shows an exceedance of a 

groundwater protection standard; 

existing CCR surface impoundments 

that do not comply with the location 

criteria; CCR surface impoundments 

that are not designed and operated to 

achieve minimum safety factors; and 

existing CCR landfills that do not 

comply with the location criteria for 

unstable areas. In these situations, the 

final rule specifies that the owner or 

operator must initiate closure activities 

within six months of making the 

relevant determination that the CCR 

unit must close. 

b. Deadlines To Complete Closure 

In response to the August 2013 

NODA, many utility commenters stated 

that the time period to complete closure 

must be sufficiently flexible to account 

for the inherent uncertainties in 

predicting a closure schedule. These 

commenters pointed to potentially 

innumerable complications and 

circumstances beyond the control of the 

owner or operator that render it nearly 

impossible to predict with precision 

when the closure of a CCR unit will be 

completed. These commenters also 

believe it is impractical and unrealistic 

for the rule to subject the closure of CCR 

units to any type of fixed regulatory 

structure. They maintained their 

position from the proposed rule that it 

would be impossible to properly 

complete closure of most CCR surface 

impoundments within 180 days. Their 

recommendation is to allow closure 

timeframes to be governed by the a 

state-approved closure process, which 

would include the owner or operator 

developing and submitting a closure 

plan to the state and mechanisms for the 

state to verify and enforce compliance 

with all closure requirements, including 

the closure plan. Under this approach, 

the owner or operator’s compliance with 

the requirements of the state-approved 

closure process (including following the 

closure plan, completing mitigation, 

etc.) would represent compliance with 

this rule’s closure requirements. For 

CCR units not subject to a stateapproved closure process, these 

commenters recommended that the 

owner or operator should demonstrate 

compliance with the CCR closure 

requirements by submitting a closure 

plan to the state that is certified by an 

independent professional engineer. In 

this case, because there is not direct 

state oversight and administration of the 

closure process, the timelines in the 

closure plan could be subject to a 

modified set of tiered timeframes for 

completing closure, provided owners or 

operators could demonstrate that more 

time is needed to close the unit on a 

case-by-case basis.122 These commenters 

also opposed any closure approach with 

firm and inflexible timeframes because 

no single factor (e.g., the acreage of the 

CCR unit or the volume of CCR in the 

unit) is determinative in all instances of 

how long it will take to complete 

closure of the CCR unit. Commenters 

also cautioned that pre-closure closure 

plans (and the closure schedules 

contained therein) may not be an actual 

reflection of the time it will take to close 

the unit due to unforeseen or variable 

conditions. Finally, these commenters 

also generally opposed the idea 

discussed in the NODA of petitioning 

the Agency for a site-specific rule to 

vary from a generally applicable 

deadline. 

Many commenters described the 

numerous factors that could affect 

timeframes for closure of a CCR unit. 

Most comments were specific to CCR 

surface impoundments where closures 

are typically more complex as compared 

to CCR landfills due to the presence of 

water in impoundments. Factors most 

often cited by the commenters that may 

affect the time required to close a CCR 

unit included: (1) The size and volume 

of CCR in the unit; (2) the geotechnical 

characteristics of the CCR; (3) the type 

or design of the surface impoundment 

(i.e., diked, incised, valley fill, and side 

hill); (4) the need to coordinate or obtain 

approvals from state permitting officials; 

(5) the availability of qualified 

engineers, contractors, and materials 

since closing a CCR unit is a specialized 

activity, especially given that many 

units may be required to close 

simultaneously; (6) climate and weather 

that can affect dewatering operations 

and the length of a construction season; 

(7) the time needed to obtain 

replacement disposal capacity for a 

closing unit that would ensure ongoing 

facility operations; and (8) dam safety 

considerations during closure. Many of 

commenters identified that the 

dewatering process (an early necessary 

step in the closure process) as being a 

site-specific issue, as the time that will 

be needed to dewater an impoundment 

can vary considerably depending on the 

type of CCR unit, the volume of CCR in 

unit, and the geotechnical properties of 

the CCR. Several commenters also cited 

that closure times for some CCR units 

will require substantial volumes of fill 

material to properly grade a closing 

surface impoundment to facilitate 

positive drainage from the closed unit. 

These commenters provided estimates 

on the volumes of fill material needed 

and showed that the earthmoving aspect 

of this step alone can take many years 

to complete in some cases. 

Several state commenters generally 

supported the tiered closure alternative 

discussed in the NODA. However, these 

commenters urged EPA to include 

provisions in the rule to provide 

flexibility for closing units to 

demonstrate the need for additional 

time on a case-by-case basis. 

i. Timeframes for Completing Closure 

In the August 2013 NODA the Agency 

solicited comment on ways to establish 

categories of timeframes that would 

adequately account for the various 

factors that can affect the amount of 


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21419 

time needed to properly close a CCR 

surface impoundment. One approach 

discussed in the NODA was called the 

‘‘tiered approach’’ that was based on 

comments received in response to the 

proposed rule. Under that approach, the 

final rule would establish fixed 

timeframes to complete closure that 

varied depending on the size of the 

impoundment (i.e., surface area 

acreage). The Agency stated in the 

NODA that the concept of a tiered 

approach was appealing; however, the 

precise basis for the distinctions (i.e., 

unit size cutoffs) and timeframes were 

not clear. EPA further explained its 

concern that factors other than size (e.g., 

climate, geography, unit configuration) 

would also appear to be relevant, and 

that any timeframes should account for 

those other factors. EPA encouraged 

commenters interested in supporting a 

tiered approach to provide the rationale 

and data to support any suggested 

categories of timeframes. 78 FR 46946. 

Most commenters opposed the tiered 

approach by itself (i.e., an approach 

without an accompanying process by 

which an owner or operator could 

obtain additional time due to sitespecific circumstances) because they felt 

there simply are too many factors that 

can affect closure timeframes. These 

commenters concluded that basing 

closure timeframes on a subset of factors 

would not be appropriate. As one 

commenter noted, a 20 acre 

impoundment 10 feet deep can likely be 

dewatered and closed more quickly than 

a 20 acre impoundment 30 feet deep. 

After considering comments and 

information available on closure 

timeframes, EPA has concluded that 

there are insufficient data and 

information to adopt the kind of tiered 

approach discussed in the NODA. EPA 

is convinced that the available 

information does not support an 

approach that would establish fixed and 

definitive timeframes for closure, based 

on a select subset of factors that 

distinguish between surface 

impoundments (e.g., a 50 acre diked 

impoundment holding 500 acre-feet of 

CCR with a hydraulic conductivity of 

1 × 10¥5 centimeters per second located 

in a state in the southwest with a 

permitting program would be required 

to close in four and one-half years, 

while a 50 acre cross valley 

impoundment holding 1,500 acre-feet of 

CCR with a hydraulic conductivity of 

1 × 10¥6 centimeters per second located 

in a state in the upper midwest with a 

permitting program would be required 

to close in seven years, etc.). While 

information is available for surface 

impoundments on certain factors, such 

as the size and type of the unit and 

geographic information, the Agency has 

little to no data for a number of other 

key factors. For example, EPA has no 

information on the geotechnical 

properties of the CCR that can affect the 

time needed to dewater a unit, the 

volumes of clays, soils, and other 

materials that will be needed for 

closure, and information on the time 

needed to obtain state approvals (in 

accordance with state CCR programs) 

related to closure of a unit. 

In discussing the tiered approach EPA 

noted that commenters had suggested 

that the largest CCR surface 

impoundments (i.e., those having a 

surface area greater than 75 acres) 

should be subject to a site-specific 

deadline to complete closure. In the 

NODA, the Agency explained that a sitespecific deadline may not be practicable 

unless the rule were to establish a 

‘‘variance’’ process as part of the rule. 

78 FR 46946. Under a variance 

approach, EPA would establish a 

specific deadline (e.g., closure must be 

completed no later than five years from 

the date closure activities are initiated), 

but would allow facilities to petition 

EPA for a site-specific rule to establish 

an alternate deadline. In response to the 

NODA, some commenters expressed 

interest in such an approach, but other 

commenters found the approach not 

practicable since each owner or operator 

would need to petition the Agency for 

a site-specific rule. Some commenters 

believed that a site-specific rule process, 

which would necessarily involve a 

notice and comment process, would be 

an unwieldy process leading to 

unnecessary delays. The Agency agrees 

that this is also not a practical 

alternative to establish timeframes to 

complete closure. 

Recognizing the numerous factors that 

can affect the amount of time needed to 

close an impoundment, many 

commenters suggested EPA not 

establish any type of fixed regulatory 

deadline for closure. Instead, these 

commenters recommended that the rule 

allow closure timeframes to be governed 

by a state-approved closure process. 

Under this process suggested by 

commenters, an adequate stateapproved closure process would include 

one where the owner or operator 

developing and submitting a closure 

plan to the state and mechanisms for the 

state to verify and enforce compliance 

with all closure requirements, including 

the closure plan. Under the 

commenter’s recommendation, 

compliance with the requirements of the 

state-approved closure process would 

not be compliance with the closure 

requirements of this rule. As discussed 

elsewhere in this preamble, under 

subtitle D of RCRA, the Agency cannot 

rely on the existence of a state 

permitting authority to implement the 

subtitle D requirements. 

Some other commenters suggested 

EPA not establish any type of fixed 

regulatory deadline for closure in the 

rule, and instead rely on the closure 

plan developed and certified by a 

professional engineer. The Agency 

disagrees that this approach would meet 

the protectiveness standard of RCRA 

section 4004(a). CCR units present 

significant risks, and it is critical that 

facilities complete closure 

expeditiously—particularly those that 

are closing because they are structurally 

unsound or are contaminating 

groundwater. To be able to determine 

that the rule will be protective, the final 

rule must limit the discretion of 

individual facilities, many of whom 

may have significant incentives for 

delay, and avoid the potential for abuse. 

Moreover, in contrast to corrective 

action, where EPA was truly unable to 

establish an outer limit on the necessary 

timeframes—including even a 

presumptive outer bound—closures, 

while complex, do not vary to the same 

degree as site remediation actions. 

Consequently, as discussed later in this 

section, the available data were 

sufficient to support the establishment 

of definitive timeframes. 

Most commenters, however, were 

generally supportive of an approach that 

would establish timeframes for closure, 

whether in a tiered-like approach (i.e., 

timeframes for closure based on one or 

more characteristics of the unit) or 

under a ‘‘rebuttable presumption’’ 

approach, so long as the rule would 

provide the owner or operator a process 

or procedures to demonstrate the need 

for additional time. As explained in the 

NODA, such an approach could be 

implemented by establishing a 

presumption that facilities complete 

closure within a specified timeframe, 

such as five years, unless the facility 

could document that closure is not 

feasible to complete within the 

presumptive timeframe. 

After consideration of all of the public 

comments, EPA is adopting an approach 

that takes elements from two of the 

alternatives discussed in the NODA: 

The concept of tiered timeframes based 

primarily on the size of the surface 

impoundment, and the concept of a 

rebuttable presumption. The final rule 

establishes a presumption that the 

owner or operator must complete the 

closure of a CCR surface impoundment 

within five years of initiating closure 

activities. For CCR landfills the 

presumption is that the owner or 


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21420 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

123More information on EPA’s Information 

Request, including a data base of survey responses, 

can be accessed at http://www.epa.gov/epawaste/

nonhaz/industrial/special/fossil/surveys/index.htm. 

124EPA included information on the planned 

closure of this CCR surface impoundment in the 

NODA. 78 FR 46945. The closure plan estimated 

that the closure process would take approximately 

three years to complete. 

operator must complete closure within 

six months of initiating closure 

activities. The rule, however, provides 

procedures for an owner or operator to 

rebut either presumption and obtain 

additional time, provided the owner or 

operator can make the prescribed 

demonstrations. For CCR surface 

impoundments, the amount of 

additional time beyond the five years 

varies based on the size (using surface 

area acreage of the CCR unit as the 

surrogate of size) of the unit. For 

impoundments 40 acres or smaller, the 

maximum time extension is two years. 

For impoundments greater than 40 

acres, the maximum time extension is 

five two-year extensions (ten years) and 

the owner or operator must substantiate 

the factual circumstances demonstrating 

the need for each two year extension. 

For a CCR landfill, the amount of 

additional time beyond the six months 

does not vary according to the size of 

the landfill, rather the maximum time 

extension is two one-year extensions 

(two years) for any CCR landfill. The 

owner or operator must substantiate the 

factual circumstances demonstrating the 

need for each one-year extension. 

ii. CCR Surface Impoundment 

Timeframes 

To develop these timeframes the 

Agency began by identifying the period 

of time in which most surface 

impoundments could feasibly complete 

closure. EPA intended this period of 

time to serve as the basis for the 

rebuttable presumption of the rule. As 

EPA recognized in the NODA, a 

timeframe that would be feasible for the 

largest units would grant more time 

than could be justified to complete the 

closure of smaller units. The closure of 

CCR units, and particularly the closure 

of CCR units that are compelled to close 

because they fail to comply with the 

rule’s requirements (e.g., are structurally 

unstable or are contaminating 

groundwater), needs to occur as 

expeditiously as is feasible. While these 

units (and particularly the larger CCR 

surface impoundments) are in the 

process of closing, they continue to 

present risks to human health and the 

environment. On the other hand a 

presumptive time period that is feasible 

for a small percentage of units would 

simply result in a greater number of 

facilities that would need to obtain time 

extensions. It is well established that the 

law cannot compel actions that are 

physically impossible, ‘‘lex non cogit ad 

impossibilia,’’ and it is incumbent on 

EPA to develop a regulation that does 

not in essence establish such a standard. 

The available information shows that 

CCR surface impoundments can vary in 

size by orders of magnitude (i.e., from 

less than one acre to nearly 1,000 acres). 

EPA evaluated the information on the 

size distribution of CCR surface 

impoundments in its database of survey 

results from EPA’s 2009 Information 

Request.123 Through this effort, EPA 

received a substantial amount of factual 

information from 240 facilities covering 

676 surface impoundments, including 

surface area information on over 650 

impoundments. The database of survey 

responses shows that the median 

surface impoundment is approximately 

14 acres in size, 75 percent of 

impoundments are 50 acres or smaller, 

80 percent of impoundments are 66 

acres or smaller, and 90 percent of 

impoundments are 111 acres or smaller. 

Available information on actual and 

projected timeframes needed to close 

CCR surface impoundments of varying 

sizes (using surface area as the surrogate 

for size) is summarized below. Much of 

this information came from public 

comments from utilities. The largest 

CCR surface impoundment in this data 

set that has actually completed closure 

is a 40-acre unit that closed over a 

period of approximately five years (i.e., 

the surface impoundment at PPL 

Corporation’s Martins Creek Power 

Plant).124 This facility closed with waste 

in place, and included installation of a 

final cover system. According to the 

facility, this CCR unit ceased receiving 

wastewater in January 2008, and the 

closure work began with dewatering the 

unit and preparing the revised closure 

plan and permit modification 

applications. Installation of the final 

cover, in addition to final soil grading 

and seeding of the unit was completed 

in spring 2012. By early 2013, all 

remaining closure actions were 

completed and state regulators issued 

final approvals in July 2013. EPA gave 

substantial weight to this information 

because (1) it was a CCR surface 

impoundment—the units of greatest 

relevance to the issue at hand; (2) the 

closure was recently completed, and so 

would accurately reflect current and 

available engineering practices; and (3) 

the facility actually completed closure 

of the unit. See EPA–HQ–RCRA–2012– 

0028–0103 and EPA–HQ–RCRA–2012– 

0028–0113. 

As another example, American 

Electric Power (AEP) provided some 

information on the recent closure of a 

CCR surface impoundment in 2013. 

This 21-acre unit had been inactive for 

several years and was closed over the 

course of two construction seasons. The 

impoundment was closed by leaving 

CCR in place and installing a composite 

cap, in addition to the installation of 

hydraulic appurtenances to control the 

design storm events. See EPA–HQ– 

RCRA–2012–0028–0067. 

Cleco Corporation provided planned 

closure timeframes contained in existing 

permits for its CCR surface 

impoundments. For three of its CCR 

surface impoundments, which in 

aggregate totaled 66 acres, Cleco 

Corporation estimated that it could take 

approximately one year to complete 

closure, which would be accomplished 

by leaving CCR in place and installing 

a final cover system. Cleco Corporation 

also estimated that it would take 

approximately nine months to complete 

closure of two additional CCR surface 

impoundments, with an aggregate 

acreage of 5.5 acres, by removing CCR 

from the CCR units, (i.e., clean closure 

of the units). Information on the size of 

any of the five CCR units was not 

provided, which complicates the 

Agency’s ability to assess the closure of 

any of the individual CCR units. In 

addition, the time period appears to 

begin when dewatering operations are 

initiated and the comments do not 

discuss how much time may be needed 

to obtain any necessary approvals from 

the state prior to commencing closure 

activities. See EPA–HQ–RCRA–2012– 

0028–0106. 

Similarly, Xcel Energy stated in its 

comments to the NODA that it closed 

four CCR surface impoundments at its 

Northern States Power of Minnesota’s 

Minnesota Valley Plant by removing all 

of their contents. See EPA–HQ–RCRA– 

2012–0028–0079. While the commenter 

did not provide any information on the 

time needed to close the four CCR units, 

other information available to the 

Agency indicated that closure took 

place sometime after May 2009 and was 

completed prior to September 2013. 

Based on information obtained from 

Xcel Energy in response to EPA’s 

request for information from May 2009, 

the four CCR units at the Minnesota 

Valley Plant each have a surface area 

less than one acre. In addition, the 

response to the information request 

showed that one CCR surface 

impoundment was nearly full of ash, a 

second was more than half full, and the 

final two CCR units were less than one 

quarter full. 

In the August 2013 NODA, the 

Agency solicited comment on a draft 

plan to close two CCR surface 


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125 ‘‘Amended Closure Plan Wastewater Ash 

Ponds, Grainger Generating Station, Conway, South 

Carolina,’’ January 2014. 

126EPA also received information from 

Consumers Energy Company on the closure of three 

former fly ash surface impoundments at the JR 

Whiting plant. These surface impoundments 

(combined) totaled approximately 52 acres and are 

scheduled to be closed with a final cover over an 

approximately 12-year period. The commenter 

claimed that the extended time for closure ‘‘was 

necessary to allow dewatering and the filling of 

numerous voids, but principally to allow the 

generation of fly ash to allow the placement of 

structurally placed, low permeability ash to provide 

minimal required slopes for closure and to serve as 

the select layer for the flexible membrane liner.’’ 

See EPA–HQ–RCRA–2012–0028–0068. Information 

on the individual size of any of the three CCR units 

was not provided in the comments, which 

complicates any assessment of the time needed to 

complete closure of any single CCR unit. Because 

the facility appears to be continuing to use the unit 

to actively manage waste, EPA does not consider 

this to be representative of a typical closure process. 

impoundments at Santee Cooper’s 

Grainger Generating Station in South 

Carolina. 78 FR 46945. The plan 

estimated that closure of the two CCR 

units, approximately 42 and 39 acres in 

surface area, could be accomplished 

during a three year period. This original 

estimate was based on closing the unit 

with waste in place and installing a 

final cover. However, Santee Cooper has 

since amended its draft plan and is now 

pursuing closure by removal of CCR and 

transport off-site for either disposal or 

beneficial use.125 The revised draft 

envisions the complete removal of CCR 

from both CCR units and also one foot 

of underlying soil beneath the units. In 

total, the draft closure plan estimates 

that approximately 1.3 million cubic 

yards of CCR and underlying soil will be 

removed from both units— 

approximately 900,000 cubic yards from 

one unit and 400,000 cubic yards from 

the second—over a period of six to ten 

years. 

The Florida Electric Power 

Coordinating Group (FCG) claimed that, 

based on FGC member experience, 

closing a 30 acre CCR surface 

impoundment is expected to take 

approximately two years to complete, 

but provided no additional information 

or details. See EPA–HQ–RCRA–2012– 

0028–0064. 

The Utility Solid Waste Activities 

Group (USWAG) provided another 

projected closure schedule for a 20 acre 

CCR surface impoundment operated by 

Luminant. This facility was in the 

process of closing the unit when the 

comments were prepared. The schedule 

estimated that completion of all closure 

activities, would take approximately 45 

months (3 years, 9 months) to complete. 

However, the commenter also states 

that, when complete, the ‘‘full closure 

period will take approximately 84 

months (seven years) due to the unique 

circumstances of that closure.’’ No other 

information was provided on this 

closure to explain the ‘‘unique 

circumstances’’ that warrant such an 

extended period of time. See EPA–HQ– 

RCRA–2012–0028–0113. 

There is other information in these 

data that indicates that larger 

impoundments may be able to complete 

closure within approximately the same 

timeframes as smaller units. For 

example, the data included the 

projected closure of a 100-acre CCR 

surface impoundment over a four and 

one-half year period, which seems to 

indicate that larger units may be able to 

close in approximately the same period 

of time. However, the Agency gave 

substantially less weight to this 

information for a number of reasons. 

Most critically, this information merely 

demonstrated projected timeframes for 

CCR surface impoundments, not actual 

timeframes that had been achieved. In 

addition, for some of these data, it was 

unclear whether the circumstances that 

allowed for completion within this 

timeframe were generally applicable to 

the majority of CCR surface 

impoundments. In one instance, the 

commenter noted that the time to 

complete closure was shorter than 

would normally be expected because 

the impoundment was being closed well 

before it reached full capacity and 

because water in the impoundment 

could be pumped into an adjacent 

impoundment. The commenter also 

noted that the impoundment had been 

built with a leachate collection system 

to facilitate dewatering at closure. See 

EPA–HQ–RCRA–2012–0028–0113. 

Moreover, the majority of commenters 

claimed that it would take substantially 

longer than five years to close the largest 

impoundments. For example, USWAG 

stated that one of its members obtained 

‘‘approval for a closure plan for a 343- 

acre surface impoundment that 

provided for a twelve-year closure 

period to ensure adequate time to 

complete dewatering of the 

impoundment, assure the stability of the 

dewatered CCRs, and uniformly 

construct the slope of the final cover 

materials.’’ No other information was 

provided on this closure example. See 

EPA–HQ–RCRA–2009–0640–10483. 

USWAG also provided information on 

the closure of the CCR surface 

impoundment at First Energy’s Little 

Blue Run Disposal Area. This 950 acre 

surface impoundment, which is the 

largest CCR surface impoundment in the 

country, has a projected closure period 

of 15 years. 

Similarly, to illustrate the time 

required simply for earthmoving 

operations to close a large CCR surface 

impoundment (in their example, 350 

acres), Duke Energy Corporation 

estimated that the time needed in the 

schedule to deliver and place the 

necessary volume of materials for 

construction of the final cover and the 

sub-base to the cover system could take 

between nine and 12 years. This 

estimate is based on the need for 

approximately 10 to 11 million cubic 

yards of fill to construct and shape the 

sub-base of the final cover and the cover 

system itself that would require nearly 

500,000 truckloads to deliver. See EPA– 

HQ–RCRA–2012–0028–0095.126

Collectively, this information formed 

the basis for the five year presumptive 

default. As noted the median size of 

CCR surface impoundments is 

approximately 14 acres, and 75 percent 

of impoundments are 50 acres or 

smaller. The information presented by 

the utilities documents that 

impoundments as large as 66 acres 

under normal circumstances can close 

within two to three years. EPA therefore 

expects that most, if not all, units 

should be able to complete closure 

within five years. For all but the very 

largest units, this timeframe would even 

accommodate potential delays caused 

by weather or any other unpredictable 

variables. This is clearly demonstrated 

by the examples presented by public 

comments, and by the recent example of 

the 40-acre CCR surface impoundment 

in Martins Creek that closed within five 

years. 

EPA also notes that five years is the 

timeframe Congress mandated for the 

completion of open dumps to close or 

upgrade. While the closure times apply 

generally to all units—both those whose 

closure is mandated by this final rule 

and those that close because the facility 

decides to do so—the statutory directive 

provides further support for EPA’s 

decision. 

But as many commenters stated, 

initial estimates can and often do vary 

from actual closure times due to 

unforeseen or variable conditions. EPA 

acknowledges that a host of variables 

can, and frequently do, delay closure 

activities, such that the initial time 

estimates to complete closure of the unit 

are ultimately exceeded. For example, 

the 40 acre impoundment at Martins 

Creek Power Plant discussed above was 

initially scheduled in its closure plan to 

be completed within three years; 

however, closure ultimately took five 

years to complete. The additional two 


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years was due to the need to obtain 

approval of a modified closure plan 

from the state, as well as modifications 

to three permits, in addition to 

obtaining other local planning 

approvals. Further time was also needed 

to accommodate the public notice and 

comment processes for several of the 

permits and approvals. 

EPA recognizes that there are a 

number of unpredictable or variable 

conditions that can affect the time 

needed to close a CCR unit and that 

those conditions are not within the 

control of the owner or operator. For 

example, some states require review and 

approval of a closure plan prior to 

initiating of closure activities. See, for 

example, 25 Pa. Code sections 

288.292(b) and 289.311(b) for CCR 

landfills and CCR surface 

impoundments, respectively. Another 

commenter noted that in Illinois, 

permits from several different 

authorities may need to be obtained to 

commence closure, including the 

Illinois Department of Natural 

Resources, the U.S. Army Corps of 

Engineers, and the U.S. Fish and 

Wildlife Services. 

Climate and weather can also impact 

the time needed to complete closure. 

For example, an unusually wet or short 

construction season can result in 

schedule delays; one commenter noted 

that in certain regions of the Midwest, 

it is possible for as much as 40 inches 

of rain to fall in a given season. 

To account for these conditions, a 

substantial majority of commenters 

requested that the final rule include the 

potential for time extensions, and 

several specifically referenced the need 

for a ‘‘force majeure’’ provision. One 

commenter also recommended that a 

‘‘force majeure’’ clause specifically 

include delays caused by court order 

(i.e., appeals of permits issued by state 

agencies causing judgments in court). 

Another commenter provided an 

example of a ‘‘force majeure’’ provision 

that could serve as a model: 

An extension shall be granted for any 

scheduled activity delayed by an event of 

force majeure which shall mean any event 

arising from causes beyond the control of the 

owner that causes a delay in or prevents the 

performance of any of the conditions under 

this rule including but not limited to: acts of 

God, fire, war, insurrection, civil disturbance, 

explosion; adverse weather conditions that 

could not be reasonably anticipated causing 

unusual delay in transportation and/or field 

work activities; restraint by court order or 

order of public authority; inability to obtain, 

after exercise of reasonable diligence and 

timely submittal of all applicable 

applications, any necessary authorizations, 

approvals, permits, or licenses due to action 

or inaction of any governmental agency or 

authority; and delays caused by compliance 

with applicable statutes or regulations 

governing contracting, procurement or 

acquisition procedures, despite the exercise 

of reasonable diligence by representatives of 

the owner. 

Events which are not force majeure include 

by example, but are not limited to, 

unanticipated or increased costs of 

performance, changed economic 

circumstances, normal precipitation events, 

or failure by the owner to exercise due 

diligence in obtaining governmental permits 

or performing any other requirement of this 

rule or any procedure necessary to provide 

performance pursuant to the provisions of 

this rule. 

EPA agrees that the rule should 

include procedures to obtain extensions 

of time to complete closure of the unit, 

based on the complexity of the activity. 

As previously noted, the law, including 

a regulation, cannot compel the 

impossible. However, because the 

record demonstrates that most units, 

even the larger units, can close within 

that five year timeframe, the rule 

establishes a high threshold to obtain 

additional time. To account for those 

instances of true physical impossibility, 

the rule limits extensions to 

circumstances in which the owner or 

operator can demonstrate that the 

additional time is needed due to factors 

that are truly beyond the facility’s 

control—i.e., could fairly be 

characterized as an example of ‘‘force 

majeure.’’ To obtain additional time, the 

owner or operator of the CCR unit must 

document in writing the exact reasons 

why additional time is needed. The 

regulation specifies that such reasons 

could include: (1) Complications 

stemming from the climate and weather, 

such as unusual amounts of 

precipitation or a significantly 

shortened construction season; (2) the 

time required to dewater a surface 

impoundment due to the volume of CCR 

contained in the CCR unit or the 

geotechnical characteristics of the CCR 

in the unit; (3) the geology and terrain 

surrounding the CCR unit will affect the 

amount of material needed to close the 

CCR unit; or (4) the time required or 

delays caused by the need to obtain 

State permits and/or to comply with 

other State requirements. These findings 

would need to be certified by the owner 

or operator of the unit, as well as by a 

qualified professional engineer. 

The final rule limits the amount of 

time that closure can be extended based 

on the size of the CCR unit. Specifically, 

the rule allows CCR surface 

impoundments 40 acres or smaller a 

time extension of up to two years, while 

CCR surface impoundments larger than 

40 acres can obtain up to five two-year 

extensions. The 40 acre size 

demarcation is based on the available 

information showing that surface 

impoundments of 40 acres or smaller 

routinely have either completed closure 

or are projected to be able to complete 

closure within a timeframe shorter than 

five years. EPA expects that facilities 

will account for all potential delays that 

can reasonably be foreseen in planning 

their closure activities, and that this is 

feasible within this five year timeframe. 

Consequently the final rule restricts 

facilities with units of this size to a 

single extension to account for truly 

exception circumstances (e.g., Acts of 

God). 

The Agency also recognizes that there 

is increased uncertainty for CCR surface 

impoundments larger than 40 acres. 

First, while available information 

documents that some CCR surface 

impoundments larger than 40 acres can 

be closed within this same five year 

period, the Agency has other 

information indicating that closure of 

units larger than 40 acres can be 

expected to take much longer than five 

years. For example, the largest surface 

impoundment in the country is 

approximately 950 acres and is 

scheduled to cease receiving CCR by 

December 31, 2016 and commence 

closure in 2017. The facility’s projected 

closure period is 15 years. However, 

EPA currently has no data (anecdotal or 

otherwise) on the actual timeframes in 

which a surface impoundment of that 

size has completed closure. Given that 

closure for the largest of surface 

impoundments could reasonably be 

expected to take more than five years to 

complete, the Agency has concluded 

that surface impoundments larger than 

40 acres need to be provided with the 

possibility of additional time extensions 

beyond the two years provided to 

impoundments less than 40 acres. Based 

on available information, in particular 

the current estimates of the time needed 

to close the largest unit in the country, 

the rule authorizes a facility to obtain a 

maximum of five time extensions, 

totaling as much as ten years in two year 

increments to close a CCR surface 

impoundment greater than 40 acres. 

However, the owner or operator must 

substantiate the factual circumstances 

demonstrating the need for each twoyear extension. 

Several commenters also urged EPA 

to specify in the final rule what EPA 

intended by the phrase ‘‘completion of 

closure;’’ and to define the activities or 

actions the owner or operator must 

complete to satisfy the closure 

requirements. For purposes of this rule, 

closure of a CCR unit is complete when 

the unit meets all of the requirements of 

this rule and the owner or operator 


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obtains certification from a qualified 

professional engineer verifying that 

closure has indeed been completed, 

consistent with all of the performance 

standards in the rule. While EPA 

recognizes that under some state 

programs closure is not considered 

complete until the owner or operator 

receives certification from the state, this 

is not a prerequisite to completion of 

closure under these federal rules. 

iii. Closure Timeframes for CCR 

Landfills 

Similar to the approach for CCR 

surface impoundments, EPA recognizes 

that there can be unforeseen and 

extraordinary circumstances that 

warrant additional time to close a CCR 

landfill. Accordingly, the rule adopts 

procedures analogous to those for CCR 

surface impoundments that allow the 

owner or operator to obtain additional 

time to complete the closure of a CCR 

landfill, provided the owner or operator 

can make the prescribed 

demonstrations. However, the amount 

of additional time the facility can obtain 

beyond the presumptive six month 

timeframe does not depend on the size 

of the landfill; rather the maximum time 

extension is two one-year extensions 

(two years) for any CCR landfill. As with 

the procedures for CCR surface 

impoundments, the owner or operator 

must substantiate the factual 

circumstances demonstrating the need 

for each one-year extension. 

EPA developed this timeframe based 

on its review of the available 

information in the record regarding the 

timeframes for completing the closure of 

CCR landfills, some of which is 

summarized below. Additional 

information may also be found in the 

comment response document. 

In response to the August 2013 

NODA, Nebraska Public Power District 

(NPPD) provided information 

documenting that it completed closure 

of a 10 acre CCR landfill within 180 

days after the final volume of fly ash 

and bottom ash was placed in the CCR 

landfill. Closure was accomplished by 

leaving CCR in place and installing a 

final cover system. NPPD’s comments 

do not indicate what year closure of this 

CCR landfill was completed. See EPA– 

HQ–RCRA–2012–0028–0076. 

The Florida Electric Power 

Coordinating Group (FCG) stated in its 

comments that FCG member experience 

with CCR landfill closure has 

‘‘demonstrated the need for a period of 

time greater than 180 days to complete 

closure activities.’’ However, the 

commenter did not provide any 

information indicating how long such 

closures actually took, nor any 

information to substantiate their claim. 

See EPA–HQ–RCRA–2012–0028–0064. 

Overall, the closure of CCR landfills is 

less complex than the closure of CCR 

surface impoundments. Portions of the 

CCR landfills that reach final grade can 

be closed as other areas of the CCR 

landfill continue to receive CCR, which 

is typically not possible at CCR surface 

impoundments. Nor does the owner or 

operator need to dewater the unit, 

which appears to be the aspect of 

closure most likely to be a source of 

unanticipated circumstances. Finally, 

there is substantially less uncertainty 

with respect to the timeframes to 

complete the closure of CCR landfills, 

which are not all that different (in this 

respect) than landfills containing other 

forms of solid or hazardous waste. EPA 

therefore has greater confidence that a 

fixed period of two years will be 

adequate to account for the vast majority 

of circumstances. 

c. Alternative Closure Requirements 

The Agency is finalizing alternative 

closure requirements in two narrow 

circumstances for a CCR landfill or CCR 

surface impoundment that would 

otherwise have to cease receiving CCR 

and close, consistent with the 

requirements of § 257.101(a), (b)(1), or 

(d). The first is where the owner or 

operator can certify that CCR must 

continue to be managed in that CCR unit 

due to the absence of both on-site and 

off-site alternative disposal capacity. 

§ 257.103(a). The second is where the 

owner or operator of a facility certifies 

that the facility will cease operation of 

the coal-fired boilers no later than the 

dates specified in the rule, but lacks 

alternative disposal capacity in the 

interim. § 257.103(b). Under either of 

these alternatives, CCR units may 

continue to receive CCR under the 

specified conditions explained below. 

In addition, under either alternative, the 

owner or operator must continue to 

comply with all other requirements of 

the rule, including the requirement to 

conduct any necessary corrective action. 

1. No alternative CCR disposal 

capacity (§ 257.103(a)). 

The Agency recognizes that the 

circumstance may arise where a 

facility’s only disposal capacity, both 

on-site and off-site, is in a CCR unit that 

has triggered the closure requirements 

in § 257.101(a), (b)(1), or (d). As a result, 

the facility may be faced with either 

violating the closure requirements in 

§ 257.101 by continuing to place CCR in 

a unit that is required to close, or having 

to cease generating power at that facility 

because there is no place in which to 

dispose of the resulting waste. For 

example, while it is possible to 

transport dry ash off-site to alternate 

disposal facility that simply is not 

feasible for wet-generated CCR. Nor can 

facilities immediately convert to dry 

handling systems. As noted previously, 

the law cannot compel actions that are 

physically impossible, and it is 

incumbent on EPA to develop a 

regulation that does not in essence 

establish such a standard. 

Should a facility choose to comply 

with the regulation and stop generating 

power, there would be significant risks 

to human health that would arise if a 

community would be left without power 

for an extended period of time. As 

information in the record demonstrates, 

obtaining alternative capacity can 

sometimes require a substantial amount 

of time (e.g., if the facility needs to 

construct alternative capacity, including 

potentially the need to locate an 

alternative site or purchase additional 

property). EPA recognizes that there are 

also significant risks to human health 

and the environment, as demonstrated 

throughout this preamble, from a 

leaking or improperly sited CCR unit, 

and that these risks justify requiring 

those units to either retrofit to meet the 

federal criteria established in the final 

rule or close. EPA also acknowledges 

that in the interim period while the 

owner or operator seeks to obtain 

additional capacity, the risks associated 

with the continued use of these units 

will be significant. However, the Agency 

believes that the risks to the wider 

community from the disruption of 

power over the short-term outweigh the 

risks associated with the increased 

groundwater contamination from 

continued use of these units. This 

conclusion is further buttressed by the 

fact that during this interim period the 

risks associated with allowing these 

units to continue to receive CCR are 

mitigated by all of the other 

requirements of the rule with which the 

facility must continue to comply, 

including the requirements to continue 

groundwater monitoring and corrective 

action. 

Under § 257.103(a)(1), a CCR unit that 

would otherwise be required to cease 

receiving CCR under § 257.101(a), (b)(1), 

or (d), may continue to receive CCR 

provided the owner or operator certifies 

that the CCR generated at that facility 

must continue to be managed in that 

unit due to the absence of alternative 

disposal capacity both on-site and offsite. The rule also requires the owner or 

operator to document this claim, and 

the claim must be based on the real 

absence of an alternative and not 

justified based on the costs or 

inconvenience of alternative disposal 

capacity. § 257.103(a)(1)(i). The owner 


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or operator must also remain in 

compliance with all other requirements 

of this rule, including the requirement 

to take any necessary corrective action. 

§ 257.103(a)(1)(ii). Because this 

alternative is only available as long as 

the absence of disposal capacity exists, 

the owner or operator must document 

its efforts to obtain additional capacity. 

If any additional capacity is identified, 

the owner or operator must arrange to 

use it as soon as is feasible. 

§ 257.103(a)(1)(iii). The owner or 

operator is also required to prepare an 

annual progress report documenting the 

continued absence of disposal capacity 

and must also document the progress 

made toward developing alternative 

capacity. § 257.103(a)(1)(iv). 

Once alternative disposal capacity is 

available, the CCR unit must cease 

receiving CCR and must initiate closure 

following the timeframes in § 257.102(e) 

and (f). Finally, if the owner or operator 

has not identified alternative capacity 

within five years after the initial 

certification the CCR unit subject to this 

section must cease receiving CCR and 

must initiate closure following the 

timeframes in § 257.102(e) and (f). As 

discussed elsewhere in this preamble, 

several commenters provided 

information to document the length of 

time needed to obtain additional 

capacity. Based on this information, the 

five year timeframe provided for under 

this alternative is expected to provide 

sufficient time to obtain alternative 

disposal capacity and to avoid the 

consequences of a forced immediate 

closure of a power plant. 

2. Permanent cessation of a coal-fired 

boiler by a date certain. (§ 257.103(b)). 

Under this provision, the Agency 

addresses the circumstance where a 

facility’s only disposal capacity, both 

on-site and off-site, is in a CCR unit that 

has triggered the closure requirements 

in § 257.101(a), (b)(1), or (d), but the 

owner or operator of coal-fired power 

plant has decided to permanently cease 

operation of that plant within one of 

two timeframes specified in the 

regulation. For the same reasons 

discussed immediately above, EPA has 

concluded that the provisions of 

§ 257.103(b) represent the most 

reasonable balance between the 

competing risks. 

Additionally, EPA anticipates that 

some owners or operators will decide to 

permanently cease operation of a coalfired power plant in response to the 

combined effects of new and/or existing 

statutory or regulatory requirements 

promulgated under the Clean Air Act 

and under the Clean Water Act (e.g. the 

proposed Effluent Limitations 

Guidelines and Standards for the Steam 

Electric Power Generating Point Source 

Category. See 78 FR 34442, in 

combination with market dynamics. As 

discussed earlier in this preamble, 

RCRA section 1006(b) directs EPA to 

integrate the provisions of RCRA for 

purposes of administration and 

enforcement and to avoid duplication, 

to the maximum extent practicable, with 

the appropriate provisions of other EPA 

statutes, including the CAA and the 

CWA. As noted earlier, section 1006(b) 

conditions EPA’s authority to reduce or 

eliminate RCRA requirements on the 

Agency’s ability to demonstrate that the 

integration meets RCRA’s protectiveness 

mandate (42 U.S.C. 6005(b)(1)). See 

Chemical Waste Management v. EPA, 

976 F.2d 2, 23, 25 (D.C. Cir. 1992). The 

provisions of § 257.103(b) are fully 

consistent with the direction in section 

1006(b) to account for the provisions of 

other EPA statutes which may lead an 

owner or operator to close a coal-fired 

power plant. 

EPA has also concluded that the 

provisions of § 257.103(b) meet RCRA’s 

protectiveness mandate. As stated 

above, EPA recognizes that there are 

long-term risks to human health and the 

environment, as demonstrated 

throughout this preamble, from a 

leaking CCR unit and those risks justify 

requiring those units to either meet the 

federal criteria established in this rule 

or close. However, the risks associated 

with allowing these units to continue to 

receive CCR are mitigated by the 

requirement that the facility must 

comply with all other requirements of 

the rule, including initiating 

groundwater monitoring and corrective 

action where necessary. And a critical 

factor is that facilities that choose to rely 

on this alternative will be required to 

complete closure of their disposal unit 

in an expedited timeframe. Thus, the 

risks from these units will be fully 

addressed sooner. Consequently, while 

over the short term the risks will be 

higher, overall, the risks will be at least 

equivalent to, or potentially lower than 

if the CCR unit had closed in 

accordance with the normal closure 

timeframes. 

Under § 257.103(b)(1), a CCR unit that 

would otherwise be required to cease 

receiving CCR under § 257.101(a), (b)(1), 

or (d), may continue to receive CCR 

provided the owner or operator of the 

facility certifies that the facility will 

cease operation of the coal-fired boilers 

within the timeframes specified in 

paragraphs (b)(2) through (b)(4) and that 

the CCR generated at that facility (before 

the plant ceases to operate) must 

continue to be managed in that unit due 

to the absence of alternative disposal 

capacity both on-site and off-site. The 

rule also requires the owner or operator 

to document the facts that support this 

claim. The regulation specifies that the 

claim must be based on the real absence 

of alternative disposal capacity, and not 

justified based on the costs or 

inconvenience of alternative disposal 

capacity. § 257.103(b)(1)(i). The owner 

or operator must also remain in 

compliance with all other requirements 

of this rule, including the requirement 

to take any necessary corrective action. 

§ 257.103(b)(1)(ii). The owner or 

operator is also required to prepare an 

annual progress report documenting the 

continued absence of disposal capacity 

and must also document the progress 

made toward the closing of the coalfired boiler. § 257.103(b)(1)(iii). 

Under § 257.103(b)(1), the owner or 

operator does not need to demonstrate 

any efforts to develop alternative 

capacity because of the impending 

closure of the power plant itself. 

Consistent with the general 

timeframes provided for the closure of 

CCR surface impoundments, EPA has 

established different timeframes based 

on the size of the CCR unit. Under 

§ 257.103(b)(2), where the disposal unit 

is a CCR surface impoundment 40 acres 

or smaller in size, the coal-fired boiler 

must cease operation and the disposal 

unit must have completed closure 

within 8.5 years of the publication date 

of the rule. Where the disposal unit is 

a CCR surface impoundment larger than 

40 acres in size, the coal-fired boiler 

must cease operation and the disposal 

unit must have completed closure 

within 13.5 years of the publication date 

of the rule. § 257.103(b)(3). Finally, 

under § 257.103(b)(4), where the 

disposal unit is a CCR landfill, the coalfired boiler must cease operation and 

the disposal unit must have completed 

closure within 6 years of the publication 

date of the rule. These timeframes were 

selected to ensure that closure of these 

units will be completed in a measurably 

shorter timeframe, and that overall the 

risks will be lower, or at least equivalent 

to, the level of risk that would be 

achieved under the rule’s ‘‘standard’’ 

closure provisions. 

5. Notation on the Deed to Property 

The proposed rule would have 

required, following closure of the CCR 

unit, the owner or operator to record a 

notation on the deed or some other 

instrument normally examined during a 

title search. This notation would notify 

any potential purchaser in perpetuity 

that the property has been used as a 

CCR landfill or CCR surface 

impoundment and that use of the land 

is restricted under the rule’s postclosure care provisions. After the 


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notation was completed, the proposed 

rule would have required the owner or 

operator to notify the state that the 

notation has been recorded and a copy 

has been placed in the facility’s 

operating record and on its publicly 

accessible internet site. In addition, the 

Agency solicited public comment on 

adding a provision to the rule to allow 

removal of the deed notation once all 

CCR are removed from the CCR unit, 

and notification is provided to the state 

of this action. The EPA solicited 

comment on this potential approach as 

a way to create a further incentive for 

clean closure of the facility. 75 FR at 

35208–09. The proposal further 

encouraged commenters who are 

interested in supporting such an option 

to suggest alternatives to state oversight 

to provide for facility accountability. 

EPA received few public comments 

on the proposed requirement to record 

a deed notation to the property (or some 

other instrument that is normally 

examined during title search). One 

commenter provided general support for 

the proposed requirement to record a 

deed notation to the property. Another 

commenter urged EPA to ensure that 

any deed notation requirements should 

not interfere or conflict with existing 

state property laws that provide for 

environmental covenants. 

EPA did receive several comments in 

response to the Agency’s solicitation of 

comment on adding a provision to the 

rule to allow removal of the deed 

notation when all CCR are removed 

from the facility, and notification is 

provided to the state of this action. One 

commenter supported the addition of 

this provision, stating that the licensure 

requirements of the Professional 

Engineer provide an assurance of 

integrity because the Professional 

Engineer would be required to verify 

that closure has been completed in 

accordance with the closure plan. This 

commenter also stated that it would be 

sufficient to allow removal of a deed 

notation upon an application to the state 

agency supported by a declaration of a 

licensed professional, subject to state 

agency review and approval. Another 

commenter supported providing the 

incentive for clean closure and allowing 

the facility to demonstrate the 

‘‘cleanliness of the closure.’’ The 

commenter also recommended that the 

information provided by the facility 

should be followed by a review from an 

independent third party with 

knowledge of the industry and 

associated environmental issues. 

After considering comments, the final 

rule requires an owner or operator to 

record a notation on the deed or some 

other instrument normally examined 

during a title search. This notation 

notifies any potential purchaser in 

perpetuity that the property has been 

used as a CCR landfill or CCR surface 

impoundment and that use of the land 

is restricted under the rule’s postclosure care provisions. See § 257.102(i). 

In response to the commenter that urged 

EPA to ensure that any deed notation 

requirements should not interfere or 

conflict with existing state property 

laws, the Agency has no information 

that the proposed requirement would 

create such a conflict. In addition, the 

commenter did not provide any 

information or suggest that EPA’s 

proposed approach would actually 

interfere or conflict with existing state 

property laws. Therefore, the Agency is 

finalizing the deed notation requirement 

as proposed. 

In addition, regarding the Agency’s 

solicitation of comment on adding a 

provision to the rule to allow removal 

of the deed notation when all CCR are 

removed from the facility, as discussed 

in Unit VI.M.2 of this preamble, the 

final rule adopts the proposal to allow 

the owner or operator to remove the 

deed notation required under 

§ 257.102(i)(4), upon certification that 

clean closure has been completed. The 

rationale for this decision is discussed 

in that unit of the preamble. 

6. Notification of Intent To Close and 

Certification of Closure Completion 

The Agency proposed to require 

owners or operators to notify the state 

that a notice of intent to close a CCR 

unit has been placed in the facility’s 

operating record and on the publicly 

accessible internet site. This notification 

had to be completed prior to beginning 

closure of the CCR unit. Following 

closure of a CCR unit, the proposed rule 

would also have required the owner or 

operator to obtain a certification from an 

independent registered professional 

engineer verifying that closure has been 

completed in accordance with the 

written closure plan. As proposed, this 

certification would be placed in the 

facility’s operating record and on the 

publicly accessible Internet site. 

The Agency received no public 

comments on the proposed 

requirements to develop a notification 

of intent to close or the certification of 

completion of closure. Therefore, the 

Agency is finalizing these requirements 

as proposed. See § 257.102(g) and (h). 

7. Post-Closure Care Plan 

The Agency proposed to require that 

the owners or operators of CCR landfills 

and CCR surface impoundments prepare 

a written post-closure care plan 

describing how the CCR unit would be 

maintained after closure. See proposed 

§ 257.101(c). The proposal also 

identified the minimum information 

necessary to include in the post-closure 

care plan. This information included: 

(1) A description of the monitoring and 

maintenance activities for the CCR unit 

and the frequency at which these 

activities would be performed; (2) the 

name, address, and telephone number of 

the person or office to contact about the 

facility during the post-closure care 

period; and (3) a description of the 

planned uses of the property during the 

post-closure care period. 

The proposed rule further provided 

that the post-closure use of the property 

shall not disturb the integrity of the 

final cover, liner(s), or any other 

components of the containment system, 

or the function of the post-closure 

monitoring systems unless necessary to 

comply with the requirements of the 

rule. The proposal would have allowed 

a disturbance if the owner or operator of 

the CCR unit demonstrated that 

disturbance of the final cover, liner, or 

other component of the containment 

system, including any removal of CCR, 

would not increase the potential threat 

to human health or the environment. A 

professional engineer would have been 

required to certify such a 

demonstration. 

The Agency received no significant 

comments on the proposed post-closure 

care requirements. The Agency’s 

responses to these comments are 

addressed in the closure comment 

response document, which is available 

in the rulemaking docket. Therefore, the 

Agency is finalizing these requirements 

substantially as proposed. See 

§ 257.102(g) and (h). 

8. Post-Closure Care Activities 

Following closure of a CCR landfill or 

CCR surface impoundment, EPA 

proposed that the owner or operator 

would be required to conduct postclosure care of the closed unit. At a 

minimum, the proposal would have 

required the owner or operator to 

conduct at least the following: (1) 

Maintain the integrity and effectiveness 

of any final cover, including making 

repairs to the final cover to correct the 

effects of settlement, subsidence, 

erosion, or other events, and preventing 

run-on and run-off from eroding or 

otherwise damaging the final cover; (2) 

maintain the integrity and effectiveness 

of the leachate collection and removal 

system and operating the leachate 

collection and removal system in 

accordance with applicable 

requirements under the design criteria 

for such systems; and (3) maintain the 

groundwater monitoring system in 


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accordance with applicable 

requirements under the groundwater 

monitoring and corrective action rule 

provisions. 

EPA received few public comments 

on the proposed activities to conduct 

during the post-closure care period. 

These commenters were supportive of 

the activities and specifically urged the 

rule to require the monitoring of 

groundwater throughout the postclosure care period. The Agency 

received no comments opposing the 

proposed post-closure care activities. 

Therefore, EPA is finalizing the same 

post-closure care activities in this rule. 

See § 257.104(b). In addition, consistent 

with the proposal, the rule clarifies that 

certain CCR units are not subject to 

these post-closure care activities. 

Specifically, owners or operators that 

elect to close a CCR unit by removing 

CCR (i.e., clean close the CCR unit) are 

not subject to any post-closure care 

requirements. See § 257.104(a)(2) and 

Unit M.2 of this preamble. In addition, 

owners or operators of inactive CCR 

surface impoundments that elect to 

complete closure of the unit within 30 

months of the rule’s effective date are 

not subject to any post-closure care 

requirements. See § 257.104(a)(3). 

9. Length of Post-Closure Care Period 

The Agency proposed that the owner 

or operator of a CCR unit conduct postclosure care for 30 years. EPA also 

proposed to allow utilities to conduct 

post-closure care for a decreased length 

of time if the owner or operator 

demonstrates that the reduced period is 

sufficient to protect human health and 

the environment. The owner or operator 

would have been required to have this 

demonstration certified by a 

professional engineer, in addition to 

complying with all of the notification 

and posting requirements under the 

proposed rule. The proposed rule would 

also have allowed an increase in the 

post-closure care period if the owner or 

operator of the CCR unit determined 

that it is necessary to protect human 

health and the environment. EPA also 

recognized in the proposed rule that 

state oversight can be critical to ensure 

that post-closure care is conducted for 

the length of time necessary to protect 

human health and the environment; 

however the Agency also recognized 

that there is no set length of time for 

post-closure care that will be 

appropriate for all possible sites, and all 

possible conditions. Therefore, EPA 

solicited comment on alternative 

methods to account for different 

conditions, yet still provide methods of 

oversight to assure facility 

accountability. 

Some commenters supported the 

proposed approach because it provided 

flexibility to increase or decrease the 

post-closure care period of 30 years. 

EPA also received comments from a 

number of states documenting the 

current state requirements; some states 

require a post-closure care period of less 

than 30 years, some require 30 years, 

and one state currently requires 40 years 

for CCR units. Other commenters 

opposed the shortening of the 30-year 

period without state involvement and 

approval. 

After considering public comments, 

and in a departure from the proposed 

rule, the Agency is requiring that postclosure care be conducted for a 

minimum of 30 years. EPA is making 

this change due to the lack of 

guaranteed state oversight for this rule. 

The Agency has concluded that 

providing the owner or operator the 

flexibility to shorten the post-closure 

care period is no longer appropriate, 

particularly given the flexibility being 

provided for the selection of a final 

cover system or alternative final cover 

system. As discussed in Unit M.3 above, 

the information available to the Agency 

supports the need to proceed cautiously. 

By not allowing the post-closure care 

period to be shortened, EPA better 

ensures that the final cover system will 

be properly maintained. In addition, a 

mandatory 30 year period ensures that 

if problems do arise with respect to a 

final cover system, the groundwater 

monitoring and corrective action 

provisions of the rule will detect and 

address any releases from the CCR unit, 

at least during the post-closure care 

period. 

10. Notification of Completion of PostClosure Care Period 

The Agency proposed to require 

owners or operators of CCR units to 

notify the state that a notice of 

completion of the post-closure care 

period has been placed in the facility’s 

operating record and on the publicly 

accessible Internet site. The proposed 

approach would have required the 

owner or operator to obtain a 

certification from an independent 

registered professional engineer 

verifying that post-closure care has been 

completed in accordance with the 

written post-closure care plan. 

The Agency received no public 

comments on the proposed requirement 

to develop a notification of completion 

of the post-closure care period. 

Therefore, the Agency is finalizing these 

requirements as proposed. See 

§ 257.104(e). 

N. Recordkeeping, Notification and 

Posting of Information to the Internet 

In response to EPA’s lack of authority 

to require a state permit program or to 

oversee state programs, EPA has sought 

to enhance the protectiveness of the 

regulatory requirements by providing 

for state and public notifications of the 

third party certifications, as well as 

requiring a robust set of other 

information that documents the 

decisions made or actions taken to 

comply with the technical requirements 

of the rule. Consistent with the 

proposed rule, owners or operators of 

CCR units are required to document 

how the various provisions of the rule 

have been met by placing information 

(e.g., plans, records, notifications, 

reports) in the operating record and 

providing notification of these actions to 

the State Director/or appropriate Tribal 

authority. The owner or operator is also 

required to establish and maintain a 

publicly accessible Internet site that 

posts documentation that has, in many 

instances, also been entered into the 

operating record. The owner or operator 

is required to maintain a copy of the 

current Emergency Action Plan, the 

current fugitive dust control plan, and 

the current written closure plan as long 

as the facility remains active. EPA 

believes that the establishment and 

maintenance of this information in both 

the operating record and on a publicly 

accessible Internet site is appropriate so 

as to allow states and citizens access to 

all of the information necessary to show 

that the rule has been implemented in 

accordance with the regulatory 

requirements. 

With regard to the specific 

recordkeeping and reporting 

requirements outlined in the proposal, 

the Agency received very little 

comment. Commenters were primarily 

concerned not with the specific 

recordkeeping requirements but rather 

how the recordkeeping requirements 

aligned with the overall approach of the 

RCRA subtitle D regulatory scheme. 

These comments and the Agency’s 

responses are discussed in Unit V of this 

preamble. 

The combined mechanisms of 

recordkeeping, notifications, and 

maintaining a publicly accessible 

Internet site will serve to provide 

interested parties with the information 

necessary to determine whether the 

owner or operator is implementing and 

is operating in accordance with the 

requirements of the rule. As stated in 

the proposal and reiterated here, EPA 

believes that it cannot conclude that the 

RCRA subtitle D regulations will ensure 

there is no reasonable probability of 


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adverse effects on health or the 

environment, unless there are 

mechanisms for states and citizens to 

monitor the situation, such as when 

groundwater monitoring shows 

exceedances above the groundwater 

protection standard specified in the 

rule, so they can determine when 

intervention is appropriate. EPA also 

believes that the recordkeeping and 

notification requirements will minimize 

the danger of owners or operators 

abusing the self-implementing system 

being established in this rule through 

increased transparency and by 

facilitating the citizen suit enforcement 

provisions applicable to the rule. 

In contrast to the proposed rule, the 

Agency has identified for ease of 

implementation each recordkeeping, 

notification and Internet posting 

required in this rule. The proceeding 

section provides a summary of the 

requirements for each reporting 

mechanism. 

1. Recordkeeping Requirements 

This rule requires the owner or 

operator of a CCR landfill or CCR 

surface impoundment and any lateral 

expansion to maintain files of all 

required information (e.g., 

demonstrations, plans, notifications, 

and reports) that supports the 

implementation of this rule in an 

operating record located at the facility. 

Each file must be maintained in the 

operating record for a period of at least 

five years following submittal of the file 

into the operating record. In certain 

instances, however, files must be 

maintained until the CCR unit 

completes closure. For example, the 

initial and periodic structural stability 

assessments as required under section 

§ 257.73(d) and § 257.74(d) must be 

maintained for five years consistent 

with the timeframe for periodic 

reassessments. Whereas, information on 

the construction of a CCR surface 

impoundment must be maintained until 

the CCR unit completes closure (see 

257.73(c) and 257.102.) These 

timeframes are generally consistent with 

the timeframes required for maintaining 

hazardous waste compliance records 

under subtitle C of RCRA and with the 

timeframes outlined in the proposed 

subtitle C option for the regulation of 

CCR. (See specifically 40 CFR 264.73 

and 265.73.) 

Owners or operators with more than 

one CCR unit may elect to consolidate 

all files into one operating record 

provided that each unit is identified and 

files for that unit are maintained 

separately in different sections of the 

operating record. The owner or operator 

of the CCR unit must place files 

documenting compliance with the 

location restrictions; design criteria; 

operating criteria; groundwater 

monitoring and corrective action; 

closure and post closure care, into the 

operating record, with the specific 

documentation requirements found in 

§ 257.105. In the development of this 

final rule, the Agency has included in 

the regulatory language a 

comprehensive listing of each 

recordkeeping and notification required 

by the rule. The Agency anticipates that 

this effort will facilitate owners or 

operators efforts in complying with the 

reporting provisions of the rule, and 

will provide other interested parties 

with a guide to the reporting provisions 

of the rule. 

2. Notification Requirements 

As previously discussed, owners or 

operators are required to notify State 

Directors and/or the appropriate Tribal 

authority when specific documentation 

has been placed in the operating record 

and on the owner or operator’s publicly 

accessible Web site. In most instances 

these notifications must be certified by 

a qualified professional engineer and 

may, in certain instances will be 

accompanied with additional 

information and or data supporting the 

notification. For example under 

§ 257.106(f)(1), within 60 days of 

commencing construction of a new CCR 

unit, a notification of the availability of 

the design criteria specified under 

§ 257.105(f)(1) or (f)(3) in the operating 

record and on the owner or operator’s 

publicly accessible Internet site. If 

however, the owner or operator of the 

CCR units elects to install an alternative 

composite liner, the owner or operator 

must also submit to the State Director 

and/or appropriate Tribal authority a 

copy of the alternative composite liner 

design which has been certified by a 

qualified professional engineer. 

Notification requirements can be 

found in § 257.106, and are required for 

location criteria, design criteria, 

operating criteria, groundwater 

monitoring and corrective action and 

closure and post closure care. 

3. Publicly Accessible Internet Site 

Requirements 

The Agency is finalizing, as proposed 

a requirement for owners and operators 

of any CCR unit to establish and 

maintain a publicly accessible Internet 

site, titled ‘‘CCR Rule Compliance Data 

and Information.’’ As with the operating 

record, owners or operators that 

maintain multiple CCR units may elect 

to use one Internet site in order to 

comply with these requirements, 

provided that the Web site clearly and 

distinctly identifies information from 

each of the CCR units by name and 

location. Unless provided otherwise in 

the rule, information posted to the 

Internet site must be available for a 

period no less than three years from the 

initial posting date. Posting of 

information must be completed no later 

than 30 days from submittal of the 

information to the operating record. 

This timeframe is consistent with the 

notification requirements of the rule. As 

with the other criteria in this section, 

Internet postings are required for 

various elements identified in the 

following sections: Location restrictions; 

design criteria; operating criteria; 

groundwater monitoring and corrective 

action; closure and post closure care. 

These requirements are enforceable by 

citizen suits. 

VII. Summary of Major Differences 

Between the Proposed and Final Rules 

The basic regulatory framework 

outlined in the proposed rule under the 

subtitle D option, is being adopted in 

this final rule for the regulation of CCR 

landfills and CCR surface 

impoundments and any lateral 

expansion. However, as discussed in 

Unit VI of this document, the Agency 

has made a number of revisions to 

several of the provisions in the 

proposed rule, including (1) the 

timeframes for closure; (2) locations 

restrictions—placement above the 

uppermost aquifer; (3) the use of an 

alternative composite liner design; (4) 

revisions to align the structural stability 

criteria with the experience and data 

generated by the Assessment Program; 

and (5) air criteria. These changes have 

been made in response to public 

comments and additional information 

collected and analyses conducted by 

EPA in the course of responding to 

those comments. These are discussed in 

greater detail below. Under the 

proposed rule, all new CCR landfills 

and all CCR surface impoundments that 

had not completed closure would be 

required to retrofit to a composite liner 

or close within five years. However, 

after reviewing comments and further 

evaluation, the Agency has concluded 

that this regulatory approach was 

unnecessary in light of the protections 

afforded by the other technical 

provisions of the rule (e.g., groundwater 

monitoring, corrective action). In the 

final rule, EPA is allowing unlined CCR 

surface impoundments to continue to 

operate for the remainder of the active 

life, provided that the facility 

documents through groundwater 

monitoring that the CCR surface 

impoundment is not contaminating 

groundwater. However, if groundwater 


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monitoring at the facility demonstrates 

that the unlined CCR surface 

impoundment has exceeded any 

groundwater protection standard, the 

owner or operator must initiate 

corrective action, and either remove all 

CCR from the unit and install a 

composite liner (i.e., ‘‘retrofit’’) or close 

within five years. In a departure from 

the proposed rule, CCR surface 

impoundments less than 40 acres may 

receive one two-year extension, 

providing for a maximum of seven years 

to complete closure. Units greater than 

40 acres may receive up to five two-year 

extensions providing a maximum of 15 

years to complete closure. These units 

are also eligible for alternative closure 

timeframes to account for site specific 

operational constraints. 

In addition, under the proposed rule, 

CCR surface impoundments that had not 

closed in accordance with the rule 

would be subject to all the provisions of 

the rule. After further evaluation, EPA 

has revised the provision to allow an 

inactive CCR surface impoundment 

three years from publication of the rule 

in the Federal Register to complete 

closure. Owners or operators of inactive 

CCR surface impoundments that have 

not completed closure within this 

timeframe are subject to all the 

applicable requirements of the rule. 

In response to comment and upon 

further evaluation the Agency is 

amending the location restriction 

relating to the placement of the CCR 

unit above the natural water table. 

Under the proposal, new landfills, any 

CCR surface impoundment, and all 

lateral expansions would have been 

required to have a base located a 

minimum of two feet above the upper 

limit of the natural water table. In the 

final rule, the Agency has amended this 

requirement to require that new CCR 

landfills and all CCR surface 

impoundments, and all lateral 

expansions be constructed with a base 

no less than 1.52 meters (five feet) above 

the uppermost aquifer or must 

demonstrate that there will not be an 

intermittent, recurring, or sustained 

hydraulic connection between any 

portion of the base of the CCR unit and 

the uppermost aquifer due to normal 

fluctuations in groundwater elevations 

(including the seasonal high water 

table.) EPA has made this change in 

response to comments and further 

evaluation demonstrating that this 

standard is the minimum distance 

necessary to demonstrate that no 

reasonable probability of adverse effects 

on human health and the environment 

will occur. 

EPA proposed to require all new CCR 

landfills, CCR surface impoundments 

and any lateral expansion to be 

constructed with a composite liner. A 

composite liner was defined as a system 

consisting of two components; the 

upper component consisting of a 

minimum 30-mil FML and the lower 

component consisting of at least two 

feet of compacted soil. Based on public 

comments and further evaluation, the 

Agency is finalizing a new requirement 

that allows an owner or operator to 

install an alternative composite liner 

provided it meets the performance 

standard established in the rule. EPA 

has concluded that this alternative 

composite liner affords the same 

protection to groundwater resources as 

a composite liner. 

Under the proposed rule, all CCR 

landfills and CCR surface 

impoundments would have been 

required to manage fugitive dusts in a 

manner not to exceed 35 mg/m3. The 

proposal also required owners or 

operators to control the wind dispersal 

of dusts consistent with the standard, 

and to document the measures taken to 

comply with the requirements. In 

response to comments and upon further 

evaluation, the Agency has removed the 

numerical standard of 35 mg/m3 from 

the rule and is establishing a 

performance standard for fugitive dust 

control. This standard requires owners 

or operators of any CCR unit to adopt 

measures that will effectively minimize 

CCR from becoming airborne at the 

facility. The Agency considers this 

standard to be generally consistent with 

the proposed rule with the added 

advantage of allowing for flexibility in 

achieving compliance. The owner or 

operator must also prepare an annual 

CCR fugitive dust control report that 

describes actions taken by the owner or 

operator to control CCR fugitive dust 

and to present a record of all citizen 

complaints during the previous year, as 

well as a summary of the corrective 

action measures taken. 

VIII. Implementation Timeframes for 

Minimum National Criteria and 

Coordination With Steam Electric ELG 

Rule 

The final rule generally establishes 

timeframes for the technical criteria 

based on the amount of time determined 

to be necessary to implement the 

requirements (e.g., installing the 

groundwater monitoring wells). In 

establishing these timeframes, EPA also 

accounted for other Agency rulemakings 

that may affect owners or operators of 

CCR units, namely the Effluent 

Limitations Guidelines and Standards 

for the Steam Electric Power Generating 

Point Source Category (ELG) (78 FR 

34432 (June 7, 2013)) and the Carbon 

Pollution Emission Guidelines for 

Existing Stationary Sources: Electric 

Utility Generating Units (Clean Power 

Plan) (79 FR 34830 (June 18, 2014)). 

Specifically, the implementation 

timeframes in this rule will not require 

owners or operators of CCR units to 

make decisions about those CCR units 

without first understanding the 

implications that such decisions would 

have for meeting the requirements of 

each rule. For example, this final rule 

requires the closure and post-closure 

plans to be prepared following the 

anticipated publication of the ELG and 

Clean Power Plan final rules so that 

owners or operators of CCR units can 

take into consideration those final rules 

as they prepare the closure and postclosure care plans. 

This is also particularly true in the 

situation where the minimum criteria in 

the CCR rule could potentially require a 

surface impoundment to either undergo 

RCRA closure or retrofit with a 

composite liner. A decision on what 

action to take with that unit may 

ultimately be directly influenced by the 

requirements of the ELG rule; for 

example, if the final ELG rule requires 

a conversion to dry handing of fly ash, 

then it may not make economic sense 

for an electric utility to retrofit a surface 

impoundment that contains wethandled fly ash since it would be 

required to cease that practice under the 

ELG rule. Thus, under the final 

timeframes in this rule, any such 

decision will not have to be made by the 

owner or operator of a CCR unit until 

well after the ELG rule is final and the 

regulatory requirements are well 

understood. In this example, the earliest 

date that a CCR surface impoundment 

may be triggered into a retrofit or 

closure decision is approximately 

February 2017 (the exact date would be 

24 months following publication of this 

final rule), which would apply to a CCR 

surface impoundment that fails to 

achieve minimum safety factors for the 

CCR unit. This is due to the fact that the 

owner or operator must complete the 

initial safety factor assessment within 

18 months of the publication of this rule 

plus an additional six months to initiate 

closure of the CCR unit if the minimum 

factors or safety are not achieved. The 

ELG rule is scheduled to be finalized in 

September 2015 and its effective date is 

60 days following its publication. Thus, 

there is ample time for the owners and 

operators of CCR units to understand 

the requirements of both regulations and 

to make the appropriate business 

decisions. 

The tables below summarize the 

implementation timeframes for the 

minimum criteria for existing CCR 


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surface impoundments and for existing CCR landfills being promulgated in this 

rule. 

IMPLEMENTATION TIMEFRAMES FOR THE MINIMUM CRITERIA FOR EXISTING CCR SURFACE IMPOUNDMENTS

Requirement 

Implementation 

timeframe 

(number of 

months after 

publication of 

rule) 

Description of requirement to be completed 

Location Restrictions (§ 257.60–§ 257.64) .................. 42 months .......... —Complete demonstration for placement above the uppermost aquifer. 

—Complete demonstrations for wetlands, fault areas, seismic impact 

zones, and unstable areas. 

Design Criteria (§ 257.71) ........................................... 18 months .......... —Document whether CCR unit is either a lined or unlined CCR surface impoundment. 

Structural Integrity (§ 257.73) ..................................... 8 months ............ —Install permanent marker. 

18 months .......... —Compile a history of construction, complete initial hazard potential 

classification assessment, initial structural stability assessment, and 

initial safety factor assessment. 

24 months .......... —Prepare emergency action plan. 

Air Criteria (§ 257.80) .................................................. 6 months ............ —Prepare fugitive dust control plan. 

Hydrologic and Hydraulic Capacity (§ 257.82) ........... 18 months .......... —Prepare initial inflow design flood control system plan. 

Inspections (§ 257.83) ................................................. 6 months ............ —Initiate weekly inspections of the CCR unit. 

6 months ............ —Initiate monthly monitoring of CCR unit instrumentation. 

9 months ............ —Complete the initial annual inspection of the CCR unit. 

Groundwater Monitoring and Corrective Action 

(§ 257.90–§ 257.98).

30 months .......... —Install the groundwater monitoring system; develop the groundwater sampling and analysis program; initiate the detection monitoring program; and begin evaluating the groundwater monitoring 

data for statistically significant increases over background levels. 

Closure and Post-Closure Care (§ 257.103– 

§ 257.104).

18 months .......... —Prepare written closure and post-closure care plans. 

Recordkeeping, Notification, and Internet Requirements (§ 257.105–§ 257.107).6 months ............ —Conduct required recordkeeping. 

—Provide required notifications. 

—Establish CCR website. 

IMPLEMENTATION TIMEFRAMES FOR THE MINIMUM CRITERIA FOR EXISTING CCR LANDFILLS

Requirement 

Implementation timeframe 

(number of months after 

publication of rule) 

Description of requirement to be completed 

Location Restrictions (§ 257.64) ........ 42 months .............................. —Complete demonstration for unstable areas. 

Air Criteria (§ 257.80) ........................ 6 months ................................ —Prepare fugitive dust control plan. 

Run-On and Run-Off Controls 

(§ 257.81).

18 months .............................. —Prepare initial run-on and run-off control system plan. 

Inspections (§ 257.83) ....................... 6 months ................................ —Initiate weekly inspections of the CCR unit. 

9 months ................................ —Complete the initial annual inspection of the CCR unit. 

Groundwater Monitoring and Corrective Action (§ 257.90–§ 257.98).30 months .............................. —Install the groundwater monitoring system; develop the groundwater 

sampling and analysis program; initiate the detection monitoring program; and begin evaluating the groundwater monitoring data for statistically significant increases over background levels. 

Closure and Post-Closure Care 

(§ 257.103—§ 257.104).

18 months .............................. —Prepare written closure and post-closure care plans. 

Recordkeeping, Notification, and 

Internet Requirements 

(§ 257.105—§ 257.107).

6 months ................................ —Conduct required recordkeeping. 

—Provide required notifications. 

—Establish CCR website. 

IX. Implementation of the Minimum 

Federal Criteria and State Solid Waste 

Management Plans 

As explained earlier in this document, 

the final regulations EPA is 

promulgating under RCRA subtitle D 

impose minimum federal criteria with 

which CCR units must comply without 

any additional action by a state or 

federal regulator. As discussed 

previously in this document, under the 

provisions of subtitle D applicable to 

solid waste, states are not required to 

adopt or implement these regulations, to 

develop a permit program, or submit a 

program covering these units to EPA for 

approval and there is no mechanism for 

EPA to officially approve or authorize a 

state program to operate ‘‘in lieu of’’ the 

federal regulations. 

EPA has, however, received numerous 

comments regarding the potential 

implementation challenges that this 

statutory and resulting regulatory 

structure may pose, particularly in 

states that already have a 

comprehensive regulatory program 

governing CCR units. These concerns 

include the fact that facilities may need 

to comply with two sets of potentially 

differing regulations, perhaps resulting 

in confusion for the regulated 

community and the general public, and 

also potentially resulting in inconsistent 

results from citizens seeking 

enforcement of the criteria. The 


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commenters were also concerned that 

there is no explicit mechanism for EPA 

to officially approve a state program (as 

there is in subtitle C or in the municipal 

solid waste provisions of subtitle D). In 

addition, in states without a current 

formal program for overseeing CCR 

landfills and surface impoundments at 

coal fired electric utilities, stakeholders 

have expressed a preference for a state 

mechanism for implementing the 

federal requirements. Finally, many 

stakeholders expressed a strong 

preference for a permit program with its 

opportunities for public input and 

transparency. 

Moreover, EPA recognizes the critical 

role that our state partners play in 

implementation and ensuring 

compliance with environmental 

regulations. This is particularly 

important in complex situations, such 

as presented by CCR landfills and 

surface impoundments that involve 

corrective action and requirements and 

timelines for closure of units. EPA 

expects that states will be active 

partners in overseeing the regulation of 

CCR landfills and CCR surface 

impoundments, and has adopted a 

number of provisions to ensure that 

States have the information necessary to 

undertake this role. First, the final 

regulations require owners or operators 

of regulated CCR units to notify the state 

of actions taken to comply with the 

requirements of the rule (see § 257.106). 

Facilities will also be required to 

maintain a publicly accessible internet 

site that will document the facility’s 

compliance with the requirements of the 

rule; states (along with other members 

of the public) will be able to access this 

site to monitor facility activities (see 

§ 257.107). (For a detailed discussion of 

these requirements, please see Unit VI.N 

of this document.) 

In order to ease implementation the 

regulatory requirements for CCR 

landfills and CCR surface 

impoundments, EPA strongly 

encourages the states to adopt at least 

the federal minimum criteria into their 

regulations. EPA recognizes that some 

states have already adopted 

requirements that go beyond the 

minimum federal requirements; for 

example, some states currently impose 

financial assurance requirements for 

CCR units, and require a permit for 

some or all of these units. This rule will 

not affect these state requirements. The 

federal criteria promulgated today are 

minimum requirements and do not 

preclude States’ from adopting more 

stringent requirements where they deem 

to be appropriate. 

As noted above, commenters on the 

proposal voiced concerns that because 

EPA does not have the authority to 

approve a state program under subtitle 

D of RCRA, there is no document in 

which EPA formally provides its 

judgment that a state solid waste 

program substantially incorporates the 

minimum federal criteria. However, a 

mechanism for this has been available 

for many years through the solid waste 

management planning process already 

in the regulations at 40 CFR part 256 

‘‘Guidelines for Development and 

Implementation of state Solid Waste 

Management Plans.’’ This process, 

designed early in the development of 

the waste management infrastructure, 

was structured to encourage states to 

effectively plan for and manage their 

solid wastes, including upgrading or 

closing any units that were considered 

‘‘open dumps’’ through the 

development of SWMPs. Currently most 

states have SWMPs that have previously 

been submitted to and approved by 

EPA. EPA strongly recommends that 

states take advantage of this process by 

revising their SWMPs to address the 

issuance of the revised federal 

requirements in this final rule, and to 

submit revisions of these plans to EPA 

for review, using the provisions 

contained in 40 CFR part 256. To be 

clear, EPA is not suggesting that states 

revise their entire SWMPs, but only that 

states revise their plans to address the 

revised federal requirements being 

promulgated today. EPA would then 

review and approve the revised SWMPs 

provided they demonstrate that the 

minimum federal requirements in this 

final rule will be met. In this way, EPAs 

approval of a revised SWMP signals 

EPA’s opinion that the state SWMP 

meets the minimum federal criteria. 

As noted above, the part 256 

regulations established the system for 

the development and approval of initial 

SWMPs as well as their revisions. For 

the convenience of the reader, we 

describe these regulations in the 

following paragraphs. The regulations 

lay out a series of requirements that a 

plan must meet to be approved, as well 

as a number of recommendations that 

should also be reflected in the solid 

waste management plan. (e.g., 40 CFR 

256.01–256.04 and 256.20–256.27.) For 

example, § 256.02 sets out the scope of 

the SWMPs, requiring that the plans 

address ‘‘all solid waste in the state that 

poses potential adverse effects on public 

health or the environment or provides 

an opportunity for resource 

conservation or resource recovery.’’ The 

regulations also specify that the plan 

must require that all solid waste shall be 

disposed of in ‘‘sanitary landfills,’’—i.e., 

units that meet any federal requirements 

promulgated under RCRA section 

4004(a)—or otherwise disposed of in an 

environmentally sound manner. 40 CFR 

256.01(a)(2). The plan must also 

prohibit the establishment of new open 

dumps, and provide for the closing or 

upgrading of all existing open dumps 

within the state, pursuant to the 

requirements of RCRA section 4005. 40 

CFR 256.01(a)(2)–(3). State plans must 

also ‘‘set forth an orderly and 

manageable process for achieving the 

objectives of the Act and meeting the 

requirements of these guidelines.’’ 40 

CFR 256.02(d). The regulations further 

specify that the plan ‘‘shall describe as 

specifically as possible the activities to 

be undertaken, including detailed 

schedules and milestones.’’ Id. 

The part 256 regulations further 

require a SWMP to identify the state’s 

legal authorities, and regulatory powers, 

including any revisions that may be 

necessary to implement the plan. 40 

CFR 256.02(e). The plan must also 

identify and set out the responsibilities 

of state, local, and regional authorities 

that will implement the state plan. 40 

CFR 256.10(a). Thus, the SWMP is the 

comprehensive compendium, 

developed and adopted with public 

participation, setting forth how solid 

waste is managed in a particular state. 

As such, SWMPs have been a key 

component of solid waste programs for 

many years. As stated above, states that 

have approved plans will only need to 

address these requirements for CCR 

landfills and surface impoundments. 

In addition to the substantive 

requirements, the part 256 regulations 

impose a number of procedural 

obligations. Before submission to EPA, 

the SWMP must be adopted by the state 

pursuant to state administrative 

processes and developed in accordance 

with the public participation 

requirements set out in § 256.60. In 

addition, all SWMPs were to contain 

procedures for revisions. 40 CFR 

256.03(e). EPA anticipates that states 

would rely on their existing procedures 

to revise their SWMPs to implement the 

new federal criteria. 

Currently, most states have approved 

SWMPs. These approvals were based on 

the requirements applicable to solid 

waste management that were in force at 

the time of approval. Now, because EPA 

is promulgating revised federal criteria, 

the facilities that will be considered to 

be ‘‘sanitary landfills’’ and ‘‘open 

dumps’’ is changing. Thus, EPA expects 

that SWMPs in many states will need to 

be revised to account for these revised 

Federal requirements. Consistent with 

the provisions in § 256.01(a)(2)–(3) and 

with the requirement in § 256.03(e) that 

such plans are to be revised where 


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necessary, in order to maintain approval 

of these plans EPA expects that states 

will revise their SWMPs to account for 

the promulgation of revised federal 

criteria for CCR landfills and surface 

impoundments. 

As fully explained later in this 

section, the plans are generally the best 

tool available for demonstrating how 

CCR units will be regulated in a state, 

including how the state intends its state 

requirements to relate to the federal 

regulations. In addition, EPA anticipates 

that the public participation processes 

will have substantial benefit, by 

involving all sectors of the community 

in addressing the management of CCR in 

a particular state. 

EPA believes that the revised SWMPs 

will have significant benefits and 

provide the best mechanism available to 

respond to the concerns expressed by 

commenters regarding the role of states 

in management of this waste. First, the 

revised plans will enable states to set 

out, as part of their overall solid waste 

program, how the State intends to 

regulate CCR landfills and surface 

impoundments; that is, these plans can 

demonstrate how, if at all, the state 

program has incorporated the minimum 

national criteria and can highlight those 

areas where the state regulations are 

more stringent than or otherwise go 

beyond the federal minimum criteria. 

For example, the plan can describe the 

actions the state will take to oversee 

CCR units, particularly those units 

undergoing closure or corrective action, 

and how the State intends to review or 

use the notices and other information 

pertaining to the units that the facility 

owners will be providing to the state (as 

required in the federal regulations). 

Providing this detail can greatly assist 

the regulated community to understand 

the regulatory structure under which 

they will be operating. It can also assist 

the general public in understanding the 

regulations and thereby their ability to 

monitor industry’s compliance with the 

rule. 

Second, substantial benefits will be 

gained through the public participation 

process required as part of revising the 

state plans. See 40 CFR 256.60. At a 

minimum, these processes will promote 

greater awareness of the federal 

regulatory requirements, as well as how 

these fit into the overall context of solid 

waste management in the State, which 

will be very valuable as the new 

minimum criteria for CCR are 

implemented. In addition, these 

processes will provide the public and 

communities near CCR landfills and 

surface impoundments with an 

opportunity to participate in the 

decision making about how CCR are 

managed in their state. Finally, the 

record generated by the public 

participation process has an inherent 

value to states, the utilities, and the 

general public in that it can demonstrate 

explicitly the manner in which issues 

related to the regulation of CCR landfills 

and surface impoundments were raised 

and resolved in the state. This record 

would be a value in any later 

proceedings seeking enforcement of the 

rule. 

Third, once EPA has approved a 

SWMP that incorporates or goes beyond 

the minimum federal requirements, EPA 

expects that facilities will operate in 

compliance with that plan and the 

underlying state regulations. In those 

circumstances, EPA’s view is that 

facilities adhering to the requirements of 

a state program that is identical to or 

more stringent than an approved SWMP 

will meet or exceed the minimum 

federal criteria. In addition, EPA 

anticipates that a facility that operates 

in accord with an approved SWMP will 

be able to beneficially use that fact in a 

citizen suit brought to enforce the 

federal criteria; EPA believes a court 

will accord substantial weight to the fact 

that a facility is operating in accord with 

an EPA-approved SWMP. In addition, as 

noted above, the record generated by the 

public participation process in 

developing the SWMP has an inherent 

value to the states, the utilities, and the 

general public in any such litigation. 

The more specific the record is on the 

public process regarding how the 

SWMP would incorporate the minimum 

federal requirements and any state 

oversight the more valuable it would be 

in any court proceedings to complement 

EPA’s approval of the SWMP. As fully 

explained earlier, EPA approval of a 

state SWMP does not mean that the state 

program operates ‘‘in lieu of’’ the federal 

program as EPA does not have the 

authority to make such a determination. 

The process and criteria for approval 

of SWMPs are set out in 40 CFR part 

256. The part 256 regulations state that 

EPA has six months from submittal of 

a plan to either approve or disapprove 

it. The regulations further state that EPA 

will approve a plan if the agency 

determines that the plan: (a) Meets the 

requirement set out in RCRA Section 

4003(a)(1), (2), (3), and (5); (b) and 

contains provisions for revisions. Those 

requirements of 4003(a) are: The 

identification of the responsibilities of 

state, local, and regional authorities in 

the implementation of the plan and the 

means for coordinating regional 

planning and implementation; 

prohibition on the establishment of new 

open dumps and the requirement that 

all solid waste be utilized for resource 

recovery or disposed of in landfills 

meeting the minimum federal criteria; 

provision of the closing or upgrading of 

all existing open dumps; and no 

prohibition on negotiating or entering 

into contracts for the supply of solid 

waste to resource recovery facilities. In 

this rule, EPA has established minimum 

national criteria for CCR disposal 

facilities, which effectively define when 

CCR disposal facilities are open dumps. 

In order for EPA to approve a revised 

state SWMP, it must determine that the 

state plan provides enforceable 

regulatory requirements for the closing 

or upgrading of CCR disposal facilities 

that constitute open dumps. A state 

SWMP can do so through direct 

incorporation and implementation of 

the minimum federal criteria 

established by this rule or through 

incorporation of alternative 

requirements that are at least as 

protective of public health and the 

environment. 

EPA anticipates that it will be able to 

review and approve state SWMPs that 

adopt the federal regulations in total or 

go beyond the federal minimum criteria 

very quickly; EPA’s review of plans that 

do not adopt the federal minimum 

criteria or alter them substantially is 

likely to be more difficult and therefore 

more time consuming. EPA’s review of 

and decision to approve or disapprove 

a state solid waste management plan 

will be based on the record before the 

Agency at the time of that decision. This 

record includes the record developed 

during the public participation process 

in which the state engaged prior to 

submitting the revised SWMP to EPA 

for approval. Should information come 

to EPA’s attention at a later date that a 

state is not implementing its approved 

plan or taking actions at variance with 

the plan’s provisions, EPA will take 

appropriate steps including potentially 

withdrawing approval of the SWMP. 

Because SWMPs form a critical part of 

the implementation of this rule, EPA 

intends to engage the states very soon 

after promulgation of the minimum 

criteria to develop a streamlined, 

efficient process for review and 

approval of these revised plans. EPA 

also intends to develop both guidance 

for states to use to submit revisions and 

for EPA to use in its review of the 

revisions. 

In addition, EPA is exploring options 

for developing and publishing the 

statutorily required inventory of open 

dumps. Specifically, within one year of 

the promulgation of federal criteria 

under RCRA section 4004(a), section 

4005(b) directs EPA ‘‘to assist the states 

in complying’’ with the directive in 

section 4003(a)(3) that state SWMPs 


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127Upon promulgation of criteria under sections 

1008(a)(3) and 4004(a), the continued use of any 

unit that does not comply with these criteria is 

prohibited, as ‘‘open dumping,’’ unless a 

compliance schedule has been established. 

shall provide for closure and upgrading 

of open dumps (i.e., facilities that do not 

meet the revised federal criteria) by 

publishing an inventory of all ‘‘open 

dumps’’ in the US. 42 U.S.C. 6945(b). 

Because the minimum criteria 

promulgated today include 

implementation timelines, it is possible 

for a facility to become an open dump 

in the future for failure to meet the 

minimum criteria. Thus, EPA 

anticipates publishing an initial 

inventory and likely subsequent 

periodic updates. 

Finally, in addition to benefits just 

described of a revised SWMP, RCRA 

Section 4005 provides an incentive in 

certain circumstances for states to 

obtain EPA approval on revised 

SWMPs. Under section 4005, States 

with approved SWMPs can provide 

additional time for facilities that do not 

meet the national minimum criteria (i.e., 

‘‘open dumps’’), to come into 

compliance. As noted above, within one 

year of the promulgation of federal 

criteria under RCRA section 4004(a), 

section 4005(b) directs EPA ‘‘to assist 

the states in complying’’ with the 

directive in section 4003(a)(3) that state 

SWMPs shall provide for closure and 

upgrading of open dumps (i.e., facilities 

that do not meet the revised Federal 

criteria) by publishing an inventory of 

all ‘‘open dumps’’ in the US. 42 U.S.C. 

6945(b). Facilities on this inventory are 

eligible to obtain a ‘‘schedule of 

compliance’’ from a state with an 

approved management plan, provided 

certain additional criteria have been 

met. Specifically, the facility must 

demonstrate that it is unable to use 

other ‘‘public or private alternatives’’ to 

manage its waste in the non-compliant 

unit. In such cases, the state may 

establish a schedule of remedial 

measures that includes ‘‘an enforceable 

sequence of actions or operations’’ 

which must lead to compliance within 

a ‘‘reasonable time (not to exceed five 

years from the date of publication of 

criteria).’’ 42 U.S.C. 6945(a). Such a 

schedule would shield the facility from 

any suit brought to enforce the criteria. 

Thus, if a State receives EPA approval 

on its revised plan, it can offer facilities 

additional time, albeit limited, to come 

into compliance with the federal 

requirements. EPA expects, however, 

that few facilities will either be eligible 

for or need to take advantage of this 

flexibility. First, as a practical matter, 

only a limited number of facilities or 

units will fall into the category of open 

dumps within the relevant timeframes. 

As noted, an open dump is defined as 

a solid waste facility that does not meet 

the federal minimum criteria. 42 U.S.C. 

6903(14). As also explained, the final 

criteria establish timeframes for 

facilities to implement the technical 

requirements, ranging between six 

months to several years, including 

certain provisions that authorize 

extensions. Until those deadlines pass, 

the facility is not an open dump and 

therefore would not be eligible for or 

need a compliance schedule under 

section 4005. Because the statute limits 

the states’ ability to set compliance 

schedules to five years from the 

publication of the criteria, if a facility is 

out of compliance with the criteria 

either shortly before or after this time 

five-year timeframe, from a purely 

practical perspective, compliance 

schedules are no longer a viable option. 

Thus for certain of the provisions (e.g., 

closure, which generally must be 

completed within five years) 

compliance schedules would never be 

available. 

Second, the timeframes in the 

regulation reflect EPA’s considered 

judgment of the amount of time that 

would realistically be needed under 

normal circumstances for a facility to 

come into compliance, based on 

standard engineering practices used 

throughout the industry. Most facilities 

will, in fact, be able to comply with the 

federal criteria within the specified 

timeframes, and so will not need to seek 

a compliance schedule. For example, as 

part of its Dam Safety Assessment 

program, EPA evaluated all CCR surface 

impoundments with a dam hazard 

potential rating of ‘‘high’’ or 

‘‘significant,’’ using criteria that were 

essentially the same as the technical 

criteria adopted in the final rule. As of 

the completion of that program, all units 

were either rated satisfactory, or were 

taking steps to ensure the structural 

stability of the unit. EPA acknowledges 

that ensuring the structural stability of 

these units requires continued 

maintenance and oversight, so past 

compliance is no guarantee of future 

compliance. However, our experience 

from the Assessment Program leads us 

to expect that the vast majority of CCR 

surface impoundments will be able to 

demonstrate compliance with the 

structural stability requirements in the 

final criteria within the specified 

timeframes. Any facility that seeks to 

justify an extension would have a heavy 

burden to demonstrate that anything 

longer than a minor amount of time is 

needed to implement the structural 

stability requirements would meet the 

statutory standard (i.e., be 

‘‘reasonable’’). Similarly, absent factors 

beyond the facility’s control (i.e, ‘‘Acts 

of God’’) EPA is unable to envision the 

circumstances that would support a 

decision that additional time beyond the 

30 months already provided in the 

criteria to comply with the groundwater 

monitoring requirements would be 

‘‘reasonable.’’ 

Third, RCRA section 4005(a) imposes 

a number of requirements that will 

further limit both the circumstances in 

which a compliance schedule may be 

granted, and the amount of time that 

states will ultimately be authorized to 

grant. 42 U.S.C. 6945(a). Section 4005(a) 

requires that to obtain a compliance 

schedule, the facility must first 

demonstrate that it has considered other 

public or private alternatives to comply 

with the prohibition on open dumping 

and is unable to utilize such 

alternatives.127 At a minimum, this 

means that the facility must 

demonstrate that there are no alternative 

units that meet the federal requirement, 

either on-site or off-site, that can be 

used to dispose of the CCR. EPA also 

interprets this provision to require the 

facility to demonstrate that it has made 

a good faith effort to comply with the 

criteria, which would include 

documenting the actions that had been 

taken, along with the facts 

demonstrating the reasons that 

compliance was not feasible within the 

criteria’s timeframes. As has been 

previously discussed, cost is not a factor 

that is appropriately considered under 

sections 1008(a)(3), 4004(a), or 4005(a), 

and so would not provide an adequate 

justification for these purposes either. 

Further, the statute requires that a 

schedule for compliance specify ‘‘a 

schedule of remedial measures, and an 

enforceable sequence of actions, leading 

to compliance within a reasonable 

time.’’ Id. This means that any 

compliance schedule must lay out 

precisely the activities that remain to be 

completed, along with clear and 

enforceable deadlines for each. Again, 

this will effectively serve to limit the 

ultimate amount of time that would be 

granted in any individual case. 

Finally, as stated earlier, the statute 

requires that any schedule to bring an 

open dump into compliance is to be 

limited to a ‘‘reasonable time,’’ that is 

not to exceed five years from the date 

of publication of the federal criteria. 

Whether a particular period of time is 

‘‘reasonable’’ depends on the facts of the 

particular situation, but, generally 

speaking, it should take into account the 

technical complexity of the 

requirement, the activities that remain 


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to be completed, the reasons for the lack 

of compliance, and other particular 

factors such as geology, geography, 

weather, and engineering 

circumstances. For example, EPA 

expects that a significantly lower 

amount of time would be reasonable for 

a facility that simply chose to delay 

implementation than for a facility 

whose compliance was complicated by 

factors beyond its control. Overall, to be 

consistent with the statute, EPA expects 

that facilities seeking to establish an 

alternative compliance schedule would 

need to provide a factual justification 

that not only documents the reasons 

that compliance within the criteria’s 

timeframes was not feasible, but 

carefully documents the facts that 

would support a determination that any 

significant extension of time to come 

into compliance is ‘‘reasonable.’’ 

EPA expects that as part of any 

revised solid waste management plans, 

a state would explain the criteria it 

intended to use to determine whether 

and how much additional time to 

comply with the federal criteria should 

be granted. See 40 CFR 256.04(f) and 

256.26. Consistent with the statute’s 

directives, EPA expects that any 

extension would be limited to the time 

absolutely necessary to bring a unit into 

compliance, and that five years would 

not automatically be granted. Nor would 

a revised solid waste management plan 

that granted all ‘‘open dumps’’ an 

additional five years generally meet the 

regulatory criteria for approval. Id. EPA 

also expects that states would consider 

the original timeframes laid out in the 

criteria. As previously discussed, in 

developing these time frames EPA 

sought to achieve a balance between the 

minimum amount of time that would 

realistically be needed to properly and 

adequately implement the technical 

requirements, and the need to 

expeditiously address the significant 

risks associated with CCR units. EPA 

therefore expects that in granting 

additional time under compliance 

schedules, states will be guided by the 

same considerations. As documented 

throughout this preamble, CCR disposal 

units do pose significant risks to public 

health and the environment; it is 

therefore critical that actions to 

implement these criteria be taken 

expeditiously to address these risks. 

EPA intends to closely review those 

portions of a state solid waste 

management plan that address the 

processes and criteria for establishing 

compliance schedules. 

In conclusion, EPA believes that the 

use of the solid waste management plan 

revision process is the best mechanism 

available under RCRA subtitle D to 

address the states’ interest in obtaining 

formal EPA ‘‘approval’’ of their solid 

waste management plans. EPA will 

continue to work with the states as the 

rules are implemented to ensure that 

this process is streamlined and efficient. 

X. Risk Assessment 

EPA revised and updated the 2010 

draft risk assessment using 

mathematical models to determine the 

rate at which chemical constituents may 

be released from different waste 

management units (WMUs), to predict 

the fate and transport of these 

constituents through the environment, 

and to estimate the resulting risks to 

human and ecological receptors. 

Modeling was conducted in a step-wise 

fashion, with more refined analyses 

used at each subsequent step. Below, 

EPA discusses how the risk assessment 

was revised and updated in response to 

the various public comments received. 

The Agency also provides a summary of 

the analyses conducted as part of the 

risk assessment and the final 

conclusions drawn from these analyses. 

For further discussion, see the revised 

risk assessment and response to 

comments documents available in the 

docket. 

A. Response to Public Comments 

EPA received numerous, general 

comments on both the draft risk 

assessment and subsequent NODAs. 

These comments tended to express 

general support or disapproval for the 

risk assessment methodology, data, or 

results. However, these comments did 

not provide any specific technical 

recommendations or data that could be 

used to improve the risk assessment. 

EPA appreciates the overwhelming 

interest of the public regarding the 

Agency’s risk assessment. However, 

without any substantive critique that 

could be acted upon, EPA could not 

alter the risk assessment in response to 

these more general comments. To the 

extent that any commenter mentioned 

substantive issues regarding a specific 

aspect of the risk assessment, these 

comments are further addressed in 

subsequent sections of this preamble. 

1. Comments Related to Fate and 

Transport Modeling 

COMMENT: Commenters wondered 

how realistic results may be using a risk 

assessment model that assumes current 

conditions will be maintained for 

10,000 years. Specifically, commenters 

were concerned about the assumption 

that constituent concentrations in the 

leachate remain constant throughout 

that timeframe. In addition, commenters 

questioned the assumption that well use 

and climate conditions will remain 

constant for 10,000 years. 

EPA RESPONSE: EPA acknowledges 

that the 10,000-year groundwater 

modeling time horizon required further 

clarification in the revised risk 

assessment. Thus, the text in the revised 

risk assessment has been updated to 

make it clear that the selection of a 

maximum 10,000-year time horizon 

does not mean that all model 

simulations continue for the full 10,000 

years. Specifically, Section 4 states: 

EPA ran the model until either the 

observed groundwater concentration of 

a constituent at the receptor point 

reached a peak and then fell below a 

model-specified minimum 

concentration (10¥16 mg/L), or the 

model had been run for a time period 

of 10,000 years. 

Although groundwater concentrations 

are modeled beyond the observed peak 

or maximum average concentrations, 

these post-peak or post-maximum 

average predictions are not used in 

estimates of risk. In many cases the 

leachate plume reaches the receptor 

point much sooner than 10,000 years. 

As discussed in Section 5 and appendix 

K of the revised risk assessment, on a 

national scale, both unlined and claylined surface impoundments 

consistently pose peak risks within 100 

years. Meanwhile, composite liners 

show much longer peak arrival times, 

close to 10,000 years for most surface 

impoundment runs. Peak arrival times 

are longer for landfills, and more than 

10,000 years for composite-lined 

landfills. Under such timeframes, EPA 

acknowledges that surface conditions 

may change significantly, compounding 

the uncertainty associated with the 

predicted exposures and risks. However, 

EPA also notes that the time to first 

exceedance of selected risk criteria is 

typically considerably less than the time 

to the greatest exceedance. 

EPA acknowledges that future 

groundwater use patterns may shift as 

the number and location of receptors 

changes, and that it is unknown 

whether future changes in receptor 

locations and other surface conditions 

would result in greater, lesser, or the 

same risk as predicted in this analysis. 

However, no known data exist that 

would allow EPA to do more than 

speculate about future population 

dynamics. Thus, the Agency relied on 

the best available data on the current 

population to conduct the revised risk 

assessment. The approach used to place 

residential groundwater wells is further 

discussed in Section 4 and appendix B 

of the revised risk assessment, and the 

associated uncertainties are discussed in 

Section 5. 


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128Meeussen, J.C.L. 2003. ORCHESTRA: An 

Object-Oriented Framework for Implementing 

Chemical Equilibrium Models. Environmental 

Science & Technology 37(6):1175–1182. 

129U.S. EPA. 1999. Understanding Variation In 

Partition Coefficient, Kd, Values Volume I: The Kd 

Model, Methods of Measurement, and Application 

of Chemical Reaction Codes. EPA 402–R–99–004A. 

OAR. Washington, DC. August. 

COMMENT: Comments related to the 

specifics of the groundwater transport 

modeling were received from 

commenters. Issues covered in their 

comments included the following: 

Geochemical Modeling: 

• The way that soil and aquifer Kd

values were determined and used, 

including the fact that the risk 

assessment did not explicitly model 

oxidation/reduction reactions and 

precipitation-dissolution processes that 

may influence the chemical fate and 

transport. 

• Whether hydrogeologic settings 

were assigned correctly. 

Selection of Sorbents: 

• The selection of iron oxides, and 

dissolved organic matter (DOM) and 

particulate organic matter (POM) to 

represent all sorbents in soil and aquifer 

materials. 

• The selection of goethite as the iron 

oxide mineral used to estimate sorption 

to vadose zone and aquifer materials. 

• The treatment of POM and DOM in 

the MINTEQA2 modeling used to 

generate the Kd values (sorption 

isotherms) used in the analysis. 

• The adequacy of sensitivity and 

uncertainty analyses for the MINTEQA2 

modeling. 

Kd Values: 

• The approach used to determine the 

value of pH in the aquifer for selecting 

Kd. 

• The subsequent calculation of the 

retardation factor. 

Arsenic Speciation: 

• The assumption that arsenic III is 

the only or dominant form of arsenic is 

too conservative, as arsenic III readily 

converts to the less mobile arsenic V 

species under aerobic conditions. 

• A commenter requested time to 

exceedance results for arsenic species 

and other constituents, as well as 

distance versus concentration output 

from EPACMTP. 

EPACMTP Assumptions and 

Simplifications: 

—The appropriateness of EPACMTP 

and its various assumptions and 

simplifications for groundwater 

modeling, including: 

—Not altering the chemistry of the 

aquifer receiving leachate. 

—Not simulating variable oxidationreduction potential conditions or 

multiple chemical species during a 

model run. 

—Not evaluating the potential 

mobilization of non-waste related 

metals from soils when exposed to 

leachate with potentially different 

geochemistry compared to ambient 

conditions. 

—Not considering the potential 

occupation of adsorption sites by 

naturally occurring metals or 

competition from multiple 

contaminants. 

—Not considering mounding-induced 

reduction of the unsaturated zone 

thickness or other cases where the 

groundwater table is in direct contact 

with the bottom of the WMU. 

—Not considering fractured rock, karst, 

and other complex hydrogeologic 

settings. 

The comments also addressed the 

general need for more transparency in 

the data and methods used in the 

analysis and the need for validation 

and/or comparison of model inputs and 

results to site-specific field data. 

EPA RESPONSE: The following is 

EPA’s response broken out by subtopic. 

Geochemical Modeling: 

EPA recognizes that explicit reactive/ 

geochemical modeling would be more 

realistic than using linear and nonlinear 

partitioning coefficients. EPA 

considered the use of the Objects 

Representing Chemical Speciation and 

Transport (ORCHESTRA) model during 

revisions to the risk assessment because 

it can account for geochemical 

interactions, such as aqueous 

complexation, precipitation, surface 

complexation, and ion exchange.128

However, such modeling is not a 

practical approach for a nationwide 

analysis because the data collection 

effort necessary to populate such a 

model on a nationwide, location-based 

level would be prohibitively expensive. 

Even assuming such data were available 

to populate ORCHESTRA or a similar 

model, the complexity of the algorithms 

necessary to account for highly variable 

geochemical and hydrogeologic 

conditions nationwide and the time 

required to run such a model would also 

be impractical. Furthermore, the use of 

Kd as a surrogate for dilution/sorption/ 

precipitation processes is a widely used 

and accepted method in both the 

scientific literature and the groundwater 

modeling community, provided the 

values of Kd used are appropriate to 

account for the range of potential 

attenuation processes.129 Therefore, for 

a nationwide analysis, the use of Kd is 

a practical and necessary simplification. 

EPA has added discussion to the risk 

assessment to clarify Kd-related issues 

raised by the commenters. Appendix H 

of the revised risk assessment displays 

select percentiles of the Kd values used 

in the analysis. These values were 

derived from the isotherm sampling 

performed by EPACMTP and used in 

the modeling (including effective Kd

values for the unsaturated zone). A 

listing of all individual Kd values 

available in the MINTEQA2 isotherms 

used in these analyses would not be 

practicable. Instead, the full input and 

output files are available to the public 

in the docket. 

Some commenters suggested that EPA 

should focus on the effect of redox 

potential in the groundwater on fate and 

transport. While this is possible, it 

would take significant effort to set up 

this type of approach for every inorganic 

constituent considered in the risk 

assessment, and it was determined not 

to be necessary. EPA did indirectly 

account for some of the major effects of 

redox potential when modeling arsenic 

and other constituents for which 

speciation is known to have a 

significant impact on mobility. For these 

constituents, a model run was 

conducted for each species under the 

assumption that all of the constituent 

mass was present as that speciation. 

Therefore, EPA did not evaluate redox, 

and acknowledges this is a source of 

uncertainty for the groundwater 

transport modeling approach. 

Commenters expressed concern about 

the assumption of a single speciation, 

noting that it is likely that constituents 

will be present as some combination of 

the different species. EPA acknowledges 

that this approach is a simplification of 

real world conditions; however, the 

Agency believes this approach is useful 

because it provide bounding estimates 

that can inform the risk assessment. 

Regarding the concern that there were 

possible errors in hydrogeological 

assignments, these assignments have 

been updated in the revised risk 

assessment based on a more robust and 

accurate dataset for waste management 

units (WMU) and facility locations. 

These data are discussed in Section 3 

and appendix B of the revised risk 

assessment. Because these assignments 

were based on more complete GIS 

coverages of soils and aquifers across 

the U.S., they are more consistent and 

reliable than the previous ones in 

representing the spatial variability in 

hydrogeologic environments needed by 

the EPACMTP model. 

Selection of Sorbents: 

In recent years, databases of 

equilibrium sorption reactions have 

been compiled in the literature for 

several of the dominant potential 

sorbents in the environment, including 

two common iron oxide minerals: 

hydrous ferrous oxides (HFO) and 


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130 Dzombak, D.A and F.M.M. Morel. 1990. 

Wiley-Interscience, New York, 393 pp. 

131Mathur, Samir S. 1995. Development of a 

Database for Ion Sorption on Goethite using Surface 

Complexation Modeling. Carnegie Mellon 

University, M.S. Thesis, Department of Civil and 

Environmental Engineering. 

132U.S. EPA (Environmental Protection Agency). 

2003. EPA’s Composite Model for Leachate 

Migration with Transformation Products 

(EPACMTP). Technical Background Document. EPA 

53–R–03–002. Office of Solid Waste, Washington, 

DC. 

goethite.130 131 Because of the 

availability of these data and their 

prevalence in the environment, these 

are the sorbent types available for 

MINTEQ2 modeling used to develop 

constituent sorption isotherms. Other 

common hydrous oxides that can sorb 

chemicals include hydrous oxides of 

aluminum, manganese, and silicon 

(Dzombak and Morel, 1990); however, 

there were insufficient data on these to 

consider their use. To determine the 

most appropriate iron oxide sorbent, 

EPA chose goethite as the most 

appropriate form of hydrous iron oxide 

for the risk assessment to avoid an 

underestimation of risk. While both 

goethite and HFO are common forms of 

iron oxide in soils, goethite is a much 

poorer adsorbent than HFO, thereby 

leading to relatively greater groundwater 

plume concentrations. EPA 

acknowledges that HFOs are common as 

well and there is the potential for HFOs 

with greater sorption affinities than 

goethite to be present at some CCR 

disposal sites. In reaching this 

conclusion, EPA consulted experts who 

published on this subject (specifically, 

Dr. David Dzombak, Dr. Samir Mathur 

and Dr. Jerry Allison), developer of 

MINTEQA2. EPA agrees that this was a 

necessary assumption. 

EPA also recognizes that limiting 

MINTEQA2 to two types of sorptive 

materials (iron oxide and organic matter 

[DOM and POM]) is a simplification 

given the wide range or soil and aquifer 

materials that actually adsorb metals 

(e.g., clay and other soil minerals). 

However, given that the extensive 

sorption databases needed to perform 

MINTEQA2 are available for POM, 

DOM, and goethite, they are the best 

representation of subsurface sorption 

processes active in soils and aquifer 

materials. This decision and the actual 

approaches used to model DOM, POM, 

and goethite are described in detail in 

MINTEQA2 background documents and 

the associated Response to Peer Review 

Comments for those documents. 

Finally, with respect to the adequacy 

of sensitivity and uncertainty analyses 

for MINTEQA2, EPA notes that the 2009 

sensitivity analysis showed that only 

results for strongly sorbing constituents 

were sensitive to the Kd values output 

from MINTEQA2. In contrast, the three 

risk drivers identified in the revised risk 

assessment (arsenic, lithium, and 

molybdenum) all tend to be weakly 

sorbing, with the exception of arsenic in 

the pentavalent state. Furthermore, to 

the extent Kd affects the risks, Section 5 

of the revised risk assessment evaluated 

these effects by examining alternate 

speciation (e.g., trivalent and 

pentavalent arsenic) as well as the effect 

of waste type and waste pH. For these 

reasons, EPA finds that sufficient 

sensitivity and uncertainty analyses 

were conducted. 

Kd Values: 

The approach adopted in the risk 

assessment to determine the value of pH 

in the aquifer (used to select Kd) and the 

subsequent calculation of the 

retardation factor assumed that, after 

entering the aquifer, the leachate plume 

would thoroughly mix with the 

ambient, uncontaminated groundwater. 

One commenter stated that the mixing 

zone would only be present at the 

periphery of the groundwater plume. 

This is consistent with the general 

conceptual model used in this risk 

assessment of uniform subsurface flow 

with recharge. However, EPACMTP 

requires a constant groundwater pH in 

each model run to model transport with 

nonlinear sorption isotherms. EPA 

assumed full mixing as a more 

conservative approach to selecting pH 

because, for most metals, sorption/

precipitation tends to increase (i.e., Kd

goes up) with higher pH, which is 

characteristic of much CCR leachate 

(i.e., assuming full mixing lowers the 

groundwater pH and, thus, decreases 

sorption). To characterize the potential 

effect of this simplifying assumption on 

calculated risk results, EPA conducted 

an uncertainty analysis that is presented 

in Section 5 of the revised risk 

assessment. 

EPA considered comparing the 

modeled Kd values to available 

estimates in the published literature, but 

did not do so for three reasons. First, 

there are many individual values within 

each Kd isotherm that depend both on 

constituent concentrations and 

MINTEQA2 master variables, such as 

pH, organic carbon, and iron oxide 

concentrations. Second, measured 

values are limited to specific sites where 

conditions that may not be fully 

documented, and because such 

variables can vary from site to site, it 

can be very difficult to determine 

exactly how well the collected values 

represent conditions across the country. 

Third, field and laboratory methods for 

measuring Kd vary greatly and are not 

easy to compare, adding a significant 

measurement uncertainty to the 

variability issues mentioned above. 

Therefore, not only would this 

comparison be complicated to perform, 

it would also be subject to its own 

numerous uncertainties and unknown 

biases, making it unlikely to provide a 

basis for definitive conclusions about 

the representativeness of the current 

approach. 

With respect to comments on the 

calculation of the retardation factor, 

EPA points commenters to U.S. EPA 

(2003) 132 which discusses how EPA 

uses Kd values to model sorption in the 

subsurface environment. 

Arsenic Speciation: 

Commenters also pointed out that 

literature on arsenic V often shows that 

it is orders of magnitude less soluble 

than arsenic III, which appears 

inconsistent with the results of the 2010 

Draft Risk Assessment. The draft 

assessment found similar exposure 

concentrations for both arsenic species. 

As a result of a combination of different 

updates to the revised risk assessment, 

the modeled concentrations of arsenic 

III and V are now generally an order of 

magnitude different, although the 

specific results vary between pathways. 

One cause of this difference is likely the 

increased distances to receptors in the 

revised risk assessment. The increased 

distance would lead to additional 

arsenic V attenuation because this 

species sorbs more readily (i.e., has 

greater Kd values) than arsenic III. 

Section 5 of the revised risk assessment 

discusses the uncertainty associated 

with modeling both species of arsenic. 

For the specific concentrations at 

various distances, EPA directs the 

commenter to review the input and 

output files available in the docket. 

EPA did not model the time to first 

exceedance of risk criteria, but did 

conduct a sensitivity analysis for the 

time to peak groundwater concentration. 

The time to peak results for arsenic 

species and other select constituents are 

presented in Section 5 of the revised 

risk assessment. The distance to nearest 

well receptors is also discussed in 

Section 5 of the revised risk assessment. 

The relation of distance versus 

concentration was not explicitly 

evaluated on a per simulation basis, 

rather all receptor well locations within 

one mile from the WMU footprint were 

included in the analysis to provide a 

conservative risk estimate. 

EPACMTP Assumptions and 

Simplifications: 

Comments on the treatment of 

dispersivity within EPACMTP 

highlighted the need for greater 

transparency about the model’s 


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133U.S. EPA. 2003. EPA’s Composite Model for 

Leachate Migration with Transformation Products 

(EPACMTP): Parameters/Data Background 

Document. EPA 530–R–03–003. Office of Solid 

Waste, Washington, DC. April. 

134U.S. EPA. 2003. EPACMTP Technical 

Background Document. Office of Solid Waste, 

Washington, DC. 

135U.S. EPA (Environmental Protection Agency). 

2003a. EPA’s Composite Model for Leachate 

Migration with Transformation Products 

(EPACMTP). Technical Background Document. EPA 

53–R–03–002. Office of Solid Waste, Washington, 

DC. 

underlying assumptions and input data 

sources. The documentation for the 

2010 Draft Risk Assessment did not 

include comprehensive tables detailing 

model input parameters, their values or 

distributional characteristics, and the 

sources of the data used. These values 

are, in many cases, publicly available in 

the EPACMTP Background and 

Parameters/Data Background 

documents.133 134 EPA still finds it 

inappropriate to duplicate this large 

amount of data. Instead, the revised risk 

assessment includes an increase in the 

number of references to these 

documents, and directs readers to refer 

to these documents for further 

information. Additionally, the full input 

and output files are available to the 

public in the docket. 

With respect to the fundamental 

questions raised about the assumptions 

and simplifications built into 

EPACMTP, EPA acknowledges some 

limitations within the model. Some 

simplifications are necessary to 

complete a large, national scale risk 

assessment, and the model provides the 

most appropriate available tool to 

complete this type of analysis. As 

discussed in Section 5 of the revised 

risk assessment, EPACMTP has been 

thoroughly peer reviewed and tested for 

application in large-scale risk 

assessments. This section also provides 

additional documentation on these 

internal and external reviews of the 

model, its limitations, and the 

associated uncertainties. With respect to 

particular criticisms levied: 

• EPA alters the chemistry of the 

aquifer receiving leachate by changing 

the aquifer pH in response to full 

mixing. Alternatively, EPA conducts an 

analysis in Section 5 using the alternate 

assumption of partial mixing; 

• EPA evaluates alternative species in 

separate model runs. As described in 

the revised risk assessment, EPA 

believes that presentation of these two 

results bound the range of possible risks 

from a constituent. To the extent that 

EPA does not model oxidationreduction potential, EPA notes that this 

would require geochemical modeling, 

which was not feasible for the reasons 

discussed above; 

• Full mixing of the leachate plume 

did not demonstrate significant 

potential to affect aquifer pH. Thus, 

since pH is one of the most significant 

factors affecting constituent 

mobilization EPA does not believe 

significant constituent mass from the 

underlying soils will be mobilized in 

most cases. Instead, it is a site-specific 

consideration that is not possible to 

include in a nationwide risk assessment. 

• A discussion of sorbent competition 

as a limitation of the analysis is 

discussed in Attachment H–1 of 

appendix H in the revised risk 

assessment. 

• EPA did not consider groundwater 

mounding, groundwater in contact with 

the waste management unit, fractured 

rock, karst, and other complex 

hydrogeologic settings as these are sitespecific considerations that could not be 

accommodated in a nationwide risk 

assessment. 

COMMENT: Several commenters 

discuss the use of site-specific analysis 

to increase confidence in the risk 

assessment results. They expressed 

concern that the results are difficult to 

evaluate given the significant variability 

and uncertainty associated with the 

national scope of the analysis, and that 

validation or calibration of EPACMTP 

results with actual data is needed, 

including the potential use of damage 

cases. 

EPA RESPONSE: Commenters 

expressed concern about validation of 

the EPACMTP model with actual field 

data and some commenters suggested 

that EPA should use actual monitoring 

data rather than modeling to assess 

potential risks. EPA recognizes the 

importance of monitoring data in 

characterizing specific sites. EPA agrees 

with the commenters that confidence in 

the results of an environmental fate and 

transport model increase significantly 

when model predictions can be 

compared favorably with measured field 

results. However, site-specific modeling 

involves extensive data collection and 

detailed modeling (representing sitespecific conditions and processes), 

which was not possible for this large, 

national-scale risk assessment. 

Available site-specific data are limited 

to a relatively small fraction of locations 

and settings. This risk assessment was 

intended to represent a broad range of 

potential conditions. Consequently, EPA 

validated the model results with actual 

field data by comparing the results of 

the national probabilistic, Monte Carlo 

analysis to proven/potential damage 

cases from across the United States. 

These damage cases represent realworld instances of contamination from 

CCR WMUs that provide the best 

available comparison for the results of 

the risk assessment. This comparison is 

presented in Section 5 of the revised 

risk assessment. EPA also provided 

extensive EPACMTP validation results 

relative to theoretical models and field 

data in appendix D of the EPACMTP 

technical background document (U.S. 

EPA, 2003a,b).135

COMMENT: Comments relating to the 

number of wells contaminated, the 

realistic risk of exposure, well 

placement within the plume, distance to 

receptor wells, identification of surface 

water receptors, surface water 

interception modeling, the 

appropriateness of receiving water 

reaches (e.g. the nearest surface water 

body), and other receptor or well-related 

issues were received from public 

commenters. 

Surface Water Interception Modeling: 

Regarding surface water interception, 

many comments were supportive of 

EPA’s approach for simulating the 

interception of groundwater by surface 

water bodies, which has been added to 

the revised risk assessment. However, 

some commenters indicated that a 

meaningful allocation of the 

groundwater plume between a surface 

water body and a downgradient well 

receptor can only be determined reliably 

with assessment of the system at a local 

scale. 

Commenters also raised questions 

regarding the specific surface water 

interception methodology, including the 

base data and algorithms used to 

calculate stream base flow, net 

groundwater flow, and the contaminant 

mass loss to groundwater. Concern was 

expressed about the large range of 

possible values used for Monte Carlo 

sampling without calibrating models to 

site specific conditions and the 

potential to mismatch parameters. 

Additionally, concerns were raised that 

the assessment assumed transport 

directly to the nearest water body 

without reflecting complexities that are 

often present and could lead to longer 

transport pathways or to pathways to 

water bodies other than the nearest. 

Commenters noted that the vicinity of 

many WMUs is serviced by a municipal 

water supply, and; therefore, there 

would be no drinking water receptors 

associated with these WMUs. Comments 

were also received that the one mile 

distance considered by the transport 

model is not sufficient, because actual 

receptor wells in many cases are further 

than one mile from facilities. Comments 

also highlighted the possibility that 

modeled receptor well concentrations 

may incorrectly represent actual 


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136Available online at: water.usgs.gov/GIS/

metadata/usgswrd/XML/nhd_recharge.xml. 

137U.S. EPA (Environmental Protection Agency). 

2003a. EPA’s Composite Model for Leachate 

Migration with Transformation Products 

(EPACMTP). Technical Background Document. EPA 

53–R–03–002. Office of Solid Waste, Washington, 

DC. 

exposures by sampling from a single 

aquifer depth. Comments on 

dispersivity noted the need for greater 

transparency in the report. 

Placement of Receptor Wells, 

EPACMTP Well Inputs and 

Assumptions: 

Comments related to the risk 

assessment’s use of water well distances 

from MSWLFs and the Agency’s belief 

that these distances would be protective 

for CCR WMUs. Additional comments 

focused on the assumption that the 

wells used in this assessment are 

contaminated (i.e., located within the 

plume), even if the well location used 

reflects a deeper well that may be 

screened in an uncontaminated aquifer; 

the manner in which the assessment 

handles uncontaminated wells, plume 

characteristics, groundwater-surface 

water interactions, vertical contaminant 

concentration across a screened interval 

in an aquifer; and the values used for 

plume dispersivity. 

EPA RESPONSE: The following is 

EPA’s response broken out by subtopic. 

Surface Water Interception Modeling: 

In cases where receptor wells are 

located downgradient from a surface 

water body that intersects the 

groundwater table, some or all of the 

groundwater, along with the mass of 

constituents contained therein, is 

intercepted by the water body before it 

can reach the well. This interception 

was not modelled in the 2010 Draft Risk 

Assessment. However, a review of the 

input database for the 2010 Draft Risk 

Assessment found that such a water 

body was present in approximately twothirds of the Monte Carlo runs. 

Furthermore, ignoring the loss of 

constituent mass had the effect of 

overestimating exposures. Thus, in the 

revised risk assessment an EPACMTP 

model post-processor was created to 

account for surface water interception 

by removing constituent mass flowing 

into the water body from the 

groundwater plume, and leaving only 

the remaining groundwater available to 

migrate to a drinking water receptor. 

The approach used to account for 

interception is discussed in further 

detail in Section 4 and appendix J of the 

revised risk assessment. 

While commenters were generally 

supportive of the proposed approach, 

some indicated that a meaningful 

allocation of constituent mass from 

groundwater into a surface water body 

required site-specific data. Concerns 

were raised about the assumption that 

transport occurred directly to the 

nearest water body without reflecting 

complexities that are often present and 

could lead to longer transport pathways 

or to pathways to water bodies other 

than the nearest. EPA acknowledges that 

local conditions can make groundwater 

flow conditions complex, and detailed, 

local-scale assessments would be 

required to describe these conditions 

accurately. While EPA agrees that localscale conditions must be considered for 

precise estimation for specific systems, 

it was impractical for EPA to 

characterize, simulate, and calibrate 

models for the numerous locations 

across the nation. Discussion of the 

uncertainties associated with this 

approach has been added to Section 5 

of the revised risk assessment. 

Several questions about the surface 

water interception methodology were 

raised by the public. The qBaseflow 

input parameter was derived from the 

NHDplus mean recharge parameter 

(MEAN_RCHRG) 136 and the size of the 

water body catchment and reach (see 

appendix B of the revised risk 

assessment). The approach assumes that 

all streams intersect the shallow aquifer 

and that all streams either gain water 

from the aquifer or do not interact with 

the aquifer at all (for simplicity and 

conservatism). As the commenter 

indicates, qNetflow is a key result 

calculated by subtracting the stream 

baseflow from the average groundwater 

flow upgradient of the stream. The 

qNetflow value becomes the adjusted 

groundwater flow beyond the stream, 

reflecting groundwater losses to the 

stream. One commenter raised a specific 

question about how the methodology 

handles cases where qNetflow is less 

than zero, but greater than the average 

groundwater flow. This case does not 

occur with the methodology adopted by 

EPA, because qNetflow is always equal 

to or less than the average groundwater 

flow (i.e. streams are assumed not to be 

losing). If qNetflow is negative (i.e., a 

losing stream), all of the groundwater is 

assumed to migrate to any wells on the 

opposite side of the stream. 

Model Validation/Calibration: 

Concern was expressed about the 

large range of possible values used in 

the probabilistic analysis for certain 

parameters and the potential for this to 

result in a mismatch of input parameters 

without proper site-specific calibration. 

EPA notes that the revised risk 

assessment is not intended to capture 

the exact risks at each disposal site. 

Instead, the revised assessment 

combines the best resolution of sitebased, regional and national data 

available to provide an estimate of 

potential risks that may occur from 

current disposal practices. While the 

assigned data for any given model 

iteration may not reflect the exact 

conditions at a real-world site, the 

resulting sum of all model iterations 

reflect the range of potential conditions 

near each WMU, weighted by 

prevalence, across the conterminous 

United States. 

Placement of Receptor Wells, 

EPACMTP Well Inputs and 

Assumptions: 

Comments regarding placement of 

receptor wells in the probabilistic 

analysis (also known as the 

appropriateness of receiving water 

reaches) are the result of a fundamental 

misinterpretation regarding the 

constraints placed on groundwater 

receptor location to be, as described in 

the 2010 Draft Risk Assessment, ‘‘within 

the contaminant plume.’’ This 

constraint is more fully explained in 

Section 4.4.3.6 of the EPACMTP 

technical background document.137 A 

citation referring readers to that 

document has been placed in Section 4 

of the revised risk assessment. Because 

the comment resulted from a 

misunderstanding, EPA does not believe 

the sensitivity analysis suggested by the 

commenter is necessary. 

Some commenters were concerned 

that many residents in the vicinity of 

some WMUs may be serviced by a 

municipal water supply. Because these 

residents would not be exposed to 

groundwater, the risk assessment could 

overestimate exposures. EPA 

acknowledges that there may be a large 

percentage of the population that does 

not rely on groundwater as a source of 

potable water; however, the aim of the 

risk assessment is to estimate the 

magnitude of potential risk to the 

exposed population. Thus, this does not 

represent a significant source of 

uncertainty in the risk assessment. 

Comments were also received that the 

one-mile distance considered by the 

transport model is not sufficient, 

because actual receptor wells in many 

cases are further distant than one mile 

from facilities. EPA conducted a 

sensitivity analysis, discussed in 

Section 5 of the revised risk assessment, 

which indicates that risks beyond the 

one-mile distance are appreciably lower 

than risks within one mile. Given that 

the highly exposed population was 

adequately captured by a one-mile 

radius, the significant additional effort 

required to extend the analysis further 

downgradient was unjustified. 


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138Bhaduri, B., E. Bright, P. Coleman, and M. 

Urban. 2007. LandScan USA: A high resolution 

geospatial and temporal modeling approach for 

population distribution and dynamics. GeoJournal 

69:103–117. 

139U.S. EPA. 2013. Environmental Assessment 

for the Proposed Effluent Limitation Guidelines and 

Standards for the Steam Electric Power Generating 

Point Source Category. EPA–821–R–13–003. Office 

of Water. Washington, DC. 20460. April. 

140U.S. EPA. 2006. Characterization of MercuryEnriched Coal Combustion Residues from Electric 

Utilities Using Enhanced Sorbents for Mercury 

Control. EPA–600/R–06/008. Prepared by F. 

Sanchez, R. Keeney, D. Kosson, and R. DeLapp for 

the U.S. Environmental Protection Agency, Air 

Pollution Prevention and Control Division. 

February. 

141U.S. EPA. 2008. Characterization of Coal 

Combustion Residues from Electric Utilities Using 

Wet Scrubbers for Multi-Pollutant Control. EPA/

600/R–08/077. Prepared by F. Sanchez, D. Kosson, 

R. Keeney, R. DeLapp, L. Turner, and P. Kariher for 

the U.S. Environmental Protection Agency, Air 

Pollution Prevention and Control Division. July. 

142U.S. EPA. 2009. Characterization of Coal 

Combustion Residues from Electric Utilities— 

Leaching and Characterization Data. EPA–600/R– 

09/151. Office of Research and Development, 

National Risk Management Research Laboratory, 

Research Triangle Park, NC. December. 

143Methods SR02 and SR03 are predecessor 

methods to SW–846 Methods 1313 and 1316. 

144U.S. EPA. 2014. Leaching Test Relationships, 

Laboratory-to-Field Comparisons and 

Recommendations for Leaching Evaluation using 

the Leaching Environmental Assessment 

Framework (LEAF). EPA–600/R–14/061. EPA Office 

of Research and Development, National Risk 

Management Research Laboratory, Research 

Triangle Park, NC 27711. November. 

With respect to comments related to 

the placement of wells within deeper 

aquifers, EPA has a policy of addressing 

uncertainty by erring in favor of the 

protection of human health and 

environmental quality. Consistent with 

this practice, wells screened within 

vulnerable, surficial aquifers (i.e., the 

top 10 meters of the saturated zone) 

continue to be the primary focus of the 

Agency’s national-scale modeling 

efforts. Comments also highlighted the 

possibility that modeled receptor well 

concentrations may incorrectly 

represent actual exposures by sampling 

from a single aquifer depth. Wells are 

typically screened across an extended 

depth, and may capture both 

contaminated and pristine groundwater. 

Due to the constraints of EPACMTP, 

EPA maintained the current approach of 

modeling exposures at a single depth. A 

discussion of the uncertainties 

associated with this approach has been 

added to Section 5 of the revised risk 

assessment. 

In response to comments on the use 

of MSW landfill data to predict the 

distance to private wells, EPA did not 

use the MSW data in the revised risk 

assessment. Instead, EPA used synthetic 

population representations of U.S. 

Census data to place each household 

and its occupants at discrete points 

across the landscape surrounding CCR 

WMUs. Synthetic populations are 

realistic representations of households 

and individual residents and their 

attributes in a given census area, and are 

based on methods that identify realistic 

locations within each block by using 

LandScan 90-meter night-time 

population distributions to place each 

household across the landscape.138

From these households, a distribution of 

the distances to the nearest well was 

created. This approach is discussed in 

more detail in appendix B of the revised 

risk assessment. Some commenters 

suggested that EPA develop site-specific 

estimates of actual populations around 

facilities rather than relying on 

synthetic populations to determine 

potential receptor locations. The 

synthetic approach provides the 

maximum spatial resolution possible for 

publically available population data 

from the U.S. Census. More site-specific 

estimates would be costly, but not 

necessarily more accurate. 

Some commenters were also 

concerned that the assessment did not 

consider direct discharges from surface 

impoundments to surface water. This 

pathway was outside the scope of the 

assessment, because it is regulated by 

the NPDES program. However, this 

pathway was evaluated in 

Environmental Assessment for the 

Proposed Effluent Limitation Guidelines 

and Standards for the Steam Electric 

Power Generating Point Source 

Category,139 which will be revised in 

support of final effluent limitation 

guidelines due to be released in 

September of 2015. 

2. Comments Related to Source 

Modeling 

COMMENT: The majority of the 

public commentary in this subcategory 

was dominated by the assertion that 

Toxicity Characteristic Leaching 

Procedure (TCLP), Synthetic 

Precipitation Leaching Procedure 

(SPLP) and other laboratory leachate test 

data are not applicable to CCR wastes. 

Comments specifically regarding the use 

of Leaching Environmental Assessment 

Framework (LEAF) data for modeling 

leaching behavior noted that the data 

should be applied appropriately and 

pointed out the following: (1) That the 

range of conditions (i.e., range of pH) 

encompassed by the LEAF data is 

broader than those conditions found in 

the field for CCR disposal; (2) high pH 

limits the mobility of leaching 

constituents; (3) the need for validating 

LEAF leachate concentrations against 

field data if available; and (4) the 

reliability of the LEAF data is 

questionable as a result of 

inconsistencies identified in the 

LeachXS LiteTM database. 

EPA RESPONSE: Only pore water and 

impoundment water data were used to 

characterize surface impoundments. 

Therefore, the comments received on 

the use of laboratory leachate data are 

not relevant for the surface 

impoundment scenario. For landfills, 

EPA agrees that TCLP, SPLP and other 

single pH test methods may not be the 

most appropriate leachate extraction 

methods for all waste streams and all 

disposal scenarios. The 2010 Draft Risk 

Assessment relied on a hierarchy of 

dissolved concentration data to 

characterize leaching from landfills, 

ranging in order of preference from field 

leachate data to TCLP. However, new 

data collected using the LEAF test 

methods have been made available 

through a series of EPA reports.140 141 142

LEAF were collected with three LEAF 

methods, specifically: 

D SW–846 Method 1313 (and its 

predecessor, Method SR02); 

D SW–846 Method 1314; and 

D SW–846 Method 1316 (and its 

predecessor, Method SR03).143

With the availability of the LEAF 

data, EPA no longer relied on other data 

sources to model landfills because the 

inability to identify trends in leaching 

behavior from single pH tests made it 

impossible to link these data together 

with the LEAF data in the probabilistic 

analysis. The LEAF data provide 

information on the leaching behavior of 

CCR for a range of pH values observed 

in CCR landfills, as well as the liquidto-solid ratio of the pore water. The data 

from these three methods were used in 

conjunction to characterize landfill 

leaching. While the natural pH range for 

any individual sample may be narrower 

than the full range analyzed with the 

LEAF methods, many facilities burn a 

range of coal types under varying 

operating conditions, and co-dispose 

with other materials, so the range of pH 

for a specific CCR sample may be 

exposed to is wider than the pH 

estimated based on one sample alone. 

EPA agrees that appropriate use of the 

data is needed to ensure that data 

represent likely conditions of leaching 

occurring at range of facilities 

nationwide taking into account local 

specific environmental conditions, the 

geometry of monofill, type of coal, air 

pollution control, and other factors that 

affect leaching. Since the NODAs were 

released, a report comparing leachate 

from field and laboratory analyses has 

been completed.144 The report includes 

the use of geochemical speciation 

modeling as needed to reflect siteVerDate Sep<11>2014 19:48 Apr 16, 2015 Jkt 235001 PO 00000 Frm 00138 Fmt 4701 Sfmt 4700 E:\FR\FM\17APR2.SGM 17APR2

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145U.S. EPA. 2012. Interlaboratory Validation of 

the Leaching Environmental Assessment 

Framework (LEAF) Method 1314 and Method 1315. 

EPA/600/R–12/624. Prepared by A.C. Garrabrants, 

D.S. Kosson, R. DeLapp, P. Kariher, P.F.A.B. 

Seignette, H.A. van der Sloot, L. Stefanski, and M. 

Baldwin for the U.S. EPA Office of Research and 

Development, Air Pollution Control Division. 

September. 

146U.S. EPA. 2012b. Interlaboratory Validation of 

the Leaching Environmental Assessment 

Framework (LEAF) Method 1313 and Method 1316. 

EPA/600/R–12/623. Prepared by A.C. Garrabrants, 

D.S. Kosson, L. Sefanski, R. DeLapp, P.F.A.B. 

Seignette, H.A. van der Sloot, P. Kariher, and M. 

Baldwin for the U.S. EPA Office of Research and 

Development, Air Pollution Control Division. 

September. 

147 Kosson, D.S., H.A. van der Sloot, F. Sanchez 

and A.C. Garrabrants. 2002. An integrated 

framework for evaluating leaching in waste 

management and utilization of secondary materials. 

Environmental Engineering Science 19(3):159–204. 

148U.S. EPA. 2009. Characterization of Coal 

Combustion Residues from Electric Utilities— 

Leaching and Characterization Data. EPA–600/R– 

09/151. Office of Research and Development, 

National Risk Management Research Laboratory, 

Research Triangle Park, NC. December. 

specific factors affecting leaching, and 

shows that LEAF methods provide 

realistic predictions of environmental 

releases across the range of pH. 

All three LEAF methods are 

summarized in appendix C, with the 

leachate data provided in Attachment 

C–5 of the revised risk assessment. 

Additionally, the inter-laboratory 

validation for these methods are 

described in U.S. EPA (2012a, b) 145 146

while Kosson et al. (2002) 147 provides 

the detailed test methodology for the 

predecessor methods, SR02 and SR03. 

The noted discrepancies and 

classification errors within LeachXS 

Lite have been corrected. 

COMMENT: Public comments 

focused on the general relevance of the 

facility data based on age and noted that 

newer data should be used to more 

accurately reflect the current state of 

CCR management. Related comments 

cited that the grouping of waste and 

liner types by facility is not 

representative of current conditions. 

Another commenter suggested that the 

outcomes for different liner types were 

not comparable and should not be used 

to make relative conclusions about liner 

performance. It was also suggested that 

the assumed three-foot clay layer 

underlying composite liners is too thick, 

and two feet would be more 

representative of current practice. 

Commenters also described existing 

management controls required in some 

geographical locations that mitigate 

potential risks (e.g., liners, leachate 

collection) and requested that EPA 

reflect the existence of those controls in 

their analysis, as well as 

mismanagement scenarios when these 

controls are not in place. 

EPA RESPONSE: Since the purpose of 

the risk assessment was to evaluate risks 

for the universe of currently operating 

facilities and WMUs, EPA generally 

agrees with the commenter that the 1995 

EPRI and 2006 DOE survey data relied 

on in the 2010 Draft Risk Assessment 

may be outdated. Thus, EPA collected 

data from several new sources of 

information on the facilities, WMUs, 

and liners that are present at the time of 

this analysis. Further discussion of 

these data sources is available in 

Section 2 and appendix A of the revised 

risk assessment. 

Regarding the inclusion of 

mismanagement scenarios, EPA 

reviewed the high-end pore water 

concentrations and determined that 

these data represent actual CCR samples 

and therefore represent possible highend risks from current management 

practices. To better understand which 

practices may lead to the highest risks, 

EPA conducted sensitivity analyses that 

consider the influence of liner type, 

liner design, waste type and other 

variables on model results. The results 

of these analyses are presented in 

Section 5 of the revised risk assessment. 

Several commenters described 

existing management controls required 

in some geographical locations that 

mitigate potential risks (e.g., liners, 

leachate collection) and requested that 

EPA reflect the existence of those 

controls in the final risk analysis. The 

Agency’s analysis reflects the presence 

of different management scenarios at 

WMUs to the extent the available data 

allowed (e.g., WMUs were assumed to 

have liners if the information indicated 

such). A key objective of the analysis 

was to compare the effectiveness of 

management options (e.g., liners; 

surface impoundments versus landfills) 

at preventing potential releases and 

exposures. Because the population of 

WMUs considered in the analysis 

included a range of management 

controls, the analysis does provide such 

comparative results between 

management options. The uncertainties 

associated with the updated facility, 

WMU and liner data are discussed in 

Section 5 of the revised risk assessment. 

COMMENT: One commenter 

suggested that the risk assessment 

applied risk results for fly ash to bottom 

ash, FGD sludge, and other CCR wastes, 

which may result in an incorrect 

estimate of risks for these other wastes. 

Other commenters called for EPA to 

evaluate each CCR waste independently. 

A public commenter expressed concern 

about whether the risk assessment 

adequately considered alternative CCR 

disposal scenarios. Specifically, it was 

noted that CCR codisposed with coal 

refuse generate more acidic conditions 

(i.e., lower pH) due to higher-levels of 

sulfide minerals, which may 

significantly impact the mobility of 

metals. 

EPA RESPONSE: In the revised risk 

assessment, EPA modeled a combined 

ash waste types for the majority of 

surface impoundments and all landfills. 

Although commenters are correct that 

different CCR wastes may behave 

differently when monofilled, the 2009/ 

2010 EPA survey data indicates that the 

CCR are codiposed in a majority of 

units. Thus, EPA believes this approach 

appropriately reflects current disposal 

practices. 

With regard to the evaluation of CCR 

codisposed with coal refuse, EPA notes 

that the pore water data used to 

characterize surface impoundments 

were broken out separately for this 

waste type evaluation. These data reflect 

samples collected in the field and are 

representative of the pH at which these 

samples are managed. While some ash 

and coal refuse samples are highly 

acidic, others are more neutral or 

slightly basic (full pH range of 1.7 to 

8.2). The development and application 

of these waste types is discussed in 

Section 3, Section 4 and appendix H of 

the revised risk assessment, while the 

associated uncertainties are discussed in 

Section 5. For landfills, waste pH, 

which is the major driver of variations 

in Kd values used to distinguish waste 

types, was known with great accuracy 

for CCR nationwide because U.S. EPA 

(2009a) 148 compiled a full, nationwide 

distribution of CCR pH. In this 

distribution, disposal of ash with coal 

refuse is reflected is the acidic tail of the 

distribution. For the national 

probabilistic analysis, EPA aggregated 

model runs for ash and coal refuse 

(surface impoundments) and acidic 

waste (landfills) with other wastes so 

that risks reflected the prevalence of 

these disposal practices. However, EPA 

also performed sensitivity analyses to 

understand the extent that the lower pH 

of co-managed wastes could affect risks, 

which is discussed in Section 5 of the 

revised risk assessment. 

COMMENT: Commenters stated that 

it is unclear why EPA chose to 

approximate infiltration through 

composite liner systems based on leak 

detection system flow rates from 

industrial landfills that use a different 

construction design than projected for 

CCR landfills. 

EPA RESPONSE: The composite liner 

leakage rates used for this risk 

assessment correspond to leakage rates 

developed for the peer-reviewed 

Industrial Waste Management 


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21440 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

149U.S. EPA. 2002. Industrial Waste Management 

Evaluation Model (IWEM) Technical Background 

Document. EPA530–R–02–012. Office of Solid 

Waste, Washington, DC. August. 

150U.S. EPA. 2003. EPA’s Composite Model for 

Leachate Migration with Transformation Products 

(EPACMTP): Parameters/Data Background 

Document. EPA 530–R–03–003. Office of Solid 

Waste, Washington, DC. April. 

Evaluation Model (IWEM).149 The types 

of synthetic liners used are likely to be 

the same, regardless of the type of waste 

present. EPA is unaware of any factors 

specific to CCR that would exacerbate 

leakage rates, nor did the commenter 

provide any. Thus, in the absence of any 

information to the contrary, EPA finds 

these to be the best available data. 

Because there is currently no 

approach for differentiating between 

flow from unimpacted water released by 

the consolidation of clay and from 

contaminated leakage through the liner, 

EPA excluded data on the subset of 

composite liners constructed with 

natural clay from the distribution of 

composite liner leakage rates. EPA did 

consider the potential impact of 

incorporating these additional data into 

the risk assessment as part of sensitivity 

analysis, presented in Section 5 of the 

revised risk assessment. 

COMMENT: Concerning the treatment 

of non-detect values in the risk 

assessment, one commenter recognized 

that the use of one half the detection 

limit in calculations has become an 

accepted protocol. However, it was 

suggested that this approach may not be 

appropriate in all cases, and that newer 

or more straightforward methods can be 

applied to improve precision and 

minimize biasing of the dataset. Another 

commenter noted that mercury was 

excluded from the analysis due to the 

high number of non-detects. 

EPA RESPONSE: Additional 

constituent data measured with lower 

detection limits have been made 

available to EPA since completion of the 

2010 Draft Risk Assessment. However, 

the overall CCR constituent database 

still contains a large number of nondetect data for some constituents. EPA 

continues to incorporate all available 

with the use half the reported detection 

limit as the most appropriate method to 

account for these non-detects. The 

commenter is correct that much of the 

pre-2010 mercury data has high 

detection limits and a large proportion 

of non-detects. In this one instance, EPA 

relied only on the newer data made 

available to the Agency since the 2010 

Risk Assessment, which was collected 

through newer methods with 

significantly lower detection limits. A 

more detailed rationale for this 

approach is provided in Section 3 of the 

revised risk assessment, along with 

further discussion of the uncertainty in 

Section 5. 

COMMENT: Comments received 

related to the effect of waste compaction 

in landfills focused on changes to 

hydrologic properties of waste 

materials, such as porosity and 

hydraulic conductivity. These changes 

may result from compaction, 

consolidation, hydration or geochemical 

changes, and have the potential to result 

in either an underestimation or 

overestimation of risks. 

EPA RESPONSE: EPA acknowledges 

that the landfill source model does not 

consider the compaction of CCR waste 

that may occur over time as a result of 

anthropogenic activities, gravity or 

infiltrating water. However, no data on 

either the rate or degree to which these 

processes may occur were provided by 

commenters or identified elsewhere. 

EPA considered the impacts of this 

uncertainty in Section 5 of the revised 

risk assessment. 

COMMENT: Public comments 

focused on assumptions relating to the 

variability of unlined landfill design, 

landfill clay liner materials, and 

construction of landfill cover materials 

and construction. Specific comments 

emphasized that the clay liner and cover 

thickness assumptions (three feet) were 

too conservative and not conservative 

enough, respectively. Commenters also 

questioned why composite covers and 

leachate collection systems were not 

considered for clay-lined landfills. 

Additionally, commenters stated that 

there was a high degree of variability in 

the material and design and 

construction for unlined landfills that 

was not accounted for in the HELP 

modeling. One commenter also pointed 

out that the assessment may 

overestimate percolation rates from 

landfills by underestimating the use of 

engineering controls. In addition, a 

commenter stated that the assessment 

assumes that States will require liners in 

all cases which may not be the case, 

thereby weakening the regulation. 

EPA RESPONSE: For both unlined 

and clay-lined landfills, EPA used 

Hydrologic Evaluation of Landfill 

Performance (HELP) model-derived 

infiltration rates. These infiltration rates 

assume that the cap placed on top of the 

landfill at the end of its useful life will 

remain intact for the duration of the risk 

assessment, up to a maximum 10,000 

years of modeling. A commenter 

pointed out that hydraulic conductivity 

of a clay liner is likely to increase by 

orders of magnitude due to desiccation 

resulting from natural temperature 

cycles. Additionally, commenters stated 

that there was a high degree of 

variability in the material and design 

and construction for unlined landfills 

that was not accounted for in the HELP 

modeling. EPA has adopted the use of 

the HELP model, which was subject to 

both peer and administrative review, as 

the source of unlined and clay-lined 

infiltration rates for landfill for nearly 

two decades. EPA acknowledges that 

there are limitations in using HELP. 

However, the model has been tested and 

verified as discussed in the EPACMTP 

Parameter/Data Background 

Document.150 To the extent that the 

performance of the cap will decrease 

over time, EPA acknowledges that 

unlined and clay-lined infiltration rates 

calculated by HELP may be 

underestimated, however the degree of 

that underestimate is unknown. 

Discussion of this uncertainty has been 

added to Section 5 of the revised risk 

assessment. 

COMMENT: One commenter 

expressed concern over the fact that the 

assessment modeled all disposal sites 

above the water table. The commenter 

indicated that many surface 

impoundments and landfills are deep 

and can come in direct contact with the 

water table. This will result in an 

underestimation of peak concentrations, 

arrival times and risks for these WMUs. 

Furthermore, the commenter 

emphasized that the use of the 

unsaturated zone flow module to 

calculate infiltration from the bottom of 

impoundments underestimates true 

risks in the consolidated sediment, and 

noted that clogged soil layers should be 

treated as saturated rather than 

unsaturated. 

EPA RESPONSE: EPA acknowledges 

that EPACMTP is not designed to 

handle scenarios where the water table 

is above the bottom of the landfill. 

However, EPACMTP can accommodate 

surface impoundments in direct contact 

with the water table. If unit geometry 

and the selected depth to the water table 

create a scenario where the bottom of 

the unit is in contact with the water 

table, then the entire soil column is 

considered saturated. Otherwise, even 

for very high infiltration rates, regions 

beneath impoundments will remain 

partially saturated when there is 

sufficient distance between the unit and 

the water table. EPA has added a 

discussion of the uncertainties 

associated with WMU source terms and 

EPACMTP in Section 5 of the revised 

risk assessment. 

EPA believes the commenter 

misunderstood how the sediments were 

modeled for surface impoundments. 

The EPACMTP unsaturated zone 


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151U.S. EPA. 2006. Characterization of MercuryEnriched Coal Combustion Residues from Electric 

Utilities Using Enhanced Sorbents for Mercury 

Control. EPA–600/R–06/008. Prepared by F. 

Sanchez, R. Keeney, D. Kosson, and R. DeLapp for 

the U.S. Environmental Protection Agency, Air 

Pollution Prevention and Control Division. 

February. 

152U.S. EPA. 2008. Characterization of Coal 

Combustion Residues from Electric Utilities Using 

Wet Scrubbers for Multi-Pollutant Control. EPA/

600/R–08/077. Prepared by F. Sanchez, D. Kosson, 

R. Keeney, R. DeLapp, L. Turner, and P. Kariher for 

the U.S. Environmental Protection Agency, Air 

Pollution Prevention and Control Division. July. 

153U.S. EPA. 2009. Characterization of Coal 

Combustion Residues from Electric Utilities— 

Leaching and Characterization Data. EPA–600/R– 

09/151. Office of Research and Development, 

National Risk Management Research Laboratory, 

Research Triangle Park, NC. December. 

154Thorneloe, S., D. Kosson, F. Sanchez, A. 

Garrabrants, and G. Helms. 2010. Evaluating the 

Fate of Metals in Air Pollution Control Residues 

from Coal-Fired Power Plants. Environ. Sci. 

Technol. 44:7351–7356. 

module assumes that the 0.2 m of 

consolidated sediments at the bottom of 

a surface impoundment are always 

saturated whereas the 0.5 m of clogged 

native soil are assumed to be 

unsaturated when the bottom of the 

surface impoundment is above the water 

table. 

COMMENT: Public commenters 

recommended that EPA address the 

future increase in mercury and NOX

compounds levels in CCR that will 

result from mercury capture from flue 

gas under new emission control 

regulations. Commentary pointed out 

that the recent Vanderbilt study should 

provide data that could be used to 

expand the risk assessment in this area. 

EPA RESPONSE: The risk assessment 

was designed to evaluate the risks 

associated with current management 

practices and, as such, draws no 

conclusions about the potential for 

future air pollution technologies to alter 

the composition or leaching behavior of 

CCR wastes. However, it has been 

shown that newer mercury pollution 

control technologies currently in place 

have the potential to affect leaching 

behavior.151 152 153 Thus, EPA conducted 

a sensitivity analysis to evaluate the 

risks associated with existing units that 

dispose of this waste; however, the data 

were too few to allow EPA to draw 

conclusions about the effect of pollution 

control technologies on the risks. This 

sensitivity analysis is presented in 

Section 5 of the revised risk assessment. 

COMMENT: Multiple public 

commenters noted that additional pore 

water will improve the risk assessment, 

but TCLP and SPLP data are not 

appropriate for use as source 

concentrations. Additionally, 

commenters stated that EPA applies the 

LEAF data to pH conditions that are not 

realistic to CCR disposal scenarios. 

Although LEAF provides a more 

representative and scientifically sound 

approach, it must be correctly adapted. 

Alternative statistical methods to 

represent the input data as a range is 

certainly feasible and could enhance the 

risk assessment if the range of data is 

used as an input to the risk assessment. 

Commenters agree that the LEAF data 

does provide useful information, but 

point out that it is associated with the 

potential for leaching and does not 

represent actual leaching of a specific 

CCR under actual field conditions. 

Commenters argues that field leaching 

data should not be mixed with 

laboratory data, and that EPA’s field 

leachate dataset (for landfills and 

impoundments) is not adequate for use 

in the CCR risk assessment. Specific 

efforts recommended to properly utilize 

the LEAF data include: Use of 

probability density functions for 

leachate concentrations based on pH 

and/or L/S ratios in the Monte Carlo 

process; selection of leachate 

concentrations based on pH and L/S and 

tied to the geographic location of the 

WMU and CCR type; and geochemical 

modeling to incorporate reactions once 

leachate impacts groundwater. 

A few commenters pointed out that 

the pore water data are generally 

representative, although concerns were 

raised about the highest arsenic 

concentration (81 mg/L) in the dataset. 

One commenter believed that although 

the addition of new data is an 

improvement, EPA could greatly 

improve the accuracy of the model’s 

results by removing the extreme and 

unsubstantiated outlier data driving its 

high risk cases. Another commenter 

believed the assumption that 

concentration of contaminants in the 

sediment pores (applicable to a post 

closure scenario) would be equal to the 

concentration assigned to in the 

impoundment water would result in 

underestimated risks. Additionally, 

commenters noted that EPA should 

classify the data according to CCR type 

and coal type. 

Overall, commenters support updates 

to the pore water data and the use of 

statistical method to normalize the data 

curve. However, one commenter noted 

that EPA should not use commentersubmitted CCR pore water data unless it 

meets requisite applicable data quality 

requirements. Another commenter 

stated that EPA needs to provide better 

clarity on these solicited comments (on 

the use of older pore water data) and 

provide these documents in the docket. 

Without these documents, the reader 

does not have a complete understanding 

of co-managed material containing CCR. 

Another comment noted that properly 

collected field pore water (freely 

draining) samples should take priority 

over any of the laboratory generated 

data and freely draining pore water is 

more representative of leachate releases 

than tightly held pore water. 

EPA RESPONSE: The use of pore 

water data is still considered the most 

appropriate approach to estimate 

constituent fluxes to groundwater for 

CCR surface impoundments. This is 

because pore water better represents the 

leachate seeping from the bottom of the 

impoundment than impoundment water 

samples. EPA did not use available 

LEAF data for surface impoundments 

because a national distribution of pH 

was not available to allow the Agency 

to probabilistically assign LEAF 

concentrations to these units, and 

because there was no way to account for 

partitioning of the leachate into 

wastewater versus porewater. Thus, 

EPA has continued to rely on pore water 

data, supplemented with data from the 

2010 comments. EPA appreciates 

commenter support on the use of pore 

water data and statistical methods for 

data analysis for surface impoundments. 

EPA agrees that data available for 

minefill sites may not be representative 

of disposal in surface impoundments. 

Thus, these data were not considered in 

the revised risk assessment. The specific 

handling of pore water concentration 

data with site quartiles, rather than site 

averages, is discussed in Section 4 and 

Section 5 of the revised risk assessment 

report. 

EPA agrees that TCLP and SPLP data 

are less appropriate for CCR disposal 

scenarios and no longer uses these data 

in the revised risk assessment. EPA 

adapted the LEAF methods and data for 

landfills, as this is the best available 

approach and data to represent CCR 

landfill leachates, and does not mix or 

use field data with LEAF laboratory 

results for landfill leachate. The LEAF 

data are considered the most robust and 

technically defensible data available. As 

noted in the 2010 Environmental 

Science and Technology publication,154

the data represents the largest collection 

of comprehensive characteristic 

leaching data to date. 

A commenter noted that the LEAF 

data provide the potential for leaching 

and not actual leaching of a specific 

CCR under actual field conditions. The 

commenter suggests using probability 

distribution of key factors affecting 

leaching behavior [i.e., pH and liquid/

solid ratio (L/S)] and site specific data 

tied to the geographic location of the 

management unit and the type of CCR 

being managed. In the revised risk 

assessment, pH is expressed as a 


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155U.S. EPA. 2009. Characterization of Coal 

Combustion Residues from Electric Utilities— 

Leaching and Characterization Data. EPA–600/R– 

09/151. Office of Research and Development, 

National Risk Management Research Laboratory, 

Research Triangle Park, NC. December. 

national distribution for selecting 

leachate concentrations developed to 

represent CCR nationally, and L/S is 

considered in estimating washout 

leachate concentrations based on field 

data observations. The use of the pH 

distribution developed in U.S. EPA 

(2009) 155 does capture the range of 

potential variability in pH conditions at 

CCR sites nationwide and is the best 

approach possible given the current 

availability of information on sitespecific coal ash chemistry. Although 

leachate concentrations were selected 

considering pH and L/S conditions that 

are nationally representative, EPA does 

not have the detailed and extensive sitespecific measurements that would be 

needed to tie CCR and leachate 

concentrations to specific WMU 

locations. Instead, EPA adopted a 

national probabilistic approach that is 

site-based and representative of risks to 

human and ecological health across the 

country. The revised risk assessment 

also provides details regarding how the 

LEAF data are used in combination of 

geographical specific data such as 

hydrology, precipitation, fill 

configuration, CCR type, pH, L/S ratio, 

and other factors that take the leaching 

potential as an input to fate and 

transport models accounting for 

attenuation and dilution. Additionally, 

an effort was made to collect CCR 

samples that characterize the range and 

quantity of coal usage in the U.S. along 

with likely air pollution control 

configurations. While the data is not 

statistically representative on a sitespecific basis, it is adequate to identify 

trends in leaching behavior that relate to 

differences in materials types, APC 

technology, and coal rank. Geochemical 

speciation modeling was not conducted 

because the source term as measured 

and interpreted is conservative, 

provided that oxidizing conditions 

occur. 

Regarding the number and 

concentration of pore water samples, 

EPA reviewed the high-end pore water 

concentrations and determined that 

these represent actual CCR samples that 

therefore represent possible high-end 

risks if CCR is inadequately regulated 

and managed. EPA recognizes that more 

pore water data would potentially 

improve the representativeness of the 

dataset, but is convinced that the 

current dataset adequately captures the 

possible high end risks that are of most 

interest in the rulemaking, including 

risks from the mismanagement of CCR 

through codisposal with coal refuse. 

The assumption that saturated 

contaminant concentrations in surface 

impoundment sediments are at 

equilibrium with the impoundment 

waters is a conservative assumption that 

is unlikely to significantly 

underestimate risks. This assumption is 

further discussed in Section 5 of the 

revised risk assessment report. 

Regarding commenter-submitted pore 

water data, EPA conducted a review of 

the additional datasets provided by the 

commenters with respect to relevance 

and data quality. Based on the available 

information, EPA determined that the 

selected datasets were relevant and 

acceptable in terms of data quality 

requirements. However, EPA does not 

have sufficient data to distinguish 

between freely draining and tightly 

bound pore water data at this time. 

Overall, EPA agrees that the use of these 

data introduces some uncertainty into 

the analysis, which is discussed in 

Section 5 of the revised risk assessment. 

COMMENT: One commenter 

questioned the assumption that there 

will be no net addition of waste into a 

surface impoundment during and after 

the operational life, noting that 

impoundments are frequently deepened. 

Additionally, many surface 

impoundment wastes are left in place at 

the time of closure, so that the waste 

behaves more as a landfill than a surface 

impoundment (and increasingly, with 

new landfills being constructed on top 

of previous surface impoundments). 

Another commenter questioned why the 

conceptual model assumes that 

impoundments are always full during 

their operating life, which overestimates 

releases to the subsurface. Additionally, 

a commenter noted that the assumption 

of only 0.2 m of sediment accumulation 

underestimates the amount of 

sedimentation and subsequently 

overestimates the amount of percolation 

to the subsurface. The commenter stated 

that in actual operation, ash thickness 

can increase up to 30 feet or more, 

eventually filling the impoundment, 

which results in a significant decrease 

in percolation through the base. 

Furthermore, the commenter questioned 

the assumption that post-closure 

percolation continues at the same rate as 

during active operations. 

EPA RESPONSE: Based on the 2009/ 

2010 EPA surveys, it was assumed that 

the majority of the surface 

impoundments are storage 

impoundments, which are continuously 

dredged. Because these facilities have 

other units (whether onsite or offsite) 

established for disposition, it likely that 

the majority of waste in the dredged 

impoundments would be removed by 

the end of the unit’s operating life. 

Regardless, an uncertainty analysis 

provided in appendix K demonstrates 

that the risks during the operating life 

of surface impoundments are greater 

because the higher hydraulic head 

drives leachate into underlying soils 

with greater force than gravity alone 

post-closure. Therefore, EPA did not 

explicitly model the post-closure phase 

of surface impoundments. The 

uncertainties resulting from this 

decision are discussed in Section 5 of 

the revised risk assessment. 

EPA acknowledges that EPACMTP is 

restricted to modeling flow as steady 

state with the assumption that an 

impoundment always has a fixed depth 

of wastewater. EPA further 

acknowledges that such an assumption 

may overestimate infiltration. The 

surface impoundment conceptual model 

assumes that sediments are periodically 

dredged and removed and that the longterm average thickness of the sediment 

is approximately 0.4 m, with half of that 

layer consolidated. EPA has used 

EPACMTP and its predecessor model 

versions for a longstanding time period 

and it has undergone multiple rounds of 

internal and external review. The 

reviews associated with EPACMTP and 

its limitations are further discussed in 

Section 5 of the revised risk assessment 

report. 

COMMENT: Public commenters 

suggested that risks from operating 

landfills should be considered along 

with those that occur post-closure. 

These commenters questioned whether 

greater risks may occur during site 

operations when wastes are uncovered 

and exposed directly to precipitation. 

Additional commenters noted that 

complete leaching of all constituent 

mass at a constant concentration is 

overly conservative. 

EPA RESPONSE: The landfill source 

model used in this risk assessment is 

not able to address landfills during 

operation because the non-linear 

sorption isotherms used require a 

constant, annualized infiltration rate 

throughout the duration of leaching. 

Instead, the revised risk assessment 

assumed that the full footprint of the 

landfill is filled to capacity with a cap 

no less permeable than the soil or liner 

underlying the WMU is present at the 

start of leaching. EPA acknowledges that 

this approach introduces some 

uncertainty into the analysis, the 

potential impacts of which are 

discussed in Section 5 of the revised 

risk assessment. 

With respect to comments that 

complete leaching of all constituent 

mass is overly conservative, EPA now 


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156U.S. EPA. 2013. Environmental Assessment 

for the Proposed Effluent Limitation Guidelines and 

Standards for the Steam Electric Power Generating 

Point Source Category. EPA–821–R–13–003. Office 

of Water. Washington, DC 20460. April. 

157U.S. EPA. 2010. Inhalation of Fugitive Dust: A 

Screening Assessment of the Risks Posed by Coal 

Combustion Waste Landfills. OSWER. Washington, 

DC. September. 

158U.S. EPA. 2010. Inhalation of Fugitive Dust: A 

Screening Assessment of the Risks Posed by Coal 

Combustion Waste Landfills. OSWER. Washington, 

DC. September. 

159U.S. EPA. 1985. Compilation of Air Pollutant 

Emission Factors. Volume I: Stationary Point and 

Area Sources (Fourth Edition). AP–42. U.S. 

Environmental Protection Agency, Office of Air and 

Radiation and Office of Air Quality Planning and 

Standards, Research Triangle Park, NC. September. 

models landfills using leachable mass as 

discussed in Section 4 and appendix C 

of the revised risk assessment. 

Alternatively, EPA presents a sensitivity 

analysis of these results compared with 

the results generated using total mass in 

Section 5. 

3. Comments Related to Exposure 

Scenarios 

COMMENT: The commenter 

emphasized that the risk assessment 

does not consider direct discharges to 

ground and surface water systems other 

than groundwater infiltration (e.g., 

direct injection to groundwater, point 

and nonpoint discharges to surface 

water systems). It was recommended 

that EPA consider combining 

contributions from these sources with 

CCR groundwater leaching impacts to 

calculate the full load of CCR 

constituents to groundwater and surface 

water systems. The commenter 

continues by suggesting that the use of 

liners in impoundments does not reduce 

overall hazards if direct discharges are 

considered in the risk assessment. 

EPA RESPONSE: RCRA waste 

disposal risk assessments do not address 

direct discharges from impoundments to 

surface waters because they are 

regulated as permitted point source 

discharges under the Clean Water Act 

by EPA’s Office of Water. Since this 

pathway is outside the scope of the risk 

assessment, the revised risk assessment 

does not consider these releases. 

However, this pathway was evaluated in 

the Environmental Assessment for the 

Proposed Effluent Limitation Guidelines 

and Standards for the Steam Electric 

Power Generating Point Source 

Category,156 which will be revised in 

support of final effluent limitation 

guidelines (ELG) due to be released in 

September of 2015. The revised risk 

assessment was updated to note this 

fact. 

EPA is not aware of any CCR disposal 

where waste is directly injected into 

groundwater aquifers, and absent any 

data on this practice declines to 

evaluate it. 

COMMENT: Public comments were 

received on the methodology applied to 

evaluate exposure to fugitive dust 

during landfill operations (before 

closure). The majority of these 

comments focused on the fugitive 

analysis as presented in Inhalation of 

Fugitive Dust: A Screening Assessment 

of the Risks Posed by Coal Combustion 

Waste Landfills,157 and EPA’s proposed 

approach for refining the analysis. 

Comments received on the initial 

fugitive dust analysis methodology and 

modeling ranged from emphasizing that 

the approach was overly conservative in 

some cases to underestimating risk in 

other cases. 

Multiple comments were provided on 

the proposed methodology for refining 

the fugitive dust analysis that was 

applied in the revised risk assessment. 

One commenter recommended that 

2010/2011 EPA survey data should be 

used to refine the fugitive dust analysis 

for landfills. Specifically, the current 

OW data indicate that active portions of 

the landfills are significantly smaller 

than the landfills identified in the 1995 

EPRI survey. Several comments were 

received that pointed out that the 

application of AERSCREEN and 

AERMOD is appropriate if 

representative or realistic inputs are 

used including meteorological data, 

material silt content, source areas for 

subcells of ash management units and 

consideration of common operating and 

control practices, which are in some 

cases defined by the states (e.g., 

Virginia). However, one commenter 

expressed concern that no previous or 

current EPA regulatory model; 

including SCREEN3, AERSCREEN or 

AERMOD; has been rigorously tested 

and evaluated for performance in 

modeling fugitive emissions associated 

with CCR landfills. 

In general, the commenters supported 

or recommended the use of appropriate 

AP–42 factors and other techniques to 

estimate emissions. Others noted that 

consideration of deposition impacts and 

constituent-specific modeling is 

appropriate. One commenter 

recommended that EPA should conduct 

a full-scale assessment that considers 

fugitive dust as well as emissions from 

landfills and emissions of diesel 

particulate matter from haul trucks, onsite heavy-duty landfill equipment, and 

diesel-powered pumps and generators, 

with potential receptors of interest as 

residents and sensitive subpopulations 

living near the power plant, along the 

transportation route and at the landfill. 

Another commenter expressed concern 

over the lack of metal speciation data, 

while another comment concerned gas 

emissions from the landfills (e.g., 

hydrogen sulfide). One final commenter 

voiced concern that insufficient 

information was provided on the 

modeling approach and the model 

inputs to support evaluation and allow 

comments on the overall validity or 

propriety of the suggested modeling. 

EPA RESPONSE: The majority of the 

comments received concerning 

exposures during landfill operation 

(before closure) focused on the 

assessment of fugitive dust. EPA 

acknowledges that the 2010 Draft Risk 

Assessment did not evaluate the 

inhalation pathway, relying instead on 

the findings of a previous evaluation, 

Inhalation of Fugitive Dust: A Screening 

Assessment of the Risks Posed by Coal 

Combustion Waste Landfills.158 This 

previous evaluation only considered 

releases from windblown emissions and 

the potential to exceed national ambient 

air quality standards (NAAQS) for 

particulate matter. 

Based on the comments received, EPA 

updated the screening analysis of 

fugitive dust. EPA agrees that there are 

potential risks posed by fugitive 

emissions from sources beyond wind 

and revised the analysis to consider 

emissions from a range of activities, 

such as vehicular activity, unloading 

operations and spreading/compacting 

operations. Emissions from these 

sources were calculated using 

techniques that have undergone 

extensive peer-review, including AP–42: 

Compilation of Air Pollutant Emission 

Factors.159 Screening level modeling 

was performed with a combination of 

AERSCREEN and AERMOD to estimate 

dust dispersion and deposition rates. 

Model inputs were selected to be 

representative of current landfills, 

environmental settings (e.g., 

meteorological conditions) and common 

dust management practices. Estimated 

air concentrations were used to screen 

acute and chronic health risks from 

inhalation, as well as the potential to 

exceed NAAQS standards. Furthermore, 

EPA considered exposures that may 

result from the offsite deposition on and 

accumulation in downgradient media. 

This was done for all relevant metal 

species. In contrast, EPA did not 

evaluate emissions of hydrogen sulfide 

to air as EPA has no data on the extent 

to which this constituent is present in 

CCR or released into the surrounding 

environment. Further discussion of this 

screening analysis is presented in 


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160U.S. EPA (Environmental Protection Agency). 

1999b. Report to Congress: Wastes from the 

Combustion of Fossil Fuels: Volume 2—Methods, 

Findings, and Recommendations (EPA 530–R–99– 

010). Office of Solid Waste and Emergency 

Response. Washington, DC. 

Section 3 and appendix F of the revised 

risk assessment. 

COMMENT: Comments both 

supported and disagreed with the 

appropriateness of a screening analysis 

to eliminate pathways from 

consideration in the full-scale 

probabilistic analysis. One commenter 

pointed out that the EPA conducted a 

very conservative, but appropriate, 

screen to identify constituents to 

include in the full-scale probabilistic 

analysis. Another commenter 

emphasized that a full-scale risk 

assessment should be conducted that 

assesses exposures concurrently through 

all pathways (e.g., including surface 

pathways with inhalation exposure) for 

all chemical constituents. In particular, 

they emphasized that inhalation 

exposures to human carcinogens, such 

as hexavalent chromium, as well as 

noncarcinogens may occur through the 

aboveground pathway. Although the 

commenters disagreed over the use of a 

screening approach, both expressed 

concerns over the use of risk attenuation 

factors to scale screening risks to the 

full-scale risks for the subset of 

constituents that did not pass the screen 

and were not evaluated under the full 

scale assessment. Both commenters 

believe that this approach ignores the 

unique fate and transport properties of 

the omitted constituents and that the 

use of a simplistic, attenuation factor is 

not an appropriate way to estimate risk. 

EPA RESPONSE: By first conducting 

the screening analysis presented in 

Section 3 of the revised risk assessment, 

EPA was able to focus available 

resources on the characterization of 

risks for exposure routes and 

constituents with the greatest potential 

to pose risks. The screening analysis 

conducted for the revised risk 

assessment considered all of the 

potential exposure routes identified in 

the conceptual models for surface 

impoundments and landfills, which 

included aboveground exposures to 

ambient air, soil, sediment, produce, 

and animal products. Each exposure 

pathway was evaluated for all 

constituents (and individual species, as 

appropriate) for which both 

concentration and toxicity data were 

available. 

The screening analysis was developed 

to be protective of highly exposed 

individuals. Due to the conservative 

nature of the screening, the calculated 

risks represent a protective, but 

unlikely, combination of conditions that 

most likely reflect an upper bound on 

potential exposures for each individual 

constituent. The revised screening 

assessment did not rely on risk 

attenuation factors to screen out 

constituents. All constituents that 

resulted in screening-level risks above 

human health or ecological criteria, and 

for which characterization of fate and 

transport could be refined, were carried 

forward for further consideration in the 

probabilistic analysis, described in 

Section 4 of the revised risk assessment. 

It is possible that consideration of 

exposure to multiple constituents 

through a single pathway or to the same 

constituent through multiple pathways 

may have resulted in the retention of 

some additional constituents. However, 

it is highly unlikely that these 

additional constituents would remain 

risk drivers once more realistic dilution 

and attenuation in the environment is 

considered. 

COMMENT: Multiple commenters 

noted that there may be additional 

constituents present in CCR wastes 

beyond those quantitatively evaluated 

in the risk assessment. In particular, 

multiple commenters referenced 

organics and radionuclides. Some 

commenters called on EPA to quantify 

the risks associated with these 

additional constituents. Others claimed 

that these constituents are present in 

low levels and do not pose risk to 

receptors. 

EPA RESPONSE: In the Report to 

Congress: Wastes from the Combustion 

of Fossil Fuels: Volume 2—Methods, 

Findings, and Recommendations,160

EPA reviewed the available data on 

organic constituents, such as 

polyaromatic hydrocarbons and dioxins. 

These data indicated that concentrations 

of all organics are near or below 

analytical detection limits both in CCR 

and in the leachate released from CCR. 

Based on the findings of this report, the 

Agency concluded that organic 

constituents were not risk drivers and 

did not require further evaluation. In the 

absence of additional data that 

demonstrate the organic composition of 

CCR wastes have markedly changed, 

EPA continues to rely on these findings. 

EPA acknowledges that, like other 

inorganic constituents, naturallyoccurring radionuclides may be 

concentrated in CCR waste through the 

combustion of coal. However, due to a 

lack of data that could be used to 

characterize leachate concentrations for 

individual radionuclides, a quantitative 

evaluation of risk was not conducted. 

To address this data gap, EPA has 

included radionuclides in the list of 

constituents for groundwater 

monitoring. Furthermore, potential 

transport of these constituents 

downgradient by windblown dust and 

storm run-off are addressed through 

requirements for fugitive dust controls 

and run-on/run-off controls. 

4. Comments Related to Human 

Exposure and Toxicity 

COMMENT: Some commenters 

argued that EPA underestimated risks 

by not considering combined chemical 

effects, additive risk and concurrent 

exposures through multiple pathways. 

One commenter indicated that EPA 

should conduct a full scale assessment 

that considers concurrent exposure from 

ingestion of fish and groundwater. 

Commenters also raised concerns that 

some chemical constituents share a 

common mechanism of toxicity and 

may affect the same body organ or 

system, resulting in greater risks than 

predicted through the consideration of 

each constituent separately. 

One commenter noted that the 

combination of risks from different 

constituents would not change the 

overall results of the risk assessment. 

Constituents concentrations found to 

result in an HQ less than 1 in the 

screening analysis are unlikely to make 

a meaningful contribution to overall risk 

regardless of whether multiple 

compounds share the same toxicological 

endpoints. Additionally, the commenter 

expressed that it would be inappropriate 

to add the risks from different 

constituents as modeled because the 

constituents do not all arrive at a 

hypothetical receptor at the same time, 

due to differing mobility in the 

subsurface environment. 

EPA RESPONSE: EPA acknowledges 

that this risk assessment considered 

potential risks to human health from 

individual constituents and individual 

pathways. EPA acknowledges that not 

explicitly evaluating cumulative risk is 

a source of uncertainty that may result 

in some underestimation of risks. It is 

possible that an individual could be 

exposed to risks from drinking 

contaminated groundwater, as well as 

eating contaminated fish from a local 

surface water body, but it is unlikely 

that these two exposure pathways 

would occur simultaneously with any 

appreciable frequency in the real world. 

It is even more unlikely that a receptor 

would be exposed to both media at the 

high-end concentrations modeled. 

Therefore, the magnitude of the 

uncertainty introduced into the risk 

assessment is likely to be small. It is 

also possible for an individual to be 

exposed to multiple constituents 

through a single pathway. This is a more 

likely scenario because, as demonstrated 


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161U.S. EPA. 2000. Supplementary Guidance for 

Conducting Health Risk Assessment of Chemical 

Mixtures. Risk Assessment Forum, Washington, DC. 

August. 

162U.S. EPA. 2003. Human Health Toxicity 

Values in Superfund Risk Assessments. Office of 

Solid Waste and Emergency Response Directive 

9285.7–53. December. 

163U.S. EPA. 2011. Exposure Factors Handbook: 

2011 Edition. EPA/600/R–090/052F. National 

Center for Environmental Assessment, Office of 

Research and Development, Washington, DC. 

September. 

by the available data, CCR typically 

leach multiple inorganic constituents. 

Where exposure to multiple 

constituents is likely to occur, EPA 

policy is to assume that the risks 

resulting from these exposures are 

additive.161 The current probabilistic 

analysis identified individual 

constituents above risk criteria. Many of 

the other constituents modeled resulted 

in risks an order of magnitude or more 

below risk criteria. Thus, the 

consideration of additive risk, even with 

the high-end risks modeled in this risk 

assessment, is unlikely alter the 

principal results of the probabilistic 

analysis. Similarly, because the risks for 

individual constituents were found to 

be above levels of concern, 

consideration of additive risk is unlikely 

to meaningfully change the results of 

the analysis. EPA updated the revised 

risk assessment to include a discussion 

of the associated uncertainties in 

Section 5. 

COMMENT: Some commenters 

identified incorrect and inconsistent 

reporting of toxicity benchmark values 

and recommended conducting a 

thorough review of literature to ensure 

the use of the most current values were 

used. One commenter expressed 

concern over the use of the current IRIS 

value for arsenic carcinogenic effects 

and believes it underestimates risk. 

Other commenters emphasized that it 

would be inappropriate for EPA to 

consider using the draft oral cancer 

slope factor (CSF) for arsenic and the 

oral CSF for hexavalent chromium 

[chromium (VI)] published by the New 

Jersey Department of Environmental 

Protection (NJDEP). Concerning lead, 

one commenter supported a peer 

reviewer’s recommendation to use the 

Integrated Exposure Uptake Biokinetic 

(IEUBK) model to calculate human 

health risks, especially for young 

children. Additionally, a commenter 

requested chemical-specific information 

on toxicity criteria derivation, as well as 

information on the relationship between 

environmental exposures to specific 

chemicals and adverse health effects. 

The commenter emphasized that this 

information would provide an 

uncertainty discussion regarding 

toxicity values, facilitate 

communication with the public, and 

provide a balanced perspective on risk. 

EPA RESPONSE: Human health 

benchmarks were chosen based on the 

Office of Solid Waste and Emergency 

Response hierarchy (OSWER Directive 

9285.7–53).162 EPA reviewed the 

benchmarks to confirm their accuracy 

and determine whether newer values 

have become available from EPA or 

other sources used by EPA since the 

CCR draft risk assessment was 

conducted. The current, updated list of 

human health benchmarks is provided 

in appendix E of the revised risk 

assessment, and the references cited in 

that appendix provide further 

information on the potential adverse 

effects and derivation of toxicity 

criteria. 

For lead, EPA used the drinking water 

maximum contaminant level (MCL) to 

estimate risks from drinking water 

exposure in the draft risk assessment. In 

the revised risk assessment EPA 

continued to rely on the MCL, but also 

used IEUBK model for lead in children 

as described in Section 5 of the revised 

risk assessment. While lead failed the 

screening assessment, risks from lead 

exposure in the probabilistic assessment 

were well below the risk criterion, and 

did not drive risks in either the 

probabilistic or any sensitivity analyses. 

COMMENT: The commenters 

questioned why the cancer benchmark 

of 1 × 10¥5 was selected while the 

typical range used by OSWER and EPA 

guidance is a range from 1 × 10¥4 to 

1 × 10¥6. The commenters suggested 

that an explanation is necessary. In 

particular, one commenter requests 

clarification on the phrase ‘‘point of 

departure’’ when supporting the use of 

the cancer benchmark of 1 × 10¥5. 

Concerning non-cancer criteria, a 

commenter suggested that non-cancer 

risks should be report as follows: Worst 

Case—Assume maximum exposure 

scenarios including exposure 24-hours/ 

day, 365 days/year for 70 years; High 

End—95th percentile based on national 

human activity pattern distributions; 

Central Tendency—50th percentile (or 

median) risk based on national human 

activity pattern distributions. 

Furthermore, another commenter 

believed that it is more appropriate to 

consider 95th percentiles, rather than 

90th percentile, of exposure and risk 

estimates for humans and ecological 

receptors. 

EPA RESPONSE: The rationale for the 

selected cancer and non-cancer risk 

criteria, based on Agency policy, is 

discussed in Section 2 of the revised 

risk assessment. A citation to the where 

‘‘point of departure’’ was originally 

defined is provided for reference. The 

rationale for use of 90th percentile risk 

generated by a Monte Carlo simulation 

is discussed in Section 4 of the revised 

risk assessment. 

COMMENT: Commenters questioned 

the evaluation of only the reasonable 

maximum exposure scenario. 

Specifically, it was noted that the 

receptor placement downgradient of an 

unlined management unit does not 

represent the entire population 

exposure distribution. One commenter 

suggested that EPA clearly define the 

exposed population of interest. 

EPA RESPONSE: In risk assessments 

used to develop regulations under 

RCRA, EPA has historically assessed 

potential risks resulting from a 

reasonable maximum exposure (RME) 

scenario in order to ensure that the 

resulting regulation is adequately 

protective of human health without 

being excessively conservative. The 

types of data necessary to define the 

exact population that relied on 

groundwater wells as a source of 

drinking water or consumes fish from 

impacted water bodies are not available. 

EPA believes that consideration of RME 

is a reasonable and protective 

alternative, given the available data. 

Uncertainties associated with the 

revised risk assessment are further 

discussed in Section 5 of the revised 

risk assessment. 

COMMENT: The commenters 

questioned the use of data from the 1997 

Exposure Factors Handbook in the 

development of intake rate distributions 

for various exposures, because more 

current data are currently available. 

Commenters recommended that EPA 

make updates to these parameters using 

more current sources of information, 

including the recently released 2011 

Exposure Factors Handbook.163 In 

addition, some commenters pointed out 

the potential for the available exposure 

factor data to underestimate or 

overestimate exposures. One commenter 

noted that the risk assessment did not 

fully account for the dependence of 

input variables (e.g., the 

interdependence of body weight and 

water ingestion rates for children and 

link between the rate of fish consumed 

from a water body). Another commenter 

suggested that a sensitivity analysis of 

human health exposure factors be 

conducted to add to the sensitivity 

analysis conducted by EPA in 2009. 

Regarding fish consumption rates, 

commenters questioned the 

representativeness of a fixed fish 

consumption rate drawn from a single 


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164U.S. EPA. 1997. Exposure Factors Handbook, 

Volume III, Activity Factors. EPA/600/P–95/002Fa. 

Office of Research and Development, Washington, 

DC. August. 

165U.S. EPA. 2008. Child-Specific Exposure 

Factors Handbook. EPA/600/R–06–096F. National 

Center for Environmental Assessment, Cincinnati, 

OH. 

166U.S. EPA. 2011. Exposure Factors Handbook: 

2011 Edition. EPA/600/R–090/052F. National 

Center for Environmental Assessment, Office of 

Research and Development, Washington, DC. 

September. 

167U.S. EPA. 2014. Human Health Evaluation 

Manual, Supplemental Guidance: Update of 

Standard Default Exposure Factors. OSWER 

Directive 9200.1–120. February. 

168U.S. EPA. 1997. Exposure Factors Handbook, 

Volume III, Activity Factors. EPA/600/P–95/002Fa. 

Office of Research and Development, Washington, 

DC. August. 

169U.S. EPA. 2008. Child-Specific Exposure 

Factors Handbook. EPA/600/R–06–096F. National 

Center for Environmental Assessment, Cincinnati, 

OH. 

170U.S. EPA. 2011. Exposure Factors Handbook: 

2011 Edition. EPA/600/R–090/052F. National 

Center for Environmental Assessment, Office of 

Research and Development, Washington, DC. 

September. 

study. It was suggested for transparency 

that the risk assessment provide the 

results of the chi-square tests to 

demonstrate how well the fish 

consumption rate data fit a log normal 

distribution. Additionally, it was 

suggested that fish consumption rates 

should be determined from other 

studies and more robust data sets. One 

commenter suggested the incorporation 

of fish consumption rates representative 

of subsistence fishers, such as Native 

American populations that harvest and 

consume fish as part of their native 

traditions and culture. 

Regarding drinking water ingestion 

rates, one commenter voiced concern 

about the assumption that groundwater 

is the source of all drinking water. The 

commenter indicated that this is an 

overly conservative and atypical 

assumption, as a majority of individuals 

will consume liquids from other sources 

(e.g., milk, juice, sodas, bottled water, 

sports and energy drinks). 

EPA RESPONSE: This revised risk 

assessment relied on both the 1997 

Exposure Factors Handbook (EFH) 164

and the 2008 Child-Specific Exposure 

Factors Handbook (CSEFH) 165 for 

information on human exposure factors 

for the U.S. population. The 2011 

Exposure Factors Handbook 166 has 

been completed and updates some of 

the data from the 1997 EFH. During the 

finalization of this risk assessment, EPA 

released OSWER Directive 9200.1– 

120.167 Although this document 

provides default exposure factors to use 

for point estimates, EPA is still in the 

process of updating the full 

distributions necessary for probabilistic 

analysis. Therefore, this risk assessment 

does not incorporate the data from the 

2011 EFH. 

Exposure data used for the fish 

ingestion rates are described in 

appendix D of the revised risk 

assessment. Data on site-specific fish 

consumption rates were not available 

for use in this analysis. Instead, the full 

distribution of fish consumption rates 

were drawn from a study of adult 

anglers from Maine that fished from 

streams, rivers, and ponds. Because agespecific data for children were not 

available, all child cohorts were 

assumed to consume fish at the same 

rate as the adult cohort. Data on fish 

ingestion rates for Native American 

subsistence fishers are currently limited 

and can vary widely geographically, to 

the point that the 2011 EFH makes no 

recommendation for representative 

values. EPA acknowledges that these 

issues introduce uncertainty into the 

analysis, which are further discussed in 

Section 5 of the revised risk assessment. 

COMMENT: Commenters emphasized 

the need to update exposure factors for 

childhood exposures and recommended 

that updates include data from the 2011 

EFH. One commenter stated that the risk 

assessment appropriately considered the 

potential fish exposures for children. 

However, they pointed out that the fish 

consumption rates for children should 

be lower than those applied for adults. 

Another commenter suggested that the 

risk assessment should provide a clear 

description of how the exposure 

duration of child cohorts were used in 

the risk calculations. Specifically, the 

commenter questioned whether 

exposure durations were truncated at 

the end of each age cohort or aged 

through the different cohorts. 

EPA RESPONSE: The revised risk 

assessment makes use of the 1997 

EFH 168 and the 2008 CSEFH 169 for 

information on human exposure factors 

for the U.S. population. Although, as 

discussed in the preamble sections 

above, the revised risk assessment does 

not incorporate data from the recent 

2011 EFH,170 all child data included in 

this document was derived from the 

2008 EFH. In addition to child ingestion 

of drinking water, EPA’s evaluation has 

been revised to also account for infant 

exposures that may occur from formula 

mixed with contaminated groundwater. 

These data are presented in appendix D 

of the revised risk assessment. 

Consistent with the commenter’s 

recommendation for cohort aging, the 

risk assessment aged receptors through 

each age cohort using age-specific data 

for exposure factors and physical 

characteristics that were weighted 

proportionally by the corresponding 

time period and then summed. Specific 

discussion of truncation values is 

provided in later in this preamble. 

COMMENT: Public commenters 

recommended updating BCF values 

with more current references. One 

commenter questioned why 

bioconcentration factors were zero for 

some constituents that are essential 

nutrients (i.e., cobalt and copper). 

Another commenter voiced concern that 

EPA had not fully considered the 

appropriateness of using BCFs to 

describe metals bioaccumulation, 

suggesting that current science 

(including EPA guidance documents) 

indicates that BCFs are poor predictors 

of tissue metal concentrations due to 

wide variation in uptake patterns 

governed by several chemical and 

biological factors. Another commenter 

recommended the use of an approach 

that would be more robust than the 

single BCF approach, establishing and 

applying distributions of BCFs. This 

commenter also recommended that the 

assessment adhere to the EPA policy of 

using dissolved metals in the 

calculating the bioconcentration of 

metals in fish, or should provide the 

rationale for using a different approach. 

EPA RESPONSE: EPA recognizes that 

the use of BCFs may not represent the 

most current approaches available to 

estimate metal bioaccumulation at 

individual sites, where fish tissue data 

can be collected. However, as noted by 

public commenters, BCFs are useful in 

a screening-level assessment and EPA 

believes they are also appropriate for a 

national-level risk assessment, where 

site-specific data are not available and 

collection of site-specific data is not 

viable. 

In some cases, insufficient data to 

determine a BCF value meant that these 

constituents could not be quantitatively 

evaluated for this pathway. Regarding 

the concern expressed with respect to 

zero BCF values, the commenter did not 

provide alternative BCFs that EPA could 

consider for the constituents at issue. 

Additionally, EPA agrees that, given the 

latest scientific information, 

distributions of BAFs/BCFs may be 

better than single BAFs/BCFs because 

they account for changes in 

bioaccumulation/bioconcentration at 

different water concentrations. EPA is 

working to develop BAF/BCF 

distributions for several CCR pollutants 

of concern but does not yet have a 

robust enough dataset for use for the 

final CCR Rule. In lieu of this, EPA is 

proceeding with the single BAF/BCF 

approach for the current analysis. EPA 

does recognize this issue as a limitation 

for the BCF calculations and considers 

it as an uncertainty in the risk 


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171Eisler, R. 1989. Molybdenum Hazards to Fish, 

Wildlife, and Invertebrates: A Synoptic Review. 

Contaminant Hazard Reviews, Report No. 19, 

Biological Report 85(1.19). Laurel, MD. August. 

172 Kumada, H., et al. 1973. Acute and chronic 

toxicity, uptake and retention of cadmium in 

freshwater organisms. Bull. Freshwater Fish. Res. 

Lab. 22: 157 

173Lemly AD. 1985. Toxicology of selenium in a 

freshwater reservoir: implications for 

environmental hazard evaluation and safety. 

Ecotoxicology and Environmental Safety. 10(3): 

314–338. 

174Murphy, B.R., G.J. Atchison, and A.W. 

McIntosh. 1978. Cadmium and zinc in muscle of 

bluegill (Lepomis macrochirus) and largemouth 

bass (Micropterus salmoides) from an industrially 

contaminated lake. Environmental Pollution 

17:253–257. 

175Barrows ME, Petrocelli SR, Macek KJ, Carroll 

JJ. 1980. Bioconcentration and elimination of 

selected water pollutants by bluegill sunfish 

(Lepomis macrochirus). In: Haque R, ed. Dynamics, 

exposure and hazard assessment of toxic chemicals. 

Ann Arbor, Michigan, U.S.A.: American Chemical 

Society. p. 379–392. 

176Stephan, C.E. 1993. Derivation of Proposed 

Human Health and Wildlife Bioaccumulation 

Factors for the Great Lakes Initiative. Draft. 

Environmental Research Laboratory, Office of 

Research and Development, U.S. Environmental 

Protection Agency, Duluth, MN. March. 

177U.S. EPA (Environmental Protection Agency). 

2009b. ECOTOX User Guide: ECOTOXicology 

Database System. Version 4.0. Available online at 

www.epa.gov/ecotox/. 

178U.S. EPA (Environmental Protection Agency). 

1997d. Mercury Study Report to Congress. Volume 

III—Fate and Transport of Mercury in the 

Environment. EPA 452/R–97/005. Office of Air 

Quality Planning and Standards and Office of 

Research and Development, Washington, DC. 

179ATSDR (Agency for Toxic Substances and 

Disease Registry). 2008. Minimal Risk Levels 

(MRLs) for Hazardous Substances. Available at 

www.atsdr.cdc.gov/mrls.html. 

180U.S. NLM (National Library of Medicine). 

2011. Hazardous Substances Data Bank (HSDB). 

Available online at: toxnet.nlm.nih.gov/cgi-bin/sis/ 

htmlgen?HSDB. 

181Baes, C.F., III, R.D. Sharp, A.L. Sjoreen, and 

R.W. Shor. 1984. A Review and Analysis of 

Parameters for Assessing Transport of 

Environmentally Released Radionuclides Through 

Agriculture. ORNL–5786. Oak Ridge National 

Laboratory, Oak Ridge, TN. September. 

182U.S. EPA. 2013. Environmental Assessment 

for the Proposed Effluent Limitation Guidelines and 

Standards for the Steam Electric Power Generating 

Point Source Category. EPA–821–R–13–003. Office 

of Water. Washington, DC 20460. April. 

characterization. Overall, EPA agrees 

that the use of this older data introduces 

some uncertainty into the analysis. 

These uncertainties are discussed in 

greater detail in Section 5 of the revised 

risk assessment. 

With the exception of mercury, EPA 

evaluated bioconcentration based on 

water column concentrations that 

include contributions from dissolved 

and solid phases because available BCFs 

represent contributions from both. 

Because a BAF based only on dissolvedphase concentrations was available for 

mercury, EPA evaluated this constituent 

using only dissolved concentrations. 

Applying this conservative approach for 

most constituents ensured protection of 

human health. Even with this 

conservative assumption, the 90th 

percentile risks for the probabilistic 

analysis (Section 4) did not exceed risk 

criteria for the fish ingestion pathway. 

Therefore, this approach is unlikely to 

have affected the principal findings of 

the risk assessment. 

For the revised risk assessment, EPA 

reviewed the available literature and 

identified BCFs for additional 

constituents that previously had no 

values. As noted in appendix G of the 

revised risk assessment, the following 

source hierarchy was used for fish BCFs: 

• Primary literature: These are 

generally papers focused on a single 

chemical 171 172 173 174 or may contain 

data on multiple chemicals.175 176

• U.S. EPA databases/publications: 

These included ECOTOX 177 and the 

Mercury Report to Congress.178

• Other government agency resources: 

These included ATSDR Toxicological 

Profiles 179 and the Hazardous 

Substances Data Bank.180

EPA also finds that the references 

provided by commenters provided 

primarily phytotoxicity and 

accumulation data for terrestrial plants, 

and were therefore not relevant to EPA’s 

explicit solicitation on whether the 

bioconcentration factors drawn from 

Baes et al. (1984) should be considered 

in the final risk assessment.181

5. Comments Related to Ecological 

Exposure and Toxicity 

COMMENT: Public commenters 

emphasized the potential importance of 

cumulative ecological risk, whereby an 

ecological receptor may be exposed to 

multiple constituents and/or pathways 

concurrently. For example, amphibians 

may be subject to both dermal and 

ingestion exposure. Public commenters 

noted that ecological risks were 

underestimated because the following 

scenarios were not considered for 

ecological receptors: Aboveground 

pathways, contaminant transport to 

nearby uncontaminated environments, 

and the inclusion of field data in the 

analysis. 

EPA RESPONSE: EPA acknowledges 

that cumulative effects can be important 

for ecological receptors. However, just 

as EPA did not consider cumulative 

human health risks from exposures to 

groundwater (discussed in the previous 

sections of this preamble), they were not 

modeled for ecological receptors. In the 

national, probabilistic analysis (Section 

4 of the revised risk assessment), risks 

for all constituents fell below the 

ecological criteria. Even the sum of 

modeled risks for all constituents fell 

below the ecological criteria. In 

sensitivity analyses (Section 5 of the 

revised risk assessment), which 

considered different subsets of national 

disposal practices that may drive risks, 

boron and cadmium were the two 

constituents found to result in risks 

above ecological criteria. To the extent 

that cumulative exposures were not 

evaluated, EPA acknowledges that 

ecological risk could be underestimated 

to some degree. However, these 

uncertainties are unlikely to affect the 

principal findings of the risk 

assessment. In addition, EPA also notes 

that all surface water risks are orders of 

magnitude lower than the risks resulting 

from direct discharges modeled in U.S. 

EPA (2013).182

In contrast to the surface water and 

sediment exposures, ecological risks for 

individual constituents were 

appreciably above risk criteria for direct 

exposure to impoundment wastewater. 

As a result, it is clear that CCR disposal 

in surface impoundments have the 

potential to pose risk to ecological 

receptors, even without consideration of 

cumulative exposures. 

COMMENT: Public commenters 

stated that the risk assessment does not 

consider sensitive habitats or species. 

Commenters requested additional 

consideration of threatened and 

endangered species and the inclusion of 

ecological field data. 

EPA RESPONSE: EPA did not 

evaluate these sensitive habitats and 

sensitive/endangered ecological 

receptors because these are inherently 

site-specific issues for which data on 

potential impacts are often not available 

and can be difficult to quantify, even on 

a site-specific basis. EPA acknowledges 

that the inability to quantitatively 

evaluate the potential for these adverse 

effects represents a source of 

uncertainty. Discussion of these 

uncertainties is presented in Section 5 

of the revised risk assessment. 

COMMENT: Public commenters were 

concerned that a more conservative 

approach was needed to derive the 

ecological benchmarks. Multiple 

commenters also stated that the use of 

risk attenuation factors to scale the 

screening risks to full-scale risks was 

inappropriate. Several commenters 

noted that the ecological boron 

benchmark used for surface water 

exposures contained incorrect units 

based on an incorrect transcription in 

the peer-reviewed article. Another 

commenter noted that the ecological 


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183Hamilton, S.J. 1995. Hazard assessment of 

inorganics to three endangered fish in the Green 

River, Utah. Ecotoxicol Environ Saf 30:134–142. 

184Suter, G.W., and C.L. Tsao. 1996. 

Toxicological Benchmarks for Screening Potential 

Contaminants of Concern for Effects on Aquatic 

Biota: 1996 Revision. U.S. Department of Energy, 

Oak Ridge National Laboratory, Oak Ridge, TN. 

June. 

185Available online at: ftp://ftp.epa.gov/coalcombustion-residues. 

cadmium benchmark used for direct 

contact with surface water was 

incorrect. 

EPA RESPONSE: Ecological 

benchmarks were obtained for CCR 

constituents when available and 

compared with the modeled media 

concentrations (e.g., surface water, 

sediment) to estimate the HQs used to 

characterize ecological risk. These 

benchmarks represent the best available 

estimates of receptor responses based 

‘‘no effects’’ (NOAEL) or ‘‘lowest 

effects’’ (LOAEL) study data. In some 

scenarios, these benchmarks may 

represent species not actually present in 

the field. In others, these benchmarks 

may not capture the most sensitive 

possible receptor at every site or for 

each constituent. While some 

benchmarks have factors of safety 

included to account for these or other 

uncertainties, there remains the 

potential for these ecological 

benchmarks to underestimate risks for 

the specific species and communities 

that live in surface waters impacted by 

CCR WMUs. The magnitude of this 

uncertainty is unknown. Consideration 

of any additional sensitive species not 

captured by the current benchmarks 

may result in some additional 

constituents above risk criteria in the 

probabilistic analysis. EPA notes that 

ecological risks to some of these 

additional sensitive receptors may be 

reflected in damage cases. However, this 

site-specific uncertainty is unlikely to 

affect the national conclusions of the 

risk assessment. 

Regarding incorrect benchmark 

values, an updated boron benchmark 

was used in the revised risk assessment. 

The units in the fish study from which 

the previous SCV was derived 183 had 

been erroneously transcribed in Suter 

and Tsao (1996) 184 as mg/L instead of 

mg/L. The updated SCV was 

recalculated using the corrected units. 

The revised value has been corroborated 

with the authors. Additionally, a 

continuous criteria concentration (CCC) 

was used for the cadmium surface water 

benchmark in the revised risk 

assessment, replacing the previous 

value. The updated values are presented 

in appendix E of the revised risk 

assessment report. 

6. Comments Related to the Monte Carlo 

Analysis Approach 

COMMENT: While some public 

commenters stated that the human 

health probability distributions 

appeared appropriate, others expressed 

concern regarding a conservative bias in 

input parameter probability 

distributions used and the resulting 

potential for overestimation of risks. 

These commenters noted that the ideal 

approach would be to estimate the 

actual risk and associated uncertainty 

rather than weighting the results 

conservatively. 

EPA RESPONSE: The revised risk 

assessment conducted a full-scale, 

probabilistic Monte Carlo analysis to 

quantify human and ecological risks. 

EPA agrees it would be ideal to produce 

best estimates of actual risk. All input 

data distributions (e.g., aquifer data, soil 

type, WMU data, climate data, distance 

to groundwater wells, distance to 

surface water bodies, constituent 

concentrations, water flow data, human 

exposure factors) were developed in line 

with this objective. However, these 

distributions were developed from 

available data and are subject to the 

limitations of these data. In cases where 

data were not sufficient to fully 

characterize the input distribution, 

conservative values and assumptions 

were used to fill data gaps to remain 

protective of human health and the 

environment. Further discussion of 

these uncertainties has been added to 

Section 5 of the revised risk assessment. 

COMMENT: Public commenters 

pointed out that the risk assessment 

does not formally differentiate 

variability from uncertainty or show 

confidence limits for risk results, which 

makes it challenging to identify 

opportunities to reduce uncertainty. 

One commenter requested that EPA 

discuss the implications of the relatively 

wide risk distributions, including the 

reasons why some risk distributions are 

larger than others based on the Monte 

Carlo results. 

EPA RESPONSE: EPA acknowledges 

it would be ideal to separate variability 

from uncertainty when possible in a 

probabilistic risk assessment. EPA was 

able to reduce a substantial number of 

the uncertainties in the revised risk 

assessment through the acquisition of 

additional data on facilities, 

environmental parameters, and 

constituent concentrations. Variability 

and uncertainty are still comingled in a 

large number of cases due to remaining 

data gaps; however, EPA conducted 

multiple sensitivity analyses to 

determine the potential for different 

inputs to affect risk results. Additional 

discussion of the differences between 

parameter variability, data uncertainty, 

and model error, as well as discussions 

of the sensitivity and uncertainty 

analyses, is presented in Section 5 of the 

revised risk assessment. 

EPA disagrees that there are wide risk 

distributions. While the commenter 

correctly points to other risk 

assessments that had closer central 

tendency and high-end results, those 

were either site-specific assessments or 

involved no fate or transport modeling. 

National-scale risk assessments will 

necessarily have wider variability in 

their results compared to risk 

assessments that are specific to a single 

site. Thus, the ‘‘wider’’ risk 

distributions simply reflect the fact that 

different sites with different CCR can 

have very disparate impacts on human 

health and the environment. 

7. Miscellaneous Comments 

COMMENT: Some commenters stated 

that the documentation is incomplete 

and that an independent reviewer could 

not reproduce the analysis. Another 

commenter performed an independent 

review and cancer risk estimate and 

noted that the EPA used a reasonable 

approach for calculating cancer cases in 

the risk assessment. 

EPA RESPONSE: EPA acknowledges 

that the documentation of the inputs 

and intermediate outputs could have 

been more transparent for the 2010 Draft 

Risk Assessment. In the revised risk 

assessment, many of the inputs EPA 

used are directly discernible from the 

appendices. A summary of the data 

available in each appendix is presented 

in Section 1 of the revised risk 

assessment. EPA also acknowledges that 

the additions and discussions of inputs 

in the document were not sufficient for 

complete duplication of the results. 

Thus, the input and output files for the 

draft risk assessment were made 

available in the docket of the proposed 

rule via an FTP site,185 and final input 

and output files are being placed in the 

docket for the final rule. 

COMMENT: Commenters requested 

improvement on the graphical 

presentation of risk results. 

Additionally, commenters requested 

further explanation of the minimum and 

maximum truncating values, as 

truncated values may reduce risk 

estimates. 

EPA RESPONSE: While EPA did not 

provide a graphical presentation of the 

risk results, this information is more 

clearly discernible from the full input 

and output files. For discussion of the 


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186Available online at: www.palisade.com/risk/. 

187U.S. EPA. 2009. Sensitivity Analysis for the 

Coal Combustion Waste Risk Assessment. Draft 

Technical Report. Prepared by RTI International for 

U.S. EPA, Office of Solid Waste, Washington, DC. 

full inputs and outputs files, see the 

responses in the preamble section 

above. With regard to truncation, EPA 

no longer manually truncates input 

distributions for the human exposure 

factors. Instead, exposure factor 

distributions in the revised risk 

assessment were generated with the @

Risk software (Palisade Co., Newfield, 

NY),186 as described in appendix D. 

EPA has also added further discussion 

of the cohorts to revised risk 

assessment, with tables comparing each 

cohort’s risk presented in Section 5 of 

the revised risk assessment. 

COMMENT: Commenters requested 

more complete documentation of the 

sensitivity analysis. Other comments 

included a request to add human health 

exposure factor variables to the 

sensitivity analysis, and to conduct 

additional sensitivity analyses on 

different topics (e.g., well distance 

distribution). 

EPA RESPONSE: EPA acknowledges 

the omission of the original sensitivity 

analysis from the docket. EPA updated 

the sensitivity analysis 187 so that it 

clearly describes the methodology that 

underlies the results summarized in 

Section 5 of the revised risk assessment. 

This sensitivity analysis was placed in 

the docket for the proposed rule. 

Human health exposure factor 

variables were not evaluated in the 

sensitivity analysis. Human exposure 

factor variables have well-established, 

peer-reviewed, national distributions 

that are regularly used in probabilistic 

risk analyses conducted by EPA based 

on Agency policy. Therefore, the 

contribution of variability in the 

exposure factors to the variability in risk 

was not particularly useful for 

understanding the aspects of CCR 

disposal practices that may drive risk. 

Additional sensitivity analyses such as 

leachate duration versus leachable 

content and liner performance by 

thickness were conducted in the revised 

risk assessment and are summarized in 

Section 5. 

B. Summary of Risk Assessment and 

Results 

1. Problem Formulation 

EPA first developed conceptual 

models to illustrate a general layout of 

surface impoundments and landfills, the 

chemical constituents that may be 

released from these WMUs, the routes 

through which these constituents may 

migrate through environmental media, 

and the types of exposures that may 

result. These conceptual models were 

used as the basis for all subsequent data 

collection efforts. EPA first collected 

data on the coal-fired power plants and 

CCR WMUs located across the United 

States. EPA then collected regional and 

national data to characterize the 

environment and receptor population 

surrounding each WMU. The data 

assembled represent the most current 

and comprehensive information 

available to the Agency at the time this 

risk assessment was conducted. Using 

the data collected, EPA first conducted 

a simplified hazard identification to 

determine which constituents warranted 

further evaluation. At this stage, EPA 

considered the presence of a constituent 

in CCR waste, combined with the 

availability of at least one toxicity 

benchmark, sufficient evidence of 

hazard potential. Table 1 presents a 

summary of the different chemical 

constituents retained as constituents of 

potential concern (COPCs) for further 

analysis. 

TABLE 1—LIST OF CHEMICAL CONSTITUENTS EVALUATED IN THE CCR 

RISK ASSESSMENT

Aluminum 

Ammonia 

Antimony 

Arsenic 

Barium 

Beryllium 

Boron 

Cadmium 

Calcium 

Chloride 

Chromium 

Cobalt 

Copper 

Fluoride 

Iron 

Lanthanum 

Lead 

Lithium 

Magnesium 

Manganese 

Mercury 

Molybdenum 

Nickel 

Nitrate/Nitrite 

Selenium 

Silicon 

Silver 

Sodium 

Strontium 

Sulfate 

Sulfide 

Thallium 

Uranium 

Vanadium 

Zinc 

All risks identified in subsequent 

analyses were compared against risk 

criteria of cancer risk greater than 

1 × 10¥5 or a noncancer hazard quotient 

(HQ) greater than 1. EPA typically relies 

on a risk range to determine the point 

at which regulation is appropriate. EPA 

uses as an initial cancer risk ‘‘level of 

concern’’ a calculated risk level of 1 × 

10¥5 (one in one hundred thousand) or 

an HQ above 1.0 for any 

noncarcinogens. For example, waste 

streams for which the calculated highend individual cancer-risk level is 1 × 

10¥5 or higher generally are considered 

candidates for regulation. Waste streams 

whose risks are calculated to be 1 × 

10¥4 or higher generally will be 

considered to pose a substantial present 

or potential hazard to human health and 

the environment and generally will be 

regulated. Waste streams for which 

these risks are calculated to be 1 × 10¥6

or lower, and lower than 1.0 HQs or EQs 

for any noncarcinogens, generally will 

be considered not to pose a substantial 

present or potential hazard to human 

health and the environment and 

generally will not regulated. See 59 FR 

66075–66077, December 22, 1994. 

2. Screening Analysis 

EPA conducted separate screening 

analyses for each exposure pathway to 

identify which COPCs are most likely to 

pose risk to receptors. The results of this 

screening generally do not provide a 

precise characterization of individual 

risks that may occur, but rather identify 

those COPCs that are most likely to 

exceed risk criteria. In cases where well 

established, post-construction 

management practices (‘‘controls’’) have 

been shown to minimize releases from 

WMUs, EPA considered exposures for 

both an uncontrolled and controlled 

management scenario. 

This screening analysis identified 

potential risks to human and ecological 

receptors resulting from the releases of 

particulate matter and the chemical 

constituents contained therein through 

wind and run-off. Under an 

uncontrolled management scenario, 

risks to human receptors resulted from 

the inhalation of windblown 

particulates in ambient air and the 

ingestion of soil and animal products 

(i.e., meat and dairy), while risks to 

ecological receptors resulted from 

exposures to soil and sediment. Under 

a controlled management scenario, 

which consisted of fugitive dust 

controls and run-on/run-off controls, all 

risks associated with these exposure 

pathways decreased to below the 

criteria. Due to the conservative nature 

of the screening, there is a great deal of 

uncertainty surrounding the specific 

risks calculated for these exposure 

pathways. These risks represent a 

protective, but unlikely, combination of 

conditions that reflect at least an upper 


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bound on potential exposures. Thus, the 

cumulative effect of these uncertainties 

results in an overestimation of 

nationwide risks to most or all 

receptors. Therefore, EPA makes no 

direct findings concerning the 

magnitude of the risks that may occur 

under either an uncontrolled or 

controlled management scenario, but 

concludes with a high degree of 

confidence that the reductions 

achievable with standard management 

practices are sufficient to be protective 

even under this conservative screening 

assessment. Based on these lines of 

evidence, EPA concluded that no 

further characterization was warranted 

for these exposure pathways. 

These screening analyses identified 

potential risks to human and ecological 

receptors from leaching of chemical 

constituents from CCR waste into 

surrounding environmental media. 

Risks to human health resulted from 

ingestion of groundwater and fish, while 

risks to ecological receptors resulted 

from exposure to surface water. There 

was no simple method to estimate the 

effect controls may have for these 

pathways. However, considerable 

dilution and attenuation may occur 

before COPCs reach downgradient 

private wells and surface water bodies. 

Therefore, EPA retained all of the 

COPCs found to be above risk criteria in 

groundwater and surface water for 

further characterization. In addition, 

EPA used the uncontrolled screening 

results for the above ground sediment 

pathway as a conservative proxy for the 

groundwater to surface water sediment 

pathway. As a result, sediment 

exposures of four COPCs were retained 

for further characterization. Table 2 

presents a summary of the chemical 

constituents retained as COPCs for each 

pathway. 

TABLE 2—LIST OF CHEMICAL CONSTITUENTS RETAINED FOR PROBABILISTIC ANALYSIS

Human health Ecological 

Ingestion of groundwater Ingestion of fish Surface water exposure Sediment exposure 

Antimony Arsenic Aluminum Antimony 

Arsenic Cadmium Arsenic Arsenic 

Boron Mercury Barium Silver 

Cadmium Selenium Beryllium Vanadium 

Cobalt Thallium Boron 

Fluoride Cadmium 

Lead Chloride 

Lithium Chromium 

Molybdenum Cobalt 

Thallium Copper 

Iron 

Lead 

Molybdenum 

Nickel 

Selenium 

Silver 

Vanadium 

Zinc 

These screening analyses also 

identified potential risks to ecological 

receptors from direct exposure to 

impoundment wastewater. Unlike the 

other exposure pathways, no dilution or 

attenuation will occur within 

impoundment wastewater prior to 

ecological exposures. Thus, the direct 

exposures considered in the screening 

analysis provide a reasonable estimate 

of the relative magnitude of risks. Based 

on the screening analyses, EPA 

concluded that HQs for ecological 

receptors exceeded 1 for the following 

constituents (listed from highest to 

lowest potential): Arsenic (100), barium 

(50), aluminum (30), boron (30), 

selenium (20), cadmium (10), vanadium 

(10), beryllium (2), chloride (2) and 

chromium (2). Because the screening 

analysis provides sufficient 

characterization of these exposures, this 

pathway was not carried forward for 

further analysis. 

3. Probabilistic Analysis 

EPA conducted a national-scale, 

probabilistic analysis to better 

characterize the potential risks to 

human and ecological receptors 

associated with leachate released from 

surface impoundments and landfills. 

The specific exposure routes evaluated 

for these releases were human ingestion 

of groundwater used as a source of 

drinking water and fish caught from 

freshwater lakes or streams, as well as 

ecological contact with and ingestion of 

surface water and sediment. A 

combination of models was used to 

predict COPC fate and transport through 

the environment, receptor exposures, 

and the resulting risks. Site-specific data 

were used, supplemented by regional 

and national data sets, to capture the 

national variability of disposal 

practices, environmental conditions and 

receptor behavior. EPA modeled risks 

for both highly exposed individuals 

(90th percentile risks) and more 

moderately exposed individuals (50th 

percentile risks). In instances where the 

speciation of a COPC has been shown to 

greatly affect fate and transport, EPA 

modeled multiple species to provide a 

bounding on potential exposures. 

Table 3 shows the 90th percentile 

human health risks to the most sensitive 

age cohorts for constituents that 

exceeded the risk criteria. Risks are 

presented for arsenic modeled entirely 

as two different species (III and V) to 

provide a bounding on potential risks. 

Values that exceed the selected risk 

criteria are shown in bold. No 90th 

percentile risks above ecological criteria 

were identified for either surface 

impoundment or landfills. No 50th 

percentile risks above human health or 

ecological criteria were identified for 

either surface impoundment or landfills. 


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188Profile for arsenic available online at: 

www.epa.gov/iris/subst/0278.htm and 

www.atsdr.cdc.gov/toxprofiles/tp2.pdf. 

189Profile for lithium available online at: 

hhpprtv.ornl.gov/issue_papers/Lithium.pdf. 

190Profile for molybdenum available online at: 

www.epa.gov/iris/subst/0425.htm. 

TABLE 3—90TH PERCENTILE NATIONWIDE PROBABILISTIC RISK RESULTS

COPC 

Ingestion of groundwater 

Surface 

impoundments Landfills 

Cancer Risks 

Arsenic III ...... 2 × 10–4 5 × 10–6

Arsenic V ...... 1 × 10–5 7 × 10–8

Noncancer Risks 

Arsenic III ...... 5 0.1 

Arsenic V ...... 0.4 <0.01 

Lithium .......... 2 (a) 

Molybdenum 2 <0.01 

a Leachate data were not available to model 

this COPC for landfills. 

• Surface Impoundments: 

Ingestion of groundwater was the only 

exposure pathway that resulted in risks 

above 1 × 10¥5. 90th percentile cancer 

risks above 1 × 10¥5 were identified for 

arsenic III (2 × 10¥4). The 90th 

percentile noncancer risks above an HQ 

of 1 were identified for arsenic III (5), 

lithium (2), and molybdenum (2). 

• Landfills: 

All 90th percentile cancer and noncancer risks were below human health 

criteria. 

High-end risks identified for surface 

impoundments are consistently higher 

than those for landfills. These results 

are attributed to the higher infiltration 

rates through surface impoundments, 

which are driven by the hydraulic head 

of the ponded water. Median risks for 

both surface impoundments and 

landfills were substantially lower than 

both the high-end risks in this risk 

assessment and the median risks 

modeled in the 2010 Risk Assessment. 

This decrease is attributed primarily to 

the interception of groundwater by 

surface water bodies, which is 

accounted for in the revised risk 

assessment to provide a more accurate 

mass balance of constituent mass during 

transport. It is common for coal-fired 

utilities to be located near water bodies, 

which are used as a source of cooling 

water and conveyance of waste. As a 

result, in the majority of model 

iterations, the interception of 

groundwater by surface water bodies 

resulted in negligible downstream well 

concentrations. 

Based on the results of the 

probabilistic analysis, EPA concludes 

that leaching from CCR waste 

management units has the potential to 

pose risk to receptors. Arsenic, lithium, 

and molybdenum are the chemical 

constituents found to pose the greatest 

risks from surface impoundments, while 

arsenic posed the greatest risks from 

landfills. Available toxicological 

profiles indicate that risks from arsenic 

ingestion are linked to an increased 

likelihood of cancer in the skin, liver, 

bladder and lungs, as well as nausea, 

vomiting, abnormal heart rhythm, and 

damage to blood vessels; 188 risks from 

lithium ingestion are linked to 

neurological and psychiatric effects, 

decreased thyroid function, renal 

effects, cardiovascular effects, skin 

eruptions, and gastrointestinal 

effects; 189 and risks from molybdenum 

ingestion are linked to higher levels of 

uric acid in the blood, gout-like 

symptoms, and anemia.190

4. Sensitivity and Uncertainty Analysis 

The modeled probabilistic risks 

capture the range of current, nationwide 

CCR disposal practices. However, 

because of the broad scope of the 

analysis, there are a number of sources 

of variability and uncertainty present. 

Therefore, to confirm the results of the 

probabilistic analysis and to better 

understand whether any particular 

subset of disposal practices drives the 

risks identified, EPA conducted 

additional sensitivity and uncertainty 

analyses. 

EPA reviewed the models used, as 

well as the data and assumptions input 

into these models, to better understand 

the sources of variability and 

uncertainty inherent in the probabilistic 

analysis. The Agency then qualitatively 

and, to the extent possible, 

quantitatively analyzed these sources to 

understand the potential effects each 

may have on the modeled risk results. 

During this review, specific attention 

was focused on the parameters shown to 

have the greatest influence on model 

results. As a further method of 

validation, EPA compared the results of 

the sensitivity and uncertainty analyses 

with proven and potential damage 

cases. Together these analyses and 

comparisons show that there is a high 

degree of confidence in the principal 

findings of the probabilistic analysis. 

However, the review of sensitive 

parameters revealed some specific 

disposal practices that may result in 

greater risks than identified in the 

probabilistic modeling. 

Through these additional sensitivity 

and uncertainty analyses, which 

explored different subsets of national 

disposal practices, EPA identified the 

potential for higher risks than those 

identified in the broader, national 

analysis. In particular, consideration of 

different waste pH values showed 

higher risks for arsenic at more acidic 

and basic pH values, as well as 

additional risks for boron, cobalt, 

fluoride and mercury at these more 

extreme pH values. Consideration of 

specific liner types showed that 

groundwater risks are driven by 

disposal in unlined units and, in 

particular, unlined surface 

impoundments. For these units, EPA 

identified higher risks for arsenic, 

lithium, and molybdenum, as well as 

additional risks for thallium. Clay-lined 

units were found to pose lower risks 

than unlined units. Composite-lined 

units were found to be the most 

protective disposal practice, resulting in 

risks far below all criteria identified in 

this risk assessment. 

C. Conclusions 

Based on the analyses presented in 

this document, EPA concludes that 

current management practice of placing 

CCR waste in surface impoundments 

and landfills poses risks to human 

health and the environment within the 

range that OSWER typically regulates. 

On a national scale, surface 

impoundments presented higher risks 

than landfills. Risks to ecological 

receptors were identified from 

exposures to aluminum, arsenic, 

barium, beryllium, boron, cadmium, 

chloride, chromium, selenium and 

vanadium through direct exposure to 

impoundment wastewater. Risks to 

residential receptors were identified 

primarily from exposures to arsenic, 

lithium, and molybdenum in 

groundwater used as a source of 

drinking water, but additional risks 

from boron, cadmium, cobalt, fluoride, 

mercury and thallium were identified 

for specific subsets of national disposal 

practices. 

Sensitivity analyses on liner type 

indicate that disposal of CCR wastes in 

unlined surface impoundments and 

landfills presents the greatest risks to 

human health and the environment. As 

modeled, the national risks from claylined units are lower than those for 

unlined units, but such units can exceed 

risk criteria at individual sites. 

Composite liners were the only liner 

type modeled that effectively reduced 

risks from all pathways and constituents 

far below human health and ecological 

criteria in every sensitivity analysis 

conducted. Sensitivity analyses on 

waste type indicate that the acidic 

conditions that result from codisposal of 

CCR waste with coal refuse and the 

basic conditions that result from 

disposal of FGD waste result in higher 


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21452 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

191 Damage Case Compendium (Technical 

Support Document on Damage Cases), U.S. EPA, 

December 2014. 

192See June 21, 2010 Federal Register— 

Appendix to the Preamble: Documented Damages 

from CCR Management Practices (75 FR 35230). 

193See 75 FR at 35131 for definitions of ‘‘proven’’ 

and ‘‘potential’’ damage cases. 

194Evaluations of CCP Damage Cases: These two 

volumes were finalized in July and September 2010, 

respectively: http://my.epri.com/portal/

server.pt?open=512&objID=413&&Page

ID=230509&mode=2&cached=true. 

195Coal Combustion Waste Damage Case 

Assessments, July 9, 2007. EPA–HQ–RCRA–2006– 

0796–0015. 

196Notice of Data Availability on the Disposal of 

Coal Combustion Wastes in Landfills and Surface 

Impoundments, 72 FR 49714, August 29, 2007. 

197 In Harm’s Way: Lack of Federal Coal Ash 

Regulations Endangers Americans and Their 

Environment. Environmental Integrity Project, 

Earthjustice, and Sierra Club: http://

www.environmentalintegrity.org/news_reports/08_

26_10.php. 

198Out of Control: Mounting Damages from Coal 

Ash Waste Sites. Environmental Integrity Project 

and EarthJustice: http://

www.environmentalintegrity.org/news_reports/

news_02_24_10.php. 

risks from arsenic and other 

constituents than CCR waste disposed 

alone. 

The risk results are consistent with 

the groundwater damage cases compiled 

by EPA. These damage cases were 

primarily associated with unlined units 

and were most frequently associated 

with releases of arsenic. Recent surveys 

of the industry indicate the majority of 

newly constructed units are lined, and 

that that the practice of codisposal with 

coal refuse has declined. However, this 

risk assessment presents a static 

snapshot of current disposal practices. 

While newer units may be managed in 

a more protective manner, older units, 

which still comprise the majority of 

current units, continue to operate in a 

manner that poses risks to human health 

and the environment that OSWER 

typically regulates. 

XI. Summary of Damage Cases 

EPA has a long history of considering 

damage cases in its regulatory decisions 

under RCRA. As discussed earlier in 

this preamble, the statute specifically 

directs EPA to consider ‘‘documented 

cases in which danger to human health 

and the environment from surface runoff or leachate has been proved,’’ in 

reaching its Regulatory Determination 

for these wastes, demonstrating that 

such information is to carry great weight 

in decisions under this section. 42 

U.S.C. 6982(n)(4). Damage cases, even if 

only potential damage cases, are also 

relevant under the third Bevill factor: 

‘‘potential danger, if any, to human 

health and the environment from the 

disposal and reuse of such materials.’’ 

42 U.S.C. 6982(n)(4). In addition, 

damage cases are among the criteria 

EPA must consider under its regulations 

for determining whether to list a waste 

as a ‘‘hazardous waste.’’ See 40 CFR 

261.11(a)(3)(ix). Damage cases generally 

provide extremely potent evidence in 

hazardous waste listings. In this regard, 

EPA notes that the number of damage 

cases collected for this rulemaking (157) 

is by far the largest number of 

documented cases in the history of the 

RCRA program. 

EPA considers that both proven and 

potential damage cases provide 

information directly relevant to this 

rulemaking. First, damage cases provide 

evidence of both the extent and nature 

of the potential risks to human health 

and the environment. The primary 

difference between a proven and a 

potential damage case is whether the 

contamination has migrated off-site of 

the facility. But the mere fact that 

groundwater contamination has not yet 

migrated off-site does not change the 

fact that a potentially harmful 

constituent has leached from the unit 

into groundwater. Whether the 

constituent ultimately causes further 

damage by migrating into drinking 

water wells does not diminish the 

significance of the environmental 

damage caused to the groundwater 

under the site, even where it is only a 

future source of drinking water. As EPA 

explained in the preamble to the 

original 1979 open dumping criteria, 

which are currently applicable to these 

facilities, EPA is concerned with 

groundwater contamination even if the 

aquifer is not currently used as a source 

of drinking water. Sources of drinking 

water are finite, and future users’ 

interests must also be protected. (See 44 

FR 53445–53448.) (‘‘The Act and its 

legislative history clearly reflect 

Congressional intent that protection of 

groundwater is to be a prime concern of 

the criterion. . . . EPA believes that 

solid waste activities should not be 

allowed to contaminate underground 

drinking water sources to exceed 

established drinking water standards. 

Future users of the aquifer will not be 

protected unless such an approach is 

taken.’’) 

In the June 21, 2010 proposed rule, 

EPA presented for public comment an 

assessment of CCR damage cases, and 

requested comments and other 

information related to damage cases 

EPA had previously received from 

industry, environmental groups, and 

citizen groups. EPA later requested 

public comment on additional damage 

case information in a Notice of Data 

Availability (NODA) published in the 

Federal Register on October 12, 2011 

(76 FR 63252). As discussed in Section 

IV of this preamble, the Agency is 

deferring making a Bevill determination; 

however, EPA is still presenting its 

findings with regard to damage cases 

(including information submitted 

during the comment periods for the June 

2010 proposal and the October 2011 

NODA) because as described above, this 

information supports actions taken in 

the present final rule.191

A. Damage Cases Presented in June 21, 

2010 Proposed Rule 

In the June 2010 proposed rule, the 

Agency summarized its database on 

damage cases that had expanded since 

the May 2000 Regulatory 

Determination.192 This summary 

included two cases of CCR slurry spill 

caused by surface impoundment dike 

failures (the 2005 Martins Creek, 

Pennsylvania, and the 2008 TVA 

Kingston, Tennessee), and two cases 

involving structural fill (the use, 

between 1995–2007, of CCR in the 

reclamation of two sand and gravel pits 

in Gambrills, Maryland; and for 

contouring the Battlefield Golf Course, 

in Chesapeake, Virginia, in the early 

2000s). In the June 2010 proposed rule, 

the Battlefield Golf Course site was 

designated as a potential damage case, 

whereas the other three sites were 

designated as proven damage cases.193

B. Additional Information and Studies 

Shortly prior to the publication of the 

June 2010 proposed rule and 

immediately thereafter, several 

stakeholder groups provided the Agency 

with new information on damage cases. 

In November 2009, the Electric Power 

Research Institute (EPRI) issued a twovolume draft report 194 analyzing the 24 

proven and 43 potential damage cases 

established in EPA’s 2007 damage case 

report 195 accompanying the August 

2007 Notice of Data Availability 

(NODA).196 EPRI claimed that in the 

great majority of damage cases there is 

no record of primary MCL contaminants 

migrating off-site that would justify 

designating them as proven damage 

cases. EPRI also disagreed with several 

ecologic damage cases that had been 

predicated on fish advisories in Texas, 

on the grounds that the selenium 

toxicity standard that triggered these 

fish advisories was later revised by the 

state, and subsequently the fish 

advisories were rescinded. In February 

and August 2010, The Environmental 

Integrity Project (EIP), jointly with other 

citizen groups, issued two reports, 

identifying 70 alleged damage 

cases.197 198 Fifty of these cases were 

submitted to EPA for the first time. 


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21453 

199See Assessment of Previously Identified 

Proven Damage and Recently Alleged Damage 

Cases, October 2010. 

200EPA–HQ–RCRA–2011–0392–0259. Nineteen 

of the cases involve groundwater impact, and one 

involves soil contaminated by the placement of coal 

ash and clinkers from train engine boilers for 

railroad tracks bed. A hard copy of the report, Risky 

Business: Coal Ash Threatens America’s 

Groundwater Resources at 19 More Sites, was 

issued on December 12, 2011. 

201Coal Combustion Waste Damage Case 

Assessments, ibid. 

In response to EPRI’s report, EPA 

reassessed the 24 proven damage cases 

identified in EPA’s 2007 Damage Case 

report, as well as three additional 

proven damage cases cited in the 

proposed rule. In addition, in response 

to EIP’s reports, the Agency assessed the 

70 alleged damage cases, to 

independently confirm the allegations 

in the report. In reviewing 199 these 

alleged damage cases, EPA took a 

number of measures. First, to the extent 

the information was available, EPA 

consulted tabulated monitoring well 

data to validate the exceedance data 

presented in comments; and studied 

well- and waste-unit location maps, 

geohydrologic studies, and groundwater 

potentiometric maps to validate both 

whether the wells were up-gradient or 

down-gradient wells and instances of 

groundwater mounding. EPA also 

contacted state regulators to confirm the 

reports’ claims of contamination, 

particularly contamination exceeding 

state or federal water quality standards, 

and conducted internet research 

(focusing on state regulatory 

information) pertaining to the sites in 

question. EPA also thoroughly assessed 

state comments submitted to EPA in 

response to the June 2010 proposed rule 

and the October 2011 NODA. Third, 

EPA identified state or federal 

administrative measures applied to 

utilities (e.g., consent orders, notices of 

violation, penalties for non-compliance, 

etc.) and/or legal motions (e.g., lawsuits, motions for injunctive relief, and 

out-of-court settlements) filed by the 

states or citizen groups in order to 

identify any instances of noncompliance by the utilities that have 

resulted in documented impacts to 

water resources. 

EPA’s review confirmed that 13 of the 

27 damage cases previously designated 

as proven did meet the criteria used by 

EPA for identifying proven damage 

cases; however, EPA also found that six 

of the 27 cases only meet the criteria for 

a potential damage case, while the 

remaining eight cases were altogether 

rejected (i.e., EPA determined that a 

damage case has not occurred, and/or 

test of proof criteria were not satisfied, 

and/or CCR was not the only or 

predominant waste component). 

Regarding the 70 alleged damage cases 

in the two EIP reports, EPA concluded 

that ten of them qualify as proven 

damage cases, 45 as potential damage 

cases, and the remainder were either 

rejected or, due to the lack of adequate 

information, defined as indeterminate. 

In November 2011, the Utility Solid 

Waste Activities Group (USWAG) 

submitted to the docket of the October 

2011 NODA a critical review of EIP’s 70 

alleged damage cases from 2010. 

USWAG’s review concluded that ‘‘the 

overwhelming majority of the 

allegations regarding the 70 sites . . . 

fail to provide the requisite ‘test of 

proof’ documentation necessary for EPA 

to characterize virtually any of the sites 

as proven damage cases.’’ Also, in 

November 2011 EIP submitted to the 

docket of the October 2011 NODA a 

report alleging 20 new damage cases.200

Following review of the comments on 

the proposed rule and the October 2011 

NODA, EPA has revisited some of its 

earlier damage case findings. Our postproposal studies have resulted in: (1) 

Rejection of 17 of the previouslyestablished and newly-alleged damage 

cases, either due to inappropriate scope 

(e.g., oil combustion waste, non-utility 

CCR, or CCR disposed-off in abandoned 

coal mine pits), co-mingling with nonCCR waste, or inadequate information to 

ascertain that contaminants are derived 

from CCR; (2) two of the damage cases 

that had been previously designated as 

‘rejected’ in EPA’s 2007 damage case 

report were re-categorized as proven 

damage cases and six others were recategorized as potential damage cases; 

and (3) one damage case site reported in 

Risky Business occurred next to a site 

that had already been previously 

reported. 

In summary, at the present time the 

Agency has established 40 proven and 

113 potential damage cases. In addition, 

the rulemaking docket contains four 

additional, state-endorsed damage cases 

from Wisconsin. While EPA has 

insufficiently-detailed information 

(including the extent, if any, that the 

contaminants have migrated off site) to 

designate these four additional sites as 

potential or proven, because the state 

has identified them to us as damage 

cases, we have included them in our 

overall total of 157. 

C. Stakeholder Comments on Damage 

Cases 

All of the comments submitted by 

stakeholders to the dockets of the 

proposed rule and the October 2011 

NODA, as well as EPA’s responses, are 

included in the Technical Support 

Document to CCR Damage Cases which 

is available in the RCRA docket 

supporting this rule. The following is a 

summary of the salient comments 

submitted by the various stakeholder 

groups. 

1. Utility Industry’s Comments 

EPA received several comments from 

utilities arguing that an incident should 

not be considered to be a ‘‘damage case’’ 

if the environmental damage has been 

addressed or is no longer occurring 

and/or if the State Director is satisfied 

that no further action is required. (Note: 

For those damage cases known to the 

Agency prior to EIP’s 2010 reports, 

remediation is completed or underway 

at all sites where remediation was 

known to be required.) These 

commenters also argued that EPA 

should disregard cases in which there 

are no downstream contaminant 

receptors to be harmed by the 

contamination. These commenters also 

alleged that only ‘‘proven’’ damage 

cases should be considered to be 

relevant as only these are ‘‘documented 

cases in which danger to human health 

or the environment from surface runoff 

or leachate has been proved,’’ 42 U.S.C. 

6982(n)(4). 

Industry commenters also made a 

number of other points. They stated that 

most damage cases occurred in older 

facilities commissioned before current 

state landfill regulations were 

promulgated, where most waste units 

lack liners and leachate collection 

systems, and that in most cases, 

exceedances of state or federal water 

quality standards were contained on 

site, and these exceedances are mostly 

for constituents (e.g., sulfate and boron) 

that do not have federal, health-based 

drinking water quality standards. These 

commenters also claimed that the 

number of proven damage cases is very 

sparse: Of the 24 proven damage cases 

in EPA’s 2007 report,201 they argued 

that only three had documented off-site 

groundwater exceedances of healthbased MCLs that can be attributed to 

CCR impacts. They also claimed that of 

the 70 alleged damage cases in EIP’s 

2010 reports (In Harm’s Way and Out of 

Control), 64 did not meet EPA’s ‘‘test of 

proof’’ criteria for characterizing the site 

as a proven damage case. For the 

remaining six sites, where the 

allegations on their face arguably met 

EPA’s definition of a proven damage 

case, these commenters claimed that 

these cases should be discounted 

because they involved sites that are 

either no longer active or where the 

damages had been already remediated 


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21454 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

202EPA–HQ–RCRA–2011–0392–0211, ibid. 

203A Zone of Discharge or Zone of Mixing is a 

three dimensional region containing groundwater 

being managed to mitigate impairment caused by 

the release of contaminants from a waste disposal 

site; by definition, it is inside the detection 

boundary area, hence it is exempt from compliance 

with MCL and SMCL standards (e.g., in Florida, 

Illinois, South Carolina, Tennessee, North Carolina, 

and Pennsylvania). 

or are undergoing remediation with 

federal/state oversight. These 

commenters also said that 12 of the 70 

EIP-alleged damage cases were 

previously addressed in EPA’s 2007 

Damage Case report, and of these, five 

sites had been rejected by the EPA due 

to lack of evidence of damage or lack of 

evidence of damage uniquely associated 

with CCR, and seven sites had been 

characterized as indeterminate due to 

insufficient information. According to 

these commenters, no new information 

regarding these 12 sites was contained 

in the two EIP reports that warrants 

their designation as proven damage 

cases.202

2. Individual State Comments 

EPA also received a significant 

number of comments from individual 

states. In their comments, many of the 

states addressed selected damage cases 

that occurred within their jurisdiction, 

subject to their authority. Several states 

agreed with EPA’s assessment of the 

damage cases; for instance, Wisconsin 

and Michigan complimented EPA’s 

database of damage cases. Other 

commenters agreed with some of the 

newly alleged damage cases’ reports of 

groundwater contamination exceeding 

regulatory standards, but disagreed with 

EIP’s conclusions that enforcement was 

inadequate, tardy, or absent. According 

to some state commenters, enforcement 

was not necessary or appropriate in 

those instances. For example, some 

states (e.g., North Carolina, Oklahoma, 

Tennessee, and Florida) argued that the 

contamination did not pose public 

health risks because the contaminants 

were confined to state-established 

Compliance Boundaries (known also as 

Groundwater Mixing Zones) 203 and/or 

because there was no evidence the 

contamination had migrated off-site. 

Several other states (e.g., Maryland, 

Virginia, and Texas) confirmed EPA’s 

established damage cases as well as 

some of the newly alleged damage cases, 

but claimed that these cases were 

associated with presently outdated 

practices, and that regulatory 

requirements have since been revised to 

prohibit such practices. Two states 

(South Dakota and Pennsylvania) 

confirmed that contamination above 

federal or state regulatory standards had 

occurred, but attributed the 

contaminant(s) to sources other than 

CCR units, e.g., coal mining pits 

associated with coal refuse; and/or 

nearby, up-gradient unlined MSWLFs, 

cooling water evaporation ponds, or 

natural background soil compositions. 

For certain cases, the states explained 

that required assessment monitoring 

was still ongoing to establish the source, 

scope, and extent of the contamination, 

and so had reached no conclusions 

about the specific allegations (North 

Carolina, North Dakota, and Tennessee). 

Finally Ohio acknowledged that the 

extent of groundwater contamination 

risk within the state is poorlydocumented due to the scarcity of 

monitoring wells down gradient from 

unlined disposal units. 

3. State Association Comments 

The Association of State and 

Territorial Solid Waste Management 

Officials (ASTSWMO) argued that the 

24 proven damage cases reported in 

EPA’s 2007 Damage Case report do not 

reflect current land disposal practices, 

and so are irrelevant to the proposed 

rule. For example, disposal ‘‘units’’ 

involved in several damage cases 

included five sand and gravel pits, two 

quarries, and one lake impoundment. 

ASTSWMO commented that half of 

these sites began operating in 1970 or 

earlier, including at least six sites that 

began operating in the early 1950s. 

ASTSWMO claimed that much of the 

information cited in the two EIP 2010 

alleged damage case reports is 

incomplete, incorrect and/or 

misleading. For example, their 

comments alleged that EIP failed to 

provide pertinent information on 

specific monitoring wells, sample/

analytical dates, and hydrogeological 

data. ASTSWMO also claimed that 

many of the assumptions about 

groundwater flow were based on a 

topographic maps rather than on 

potentiometric maps that are based on 

subsurface groundwater flow data. They 

also claim that data in state files 

contradicted claims in the reports, and 

that EIP’s reports contained numerous 

technical errors, such as reporting 

values for naturally occurring 

constituents as contamination, reported 

data without distinguishing between 

down-gradient and up-gradient wells, 

ignoring the potential contribution from 

sources other than CCR-related units 

(e.g., coal mining legacy), and claims 

that information provided by state 

program staff was misconstrued/

misrepresented. 

4. Citizens Group Comments 

Citizen groups generally argued that 

the fact that damage has occurred 

should be part of the weight of evidence 

documenting the potential for harm at 

all CCR disposal sites, without regard to 

whether the damage cases were 

categorized as ‘‘proven’’ or ‘‘potential.’’ 

These commenters also raised a number 

of arguments in direct response to the 

comments provided by the utilities and 

the states. For example, these 

commenters argued that the presence of 

downstream receptors is a valid factor to 

consider when setting priorities for 

mitigating damage, but does not justify 

allowing contamination to migrate off of 

the disposal site. These commenters 

claimed that about one-fifth of EPA’s 

damage cases preceding the 2010 EIP 

reports show evidence of contamination 

of private and public drinking water 

wells. In addition, these commenters 

allege that state regulatory agencies have 

done little to respond to contamination 

from CCR disposal sites, and, even in 

those cases where action has been taken, 

rarely is any action taken beyond 

assessment monitoring. According to 

these commenters, off-site monitoring 

has only occurred at a limited number 

of sites, and mostly such monitoring 

was performed voluntarily by the 

utilities and was not reported to state 

regulators. These commenters also 

claimed that although less than half of 

EPA’s damage cases preceding the 2010 

EIP reports involve active landfills, 

almost three-quarters of the newly 

alleged damage cases (EIP’s 2010 

reports) involve active landfills. They 

further alleged that a large majority of 

EPA’s surface impoundment damage 

cases preceding the 2010 EIP reports are 

active sites, indicating that the absence 

of liners is contributing to the 

contamination problems. They noted 

that one quarter of the damage cases in 

EIP’s 2010 reports involved units with 

liners, indicating that the mere presence 

of any liner provides no assurance that 

migration of contaminated groundwater 

from a waste unit is not occurring. 

Overall, they claimed that surface 

impoundments remain ‘‘woefully 

unregulated’’ when compared to 

landfills. Over one third of EIP’s alleged 

groundwater damage cases show 

migration of contamination off-site. 

Also, a quarter of EPA’s damage cases 

preceding the 2010 EIP reports involve 

contamination of surface water, and 15 

percent of these damage cases show 

ecologic damage. Finally, these 

commenters note that several of the 

Secondary Contaminant Maximum 

Levels (SMCLs) constituents still might 


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21455 

204Examples include boron’s One-Day and TenDay Health Advisory (3.0 mg/L) and the Longer 

Term Health Advisory (2.0 mg/L) levels for 

children; manganese’s Long Term Health Advisory 

(LTHA: 0.3 mg/L) level; and sulfate’s Drinking 

Water Advisory (DWA: 500 mg/L) level in 

groundwater have been exceeded each in between 

over 60 and close to 80 of both the alleged and 

damage case sites and those sites preceding the 

2010 EIP reports. 

205See EIP’s December 2011 Risky Business: Coal 

ash Threatens America’s Groundwater Resources at 

19 More Sites, docket document EPA–HQ–RCRA– 

2011–0392–0259, appendix A3. 

www.environmentalintegrity.org/.../

121311EIPThirdDamageReport.pdf and Illinois 

EPA’s Ash Impoundment Strategy Progress Reports, 

February 10 and October 2011, accessed Online July 

15, 2014: http://www.epa.state.il.us/water/

groundwater/publications/ash-impoundmentprogress.pdf and http://www.epa.state.il.us/water/

ash-impoundment/documents/ash-impoundmentprogress-102511.pdf. 

206 Groundwater Monitoring Data for Coal Ash 

Ponds, NC DENR: http://portal.ncdenr.org/web/wq/ 

hot-topics/coalashregulation/gwatermonitoring. 

Accessed Online July 15, 2014. 

cause harm to recipients residing next to 

CCR disposal sites.204

D. Response to Key Stakeholder 

Comments 

In many instances EPA did not have 

access to information that would either 

substantiate or refute the claims in EIP’s 

reports. In many instances public 

commenters submitted information that 

clarifies, rebuts or otherwise calls into 

question some of the allegations 

contained in the various damage case 

reports. For example, there are instances 

in which claims were made that a 

contaminant plume had migrated offsite 

even though there were no offsite 

monitoring wells to confirm the claim. 

Due to the dearth of groundwater 

monitoring on facilities’ boundaries (or 

beyond) EPA could not identify offsite 

plume migration for most sites, except 

in the rare instances drinking water 

wells had been contaminated. 

Consequently, only 10 of the 70 alleged 

cases submitted by EIP in 2010 were 

designated as proven damage cases. 

In addition, factual errors were 

identified in certain instances; for 

example, certain allegations of 

groundwater contamination were based 

on surface water standards (rather than 

groundwater standards). Corrections or 

updated facts are reflected in EPA’s 

damage case assessment. Nevertheless, 

EPA was able to validate a significant 

number of EIP’s claims; for example, as 

of 2011, EPA was able to confirm that 

a significant portion of the damage cases 

in EIPs 2010 report involved both 

landfills and surface impoundments, 

most of which involved units with 

either no liner or a substandard liner 

system. And for many of EIP’s damage 

cases, EPA was able to confirm 

sufficient details to classify them as 

potential damage cases. 

However, EPA disagrees with most of 

the arguments minimizing the 

significance of the damage case record. 

First, cases where contamination has 

been remediated remain relevant to this 

rulemaking. EPA is relying on the 

damage cases to evaluate the extent and 

nature of the risks associated with 

particular CCR management practices. 

Facts demonstrating the consequences 

from particular activities therefore 

remain relevant, particularly (although 

not solely) where the management 

practices continue to occur. In other 

words, what matters in this regard are 

facts that provide information on the 

reasons that unit leaked, the particular 

contaminants that were present, the 

levels of those contaminants, and the 

nature of any impacts caused by that 

contamination. None of these facts are 

affected by whether the damage is 

ultimately mitigated or remedied. This 

is entirely consistent with RCRA section 

8002(n), which requires EPA to evaluate 

the ‘‘potential danger, if any, to human 

health and the environment from the 

disposal and reuse of such materials’’ in 

addition to ‘‘documented’’ damage 

cases. 42 U.S.C. 6982(n)(3)–(4). 

Accordingly, the fact that any 

contamination has subsequently been 

remediated is not a basis for 

disregarding a damage case. Moreover, 

EPA is not relying on these damage 

cases to evaluate the adequacy of state 

programs, although it may ultimately 

provide information relevant to such 

findings. Therefore the adequacy of the 

state’s response, or the lack thereof, is 

also not relevant to whether particular 

damage cases are appropriately 

considered as part of this rulemaking. 

EPA also disagrees that only the 

presence of receptors within the impact 

sphere of a contaminating facility merits 

consideration of a particular damage 

case. EPA’s longstanding and consistent 

policy across numerous regulatory 

programs has been that groundwater 

contamination is a significant concern 

that merits regulatory action in its own 

right, whether or not the aquifer is not 

currently used as a source of drinking 

water. Sources of drinking water are 

finite, and future users’ interests must 

also be protected. The absence of 

current receptors is therefore also not an 

appropriate basis on which to discount 

damage cases. And for all of the reasons 

discussed above, EPA also disagrees that 

only exceedances of health-based 

standards of contaminants that have 

migrated off-site (i.e., only proven 

damage cases) should be accounted for 

as part of this rulemaking. 

The Agency also disagrees with the 

claims that the number of damage cases 

is ‘‘sparse,’’ the majority of which 

involve only ‘‘outdated CCR 

management practices’’ in older 

facilities, and therefore are not relevant 

to determining the current risks from 

CCR mismanagement. Even assuming 

that only ‘‘proven’’ damage cases were 

relevant, to date, EPA has confirmed a 

total of 40 proven damage cases, which 

is hardly ‘‘sparse.’’ And when 

‘‘potential’’ damage cases are 

considered, the totals rise to 157; this is 

the largest number of damage cases in 

the history of the RCRA program. 

Further, these numbers likely 

underestimate the true number of cases 

in which CCR units are contaminating 

groundwater. In reality, the damage case 

record represents only a subset of those 

CCR waste units that have effective 

groundwater monitoring. As discussed 

in Unit IV.A of this document, a 

significant portion of CCR surface 

impoundments still lack groundwater 

monitoring, and only approximately 

80% of the recently commissioned 

impoundments (i.e., since about 1994) 

have groundwater monitoring. 

In addition, under many state 

programs existing impoundments are 

exempt from groundwater monitoring 

and once monitoring is put in place, 

new damage cases quickly emerge. This 

is illustrated by two lines of evidence: 

First, in the wake of the 2008 TVA 

Kingston CCR spill two states required 

utilities for the first time to install 

groundwater monitoring. Illinois 

required facilities to install groundwater 

monitoring down gradient from their 

surface impoundments. As a result, 

within only about two years, Illinois 

detected seven new instances of primary 

MCL exceedances and five additional 

instances with exceedances of SMCLs. 

The data for all twelve sites were 

gathered from onsite; it appears none of 

these facilities had been required to 

monitor groundwater off-site, so 

whether the contamination had 

migrated off-site is currently 

unknown.205 Similarly, North Caroline 

required facilities to install additional 

down gradient wells. In January 2012, 

officials from the North Carolina 

Department of Environment and Natural 

Resources disclosed that elevated levels 

of metals have been found in 

groundwater near surface 

impoundments at all of the State’s 14 

coal-fired power plants.206

Second, states with effective programs 

for groundwater monitoring tend to 

have a larger record of damage cases 

(e.g., Wisconsin, nationally ranked as 

the 32nd CCR disposer in 2011, has 14 

damage cases) as compared to states 

with less stringent groundwater 


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207 Illinois uses a similar concept: Groundwater 

Mixing Zone; North Carolina waives any 

compliance requirements for constituents in 

exceedance of the state’s groundwater standards 

that are confined to monitoring wells within the 

Compliance Boundary; and in Pennsylvania and 

Tennessee, state laws do not require state response 

to onsite exceedances of secondary MCLs. 

208The observations cited in the following pertain 

to groundwater quality. Regarding surface water 

quality, NPDES permits in many states commonly 

have very limited requirements for monitoring 

discharge constituents, excluding all or most of the 

heavy metals. 

209E.g., Duke Energy’s Gibson Generating Station, 

Princeton, Indiana, a proven damage case. 

210Facilities with both wet and dry disposal 

waste units are implicated in less than twenty 

percent of the cases. 

211For a list of the key metals found in CCR 

wastewater and examples of the environmental 

concerns associated with them, see Steam Electric 

Power Generating Point Source Category: Final 

Detailed Study Report; EPA 821–R–09–008, October 

2009: http://water.epa.gov/scitech/wastetech/guide/ 

steam-electric/upload/Steam-Electric_DetailedStudy-Report_2009.pdf. 

212 In validation of the findings of the Risk 

Assessment accompanying this rule, EPA has 

documented numerous damage cases where 

selenium in CCR wastewater discharge into surface 

waters triggered the issuance of fish-consumption 

advisories as well as selenium MCL exceedances in 

groundwater, suggesting that selenium 

concentrations in CCR wastewater constitute a 

human health risk. 

213According to the draft Steam Industry’s 

Effluent Guidelines EA, the steam electric power 

monitoring requirements (e.g., Texas, 

nationally ranked as the second largest 

CCR disposer in 2011, has only three 

confirmed, potential damage case). 

Nor is it accurate that the majority of 

these damage cases involve older units 

that no longer reflect current 

management practices or state 

requirements. The commenters point to 

the fact that the majority of cases 

involve units constructed before current 

state landfill regulations were 

promulgated, and thus lack liners and 

leachate collection systems. EPA agrees 

that the majority of cases do involve 

such units, but this hardly reflects 

‘‘outdated’’ or irrelevant management 

practices. As discussed in Unit IV.A of 

this document, the majority of CCR 

continues to be managed in older (i.e., 

constructed pre-1994) units that lack 

liners and leachate collection systems, 

and will in fact continue to be managed 

in such units for at least the near future. 

Approximately six percent of the 

waste units associated with 

groundwater impacts have been 

constructed from 1990 onwards. 

Considering there is a lag time between 

the construction of many of the disposal 

units and the first detection of their 

groundwater impact by subsequently 

installed groundwater monitoring wells, 

the absence of damage cases associated 

with newer units is neither unexpected 

nor dispositive as to the level of risk 

such units pose. 

Finally, a number of other factors 

support the conclusion that the current 

number of damage cases likely 

underestimate the current risks. First, 

the combined effect of a number of 

current state regulatory provisions is to 

decrease the instances in which off-site 

contamination will be detected (or onsite contamination will need to be 

remediated). For example, several states 

have adopted ‘‘buffer zones’’ where 

certain standards may not apply; Florida 

designates certain areas as a ‘‘Zone of 

Discharge’’ (ZOD), in which numerical 

primary and secondary drinking water 

standards do not apply; this exemption 

extends even beyond the ZOD, unless 

ordered specifically by the state. In 

addition, secondary maximum 

contaminant levels (SMCLs) are not 

applicable to existing industrial 

facilities discharging to groundwater in 

the state.207 In other instances, states 

grant waivers to certain facilities that 

exceed health-based standards severalfold.208 Certain states (e.g., Indiana) 

consider surface impoundments as 

temporary storage facilities as long as 

they are dredged on a periodic basis 

(e.g., annually). Under these states’ 

rules, such impoundments are exempt 

from any solid waste regulations that 

would require groundwater monitoring, 

and from requirements for corrective 

action.209 Such requirements are likely 

to decrease the instances in which 

contamination above an MCL has 

migrated off-site will be detected. 

Second, the record documents several 

instances where, once the contaminant 

plume has migrated off-site and 

impacted private water wells, the utility 

has purchased these properties, thereby 

rendering the off-site contamination, 

‘‘on-site.’’ At times, this practice (which 

is condoned by the state) has expanded 

the ZOD to well beyond its original 

boundary. Once the status of the 

contaminant plume changes from offsite migration, which typically requires 

remedial action, back to onsite 

containment, this can affect the kind of 

corrective action the state requires of the 

utility (or indeed whether any will be 

required). 

E. Characterization of Impacts 

Associated With CCR Units 

1. CCR Waste Unit Types Associated 

With Damage Cases 

EPA’s documented record of 

confirmed damage cases is dominated 

by wet-disposal and treatment modes: 

Surface impoundments, cooling ponds, 

and artificial wetlands constitute close 

to half of the total number of implicated 

waste units. In comparison, dry disposal 

modes such as landfills, sand and gravel 

pits, storage piles for coal ash and FGD, 

and certain structural fills account for 

about one third of the confirmed 

damage cases.210 Sand and gravel pits 

and quarries as well as structural fills, 

comprise about ten percent of all the 

unit types that are associated with 

damage cases. 

2. Contaminants of Concern (COCs) 

Because the list of constituents to be 

monitored in groundwater varies from 

permit to permit and among states, 

accurate estimates of the frequency of 

constituents associated with 

groundwater impacts nationwide cannot 

be made with confidence. Based on the 

available monitoring records, the most 

prevalent contaminant among the 

primary MCLs identified in damage 

cases is arsenic, whereas the most 

prevalent contaminants identified 

among the secondary MCLs are sulfate 

and boron. Similarly, disparities from 

one permit to another as to which 

constituents are monitored in NPDES 

discharges from CCR impoundments 

limit EPA’s ability to identify trends 

associated with contaminants of 

concern. Based on the Agency’s record 

of all of the confirmed damage cases, it 

can be only established that the most 

prevalent COCs with respect to Primary 

Water Quality Criteria (WQCs) 

exceedances in surface water, and/or of 

cleanup standards in sediments and 

soils are selenium and arsenic, and for 

Secondary WQCs or cleanup standard 

exceedances, are boron and iron.211

The high mobility of boron and 

sulfate explains the prevalence of these 

constituents in damage cases that are 

associated with groundwater impacts. 

Damage cases impacting surface water 

that have also a documented ecologic 

impact comprise the largest subset of 

proven damage cases (over 40 percent). 

The most prevalent COC here is 

selenium, the bioaccumulative effects of 

which have caused abnormal mortality 

rates and sublethal effects such as 

histopathological changes and damage 

to reproductive and developmental 

success, adversely impacting aquatic 

populations and communities of fish 

and amphibians. Such impacted 

communities, residing both in lentic 

(e.g., cooling water lakes) and lotic (e.g., 

small to medium-size streams) settings 

that receive regulated (i.e., via permitted 

outfalls) and unregulated (i.e., via 

seepage) discharge from CCR 

impoundments were documented and 

rather extensively studied in several 

sites (e.g., in Texas, North Carolina, and 

South Carolina).212 213


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21457 

sector is responsible for a significant fraction of the 

toxic pollutants reported to be discharged in 

industrial National Pollutant Discharge Elimination 

System (NPDES) permits. 

214This issue is illustrated by the very limited 

monitoring record on mercury exceedances in 

surface water as compared to the extensive 

documentation of mercury impacts revealed in 

studied surface water that receive steam industry 

effluents. These studies have documented fish and 

invertebrates exposed to mercury from CCR 

wastewater exhibiting elevated levels of mercury in 

their tissues and developing sublethal effects such 

as reduced growth and reproductive failure. For an 

excellent summary of surface water ecologic and 

human health risks and impacts study results, see 

the cited Steam Electric Power study report. 

215These proven damage cases include eight 

cases where the utility was directed by the state to 

provide an alternative water supply (NIPSCO Yard 

520, IN; Constellation Energy Gambrills, MD; Don 

Frame Trucking, NY; Bruce Mansfield, PA; Trans 

Ash Landfill, TN; VEPCO Chisman Creek, VA; 

Stoneman, WI; and WEPCO Highway 59, WI); and 

two instances in which the utility provides 

substitute water to residents on a voluntary basis 

(Gibson Station, IN, and Colstrip, MT). In three 

additional, potential damage cases (Oak Creek, WI; 

Battlefield Golf Course, VA; and Joliet Station 9, IL), 

the utilities provide substitute water—out of 

abundance caution—to adjacent residential 

properties whose water wells were impacted by 

secondary MCL exceedances, and in two additional 

cases, the electrical utility was instructed by state 

regulators to provide substitute water to residential 

properties which either have had their drinking 

water wells impacted by trace amounts of thallium, 

within the State and the federal standards 

(Asheville, NC) or by exceedances of boron (Sutton, 

NC). Finally, in one case (Belews Creek, NC) the 

electric utility agreed to co-fund upgrading of 

potable water treatment plants in two 

municipalities to eliminate trihalomethanes, a 

carcinogenic by-product of power plant scrubber, 

bromide-containing river water subject to water 

treatment employing chlorine. 

216OU–12, Oak Ridge, Tennessee (an NPL site 

between 1989 and 1997); VEPCO, Chisman Creek, 

Virginia (an NPL site between 1983 and 1988); and 

the Lemberger Landfill, Wisconsin (1986 to 

present). 

217Town of Pines Groundwater Plume, Indiana 

(SA: 2003–Present): http://www.epa.gov/region5/

superfund/npl/sas_sites/INN000508071.htm. The 

Site is not listed on the National Priority List (NPL) 

although it qualifies for such listing. The SA 

approach uses the same investigation and cleanup 

process and standards that are used for sites listed 

on the NPL, while it can potentially save the time 

and resources associated with listing a site on the 

NPL. As long as a PRP enters into an SA approach 

agreement with EPA, there is no need for EPA to 

list the site on the NPL. 

218These are the formerly proven damage case of 

Salem Acres, Massachusetts (originally addressed 

in the 2007 Coal Combustion Waste Damage Case 

Assessments Report), and Industrial Excess 

Landfill, Uniontown, Ohio, an alleged damage case 

submitted by EIP in In Harm’s Way, 2010. 

219These catastrophic releases involved the 

release of 1.1 × 109, 2.7 × 108, 1.3 × 108, and 1 × 

108 gallons of CCR slurry at the spills of the 2008 

Kingston TVA, Tennessee; the 2014 Dan River, 

North Carolina; the 1967 Clinch River, Virginia; and 

the 2005 Martins Creek, Pennsylvania, 

respectively.) In addition, the possible ecologic 

impacts of two consecutive, 30 million gallons 

each, of CCR slurry releases (in 2007 and 2008) by 

the Eagle Valley power plant in Indiana have not 

been assessed. 

220Survey of the Potential Environmental and 

Health Impacts in the Immediate Aftermath of the 

Coal Ash Spill in Kingston, Tennessee. Laura Ruhl 

et al., Environ. Sci. Technol. Published online on 

May 4, 2009. Volume 43 (16), pp 6326–6333: 

http://pubs.acs.org/doi/abs/10.1021/es900714p. 

221A. Dennis Lemly and Joseph P. Skorupa: 

Wildlife and the Coal Waste policy Debate: 

Proposed Rules for Coal Waste Disposal Ignore 

Lessons from 45 Years of Wildlife Poisoning. 

Environ. Sci. Technol., 27 July, 2012. 

There are fewer recorded instances of 

surface water damage cases involving 

the heavy metal COCs such as 

antimony, beryllium, mercury, and 

thallium than of groundwater damage 

cases. It is unclear whether this 

genuinely reflects lower potential risks 

via this route of exposure. Intrinsic 

differences between the chemical and 

physical parameters of surface water 

and groundwater (e.g., the higher redox 

potential and the larger flow-rate of the 

former) would accelerate the removal of 

many metals from surface water through 

precipitation and/or adsorption and 

facilitate a greater dilution. However, as 

noted, NPDES permits in many states 

commonly have very limited 

requirements for monitoring discharge 

constituents, excluding all or most of 

the heavy metals, so this cannot be 

ruled out as at least a contributing 

factor.214

3. Failure/Impact Modes 

The CCR damage case record shows 

the following prevalent impact modes 

(more than one possible impact type per 

generating facility site is possible): 

Slightly over half of the recorded impact 

cases are associated with groundwater; 

about ten percent are associated with 

surface water, which quite frequently is 

also accompanied by documented 

ecological impacts and/or with the 

contamination of soils and/or river 

sediments; over one third are associated 

with both groundwater and surface 

water impacts; and about four percent 

are associated with catastrophic surface 

impoundment failures. 

The established damage case record 

includes ten sites involving exceedances 

of primary MCLs that have impacted 

drinking water wells. In all of these 

cases, the implicated utility provided 

alternative potable water to well water 

users.215 Three of the damage cases 

were listed on the National Priority List 

as Superfund sites,216 and one is a 

Superfund Alternative (SA) site.217 In 

the course of reassessing the pre-EIP 

2010 damage cases and vetting EIP’s 

alleged damage cases, the Agency 

rejected two other Superfund damage 

cases, because in addition to CCR, these 

site had also accepted large volume of 

non-CCR waste.218

Four major releases of CCR sludge 

associated with surface impoundment 

dike or pipe failure resulted in 

significant coal slurry releases,219

causing fish kills and other ecologic 

damage, and in some instances damage 

to infrastructure. In the Clinch River 

spill, for instance, it was estimated that 

217,000 fish were killed in a 90-mile 

stretch of the river in Virginia and 

Tennessee. The Clinch River plant coal 

ash had a high free lime content, which 

reacted with water in the settling pond 

to form an alkaline calcium hydroxide. 

As a result, during the release, pH was 

elevated to levels as high as 12.7. The 

high-toxicity shock also decimated 

benthic macro-invertebrate populations 

for a distance of over three miles below 

the spill site, and snails and mussels 

were eliminated for over 11 miles below 

the Clinch River power plant. 

As demonstrated in the aftermath of 

the 2008 coal ash spill in TVA Kingston, 

Tennessee, large impoundment dike 

breach incidents result in impacts to 

soil and river sediments. In a study 

conducted few months after the spill, 

Emory River’s downstream sediments 

showed high mercury concentrations 

similar to those detected in the coal ash 

(115–130 mg/kg).220 According to this 

study, the ecological effects of mercury 

in the coal ash and sediments depend 

on the chemical mobility of mercury in 

the solids and the potential for mercury 

methylation in the impacted area. 

Previous studies have shown that 

sulfate addition can promote 

methylation in freshwater ecosystems 

by stimulating sulfate reducing bacteria, 

the primary organisms responsible for 

producing methylmercury in the 

environment. In coal-ash-containing 

waters, a 10- to 20-fold increase in 

SO4

¥2 concentrations was observed in 

the Emory River Cove area relative to 

unaffected upstream sites. Therefore, 

the methylation potential of mercury 

from this material could be high because 

the coal ash also provides an essential 

nutrient (SO4

¥2) that encourages 

microbial methylation. In addition, 

leaching of contaminants from the coal 

ash caused contamination of surface 

waters in areas of restricted water 

exchange and slight elevation down 

gradient. The accumulation of arsenicrich fly ash in bottom sediment in the 

Emory River’s aquatic system could 

cause fish poisoning via both food 

chains and decrease of benthic fauna 

that is a vital food source. Another 

recent study estimates that the damage 

to fish and other wildlife incurred by 

both permitted and unpermitted CCR 

effluent discharge at some 22 sites 

amounts to over $2.3 billion.221


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222Wastes from the Combustion of Coal by 

Electric Utility Power Plants (First Report to 

Congress), EPA/530–SW–88–002, February, 1988, 

pages 4–30 to 4–33: http://www.epa.gov/osw/

nonhaz/industrial/special/fossil/coal-rtc.pdf. 

223These statistics are based on about 42 percent 

of the total CCR units at that time, for which liner 

information was available. RTC I attributes this low 

percentage to the common practice of disposal in 

off-site units, for which liner information was not 

available. 

224Based on three different partial surveys cited 

in the Second Report to Congress (RTC II, 1999): 

Wastes from the Combustion of Fossil Fuels, 

Volume 2—Methods, Findings, and 

Recommendations (Second Report to Congress), 

EPA 530–R–99–010, March 1999: http://

www.epa.gov/osw/nonhaz/industrial/special/fossil/

volume_2.pdf. 

225EPA compiled the baseline use of bottom 

liners by CCR landfills and surface impoundments 

from the following sources: (1) Impoundment data 

from EPA/OSWER’s 2009–2011 impoundment dam 

integrity site inspections; http://www.epa.gov/

waste/nonhaz/industrial/special/fossil/surveys2/

index.htm; (2) Impoundment data from ORCR’s 

2009 Information Collection Request (ICR) 

addressing power plants with impoundments; 

http://www.epa.gov/waste/nonhaz/industrial/

special/fossil/coalashletter.htm; and (3) Landfill 

and impoundment data from EPA Office of Water’s 

2010 ICR addressing power plants to be affected by 

the Steam Electric Power Generating Effluent 

Guidelines: http://water.epa.gov/scitech/wastetech/

guide/steam_index.cfm#point6. 

226See http://www.epa.gov/aboutepa/#regional 

for a list of states covered by each EPA Regional 

office. 

227According to the Report to Congress I (1988), 

in the mid-1980s, the distribution of unlined CCR 

waste units across EPA regions was as follows: For 

surface impoundments: 31.7 percent (Region 4); 

18.6 percent (Region 5); 6.2 percent (Region 7); and 

3.5 percent (Region 3). For landfills: 11.1 percent 

(Region 5); 2.9 percent (Region 3); and 2.4 percent 

(Region 4). 

228The Duke Energy’s Dan River, North Carolina, 

February 2, 2014 CCR slurry spill. 

a. Construction Year and First Detection 

Year 

Slightly over half of the CCR waste 

units identified as the source of 

groundwater contamination in the 

damage cases were commissioned in the 

1970s and 1980s, two boom decades of 

coal-fueled power generation growth in 

the U.S. Whereas the majority of the 

CCR waste units associated with damage 

cases were constructed before 1990, 

approximately six percent of the units 

in the damage cases (where the 

commissioning date is known) became 

operational after 1990. For 61 units with 

known commissioning dates, the 

median lag time between 

commissioning and the first detection of 

impact to groundwater is about 20 years. 

However, considering the large range of 

lag time values (between less than one 

year and 50 years) the recorded median 

lag time most probably reflects 

additional variables. Possible variables 

include monitoring wells that were 

installed after many of the waste units 

were already well into their operating 

stage, and the variable hydraulic 

conductivity of the impoundment’s 

substrate (including the effectiveness of 

its liner, if any), both of which will 

determine how quickly groundwater 

contamination is first detected. Overall, 

the evidence about the lag time between 

the commissioning of a waste unit and 

the first detection of the impact of its 

leakage implies that most likely there 

are prospective damage cases that have 

not yet been identified, challenging 

industry’s claims that the damage cases 

represent the legacy of a bygone 

regulatory regime. 

b. Liners 

Of the waste units implicated in 

damage cases to groundwater with 

information on liners, over 90 percent 

have either no liners, some sort of ashbased liners (e.g., Poz-O-Tec, an FGD/

lime-conditioned liner), or only partialor high-permeability (e.g., concrete) 

liners. The majority of the remaining 

CCR waste units is either clay-lined 

and/or has a recognizably-failed liner. 

Considering that over a half of CCR 

waste units associated with 

groundwater impacts were constructed 

in the 1970s and 1980s, historic 

information on liner prevalence and 

composition is highly pertinent. 

According to the February 1988 Report 

to Congress on coal combustion wastes 

(‘‘RTC I’’), before 1975 less than 20 

percent of all generating facility units 

managed their CCR in lined disposal 

units, and in generating facility units 

constructed since 1975, the share of 

lined units grew to over 40 percent.222

However, as late as in the mid-1980s, 

about three-quarters of all CCR units (87 

percent of surface impoundments and 

39 percent of landfills) were still 

unlined.223

In the mid-1990s, the estimated 

prevalence of unlined landfills still 

ranged between 43–57 percent, and 

between 71–72 percent for surface 

impoundments.224 According to the 

March 1999 Report to Congress on 

wastes from the combustion of fossil 

fuels (RTC II), the most prevalent liner 

type was compacted clay (about onehalf of all lined landfills, and about 

80-percent of all lined surface 

impoundments). Composite and/or 

synthetic liners were significantly more 

prevalent in landfills than in surface 

impoundments. Based on recent EPA 

data,225 the use of liners is still more 

prevalent in landfills than in surface 

impoundments. 

c. Geographic Distribution 

Close to 70 percent of all the 

established damage cases occur in EPA 

Regions 5, 4, and 3 (in descending 

frequency, Region 5: 34 percent; Region 

4: 28 percent; and Region 3: seven 

percent).226 This distribution correlates 

well with the regional distribution of 

unlined CCR units in the mid-1980s.227

d. Current CCR Waste Unit Status 

As of mid-2011, close to half of the 

combined (proven and potential) 

damage case CCR waste units were still 

active; about a quarter were inactive due 

to either closure of the individual 

disposal unit, a fuel switch (e.g., from 

coal to gas) by the generating facility, or 

the decommissioning of the facility. 

Another quarter or so represented power 

generating facilities where CCR waste 

units (primarily impoundments) that 

failed to comply with state requirements 

had been closed and replaced by other, 

new disposal units, and/or the 

generating facilities switched from wetto dry disposal. Since mid-2011, the 

percentage of inactive CCR units 

associated with groundwater damage 

cases has further increased, due to the 

continued drop in power demand 

during the economic recession, which 

has resulted in power station temporary 

removal from active service (i.e., 

mothballing) and closures, combined 

with an increasing switch by many 

facilities to a more cost-effective fossil 

fuel (i.e., natural gas). 

F. Conclusions 

EPA now has a significantly better 

understanding of CCR damage cases 

than when the proposed rule was 

issued. First, damage cases are more 

numerous than previously contemplated 

and as more monitoring well systems 

are installed, the number of damage 

cases is likely to increase. Second, the 

CCR damage case record corroborates 

the findings of the risk analysis by 

demonstrating the greater vulnerability 

of groundwater (and surface water) to 

wet disposal (i.e., surface 

impoundments). Third, the damage 

cases show a direct correlation between 

the absence of liners and groundwater 

impacts, and illustrate that whereas in 

general the design of waste units— 

particularly surface impoundments— 

has improved over time, a notable 

portion of CCR impoundments 

constructed in the last two decades still 

lack a protective liner, thus presenting 

a potential threat to groundwater. 

Finally, a recent CCR spill incident 228

demonstrates that inactive surface 

impoundments that have not been 

properly decommissioned (i.e., by 

breaching, dewatering, and capping or 

by clean-closing) continue to pose a 


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significant risk to human health and the 

environment. 

XII. Summary of Regulatory Impact 

Analysis 

EPA estimated the costs and benefits 

of the final rule. The Regulatory Impact 

Analysis (RIA) is available to the public 

in the docket for this action. 

A. Costs of the Final Rule 

The estimated costs of the final rule 

are summarized in Table XII–A below. 

These are the incremental costs above 

the ‘‘baseline.’’ i.e., the current costs for 

managing CCR absent this regulation. 

The baseline takes into account existing 

state regulations for managing CCR now 

and into the future. To the extent that 

some states may have granted waivers or 

variances for certain provisions of State 

requirements, or in other instances may 

have added extra pollution control 

requirements above existing regulatory 

requirements to some specific permits 

issued to electric utility plants for 

operating CCR management units, the 

RIA did not take those actions into 

account. 

EPA used the following data sources 

to create a model for the RIA that 

estimates the costs and benefits of the 

rule: (1) 2012 DOE EIA–923 database; 

(2) ORCR’s 2009–2012 CCR 

impoundment site inspections; (3) 

impoundment data from ORCR’s 2009 

mail survey to plants with CCR 

impoundments; (4) landfill and 

impoundment data from EPA Office of 

Water’s 2010 mail survey to power 

plants in support of the 2013 proposed 

Steam Electric Power Generating 

Effluent Limitation Guidelines; (5) 

Integrated Planning Model (IPM) v. 5.13 

(for the future projection of coal 

consumption by electric utility plants); 

and (6) the 1995 Electric Power 

Research Institute (EPRI) Comanagement Survey. 

TABLE XII–A—ESTIMATED COST OF POLLUTION CONTROLS REQUIRED BY THE CCR FINAL RULE

[Millions 2013$] 

CCR pollution control 

@ 3% discount rate @ 7% discount rate 

Annualized 

values 

Present 

values 

Annualized 

values 

Present 

values 

1. Groundwater monitoring ...................................................................... $4 .79 $151 $2 .80 $39 .9 

2. Bottom liners ........................................................................................ 491 15,500 297 4,230 

3. Leachate collection system (landfills only) .......................................... 51 .6 1,630 18 .4 263 

4. Fugitive CCR dust controls ................................................................. 7 .09 224 3 .36 48 .0 

5. Stormwater run-on/run-off controls ...................................................... 18 .8 594 13 .0 186 

6. Location restrictions ............................................................................. 43 .6 1,380 20 .0 285 

7. Closure capping ................................................................................... 20 .1 630 12 .0 171 

8. Post-closure groundwater monitoring (30 years) ................................ 0 .08 2 .40 0 .04 0 .61 

9. Impoundment structural integrity requirements ................................... 10 .9 344 11 .1 158 

10. Corrective action (CCR contaminated groundwater cleanup) ........... 19 .0 600 19 .1 273 

11. Reporting and recordkeeping ............................................................ 26 .3 831 27 .3 389 

12. Conversion to dry CCR handling ...................................................... 29 .0 916 57 .3 818 

13. Inactive impoundments (dewater and closure cap) .......................... 12 .0 380 26 .7 381 

14. Subtotal industry costs (1+...+13) ..................................................... 734 23,200 508 7,240 

State Agency Burden Costs 

15. Impoundment structural integrity requirements ................................. 0 .22 6 .88 0 .22 3 .16 

16. Corrective action ................................................................................ 0 .38 12 .0 0 .38 5 .45 

17. Reporting and recordkeeping ............................................................ 0 .53 16 .6 0 .55 7 .78 

18. Subtotal State agency burden costs (15+16+17) ............................. 1 .12 35 .5 1 .15 16 .4 

19. Total cost (14+18) ............................................................................. 735 23,200 509 7,260 

B. Benefits of the Final Rule 

The RIA contains two categories of 

benefits (1) benefits that are monetized 

and (2) non-monetized benefits. The 

RIA estimates 11 categories of expected 

future human health and environmental 

benefits for the CCR rule. These include 

reduced future CCR impoundment 

structural failure releases; reduced 

future CCR groundwater contamination; 

improved air quality from reduced 

power plant air pollution; and surface 

water quality benefits. The estimated 

value of each of the 11 monetized 

benefits is presented in Table XII–B 

below. 

TABLE XII–B—EPA ESTIMATED MONETIZED BENEFITS FOR THE CCR FINAL RULE

[Millions 2013$ over 100-year period of analysis 2016–2114] 

3% discount rate 7% discount rate 

Annualized Present value Annualized Present value 

1. Reduced CCR impoundment structural failure releases ..................... $156 $4,910 $143 $2,040 

2. Reduced CCR landfill & impoundment groundwater contamination ... 12 .8 405 9 .86 141 

3. Induced increase in future annual CCR beneficial uses ..................... 117 3,130 79 .0 1,120 

4. Reduced incidence of cancer from CCR exposure ............................ <0 .1 0 .17 <0 .1 <0 .1 

5. Avoided IQ losses from mercury in CCR ............................................ 0 .28 8 .80 <0 .1 0 .35 

6. Avoided IQ losses from lead in CCR .................................................. 0 .186 5 .87 <0 .1 0 .23 

7. Reduced need for specialized education (associated with 5 & 6 

above) .................................................................................................. <0 .1 <0 .1 <0 .1 <0 .1 

8. Non-market surface water quality benefits .......................................... 2 .26 71 .4 1 .89 27 .0 


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21460 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 

229See letter from Gary N. Dietrich to Paul Elmer, 

USWAG, available in the docket for this rule. 

TABLE XII–B—EPA ESTIMATED MONETIZED BENEFITS FOR THE CCR FINAL RULE—Continued 

[Millions 2013$ over 100-year period of analysis 2016–2114] 

3% discount rate 7% discount rate 

Annualized Present value Annualized Present value 

9. Protection of threatened & endangered species near CCR impoundments .................................................................................................... 0 .91 28 .7 0 .76 10 .8 

10. Improved air quality from induced changes to power plant emissions ..................................................................................................... 4 .66 147 2 .04 29 .1 

11. Reduced power plant groundwater withdrawals ............................... <0 .1 <0 .1 <0 .1 <0 .1 

12 Total monetized benefits (1 + . . . + 11) ........................................... 294 8,710 236 3,360 

In addition to the monetized benefit 

categories, the RIA describes 11 

additional non-monetized benefit 

categories. Due to uncertainties and 

weaknesses in supporting 

documentation for quantifying and 

monetizing these benefits, the RIA 

presents these benefits separately from 

the benefits listed above, and does not 

include them in the quantified 

comparison of benefits and costs. These 

non-monetized benefits include: 

1. Financial market benefits 

2. Reduced community dread of CCR 

impoundment structural failure releases 

3. Reduced health and property 

nuisance impacts from CCR fugitive 

dust 

4. Cancer and non-cancer human 

health benefits from reduced CCR 

contamination of fish consumed by 

recreational anglers and subsistence 

fisher households in surface waters near 

power plants (additional to monetized 

avoided health effects) 

5. Cancer and non-cancer human 

health benefits from reduced CCR 

exposure by other recreational users of 

surface waters near power plants 

(additional to monetized avoided health 

effects) 

6. Avoided CCR contamination of 

sediments in surface waters near power 

plants 

7. Water quality benefits from avoided 

CCR contamination treatment costs for 

use of surface waters for drinking and 

irrigation water supply 

8. Commercial fisheries benefit in 

surface waters near power plants 

9. Increased participation in waterbased recreation near power plants 

10. Avoided fish impingement and 

entrainment mortality from power plant 

water intakes (induced conversion to 

dry CCR handling reduces future water 

demand for CCR sluicing) 

11. Increased property values 

surrounding electric utility plants (from 

closure capping and re-vegetation of 

CCR surface impoundments) 

The total monetized benefits less the 

total costs of the rule provide the net 

monetized benefits of the rule. Table 

XII–C summarizes the total costs and 

benefits as well as the net benefits of the 

rule. 

TABLE XII–C—EPA ESTIMATED INCREMENTAL COSTS & BENEFITS OF THE CCR RULE

[Millions 2013$ over 100-year period of analysis 2015–2114] 

3% discount 

rate 

7% discount 

rate 

A. Annualized Values.

A1. Total Costs .................................................................................................................................................... $735 $509 

A2 Total monetized benefits ................................................................................................................................ 294 236 

A3. Net Benefits (A2–A1) .................................................................................................................................... (441) (273) 

A4. Benefit to Cost Ratio (A3/A1) ....................................................................................................................... 0 .40 0 .46 

B. Present Value.

B1. Total Costs .................................................................................................................................................... 23,200 7,260 

B2 Total monetized benefits ................................................................................................................................ 8,710 3,360 

B3. Net Benefits (B2–B1) .................................................................................................................................... (14,490) (3, 900) 

B4. Benefit to Cost Ratio (B2/B1) ....................................................................................................................... 0 .38 0 .46 

XIII. Uniquely Associated Wastes 

By way of this rule, EPA is codifying 

in § 261.4(b)(4) a list of low volume 

waste that when co-disposed with CCR 

are not subject to hazardous waste 

regulations. These wastes are also 

referred to as uniquely associated 

wastes. However, these uniquely 

associated wastes are subject to 

hazardous waste regulations when they 

are not co-disposed with CCR. 

In a letter to EPA dated October 10, 

1980 the Utility Solid Waste Activities 

Group (USWAG) suggested interpretive 

language that EPA should adopt 

regarding the amendments to the Solid 

Waste Disposal Act Amendments of 

1980 which address fossil fuel 

combustion wastes. EPA replied to 

USWAG by letter dated January 13, 

1981 (known as the 1981 Dietrich 

letter), and addressed, among other 

issues, other associated wastes 

generated in conjunction with the 

burning of fossil fuels.229 EPA stated 

that ‘‘We believe it is appropriate, in the 

light of Congressional intent, to 

interpret the § 261.4(b)(4) exclusion to 

include other wastes that are generated 

in conjunction with the burning of fossil 

fuels and mixed with and co-disposed 

or co-treated with fly ash, bottom ash, 

boiler slag and flue gas emission control 

wastes.’’ When amendments to the 1980 

Solid Waste Disposal Act were 

introduced, Congressmen Bevill and 

Rahall stated, respectively: 

It is the sponsor’s intention that this list of 

waste materials in the amendment be read 

broadly, to incorporate the waste products 

generated in the real world as a result of the 

combustion of fossil fuels. We do not believe 

that these terms should be narrowly read and 

thus impose regulatory burdens upon those 

who seek to assist the Nation by burning 

coal. EPA should recognize that these ‘‘waste 

streams’’ often include not only the 


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21461 

230See http://www.epa.gov/osw/nonhaz/

industrial/special/fossil/coal-rtc.pdf, pages 3–41 to 

3–62. This report addressed wastes generated from 

the combustion of coal by electric utility power 

plants, and did not address comanaged utility coal 

combustion wastes, other fossil fuel combustion 

wastes, and wastes from non-utility boilers. 

231http://www.epa.gov/osw/nonhaz/industrial/

special/mineral/080993.pdf. 

232http://www.epa.gov/osw/nonhaz/industrial/

special/fossil/volume_2.pdf. 

byproducts of the combustion of coal and 

other fossil fuels, but also relatively small 

proportions of other materials produced in 

conjunction with the combustion, even if not 

derived directly from these fuels. EPA should 

not regulate these waste streams because of 

the presence of these materials, if there is no 

evidence of any substantial environmental 

danger from these mixtures. (126 Cong. Rec. 

H1102). 

In the real world, these waste materials do 

not include solely fly ash, bottom ash, slag, 

or scrubber sludge. Quite often, other 

materials are mixed with these large volume 

waste streams, with no environmentally 

harmful effects, and often with considerable 

benefit-as when, for example, boiler cleaningacids are neutralized by being mixed with 

alkaline fly ash. These appear to me to be 

environmentally beneficial practices, which 

EPA should encourage. At the very least, 

however, the Agency should take no steps to 

discourage them until it has developed a full 

factual understanding of the situation. This 

amendment would assure that EPA allows all 

persons burning coal to avoid unnecessary 

regulation of the byproducts produced by 

that combustion, as those byproducts are 

currently being managed in the real world, by 

real people, with real sense. (126 Cong. Rec. 

H1104). 

As such, EPA interpreted 40 CFR 

261.4(b)(4) (the Bevill exemption) to 

mean that wastes produced in 

conjunction with the combustion of 

fossil fuels, which are necessarily 

associated with the production of 

energy, and which traditionally have 

been, and which actually are, mixed 

with and co-disposed or co-treated with 

fly ash, bottom ash, boiler slag, or flue 

gas emission control wastes from coal 

combustion are not hazardous wastes. In 

the Deitrich letter EPA stated that these 

other associated wastes include, but are 

not limited to the following wastes: (1) 

Boiler cleaning solutions; (2) boiler 

blowdown; (3) demineralizer 

regenerant; (4) pyrites; and (5) cooling 

tower blowdown. 

In a February 1988 Report to Congress 

on Wastes from the Combustion of Coal 

by Electric Utility Power Plants EPA 

listed the following low-volume wastes 

commonly produced in conjunction 

with the burning of fossil fuels to 

produce electricity: (1) Boiler 

blowdown; (2) coal pile run-off; (3) 

cooling tower blowdown; (4) 

demineralizer regenerants and rinses; 

(5) metal and boiler cleaning wastes; (6) 

pyrites; and (7) sump effluents. 

Presented for each type of low-volume 

waste is a brief description of how the 

waste is generated, typical quantities 

produced, and the physical and 

chemical composition of the waste.230

The source of this information was 

primarily an August 1981 USWAG/

Edison Electric Institute report in 

response to a request for information in 

the 1981 Dietrich letter. 

In an August 1, 1993 Regulatory 

Determination the Agency emphasized 

that co-management of low-volume 

wastes and large-volume wastes (fly ash, 

bottom ash, boiler slag, or flue gas 

emission control wastes from coal 

combustion) makes the combined waste 

stream a remaining waste that would be 

subject to a subsequent Regulatory 

Determination and provided the list 

below of management practices that 

result in combined waste streams that 

are remaining wastes.231

• Discharge of boiler blowdown to a 

large-volume waste impoundment, 

• Discharge of demineralizer 

regenerant to a large-volume waste 

impoundment, 

• Discharge of metal cleaning wastes 

to a large-volume waste impoundment, 

• Discharge of boiler chemical 

cleaning wastes to a large-volume waste 

impoundment, 

• Discharge of plant wastewater 

treatment effluent to a large-volume 

waste impoundment, 

• Discharge of coal mill rejects to a 

large-volume waste impoundment, 

• Disposal of oil ash in a largevolume waste landfill or impoundment, 

• Disposal of plant wastewater 

treatment sludge in a large-volume 

waste landfill. 

In a 1999 Report to Congress on 

wastes from the combustion of fossil 

fuels 232 EPA stated that low-volume 

wastes are generated as a result of 

supporting processes that are ancillary 

to, but a necessary part of, the 

combustion and power generation 

processes and provided the following 

list of low-volume wastes. 

• Coal pile run-off 

• Coal mill rejects/pyrites 

• Boiler blowdown 

• Cooling tower blowdown and sludge 

• Water treatment sludge 

• Regeneration waste streams 

• Air heater and precipitator washwater 

• Boiler chemical cleaning waste 

• Floor and yard drains and sumps 

• Laboratory wastes 

• Wastewater treatment sludge 

The concept of uniquely associated 

wastes with respect to CCR was first 

introduced in the May 22, 2000 

Regulatory Determination. Prior to this, 

these wastes were referred to as other 

wastes, remaining wastes, or lowvolume wastes, that are generated in 

conjunction with the burning of fossil 

fuels and mixed with and co-disposed 

or co-treated with fly ash, bottom ash, 

boiler slag and flue gas emission control 

wastes. For the May 22, 2000 Regulatory 

Determination, the Agency proposed the 

uniquely associated wastes concept 

with the intent of being consistent with 

other wastes covered under the Bevill 

Amendment (a.k.a., the Bevill 

exemption), such as mining and mineral 

processing wastes that the Agency refers 

to as uniquely associated wastes, and 

under the Bentsen Amendment for oil 

and gas exploration and production 

wastes which are referred to as 

associated wastes. The Agency 

recognized that determining whether a 

particular waste is uniquely associated 

with fossil fuel combustion involves an 

evaluation of the specific facts of each 

case. In the Agency’s view, the 

following qualitative criteria should be 

used to make such determinations on a 

case-by-case basis: 

(1) Wastes from ancillary operations 

are not ‘‘uniquely associated’’ because 

they are not properly viewed as being 

‘‘from’’ fossil fuel combustion. 

(2) In evaluating a waste from nonancillary operations, one must consider 

the extent to which the waste originates 

or derives from the fossil fuels, the 

combustion process, or combustion 

residuals, and the extent to which these 

operations impart chemical 

characteristics to the waste. 

EPA proposed the following list of 

wastes that the Agency considered to be 

uniquely associated wastes (i.e., 

uniquely associated with the 

combustion of coal for the generation of 

electricity at electric utilizes and 

independent power producers and, 

therefore, covered by the Bevill 

exemption). 

• Coal Pile Run-off 

• Coal Mill Rejects and Waste Coal 

• Air Heater and Precipitator Washes 

• Floor and Yard Drains and Sumps 

• Wastewater Treatment Sludges 

• Boiler Fireside Chemical Cleaning 

Wastes 

EPA also proposed the following list 

of wastes that would not be considered 

uniquely associated wastes. 

• Boiler Blowdown 

• Cooling Tower Blowdown and 

Sludges 

• Intake or Makeup Water Treatment 

and Regeneration Wastes 

• Boiler Waterside Cleaning Wastes 

• Laboratory Wastes 

• General Construction and Demolition 

Debris 


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• General Maintenance Wastes 

EPA requested comments on these 

proposed lists and received several 

comments from states, industry, and the 

environmental community. Industry 

opposed the ‘‘uniquely associated’’ 

waste framework, and favors retaining 

the 1981‘‘Dietrich Policy.’’ 

Many commenters argued that the 

Dietrich policy has provided clear 

guidance on the scope of the Bevill 

exemption for the past 20 years, and 

that appropriate waste management 

practices have been implemented for 

these wastes. The Dietrich Policy has 

proven itself effective in furthering 

congressional intent to recognize certain 

historic co-management practices 

provided they are not environmentally 

harmful. The Association of State and 

Territorial Solid Waste Management 

Officials recommended that EPA contact 

States that have management programs 

for fossil fuel combustion wastes to 

determine how to best manage the waste 

that are uniquely associated or not 

uniquely associated with fossil fuel 

combustion wastes. The Hoosier 

Environmental Council opposed 

exempting coal wastes and stated that 

‘‘coal mill rejects and coal pile run-off 

would not be uniquely associated 

wastes . . . because neither of these 

wastes is derived from coal 

combustion.’’ 

EPA acknowledges that the Deitrich 

letter has been longstanding policy with 

regard to CCR uniquely associated 

wastes and that the Agency has not 

sought input from States on the issue. 

Moreover, as evident from the 

Congressional Record, the Congressional 

intent was to ‘‘include not only the 

byproducts of the combustion of coal 

and other fossil fuels, but also relatively 

small proportions of other materials 

produced in conjunction with the 

combustion, even if not derived directly 

from these fuels.’’ These other materials 

would include many of those listed in 

the Dietrich letter as well as many of 

those listed in the May 2000 Regulatory 

determination. 

After considering the 1981 Dietrich 

letter, a copy of which is included in the 

docket for this rule, the proposed 

guidance in the May 2000 Regulatory 

Determination, comments received on 

the May 2000 Regulatory Determination 

and the July 2010 proposed rule, EPA 

has concluded that the 1981 Dietrich 

letter accurately reflects the intent of 

Congress when they exempted CCR 

from hazardous waste regulations. EPA 

also believes that many of the wastes 

listed as uniquely associated wastes in 

the May 22, 2000 Regulatory 

Determination are also consistent with 

the Congressional intent. Therefore, the 

Agency is finalizing the following list of 

uniquely associated wastes that 

includes materials from both the 

Dietrich letter and the May 2000 

Regulatory Determination. 

• Coal pile run-off 

• Boiler cleaning solutions 

• Boiler blowdown 

• Process water treatment and 

demineralizer regeneration wastes 

• Cooling tower blowdown 

• Air heater and precipitator washes 

• Effluents from floor and yard drains 

and sumps, and 

• Wastewater treatment sludges 

This list is being codified in 40 CFR 

261.4(b): Solid wastes which are not 

hazardous wastes. 

XIV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under section 3(f)(1) of Executive 

Order 12866 (58 FR 51735, October 4, 

1993), this action is an ‘‘economically 

significant regulatory action’’ because it 

is likely to have an annual effect on the 

economy of $100 million or more. The 

total annual cost of this final rule is 

estimated to be $509 million a year 

using a 7% discount rate. Accordingly, 

EPA submitted this action to the Office 

of Management and Budget (OMB) for 

review under Executive Orders 12866 

and 13563 (76 FR 3821, January 21, 

2011) and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

In addition, EPA prepared an analysis 

of the potential costs and benefits 

associated with this action. The 

Regulatory Impact Analysis (RIA) 

estimated the costs and benefits for this 

action. The RIA estimated 12 regulatory 

costs: (1) Groundwater monitoring; (2) 

bottom liner installation; (3) leachate 

collection system installation and 

management; (4) fugitive dust controls; 

(5) rain and surface water run-on/run-off 

controls; (6) disposal unit location 

restrictions (including water tables, 

floodplains, wetlands, fault areas, 

seismic zones, and karst terrain); (7) 

closure capping to cover units; (8) postclosure groundwater monitoring 

requirements; and (9) impoundment 

structural integrity requirements; (10) 

corrective actions (CCR contaminated 

groundwater cleanup); (11) paperwork 

reporting/recordkeeping; and (12) 

impoundment closures and conversion 

to dry handling. Using a 7% discount 

rate, the annualized costs are estimated 

at $509 million, and using a 3% 

discount rate, annualized costs are 

estimated to be $735 million. Using a 

7% discount rate, the total present value 

costs are estimated at $7.3 billion, and 

using a 3% discount rate the present 

value of estimated costs is $23.2 billion. 

The RIA estimated 11 monetized 

benefits: (1) CCR impoundment release 

prevention; (2) CCR landfill & 

impoundment groundwater 

contamination prevention; (3) induced 

increase in CCR beneficial uses (e.g., 

concrete, wallboard); (4) reduced 

incidence of cancer from CCR exposure; 

(5) avoided IQ losses from mercury; (6) 

avoided IQ losses from lead; (7) reduced 

need for specialized education; (8) nonmarket surface water quality benefits; 

(9) protection of threatened & 

endangered species near CCR 

impoundments; (10) improved air 

quality from induced changes to power 

plant emissions and (11) reduced power 

plant groundwater withdrawals. The 

annualized monetized benefits are 

estimated at $294 million (@ 3% 

discount rate) and $236 million (@ 7% 

discount rate). The total present value 

monetized benefits are estimated at $8.7 

billion (@ 3% discount rate) and $3.4 

billion (@ 7% discount rate). 

B. Paperwork Reduction Act (PRA) 

The information collection activities 

in this rule will be submitted for 

approval to the Office of Management 

and Budget (OMB) under the PRA. The 

Information Collection Request (ICR) 

document that the EPA prepared has 

been assigned EPA ICR number 1189.25, 

OMB control number 2050–0053. You 

can find a copy of the ICR in the docket 

for this rule, which will be available in 

the docket once the ICR has been 

submitted to OMB for review, and it is 

briefly summarized here. The 

information collection requirements are 

not enforceable until OMB approves 

them. 

These regulations, promulgated under 

subtitle D of RCRA, constitute national 

minimum criteria with which facilities 

must comply without oversight or 

intervention by a federal or state 

authority. To address concerns about 

the absence of regulatory oversight 

under a subtitle D regulation, EPA has 

developed a combination of 

mechanisms, including recordkeeping, 

notification, and maintaining a publicly 

accessible Internet site. The increased 

transparency resulting from these 

requirements will minimize the 

potential for owners or operators to 

abuse the self-implementing system 

established in this rule. In addition, 

these requirements provide interested 

parties the information necessary to 


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Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21463 

determine whether the owner or 

operator is operating in compliance 

with the requirements of the rule and 

thus will facilitate enforcement by 

States and private citizens. EPA has 

consolidated the recordkeeping, 

notification, and Internet posting 

requirements into a single section of the 

regulations in an effort to make these 

requirements easier to follow. It is 

important to note that EPA will not be 

collecting any information under this 

rule—instead, facilities must keep 

records, notify the state, and post 

information on a publicly available Web 

site. EPA has taken steps to minimize 

the burden to the regulated community 

while at the same time achieving the 

transparency needed to ensure proper 

implementation of this rule. In addition 

to the burden to owner and operators of 

CCR landfills, in an effort to ease 

implementation, EPA has reporting and 

recordkeeping requirements for certain 

beneficial uses and states. For beneficial 

use that meets the fourth criteria, the 

user must maintain records and provide 

documentation upon request. For states, 

states are encouraged to voluntarily 

adopt at least the federal minimum 

criteria through the revision of SWMPs. 

In addition, EPA estimated the burden 

on state government agencies associated 

with the receipt of various notification 

requirements in the rule. 

The respondents/affected entities are 

the owners/operators of electric utilities 

and independent power producers that 

fall within the NAICS code 221112. 

Specifically, these regulations apply to 

owners and operators of new and 

existing landfills and new and existing 

surface impoundments, including 

lateral expansions that of all landfills 

and surface impoundments that dispose 

or otherwise engage in solid waste 

management of CCR generated from the 

combustion of coal at electric utilities. 

The rule also applies to CCR units 

located off-site of the electric utilities’ or 

independent power producers’ facilities 

that receive CCR for disposal. The rule 

applies to certain inactive CCR surface 

impoundments at active electric 

utilities’ or independent power 

producers’ facilities, if the CCR unit still 

contains CCR and liquids. Finally, the 

rule applies to certain beneficial users of 

CCR. The rule may also impact States 

that choose to revise their SWMPs. 

Respondents are obligated to keep 

records, make the required notifications, 

and maintain the publicly available 

Internet site. These requirements are 

part of the minimum federal criteria 

under 40 CFR part 257 and promulgated 

under the authority of sections 1006(b), 

1008(a), 2002(a), 3001, 4004, and 

4005(a) of the Solid Waste Disposal Act 

of 1970, as amended by the Resource 

Conservation and Recovery Act of 1976 

(RCRA), as amended by the Hazardous 

and Solid Waste Amendments of 1984 

(HAS), 42 U.S.C. 6906(b), 6907(a), 

6912(a), 6944, and 6945(a). 

Respondents/affected entities: EPA 

estimates the total number of 

respondents to be 486. This number 

represents the estimated number of coalfired electric utility plants that will be 

affected by the rule. 

Respondent’s obligation to respond: 

The recordkeeping, notification, and 

posting are part of the minimum 

national criteria being promulgated 

under Sections 1008, 4004, and 4005(a) 

of RCRA. 

Estimated number of respondents: 

486. 

Frequency of response: The frequency 

of response varies. 

Total estimated burden: EPA 

estimates the total annual burden to 

respondents to be approximately 

358,957 hours with a three year total 

estimated burden of 1,076,871 hours. 

Burden is defined at 5 CFR 1320.3(b). 

Total estimated cost: The total 

estimated annual cost is approximately 

$64,007,121; this is composed of 

approximately $22,894,608 in 

annualized labor costs and $41,112,513 

in annualized capital or operation and 

maintenance costs. The three year total 

estimated costs are $192,021,364 

composed of $68,683,824 in labor costs 

and $123,337,540 in operations and 

maintenance. 

In addition, developing a state SWMP 

(see Unit IX of this preamble) is not a 

requirement under this rule, however, 

EPA is encouraging states to develop 

these plans and has developed a burden 

estimate associated with this activity. 

The estimate for this one-time activity 

has been annualized over the three-year 

period covered by the ICR. The total 

estimated annual burden (for the 47 

states and Puerto Rico where CCR are 

generated) is approximately 10,880 

hours, and approximately $429,414 in 

annualized labor costs; this estimate 

assumes no annualized capital or 

operations and maintenance costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

OMB approves this ICR, the Agency will 

announce that approval in the Federal 

Register and publish a technical 

amendment to 40 CFR part 9 to display 

the OMB control number for the 

approved information collection 

activities contained in this final rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities (SISNOSE). 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, small 

entity is defined as: (1) A small 

business, based on the U.S. Small 

Business size standard for NAICS code 

221112 (fossil fuel electric utility 

plants), with fewer than 750 employees; 

(2) a small government jurisdiction, 

based on the RFA/SBREFA’s definition 

(5 U.S. Code section 601(5)), is the 

government of a city, county, town, 

township, village, school district, or 

special district with population under 

50,000; (3) a small organization that is 

any not-for-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

The small entities directly regulated 

by this final rule consist of one small 

county, 31 small cities, 32 small 

companies, and 13 small cooperative 

owner entities that own at least one 

coal-burning power plant. There are 91 

coal-burning power plants that are 

owned by the 77 small owner entities. 

Those plants fall into the following 

categories: One small county plant, 31 

small city plants, 42 plants owned by 

small companies, and 17 small 

cooperative plants. 

The RIA estimated CCR compliance 

costs as a percentage of revenues for 

each entity and found that for almost all 

small entities affected by the rule the 

estimated annualized costs were less 

than 1% of revenues. 

Although this final rule will not have 

a significant economic impact on a 

substantial number of small entities, 

EPA nonetheless has tried to reduce the 

impact of this rule on small entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538, requires Federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 


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actions on state, local, and tribal 

governments and the private sector. 

This rule contains a federal mandate 

that may result in expenditures of $100 

million or more for state, local, and 

tribal governments, in the aggregate, or 

the private sector in any one year. 

Accordingly, EPA has prepared under 

section 202 of the UMRA a written 

statement which is summarized below. 

The RIA estimates the rule may affect 

414 coal-fired electric utility plants, and 

may have a nationwide average 

annualized cost of approximately $509 

million per year (at a 7% discount rate). 

Of this amount, average annualized 

costs to State/local governments total 

$36 million, and the average annualized 

cost to the private sector totals 

approximately $436 million per year 

(the remainder of the total costs are the 

costs associated with compliance at 

federally-owned electric utility plants.) 

Consistent with the intergovernmental 

consultation provisions of section 204 of 

the UMRA, EPA initiated pre-proposal 

consultations with governmental 

entities affected by this rule. In 

developing the regulatory options for 

the CCR rule, EPA consulted with small 

governments according to EPA’s UMRA 

interim small government consultation 

plan developed pursuant to section 203 

of UMRA. EPA’s interim plan provides 

for two types of possible small 

government input: Technical input and 

administrative input. According to this 

plan, and consistent with section 204 of 

UMRA, early in EPA’s 2009 process for 

developing the CCR rule, EPA 

implemented a small government 

consultation process consisting of two 

consultation components: (1) A series of 

meetings in 2009 for purposes of 

acquiring technical input from State 

government officials, and (2) letters to 

10 organizations representing elected 

State and local government officials to 

inform and seek input for the rule’s 

development, as well as to invite them 

to a meeting held September 16, 2009 in 

Washington DC to provide input on the 

rule. Following are the meetings held 

with state officials in 2009: (1) February 

27 with the Association of State and 

Territorial Solid Waste Management 

Officials (ASTSWMO) Coal Ash 

Workgroup (Washington DC), (2) March 

22–24 with the Environmental Council 

of States (ECOS) Spring Meeting 

(Alexandria VA), (3) April 15–16 with 

the ASTSWMO Mid-Year Meeting 

(Columbus OH), (4) May 12–13 with the 

EPA Region IV State Directors Meeting 

(Atlanta, GA), (5) June 17–18 with the 

ASTSWMO Solid Waste Managers 

Conference (New Orleans, LA), (6) July 

21–23 with the ASTSWMO Board of 

Directors Meeting (Seattle, WA), and (7) 

August 12 with the ASTSWMO 

Hazardous Waste Subcommittee 

Meeting (Washington DC). ASTSWMO 

is an organization with a mission to 

work closely with the EPA to ensure 

that its state government members are 

aware of the most current developments 

related to state waste management 

programs. ECOS is a national non-profit, 

non-partisan association of state and 

territorial environmental agency leaders. 

As a result of these meetings EPA 

received letters in mid-2009 from 22 

state governments as well as a letter 

from ASTSWMO expressing their stance 

on CCR regulatory options. 

On August 24, 2009 letters were 

mailed to the following 10 

organizations, which include 

representation from small government 

elected officials, to inform and seek 

input for the rule development, as well 

as to invite them to a meeting held 

September 16, 2009 in Washington DC: 

(1) National Governors Association, (2) 

National Conference of State 

Legislatures, (3) Council of State 

Governments, (4) National League of 

Cities, (5) U.S. Conference of Mayors, (6) 

County Executives of America, (7) 

National Association of Counties, (8) 

International City/County Management 

Association, (9) National Association of 

Towns and Townships, and (10) 

Environmental Council of the States. 

These 10 organizations representing 

State and local government officials are 

identified in EPA’s November 2008 

Federalism guidance as the ‘‘Big 10’’ 

organizations appropriate to contact for 

purpose of consultation with small 

government elected officials. 

Consistent with section 205, EPA 

identified and considered a reasonable 

number of regulatory alternatives in the 

June 2010 proposed rule, and is 

adopting the least-costly approach (i.e. a 

modified version of the ‘‘D Prime’’ least 

costly approach presented in the 2010 

proposed CCR rule). 

This rule is not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. The 

threshold amount established for 

determining whether regulatory 

requirements could significantly affect 

small governments is $100 million 

annually. The RIA estimates a $1.2 

million annual cost for state/local 

government implementation of the rule 

and $36 million in annual direct 

compliance costs on 57 state or local 

governments. These estimates are well 

below the $100 million annual 

threshold established under UMRA. 

However this rule does have over a $100 

million dollar impact on industry. EPA 

selected one of the lower industry cost 

options for the final rule by selecting a 

RCRA subtitle D rule instead of a RCRA 

subtitle C rule. 

E. Executive Order 13132—Federalism 

The EPA has concluded that this 

action may have federalism implications 

because it imposes substantial direct 

compliance costs on state or local 

governments, and the Federal 

government will not provide the funds 

necessary to pay those costs. Based on 

the estimates in EPA’s RIA for this 

action, the final rule, if promulgated, 

may impose a $1.2 million annual cost 

for state/local government 

implementation of the rule and $36 

million in annual direct compliance 

costs on 57 state or local governments. 

This amount exceeds the $25 million 

per year ‘‘substantial compliance cost’’ 

threshold defined in section 1.2(A) (1) 

of EPA’s November 2008 ‘‘Guidance on 

Executive Order 13132: Federalism.’’ 

There are 57 State and local 

governments which own 68 coalburning power plants or 16% of the 414 

electric utility plants expected to be 

affected by this rule. These 57 local 

governments consist of 7 state 

governments, 31 small municipality 

governments, 18 non-small municipal 

governments and 1 (small) county 

government owner. 

The EPA provides the following 

federalism summary impact statement. 

The EPA consulted with state and local 

officials early in the process of 

developing the proposed action to 

permit them to have meaningful and 

timely input into its development. In 

developing the regulatory options 

described in this final action, EPA 

consulted with 10 national 

organizations representing state and 

local elected officials to ensure 

meaningful and timely input by state/

local governments, consisting of two 

consultation components. This 

consultation is described and 

summarized in the UMRA section 

above. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicited comment on the 

proposed action from state and local 

officials. EPA received comments from 

over two hundred (200) entities 

representing state and local 

governments. The comments submitted 

primarily addressed the issue presented 

in the proposal of which approach to 

regulating CCR was appropriate—a 

regulation under subtitle C or under 

subtitle D of RCRA. The state and local 

government commenters overwhelming 


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voiced their opposition to a regulation 

under subtitle C, citing impacts to state 

programs if EPA were to bring such a 

large number of facilities and a large 

volume of waste into the subtitle C 

universe. State governments were very 

concerned with the resources which 

would be required to issue subtitle C 

permits to these facilities and to develop 

and obtain EPA approval of revisions to 

their authorized RCRA subtitle C 

programs. They also expressed concerns 

about the limits in the existing 

hazardous waste disposal capacity in 

the United States to absorb such a large 

volume of new wastes, also citing the 

financial burden and potential liability 

problems for cities and towns that 

operate landfills or use landfills to 

dispose of waste that might include coal 

ash. 

In addition, states and local 

governments expressed concern that a 

subtitle C rule would have a negative 

effect on beneficial use of CCR and on 

state beneficial use programs. State and 

local governments fully supported 

continued beneficial use of CCR and 

continuation of the Bevill exemption for 

CCR beneficial use. They requested that 

EPA establish standards to ensure that 

beneficial uses are protective of human 

health and the environment and ensure 

consistency in management of these 

materials throughout the country. They 

specifically cited the use of CCR in 

cement and concrete applications, 

highway construction projects and 

wallboard manufacture (among other 

uses) and the impacts to municipalities 

through increased costs and potential 

job loss if CCR is classified as a 

hazardous waste. They also noted an 

expectation that utility rates would rise 

as a result of CCR being disposed of in 

landfills rather than being used for 

beneficial purposes, due to limited 

availability of commercial hazardous 

waste disposal facilities and costs of 

transporting high volumes of CCR to 

these facilities. State Departments of 

Transportation expressed particular 

concern that a subtitle C rule would 

negatively affect the use of CCR in road 

bed. Commenters further supported 

continued beneficial use of CCR to 

reduce the need for mining for 

substitute products in cement and 

concrete. Finally, should CCR be 

classified as a hazardous waste, they 

indicated the need for EPA to clarify 

that products made using CCR are new 

products and not considered hazardous 

wastes, and may be treated in the same 

manner as similar products made 

without CCR. 

Since EPA is promulgating this 

regulation under subtitle D, the 

concerns over the potential effect of a 

subtitle C regulation on beneficial use 

are moot. Moreover in this final rule, 

EPA has established a definition for 

beneficial use which we believe makes 

clear the distinction between beneficial 

use and disposal. This is fully discussed 

in Unit VI of this document. 

While States supported a rule under 

subtitle D, they also voiced concern 

about the need for flexibility to address 

site-specific situations, as would be 

available under a state permitting 

program, and concern about potential 

inconsistencies between the new federal 

requirements and existing State 

programs. States suggested that 

regulation under subtitle D should 

embrace the existing state permitting 

programs—allowing state permitting 

programs as the foundation for 

regulating CCR disposal—and requested 

financial incentives to implement 

federal criteria through state solid waste 

programs. They also emphasized the 

need to allow time for states to make 

necessary changes in existing state rules 

and statutes to incorporate federal 

criteria. A few expressed the desire that 

financial assurance for closure, post 

closure care, and corrective action 

should be included in the final rule as 

a mechanism to ensure that funds will 

be provided by owners and operators to 

carry out these activities. 

As fully explained earlier in this 

document, EPA is promulgating this 

rule under subtitle D of RCRA. As such, 

these regulations constitute the 

minimum federal requirements which 

apply to CCR units. States are not 

required to adopt these regulations or to 

revise their state programs to 

incorporate the new federal 

requirements. As fully discussed in Unit 

V of this document, ‘‘Development of 

the RCRA Subtitle D Regulatory 

Approach,’’ sections 1008(a), 4004, and 

4005(a) of RCRA (i.e., subtitle D) does 

not provide EPA with the ability to 

require states to issue permits, to 

approve state programs to operate in 

lieu of the federal program, or to enforce 

any of the requirements addressing the 

disposal of CCR. Consequently EPA 

designed the final rule to ensure 

protection of public health and the 

environment within these limitations. In 

addition, to help address potential 

implementation challenges that this 

statutory and resulting regulatory 

structure impose, as fully set out in 

Section IX of this document, EPA is 

encouraging states to revise their Solid 

Waste Management Plans and to submit 

these to EPA for approval. 

A complete list of the comments from 

state and local governments has been 

provided to the Office of Management 

and Budget and has been placed in the 

docket for this rulemaking. In addition, 

the detailed response to comments from 

these entities is contained in EPA’s 

response to comments document on this 

rulemaking. 

As required by section 8(a) of 

Executive Order 13132, EPA included a 

certification from its Federalism Official 

stating that EPA had met the Executive 

Order’s requirements in a meaningful 

and timely manner when it sent the 

draft of this final action to OMB for 

review pursuant to Executive Order 

12866. A copy of this certification is 

included in the public version of the 

official record for this final action. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000) EPA 

may not issue a regulation that has tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by tribal governments, or 

EPA consults with tribal officials early 

in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. 

EPA has concluded that this action 

may have tribal implications. However, 

it will neither impose substantial direct 

compliance costs on tribal governments, 

nor preempt Tribal law. As identified in 

EPA’s Regulatory Impact Analysis for 

this action, there are no known tribal 

owner entities of the coal-fired electric 

utility plants affected by this action. 

Although there are three of the 414 coalfired electric utility plants (in operation 

as of 2012) which are located on tribal 

lands, they are not owned by tribal 

governments. These are: (1) Navajo 

Generating Station in Coconino County, 

owned by the Arizona Salt River Project; 

(2) Bonanza Power Plant in Uintah 

County, Utah, owned by the Deseret 

Generation and Transmission 

Cooperative; and (3) Four Corners 

Power Plant in San Juan County, New 

Mexico owned by the Arizona Public 

Service Company. The Navajo 

Generating Station and the Four Corners 

Power Plant are on lands belonging to 

the Navajo Nation, while the Bonanza 

Power Plant is located on the Uintah 

and Ouray Reservation of the Ute Indian 

Tribe. 

EPA consulted with tribal officials 

early in the process of developing this 

regulation to permit them to have 

meaningful and timely input into its 

development. 


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233OMB defines nine alternative numerical 

indicators of ‘‘significant adverse effect’’ on energy 

supply, distribution, or use in Section 4 of its 

‘‘Memorandum for Heads of Executive Departments 

and Agencies, and Independent Regulatory 

Agencies,’’ M–01–27, July 13, 2001. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is subject to E.O. 13045 

(62 FR 19885, April 23, 1997) because 

it is an economically significant 

regulatory action as defined by E.O. 

12866, and EPA believes that the 

environmental health or safety risks 

addressed by this action may have a 

disproportionate effect on children. 

Accordingly, we have evaluated the 

environmental health or safety effects of 

Coal Combustion Residual constituents 

of potential concern on children. The 

results of this evaluation are contained 

in the Human and Ecological Risk 

Assessment of Coal Combustion Wastes 

available in the docket for this action. 

As ordered by E.O. 13045 Section 

1–101(a), EPA identified and assessed 

environmental health risks and safety 

risks that may disproportionately affect 

children in the revised risk assessment. 

Pursuant to U.S. EPA’s Guidance on 

Selecting Age Groups for Monitoring 

and Assessing Childhood Exposures to 

Environmental Contaminants, children 

are divided into seven distinct age 

cohorts: 1 to <2 yr, 2 to <3 yr, 3 to <6 

yr 6 to <11 yr, 11 to <16 yr, 16 to <21 

yr, and infants (<1 yr). Using exposure 

factors for each of these cohorts, EPA 

calculated cancer and non-cancer risk 

results in both the screening and 

probabilistic phases of the assessment. 

In general, risks to infants tended to be 

higher than other childhood cohorts, 

and also higher than risks to adults. 

However, for drinking water cancer 

risks, the longer exposures for adults led 

to the highest risks. Screening risks 

exceeded EPA’s human health criteria 

for children exposed to contaminated 

air, soil, and food resulting from fugitive 

dust emissions and run-off. Similarly, 

90th percentile child cancer and noncancer risks exceeded the human health 

criteria for the groundwater to drinking 

water pathway under the full 

probabilistic analysis (Table 5–17 in the 

Human and Ecological Risk Assessment 

of Coal Combustion Wastes). As ordered 

by E.O. 13045 Section 101(b) EPA has 

ensured that the standard addresses 

disproportionate risks to children that 

result from environmental health risks. 

The results of the screening assessment 

finds that risks fell below the criteria 

when wetting and run-on/runoff 

controls required by the rule are 

considered. Under the full probabilistic 

analysis, composite liners required by 

the rule for new waste management 

units showed the ability to reduce the 

90th percentile child cancer and noncancer risks for the groundwater to 

drinking water pathway to well below 

EPA’s criteria. Additionally, the 

groundwater monitoring and corrective 

action required by the rule will reduce 

risks from current waste management 

units. Thus, EPA believes that this rule 

will be protective of children’s health. 

In general, because the pollution 

control requirements under the CCR 

rule will reduce health and 

environmental exposure risks at all coalfired electric utility plants, the CCR rule 

is not expected to create additional or 

new risks to children. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211 (66 FR 28355 

(May 22, 2001)) requires EPA to prepare 

and submit a Statement of Energy 

Effects to the Administrator of the Office 

of Information and Regulatory Affairs, 

Office of Management and Budget 

(OMB), for actions identified as 

‘‘significant energy actions.’’ This 

action, which is a significant regulatory 

action under Executive Order 12866, is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy based on the results of the 

electricity price impact estimates of the 

Regulatory Impact Analysis (RIA) for 

this action. We have prepared a 

Statement of Energy Effects for this 

action. 

According to Executive Order 13211, 

the statement should address (i) any 

adverse effects on energy supply, 

distribution, or use, (including a 

shortfall in supply, price increases, and 

increased use of foreign supplies) 

should the proposal be implemented, 

and (ii) reasonable alternatives to the 

action with adverse energy effects and 

the expected effects of such alternatives 

on energy supply, distribution, and use. 

The potential impact of the final CCR 

rule on electricity prices is analyzed 

relative to the ‘‘in excess of one 

percent’’ threshold which is one of nine 

alternative numerical indicators 

established by OMB for defining 

‘‘significant adverse effect’’ under 

Executive Order 13211.233 The 

integrated planning model (IPM) 

estimates potential increases in 

wholesale electricity prices for 22 

National Energy Modeling System 

(NEMS) regions. In addition, the 

analysis focuses on potential changes in 

electricity prices in 2020, 2025, and 

2030. The analysis focuses on these 

relatively early year in the analytic time 

horizon examined in the RIA to 

minimize uncertainty in the estimated 

electricity price impacts. In addition, 

under the provisions of the rule, the 

year 2018 is when impoundments begin 

to undergo closure or wet/dry 

conversion if they are found to be 

leaking. Therefore, 2020, 2025, and 2030 

represent high-cost year relative to other 

years in the analytic time horizon, and 

the analysis presented here will likely 

yield conservative estimates of the rule’s 

impact on electricity prices. 

Using IPM, the weighted average 

nationwide potential increase in the 

wholesale price of electricity is not 

expected to exceed one percent 

(between .18% and 0.19% in the years 

2020 through 2030). However, for one of 

the 22 NEMS regions (AZNM), the RIA 

projects a potential price increase above 

one percent (between 0.78% and 1.05% 

in the years 2020 through 2030). 

Finally, any retail electricity price 

increases, if they occur, would have the 

effect of offsetting a portion of the 

compliance costs to electric utilities 

estimated in the RIA, as the utilities 

would be recovering costs through price 

increases to customers. Therefore, these 

impacts are not additive to total rule 

costs, but would instead offset costs to 

utilities estimated in the RIA. 

Only one region may slightly exceed 

a one percent electricity price increase, 

which the RIA estimated without 

considering the potential reduction in 

such impact with the compliance 

deadline flexibility of this action for 

CCR surface impoundments. Thus all 

regions are likely to experience less than 

one percent electricity price impacts of 

this action. Therefore, this statement 

does not address reasonable alternatives 

to the action because EPA does not 

expect this action to have adverse 

energy effects as defined by OMB. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 


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available and applicable voluntary 

consensus standards. 

This rulemaking involves technical 

standards. EPA has decided to use the 

following technical standards in this 

rule: (1) RCRA Subpart D, Section 

257.70 liner design criteria for new CCR 

landfills and any lateral expansion of a 

CCR landfill includes voluntary 

consensus standards developed by 

ASTM International and EPA test 

methods such as SW–846, (2) Section 

257.71 liner design criteria for existing 

CCR surface impoundments include 

voluntary consensus standards 

developed by ASTM International and 

EPA test methods such as SW–846, (3) 

Section 257.72 liner design criteria for 

new CCR surface impoundments and 

any lateral expansion of a CCR surface 

impoundment include voluntary 

consensus standards developed by 

ASTM International and EPA test 

methods such as SW–846, and (4) 

Section 257.73 structural stability 

standards for new and existing surface 

impoundments use the ASTM D 698 

and 1557 standards for embankment 

compaction. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (E.O.) 12898 (59 FR 

7629, Feb. 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it 

increases the level of environmental 

protection for all affected populations 

without having any disproportionately 

high and adverse human health or 

environmental effects on any 

population, including any minority or 

low-income population. 

EPA’s risk assessment for this action 

did not separately evaluate either 

minority or low income populations. 

However, to evaluate the demographic 

characteristics of communities that may 

be affected by the CCR rule, the RIA 

compares the demographic 

characteristics of populations 

surrounding coal-fired electric utility 

plants with broader population data for 

two geographic areas: (1) One-mile 

radius from CCR management units (i.e., 

landfills and impoundments) likely to 

be affected by groundwater releases 

from both landfills and impoundments; 

and (2) watershed catchment areas 

downstream of surface impoundments 

that receive surface water run-off and 

releases from CCR impoundments and 

are at risk of being contaminated from 

CCR impoundment discharges (e.g., 

unintentional overflows, structural 

failures, and intentional periodic 

discharges). 

For the population as a whole 24.8% 

belong to a minority group and 11.3% 

falls below the Federal Poverty Level. 

For the population living within one 

mile of plants with surface 

impoundments 16.1% belong to a 

minority group and 13.2% live below 

the Federal Poverty Level. These 

minority and low-income populations 

are not disproportionately high 

compared to the general population. 

The percentage of minority residents of 

the entire population living within the 

catchment areas downstream of surface 

impoundments is disproportionately 

high relative to the general population, 

i.e., 28.7%, versus 24.8% for the 

national population. Also, the 

percentage of the population within the 

catchment areas of surface 

impoundments that is below the Federal 

Poverty Level is disproportionately high 

compared with the general population, 

i.e., 18.6% versus 11.3% nationally. 

Comparing the population 

percentages of minority and low income 

residents within one mile of landfills to 

those percentages in the general 

population, EPA found that minority 

and low-income residents make up a 

smaller percentage of the populations 

near landfills than they do in the 

general population, i.e., minorities 

comprised 16.6% of the population near 

landfills versus 24.8% nationwide and 

low-income residents comprised 8.6% 

of the population near landfills versus 

11.3% nationwide. In summary, 

although populations within the 

catchment areas of plants with surface 

impoundments appear to have 

disproportionately high percentages of 

minority and low-income residents 

relative to the nationwide average, 

populations surrounding plants with 

landfills do not. Because landfills are 

less likely than impoundments to 

experience surface water run-off and 

releases, catchment areas were not 

considered for landfills. 

Because the CCR rule is risk-reducing, 

with reductions in risk occurring largely 

within the surface water catchment 

zones around, and groundwater 

beneath, coal-fired electric utility 

plants, the rule will not result in new 

disproportionate risks to minority or 

low-income populations. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is a ‘‘major rule’’ as defined 

by 5 U.S.C. 804(2). This rule will be 

effective 180 days after its publication 

in the Federal Register. 

List of Subjects 

40 CFR Part 257 

Environmental protection, Beneficial 

use, Coal combustion products, Coal 

combustion residuals, Coal combustion 

waste, Disposal, Hazardous waste, 

Landfill, Surface impoundment. 

40 CFR Part 261 

Environmental protection, Hazardous 

waste, Recycling, Reporting and 

recordkeeping requirements. 

Dated: December 19, 2014. 

Gina McCarthy, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is amended as 

follows: 

PART 257—CRITERIA FOR 

CLASSIFICATION OF SOLID WASTE 

DISPOSAL FACILITIES AND 

PRACTICES 

■ 1. The authority citation for part 257 

continues to read as follows: 

Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 

6944(a); 33 U.S.C. 1345(d) and (e). 

■ 2. Section 257.1 is amended by: 

■ a. Adding a sentence at the end of 

paragraph (a) introductory text; 

■ b. Revising paragraphs (a)(1) and (2); 

and 

■ c. Adding paragraph (c)(12). 

The revisions and additions read as 

follows: 


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§ 257.1 Scope and purpose. 

(a) * * * Unless otherwise provided, 

the criteria in §§ 257.50 through 257.107 

are adopted for determining which CCR 

landfills and CCR surface 

impoundments pose a reasonable 

probability of adverse effects on health 

or the environment under sections 

1008(a)(3) and 4004(a) of the Act. 

(1) Facilities failing to satisfy any of 

the criteria in §§ 257.1 through 257.4 or 

§§ 257.5 through 257.30 or §§ 257.50 

through 257.107 are considered open 

dumps, which are prohibited under 

section 4005 of the Act. 

(2) Practices failing to satisfy any of 

the criteria in §§ 257.1 through 257.4 or 

§§ 257.5 through 257.30 or §§ 257.50 

through 257.107 constitute open 

dumping, which is prohibited under 

section 4005 of the Act. 

* * * * * 

(c) * * * 

(12) Except as otherwise specifically 

provided in subpart D of this part, the 

criteria in subpart A of this part do not 

apply to CCR landfills, CCR surface 

impoundments, and lateral expansions 

of CCR units, as those terms are defined 

in subpart D of this part. Such units are 

instead subject to subpart D of this part. 

■ 3. Section 257.2 is amended by adding 

in alphabetical order definitions for 

‘‘CCR landfill’’ and ‘‘CCR surface 

impoundment’’ to read as follows: 

§ 257.2 Definitions. 

* * * * * 

CCR landfill means an area of land or 

an excavation that receives CCR and 

which is not a surface impoundment, an 

underground injection well, a salt dome 

formation, a salt bed formation, an 

underground or surface coal mine, or a 

cave. For purposes of this subpart, a 

CCR landfill also includes sand and 

gravel pits and quarries that receive 

CCR, CCR piles, and any practice that 

does not meet the definition of a 

beneficial use of CCR. 

CCR surface impoundment means a 

natural topographic depression, manmade excavation, or diked area, which 

is designed to hold an accumulation of 

CCR and liquids, and the unit treats, 

stores, or disposes of CCR. 

* * * * * 

■ 4. Part 257 is amended by: 

■ a. Adding and reserving subpart C; 

and 

■ b. Adding subpart D. 

The additions read as follows: 

Subpart C—[Reserved] 

Subpart D—Standards for the Disposal of 

Coal Combustion Residuals in Landfills and 

Surface Impoundments 

General Provisions 

Sec. 

257.50 Scope and purpose. 

257.51 Effective date of this subpart. 

257.52 Applicability of other regulations. 

257.53 Definitions. 

Location Restrictions 

257.60 Placement above the uppermost 

aquifer. 

257.61 Wetlands. 

257.62 Fault areas. 

257.63 Seismic impact zones. 

257.64 Unstable areas. 

Design Criteria 

257.70 Design criteria for new CCR landfills 

and any lateral expansion of a CCR 

landfill. 

257.71 Liner design criteria for existing 

CCR surface impoundments. 

257.72 Design criteria for new CCR surface 

impoundments and any lateral 

expansion of a CCR surface 

impoundment. 

257.73 Structural integrity criteria for 

existing CCR surface impoundments. 

257.74 Structural integrity criteria for new 

CCR surface impoundments and any 

lateral expansion of a CCR surface 

impoundment. 

Operating Criteria 

257.80 Air criteria. 

257.81 Run-on and run-off controls for CCR 

landfills. 

257.82 Hydrologic and hydraulic capacity 

requirements for CCR surface 

impoundments. 

257.83 Inspection requirements for CCR 

surface impoundments. 

257.84 Inspection requirements for CCR 

landfills. 

Groundwater Monitoring and Corrective 

Action 

257.90 Applicability. 

257.91 Groundwater monitoring systems. 

257.92 [Reserved] 

257.93 Groundwater sampling and analysis 

requirements. 

257.94 Detection monitoring program. 

257.95 Assessment monitoring program. 

257.96 Assessment of corrective measures. 

257.97 Selection of remedy. 

257.98 Implementation of the corrective 

action program. 

Closure and Post-Closure Care 

257.100 Inactive CCR surface 

impoundments. 

257.101 Closure or retrofit of CCR units. 

257.102 Criteria for conducting the closure 

or retrofit of CCR units. 

257.103 Alternative closure requirements. 

257.104 Post-closure care requirements. 

Recordkeeping, Notification, and Posting of 

Information to the Internet 

257.105 Recordkeeping requirements. 

257.106 Notification requirements. 

257.107 Publicly accessible internet site 

requirements. 

Subpart D—Standards for the Disposal 

of Coal Combustion Residuals in 

Landfills and Surface Impoundments 

§ 257.50 Scope and purpose. 

(a) This subpart establishes minimum 

national criteria for purposes of 

determining which solid waste disposal 

facilities and solid waste management 

practices do not pose a reasonable 

probability of adverse effects on health 

or the environment under sections 

1008(a)(3) and 4004(a) of the Resource 

Conservation and Recovery Act. 

(b) This subpart applies to owners and 

operators of new and existing landfills 

and surface impoundments, including 

any lateral expansions of such units that 

dispose or otherwise engage in solid 

waste management of CCR generated 

from the combustion of coal at electric 

utilities and independent power 

producers. Unless otherwise provided 

in this subpart, these requirements also 

apply to disposal units located off-site 

of the electric utility or independent 

power producer. This subpart also 

applies to any practice that does not 

meet the definition of a beneficial use of 

CCR. 

(c) This subpart also applies to 

inactive CCR surface impoundments at 

active electric utilities or independent 

power producers, regardless of the fuel 

currently used at the facility to produce 

electricity. 

(d) This subpart does not apply to 

CCR landfills that have ceased receiving 

CCR prior to October 19, 2015. 

(e) This subpart does not apply to 

electric utilities or independent power 

producers that have ceased producing 

electricity prior to October 19, 2015. 

(f) This subpart does not apply to 

wastes, including fly ash, bottom ash, 

boiler slag, and flue gas desulfurization 

materials generated at facilities that are 

not part of an electric utility or 

independent power producer, such as 

manufacturing facilities, universities, 

and hospitals. This subpart also does 

not apply to fly ash, bottom ash, boiler 

slag, and flue gas desulfurization 

materials, generated primarily from the 

combustion of fuels (including other 

fossil fuels) other than coal, for the 

purpose of generating electricity unless 

the fuel burned consists of more than 

fifty percent (50%) coal on a total heat 

input or mass input basis, whichever 

results in the greater mass feed rate of 

coal. 

(g) This subpart does not apply to 

practices that meet the definition of a 

beneficial use of CCR. 


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(h) This subpart does not apply to 

CCR placement at active or abandoned 

underground or surface coal mines. 

(i) This subpart does not apply to 

municipal solid waste landfills that 

receive CCR. 

§ 257.51 Effective date of this subpart. 

The requirements of this subpart take 

effect on October 19, 2015. 

§ 257.52 Applicability of other regulations. 

(a) Compliance with the requirements 

of this subpart does not affect the need 

for the owner or operator of a CCR 

landfill, CCR surface impoundment, or 

lateral expansion of a CCR unit to 

comply with all other applicable 

federal, state, tribal, or local laws or 

other requirements. 

(b) Any CCR landfill, CCR surface 

impoundment, or lateral expansion of a 

CCR unit continues to be subject to the 

requirements in §§ 257.3–1, 257.3–2, 

and 257.3–3. 

§ 257.53 Definitions. 

The following definitions apply to 

this subpart. Terms not defined in this 

section have the meaning given by 

RCRA. 

Acre foot means the volume of one 

acre of surface area to a depth of one 

foot. 

Active facility or active electric 

utilities or independent power 

producers means any facility subject to 

the requirements of this subpart that is 

in operation on October 14, 2015. An 

electric utility or independent power 

producer is in operation if it is 

generating electricity that is provided to 

electric power transmission systems or 

to electric power distribution systems 

on or after October 14, 2015. An off-site 

disposal facility is in operation if it is 

accepting or managing CCR on or after 

October 14, 2015. 

Active life or in operation means the 

period of operation beginning with the 

initial placement of CCR in the CCR unit 

and ending at completion of closure 

activities in accordance with § 257.102. 

Active portion means that part of the 

CCR unit that has received or is 

receiving CCR or non-CCR waste and 

that has not completed closure in 

accordance with § 257.102. 

Aquifer means a geologic formation, 

group of formations, or portion of a 

formation capable of yielding usable 

quantities of groundwater to wells or 

springs. 

Area-capacity curves means graphic 

curves which readily show the reservoir 

water surface area, in acres, at different 

elevations from the bottom of the 

reservoir to the maximum water surface, 

and the capacity or volume, in acre-feet, 

of the water contained in the reservoir 

at various elevations. 

Areas susceptible to mass movement 

means those areas of influence (i.e., 

areas characterized as having an active 

or substantial possibility of mass 

movement) where, because of natural or 

human-induced events, the movement 

of earthen material at, beneath, or 

adjacent to the CCR unit results in the 

downslope transport of soil and rock 

material by means of gravitational 

influence. Areas of mass movement 

include, but are not limited to, 

landslides, avalanches, debris slides and 

flows, soil fluctuation, block sliding, 

and rock fall. 

Beneficial use of CCR means the CCR 

meet all of the following conditions: 

(1) The CCR must provide a 

functional benefit; 

(2) The CCR must substitute for the 

use of a virgin material, conserving 

natural resources that would otherwise 

need to be obtained through practices, 

such as extraction; 

(3) The use of the CCR must meet 

relevant product specifications, 

regulatory standards or design standards 

when available, and when such 

standards are not available, the CCR is 

not used in excess quantities; and 

(4) When unencapsulated use of CCR 

involving placement on the land of 

12,400 tons or more in non-roadway 

applications, the user must demonstrate 

and keep records, and provide such 

documentation upon request, that 

environmental releases to groundwater, 

surface water, soil and air are 

comparable to or lower than those from 

analogous products made without CCR, 

or that environmental releases to 

groundwater, surface water, soil and air 

will be at or below relevant regulatory 

and health-based benchmarks for 

human and ecological receptors during 

use. 

Closed means placement of CCR in a 

CCR unit has ceased, and the owner or 

operator has completed closure of the 

CCR unit in accordance with § 257.102 

and has initiated post-closure care in 

accordance with § 257.104. 

Coal combustion residuals (CCR) 

means fly ash, bottom ash, boiler slag, 

and flue gas desulfurization materials 

generated from burning coal for the 

purpose of generating electricity by 

electric utilities and independent power 

producers. 

CCR fugitive dust means solid 

airborne particulate matter that contains 

or is derived from CCR, emitted from 

any source other than a stack or 

chimney. 

CCR landfill or landfill means an area 

of land or an excavation that receives 

CCR and which is not a surface 

impoundment, an underground 

injection well, a salt dome formation, a 

salt bed formation, an underground or 

surface coal mine, or a cave. For 

purposes of this subpart, a CCR landfill 

also includes sand and gravel pits and 

quarries that receive CCR, CCR piles, 

and any practice that does not meet the 

definition of a beneficial use of CCR. 

CCR pile or pile means any noncontainerized accumulation of solid, 

non-flowing CCR that is placed on the 

land. CCR that is beneficially used offsite is not a CCR pile. 

CCR surface impoundment or 

impoundment means a natural 

topographic depression, man-made 

excavation, or diked area, which is 

designed to hold an accumulation of 

CCR and liquids, and the unit treats, 

stores, or disposes of CCR. 

CCR unit means any CCR landfill, 

CCR surface impoundment, or lateral 

expansion of a CCR unit, or a 

combination of more than one of these 

units, based on the context of the 

paragraph(s) in which it is used. This 

term includes both new and existing 

units, unless otherwise specified. 

Dike means an embankment, berm, or 

ridge of either natural or man-made 

materials used to prevent the movement 

of liquids, sludges, solids, or other 

materials. 

Displacement means the relative 

movement of any two sides of a fault 

measured in any direction. 

Disposal means the discharge, 

deposit, injection, dumping, spilling, 

leaking, or placing of any solid waste as 

defined in section 1004(27) of the 

Resource Conservation and Recovery 

Act into or on any land or water so that 

such solid waste, or constituent thereof, 

may enter the environment or be 

emitted into the air or discharged into 

any waters, including groundwaters. For 

purposes of this subpart, disposal does 

not include the storage or the beneficial 

use of CCR. 

Downstream toe means the junction of 

the downstream slope or face of the CCR 

surface impoundment with the ground 

surface. 

Encapsulated beneficial use means a 

beneficial use of CCR that binds the CCR 

into a solid matrix that minimizes its 

mobilization into the surrounding 

environment. 

Existing CCR landfill means a CCR 

landfill that receives CCR both before 

and after October 14, 2015, or for which 

construction commenced prior to 

October 14, 2015 and receives CCR on 

or after October 14, 2015. A CCR landfill 

has commenced construction if the 

owner or operator has obtained the 

federal, state, and local approvals or 

permits necessary to begin physical 


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construction and a continuous on-site, 

physical construction program had 

begun prior to October 14, 2015. 

Existing CCR surface impoundment 

means a CCR surface impoundment that 

receives CCR both before and after 

October 14, 2015, or for which 

construction commenced prior to 

October 14, 2015 and receives CCR on 

or after October 14, 2015. A CCR surface 

impoundment has commenced 

construction if the owner or operator 

has obtained the federal, state, and local 

approvals or permits necessary to begin 

physical construction and a continuous 

on-site, physical construction program 

had begun prior to October 14, 2015. 

Facility means all contiguous land, 

and structures, other appurtenances, 

and improvements on the land, used for 

treating, storing, disposing, or otherwise 

conducting solid waste management of 

CCR. A facility may consist of several 

treatment, storage, or disposal 

operational units (e.g., one or more 

landfills, surface impoundments, or 

combinations of them). 

Factor of safety (Safety factor) means 

the ratio of the forces tending to resist 

the failure of a structure to the forces 

tending to cause such failure as 

determined by accepted engineering 

practice. 

Fault means a fracture or a zone of 

fractures in any material along which 

strata on one side have been displaced 

with respect to that on the other side. 

Flood hydrograph means a graph 

showing, for a given point on a stream, 

the discharge, height, or other 

characteristic of a flood as a function of 

time. 

Freeboard means the vertical distance 

between the lowest point on the crest of 

the impoundment dike and the surface 

of the waste contained therein. 

Free liquids means liquids that 

readily separate from the solid portion 

of a waste under ambient temperature 

and pressure. 

Groundwater means water below the 

land surface in a zone of saturation. 

Hazard potential classification means 

the possible adverse incremental 

consequences that result from the 

release of water or stored contents due 

to failure of the diked CCR surface 

impoundment or mis-operation of the 

diked CCR surface impoundment or its 

appurtenances. The hazardous potential 

classifications include high hazard 

potential CCR surface impoundment, 

significant hazard potential CCR surface 

impoundment, and low hazard potential 

CCR surface impoundment, which terms 

mean: 

(1) High hazard potential CCR surface 

impoundment means a diked surface 

impoundment where failure or misoperation will probably cause loss of 

human life. 

(2) Low hazard potential CCR surface 

impoundment means a diked surface 

impoundment where failure or misoperation results in no probable loss of 

human life and low economic and/or 

environmental losses. Losses are 

principally limited to the surface 

impoundment owner’s property. 

(3) Significant hazard potential CCR 

surface impoundment means a diked 

surface impoundment where failure or 

mis-operation results in no probable 

loss of human life, but can cause 

economic loss, environmental damage, 

disruption of lifeline facilities, or 

impact other concerns. 

Height means the vertical 

measurement from the downstream toe 

of the CCR surface impoundment at its 

lowest point to the lowest elevation of 

the crest of the CCR surface 

impoundment. 

Holocene means the most recent 

epoch of the Quaternary period, 

extending from the end of the 

Pleistocene Epoch, at 11,700 years 

before present, to present. 

Hydraulic conductivity means the rate 

at which water can move through a 

permeable medium (i.e., the coefficient 

of permeability). 

Inactive CCR surface impoundment 

means a CCR surface impoundment that 

no longer receives CCR on or after 

October 14, 2015 and still contains both 

CCR and liquids on or after October 14, 

2015. 

Incised CCR surface impoundment 

means a CCR surface impoundment 

which is constructed by excavating 

entirely below the natural ground 

surface, holds an accumulation of CCR 

entirely below the adjacent natural 

ground surface, and does not consist of 

any constructed diked portion. 

Indian country or Indian lands means: 

(1) All land within the limits of any 

Indian reservation under the 

jurisdiction of the United States 

Government, notwithstanding the 

issuance of any patent, and including 

rights-of-way running throughout the 

reservation; 

(2) All dependent Indian communities 

within the borders of the United States 

whether within the original or 

subsequently acquired territory thereof, 

and whether within or without the 

limits of the State; and 

(3) All Indian allotments, the Indian 

titles to which have not been 

extinguished, including rights of way 

running through the same. 

Indian Tribe or Tribe means any 

Indian tribe, band, nation, or 

community recognized by the Secretary 

of the Interior and exercising substantial 

governmental duties and powers on 

Indian lands. 

Inflow design flood means the flood 

hydrograph that is used in the design or 

modification of the CCR surface 

impoundments and its appurtenant 

works. 

In operation means the same as active 

life. 

Karst terrain means an area where 

karst topography, with its characteristic 

erosional surface and subterranean 

features, is developed as the result of 

dissolution of limestone, dolomite, or 

other soluble rock. Characteristic 

physiographic features present in karst 

terranes include, but are not limited to, 

dolines, collapse shafts (sinkholes), 

sinking streams, caves, seeps, large 

springs, and blind valleys. 

Lateral expansion means a horizontal 

expansion of the waste boundaries of an 

existing CCR landfill or existing CCR 

surface impoundment made after 

October 14, 2015. 

Liquefaction factor of safety means 

the factor of safety (safety factor) 

determined using analysis under 

liquefaction conditions. 

Lithified earth material means all 

rock, including all naturally occurring 

and naturally formed aggregates or 

masses of minerals or small particles of 

older rock that formed by crystallization 

of magma or by induration of loose 

sediments. This term does not include 

man-made materials, such as fill, 

concrete, and asphalt, or unconsolidated 

earth materials, soil, or regolith lying at 

or near the earth surface. 

Maximum horizontal acceleration in 

lithified earth material means the 

maximum expected horizontal 

acceleration at the ground surface as 

depicted on a seismic hazard map, with 

a 98% or greater probability that the 

acceleration will not be exceeded in 50 

years, or the maximum expected 

horizontal acceleration based on a sitespecific seismic risk assessment. 

New CCR landfill means a CCR 

landfill or lateral expansion of a CCR 

landfill that first receives CCR or 

commences construction after October 

14, 2015. A new CCR landfill has 

commenced construction if the owner or 

operator has obtained the federal, state, 

and local approvals or permits 

necessary to begin physical construction 

and a continuous on-site, physical 

construction program had begun after 

October 14, 2015. Overfills are also 

considered new CCR landfills. 

New CCR surface impoundment 

means a CCR surface impoundment or 

lateral expansion of an existing or new 

CCR surface impoundment that first 

receives CCR or commences 

construction after October 14, 2015. A 


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new CCR surface impoundment has 

commenced construction if the owner or 

operator has obtained the federal, state, 

and local approvals or permits 

necessary to begin physical construction 

and a continuous on-site, physical 

construction program had begun after 

October 14, 2015. 

Operator means the person(s) 

responsible for the overall operation of 

a CCR unit. 

Overfill means a new CCR landfill 

constructed over a closed CCR surface 

impoundment. 

Owner means the person(s) who owns 

a CCR unit or part of a CCR unit. 

Poor foundation conditions mean 

those areas where features exist which 

indicate that a natural or humaninduced event may result in inadequate 

foundation support for the structural 

components of an existing or new CCR 

unit. For example, failure to maintain 

static and seismic factors of safety as 

required in §§ 257.73(e) and 257.74(e) 

would cause a poor foundation 

condition. 

Probable maximum flood means the 

flood that may be expected from the 

most severe combination of critical 

meteorologic and hydrologic conditions 

that are reasonably possible in the 

drainage basin. 

Qualified person means a person or 

persons trained to recognize specific 

appearances of structural weakness and 

other conditions which are disrupting or 

have the potential to disrupt the 

operation or safety of the CCR unit by 

visual observation and, if applicable, to 

monitor instrumentation. 

Qualified professional engineer means 

an individual who is licensed by a state 

as a Professional Engineer to practice 

one or more disciplines of engineering 

and who is qualified by education, 

technical knowledge and experience to 

make the specific technical 

certifications required under this 

subpart. Professional engineers making 

these certifications must be currently 

licensed in the state where the CCR 

unit(s) is located. 

Recognized and generally accepted 

good engineering practices means 

engineering maintenance or operation 

activities based on established codes, 

widely accepted standards, published 

technical reports, or a practice widely 

recommended throughout the industry. 

Such practices generally detail 

approved ways to perform specific 

engineering, inspection, or mechanical 

integrity activities. 

Retrofit means to remove all CCR and 

contaminated soils and sediments from 

the CCR surface impoundment, and to 

ensure the unit complies with the 

requirements in § 257.72 

Representative sample means a 

sample of a universe or whole (e.g., 

waste pile, lagoon, and groundwater) 

which can be expected to exhibit the 

average properties of the universe or 

whole. See EPA publication SW–846, 

Test Methods for Evaluating Solid 

Waste, Physical/Chemical Methods, 

Chapter 9 (available at http://

www.epa.gov/epawaste/hazard/

testmethods/sw846/online/index.htm) 

for a discussion and examples of 

representative samples. 

Run-off means any rainwater, 

leachate, or other liquid that drains over 

land from any part of a CCR landfill or 

lateral expansion of a CCR landfill. 

Run-on means any rainwater, 

leachate, or other liquid that drains over 

land onto any part of a CCR landfill or 

lateral expansion of a CCR landfill. 

Sand and gravel pit or quarry means 

an excavation for the extraction of 

aggregate, minerals or metals. The term 

sand and gravel pit and/or quarry does 

not include subsurface or surface coal 

mines. 

Seismic factor of safety means the 

factor of safety (safety factor) 

determined using analysis under 

earthquake conditions using the peak 

ground acceleration for a seismic event 

with a 2% probability of exceedance in 

50 years, equivalent to a return period 

of approximately 2,500 years, based on 

the U.S. Geological Survey (USGS) 

seismic hazard maps for seismic events 

with this return period for the region 

where the CCR surface impoundment is 

located. 

Seismic impact zone means an area 

having a 2% or greater probability that 

the maximum expected horizontal 

acceleration, expressed as a percentage 

of the earth’s gravitational pull (g), will 

exceed 0.10 g in 50 years. 

Slope protection means engineered or 

non-engineered measures installed on 

the upstream or downstream slope of 

the CCR surface impoundment to 

protect the slope against wave action or 

erosion, including but not limited to 

rock riprap, wooden pile, or concrete 

revetments, vegetated wave berms, 

concrete facing, gabions, geotextiles, or 

fascines. 

Solid waste management or 

management means the systematic 

administration of the activities which 

provide for the collection, source 

separation, storage, transportation, 

processing, treatment, or disposal of 

solid waste. 

State means any of the fifty States in 

addition to the District of Columbia, the 

Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, American Samoa, 

and the Commonwealth of the Northern 

Mariana Islands. 

State Director means the chief 

administrative officer of the lead state 

agency responsible for implementing 

the state program regulating disposal in 

CCR landfills, CCR surface 

impoundments, and all lateral 

expansions of a CCR unit. 

Static factor of safety means the factor 

of safety (safety factor) determined using 

analysis under the long-term, maximum 

storage pool loading condition, the 

maximum surcharge pool loading 

condition, and under the end-ofconstruction loading condition. 

Structural components mean liners, 

leachate collection and removal 

systems, final covers, run-on and run-off 

systems, inflow design flood control 

systems, and any other component used 

in the construction and operation of the 

CCR unit that is necessary to ensure the 

integrity of the unit and that the 

contents of the unit are not released into 

the environment. 

Unstable area means a location that is 

susceptible to natural or humaninduced events or forces capable of 

impairing the integrity, including 

structural components of some or all of 

the CCR unit that are responsible for 

preventing releases from such unit. 

Unstable areas can include poor 

foundation conditions, areas susceptible 

to mass movements, and karst terrains. 

Uppermost aquifer means the geologic 

formation nearest the natural ground 

surface that is an aquifer, as well as 

lower aquifers that are hydraulically 

interconnected with this aquifer within 

the facility’s property boundary. Upper 

limit is measured at a point nearest to 

the natural ground surface to which the 

aquifer rises during the wet season. 

Waste boundary means a vertical 

surface located at the hydraulically 

downgradient limit of the CCR unit. The 

vertical surface extends down into the 

uppermost aquifer. 

Location Restrictions 

§ 257.60 Placement above the uppermost 

aquifer. 

(a) New CCR landfills, existing and 

new CCR surface impoundments, and 

all lateral expansions of CCR units must 

be constructed with a base that is 

located no less than 1.52 meters (five 

feet) above the upper limit of the 

uppermost aquifer, or must demonstrate 

that there will not be an intermittent, 

recurring, or sustained hydraulic 

connection between any portion of the 

base of the CCR unit and the uppermost 

aquifer due to normal fluctuations in 

groundwater elevations (including the 

seasonal high water table). The owner or 

operator must demonstrate by the dates 

specified in paragraph (c) of this section 


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that the CCR unit meets the minimum 

requirements for placement above the 

uppermost aquifer. 

(b) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the demonstration meets the 

requirements of paragraph (a) of this 

section. 

(c) The owner or operator of the CCR 

unit must complete the demonstration 

required by paragraph (a) of this section 

by the date specified in either paragraph 

(c)(1) or (2) of this section. 

(1) For an existing CCR surface 

impoundment, the owner or operator 

must complete the demonstration no 

later than October 17, 2018. 

(2) For a new CCR landfill, new CCR 

surface impoundment, or any lateral 

expansion of a CCR unit, the owner or 

operator must complete the 

demonstration no later than the date of 

initial receipt of CCR in the CCR unit. 

(3) The owner or operator has 

completed the demonstration required 

by paragraph (a) of this section when 

the demonstration is placed in the 

facility’s operating record as required by 

§ 257.105(e). 

(4) An owner or operator of an 

existing CCR surface impoundment who 

fails to demonstrate compliance with 

the requirements of paragraph (a) of this 

section by the date specified in 

paragraph (c)(1) of this section is subject 

to the requirements of § 257.101(b)(1). 

(5) An owner or operator of a new 

CCR landfill, new CCR surface 

impoundment, or any lateral expansion 

of a CCR unit who fails to make the 

demonstration showing compliance 

with the requirements of paragraph (a) 

of this section is prohibited from 

placing CCR in the CCR unit. 

(d) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(e), the notification 

requirements specified in § 257.106(e), 

and the internet requirements specified 

in § 257.107(e). 

§ 257.61 Wetlands. 

(a) New CCR landfills, existing and 

new CCR surface impoundments, and 

all lateral expansions of CCR units must 

not be located in wetlands, as defined 

in § 232.2 of this chapter, unless the 

owner or operator demonstrates by the 

dates specified in paragraph (c) of this 

section that the CCR unit meets the 

requirements of paragraphs (a)(1) 

through (5) of this section. 

(1) Where applicable under section 

404 of the Clean Water Act or applicable 

state wetlands laws, a clear and 

objective rebuttal of the presumption 

that an alternative to the CCR unit is 

reasonably available that does not 

involve wetlands. 

(2) The construction and operation of 

the CCR unit will not cause or 

contribute to any of the following: 

(i) A violation of any applicable state 

or federal water quality standard; 

(ii) A violation of any applicable toxic 

effluent standard or prohibition under 

section 307 of the Clean Water Act; 

(iii) Jeopardize the continued 

existence of endangered or threatened 

species or result in the destruction or 

adverse modification of a critical 

habitat, protected under the Endangered 

Species Act of 1973; and 

(iv) A violation of any requirement 

under the Marine Protection, Research, 

and Sanctuaries Act of 1972 for the 

protection of a marine sanctuary. 

(3) The CCR unit will not cause or 

contribute to significant degradation of 

wetlands by addressing all of the 

following factors: 

(i) Erosion, stability, and migration 

potential of native wetland soils, muds 

and deposits used to support the CCR 

unit; 

(ii) Erosion, stability, and migration 

potential of dredged and fill materials 

used to support the CCR unit; 

(iii) The volume and chemical nature 

of the CCR; 

(iv) Impacts on fish, wildlife, and 

other aquatic resources and their habitat 

from release of CCR; 

(v) The potential effects of 

catastrophic release of CCR to the 

wetland and the resulting impacts on 

the environment; and 

(vi) Any additional factors, as 

necessary, to demonstrate that 

ecological resources in the wetland are 

sufficiently protected. 

(4) To the extent required under 

section 404 of the Clean Water Act or 

applicable state wetlands laws, steps 

have been taken to attempt to achieve 

no net loss of wetlands (as defined by 

acreage and function) by first avoiding 

impacts to wetlands to the maximum 

extent reasonable as required by 

paragraphs (a)(1) through (3) of this 

section, then minimizing unavoidable 

impacts to the maximum extent 

reasonable, and finally offsetting 

remaining unavoidable wetland impacts 

through all appropriate and reasonable 

compensatory mitigation actions (e.g., 

restoration of existing degraded 

wetlands or creation of man-made 

wetlands); and 

(5) Sufficient information is available 

to make a reasoned determination with 

respect to the demonstrations in 

paragraphs (a)(1) through (4) of this 

section. 

(b) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the demonstration meets the 

requirements of paragraph (a) of this 

section. 

(c) The owner or operator of the CCR 

unit must complete the demonstrations 

required by paragraph (a) of this section 

by the date specified in either paragraph 

(c)(1) or (2) of this section. 

(1) For an existing CCR surface 

impoundment, the owner or operator 

must complete the demonstration no 

later than October 17, 2018. 

(2) For a new CCR landfill, new CCR 

surface impoundment, or any lateral 

expansion of a CCR unit, the owner or 

operator must complete the 

demonstration no later than the date of 

initial receipt of CCR in the CCR unit. 

(3) The owner or operator has 

completed the demonstration required 

by paragraph (a) of this section when 

the demonstration is placed in the 

facility’s operating record as required by 

§ 257.105(e). 

(4) An owner or operator of an 

existing CCR surface impoundment who 

fails to demonstrate compliance with 

the requirements of paragraph (a) of this 

section by the date specified in 

paragraph (c)(1) of this section is subject 

to the requirements of § 257.101(b)(1). 

(5) An owner or operator of a new 

CCR landfill, new CCR surface 

impoundment, or any lateral expansion 

of a CCR unit who fails to make the 

demonstrations showing compliance 

with the requirements of paragraph (a) 

of this section is prohibited from 

placing CCR in the CCR unit. 

(d) The owner or operator must 

comply with the recordkeeping 

requirements specified in § 257.105(e), 

the notification requirements specified 

in § 257.106(e), and the Internet 

requirements specified in § 257.107(e). 

§ 257.62 Fault areas. 

(a) New CCR landfills, existing and 

new CCR surface impoundments, and 

all lateral expansions of CCR units must 

not be located within 60 meters (200 

feet) of the outermost damage zone of a 

fault that has had displacement in 

Holocene time unless the owner or 

operator demonstrates by the dates 

specified in paragraph (c) of this section 

that an alternative setback distance of 

less than 60 meters (200 feet) will 

prevent damage to the structural 

integrity of the CCR unit. 

(b) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the demonstration meets the 

requirements of paragraph (a) of this 

section. 

(c) The owner or operator of the CCR 

unit must complete the demonstration 


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required by paragraph (a) of this section 

by the date specified in either paragraph 

(c)(1) or (2) of this section. 

(1) For an existing CCR surface 

impoundment, the owner or operator 

must complete the demonstration no 

later than October 17, 2018. 

(2) For a new CCR landfill, new CCR 

surface impoundment, or any lateral 

expansion of a CCR unit, the owner or 

operator must complete the 

demonstration no later than the date of 

initial receipt of CCR in the CCR unit. 

(3) The owner or operator has 

completed the demonstration required 

by paragraph (a) of this section when 

the demonstration is placed in the 

facility’s operating record as required by 

§ 257.105(e). 

(4) An owner or operator of an 

existing CCR surface impoundment who 

fails to demonstrate compliance with 

the requirements of paragraph (a) of this 

section by the date specified in 

paragraph (c)(1) of this section is subject 

to the requirements of § 257.101(b)(1). 

(5) An owner or operator of a new 

CCR landfill, new CCR surface 

impoundment, or any lateral expansion 

of a CCR unit who fails to make the 

demonstration showing compliance 

with the requirements of paragraph (a) 

of this section is prohibited from 

placing CCR in the CCR unit. 

(d) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(e), the notification 

requirements specified in § 257.106(e), 

and the Internet requirements specified 

in § 257.107(e). 

§ 257.63 Seismic impact zones. 

(a) New CCR landfills, existing and 

new CCR surface impoundments, and 

all lateral expansions of CCR units must 

not be located in seismic impact zones 

unless the owner or operator 

demonstrates by the dates specified in 

paragraph (c) of this section that all 

structural components including liners, 

leachate collection and removal 

systems, and surface water control 

systems, are designed to resist the 

maximum horizontal acceleration in 

lithified earth material for the site. 

(b) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the demonstration meets the 

requirements of paragraph (a) of this 

section. 

(c) The owner or operator of the CCR 

unit must complete the demonstration 

required by paragraph (a) of this section 

by the date specified in either paragraph 

(c)(1) or (2) of this section. 

(1) For an existing CCR surface 

impoundment, the owner or operator 

must complete the demonstration no 

later than October 17, 2018. 

(2) For a new CCR landfill, new CCR 

surface impoundment, or any lateral 

expansion of a CCR unit, the owner or 

operator must complete the 

demonstration no later than the date of 

initial receipt of CCR in the CCR unit. 

(3) The owner or operator has 

completed the demonstration required 

by paragraph (a) of this section when 

the demonstration is placed in the 

facility’s operating record as required by 

§ 257.105(e). 

(4) An owner or operator of an 

existing CCR surface impoundment who 

fails to demonstrate compliance with 

the requirements of paragraph (a) of this 

section by the date specified in 

paragraph (c)(1) of this section is subject 

to the requirements of § 257.101(b)(1). 

(5) An owner or operator of a new 

CCR landfill, new CCR surface 

impoundment, or any lateral expansion 

of a CCR unit who fails to make the 

demonstration showing compliance 

with the requirements of paragraph (a) 

of this section is prohibited from 

placing CCR in the CCR unit. 

(d) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(e), the notification 

requirements specified in § 257.106(e), 

and the Internet requirements specified 

in § 257.107(e). 

§ 257.64 Unstable areas. 

(a) An existing or new CCR landfill, 

existing or new CCR surface 

impoundment, or any lateral expansion 

of a CCR unit must not be located in an 

unstable area unless the owner or 

operator demonstrates by the dates 

specified in paragraph (d) of this section 

that recognized and generally accepted 

good engineering practices have been 

incorporated into the design of the CCR 

unit to ensure that the integrity of the 

structural components of the CCR unit 

will not be disrupted. 

(b) The owner or operator must 

consider all of the following factors, at 

a minimum, when determining whether 

an area is unstable: 

(1) On-site or local soil conditions 

that may result in significant differential 

settling; 

(2) On-site or local geologic or 

geomorphologic features; and 

(3) On-site or local human-made 

features or events (both surface and 

subsurface). 

(c) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the demonstration meets the 

requirements of paragraph (a) of this 

section. 

(d) The owner or operator of the CCR 

unit must complete the demonstration 

required by paragraph (a) of this section 

by the date specified in either paragraph 

(d)(1) or (2) of this section. 

(1) For an existing CCR landfill or 

existing CCR surface impoundment, the 

owner or operator must complete the 

demonstration no later than October 17, 

2018. 

(2) For a new CCR landfill, new CCR 

surface impoundment, or any lateral 

expansion of a CCR unit, the owner or 

operator must complete the 

demonstration no later than the date of 

initial receipt of CCR in the CCR unit. 

(3) The owner or operator has 

completed the demonstration required 

by paragraph (a) of this section when 

the demonstration is placed in the 

facility’s operating record as required by 

§ 257.105(e). 

(4) An owner or operator of an 

existing CCR surface impoundment or 

existing CCR landfill who fails to 

demonstrate compliance with the 

requirements of paragraph (a) of this 

section by the date specified in 

paragraph (d)(1) of this section is subject 

to the requirements of § 257.101(b)(1) or 

(d)(1), respectively. 

(5) An owner or operator of a new 

CCR landfill, new CCR surface 

impoundment, or any lateral expansion 

of a CCR unit who fails to make the 

demonstration showing compliance 

with the requirements of paragraph (a) 

of this section is prohibited from 

placing CCR in the CCR unit. 

(e) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(e), the notification 

requirements specified in § 257.106(e), 

and the Internet requirements specified 

in § 257.107(e). 

Design Criteria 

§ 257.70 Design criteria for new CCR 

landfills and any lateral expansion of a CCR 

landfill. 

(a)(1) New CCR landfills and any 

lateral expansion of a CCR landfill must 

be designed, constructed, operated, and 

maintained with either a composite 

liner that meets the requirements of 

paragraph (b) of this section or an 

alternative composite liner that meets 

the requirements in paragraph (c) of this 

section, and a leachate collection and 

removal system that meets the 

requirements of paragraph (d) of this 

section. 

(2) Prior to construction of an overfill 

the underlying surface impoundment 

must meet the requirements of 

§ 257.102(d). 

(b) A composite liner must consist of 

two components; the upper component 


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consisting of, at a minimum, a 30-mil 

geomembrane liner (GM), and the lower 

component consisting of at least a twofoot layer of compacted soil with a 

hydraulic conductivity of no more than 

1 × 10¥7 centimeters per second (cm/

sec). GM components consisting of high 

density polyethylene (HDPE) must be at 

least 60-mil thick. The GM or upper 

liner component must be installed in 

direct and uniform contact with the 

compacted soil or lower liner 

component. The composite liner must 

be: 

(1) Constructed of materials that have 

appropriate chemical properties and 

sufficient strength and thickness to 

prevent failure due to pressure gradients 

(including static head and external 

hydrogeologic forces), physical contact 

with the CCR or leachate to which they 

are exposed, climatic conditions, the 

stress of installation, and the stress of 

daily operation; 

(2) Constructed of materials that 

provide appropriate shear resistance of 

the upper and lower component 

interface to prevent sliding of the upper 

component including on slopes; 

(3) Placed upon a foundation or base 

capable of providing support to the liner 

and resistance to pressure gradients 

above and below the liner to prevent 

failure of the liner due to settlement, 

compression, or uplift; and 

(4) Installed to cover all surrounding 

earth likely to be in contact with the 

CCR or leachate. 

(c) If the owner or operator elects to 

install an alternative composite liner, all 

of the following requirements must be 

met: 

(1) An alternative composite liner 

must consist of two components; the 

upper component consisting of, at a 

minimum, a 30-mil GM, and a lower 

component, that is not a geomembrane, 

with a liquid flow rate no greater than 

the liquid flow rate of two feet of 

compacted soil with a hydraulic 

conductivity of no more than 1 × 10¥7

cm/sec. GM components consisting of 

high density polyethylene (HDPE) must 

be at least 60-mil thick. If the lower 

component of the alternative liner is 

compacted soil, the GM must be 

installed in direct and uniform contact 

with the compacted soil. 

(2) The owner or operator must obtain 

certification from a qualified 

professional engineer that the liquid 

flow rate through the lower component 

of the alternative composite liner is no 

greater than the liquid flow rate through 

two feet of compacted soil with a 

hydraulic conductivity of 1 × 10¥7 cm/ 

sec. The hydraulic conductivity for the 

two feet of compacted soil used in the 

comparison shall be no greater than 1 × 

10¥7 cm/sec. The hydraulic 

conductivity of any alternative to the 

two feet of compacted soil must be 

determined using recognized and 

generally accepted methods. The liquid 

flow rate comparison must be made 

using Equation 1 of this section, which 

is derived from Darcy’s Law for gravity 

flow through porous media. 

Where, 

Q = flow rate (cubic centimeters/second); 

A = surface area of the liner (squared 

centimeters); 

q = flow rate per unit area (cubic centimeters/ 

second/squared centimeter); 

k = hydraulic conductivity of the liner 

(centimeters/second); 

h = hydraulic head above the liner 

(centimeters); and 

t = thickness of the liner (centimeters). 

(3) The alternative composite liner 

must meet the requirements specified in 

paragraphs (b)(1) through (4) of this 

section. 

(d) The leachate collection and 

removal system must be designed, 

constructed, operated, and maintained 

to collect and remove leachate from the 

landfill during the active life and postclosure care period. The leachate 

collection and removal system must be: 

(1) Designed and operated to maintain 

less than a 30-centimeter depth of 

leachate over the composite liner or 

alternative composite liner; 

(2) Constructed of materials that are 

chemically resistant to the CCR and any 

non-CCR waste managed in the CCR 

unit and the leachate expected to be 

generated, and of sufficient strength and 

thickness to prevent collapse under the 

pressures exerted by overlying waste, 

waste cover materials, and equipment 

used at the CCR unit; and 

(3) Designed and operated to 

minimize clogging during the active life 

and post-closure care period. 

(e) Prior to construction of the CCR 

landfill or any lateral expansion of a 

CCR landfill, the owner or operator 

must obtain a certification from a 

qualified professional engineer that the 

design of the composite liner (or, if 

applicable, alternative composite liner) 

and the leachate collection and removal 

system meets the requirements of this 

section. 

(f) Upon completion of construction 

of the CCR landfill or any lateral 

expansion of a CCR landfill, the owner 

or operator must obtain a certification 

from a qualified professional engineer 

that the composite liner (or, if 

applicable, alternative composite liner) 

and the leachate collection and removal 

system has been constructed in 

accordance with the requirements of 

this section. 

(g) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(f), the notification 

requirements specified in § 257.106(f), 

and the Internet requirements specified 

in § 257.107(f). 

§ 257.71 Liner design criteria for existing 

CCR surface impoundments. 

(a)(1) No later than October 17, 2016, 

the owner or operator of an existing CCR 

surface impoundment must document 

whether or not such unit was 

constructed with any one of the 

following: 

(i) A liner consisting of a minimum of 

two feet of compacted soil with a 

hydraulic conductivity of no more than 

1 × 10¥7 cm/sec; 

(ii) A composite liner that meets the 

requirements of § 257.70(b); or 

(iii) An alternative composite liner 

that meets the requirements of 

§ 257.70(c). 

(2) The hydraulic conductivity of the 

compacted soil must be determined 

using recognized and generally accepted 

methods. 

(3) An existing CCR surface 

impoundment is considered to be an 

existing unlined CCR surface 

impoundment if either: 

(i) The owner or operator of the CCR 

unit determines that the CCR unit is not 

constructed with a liner that meets the 

requirements of paragraphs (a)(1)(i), (ii), 

or (iii) of this section; or 

(ii) The owner or operator of the CCR 

unit fails to document whether the CCR 

unit was constructed with a liner that 

meets the requirements of paragraphs 

(a)(1)(i), (ii), or (iii) of this section. 

(4) All existing unlined CCR surface 

impoundments are subject to the 

requirements of § 257.101(a). 

(b) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer attesting 

that the documentation as to whether a 

CCR unit meets the requirements of 

paragraph (a) of this section is accurate. 

(c) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(f), the notification 

requirements specified in § 257.106(f), 

and the Internet requirements specified 

in § 257.107(f). 

§ 257.72 Liner design criteria for new CCR 

surface impoundments and any lateral 

expansion of a CCR surface impoundment. 

(a) New CCR surface impoundments 

and lateral expansions of existing and 

new CCR surface impoundments must 


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be designed, constructed, operated, and 

maintained with either a composite 

liner or an alternative composite liner 

that meets the requirements of 

§ 257.70(b) or (c). 

(b) Any liner specified in this section 

must be installed to cover all 

surrounding earth likely to be in contact 

with CCR. Dikes shall not be 

constructed on top of the composite 

liner. 

(c) Prior to construction of the CCR 

surface impoundment or any lateral 

expansion of a CCR surface 

impoundment, the owner or operator 

must obtain certification from a 

qualified professional engineer that the 

design of the composite liner or, if 

applicable, the design of an alternative 

composite liner complies with the 

requirements of this section. 

(d) Upon completion, the owner or 

operator must obtain certification from 

a qualified professional engineer that 

the composite liner or if applicable, the 

alternative composite liner has been 

constructed in accordance with the 

requirements of this section. 

(e) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(f), the notification 

requirements specified in § 257.106(f), 

and the Internet requirements specified 

in § 257.107(f). 

§ 257.73 Structural integrity criteria for 

existing CCR surface impoundments. 

(a) The requirements of paragraphs 

(a)(1) through (4) of this section apply 

to all existing CCR surface 

impoundments, except for those 

existing CCR surface impoundments 

that are incised CCR units. If an incised 

CCR surface impoundment is 

subsequently modified (e.g., a dike is 

constructed) such that the CCR unit no 

longer meets the definition of an incised 

CCR unit, the CCR unit is subject to the 

requirements of paragraphs (a)(1) 

through (4) of this section. 

(1) No later than, December 17, 2015, 

the owner or operator of the CCR unit 

must place on or immediately adjacent 

to the CCR unit a permanent 

identification marker, at least six feet 

high showing the identification number 

of the CCR unit, if one has been 

assigned by the state, the name 

associated with the CCR unit and the 

name of the owner or operator of the 

CCR unit. 

(2) Periodic hazard potential 

classification assessments. (i) The 

owner or operator of the CCR unit must 

conduct initial and periodic hazard 

potential classification assessments of 

the CCR unit according to the 

timeframes specified in paragraph (f) of 

this section. The owner or operator must 

document the hazard potential 

classification of each CCR unit as either 

a high hazard potential CCR surface 

impoundment, a significant hazard 

potential CCR surface impoundment, or 

a low hazard potential CCR surface 

impoundment. The owner or operator 

must also document the basis for each 

hazard potential classification. 

(ii) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the initial hazard potential 

classification and each subsequent 

periodic classification specified in 

paragraph (a)(2)(i) of this section was 

conducted in accordance with the 

requirements of this section. 

(3) Emergency Action Plan (EAP)—(i) 

Development of the plan. No later than 

April 17, 2017, the owner or operator of 

a CCR unit determined to be either a 

high hazard potential CCR surface 

impoundment or a significant hazard 

potential CCR surface impoundment 

under paragraph (a)(2) of this section 

must prepare and maintain a written 

EAP. At a minimum, the EAP must: 

(A) Define the events or 

circumstances involving the CCR unit 

that represent a safety emergency, along 

with a description of the procedures 

that will be followed to detect a safety 

emergency in a timely manner; 

(B) Define responsible persons, their 

respective responsibilities, and 

notification procedures in the event of 

a safety emergency involving the CCR 

unit; 

(C) Provide contact information of 

emergency responders; 

(D) Include a map which delineates 

the downstream area which would be 

affected in the event of a CCR unit 

failure and a physical description of the 

CCR unit; and 

(E) Include provisions for an annual 

face-to-face meeting or exercise between 

representatives of the owner or operator 

of the CCR unit and the local emergency 

responders. 

(ii) Amendment of the plan. (A) The 

owner or operator of a CCR unit subject 

to the requirements of paragraph (a)(3)(i) 

of this section may amend the written 

EAP at any time provided the revised 

plan is placed in the facility’s operating 

record as required by § 257.105(f)(6). 

The owner or operator must amend the 

written EAP whenever there is a change 

in conditions that would substantially 

affect the EAP in effect. 

(B) The written EAP must be 

evaluated, at a minimum, every five 

years to ensure the information required 

in paragraph (a)(3)(i) of this section is 

accurate. As necessary, the EAP must be 

updated and a revised EAP placed in 

the facility’s operating record as 

required by § 257.105(f)(6). 

(iii) Changes in hazard potential 

classification. (A) If the owner or 

operator of a CCR unit determines 

during a periodic hazard potential 

assessment that the CCR unit is no 

longer classified as either a high hazard 

potential CCR surface impoundment or 

a significant hazard potential CCR 

surface impoundment, then the owner 

or operator of the CCR unit is no longer 

subject to the requirement to prepare 

and maintain a written EAP beginning 

on the date the periodic hazard 

potential assessment documentation is 

placed in the facility’s operating record 

as required by § 257.105(f)(5). 

(B) If the owner or operator of a CCR 

unit classified as a low hazard potential 

CCR surface impoundment 

subsequently determines that the CCR 

unit is properly re-classified as either a 

high hazard potential CCR surface 

impoundment or a significant hazard 

potential CCR surface impoundment, 

then the owner or operator of the CCR 

unit must prepare a written EAP for the 

CCR unit as required by paragraph 

(a)(3)(i) of this section within six 

months of completing such periodic 

hazard potential assessment. 

(iv) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the written EAP, and any 

subsequent amendment of the EAP, 

meets the requirements of paragraph 

(a)(3) of this section. 

(v) Activation of the EAP. The EAP 

must be implemented once events or 

circumstances involving the CCR unit 

that represent a safety emergency are 

detected, including conditions 

identified during periodic structural 

stability assessments, annual 

inspections, and inspections by a 

qualified person. 

(4) The CCR unit and surrounding 

areas must be designed, constructed, 

operated, and maintained with 

vegetated slopes of dikes not to exceed 

a height of 6 inches above the slope of 

the dike, except for slopes which are 

protected with an alternate form(s) of 

slope protection. 

(b) The requirements of paragraphs (c) 

through (e) of this section apply to an 

owner or operator of an existing CCR 

surface impoundment that either: 

(1) Has a height of five feet or more 

and a storage volume of 20 acre-feet or 

more; or 

(2) Has a height of 20 feet or more. 

(c)(1) No later than October 17, 2016, 

the owner or operator of the CCR unit 

must compile a history of construction, 

which shall contain, to the extent 

feasible, the information specified in 


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paragraphs (c)(1)(i) through (xi) of this 

section. 

(i) The name and address of the 

person(s) owning or operating the CCR 

unit; the name associated with the CCR 

unit; and the identification number of 

the CCR unit if one has been assigned 

by the state. 

(ii) The location of the CCR unit 

identified on the most recent U.S. 

Geological Survey (USGS) 71⁄2 minute or 

15 minute topographic quadrangle map, 

or a topographic map of equivalent scale 

if a USGS map is not available. 

(iii) A statement of the purpose for 

which the CCR unit is being used. 

(iv) The name and size in acres of the 

watershed within which the CCR unit is 

located. 

(v) A description of the physical and 

engineering properties of the foundation 

and abutment materials on which the 

CCR unit is constructed. 

(vi) A statement of the type, size, 

range, and physical and engineering 

properties of the materials used in 

constructing each zone or stage of the 

CCR unit; the method of site preparation 

and construction of each zone of the 

CCR unit; and the approximate dates of 

construction of each successive stage of 

construction of the CCR unit. 

(vii) At a scale that details engineering 

structures and appurtenances relevant 

to the design, construction, operation, 

and maintenance of the CCR unit, 

detailed dimensional drawings of the 

CCR unit, including a plan view and 

cross sections of the length and width 

of the CCR unit, showing all zones, 

foundation improvements, drainage 

provisions, spillways, diversion ditches, 

outlets, instrument locations, and slope 

protection, in addition to the normal 

operating pool surface elevation and the 

maximum pool surface elevation 

following peak discharge from the 

inflow design flood, the expected 

maximum depth of CCR within the CCR 

surface impoundment, and any 

identifiable natural or manmade 

features that could adversely affect 

operation of the CCR unit due to 

malfunction or mis-operation. 

(viii) A description of the type, 

purpose, and location of existing 

instrumentation. 

(ix) Area-capacity curves for the CCR 

unit. 

(x) A description of each spillway and 

diversion design features and capacities 

and calculations used in their 

determination. 

(xi) The construction specifications 

and provisions for surveillance, 

maintenance, and repair of the CCR 

unit. 

(xii) Any record or knowledge of 

structural instability of the CCR unit. 

(2) Changes to the history of 

construction. If there is a significant 

change to any information compiled 

under paragraph (c)(1) of this section, 

the owner or operator of the CCR unit 

must update the relevant information 

and place it in the facility’s operating 

record as required by § 257.105(f)(9). 

(d) Periodic structural stability 

assessments. (1) The owner or operator 

of the CCR unit must conduct initial and 

periodic structural stability assessments 

and document whether the design, 

construction, operation, and 

maintenance of the CCR unit is 

consistent with recognized and 

generally accepted good engineering 

practices for the maximum volume of 

CCR and CCR wastewater which can be 

impounded therein. The assessment 

must, at a minimum, document whether 

the CCR unit has been designed, 

constructed, operated, and maintained 

with: 

(i) Stable foundations and abutments; 

(ii) Adequate slope protection to 

protect against surface erosion, wave 

action, and adverse effects of sudden 

drawdown; 

(iii) Dikes mechanically compacted to 

a density sufficient to withstand the 

range of loading conditions in the CCR 

unit; 

(iv) Vegetated slopes of dikes and 

surrounding areas not to exceed a height 

of six inches above the slope of the dike, 

except for slopes which have an 

alternate form or forms of slope 

protection; 

(v) A single spillway or a combination 

of spillways configured as specified in 

paragraph (d)(1)(v)(A) of this section. 

The combined capacity of all spillways 

must be designed, constructed, 

operated, and maintained to adequately 

manage flow during and following the 

peak discharge from the event specified 

in paragraph (d)(1)(v)(B) of this section. 

(A) All spillways must be either: 

(1) Of non-erodible construction and 

designed to carry sustained flows; or 

(2) Earth- or grass-lined and designed 

to carry short-term, infrequent flows at 

non-erosive velocities where sustained 

flows are not expected. 

(B) The combined capacity of all 

spillways must adequately manage flow 

during and following the peak discharge 

from a: 

(1) Probable maximum flood (PMF) 

for a high hazard potential CCR surface 

impoundment; or 

(2) 1000-year flood for a significant 

hazard potential CCR surface 

impoundment; or 

(3) 100-year flood for a low hazard 

potential CCR surface impoundment. 

(vi) Hydraulic structures underlying 

the base of the CCR unit or passing 

through the dike of the CCR unit that 

maintain structural integrity and are free 

of significant deterioration, deformation, 

distortion, bedding deficiencies, 

sedimentation, and debris which may 

negatively affect the operation of the 

hydraulic structure; and 

(vii) For CCR units with downstream 

slopes which can be inundated by the 

pool of an adjacent water body, such as 

a river, stream or lake, downstream 

slopes that maintain structural stability 

during low pool of the adjacent water 

body or sudden drawdown of the 

adjacent water body. 

(2) The periodic assessment described 

in paragraph (d)(1) of this section must 

identify any structural stability 

deficiencies associated with the CCR 

unit in addition to recommending 

corrective measures. If a deficiency or a 

release is identified during the periodic 

assessment, the owner or operator unit 

must remedy the deficiency or release as 

soon as feasible and prepare 

documentation detailing the corrective 

measures taken. 

(3) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the initial assessment and each 

subsequent periodic assessment was 

conducted in accordance with the 

requirements of this section. 

(e) Periodic safety factor assessments. 

(1) The owner or operator must conduct 

an initial and periodic safety factor 

assessments for each CCR unit and 

document whether the calculated 

factors of safety for each CCR unit 

achieve the minimum safety factors 

specified in paragraphs (e)(1)(i) through 

(iv) of this section for the critical cross 

section of the embankment. The critical 

cross section is the cross section 

anticipated to be the most susceptible of 

all cross sections to structural failure 

based on appropriate engineering 

considerations, including loading 

conditions. The safety factor 

assessments must be supported by 

appropriate engineering calculations. 

(i) The calculated static factor of 

safety under the long-term, maximum 

storage pool loading condition must 

equal or exceed 1.50. 

(ii) The calculated static factor of 

safety under the maximum surcharge 

pool loading condition must equal or 

exceed 1.40. 

(iii) The calculated seismic factor of 

safety must equal or exceed 1.00. 

(iv) For dikes constructed of soils that 

have susceptibility to liquefaction, the 

calculated liquefaction factor of safety 

must equal or exceed 1.20. 

(2) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 


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that the initial assessment and each 

subsequent periodic assessment 

specified in paragraph (e)(1) of this 

section meets the requirements of this 

section. 

(f) Timeframes for periodic 

assessments—(1) Initial assessments. 

Except as provided by paragraph (f)(2) 

of this section, the owner or operator of 

the CCR unit must complete the initial 

assessments required by paragraphs 

(a)(2), (d), and (e) of this section no later 

than October 17, 2016. The owner or 

operator has completed an initial 

assessment when the owner or operator 

has placed the assessment required by 

paragraphs (a)(2), (d), and (e) of this 

section in the facility’s operating record 

as required by § 257.105(f)(5), (10), and 

(12). 

(2) Use of a previously completed 

assessment(s) in lieu of the initial 

assessment(s). The owner or operator of 

the CCR unit may elect to use a 

previously completed assessment to 

serve as the initial assessment required 

by paragraphs (a)(2), (d), and (e) of this 

section provided that the previously 

completed assessment(s): 

(i) Was completed no earlier than 42 

months prior to October 17, 2016; and 

(ii) Meets the applicable requirements 

of paragraphs (a)(2), (d), and (e) of this 

section. 

(3) Frequency for conducting periodic 

assessments. The owner or operator of 

the CCR unit must conduct and 

complete the assessments required by 

paragraphs (a)(2), (d), and (e) of this 

section every five years. The date of 

completing the initial assessment is the 

basis for establishing the deadline to 

complete the first subsequent 

assessment. If the owner or operator 

elects to use a previously completed 

assessment(s) in lieu of the initial 

assessment as provided by paragraph 

(f)(2) of this section, the date of the 

report for the previously completed 

assessment is the basis for establishing 

the deadline to complete the first 

subsequent assessment. The owner or 

operator may complete any required 

assessment prior to the required 

deadline provided the owner or operator 

places the completed assessment(s) into 

the facility’s operating record within a 

reasonable amount of time. In all cases, 

the deadline for completing subsequent 

assessments is based on the date of 

completing the previous assessment. For 

purposes of this paragraph (f)(3), the 

owner or operator has completed an 

assessment when the relevant 

assessment(s) required by paragraphs 

(a)(2), (d), and (e) of this section has 

been placed in the facility’s operating 

record as required by § 257.105(f)(5), 

(10), and (12). 

(4) Closure of the CCR unit. An owner 

or operator of a CCR unit who either 

fails to complete a timely safety factor 

assessment or fails to demonstrate 

minimum safety factors as required by 

paragraph (e) of this section is subject to 

the requirements of § 257.101(b)(2). 

(g) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(f), the notification 

requirements specified in § 257.106(f), 

and the internet requirements specified 

in § 257.107(f). 

§ 257.74 Structural integrity criteria for 

new CCR surface impoundments and any 

lateral expansion of a CCR surface 

impoundment. 

(a) The requirements of paragraphs 

(a)(1) through (4) of this section apply 

to all new CCR surface impoundments 

and any lateral expansion of a CCR 

surface impoundment, except for those 

new CCR surface impoundments that 

are incised CCR units. If an incised CCR 

surface impoundment is subsequently 

modified (e.g., a dike is constructed) 

such that the CCR unit no longer meets 

the definition of an incised CCR unit, 

the CCR unit is subject to the 

requirements of paragraphs (a)(1) 

through (4) of this section. 

(1) No later than the initial receipt of 

CCR, the owner or operator of the CCR 

unit must place on or immediately 

adjacent to the CCR unit a permanent 

identification marker, at least six feet 

high showing the identification number 

of the CCR unit, if one has been 

assigned by the state, the name 

associated with the CCR unit and the 

name of the owner or operator of the 

CCR unit. 

(2) Periodic hazard potential 

classification assessments. (i) The 

owner or operator of the CCR unit must 

conduct initial and periodic hazard 

potential classification assessments of 

the CCR unit according to the 

timeframes specified in paragraph (f) of 

this section. The owner or operator must 

document the hazard potential 

classification of each CCR unit as either 

a high hazard potential CCR surface 

impoundment, a significant hazard 

potential CCR surface impoundment, or 

a low hazard potential CCR surface 

impoundment. The owner or operator 

must also document the basis for each 

hazard potential classification. 

(ii) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the initial hazard potential 

classification and each subsequent 

periodic classification specified in 

paragraph (a)(2)(i) of this section was 

conducted in accordance with the 

requirements of this section. 

(3) Emergency Action Plan (EAP)—(i) 

Development of the plan. Prior to the 

initial receipt of CCR in the CCR unit, 

the owner or operator of a CCR unit 

determined to be either a high hazard 

potential CCR surface impoundment or 

a significant hazard potential CCR 

surface impoundment under paragraph 

(a)(2) of this section must prepare and 

maintain a written EAP. At a minimum, 

the EAP must: 

(A) Define the events or 

circumstances involving the CCR unit 

that represent a safety emergency, along 

with a description of the procedures 

that will be followed to detect a safety 

emergency in a timely manner; 

(B) Define responsible persons, their 

respective responsibilities, and 

notification procedures in the event of 

a safety emergency involving the CCR 

unit; 

(C) Provide contact information of 

emergency responders; 

(D) Include a map which delineates 

the downstream area which would be 

affected in the event of a CCR unit 

failure and a physical description of the 

CCR unit; and 

(E) Include provisions for an annual 

face-to-face meeting or exercise between 

representatives of the owner or operator 

of the CCR unit and the local emergency 

responders. 

(ii) Amendment of the plan. (A) The 

owner or operator of a CCR unit subject 

to the requirements of paragraph (a)(3)(i) 

of this section may amend the written 

EAP at any time provided the revised 

plan is placed in the facility’s operating 

record as required by § 257.105(f)(6). 

The owner or operator must amend the 

written EAP whenever there is a change 

in conditions that would substantially 

affect the EAP in effect. 

(B) The written EAP must be 

evaluated, at a minimum, every five 

years to ensure the information required 

in paragraph (a)(3)(i) of this section is 

accurate. As necessary, the EAP must be 

updated and a revised EAP placed in 

the facility’s operating record as 

required by § 257.105(f)(6). 

(iii) Changes in hazard potential 

classification. (A) If the owner or 

operator of a CCR unit determines 

during a periodic hazard potential 

assessment that the CCR unit is no 

longer classified as either a high hazard 

potential CCR surface impoundment or 

a significant hazard potential CCR 

surface impoundment, then the owner 

or operator of the CCR unit is no longer 

subject to the requirement to prepare 

and maintain a written EAP beginning 

on the date the periodic hazard 

potential assessment documentation is 


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placed in the facility’s operating record 

as required by § 257.105(f)(5). 

(B) If the owner or operator of a CCR 

unit classified as a low hazard potential 

CCR surface impoundment 

subsequently determines that the CCR 

unit is properly re-classified as either a 

high hazard potential CCR surface 

impoundment or a significant hazard 

potential CCR surface impoundment, 

then the owner or operator of the CCR 

unit must prepare a written EAP for the 

CCR unit as required by paragraph 

(a)(3)(i) of this section within six 

months of completing such periodic 

hazard potential assessment. 

(iv) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the written EAP, and any 

subsequent amendment of the EAP, 

meets the requirements of paragraph 

(a)(3) of this section. 

(v) Activation of the EAP. The EAP 

must be implemented once events or 

circumstances involving the CCR unit 

that represent a safety emergency are 

detected, including conditions 

identified during periodic structural 

stability assessments, annual 

inspections, and inspections by a 

qualified person. 

(4) The CCR unit and surrounding 

areas must be designed, constructed, 

operated, and maintained with 

vegetated slopes of dikes not to exceed 

a height of six inches above the slope of 

the dike, except for slopes which are 

protected with an alternate form(s) of 

slope protection. 

(b) The requirements of paragraphs (c) 

through (e) of this section apply to an 

owner or operator of a new CCR surface 

impoundment and any lateral expansion 

of a CCR surface impoundment that 

either: 

(1) Has a height of five feet or more 

and a storage volume of 20 acre-feet or 

more; or 

(2) Has a height of 20 feet or more. 

(c)(1) No later than the initial receipt 

of CCR in the CCR unit, the owner or 

operator unit must compile the design 

and construction plans for the CCR unit, 

which must include, to the extent 

feasible, the information specified in 

paragraphs (c)(1)(i) through (xi) of this 

section. 

(i) The name and address of the 

person(s) owning or operating the CCR 

unit; the name associated with the CCR 

unit; and the identification number of 

the CCR unit if one has been assigned 

by the state. 

(ii) The location of the CCR unit 

identified on the most recent U.S. 

Geological Survey (USGS) 71⁄2 minute or 

15 minute topographic quadrangle map, 

or a topographic map of equivalent scale 

if a USGS map is not available. 

(iii) A statement of the purpose for 

which the CCR unit is being used. 

(iv) The name and size in acres of the 

watershed within which the CCR unit is 

located. 

(v) A description of the physical and 

engineering properties of the foundation 

and abutment materials on which the 

CCR unit is constructed. 

(vi) A statement of the type, size, 

range, and physical and engineering 

properties of the materials used in 

constructing each zone or stage of the 

CCR unit; the method of site preparation 

and construction of each zone of the 

CCR unit; and the dates of construction 

of each successive stage of construction 

of the CCR unit. 

(vii) At a scale that details engineering 

structures and appurtenances relevant 

to the design, construction, operation, 

and maintenance of the CCR unit, 

detailed dimensional drawings of the 

CCR unit, including a plan view and 

cross sections of the length and width 

of the CCR unit, showing all zones, 

foundation improvements, drainage 

provisions, spillways, diversion ditches, 

outlets, instrument locations, and slope 

protection, in addition to the normal 

operating pool surface elevation and the 

maximum pool surface elevation 

following peak discharge from the 

inflow design flood, the expected 

maximum depth of CCR within the CCR 

surface impoundment, and any 

identifiable natural or manmade 

features that could adversely affect 

operation of the CCR unit due to 

malfunction or mis-operation. 

(viii) A description of the type, 

purpose, and location of existing 

instrumentation. 

(ix) Area-capacity curves for the CCR 

unit. 

(x) A description of each spillway and 

diversion design features and capacities 

and calculations used in their 

determination. 

(xi) The construction specifications 

and provisions for surveillance, 

maintenance, and repair of the CCR 

unit. 

(xii) Any record or knowledge of 

structural instability of the CCR unit. 

(2) Changes in the design and 

construction. If there is a significant 

change to any information compiled 

under paragraph (c)(1) of this section, 

the owner or operator of the CCR unit 

must update the relevant information 

and place it in the facility’s operating 

record as required by § 257.105(f)(13). 

(d) Periodic structural stability 

assessments. (1) The owner or operator 

of the CCR unit must conduct initial and 

periodic structural stability assessments 

and document whether the design, 

construction, operation, and 

maintenance of the CCR unit is 

consistent with recognized and 

generally accepted good engineering 

practices for the maximum volume of 

CCR and CCR wastewater which can be 

impounded therein. The assessment 

must, at a minimum, document whether 

the CCR unit has been designed, 

constructed, operated, and maintained 

with: 

(i) Stable foundations and abutments; 

(ii) Adequate slope protection to 

protect against surface erosion, wave 

action, and adverse effects of sudden 

drawdown; 

(iii) Dikes mechanically compacted to 

a density sufficient to withstand the 

range of loading conditions in the CCR 

unit; 

(iv) Vegetated slopes of dikes and 

surrounding areas not to exceed a height 

of six inches above the slope of the dike, 

except for slopes which have an 

alternate form or forms of slope 

protection; 

(v) A single spillway or a combination 

of spillways configured as specified in 

paragraph (d)(1)(v)(A) of this section. 

The combined capacity of all spillways 

must be designed, constructed, 

operated, and maintained to adequately 

manage flow during and following the 

peak discharge from the event specified 

in paragraph (d)(1)(v)(B) of this section. 

(A) All spillways must be either: 

(1) Of non-erodible construction and 

designed to carry sustained flows; or 

(2) Earth- or grass-lined and designed 

to carry short-term, infrequent flows at 

non-erosive velocities where sustained 

flows are not expected. 

(B) The combined capacity of all 

spillways must adequately manage flow 

during and following the peak discharge 

from a: 

(1) Probable maximum flood (PMF) 

for a high hazard potential CCR surface 

impoundment; or 

(2) 1000-year flood for a significant 

hazard potential CCR surface 

impoundment; or 

(3) 100-year flood for a low hazard 

potential CCR surface impoundment. 

(vi) Hydraulic structures underlying 

the base of the CCR unit or passing 

through the dike of the CCR unit that 

maintain structural integrity and are free 

of significant deterioration, deformation, 

distortion, bedding deficiencies, 

sedimentation, and debris which may 

negatively affect the operation of the 

hydraulic structure; and 

(vii) For CCR units with downstream 

slopes which can be inundated by the 

pool of an adjacent water body, such as 

a river, stream or lake, downstream 

slopes that maintain structural stability 


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during low pool of the adjacent water 

body or sudden drawdown of the 

adjacent water body. 

(2) The periodic assessment described 

in paragraph (d)(1) of this section must 

identify any structural stability 

deficiencies associated with the CCR 

unit in addition to recommending 

corrective measures. If a deficiency or a 

release is identified during the periodic 

assessment, the owner or operator unit 

must remedy the deficiency or release as 

soon as feasible and prepare 

documentation detailing the corrective 

measures taken. 

(3) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the initial assessment and each 

subsequent periodic assessment was 

conducted in accordance with the 

requirements of this section. 

(e) Periodic safety factor assessments. 

(1) The owner or operator must conduct 

an initial and periodic safety factor 

assessments for each CCR unit and 

document whether the calculated 

factors of safety for each CCR unit 

achieve the minimum safety factors 

specified in paragraphs (e)(1)(i) through 

(v) of this section for the critical cross 

section of the embankment. The critical 

cross section is the cross section 

anticipated to be the most susceptible of 

all cross sections to structural failure 

based on appropriate engineering 

considerations, including loading 

conditions. The safety factor 

assessments must be supported by 

appropriate engineering calculations. 

(i) The calculated static factor of 

safety under the end-of-construction 

loading condition must equal or exceed 

1.30. The assessment of this loading 

condition is only required for the initial 

safety factor assessment and is not 

required for subsequent assessments. 

(ii) The calculated static factor of 

safety under the long-term, maximum 

storage pool loading condition must 

equal or exceed 1.50. 

(iii) The calculated static factor of 

safety under the maximum surcharge 

pool loading condition must equal or 

exceed 1.40. 

(iv) The calculated seismic factor of 

safety must equal or exceed 1.00. 

(v) For dikes constructed of soils that 

have susceptibility to liquefaction, the 

calculated liquefaction factor of safety 

must equal or exceed 1.20. 

(2) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the initial assessment and each 

subsequent periodic assessment 

specified in paragraph (e)(1) of this 

section meets the requirements of this 

section. 

(f) Timeframes for periodic 

assessments—(1) Initial assessments. 

Except as provided by paragraph (f)(2) 

of this section, the owner or operator of 

the CCR unit must complete the initial 

assessments required by paragraphs 

(a)(2), (d), and (e) of this section prior 

to the initial receipt of CCR in the unit. 

The owner or operator has completed an 

initial assessment when the owner or 

operator has placed the assessment 

required by paragraphs (a)(2), (d), and 

(e) of this section in the facility’s 

operating record as required by 

§ 257.105(f)(5), (10), and (12). 

(2) Frequency for conducting periodic 

assessments. The owner or operator of 

the CCR unit must conduct and 

complete the assessments required by 

paragraphs (a)(2), (d), and (e) of this 

section every five years. The date of 

completing the initial assessment is the 

basis for establishing the deadline to 

complete the first subsequent 

assessment. The owner or operator may 

complete any required assessment prior 

to the required deadline provided the 

owner or operator places the completed 

assessment(s) into the facility’s 

operating record within a reasonable 

amount of time. In all cases, the 

deadline for completing subsequent 

assessments is based on the date of 

completing the previous assessment. For 

purposes of this paragraph (f)(2), the 

owner or operator has completed an 

assessment when the relevant 

assessment(s) required by paragraphs 

(a)(2), (d), and (e) of this section has 

been placed in the facility’s operating 

record as required by § 257.105(f)(5), 

(10), and (12). 

(3) Failure to document minimum 

safety factors during the initial 

assessment. Until the date an owner or 

operator of a CCR unit documents that 

the calculated factors of safety achieve 

the minimum safety factors specified in 

paragraphs (e)(1)(i) through (v) of this 

section, the owner or operator is 

prohibited from placing CCR in such 

unit. 

(4) Closure of the CCR unit. An owner 

or operator of a CCR unit who either 

fails to complete a timely periodic safety 

factor assessment or fails to demonstrate 

minimum safety factors as required by 

paragraph (e) of this section is subject to 

the requirements of § 257.101(c). 

(g) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(f), the notification 

requirements specified in § 257.106(f), 

and the internet requirements specified 

in § 257.107(f). 

Operating Criteria 

§ 257.80 Air criteria. 

(a) The owner or operator of a CCR 

landfill, CCR surface impoundment, or 

any lateral expansion of a CCR unit 

must adopt measures that will 

effectively minimize CCR from 

becoming airborne at the facility, 

including CCR fugitive dust originating 

from CCR units, roads, and other CCR 

management and material handling 

activities. 

(b) CCR fugitive dust control plan. 

The owner or operator of the CCR unit 

must prepare and operate in accordance 

with a CCR fugitive dust control plan as 

specified in paragraphs (b)(1) through 

(7) of this section. This requirement 

applies in addition to, not in place of, 

any applicable standards under the 

Occupational Safety and Health Act. 

(1) The CCR fugitive dust control plan 

must identify and describe the CCR 

fugitive dust control measures the 

owner or operator will use to minimize 

CCR from becoming airborne at the 

facility. The owner or operator must 

select, and include in the CCR fugitive 

dust control plan, the CCR fugitive dust 

control measures that are most 

appropriate for site conditions, along 

with an explanation of how the 

measures selected are applicable and 

appropriate for site conditions. 

Examples of control measures that may 

be appropriate include: Locating CCR 

inside an enclosure or partial enclosure; 

operating a water spray or fogging 

system; reducing fall distances at 

material drop points; using wind 

barriers, compaction, or vegetative 

covers; establishing and enforcing 

reduced vehicle speed limits; paving 

and sweeping roads; covering trucks 

transporting CCR; reducing or halting 

operations during high wind events; or 

applying a daily cover. 

(2) If the owner or operator operates 

a CCR landfill or any lateral expansion 

of a CCR landfill, the CCR fugitive dust 

control plan must include procedures to 

emplace CCR as conditioned CCR. 

Conditioned CCR means wetting CCR 

with water to a moisture content that 

will prevent wind dispersal, but will not 

result in free liquids. In lieu of water, 

CCR conditioning may be accomplished 

with an appropriate chemical dust 

suppression agent. 

(3) The CCR fugitive dust control plan 

must include procedures to log citizen 

complaints received by the owner or 

operator involving CCR fugitive dust 

events at the facility. 

(4) The CCR fugitive dust control plan 

must include a description of the 

procedures the owner or operator will 


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follow to periodically assess the 

effectiveness of the control plan. 

(5) The owner or operator of a CCR 

unit must prepare an initial CCR 

fugitive dust control plan for the facility 

no later than October 19, 2015, or by 

initial receipt of CCR in any CCR unit 

at the facility if the owner or operator 

becomes subject to this subpart after 

October 19, 2015. The owner or operator 

has completed the initial CCR fugitive 

dust control plan when the plan has 

been placed in the facility’s operating 

record as required by § 257.105(g)(1). 

(6) Amendment of the plan. The 

owner or operator of a CCR unit subject 

to the requirements of this section may 

amend the written CCR fugitive dust 

control plan at any time provided the 

revised plan is placed in the facility’s 

operating record as required by 

§ 257.105(g)(1). The owner or operator 

must amend the written plan whenever 

there is a change in conditions that 

would substantially affect the written 

plan in effect, such as the construction 

and operation of a new CCR unit. 

(7) The owner or operator must obtain 

a certification from a qualified 

professional engineer that the initial 

CCR fugitive dust control plan, or any 

subsequent amendment of it, meets the 

requirements of this section. 

(c) Annual CCR fugitive dust control 

report. The owner or operator of a CCR 

unit must prepare an annual CCR 

fugitive dust control report that includes 

a description of the actions taken by the 

owner or operator to control CCR 

fugitive dust, a record of all citizen 

complaints, and a summary of any 

corrective measures taken. The initial 

annual report must be completed no 

later than 14 months after placing the 

initial CCR fugitive dust control plan in 

the facility’s operating record. The 

deadline for completing a subsequent 

report is one year after the date of 

completing the previous report. For 

purposes of this paragraph (c), the 

owner or operator has completed the 

annual CCR fugitive dust control report 

when the plan has been placed in the 

facility’s operating record as required by 

§ 257.105(g)(2). 

(d) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(g), the notification 

requirements specified in § 257.106(g), 

and the internet requirements specified 

in § 257.107(g). 

§ 257.81 Run-on and run-off controls for 

CCR landfills. 

(a) The owner or operator of an 

existing or new CCR landfill or any 

lateral expansion of a CCR landfill must 

design, construct, operate, and 

maintain: 

(1) A run-on control system to prevent 

flow onto the active portion of the CCR 

unit during the peak discharge from a 

24-hour, 25-year storm; and 

(2) A run-off control system from the 

active portion of the CCR unit to collect 

and control at least the water volume 

resulting from a 24-hour, 25-year storm. 

(b) Run-off from the active portion of 

the CCR unit must be handled in 

accordance with the surface water 

requirements under § 257.3–3. 

(c) Run-on and run-off control system 

plan—(1) Content of the plan. The 

owner or operator must prepare initial 

and periodic run-on and run-off control 

system plans for the CCR unit according 

to the timeframes specified in 

paragraphs (c)(3) and (4) of this section. 

These plans must document how the 

run-on and run-off control systems have 

been designed and constructed to meet 

the applicable requirements of this 

section. Each plan must be supported by 

appropriate engineering calculations. 

The owner or operator has completed 

the initial run-on and run-off control 

system plan when the plan has been 

placed in the facility’s operating record 

as required by § 257.105(g)(3). 

(2) Amendment of the plan. The 

owner or operator may amend the 

written run-on and run-off control 

system plan at any time provided the 

revised plan is placed in the facility’s 

operating record as required by 

§ 257.105(g)(3). The owner or operator 

must amend the written run-on and runoff control system plan whenever there 

is a change in conditions that would 

substantially affect the written plan in 

effect. 

(3) Timeframes for preparing the 

initial plan—(i) Existing CCR landfills. 

The owner or operator of the CCR unit 

must prepare the initial run-on and runoff control system plan no later than 

October 17, 2016. 

(ii) New CCR landfills and any lateral 

expansion of a CCR landfill. The owner 

or operator must prepare the initial runon and run-off control system plan no 

later than the date of initial receipt of 

CCR in the CCR unit. 

(4) Frequency for revising the plan. 

The owner or operator of the CCR unit 

must prepare periodic run-on and runoff control system plans required by 

paragraph (c)(1) of this section every 

five years. The date of completing the 

initial plan is the basis for establishing 

the deadline to complete the first 

subsequent plan. The owner or operator 

may complete any required plan prior to 

the required deadline provided the 

owner or operator places the completed 

plan into the facility’s operating record 

within a reasonable amount of time. In 

all cases, the deadline for completing a 

subsequent plan is based on the date of 

completing the previous plan. For 

purposes of this paragraph (c)(4), the 

owner or operator has completed a 

periodic run-on and run-off control 

system plan when the plan has been 

placed in the facility’s operating record 

as required by § 257.105(g)(3). 

(5) The owner or operator must obtain 

a certification from a qualified 

professional engineer stating that the 

initial and periodic run-on and run-off 

control system plans meet the 

requirements of this section. 

(d) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(g), the notification 

requirements specified in § 257.106(g), 

and the internet requirements specified 

in § 257.107(g). 

§ 257.82 Hydrologic and hydraulic 

capacity requirements for CCR surface 

impoundments. 

(a) The owner or operator of an 

existing or new CCR surface 

impoundment or any lateral expansion 

of a CCR surface impoundment must 

design, construct, operate, and maintain 

an inflow design flood control system as 

specified in paragraphs (a)(1) and (2) of 

this section. 

(1) The inflow design flood control 

system must adequately manage flow 

into the CCR unit during and following 

the peak discharge of the inflow design 

flood specified in paragraph (a)(3) of 

this section. 

(2) The inflow design flood control 

system must adequately manage flow 

from the CCR unit to collect and control 

the peak discharge resulting from the 

inflow design flood specified in 

paragraph (a)(3) of this section. 

(3) The inflow design flood is: 

(i) For a high hazard potential CCR 

surface impoundment, as determined 

under § 257.73(a)(2) or § 257.74(a)(2), 

the probable maximum flood; 

(ii) For a significant hazard potential 

CCR surface impoundment, as 

determined under § 257.73(a)(2) or 

§ 257.74(a)(2), the 1,000-year flood; 

(iii) For a low hazard potential CCR 

surface impoundment, as determined 

under § 257.73(a)(2) or § 257.74(a)(2), 

the 100-year flood; or 

(iv) For an incised CCR surface 

impoundment, the 25-year flood. 

(b) Discharge from the CCR unit must 

be handled in accordance with the 

surface water requirements under 

§ 257.3–3. 

(c) Inflow design flood control system 

plan—(1) Content of the plan. The 

owner or operator must prepare initial 


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and periodic inflow design flood control 

system plans for the CCR unit according 

to the timeframes specified in 

paragraphs (c)(3) and (4) of this section. 

These plans must document how the 

inflow design flood control system has 

been designed and constructed to meet 

the requirements of this section. Each 

plan must be supported by appropriate 

engineering calculations. The owner or 

operator of the CCR unit has completed 

the inflow design flood control system 

plan when the plan has been placed in 

the facility’s operating record as 

required by § 257.105(g)(4). 

(2) Amendment of the plan. The 

owner or operator of the CCR unit may 

amend the written inflow design flood 

control system plan at any time 

provided the revised plan is placed in 

the facility’s operating record as 

required by § 257.105(g)(4). The owner 

or operator must amend the written 

inflow design flood control system plan 

whenever there is a change in 

conditions that would substantially 

affect the written plan in effect. 

(3) Timeframes for preparing the 

initial plan—(i) Existing CCR surface 

impoundments. The owner or operator 

of the CCR unit must prepare the initial 

inflow design flood control system plan 

no later than October 17, 2016. 

(ii) New CCR surface impoundments 

and any lateral expansion of a CCR 

surface impoundment. The owner or 

operator must prepare the initial inflow 

design flood control system plan no 

later than the date of initial receipt of 

CCR in the CCR unit. 

(4) Frequency for revising the plan. 

The owner or operator must prepare 

periodic inflow design flood control 

system plans required by paragraph 

(c)(1) of this section every five years. 

The date of completing the initial plan 

is the basis for establishing the deadline 

to complete the first periodic plan. The 

owner or operator may complete any 

required plan prior to the required 

deadline provided the owner or operator 

places the completed plan into the 

facility’s operating record within a 

reasonable amount of time. In all cases, 

the deadline for completing a 

subsequent plan is based on the date of 

completing the previous plan. For 

purposes of this paragraph (c)(4), the 

owner or operator has completed an 

inflow design flood control system plan 

when the plan has been placed in the 

facility’s operating record as required by 

§ 257.105(g)(4). 

(5) The owner or operator must obtain 

a certification from a qualified 

professional engineer stating that the 

initial and periodic inflow design flood 

control system plans meet the 

requirements of this section. 

(d) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(g), the notification 

requirements specified in § 257.106(g), 

and the internet requirements specified 

in § 257.107(g). 

§ 257.83 Inspection requirements for CCR 

surface impoundments. 

(a) Inspections by a qualified person. 

(1) All CCR surface impoundments and 

any lateral expansion of a CCR surface 

impoundment must be examined by a 

qualified person as follows: 

(i) At intervals not exceeding seven 

days, inspect for any appearances of 

actual or potential structural weakness 

and other conditions which are 

disrupting or have the potential to 

disrupt the operation or safety of the 

CCR unit; 

(ii) At intervals not exceeding seven 

days, inspect the discharge of all outlets 

of hydraulic structures which pass 

underneath the base of the surface 

impoundment or through the dike of the 

CCR unit for abnormal discoloration, 

flow or discharge of debris or sediment; 

and 

(iii) At intervals not exceeding 30 

days, monitor all CCR unit 

instrumentation. 

(iv) The results of the inspection by a 

qualified person must be recorded in the 

facility’s operating record as required by 

§ 257.105(g)(5). 

(2) Timeframes for inspections by a 

qualified person—(i) Existing CCR 

surface impoundments. The owner or 

operator of the CCR unit must initiate 

the inspections required under 

paragraph (a) of this section no later 

than October 19, 2015. 

(ii) New CCR surface impoundments 

and any lateral expansion of a CCR 

surface impoundment. The owner or 

operator of the CCR unit must initiate 

the inspections required under 

paragraph (a) of this section upon initial 

receipt of CCR by the CCR unit. 

(b) Annual inspections by a qualified 

professional engineer. (1) If the existing 

or new CCR surface impoundment or 

any lateral expansion of the CCR surface 

impoundment is subject to the periodic 

structural stability assessment 

requirements under § 257.73(d) or 

§ 257.74(d), the CCR unit must 

additionally be inspected on a periodic 

basis by a qualified professional 

engineer to ensure that the design, 

construction, operation, and 

maintenance of the CCR unit is 

consistent with recognized and 

generally accepted good engineering 

standards. The inspection must, at a 

minimum, include: 

(i) A review of available information 

regarding the status and condition of the 

CCR unit, including, but not limited to, 

files available in the operating record 

(e.g., CCR unit design and construction 

information required by §§ 257.73(c)(1) 

and 257.74(c)(1), previous periodic 

structural stability assessments required 

under §§ 257.73(d) and 257.74(d), the 

results of inspections by a qualified 

person, and results of previous annual 

inspections); 

(ii) A visual inspection of the CCR 

unit to identify signs of distress or 

malfunction of the CCR unit and 

appurtenant structures; and 

(iii) A visual inspection of any 

hydraulic structures underlying the base 

of the CCR unit or passing through the 

dike of the CCR unit for structural 

integrity and continued safe and reliable 

operation. 

(2) Inspection report. The qualified 

professional engineer must prepare a 

report following each inspection that 

addresses the following: 

(i) Any changes in geometry of the 

impounding structure since the 

previous annual inspection; 

(ii) The location and type of existing 

instrumentation and the maximum 

recorded readings of each instrument 

since the previous annual inspection; 

(iii) The approximate minimum, 

maximum, and present depth and 

elevation of the impounded water and 

CCR since the previous annual 

inspection; 

(iv) The storage capacity of the 

impounding structure at the time of the 

inspection; 

(v) The approximate volume of the 

impounded water and CCR at the time 

of the inspection; 

(vi) Any appearances of an actual or 

potential structural weakness of the CCR 

unit, in addition to any existing 

conditions that are disrupting or have 

the potential to disrupt the operation 

and safety of the CCR unit and 

appurtenant structures; and 

(vii) Any other change(s) which may 

have affected the stability or operation 

of the impounding structure since the 

previous annual inspection. 

(3) Timeframes for conducting the 

initial inspection—(i) Existing CCR 

surface impoundments. The owner or 

operator of the CCR unit must complete 

the initial inspection required by 

paragraphs (b)(1) and (2) of this section 

no later than January 18, 2016. 

(ii) New CCR surface impoundments 

and any lateral expansion of a CCR 

surface impoundment. The owner or 

operator of the CCR unit must complete 

the initial annual inspection required by 

paragraphs (b)(1) and (2) of this section 

is completed no later than 14 months 


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following the date of initial receipt of 

CCR in the CCR unit. 

(4) Frequency of inspections. (i) 

Except as provided for in paragraph 

(b)(4)(ii) of this section, the owner or 

operator of the CCR unit must conduct 

the inspection required by paragraphs 

(b)(1) and (2) of this section on an 

annual basis. The date of completing the 

initial inspection report is the basis for 

establishing the deadline to complete 

the first subsequent inspection. Any 

required inspection may be conducted 

prior to the required deadline provided 

the owner or operator places the 

completed inspection report into the 

facility’s operating record within a 

reasonable amount of time. In all cases, 

the deadline for completing subsequent 

inspection reports is based on the date 

of completing the previous inspection 

report. For purposes of this section, the 

owner or operator has completed an 

inspection when the inspection report 

has been placed in the facility’s 

operating record as required by 

§ 257.105(g)(6). 

(ii) In any calendar year in which both 

the periodic inspection by a qualified 

professional engineer and the 

quinquennial (occurring every five 

years) structural stability assessment by 

a qualified professional engineer 

required by §§ 257.73(d) and 257.74(d) 

are required to be completed, the annual 

inspection is not required, provided the 

structural stability assessment is 

completed during the calendar year. If 

the annual inspection is not conducted 

in a year as provided by this paragraph 

(b)(4)(ii), the deadline for completing 

the next annual inspection is one year 

from the date of completing the 

quinquennial structural stability 

assessment. 

(5) If a deficiency or release is 

identified during an inspection, the 

owner or operator must remedy the 

deficiency or release as soon as feasible 

and prepare documentation detailing 

the corrective measures taken. 

(c) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(g), the notification 

requirements specified in § 257.106(g), 

and the internet requirements specified 

in § 257.107(g). 

§ 257.84 Inspection requirements for CCR 

landfills. 

(a) Inspections by a qualified person. 

(1) All CCR landfills and any lateral 

expansion of a CCR landfill must be 

examined by a qualified person as 

follows: 

(i) At intervals not exceeding seven 

days, inspect for any appearances of 

actual or potential structural weakness 

and other conditions which are 

disrupting or have the potential to 

disrupt the operation or safety of the 

CCR unit; and 

(ii) The results of the inspection by a 

qualified person must be recorded in the 

facility’s operating record as required by 

§ 257.105(g)(8). 

(2) Timeframes for inspections by a 

qualified person—(i) Existing CCR 

landfills. The owner or operator of the 

CCR unit must initiate the inspections 

required under paragraph (a) of this 

section no later than October 19, 2015. 

(ii) New CCR landfills and any lateral 

expansion of a CCR landfill. The owner 

or operator of the CCR unit must initiate 

the inspections required under 

paragraph (a) of this section upon initial 

receipt of CCR by the CCR unit. 

(b) Annual inspections by a qualified 

professional engineer. (1) Existing and 

new CCR landfills and any lateral 

expansion of a CCR landfill must be 

inspected on a periodic basis by a 

qualified professional engineer to 

ensure that the design, construction, 

operation, and maintenance of the CCR 

unit is consistent with recognized and 

generally accepted good engineering 

standards. The inspection must, at a 

minimum, include: 

(i) A review of available information 

regarding the status and condition of the 

CCR unit, including, but not limited to, 

files available in the operating record 

(e.g., the results of inspections by a 

qualified person, and results of previous 

annual inspections); and 

(ii) A visual inspection of the CCR 

unit to identify signs of distress or 

malfunction of the CCR unit. 

(2) Inspection report. The qualified 

professional engineer must prepare a 

report following each inspection that 

addresses the following: 

(i) Any changes in geometry of the 

structure since the previous annual 

inspection; 

(ii) The approximate volume of CCR 

contained in the unit at the time of the 

inspection; 

(iii) Any appearances of an actual or 

potential structural weakness of the CCR 

unit, in addition to any existing 

conditions that are disrupting or have 

the potential to disrupt the operation 

and safety of the CCR unit; and 

(iv) Any other change(s) which may 

have affected the stability or operation 

of the CCR unit since the previous 

annual inspection. 

(3) Timeframes for conducting the 

initial inspection—(i) Existing CCR 

landfills. The owner or operator of the 

CCR unit must complete the initial 

inspection required by paragraphs (b)(1) 

and (2) of this section no later than 

January 18, 2016. 

(ii) New CCR landfills and any lateral 

expansion of a CCR landfill. The owner 

or operator of the CCR unit must 

complete the initial annual inspection 

required by paragraphs (b)(1) and (2) of 

this section no later than 14 months 

following the date of initial receipt of 

CCR in the CCR unit. 

(4) Frequency of inspections. The 

owner or operator of the CCR unit must 

conduct the inspection required by 

paragraphs (b)(1) and (2) of this section 

on an annual basis. The date of 

completing the initial inspection report 

is the basis for establishing the deadline 

to complete the first subsequent 

inspection. Any required inspection 

may be conducted prior to the required 

deadline provided the owner or operator 

places the completed inspection report 

into the facility’s operating record 

within a reasonable amount of time. In 

all cases, the deadline for completing 

subsequent inspection reports is based 

on the date of completing the previous 

inspection report. For purposes of this 

section, the owner or operator has 

completed an inspection when the 

inspection report has been placed in the 

facility’s operating record as required by 

§ 257.105(g)(9). 

(5) If a deficiency or release is 

identified during an inspection, the 

owner or operator must remedy the 

deficiency or release as soon as feasible 

and prepare documentation detailing 

the corrective measures taken. 

(c) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(g), the notification 

requirements specified in § 257.106(g), 

and the internet requirements specified 

in § 257.107(g). 

Groundwater Monitoring and 

Corrective Action 

§ 257.90 Applicability. 

(a) Except as provided for in § 257.100 

for inactive CCR surface impoundments, 

all CCR landfills, CCR surface 

impoundments, and lateral expansions 

of CCR units are subject to the 

groundwater monitoring and corrective 

action requirements under §§ 257.90 

through 257.98. 

(b) Initial timeframes—(1) Existing 

CCR landfills and existing CCR surface 

impoundments. No later than October 

17, 2017, the owner or operator of the 

CCR unit must be in compliance with 

the following groundwater monitoring 

requirements: 

(i) Install the groundwater monitoring 

system as required by § 257.91; 

(ii) Develop the groundwater 

sampling and analysis program to 

include selection of the statistical 


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procedures to be used for evaluating 

groundwater monitoring data as 

required by § 257.93; 

(iii) Initiate the detection monitoring 

program to include obtaining a 

minimum of eight independent samples 

for each background and downgradient 

well as required by § 257.94(b); and 

(iv) Begin evaluating the groundwater 

monitoring data for statistically 

significant increases over background 

levels for the constituents listed in 

appendix III of this part as required by 

§ 257.94. 

(2) New CCR landfills, new CCR 

surface impoundments, and all lateral 

expansions of CCR units. Prior to initial 

receipt of CCR by the CCR unit, the 

owner or operator must be in 

compliance with the groundwater 

monitoring requirements specified in 

paragraph (b)(1)(i) and (ii) of this 

section. In addition, the owner or 

operator of the CCR unit must initiate 

the detection monitoring program to 

include obtaining a minimum of eight 

independent samples for each 

background well as required by 

§ 257.94(b). 

(c) Once a groundwater monitoring 

system and groundwater monitoring 

program has been established at the CCR 

unit as required by this subpart, the 

owner or operator must conduct 

groundwater monitoring and, if 

necessary, corrective action throughout 

the active life and post-closure care 

period of the CCR unit. 

(d) In the event of a release from a 

CCR unit, the owner or operator must 

immediately take all necessary measures 

to control the source(s) of releases so as 

to reduce or eliminate, to the maximum 

extent feasible, further releases of 

contaminants into the environment. The 

owner or operator of the CCR unit must 

comply with all applicable requirements 

in §§ 257.96, 257.97, and 257.98. 

(e) Annual groundwater monitoring 

and corrective action report. For 

existing CCR landfills and existing CCR 

surface impoundments, no later than 

January 31, 2018, and annually 

thereafter, the owner or operator must 

prepare an annual groundwater 

monitoring and corrective action report. 

For new CCR landfills, new CCR surface 

impoundments, and all lateral 

expansions of CCR units, the owner or 

operator must prepare the initial annual 

groundwater monitoring and corrective 

action report no later than January 31 of 

the year following the calendar year a 

groundwater monitoring system has 

been established for such CCR unit as 

required by this subpart, and annually 

thereafter. For the preceding calendar 

year, the annual report must document 

the status of the groundwater 

monitoring and corrective action 

program for the CCR unit, summarize 

key actions completed, describe any 

problems encountered, discuss actions 

to resolve the problems, and project key 

activities for the upcoming year. For 

purposes of this section, the owner or 

operator has prepared the annual report 

when the report is placed in the 

facility’s operating record as required by 

§ 257.105(h)(1). At a minimum, the 

annual groundwater monitoring and 

corrective action report must contain 

the following information, to the extent 

available: 

(1) A map, aerial image, or diagram 

showing the CCR unit and all 

background (or upgradient) and 

downgradient monitoring wells, to 

include the well identification numbers, 

that are part of the groundwater 

monitoring program for the CCR unit; 

(2) Identification of any monitoring 

wells that were installed or 

decommissioned during the preceding 

year, along with a narrative description 

of why those actions were taken; 

(3) In addition to all the monitoring 

data obtained under §§ 257.90 through 

257.98, a summary including the 

number of groundwater samples that 

were collected for analysis for each 

background and downgradient well, the 

dates the samples were collected, and 

whether the sample was required by the 

detection monitoring or assessment 

monitoring programs; 

(4) A narrative discussion of any 

transition between monitoring programs 

(e.g., the date and circumstances for 

transitioning from detection monitoring 

to assessment monitoring in addition to 

identifying the constituent(s) detected at 

a statistically significant increase over 

background levels); and 

(5) Other information required to be 

included in the annual report as 

specified in §§ 257.90 through 257.98. 

(f) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(h), the notification 

requirements specified in § 257.106(h), 

and the internet requirements specified 

in § 257.107(h). 

§ 257.91 Groundwater monitoring 

systems. 

(a) Performance standard. The owner 

or operator of a CCR unit must install 

a groundwater monitoring system that 

consists of a sufficient number of wells, 

installed at appropriate locations and 

depths, to yield groundwater samples 

from the uppermost aquifer that: 

(1) Accurately represent the quality of 

background groundwater that has not 

been affected by leakage from a CCR 

unit. A determination of background 

quality may include sampling of wells 

that are not hydraulically upgradient of 

the CCR management area where: 

(i) Hydrogeologic conditions do not 

allow the owner or operator of the CCR 

unit to determine what wells are 

hydraulically upgradient; or 

(ii) Sampling at other wells will 

provide an indication of background 

groundwater quality that is as 

representative or more representative 

than that provided by the upgradient 

wells; and 

(2) Accurately represent the quality of 

groundwater passing the waste 

boundary of the CCR unit. The 

downgradient monitoring system must 

be installed at the waste boundary that 

ensures detection of groundwater 

contamination in the uppermost aquifer. 

All potential contaminant pathways 

must be monitored. 

(b) The number, spacing, and depths 

of monitoring systems shall be 

determined based upon site-specific 

technical information that must include 

thorough characterization of: 

(1) Aquifer thickness, groundwater 

flow rate, groundwater flow direction 

including seasonal and temporal 

fluctuations in groundwater flow; and 

(2) Saturated and unsaturated geologic 

units and fill materials overlying the 

uppermost aquifer, materials comprising 

the uppermost aquifer, and materials 

comprising the confining unit defining 

the lower boundary of the uppermost 

aquifer, including, but not limited to, 

thicknesses, stratigraphy, lithology, 

hydraulic conductivities, porosities and 

effective porosities. 

(c) The groundwater monitoring 

system must include the minimum 

number of monitoring wells necessary 

to meet the performance standards 

specified in paragraph (a) of this 

section, based on the site-specific 

information specified in paragraph (b) of 

this section. The groundwater 

monitoring system must contain: 

(1) A minimum of one upgradient and 

three downgradient monitoring wells; 

and 

(2) Additional monitoring wells as 

necessary to accurately represent the 

quality of background groundwater that 

has not been affected by leakage from 

the CCR unit and the quality of 

groundwater passing the waste 

boundary of the CCR unit. 

(d) The owner or operator of multiple 

CCR units may install a multiunit 

groundwater monitoring system instead 

of separate groundwater monitoring 

systems for each CCR unit. 

(1) The multiunit groundwater 

monitoring system must be equally as 

capable of detecting monitored 

constituents at the waste boundary of 


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the CCR unit as the individual 

groundwater monitoring system 

specified in paragraphs (a) through (c) of 

this section for each CCR unit based on 

the following factors: 

(i) Number, spacing, and orientation 

of each CCR unit; 

(ii) Hydrogeologic setting; 

(iii) Site history; and 

(iv) Engineering design of the CCR 

unit. 

(2) If the owner or operator elects to 

install a multiunit groundwater 

monitoring system, and if the multiunit 

system includes at least one existing 

unlined CCR surface impoundment as 

determined by § 257.71(a), and if at any 

time after October 19, 2015 the owner or 

operator determines in any sampling 

event that the concentrations of one or 

more constituents listed in appendix IV 

to this part are detected at statistically 

significant levels above the groundwater 

protection standard established under 

§ 257.95(h) for the multiunit system, 

then all unlined CCR surface 

impoundments comprising the 

multiunit groundwater monitoring 

system are subject to the closure 

requirements under § 257.101(a) to 

retrofit or close. 

(e) Monitoring wells must be cased in 

a manner that maintains the integrity of 

the monitoring well borehole. This 

casing must be screened or perforated 

and packed with gravel or sand, where 

necessary, to enable collection of 

groundwater samples. The annular 

space (i.e., the space between the 

borehole and well casing) above the 

sampling depth must be sealed to 

prevent contamination of samples and 

the groundwater. 

(1) The owner or operator of the CCR 

unit must document and include in the 

operating record the design, installation, 

development, and decommissioning of 

any monitoring wells, piezometers and 

other measurement, sampling, and 

analytical devices. The qualified 

professional engineer must be given 

access to this documentation when 

completing the groundwater monitoring 

system certification required under 

paragraph (f) of this section. 

(2) The monitoring wells, 

piezometers, and other measurement, 

sampling, and analytical devices must 

be operated and maintained so that they 

perform to the design specifications 

throughout the life of the monitoring 

program. 

(f) The owner or operator must obtain 

a certification from a qualified 

professional engineer stating that the 

groundwater monitoring system has 

been designed and constructed to meet 

the requirements of this section. If the 

groundwater monitoring system 

includes the minimum number of 

monitoring wells specified in paragraph 

(c)(1) of this section, the certification 

must document the basis supporting 

this determination. 

(g) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(h), the notification 

requirements specified in § 257.106(h), 

and the internet requirements specified 

in § 257.107(h). 

§ 257.92 [Reserved] 

§ 257.93 Groundwater sampling and 

analysis requirements. 

(a) The groundwater monitoring 

program must include consistent 

sampling and analysis procedures that 

are designed to ensure monitoring 

results that provide an accurate 

representation of groundwater quality at 

the background and downgradient wells 

required by § 257.91. The owner or 

operator of the CCR unit must develop 

a sampling and analysis program that 

includes procedures and techniques for: 

(1) Sample collection; 

(2) Sample preservation and 

shipment; 

(3) Analytical procedures; 

(4) Chain of custody control; and 

(5) Quality assurance and quality 

control. 

(b) The groundwater monitoring 

program must include sampling and 

analytical methods that are appropriate 

for groundwater sampling and that 

accurately measure hazardous 

constituents and other monitoring 

parameters in groundwater samples. For 

purposes of §§ 257.90 through 257.98, 

the term constituent refers to both 

hazardous constituents and other 

monitoring parameters listed in either 

appendix III or IV of this part. 

(c) Groundwater elevations must be 

measured in each well immediately 

prior to purging, each time groundwater 

is sampled. The owner or operator of the 

CCR unit must determine the rate and 

direction of groundwater flow each time 

groundwater is sampled. Groundwater 

elevations in wells which monitor the 

same CCR management area must be 

measured within a period of time short 

enough to avoid temporal variations in 

groundwater flow which could preclude 

accurate determination of groundwater 

flow rate and direction. 

(d) The owner or operator of the CCR 

unit must establish background 

groundwater quality in a hydraulically 

upgradient or background well(s) for 

each of the constituents required in the 

particular groundwater monitoring 

program that applies to the CCR unit as 

determined under § 257.94(a) or 

§ 257.95(a). Background groundwater 

quality may be established at wells that 

are not located hydraulically upgradient 

from the CCR unit if it meets the 

requirements of § 257.91(a)(1). 

(e) The number of samples collected 

when conducting detection monitoring 

and assessment monitoring (for both 

downgradient and background wells) 

must be consistent with the statistical 

procedures chosen under paragraph (f) 

of this section and the performance 

standards under paragraph (g) of this 

section. The sampling procedures shall 

be those specified under § 257.94(b) 

through (d) for detection monitoring, 

§ 257.95(b) through (d) for assessment 

monitoring, and § 257.96(b) for 

corrective action. 

(f) The owner or operator of the CCR 

unit must select one of the statistical 

methods specified in paragraphs (f)(1) 

through (5) of this section to be used in 

evaluating groundwater monitoring data 

for each specified constituent. The 

statistical test chosen shall be 

conducted separately for each 

constituent in each monitoring well. 

(1) A parametric analysis of variance 

followed by multiple comparison 

procedures to identify statistically 

significant evidence of contamination. 

The method must include estimation 

and testing of the contrasts between 

each compliance well’s mean and the 

background mean levels for each 

constituent. 

(2) An analysis of variance based on 

ranks followed by multiple comparison 

procedures to identify statistically 

significant evidence of contamination. 

The method must include estimation 

and testing of the contrasts between 

each compliance well’s median and the 

background median levels for each 

constituent. 

(3) A tolerance or prediction interval 

procedure, in which an interval for each 

constituent is established from the 

distribution of the background data and 

the level of each constituent in each 

compliance well is compared to the 

upper tolerance or prediction limit. 

(4) A control chart approach that gives 

control limits for each constituent. 

(5) Another statistical test method that 

meets the performance standards of 

paragraph (g) of this section. 

(6) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer stating 

that the selected statistical method is 

appropriate for evaluating the 

groundwater monitoring data for the 

CCR management area. The certification 

must include a narrative description of 

the statistical method selected to 

evaluate the groundwater monitoring 

data. 


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(g) Any statistical method chosen 

under paragraph (f) of this section shall 

comply with the following performance 

standards, as appropriate, based on the 

statistical test method used: 

(1) The statistical method used to 

evaluate groundwater monitoring data 

shall be appropriate for the distribution 

of constituents. Normal distributions of 

data values shall use parametric 

methods. Non-normal distributions 

shall use non-parametric methods. If the 

distribution of the constituents is shown 

by the owner or operator of the CCR unit 

to be inappropriate for a normal theory 

test, then the data must be transformed 

or a distribution-free (non-parametric) 

theory test must be used. If the 

distributions for the constituents differ, 

more than one statistical method may be 

needed. 

(2) If an individual well comparison 

procedure is used to compare an 

individual compliance well constituent 

concentration with background 

constituent concentrations or a 

groundwater protection standard, the 

test shall be done at a Type I error level 

no less than 0.01 for each testing period. 

If a multiple comparison procedure is 

used, the Type I experiment wise error 

rate for each testing period shall be no 

less than 0.05; however, the Type I error 

of no less than 0.01 for individual well 

comparisons must be maintained. This 

performance standard does not apply to 

tolerance intervals, prediction intervals, 

or control charts. 

(3) If a control chart approach is used 

to evaluate groundwater monitoring 

data, the specific type of control chart 

and its associated parameter values 

shall be such that this approach is at 

least as effective as any other approach 

in this section for evaluating 

groundwater data. The parameter values 

shall be determined after considering 

the number of samples in the 

background data base, the data 

distribution, and the range of the 

concentration values for each 

constituent of concern. 

(4) If a tolerance interval or a 

predictional interval is used to evaluate 

groundwater monitoring data, the levels 

of confidence and, for tolerance 

intervals, the percentage of the 

population that the interval must 

contain, shall be such that this approach 

is at least as effective as any other 

approach in this section for evaluating 

groundwater data. These parameters 

shall be determined after considering 

the number of samples in the 

background data base, the data 

distribution, and the range of the 

concentration values for each 

constituent of concern. 

(5) The statistical method must 

account for data below the limit of 

detection with one or more statistical 

procedures that shall at least as effective 

as any other approach in this section for 

evaluating groundwater data. Any 

practical quantitation limit that is used 

in the statistical method shall be the 

lowest concentration level that can be 

reliably achieved within specified limits 

of precision and accuracy during 

routine laboratory operating conditions 

that are available to the facility. 

(6) If necessary, the statistical method 

must include procedures to control or 

correct for seasonal and spatial 

variability as well as temporal 

correlation in the data. 

(h) The owner or operator of the CCR 

unit must determine whether or not 

there is a statistically significant 

increase over background values for 

each constituent required in the 

particular groundwater monitoring 

program that applies to the CCR unit, as 

determined under § 257.94(a) or 

§ 257.95(a). 

(1) In determining whether a 

statistically significant increase has 

occurred, the owner or operator must 

compare the groundwater quality of 

each constituent at each monitoring 

well designated pursuant to 

§ 257.91(a)(2) or (d)(1) to the 

background value of that constituent, 

according to the statistical procedures 

and performance standards specified 

under paragraphs (f) and (g) of this 

section. 

(2) Within 90 days after completing 

sampling and analysis, the owner or 

operator must determine whether there 

has been a statistically significant 

increase over background for any 

constituent at each monitoring well. 

(i) The owner or operator must 

measure ‘‘total recoverable metals’’ 

concentrations in measuring 

groundwater quality. Measurement of 

total recoverable metals captures both 

the particulate fraction and dissolved 

fraction of metals in natural waters. 

Groundwater samples shall not be fieldfiltered prior to analysis. 

(j) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(h), the notification 

requirements specified in § 257.106(h), 

and the Internet requirements specified 

in § 257.107(h). 

§ 257.94 Detection monitoring program. 

(a) The owner or operator of a CCR 

unit must conduct detection monitoring 

at all groundwater monitoring wells 

consistent with this section. At a 

minimum, a detection monitoring 

program must include groundwater 

monitoring for all constituents listed in 

appendix III to this part. 

(b) Except as provided in paragraph 

(d) of this section, the monitoring 

frequency for the constituents listed in 

appendix III to this part shall be at least 

semiannual during the active life of the 

CCR unit and the post-closure period. 

For existing CCR landfills and existing 

CCR surface impoundments, a 

minimum of eight independent samples 

from each background and 

downgradient well must be collected 

and analyzed for the constituents listed 

in appendix III and IV to this part no 

later than October 17, 2017. For new 

CCR landfills, new CCR surface 

impoundments, and all lateral 

expansions of CCR units, a minimum of 

eight independent samples for each 

background well must be collected and 

analyzed for the constituents listed in 

appendices III and IV to this part during 

the first six months of sampling. 

(c) The number of samples collected 

and analyzed for each background well 

and downgradient well during 

subsequent semiannual sampling events 

must be consistent with § 257.93(e), and 

must account for any unique 

characteristics of the site, but must be at 

least one sample from each background 

and downgradient well. 

(d) The owner or operator of a CCR 

unit may demonstrate the need for an 

alternative monitoring frequency for 

repeated sampling and analysis for 

constituents listed in appendix III to 

this part during the active life and the 

post-closure care period based on the 

availability of groundwater. If there is 

not adequate groundwater flow to 

sample wells semiannually, the 

alternative frequency shall be no less 

than annual. The need to vary 

monitoring frequency must be evaluated 

on a site-specific basis. The 

demonstration must be supported by, at 

a minimum, the information specified 

in paragraphs (d)(1) and (2) of this 

section. 

(1) Information documenting that the 

need for less frequent sampling. The 

alternative frequency must be based on 

consideration of the following factors: 

(i) Lithology of the aquifer and 

unsaturated zone; 

(ii) Hydraulic conductivity of the 

aquifer and unsaturated zone; and 

(iii) Groundwater flow rates. 

(2) Information documenting that the 

alternative frequency will be no less 

effective in ensuring that any leakage 

from the CCR unit will be discovered 

within a timeframe that will not 

materially delay establishment of an 

assessment monitoring program. 

(3) The owner or operator must obtain 

a certification from a qualified 


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professional engineer stating that the 

demonstration for an alternative 

groundwater sampling and analysis 

frequency meets the requirements of 

this section. The owner or operator must 

include the demonstration providing the 

basis for the alternative monitoring 

frequency and the certification by a 

qualified professional engineer in the 

annual groundwater monitoring and 

corrective action report required by 

§ 257.90(e). 

(e) If the owner or operator of the CCR 

unit determines, pursuant to § 257.93(h) 

that there is a statistically significant 

increase over background levels for one 

or more of the constituents listed in 

appendix III to this part at any 

monitoring well at the waste boundary 

specified under § 257.91(a)(2), the 

owner or operator must: 

(1) Except as provided for in 

paragraph (e)(2) of this section, within 

90 days of detecting a statistically 

significant increase over background 

levels for any constituent, establish an 

assessment monitoring program meeting 

the requirements of § 257.95. 

(2) The owner or operator may 

demonstrate that a source other than the 

CCR unit caused the statistically 

significant increase over background 

levels for a constituent or that the 

statistically significant increase resulted 

from error in sampling, analysis, 

statistical evaluation, or natural 

variation in groundwater quality. The 

owner or operator must complete the 

written demonstration within 90 days of 

detecting a statistically significant 

increase over background levels to 

include obtaining a certification from a 

qualified professional engineer verifying 

the accuracy of the information in the 

report. If a successful demonstration is 

completed within the 90-day period, the 

owner or operator of the CCR unit may 

continue with a detection monitoring 

program under this section. If a 

successful demonstration is not 

completed within the 90-day period, the 

owner or operator of the CCR unit must 

initiate an assessment monitoring 

program as required under § 257.95. The 

owner or operator must also include the 

demonstration in the annual 

groundwater monitoring and corrective 

action report required by § 257.90(e), in 

addition to the certification by a 

qualified professional engineer. 

(3) The owner or operator of a CCR 

unit must prepare a notification stating 

that an assessment monitoring program 

has been established. The owner or 

operator has completed the notification 

when the notification is placed in the 

facility’s operating record as required by 

§ 257.105(h)(5). 

(f) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(h), the notification 

requirements specified in § 257.106(h), 

and the Internet requirements specified 

in § 257.107(h). 

§ 257.95 Assessment monitoring program. 

(a) Assessment monitoring is required 

whenever a statistically significant 

increase over background levels has 

been detected for one or more of the 

constituents listed in appendix III to 

this part. 

(b) Within 90 days of triggering an 

assessment monitoring program, and 

annually thereafter, the owner or 

operator of the CCR unit must sample 

and analyze the groundwater for all 

constituents listed in appendix IV to 

this part. The number of samples 

collected and analyzed for each well 

during each sampling event must be 

consistent with § 257.93(e), and must 

account for any unique characteristics of 

the site, but must be at least one sample 

from each well. 

(c) The owner or operator of a CCR 

unit may demonstrate the need for an 

alternative monitoring frequency for 

repeated sampling and analysis for 

constituents listed in appendix IV to 

this part during the active life and the 

post-closure care period based on the 

availability of groundwater. If there is 

not adequate groundwater flow to 

sample wells semiannually, the 

alternative frequency shall be no less 

than annual. The need to vary 

monitoring frequency must be evaluated 

on a site-specific basis. The 

demonstration must be supported by, at 

a minimum, the information specified 

in paragraphs (c)(1) and (2) of this 

section. 

(1) Information documenting that the 

need for less frequent sampling. The 

alternative frequency must be based on 

consideration of the following factors: 

(i) Lithology of the aquifer and 

unsaturated zone; 

(ii) Hydraulic conductivity of the 

aquifer and unsaturated zone; and 

(iii) Groundwater flow rates. 

(2) Information documenting that the 

alternative frequency will be no less 

effective in ensuring that any leakage 

from the CCR unit will be discovered 

within a timeframe that will not 

materially delay the initiation of any 

necessary remediation measures. 

(3) The owner or operator must obtain 

a certification from a qualified 

professional engineer stating that the 

demonstration for an alternative 

groundwater sampling and analysis 

frequency meets the requirements of 

this section. The owner or operator must 

include the demonstration providing the 

basis for the alternative monitoring 

frequency and the certification by a 

qualified professional engineer in the 

annual groundwater monitoring and 

corrective action report required by 

§ 257.90(e). 

(d) After obtaining the results from 

the initial and subsequent sampling 

events required in paragraph (b) of this 

section, the owner or operator must: 

(1) Within 90 days of obtaining the 

results, and on at least a semiannual 

basis thereafter, resample all wells that 

were installed pursuant to the 

requirements of § 257.91, conduct 

analyses for all parameters in appendix 

III to this part and for those constituents 

in appendix IV to this part that are 

detected in response to paragraph (b) of 

this section, and record their 

concentrations in the facility operating 

record. The number of samples 

collected and analyzed for each 

background well and downgradient well 

during subsequent semiannual sampling 

events must be consistent with 

§ 257.93(e), and must account for any 

unique characteristics of the site, but 

must be at least one sample from each 

background and downgradient well; 

(2) Establish groundwater protection 

standards for all constituents detected 

pursuant to paragraph (b) or (d) of this 

section. The groundwater protection 

standards must be established in 

accordance with paragraph (h) of this 

section; and 

(3) Include the recorded 

concentrations required by paragraph 

(d)(1) of this section, identify the 

background concentrations established 

under § 257.94(b), and identify the 

groundwater protection standards 

established under paragraph (d)(2) of 

this section in the annual groundwater 

monitoring and corrective action report 

required by § 257.90(e). 

(e) If the concentrations of all 

constituents listed in appendices III and 

IV to this part are shown to be at or 

below background values, using the 

statistical procedures in § 257.93(g), for 

two consecutive sampling events, the 

owner or operator may return to 

detection monitoring of the CCR unit. 

The owner or operator must prepare a 

notification stating that detection 

monitoring is resuming for the CCR 

unit. The owner or operator has 

completed the notification when the 

notification is placed in the facility’s 

operating record as required by 

§ 257.105(h)(7). 

(f) If the concentrations of any 

constituent in appendices III and IV to 

this part are above background values, 

but all concentrations are below the 

groundwater protection standard 


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established under paragraph (h) of this 

section, using the statistical procedures 

in § 257.93(g), the owner or operator 

must continue assessment monitoring in 

accordance with this section. 

(g) If one or more constituents in 

appendix IV to this part are detected at 

statistically significant levels above the 

groundwater protection standard 

established under paragraph (h) of this 

section in any sampling event, the 

owner or operator must prepare a 

notification identifying the constituents 

in appendix IV to this part that have 

exceeded the groundwater protection 

standard. The owner or operator has 

completed the notification when the 

notification is placed in the facility’s 

operating record as required by 

§ 257.105(h)(8). The owner or operator 

of the CCR unit also must: 

(1) Characterize the nature and extent 

of the release and any relevant site 

conditions that may affect the remedy 

ultimately selected. The 

characterization must be sufficient to 

support a complete and accurate 

assessment of the corrective measures 

necessary to effectively clean up all 

releases from the CCR unit pursuant to 

§ 257.96. Characterization of the release 

includes the following minimum 

measures: 

(i) Install additional monitoring wells 

necessary to define the contaminant 

plume(s); 

(ii) Collect data on the nature and 

estimated quantity of material released 

including specific information on the 

constituents listed in appendix IV of 

this part and the levels at which they 

are present in the material released; 

(iii) Install at least one additional 

monitoring well at the facility boundary 

in the direction of contaminant 

migration and sample this well in 

accordance with paragraph (d)(1) of this 

section; and 

(iv) Sample all wells in accordance 

with paragraph (d)(1) of this section to 

characterize the nature and extent of the 

release. 

(2) Notify all persons who own the 

land or reside on the land that directly 

overlies any part of the plume of 

contamination if contaminants have 

migrated off-site if indicated by 

sampling of wells in accordance with 

paragraph (g)(1) of this section. The 

owner or operator has completed the 

notifications when they are placed in 

the facility’s operating record as 

required by § 257.105(h)(8). 

(3) Within 90 days of finding that any 

of the constituents listed in appendix IV 

to this part have been detected at a 

statistically significant level exceeding 

the groundwater protection standards 

the owner or operator must either: 

(i) Initiate an assessment of corrective 

measures as required by § 257.96; or 

(ii) Demonstrate that a source other 

than the CCR unit caused the 

contamination, or that the statistically 

significant increase resulted from error 

in sampling, analysis, statistical 

evaluation, or natural variation in 

groundwater quality. Any such 

demonstration must be supported by a 

report that includes the factual or 

evidentiary basis for any conclusions 

and must be certified to be accurate by 

a qualified professional engineer. If a 

successful demonstration is made, the 

owner or operator must continue 

monitoring in accordance with the 

assessment monitoring program 

pursuant to this section, and may return 

to detection monitoring if the 

constituents in appendices III and IV to 

this part are at or below background as 

specified in paragraph (e) of this 

section. The owner or operator must 

also include the demonstration in the 

annual groundwater monitoring and 

corrective action report required by 

§ 257.90(e), in addition to the 

certification by a qualified professional 

engineer. 

(4) If a successful demonstration has 

not been made at the end of the 90 day 

period provided by paragraph (g)(3)(ii) 

of this section, the owner or operator of 

the CCR unit must initiate the 

assessment of corrective measures 

requirements under § 257.96. 

(5) If an assessment of corrective 

measures is required under § 257.96 by 

either paragraph (g)(3)(i) or (g)(4) of this 

section, and if the CCR unit is an 

existing unlined CCR surface 

impoundment as determined by 

§ 257.71(a), then the CCR unit is subject 

to the closure requirements under 

§ 257.101(a) to retrofit or close. In 

addition, the owner or operator must 

prepare a notification stating that an 

assessment of corrective measures has 

been initiated. 

(h) The owner or operator of the CCR 

unit must establish a groundwater 

protection standard for each constituent 

in appendix IV to this part detected in 

the groundwater. The groundwater 

protection standard shall be: 

(1) For constituents for which a 

maximum contaminant level (MCL) has 

been established under §§ 141.62 and 

141.66 of this title, the MCL for that 

constituent; 

(2) For constituents for which an MCL 

has not been established, the 

background concentration for the 

constituent established from wells in 

accordance with § 257.91; or 

(3) For constituents for which the 

background level is higher than the 

MCL identified under paragraph (h)(1) 

of this section, the background 

concentration. 

(i) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(h), the notification 

requirements specified in § 257.106(h), 

and the Internet requirements specified 

in § 257.107(h). 

§ 257.96 Assessment of corrective 

measures. 

(a) Within 90 days of finding that any 

constituent listed in appendix IV to this 

part has been detected at a statistically 

significant level exceeding the 

groundwater protection standard 

defined under § 257.95(h), or 

immediately upon detection of a release 

from a CCR unit, the owner or operator 

must initiate an assessment of corrective 

measures to prevent further releases, to 

remediate any releases and to restore 

affected area to original conditions. The 

assessment of corrective measures must 

be completed within 90 days, unless the 

owner or operator demonstrates the 

need for additional time to complete the 

assessment of corrective measures due 

to site-specific conditions or 

circumstances. The owner or operator 

must obtain a certification from a 

qualified professional engineer attesting 

that the demonstration is accurate. The 

90-day deadline to complete the 

assessment of corrective measures may 

be extended for no longer than 60 days. 

The owner or operator must also 

include the demonstration in the annual 

groundwater monitoring and corrective 

action report required by § 257.90(e), in 

addition to the certification by a 

qualified professional engineer. 

(b) The owner or operator of the CCR 

unit must continue to monitor 

groundwater in accordance with the 

assessment monitoring program as 

specified in § 257.95. 

(c) The assessment under paragraph 

(a) of this section must include an 

analysis of the effectiveness of potential 

corrective measures in meeting all of the 

requirements and objectives of the 

remedy as described under § 257.97 

addressing at least the following: 

(1) The performance, reliability, ease 

of implementation, and potential 

impacts of appropriate potential 

remedies, including safety impacts, 

cross-media impacts, and control of 

exposure to any residual contamination; 

(2) The time required to begin and 

complete the remedy; 

(3) The institutional requirements, 

such as state or local permit 

requirements or other environmental or 

public health requirements that may 

substantially affect implementation of 

the remedy(s). 


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(d) The owner or operator must place 

the completed assessment of corrective 

measures in the facility’s operating 

record. The assessment has been 

completed when it is placed in the 

facility’s operating record as required by 

§ 257.105(h)(10). 

(e) The owner or operator must 

discuss the results of the corrective 

measures assessment at least 30 days 

prior to the selection of remedy, in a 

public meeting with interested and 

affected parties. 

(f) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(h), the notification 

requirements specified in § 257.106(h), 

and the Internet requirements specified 

in § 257.107(h). 

§ 257.97 Selection of remedy. 

(a) Based on the results of the 

corrective measures assessment 

conducted under § 257.96, the owner or 

operator must, as soon as feasible, select 

a remedy that, at a minimum, meets the 

standards listed in paragraph (b) of this 

section. This requirement applies to, not 

in place of, any applicable standards 

under the Occupational Safety and 

Health Act. The owner or operator must 

prepare a semiannual report describing 

the progress in selecting and designing 

the remedy. Upon selection of a remedy, 

the owner or operator must prepare a 

final report describing the selected 

remedy and how it meets the standards 

specified in paragraph (b) of this 

section. The owner or operator must 

obtain a certification from a qualified 

professional engineer that the remedy 

selected meets the requirements of this 

section. The report has been completed 

when it is placed in the operating record 

as required by § 257.105(h)(12). 

(b) Remedies must: 

(1) Be protective of human health and 

the environment; 

(2) Attain the groundwater protection 

standard as specified pursuant to 

§ 257.95(h); 

(3) Control the source(s) of releases so 

as to reduce or eliminate, to the 

maximum extent feasible, further 

releases of constituents in appendix IV 

to this part into the environment; 

(4) Remove from the environment as 

much of the contaminated material that 

was released from the CCR unit as is 

feasible, taking into account factors such 

as avoiding inappropriate disturbance of 

sensitive ecosystems; 

(5) Comply with standards for 

management of wastes as specified in 

§ 257.98(d). 

(c) In selecting a remedy that meets 

the standards of paragraph (b) of this 

section, the owner or operator of the 

CCR unit shall consider the following 

evaluation factors: 

(1) The long- and short-term 

effectiveness and protectiveness of the 

potential remedy(s), along with the 

degree of certainty that the remedy will 

prove successful based on consideration 

of the following: 

(i) Magnitude of reduction of existing 

risks; 

(ii) Magnitude of residual risks in 

terms of likelihood of further releases 

due to CCR remaining following 

implementation of a remedy; 

(iii) The type and degree of long-term 

management required, including 

monitoring, operation, and 

maintenance; 

(iv) Short-term risks that might be 

posed to the community or the 

environment during implementation of 

such a remedy, including potential 

threats to human health and the 

environment associated with 

excavation, transportation, and redisposal of contaminant; 

(v) Time until full protection is 

achieved; 

(vi) Potential for exposure of humans 

and environmental receptors to 

remaining wastes, considering the 

potential threat to human health and the 

environment associated with 

excavation, transportation, re-disposal, 

or containment; 

(vii) Long-term reliability of the 

engineering and institutional controls; 

and 

(viii) Potential need for replacement 

of the remedy. 

(2) The effectiveness of the remedy in 

controlling the source to reduce further 

releases based on consideration of the 

following factors: 

(i) The extent to which containment 

practices will reduce further releases; 

and 

(ii) The extent to which treatment 

technologies may be used. 

(3) The ease or difficulty of 

implementing a potential remedy(s) 

based on consideration of the following 

types of factors: 

(i) Degree of difficulty associated with 

constructing the technology; 

(ii) Expected operational reliability of 

the technologies; 

(iii) Need to coordinate with and 

obtain necessary approvals and permits 

from other agencies; 

(iv) Availability of necessary 

equipment and specialists; and 

(v) Available capacity and location of 

needed treatment, storage, and disposal 

services. 

(4) The degree to which community 

concerns are addressed by a potential 

remedy(s). 

(d) The owner or operator must 

specify as part of the selected remedy a 

schedule(s) for implementing and 

completing remedial activities. Such a 

schedule must require the completion of 

remedial activities within a reasonable 

period of time taking into consideration 

the factors set forth in paragraphs (d)(1) 

through (6) of this section. The owner or 

operator of the CCR unit must consider 

the following factors in determining the 

schedule of remedial activities: 

(1) Extent and nature of 

contamination, as determined by the 

characterization required under 

§ 257.95(g); 

(2) Reasonable probabilities of 

remedial technologies in achieving 

compliance with the groundwater 

protection standards established under 

§ 257.95(h) and other objectives of the 

remedy; 

(3) Availability of treatment or 

disposal capacity for CCR managed 

during implementation of the remedy; 

(4) Potential risks to human health 

and the environment from exposure to 

contamination prior to completion of 

the remedy; 

(5) Resource value of the aquifer 

including: 

(i) Current and future uses; 

(ii) Proximity and withdrawal rate of 

users; 

(iii) Groundwater quantity and 

quality; 

(iv) The potential damage to wildlife, 

crops, vegetation, and physical 

structures caused by exposure to CCR 

constituents; 

(v) The hydrogeologic characteristic of 

the facility and surrounding land; and 

(vi) The availability of alternative 

water supplies; and 

(6) Other relevant factors. 

(e) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(h), the notification 

requirements specified in § 257.106(h), 

and the Internet requirements specified 

in § 257.107(h). 

§ 257.98 Implementation of the corrective 

action program. 

(a) Within 90 days of selecting a 

remedy under § 257.97, the owner or 

operator must initiate remedial 

activities. Based on the schedule 

established under § 257.97(d) for 

implementation and completion of 

remedial activities the owner or 

operator must: 

(1) Establish and implement a 

corrective action groundwater 

monitoring program that: 

(i) At a minimum, meets the 

requirements of an assessment 

monitoring program under § 257.95; 

(ii) Documents the effectiveness of the 

corrective action remedy; and 


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(iii) Demonstrates compliance with 

the groundwater protection standard 

pursuant to paragraph (c) of this section. 

(2) Implement the corrective action 

remedy selected under § 257.97; and 

(3) Take any interim measures 

necessary to reduce the contaminants 

leaching from the CCR unit, and/or 

potential exposures to human or 

ecological receptors. Interim measures 

must, to the greatest extent feasible, be 

consistent with the objectives of and 

contribute to the performance of any 

remedy that may be required pursuant 

to § 257.97. The following factors must 

be considered by an owner or operator 

in determining whether interim 

measures are necessary: 

(i) Time required to develop and 

implement a final remedy; 

(ii) Actual or potential exposure of 

nearby populations or environmental 

receptors to any of the constituents 

listed in appendix IV of this part; 

(iii) Actual or potential contamination 

of drinking water supplies or sensitive 

ecosystems; 

(iv) Further degradation of the 

groundwater that may occur if remedial 

action is not initiated expeditiously; 

(v) Weather conditions that may cause 

any of the constituents listed in 

appendix IV to this part to migrate or be 

released; 

(vi) Potential for exposure to any of 

the constituents listed in appendix IV to 

this part as a result of an accident or 

failure of a container or handling 

system; and 

(vii) Other situations that may pose 

threats to human health and the 

environment. 

(b) If an owner or operator of the CCR 

unit, determines, at any time, that 

compliance with the requirements of 

§ 257.97(b) is not being achieved 

through the remedy selected, the owner 

or operator must implement other 

methods or techniques that could 

feasibly achieve compliance with the 

requirements. 

(c) Remedies selected pursuant to 

§ 257.97 shall be considered complete 

when: 

(1) The owner or operator of the CCR 

unit demonstrates compliance with the 

groundwater protection standards 

established under § 257.95(h) has been 

achieved at all points within the plume 

of contamination that lie beyond the 

groundwater monitoring well system 

established under § 257.91. 

(2) Compliance with the groundwater 

protection standards established under 

§ 257.95(h) has been achieved by 

demonstrating that concentrations of 

constituents listed in appendix IV to 

this part have not exceeded the 

groundwater protection standard(s) for a 

period of three consecutive years using 

the statistical procedures and 

performance standards in § 257.93(f) 

and (g). 

(3) All actions required to complete 

the remedy have been satisfied. 

(d) All CCR that are managed 

pursuant to a remedy required under 

§ 257.97, or an interim measure required 

under paragraph (a)(3) of this section, 

shall be managed in a manner that 

complies with all applicable RCRA 

requirements. 

(e) Upon completion of the remedy, 

the owner or operator must prepare a 

notification stating that the remedy has 

been completed. The owner or operator 

must obtain a certification from a 

qualified professional engineer attesting 

that the remedy has been completed in 

compliance with the requirements of 

paragraph (c) of this section. The report 

has been completed when it is placed in 

the operating record as required by 

§ 257.105(h)(13). 

(f) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(h), the notification 

requirements specified in § 257.106(h), 

and the internet requirements specified 

in § 257.107(h). 

Closure and Post-Closure Care 

§ 257.100 Inactive CCR surface 

impoundments. 

(a) Except as provided by paragraph 

(b) of this section, inactive CCR surface 

impoundments are subject to all of the 

requirements of this subpart applicable 

to existing CCR surface impoundments. 

(b) An owner or operator of an 

inactive CCR surface impoundment that 

completes closure of such CCR unit, and 

meets all of the requirements of either 

paragraphs (b)(1) through (4) of this 

section or paragraph (b)(5) of this 

section no later than April 17, 2018, is 

exempt from all other requirements of 

this subpart. 

(1) Closure by leaving CCR in place. 

If the owner or operator of the inactive 

CCR surface impoundment elects to 

close the CCR surface impoundment by 

leaving CCR in place, the owner or 

operator must ensure that, at a 

minimum, the CCR unit is closed in a 

manner that will: 

(i) Control, minimize or eliminate, to 

the maximum extent feasible, postclosure infiltration of liquids into the 

waste and releases of CCR, leachate, or 

contaminated run-off to the ground or 

surface waters or to the atmosphere; 

(ii) Preclude the probability of future 

impoundment of water, sediment, or 

slurry; 

(iii) Include measures that provide for 

major slope stability to prevent the 

sloughing or movement of the final 

cover system; and 

(iv) Minimize the need for further 

maintenance of the CCR unit. 

(2) The owner or operator of the 

inactive CCR surface impoundment 

must meet the requirements of 

paragraphs (b)(2)(i) and (ii) of this 

section prior to installing the final cover 

system required under paragraph (b)(3) 

of this section. 

(i) Free liquids must be eliminated by 

removing liquid wastes or solidifying 

the remaining wastes and waste 

residues. 

(ii) Remaining wastes must be 

stabilized sufficient to support the final 

cover system. 

(3) The owner or operator must install 

a final cover system that is designed to 

minimize infiltration and erosion, and 

at a minimum, meets the requirements 

of paragraph (b)(3)(i) of this section, or 

the requirements of an alternative final 

cover system specified in paragraph 

(b)(3)(ii) of this section. 

(i) The final cover system must be 

designed and constructed to meet the 

criteria specified in paragraphs 

(b)(3)(i)(A) through (D) of this section. 

(A) The permeability of the final cover 

system must be less than or equal to the 

permeability of any bottom liner system 

or natural subsoils present, or a 

permeability no greater than 1 × 10¥5

centimeters/second, whichever is less. 

(B) The infiltration of liquids through 

the CCR unit must be minimized by the 

use of an infiltration layer that contains 

a minimum of 18 inches of earthen 

material. 

(C) The erosion of the final cover 

system must be minimized by the use of 

an erosion layer that contains a 

minimum of six inches of earthen 

material that is capable of sustaining 

native plant growth. 

(D) The disruption of the integrity of 

the final cover system must be 

minimized through a design that 

accommodates settling and subsidence. 

(ii) The owner or operator may select 

an alternative final cover system design, 

provided the alternative final cover 

system is designed and constructed to 

meet the criteria in paragraphs 

(b)(3)(ii)(A) through (C) of this section. 

(A) The design of the final cover 

system must include an infiltration 

layer that achieves an equivalent 

reduction in infiltration as the 

infiltration layer specified in paragraphs 

(b)(3)(i)(A) and (B) of this section. 

(B) The design of the final cover 

system must include an erosion layer 

that provides equivalent protection from 

wind or water erosion as the erosion 

layer specified in paragraph (b)(3)(i)(C) 

of this section. 


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(C) The disruption of the integrity of 

the final cover system must be 

minimized through a design that 

accommodates settling and subsidence. 

(4) The owner or operator of the CCR 

surface impoundment must obtain a 

written certification from a qualified 

professional engineer stating that the 

design of the final cover system meets 

either the requirements of paragraphs 

(b)(3)(i) or (ii) of this section. 

(5) Closure through removal of CCR. 

The owner or operator may alternatively 

elect to close an inactive CCR surface 

impoundment by removing and 

decontaminating all areas affected by 

releases from the CCR surface 

impoundment. CCR removal and 

decontamination of the CCR surface 

impoundment are complete when all 

CCR in the inactive CCR surface 

impoundment is removed, including the 

bottom liner of the CCR unit. 

(6) The owner or operator of the CCR 

surface impoundment must obtain a 

written certification from a qualified 

professional engineer that closure of the 

CCR surface impoundment under either 

paragraphs (b)(1) through (4) or (b)(5) of 

this section is technically feasible 

within the timeframe in paragraph (b) of 

this section. 

(7) If the owner or operator of the CCR 

surface impoundment fails to complete 

closure of the inactive CCR surface 

impoundment within the timeframe in 

paragraph (b) of this section, the CCR 

unit must comply with all of the 

requirements applicable to existing CCR 

surface impoundments under this 

subpart. 

(c) Required notices and progress 

reports. An owner or operator of an 

inactive CCR surface impoundment that 

closes in accordance with paragraph (b) 

of this section must complete the 

notices and progress reports specified in 

paragraphs (c)(1) through (3) of this 

section. 

(1) No later than December 17, 2015, 

the owner or operator must prepare and 

place in the facility’s operating record a 

notification of intent to initiate closure 

of the CCR surface impoundment. The 

notification must state that the CCR 

surface impoundment is an inactive 

CCR surface impoundment closing 

under the requirements of paragraph (b) 

of this section. The notification must 

also include a narrative description of 

how the CCR surface impoundment will 

be closed, a schedule for completing 

closure activities, and the required 

certifications under paragraphs (b)(4) 

and (6) of this section, if applicable. 

(2) The owner or operator must 

prepare periodic progress reports 

summarizing the progress of closure 

implementation, including a description 

of the actions completed to date, any 

problems encountered and a description 

of the actions taken to resolve the 

problems, and projected closure 

activities for the upcoming year. The 

annual progress reports must be 

completed according to the following 

schedule: 

(i) The first annual progress report 

must be prepared no later than 13 

months after completing the notification 

of intent to initiate closure required by 

paragraph (c)(1) of this section. 

(ii) The second annual progress report 

must be prepared no later than 12 

months after completing the first 

progress report required by paragraph 

(c)(2)(i) of this section. 

(iii) The owner or operator has 

completed the progress reports specified 

in paragraph (c)(2) of this section when 

the reports are placed in the facility’s 

operating record as required by 

§ 257.105(i)(2). 

(3) The owner or operator must 

prepare and place in the facility’s 

operating record a notification of 

completion of closure of the CCR 

surface impoundment. The notification 

must be submitted within 60 days of 

completing closure of the CCR surface 

impoundment and must include a 

written certification from a qualified 

professional engineer stating that the 

CCR surface impoundment was closed 

in accordance with the requirements of 

either paragraph (b)(1) through (4) or 

(b)(5) of this section. 

(d) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(i), the notification 

requirements specified in § 257.106(i), 

and the internet requirements specified 

in § 257.107(i). 

§ 257.101 Closure or retrofit of CCR units. 

(a) The owner or operator of an 

existing unlined CCR surface 

impoundment, as determined under 

§ 257.71(a), is subject to the 

requirements of paragraph (a)(1) of this 

section. 

(1) Except as provided by paragraph 

(a)(3) of this section, if at any time after 

October 19, 2015 an owner or operator 

of an existing unlined CCR surface 

impoundment determines in any 

sampling event that the concentrations 

of one or more constituents listed in 

appendix IV to this part are detected at 

statistically significant levels above the 

groundwater protection standard 

established under § 257.95(h) for such 

CCR unit, within six months of making 

such determination, the owner or 

operator of the existing unlined CCR 

surface impoundment must cease 

placing CCR and non-CCR wastestreams 

into such CCR surface impoundment 

and either retrofit or close the CCR unit 

in accordance with the requirements of 

§ 257.102. 

(2) An owner or operator of an 

existing unlined CCR surface 

impoundment that closes in accordance 

with paragraph (a)(1) of this section 

must include a statement in the 

notification required under § 257.102(g) 

or (k)(5) that the CCR surface 

impoundment is closing or retrofitting 

under the requirements of paragraph 

(a)(1) of this section. 

(3) The timeframe specified in 

paragraph (a)(1) of this section does not 

apply if the owner or operator complies 

with the alternative closure procedures 

specified in § 257.103. 

(4) At any time after the initiation of 

closure under paragraph (a)(1) of this 

section, the owner or operator may 

cease closure activities and initiate a 

retrofit of the CCR unit in accordance 

with the requirements of § 257.102(k). 

(b) The owner or operator of an 

existing CCR surface impoundment is 

subject to the requirements of paragraph 

(b)(1) of this section. 

(1) Except as provided by paragraph 

(b)(4) of this section, within six months 

of determining that an existing CCR 

surface impoundment has not 

demonstrated compliance with any 

location standard specified in 

§§ 257.60(a), 257.61(a), 257.62(a), 

257.63(a), and 257.64(a), the owner or 

operator of the CCR surface 

impoundment must cease placing CCR 

and non-CCR wastestreams into such 

CCR unit and close the CCR unit in 

accordance with the requirements of 

§ 257.102. 

(2) Within six months of either failing 

to complete the initial or any 

subsequent periodic safety factor 

assessment required by § 257.73(e) by 

the deadlines specified in § 257.73(f)(1) 

through (3) or failing to document that 

the calculated factors of safety for the 

existing CCR surface impoundment 

achieve the minimum safety factors 

specified in § 257.73(e)(1)(i) through 

(iv), the owner or operator of the CCR 

surface impoundment must cease 

placing CCR and non-CCR wastestreams 

into such CCR unit and close the CCR 

unit in accordance with the 

requirements of § 257.102. 

(3) An owner or operator of an 

existing CCR surface impoundment that 

closes in accordance with paragraphs 

(b)(1) or (2) of this section must include 

a statement in the notification required 

under § 257.102(g) that the CCR surface 

impoundment is closing under the 

requirements of paragraphs (b)(1) or (2) 

of this section. 


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(4) The timeframe specified in 

paragraph (b)(1) of this section does not 

apply if the owner or operator complies 

with the alternative closure procedures 

specified in § 257.103. 

(c) The owner or operator of a new 

CCR surface impoundment is subject to 

the requirements of paragraph (c)(1) of 

this section. 

(1) Within six months of either failing 

to complete the initial or any 

subsequent periodic safety factor 

assessment required by § 257.74(e) by 

the deadlines specified in § 257.74(f)(1) 

through (3) or failing to document that 

the calculated factors of safety for the 

new CCR surface impoundment achieve 

the minimum safety factors specified in 

§ 257.74(e)(1)(i) through (v), the owner 

or operator of the CCR surface 

impoundment must cease placing CCR 

and non-CCR wastestreams into such 

CCR unit and close the CCR unit in 

accordance with the requirements of 

§ 257.102. 

(2) An owner or operator of an new 

CCR surface impoundment that closes 

in accordance with paragraph (c)(1) of 

this section must include a statement in 

the notification required under 

§ 257.102(g) that the CCR surface 

impoundment is closing under the 

requirements of paragraph (c)(1) of this 

section. 

(d) The owner or operator of an 

existing CCR landfill is subject to the 

requirements of paragraph (d)(1) of this 

section. 

(1) Except as provided by paragraph 

(d)(3) of this section, within six months 

of determining that an existing CCR 

landfill has not demonstrated 

compliance with the location restriction 

for unstable areas specified in 

§ 257.64(a), the owner or operator of the 

CCR unit must cease placing CCR and 

non-CCR waste streams into such CCR 

landfill and close the CCR unit in 

accordance with the requirements of 

§ 257.102. 

(2) An owner or operator of an 

existing CCR landfill that closes in 

accordance with paragraph (d)(1) of this 

section must include a statement in the 

notification required under § 257.102(g) 

that the CCR landfill is closing under 

the requirements of paragraph (d)(1) of 

this section. 

(3) The timeframe specified in 

paragraph (d)(1) of this section does not 

apply if the owner or operator complies 

with the alternative closure procedures 

specified in § 257.103. 

§ 257.102 Criteria for conducting the 

closure or retrofit of CCR units. 

(a) Closure of a CCR landfill, CCR 

surface impoundment, or any lateral 

expansion of a CCR unit must be 

completed either by leaving the CCR in 

place and installing a final cover system 

or through removal of the CCR and 

decontamination of the CCR unit, as 

described in paragraphs (b) through (j) 

of this section. Retrofit of a CCR surface 

impoundment must be completed in 

accordance with the requirements in 

paragraph (k) of this section. 

(b) Written closure plan—(1) Content 

of the plan. The owner or operator of a 

CCR unit must prepare a written closure 

plan that describes the steps necessary 

to close the CCR unit at any point 

during the active life of the CCR unit 

consistent with recognized and 

generally accepted good engineering 

practices. The written closure plan must 

include, at a minimum, the information 

specified in paragraphs (b)(1)(i) through 

(vi) of this section. 

(i) A narrative description of how the 

CCR unit will be closed in accordance 

with this section. 

(ii) If closure of the CCR unit will be 

accomplished through removal of CCR 

from the CCR unit, a description of the 

procedures to remove the CCR and 

decontaminate the CCR unit in 

accordance with paragraph (c) of this 

section. 

(iii) If closure of the CCR unit will be 

accomplished by leaving CCR in place, 

a description of the final cover system, 

designed in accordance with paragraph 

(d) of this section, and the methods and 

procedures to be used to install the final 

cover. The closure plan must also 

discuss how the final cover system will 

achieve the performance standards 

specified in paragraph (d) of this 

section. 

(iv) An estimate of the maximum 

inventory of CCR ever on-site over the 

active life of the CCR unit. 

(v) An estimate of the largest area of 

the CCR unit ever requiring a final cover 

as required by paragraph (d) of this 

section at any time during the CCR 

unit’s active life. 

(vi) A schedule for completing all 

activities necessary to satisfy the closure 

criteria in this section, including an 

estimate of the year in which all closure 

activities for the CCR unit will be 

completed. The schedule should 

provide sufficient information to 

describe the sequential steps that will be 

taken to close the CCR unit, including 

identification of major milestones such 

as coordinating with and obtaining 

necessary approvals and permits from 

other agencies, the dewatering and 

stabilization phases of CCR surface 

impoundment closure, or installation of 

the final cover system, and the 

estimated timeframes to complete each 

step or phase of CCR unit closure. When 

preparing the written closure plan, if the 

owner or operator of a CCR unit 

estimates that the time required to 

complete closure will exceed the 

timeframes specified in paragraph (f)(1) 

of this section, the written closure plan 

must include the site-specific 

information, factors and considerations 

that would support any time extension 

sought under paragraph (f)(2) of this 

section. 

(2) Timeframes for preparing the 

initial written closure plan—(i) Existing 

CCR landfills and existing CCR surface 

impoundments. No later than October 

17, 2016, the owner or operator of the 

CCR unit must prepare an initial written 

closure plan consistent with the 

requirements specified in paragraph 

(b)(1) of this section. 

(ii) New CCR landfills and new CCR 

surface impoundments, and any lateral 

expansion of a CCR unit. No later than 

the date of the initial receipt of CCR in 

the CCR unit, the owner or operator 

must prepare an initial written closure 

plan consistent with the requirements 

specified in paragraph (b)(1) of this 

section. 

(iii) The owner or operator has 

completed the written closure plan 

when the plan, including the 

certification required by paragraph 

(b)(4) of this section, has been placed in 

the facility’s operating record as 

required by § 257.105(i)(4). 

(3) Amendment of a written closure 

plan. (i) The owner or operator may 

amend the initial or any subsequent 

written closure plan developed 

pursuant to paragraph (b)(1) of this 

section at any time. 

(ii) The owner or operator must 

amend the written closure plan 

whenever: 

(A) There is a change in the operation 

of the CCR unit that would substantially 

affect the written closure plan in effect; 

or 

(B) Before or after closure activities 

have commenced, unanticipated events 

necessitate a revision of the written 

closure plan. 

(iii) The owner or operator must 

amend the closure plan at least 60 days 

prior to a planned change in the 

operation of the facility or CCR unit, or 

no later than 60 days after an 

unanticipated event requires the need to 

revise an existing written closure plan. 

If a written closure plan is revised after 

closure activities have commenced for a 

CCR unit, the owner or operator must 

amend the current closure plan no later 

than 30 days following the triggering 

event. 

(4) The owner or operator of the CCR 

unit must obtain a written certification 

from a qualified professional engineer 

that the initial and any amendment of 


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the written closure plan meets the 

requirements of this section. 

(c) Closure by removal of CCR. An 

owner or operator may elect to close a 

CCR unit by removing and 

decontaminating all areas affected by 

releases from the CCR unit. CCR 

removal and decontamination of the 

CCR unit are complete when constituent 

concentrations throughout the CCR unit 

and any areas affected by releases from 

the CCR unit have been removed and 

groundwater monitoring concentrations 

do not exceed the groundwater 

protection standard established 

pursuant to § 257.95(h) for constituents 

listed in appendix IV to this part. 

(d) Closure performance standard 

when leaving CCR in place—(1) The 

owner or operator of a CCR unit must 

ensure that, at a minimum, the CCR unit 

is closed in a manner that will: 

(i) Control, minimize or eliminate, to 

the maximum extent feasible, postclosure infiltration of liquids into the 

waste and releases of CCR, leachate, or 

contaminated run-off to the ground or 

surface waters or to the atmosphere; 

(ii) Preclude the probability of future 

impoundment of water, sediment, or 

slurry; 

(iii) Include measures that provide for 

major slope stability to prevent the 

sloughing or movement of the final 

cover system during the closure and 

post-closure care period; 

(iv) Minimize the need for further 

maintenance of the CCR unit; and 

(v) Be completed in the shortest 

amount of time consistent with 

recognized and generally accepted good 

engineering practices. 

(2) Drainage and stabilization of CCR 

surface impoundments. The owner or 

operator of a CCR surface impoundment 

or any lateral expansion of a CCR 

surface impoundment must meet the 

requirements of paragraphs (d)(2)(i) and 

(ii) of this section prior to installing the 

final cover system required under 

paragraph (d)(3) of this section. 

(i) Free liquids must be eliminated by 

removing liquid wastes or solidifying 

the remaining wastes and waste 

residues. 

(ii) Remaining wastes must be 

stabilized sufficient to support the final 

cover system. 

(3) Final cover system. If a CCR unit 

is closed by leaving CCR in place, the 

owner or operator must install a final 

cover system that is designed to 

minimize infiltration and erosion, and 

at a minimum, meets the requirements 

of paragraph (d)(3)(i) of this section, or 

the requirements of the alternative final 

cover system specified in paragraph 

(d)(3)(ii) of this section. 

(i) The final cover system must be 

designed and constructed to meet the 

criteria in paragraphs (d)(3)(i)(A) 

through (D) of this section. The design 

of the final cover system must be 

included in the written closure plan 

required by paragraph (b) of this section. 

(A) The permeability of the final cover 

system must be less than or equal to the 

permeability of any bottom liner system 

or natural subsoils present, or a 

permeability no greater than 1 × 10¥5

cm/sec, whichever is less. 

(B) The infiltration of liquids through 

the closed CCR unit must be minimized 

by the use of an infiltration layer that 

contains a minimum of 18 inches of 

earthen material. 

(C) The erosion of the final cover 

system must be minimized by the use of 

an erosion layer that contains a 

minimum of six inches of earthen 

material that is capable of sustaining 

native plant growth. 

(D) The disruption of the integrity of 

the final cover system must be 

minimized through a design that 

accommodates settling and subsidence. 

(ii) The owner or operator may select 

an alternative final cover system design, 

provided the alternative final cover 

system is designed and constructed to 

meet the criteria in paragraphs 

(f)(3)(ii)(A) through (D) of this section. 

The design of the final cover system 

must be included in the written closure 

plan required by paragraph (b) of this 

section. 

(A) The design of the final cover 

system must include an infiltration 

layer that achieves an equivalent 

reduction in infiltration as the 

infiltration layer specified in paragraphs 

(d)(3)(i)(A) and (B) of this section. 

(B) The design of the final cover 

system must include an erosion layer 

that provides equivalent protection from 

wind or water erosion as the erosion 

layer specified in paragraph (d)(3)(i)(C) 

of this section. 

(C) The disruption of the integrity of 

the final cover system must be 

minimized through a design that 

accommodates settling and subsidence. 

(iii) The owner or operator of the CCR 

unit must obtain a written certification 

from a qualified professional engineer 

that the design of the final cover system 

meets the requirements of this section. 

(e) Initiation of closure activities. 

Except as provided for in paragraph 

(e)(4) of this section and § 257.103, the 

owner or operator of a CCR unit must 

commence closure of the CCR unit no 

later than the applicable timeframes 

specified in either paragraph (e)(1) or (2) 

of this section. 

(1) The owner or operator must 

commence closure of the CCR unit no 

later than 30 days after the date on 

which the CCR unit either: 

(i) Receives the known final receipt of 

waste, either CCR or any non-CCR waste 

stream; or 

(ii) Removes the known final volume 

of CCR from the CCR unit for the 

purpose of beneficial use of CCR. 

(2)(i) Except as provided by paragraph 

(e)(2)(ii) of this section, the owner or 

operator must commence closure of a 

CCR unit that has not received CCR or 

any non-CCR waste stream or is no 

longer removing CCR for the purpose of 

beneficial use within two years of the 

last receipt of waste or within two years 

of the last removal of CCR material for 

the purpose of beneficial use. 

(ii) Notwithstanding paragraph 

(e)(2)(i) of this section, the owner or 

operator of the CCR unit may secure an 

additional two years to initiate closure 

of the idle unit provided the owner or 

operator provides written 

documentation that the CCR unit will 

continue to accept wastes or will start 

removing CCR for the purpose of 

beneficial use. The documentation must 

be supported by, at a minimum, the 

information specified in paragraphs 

(e)(2)(ii)(A) and (B) of this section. The 

owner or operator may obtain two-year 

extensions provided the owner or 

operator continues to be able to 

demonstrate that there is reasonable 

likelihood that the CCR unit will accept 

wastes in the foreseeable future or will 

remove CCR from the unit for the 

purpose of beneficial use. The owner or 

operator must place each completed 

demonstration, if more than one time 

extension is sought, in the facility’s 

operating record as required by 

§ 257.105(i)(5) prior to the end of any 

two-year period. 

(A) Information documenting that the 

CCR unit has remaining storage or 

disposal capacity or that the CCR unit 

can have CCR removed for the purpose 

of beneficial use; and 

(B) Information demonstrating that 

that there is a reasonable likelihood that 

the CCR unit will resume receiving CCR 

or non-CCR waste streams in the 

foreseeable future or that CCR can be 

removed for the purpose of beneficial 

use. The narrative must include a best 

estimate as to when the CCR unit will 

resume receiving CCR or non-CCR waste 

streams. The situations listed in 

paragraphs (e)(2)(ii)(B)(1) through (4) of 

this section are examples of situations 

that would support a determination that 

the CCR unit will resume receiving CCR 

or non-CCR waste streams in the 

foreseeable future. 

(1) Normal plant operations include 

periods during which the CCR unit does 

not receive CCR or non-CCR waste 


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streams, such as the alternating use of 

two or more CCR units whereby at any 

point in time one CCR unit is receiving 

CCR while CCR is being removed from 

a second CCR unit after its dewatering. 

(2) The CCR unit is dedicated to a 

coal-fired boiler unit that is temporarily 

idled (e.g., CCR is not being generated) 

and there is a reasonable likelihood that 

the coal-fired boiler will resume 

operations in the future. 

(3) The CCR unit is dedicated to an 

operating coal-fired boiler (i.e., CCR is 

being generated); however, no CCR are 

being placed in the CCR unit because 

the CCR are being entirely diverted to 

beneficial uses, but there is a reasonable 

likelihood that the CCR unit will again 

be used in the foreseeable future. 

(4) The CCR unit currently receives 

only non-CCR waste streams and those 

non-CCR waste streams are not 

generated for an extended period of 

time, but there is a reasonable 

likelihood that the CCR unit will again 

receive non-CCR waste streams in the 

future. 

(iii) In order to obtain additional time 

extension(s) to initiate closure of a CCR 

unit beyond the two years provided by 

paragraph (e)(2)(i) of this section, the 

owner or operator of the CCR unit must 

include with the demonstration 

required by paragraph (e)(2)(ii) of this 

section the following statement signed 

by the owner or operator or an 

authorized representative: 

I certify under penalty of law that I have 

personally examined and am familiar with 

the information submitted in this 

demonstration and all attached documents, 

and that, based on my inquiry of those 

individuals immediately responsible for 

obtaining the information, I believe that the 

submitted information is true, accurate, and 

complete. I am aware that there are 

significant penalties for submitting false 

information, including the possibility of fine 

and imprisonment. 

(3) For purposes of this subpart, 

closure of the CCR unit has commenced 

if the owner or operator has ceased 

placing waste and completes any of the 

following actions or activities: 

(i) Taken any steps necessary to 

implement the written closure plan 

required by paragraph (b) of this section; 

(ii) Submitted a completed 

application for any required state or 

agency permit or permit modification; 

or 

(iii) Taken any steps necessary to 

comply with any state or other agency 

standards that are a prerequisite, or are 

otherwise applicable, to initiating or 

completing the closure of a CCR unit. 

(4) The timeframes specified in 

paragraphs (e)(1) and (2) of this section 

do not apply to any of the following 

owners or operators: 

(i) An owner or operator of an inactive 

CCR surface impoundment closing the 

CCR unit as required by § 257.100(b); 

(ii) An owner or operator of an 

existing unlined CCR surface 

impoundment closing the CCR unit as 

required by § 257.101(a); 

(iii) An owner or operator of an 

existing CCR surface impoundment 

closing the CCR unit as required by 

§ 257.101(b); 

(iv) An owner or operator of a new 

CCR surface impoundment closing the 

CCR unit as required by § 257.101(c); or 

(v) An owner or operator of an 

existing CCR landfill closing the CCR 

unit as required by § 257.101(d). 

(f) Completion of closure activities. (1) 

Except as provided for in paragraph 

(f)(2) of this section, the owner or 

operator must complete closure of the 

CCR unit: 

(i) For existing and new CCR landfills 

and any lateral expansion of a CCR 

landfill, within six months of 

commencing closure activities. 

(ii) For existing and new CCR surface 

impoundments and any lateral 

expansion of a CCR surface 

impoundment, within five years of 

commencing closure activities. 

(2)(i) Extensions of closure 

timeframes. The timeframes for 

completing closure of a CCR unit 

specified under paragraphs (f)(1) of this 

section may be extended if the owner or 

operator can demonstrate that it was not 

feasible to complete closure of the CCR 

unit within the required timeframes due 

to factors beyond the facility’s control. 

If the owner or operator is seeking a 

time extension beyond the time 

specified in the written closure plan as 

required by paragraph (b)(1) of this 

section, the demonstration must include 

a narrative discussion providing the 

basis for additional time beyond that 

specified in the closure plan. The owner 

or operator must place each completed 

demonstration, if more than one time 

extension is sought, in the facility’s 

operating record as required by 

§ 257.105(i)(6) prior to the end of any 

two-year period. Factors that may 

support such a demonstration include: 

(A) Complications stemming from the 

climate and weather, such as unusual 

amounts of precipitation or a 

significantly shortened construction 

season; 

(B) Time required to dewater a surface 

impoundment due to the volume of CCR 

contained in the CCR unit or the 

characteristics of the CCR in the unit; 

(C) The geology and terrain 

surrounding the CCR unit will affect the 

amount of material needed to close the 

CCR unit; or 

(D) Time required or delays caused by 

the need to coordinate with and obtain 

necessary approvals and permits from a 

state or other agency. 

(ii) Maximum time extensions. (A) 

CCR surface impoundments of 40 acres 

or smaller may extend the time to 

complete closure by no longer than two 

years. 

(B) CCR surface impoundments larger 

than 40 acres may extend the timeframe 

to complete closure of the CCR unit 

multiple times, in two-year increments. 

For each two-year extension sought, the 

owner or operator must substantiate the 

factual circumstances demonstrating the 

need for the extension. No more than a 

total of five two-year extensions may be 

obtained for any CCR surface 

impoundment. 

(C) CCR landfills may extend the 

timeframe to complete closure of the 

CCR unit multiple times, in one-year 

increments. For each one-year extension 

sought, the owner or operator must 

substantiate the factual circumstances 

demonstrating the need for the 

extension. No more than a total of two 

one-year extensions may be obtained for 

any CCR landfill. 

(iii) In order to obtain additional time 

extension(s) to complete closure of a 

CCR unit beyond the times provided by 

paragraph (f)(1) of this section, the 

owner or operator of the CCR unit must 

include with the demonstration 

required by paragraph (f)(2)(i) of this 

section the following statement signed 

by the owner or operator or an 

authorized representative: 

I certify under penalty of law that I have 

personally examined and am familiar with 

the information submitted in this 

demonstration and all attached documents, 

and that, based on my inquiry of those 

individuals immediately responsible for 

obtaining the information, I believe that the 

submitted information is true, accurate, and 

complete. I am aware that there are 

significant penalties for submitting false 

information, including the possibility of fine 

and imprisonment. 

(3) Upon completion, the owner or 

operator of the CCR unit must obtain a 

certification from a qualified 

professional engineer verifying that 

closure has been completed in 

accordance with the closure plan 

specified in paragraph (b) of this section 

and the requirements of this section. 

(g) No later than the date the owner 

or operator initiates closure of a CCR 

unit, the owner or operator must 

prepare a notification of intent to close 

a CCR unit. The notification must 

include the certification by a qualified 

professional engineer for the design of 

the final cover system as required by 

§ 257.102(d)(3)(iii), if applicable. The 


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owner or operator has completed the 

notification when it has been placed in 

the facility’s operating record as 

required by § 257.105(i)(7). 

(h) Within 30 days of completion of 

closure of the CCR unit, the owner or 

operator must prepare a notification of 

closure of a CCR unit. The notification 

must include the certification by a 

qualified professional engineer as 

required by § 257.102(f)(3). The owner 

or operator has completed the 

notification when it has been placed in 

the facility’s operating record as 

required by § 257.105(i)(8). 

(i) Deed notations. (1) Except as 

provided by paragraph (i)(4) of this 

section, following closure of a CCR unit, 

the owner or operator must record a 

notation on the deed to the property, or 

some other instrument that is normally 

examined during title search. 

(2) The notation on the deed must in 

perpetuity notify any potential 

purchaser of the property that: 

(i) The land has been used as a CCR 

unit; and 

(ii) Its use is restricted under the postclosure care requirements as provided 

by § 257.104(d)(1)(iii). 

(3) Within 30 days of recording a 

notation on the deed to the property, the 

owner or operator must prepare a 

notification stating that the notation has 

been recorded. The owner or operator 

has completed the notification when it 

has been placed in the facility’s 

operating record as required by 

§ 257.105(i)(9). 

(4) An owner or operator that closes 

a CCR unit in accordance with 

paragraph (c) of this section is not 

subject to the requirements of 

paragraphs (i)(1) through (3) of this 

section. 

(j) The owner or operator of the CCR 

unit must comply with the closure 

recordkeeping requirements specified in 

§ 257.105(i), the closure notification 

requirements specified in § 257.106(i), 

and the closure Internet requirements 

specified in § 257.107(i). 

(k) Criteria to retrofit an existing CCR 

surface impoundment. (1) To retrofit an 

existing CCR surface impoundment, the 

owner or operator must: 

(i) First remove all CCR, including 

any contaminated soils and sediments 

from the CCR unit; and 

(ii) Comply with the requirements in 

§ 257.72. 

(iii) A CCR surface impoundment 

undergoing a retrofit remains subject to 

all other requirements of this subpart, 

including the requirement to conduct 

any necessary corrective action. 

(2) Written retrofit plan—(i) Content 

of the plan. The owner or operator must 

prepare a written retrofit plan that 

describes the steps necessary to retrofit 

the CCR unit consistent with recognized 

and generally accepted good 

engineering practices. The written 

retrofit plan must include, at a 

minimum, all of the following 

information: 

(A) A narrative description of the 

specific measures that will be taken to 

retrofit the CCR unit in accordance with 

this section. 

(B) A description of the procedures to 

remove all CCR and contaminated soils 

and sediments from the CCR unit. 

(C) An estimate of the maximum 

amount of CCR that will be removed as 

part of the retrofit operation. 

(D) An estimate of the largest area of 

the CCR unit that will be affected by the 

retrofit operation. 

(E) A schedule for completing all 

activities necessary to satisfy the retrofit 

criteria in this section, including an 

estimate of the year in which retrofit 

activities of the CCR unit will be 

completed. 

(ii) Timeframes for preparing the 

initial written retrofit plan. (A) No later 

than 60 days prior to date of initiating 

retrofit activities, the owner or operator 

must prepare an initial written retrofit 

plan consistent with the requirements 

specified in paragraph (k)(2) of this 

section. For purposes of this subpart, 

initiation of retrofit activities has 

commenced if the owner or operator has 

ceased placing waste in the unit and 

completes any of the following actions 

or activities: 

(1) Taken any steps necessary to 

implement the written retrofit plan; 

(2) Submitted a completed application 

for any required state or agency permit 

or permit modification; or 

(3) Taken any steps necessary to 

comply with any state or other agency 

standards that are a prerequisite, or are 

otherwise applicable, to initiating or 

completing the retrofit of a CCR unit. 

(B) The owner or operator has 

completed the written retrofit plan 

when the plan, including the 

certification required by paragraph 

(k)(2)(iv) of this section, has been placed 

in the facility’s operating record as 

required by § 257.105(j)(1). 

(iii) Amendment of a written retrofit 

plan. (A) The owner or operator may 

amend the initial or any subsequent 

written retrofit plan at any time. 

(B) The owner or operator must 

amend the written retrofit plan 

whenever: 

(1) There is a change in the operation 

of the CCR unit that would substantially 

affect the written retrofit plan in effect; 

or 

(2) Before or after retrofit activities 

have commenced, unanticipated events 

necessitate a revision of the written 

retrofit plan. 

(C) The owner or operator must 

amend the retrofit plan at least 60 days 

prior to a planned change in the 

operation of the facility or CCR unit, or 

no later than 60 days after an 

unanticipated event requires the 

revision of an existing written retrofit 

plan. If a written retrofit plan is revised 

after retrofit activities have commenced 

for a CCR unit, the owner or operator 

must amend the current retrofit plan no 

later than 30 days following the 

triggering event. 

(iv) The owner or operator of the CCR 

unit must obtain a written certification 

from a qualified professional engineer 

that the activities outlined in the written 

retrofit plan, including any amendment 

of the plan, meet the requirements of 

this section. 

(3) Deadline for completion of 

activities related to the retrofit of a CCR 

unit. Any CCR surface impoundment 

that is being retrofitted must complete 

all retrofit activities within the same 

time frames and procedures specified 

for the closure of a CCR surface 

impoundment in § 257.102(f) or, where 

applicable, § 257.103. 

(4) Upon completion, the owner or 

operator must obtain a certification from 

a qualified professional engineer 

verifying that the retrofit activities have 

been completed in accordance with the 

retrofit plan specified in paragraph 

(k)(2) of this section and the 

requirements of this section. 

(5) No later than the date the owner 

or operator initiates the retrofit of a CCR 

unit, the owner or operator must 

prepare a notification of intent to retrofit 

a CCR unit. The owner or operator has 

completed the notification when it has 

been placed in the facility’s operating 

record as required by § 257.105(j)(5). 

(6) Within 30 days of completing the 

retrofit activities specified in paragraph 

(k)(1) of this section, the owner or 

operator must prepare a notification of 

completion of retrofit activities. The 

notification must include the 

certification by a qualified professional 

engineer as required by paragraph (k)(4) 

of this section. The owner or operator 

has completed the notification when it 

has been placed in the facility’s 

operating record as required by 

§ 257.105(j)(6). 

(7) At any time after the initiation of 

a CCR unit retrofit, the owner or 

operator may cease the retrofit and 

initiate closure of the CCR unit in 

accordance with the requirements of 

§ 257.102. 

(8) The owner or operator of the CCR 

unit must comply with the retrofit 

recordkeeping requirements specified in 


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§ 257.105(j), the retrofit notification 

requirements specified in § 257.106(j), 

and the retrofit Internet requirements 

specified in § 257.107(j). 

§ 257.103 Alternative closure 

requirements. 

The owner or operator of a CCR 

landfill, CCR surface impoundment, or 

any lateral expansion of a CCR unit that 

is subject to closure pursuant to 

§ 257.101(a), (b)(1), or (d) may continue 

to receive CCR in the unit provided the 

owner or operator meets the 

requirements of either paragraph (a) or 

(b) of this section. 

(a)(1) No alternative CCR disposal 

capacity. Notwithstanding the 

provisions of § 257.101(a), (b)(1), or (d), 

a CCR unit may continue to receive CCR 

if the owner or operator of the CCR unit 

certifies that the CCR must continue to 

be managed in that CCR unit due to the 

absence of alternative disposal capacity 

both on-site and off-site of the facility. 

To qualify under this paragraph (a)(1), 

the owner or operator of the CCR unit 

must document that all of the following 

conditions have been met: 

(i) No alternative disposal capacity is 

available on-site or off-site. An increase 

in costs or the inconvenience of existing 

capacity is not sufficient to support 

qualification under this section; 

(ii) The owner or operator has made, 

and continues to make, efforts to obtain 

additional capacity. Qualification under 

this subsection lasts only as long as no 

alternative capacity is available. Once 

alternative capacity is identified, the 

owner or operator must arrange to use 

such capacity as soon as feasible; 

(iii) The owner or operator must 

remain in compliance with all other 

requirements of this subpart, including 

the requirement to conduct any 

necessary corrective action; and 

(iv) The owner or operator must 

prepare an annual progress report 

documenting the continued lack of 

alternative capacity and the progress 

towards the development of alternative 

CCR disposal capacity. 

(2) Once alternative capacity is 

available, the CCR unit must cease 

receiving CCR and initiate closure 

following the timeframes in § 257.102(e) 

and (f). 

(3) If no alternative capacity is 

identified within five years after the 

initial certification, the CCR unit must 

cease receiving CCR and close in 

accordance with the timeframes in 

§ 257.102(e) and (f). 

(b)(1) Permanent cessation of a coalfired boiler(s) by a date certain. 

Notwithstanding the provisions of 

§ 257.101(a), (b)(1), and (d), a CCR unit 

may continue to receive CCR if the 

owner or operator certifies that the 

facility will cease operation of the coalfired boilers within the timeframes 

specified in paragraphs (b)(2) through 

(4) of this section, but in the interim 

period (prior to closure of the coal-fired 

boiler), the facility must continue to use 

the CCR unit due to the absence of 

alternative disposal capacity both onsite and off-site of the facility. To 

qualify under this paragraph (b)(1), the 

owner or operator of the CCR unit must 

document that all of the following 

conditions have been met: 

(i) No alternative disposal capacity is 

available on-site or off-site. An increase 

in costs or the inconvenience of existing 

capacity is not sufficient to support 

qualification under this section. 

(ii) The owner or operator must 

remain in compliance with all other 

requirements of this subpart, including 

the requirement to conduct any 

necessary corrective action; and 

(iii) The owner or operator must 

prepare an annual progress report 

documenting the continued lack of 

alternative capacity and the progress 

towards the closure of the coal-fired 

boiler. 

(2) For a CCR surface impoundment 

that is 40 acres or smaller, the coal-fired 

boiler must cease operation and the CCR 

surface impoundment must have 

completed closure no later than October 

17, 2023. 

(3) For a CCR surface impoundment 

that is larger than 40 acres, the coalfired boiler must cease operation, and 

the CCR surface impoundment must 

complete closure no later than October 

17, 2028. 

(4) For a CCR landfill, the coal-fired 

boiler must cease operation, and the 

CCR landfill must complete closure no 

later than April 19, 2021. 

(c) Required notices and progress 

reports. An owner or operator of a CCR 

unit that closes in accordance with 

paragraphs (a) or (b) of this section must 

complete the notices and progress 

reports specified in paragraphs (c)(1) 

through (3) of this section. 

(1) Within six months of becoming 

subject to closure pursuant to 

§ 257.101(a), (b)(1), or (d), the owner or 

operator must prepare and place in the 

facility’s operating record a notification 

of intent to comply with the alternative 

closure requirements of this section. 

The notification must describe why the 

CCR unit qualifies for the alternative 

closure provisions under either 

paragraph (a) or (b) of this section, in 

addition to providing the 

documentation and certifications 

required by paragraph (a) or (b) of this 

section. 

(2) The owner or operator must 

prepare the periodic progress reports 

required by paragraphs (a)(1)(iv) or 

(b)(1)(iii), in addition to describing any 

problems encountered and a description 

of the actions taken to resolve the 

problems. The annual progress reports 

must be completed according to the 

following schedule: 

(i) The first annual progress report 

must be prepared no later than 13 

months after completing the notification 

of intent to comply with the alternative 

closure requirements required by 

paragraph (c)(1) of this section. 

(ii) The second annual progress report 

must be prepared no later than 12 

months after completing the first annual 

progress report. Additional annual 

progress reports must be prepared 

within 12 months of completing the 

previous annual progress report. 

(iii) The owner or operator has 

completed the progress reports specified 

in paragraph (c)(2) of this section when 

the reports are placed in the facility’s 

operating record as required by 

§ 257.105(i)(10). 

(3) An owner or operator of a CCR 

unit must also prepare the notification 

of intent to close a CCR unit as required 

by § 257.102(g). 

(d) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(i), the notification 

requirements specified in § 257.106(i), 

and the Internet requirements specified 

in § 257.107(i). 

§ 257.104 Post-closure care requirements. 

(a) Applicability. (1) Except as 

provided by either paragraph (a)(2) or 

(3) of this section, § 257.104 applies to 

the owners or operators of CCR landfills, 

CCR surface impoundments, and all 

lateral expansions of CCR units that are 

subject to the closure criteria under 

§ 257.102. 

(2) An owner or operator of a CCR 

unit that elects to close a CCR unit by 

removing CCR as provided by 

§ 257.102(c) is not subject to the postclosure care criteria under this section. 

(3) An owner or operator of an 

inactive CCR surface impoundment that 

elects to close a CCR unit pursuant to 

the requirements under § 257.100(b) is 

not subject to the post-closure care 

criteria under this section. 

(b) Post-closure care maintenance 

requirements. Following closure of the 

CCR unit, the owner or operator must 

conduct post-closure care for the CCR 

unit, which must consist of at least the 

following: 

(1) Maintaining the integrity and 

effectiveness of the final cover system, 

including making repairs to the final 


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cover as necessary to correct the effects 

of settlement, subsidence, erosion, or 

other events, and preventing run-on and 

run-off from eroding or otherwise 

damaging the final cover; 

(2) If the CCR unit is subject to the 

design criteria under § 257.70, 

maintaining the integrity and 

effectiveness of the leachate collection 

and removal system and operating the 

leachate collection and removal system 

in accordance with the requirements of 

§ 257.70; and 

(3) Maintaining the groundwater 

monitoring system and monitoring the 

groundwater in accordance with the 

requirements of §§ 257.90 through 

257.98. 

(c) Post-closure care period. (1) Except 

as provided by paragraph (c)(2) of this 

section, the owner or operator of the 

CCR unit must conduct post-closure 

care for 30 years. 

(2) If at the end of the post-closure 

care period the owner or operator of the 

CCR unit is operating under assessment 

monitoring in accordance with § 257.95, 

the owner or operator must continue to 

conduct post-closure care until the 

owner or operator returns to detection 

monitoring in accordance with § 257.95. 

(d) Written post-closure plan—(1) 

Content of the plan. The owner or 

operator of a CCR unit must prepare a 

written post-closure plan that includes, 

at a minimum, the information specified 

in paragraphs (d)(1)(i) through (iii) of 

this section. 

(i) A description of the monitoring 

and maintenance activities required in 

paragraph (b) of this section for the CCR 

unit, and the frequency at which these 

activities will be performed; 

(ii) The name, address, telephone 

number, and email address of the 

person or office to contact about the 

facility during the post-closure care 

period; and 

(iii) A description of the planned uses 

of the property during the post-closure 

period. Post-closure use of the property 

shall not disturb the integrity of the 

final cover, liner(s), or any other 

component of the containment system, 

or the function of the monitoring 

systems unless necessary to comply 

with the requirements in this subpart. 

Any other disturbance is allowed if the 

owner or operator of the CCR unit 

demonstrates that disturbance of the 

final cover, liner, or other component of 

the containment system, including any 

removal of CCR, will not increase the 

potential threat to human health or the 

environment. The demonstration must 

be certified by a qualified professional 

engineer, and notification shall be 

provided to the State Director that the 

demonstration has been placed in the 

operating record and on the owners or 

operator’s publicly accessible Internet 

site. 

(2) Deadline to prepare the initial 

written post-closure plan—(i) Existing 

CCR landfills and existing CCR surface 

impoundments. No later than October 

17, 2016, the owner or operator of the 

CCR unit must prepare an initial written 

post-closure plan consistent with the 

requirements specified in paragraph 

(d)(1) of this section. 

(ii) New CCR landfills, new CCR 

surface impoundments, and any lateral 

expansion of a CCR unit. No later than 

the date of the initial receipt of CCR in 

the CCR unit, the owner or operator 

must prepare an initial written postclosure plan consistent with the 

requirements specified in paragraph 

(d)(1) of this section. 

(iii) The owner or operator has 

completed the written post-closure plan 

when the plan, including the 

certification required by paragraph 

(d)(4) of this section, has been placed in 

the facility’s operating record as 

required by § 257.105(i)(4). 

(3) Amendment of a written postclosure plan. (i) The owner or operator 

may amend the initial or any 

subsequent written post-closure plan 

developed pursuant to paragraph (d)(1) 

of this section at any time. 

(ii) The owner or operator must 

amend the written closure plan 

whenever: 

(A) There is a change in the operation 

of the CCR unit that would substantially 

affect the written post-closure plan in 

effect; or 

(B) After post-closure activities have 

commenced, unanticipated events 

necessitate a revision of the written 

post-closure plan. 

(iii) The owner or operator must 

amend the written post-closure plan at 

least 60 days prior to a planned change 

in the operation of the facility or CCR 

unit, or no later than 60 days after an 

unanticipated event requires the need to 

revise an existing written post-closure 

plan. If a written post-closure plan is 

revised after post-closure activities have 

commenced for a CCR unit, the owner 

or operator must amend the written 

post-closure plan no later than 30 days 

following the triggering event. 

(4) The owner or operator of the CCR 

unit must obtain a written certification 

from a qualified professional engineer 

that the initial and any amendment of 

the written post-closure plan meets the 

requirements of this section. 

(e) Notification of completion of postclosure care period. No later than 60 

days following the completion of the 

post-closure care period, the owner or 

operator of the CCR unit must prepare 

a notification verifying that post-closure 

care has been completed. The 

notification must include the 

certification by a qualified professional 

engineer verifying that post-closure care 

has been completed in accordance with 

the closure plan specified in paragraph 

(d) of this section and the requirements 

of this section. The owner or operator 

has completed the notification when it 

has been placed in the facility’s 

operating record as required by 

§ 257.105(i)(13). 

(f) The owner or operator of the CCR 

unit must comply with the 

recordkeeping requirements specified in 

§ 257.105(i), the notification 

requirements specified in § 257.106(i), 

and the Internet requirements specified 

in § 257.107(i). 

Recordkeeping, Notification, and 

Posting of Information to the Internet 

§ 257.105 Recordkeeping requirements. 

(a) Each owner or operator of a CCR 

unit subject to the requirements of this 

subpart must maintain files of all 

information required by this section in 

a written operating record at their 

facility. 

(b) Unless specified otherwise, each 

file must be retained for at least five 

years following the date of each 

occurrence, measurement, maintenance, 

corrective action, report, record, or 

study. 

(c) An owner or operator of more than 

one CCR unit subject to the provisions 

of this subpart may comply with the 

requirements of this section in one 

recordkeeping system provided the 

system identifies each file by the name 

of each CCR unit. The files may be 

maintained on microfilm, on a 

computer, on computer disks, on a 

storage system accessible by a computer, 

on magnetic tape disks, or on 

microfiche. 

(d) The owner or operator of a CCR 

unit must submit to the State Director 

and/or appropriate Tribal authority any 

demonstration or documentation 

required by this subpart, if requested, 

when such information is not otherwise 

available on the owner or operator’s 

publicly accessible Internet site. 

(e) Location restrictions. The owner or 

operator of a CCR unit subject to this 

subpart must place the demonstrations 

documenting whether or not the CCR 

unit is in compliance with the 

requirements under §§ 257.60(a), 

257.61(a), 257.62(a), 257.63(a), and 

257.64(a), as it becomes available, in the 

facility’s operating record. 

(f) Design criteria. The owner or 

operator of a CCR unit subject to this 

subpart must place the following 


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information, as it becomes available, in 

the facility’s operating record: 

(1) The design and construction 

certifications as required by § 257.70(e) 

and (f). 

(2) The documentation of liner type as 

required by § 257.71(a). 

(3) The design and construction 

certifications as required by § 257.72(c) 

and (d). 

(4) Documentation prepared by the 

owner or operator stating that the 

permanent identification marker was 

installed as required by §§ 257.73(a)(1) 

and 257.74(a)(1). 

(5) The initial and periodic hazard 

potential classification assessments as 

required by §§ 257.73(a)(2) and 

257.74(a)(2). 

(6) The emergency action plan (EAP), 

and any amendment of the EAP, as 

required by §§ 257.73(a)(3) and 

257.74(a)(3), except that only the most 

recent EAP must be maintained in the 

facility’s operating record irrespective of 

the time requirement specified in 

paragraph (b) of this section. 

(7) Documentation prepared by the 

owner or operator recording the annual 

face-to-face meeting or exercise between 

representatives of the owner or operator 

of the CCR unit and the local emergency 

responders as required by 

§§ 257.73(a)(3)(i)(E) and 

257.74(a)(3)(i)(E). 

(8) Documentation prepared by the 

owner or operator recording all 

activations of the emergency action plan 

as required by §§ 257.73(a)(3)(v) and 

257.74(a)(3)(v). 

(9) The history of construction, and 

any revisions of it, as required by 

§ 257.73(c), except that these files must 

be maintained until the CCR unit 

completes closure of the unit in 

accordance with § 257.102. 

(10) The initial and periodic 

structural stability assessments as 

required by §§ 257.73(d) and 257.74(d). 

(11) Documentation detailing the 

corrective measures taken to remedy the 

deficiency or release as required by 

§§ 257.73(d)(2) and 257.74(d)(2). 

(12) The initial and periodic safety 

factor assessments as required by 

§§ 257.73(e) and 257.74(e). 

(13) The design and construction 

plans, and any revisions of it, as 

required by § 257.74(c), except that 

these files must be maintained until the 

CCR unit completes closure of the unit 

in accordance with § 257.102. 

(g) Operating criteria. The owner or 

operator of a CCR unit subject to this 

subpart must place the following 

information, as it becomes available, in 

the facility’s operating record: 

(1) The CCR fugitive dust control 

plan, and any subsequent amendment of 

the plan, required by § 257.80(b), except 

that only the most recent control plan 

must be maintained in the facility’s 

operating record irrespective of the time 

requirement specified in paragraph (b) 

of this section. 

(2) The annual CCR fugitive dust 

control report required by § 257.80(c). 

(3) The initial and periodic run-on 

and run-off control system plans as 

required by § 257.81(c). 

(4) The initial and periodic inflow 

design flood control system plan as 

required by § 257.82(c). 

(5) Documentation recording the 

results of each inspection and 

instrumentation monitoring by a 

qualified person as required by 

§ 257.83(a). 

(6) The periodic inspection report as 

required by § 257.83(b)(2). 

(7) Documentation detailing the 

corrective measures taken to remedy the 

deficiency or release as required by 

§§ 257.83(b)(5) and 257.84(b)(5). 

(8) Documentation recording the 

results of the weekly inspection by a 

qualified person as required by 

§ 257.84(a). 

(9) The periodic inspection report as 

required by § 257.84(b)(2). 

(h) Groundwater monitoring and 

corrective action. The owner or operator 

of a CCR unit subject to this subpart 

must place the following information, as 

it becomes available, in the facility’s 

operating record: 

(1) The annual groundwater 

monitoring and corrective action report 

as required by § 257.90(e). 

(2) Documentation of the design, 

installation, development, and 

decommissioning of any monitoring 

wells, piezometers and other 

measurement, sampling, and analytical 

devices as required by § 257.91(e)(1). 

(3) The groundwater monitoring 

system certification as required by 

§ 257.91(f). 

(4) The selection of a statistical 

method certification as required by 

§ 257.93(f)(6). 

(5) Within 30 days of establishing an 

assessment monitoring program, the 

notification as required by 

§ 257.94(e)(3). 

(6) The results of appendices III and 

IV to this part constituent 

concentrations as required by 

§ 257.95(d)(1). 

(7) Within 30 days of returning to a 

detection monitoring program, the 

notification as required by § 257.95(e). 

(8) Within 30 days of detecting one or 

more constituents in appendix IV to this 

part at statistically significant levels 

above the groundwater protection 

standard, the notifications as required 

by § 257.95(g). 

(9) Within 30 days of initiating the 

assessment of corrective measures 

requirements, the notification as 

required by § 257.95(g)(5). 

(10) The completed assessment of 

corrective measures as required by 

§ 257.96(d). 

(11) Documentation prepared by the 

owner or operator recording the public 

meeting for the corrective measures 

assessment as required by § 257.96(e). 

(12) The semiannual report describing 

the progress in selecting and designing 

the remedy and the selection of remedy 

report as required by § 257.97(a), except 

that the selection of remedy report must 

be maintained until the remedy has 

been completed. 

(13) Within 30 days of completing the 

remedy, the notification as required by 

§ 257.98(e). 

(i) Closure and post-closure care. The 

owner or operator of a CCR unit subject 

to this subpart must place the following 

information, as it becomes available, in 

the facility’s operating record: 

(1) The notification of intent to 

initiate closure of the CCR unit as 

required by § 257.100(c)(1). 

(2) The annual progress reports of 

closure implementation as required by 

§ 257.100(c)(2)(i) and (ii). 

(3) The notification of closure 

completion as required by 

§ 257.100(c)(3). 

(4) The written closure plan, and any 

amendment of the plan, as required by 

§ 257.102(b), except that only the most 

recent closure plan must be maintained 

in the facility’s operating record 

irrespective of the time requirement 

specified in paragraph (b) of this 

section. 

(5) The written demonstration(s), 

including the certification required by 

§ 257.102(e)(2)(iii), for a time extension 

for initiating closure as required by 

§ 257.102(e)(2)(ii). 

(6) The written demonstration(s), 

including the certification required by 

§ 257.102(f)(2)(iii), for a time extension 

for completing closure as required by 

§ 257.102(f)(2)(i). 

(7) The notification of intent to close 

a CCR unit as required by § 257.102(g). 

(8) The notification of completion of 

closure of a CCR unit as required by 

§ 257.102(h). 

(9) The notification recording a 

notation on the deed as required by 

§ 257.102(i). 

(10) The notification of intent to 

comply with the alternative closure 

requirements as required by 

§ 257.103(c)(1). 

(11) The annual progress reports 

under the alternative closure 

requirements as required by 

§ 257.103(c)(2). 


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(12) The written post-closure plan, 

and any amendment of the plan, as 

required by § 257.104(d), except that 

only the most recent closure plan must 

be maintained in the facility’s operating 

record irrespective of the time 

requirement specified in paragraph (b) 

of this section. 

(13) The notification of completion of 

post-closure care period as required by 

§ 257.104(e). 

(j) Retrofit criteria. The owner or 

operator of a CCR unit subject to this 

subpart must place the following 

information, as it becomes available, in 

the facility’s operating record: 

(1) The written retrofit plan, and any 

amendment of the plan, as required by 

§ 257.102(k)(2), except that only the 

most recent retrofit plan must be 

maintained in the facility’s operating 

record irrespective of the time 

requirement specified in paragraph (b) 

of this section. 

(2) The notification of intent that the 

retrofit activities will proceed in 

accordance with the alternative 

procedures in § 257.103. 

(3) The annual progress reports 

required under the alternative 

requirements as required by § 257.103. 

(4) The written demonstration(s), 

including the certification in 

§ 257.102(f)(2)(iii), for a time extension 

for completing retrofit activities as 

required by § 257.102(k)(3). 

(5) The notification of intent to 

initiate retrofit of a CCR unit as required 

by § 257.102(k)(5). 

(6) The notification of completion of 

retrofit activities as required by 

§ 257.102(k)(6). 

§ 257.106 Notification requirements. 

(a) The notifications required under 

paragraphs (e) through (i) of this section 

must be sent to the relevant State 

Director and/or appropriate Tribal 

authority before the close of business on 

the day the notification is required to be 

completed. For purposes of this section, 

before the close of business means the 

notification must be postmarked or sent 

by electronic mail (email). If a 

notification deadline falls on a weekend 

or federal holiday, the notification 

deadline is automatically extended to 

the next business day. 

(b) If any CCR unit is located in its 

entirety within Indian Country, the 

notifications of this section must be sent 

to the appropriate Tribal authority. If 

any CCR unit is located in part within 

Indian Country, the notifications of this 

section must be sent both to the 

appropriate State Director and Tribal 

authority. 

(c) Notifications may be combined as 

long as the deadline requirement for 

each notification is met. 

(d) Unless otherwise required in this 

section, the notifications specified in 

this section must be sent to the State 

Director and/or appropriate Tribal 

authority within 30 days of placing in 

the operating record the information 

required by § 257.105. 

(e) Location restrictions. The owner or 

operator of a CCR unit subject to the 

requirements of this subpart must notify 

the State Director and/or appropriate 

Tribal authority that each demonstration 

specified under § 257.105(e) has been 

placed in the operating record and on 

the owner or operator’s publicly 

accessible internet site. 

(f) Design criteria. The owner or 

operator of a CCR unit subject to this 

subpart must notify the State Director 

and/or appropriate Tribal authority 

when information has been placed in 

the operating record and on the owner 

or operator’s publicly accessible internet 

site. The owner or operator must: 

(1) Within 60 days of commencing 

construction of a new CCR unit, provide 

notification of the availability of the 

design certification specified under 

§ 257.105(f)(1) or (3). If the owner or 

operator of the CCR unit elects to install 

an alternative composite liner, the 

owner or operator must also submit to 

the State Director and/or appropriate 

Tribal authority a copy of the alternative 

composite liner design. 

(2) No later than the date of initial 

receipt of CCR by a new CCR unit, 

provide notification of the availability of 

the construction certification specified 

under § 257.105(f)(1) or (3). 

(3) Provide notification of the 

availability of the documentation of 

liner type specified under 

§ 257.105(f)(2). 

(4) Provide notification of the 

availability of the initial and periodic 

hazard potential classification 

assessments specified under 

§ 257.105(f)(5). 

(5) Provide notification of the 

availability of emergency action plan 

(EAP), and any revisions of the EAP, 

specified under § 257.105(f)(6). 

(6) Provide notification of the 

availability of documentation prepared 

by the owner or operator recording the 

annual face-to-face meeting or exercise 

between representatives of the owner or 

operator of the CCR unit and the local 

emergency responders specified under 

§ 257.105(f)(7). 

(7) Provide notification of 

documentation prepared by the owner 

or operator recording all activations of 

the emergency action plan specified 

under § 257.105(f)(8). 

(8) Provide notification of the 

availability of the history of 

construction, and any revision of it, 

specified under § 257.105(f)(9). 

(9) Provide notification of the 

availability of the initial and periodic 

structural stability assessments 

specified under § 257.105(f)(10). 

(10) Provide notification of the 

availability of the documentation 

detailing the corrective measures taken 

to remedy the deficiency or release 

specified under § 257.105(f)(11). 

(11) Provide notification of the 

availability of the initial and periodic 

safety factor assessments specified 

under § 257.105(f)(12). 

(12) Provide notification of the 

availability of the design and 

construction plans, and any revision of 

them, specified under § 257.105(f)(13). 

(g) Operating criteria. The owner or 

operator of a CCR unit subject to this 

subpart must notify the State Director 

and/or appropriate Tribal authority 

when information has been placed in 

the operating record and on the owner 

or operator’s publicly accessible internet 

site. The owner or operator must: 

(1) Provide notification of the 

availability of the CCR fugitive dust 

control plan, or any subsequent 

amendment of the plan, specified under 

§ 257.105(g)(1). 

(2) Provide notification of the 

availability of the annual CCR fugitive 

dust control report specified under 

§ 257.105(g)(2). 

(3) Provide notification of the 

availability of the initial and periodic 

run-on and run-off control system plans 

specified under § 257.105(g)(3). 

(4) Provide notification of the 

availability of the initial and periodic 

inflow design flood control system 

plans specified under § 257.105(g)(4). 

(5) Provide notification of the 

availability of the periodic inspection 

reports specified under § 257.105(g)(6). 

(6) Provide notification of the 

availability of the documentation 

detailing the corrective measures taken 

to remedy the deficiency or release 

specified under § 257.105(g)(7). 

(7) Provide notification of the 

availability of the periodic inspection 

reports specified under § 257.105(g)(9). 

(h) Groundwater monitoring and 

corrective action. The owner or operator 

of a CCR unit subject to this subpart 

must notify the State Director and/or 

appropriate Tribal authority when 

information has been placed in the 

operating record and on the owner or 

operator’s publicly accessible internet 

site. The owner or operator must: 

(1) Provide notification of the 

availability of the annual groundwater 


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monitoring and corrective action report 

specified under § 257.105(h)(1). 

(2) Provide notification of the 

availability of the groundwater 

monitoring system certification 

specified under § 257.105(h)(3). 

(3) Provide notification of the 

availability of the selection of a 

statistical method certification specified 

under § 257.105(h)(4). 

(4) Provide notification that an 

assessment monitoring programs has 

been established specified under 

§ 257.105(h)(5). 

(5) Provide notification that the CCR 

unit is returning to a detection 

monitoring program specified under 

§ 257.105(h)(7). 

(6) Provide notification that one or 

more constituents in appendix IV to this 

part have been detected at statistically 

significant levels above the groundwater 

protection standard and the 

notifications to land owners specified 

under § 257.105(h)(8). 

(7) Provide notification that an 

assessment of corrective measures has 

been initiated specified under 

§ 257.105(h)(9). 

(8) Provide notification of the 

availability of assessment of corrective 

measures specified under 

§ 257.105(h)(10). 

(9) Provide notification of the 

availability of the semiannual report 

describing the progress in selecting and 

designing the remedy and the selection 

of remedy report specified under 

§ 257.105(h)(12). 

(10) Provide notification of the 

completion of the remedy specified 

under § 257.105(h)(13). 

(i) Closure and post-closure care. The 

owner or operator of a CCR unit subject 

to this subpart must notify the State 

Director and/or appropriate Tribal 

authority when information has been 

placed in the operating record and on 

the owner or operator’s publicly 

accessible Internet site. The owner or 

operator must: 

(1) Provide notification of the intent 

to initiate closure of the CCR unit 

specified under § 257.105(i)(1). 

(2) Provide notification of the 

availability of the annual progress 

reports of closure implementation 

specified under § 257.105(i)(2). 

(3) Provide notification of closure 

completion specified under 

§ 257.105(i)(3). 

(4) Provide notification of the 

availability of the written closure plan, 

and any amendment of the plan, 

specified under § 257.105(i)(4). 

(5) Provide notification of the 

availability of the demonstration(s) for a 

time extension for initiating closure 

specified under § 257.105(i)(5). 

(6) Provide notification of the 

availability of the demonstration(s) for a 

time extension for completing closure 

specified under § 257.105(i)(6). 

(7) Provide notification of intent to 

close a CCR unit specified under 

§ 257.105(i)(7). 

(8) Provide notification of completion 

of closure of a CCR unit specified under 

§ 257.105(i)(8). 

(9) Provide notification of the deed 

notation as required by § 257.105(i)(9). 

(10) Provide notification of intent to 

comply with the alternative closure 

requirements specified under 

§ 257.105(i)(10). 

(11) The annual progress reports 

under the alternative closure 

requirements as required by 

§ 257.105(i)(11). 

(12) Provide notification of the 

availability of the written post-closure 

plan, and any amendment of the plan, 

specified under § 257.105(i)(12). 

(13) Provide notification of 

completion of post-closure care 

specified under § 257.105(i)(13). 

(j) Retrofit criteria. The owner or 

operator of a CCR unit subject to this 

subpart must notify the State Director 

and/or appropriate Tribal authority 

when information has been placed in 

the operating record and on the owner 

or operator’s publicly accessible Internet 

site. The owner or operator must: 

(1) Provide notification of the 

availability of the written retrofit plan, 

and any amendment of the plan, 

specified under § 257.105(j)(1). 

(2) Provide notification of intent to 

comply with the alternative retrofit 

requirements specified under 

§ 257.105(j)(2). 

(3) The annual progress reports under 

the alternative retrofit requirements as 

required by § 257.105(j)(3). 

(4) Provide notification of the 

availability of the demonstration(s) for a 

time extension for completing retrofit 

activities specified under § 257.105(j)(4). 

(5) Provide notification of intent to 

initiate retrofit of a CCR unit specified 

under § 257.105(j)(5). 

(6) Provide notification of completion 

of retrofit activities specified under 

§ 257.105(j)(6). 

§ 257.107 Publicly accessible Internet site 

requirements. 

(a) Each owner or operator of a CCR 

unit subject to the requirements of this 

subpart must maintain a publicly 

accessible Internet site (CCR Web site) 

containing the information specified in 

this section. The owner or operator’s 

Web site must be titled ‘‘CCR Rule 

Compliance Data and Information.’’ 

(b) An owner or operator of more than 

one CCR unit subject to the provisions 

of this subpart may comply with the 

requirements of this section by using the 

same Internet site for multiple CCR 

units provided the CCR Web site clearly 

delineates information by the name or 

identification number of each unit. 

(c) Unless otherwise required in this 

section, the information required to be 

posted to the CCR Web site must be 

made available to the public for at least 

five years following the date on which 

the information was first posted to the 

CCR Web site. 

(d) Unless otherwise required in this 

section, the information must be posted 

to the CCR Web site within 30 days of 

placing the pertinent information 

required by § 257.105 in the operating 

record. 

(e) Location restrictions. The owner or 

operator of a CCR unit subject to this 

subpart must place each demonstration 

specified under § 257.105(e) on the 

owner or operator’s CCR Web site. 

(f) Design criteria. The owner or 

operator of a CCR unit subject to this 

subpart must place the following 

information on the owner or operator’s 

CCR Web site: 

(1) Within 60 days of commencing 

construction of a new unit, the design 

certification specified under 

§ 257.105(f)(1) or (3). 

(2) No later than the date of initial 

receipt of CCR by a new CCR unit, the 

construction certification specified 

under § 257.105(f)(1) or (3). 

(3) The documentation of liner type 

specified under § 257.105(f)(2). 

(4) The initial and periodic hazard 

potential classification assessments 

specified under § 257.105(f)(5). 

(5) The emergency action plan (EAP) 

specified under § 257.105(f)(6), except 

that only the most recent EAP must be 

maintained on the CCR Web site 

irrespective of the time requirement 

specified in paragraph (c) of this 

section. 

(6) Documentation prepared by the 

owner or operator recording the annual 

face-to-face meeting or exercise between 

representatives of the owner or operator 

of the CCR unit and the local emergency 

responders specified under 

§ 257.105(f)(7). 

(7) Documentation prepared by the 

owner or operator recording any 

activation of the emergency action plan 

specified under § 257.105(f)(8). 

(8) The history of construction, and 

any revisions of it, specified under 

§ 257.105(f)(9). 

(9) The initial and periodic structural 

stability assessments specified under 

§ 257.105(f)(10). 

(10) The documentation detailing the 

corrective measures taken to remedy the 


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deficiency or release specified under 

§ 257.105(f)(11). 

(11) The initial and periodic safety 

factor assessments specified under 

§ 257.105(f)(12). 

(12) The design and construction 

plans, and any revisions of them, 

specified under § 257.105(f)(13). 

(g) Operating criteria. The owner or 

operator of a CCR unit subject to this 

subpart must place the following 

information on the owner or operator’s 

CCR Web site: 

(1) The CCR fugitive dust control 

plan, or any subsequent amendment of 

the plan, specified under § 257.105(g)(1) 

except that only the most recent plan 

must be maintained on the CCR Web 

site irrespective of the time requirement 

specified in paragraph (c) of this 

section. 

(2) The annual CCR fugitive dust 

control report specified under 

§ 257.105(g)(2). 

(3) The initial and periodic run-on 

and run-off control system plans 

specified under § 257.105(g)(3). 

(4) The initial and periodic inflow 

design flood control system plans 

specified under § 257.105(g)(4). 

(5) The periodic inspection reports 

specified under § 257.105(g)(6). 

(6) The documentation detailing the 

corrective measures taken to remedy the 

deficiency or release specified under 

§ 257.105(g)(7). 

(7) The periodic inspection reports 

specified under § 257.105(g)(9). 

(h) Groundwater monitoring and 

corrective action. The owner or operator 

of a CCR unit subject to this subpart 

must place the following information on 

the owner or operator’s CCR Web site: 

(1) The annual groundwater 

monitoring and corrective action report 

specified under § 257.105(h)(1). 

(2) The groundwater monitoring 

system certification specified under 

§ 257.105(h)(3). 

(3) The selection of a statistical 

method certification specified under 

§ 257.105(h)(4). 

(4) The notification that an 

assessment monitoring programs has 

been established specified under 

§ 257.105(h)(5). 

(5) The notification that the CCR unit 

is returning to a detection monitoring 

program specified under § 257.105(h)(7). 

(6) The notification that one or more 

constituents in appendix IV to this part 

have been detected at statistically 

significant levels above the groundwater 

protection standard and the 

notifications to land owners specified 

under § 257.105(h)(8). 

(7) The notification that an 

assessment of corrective measures has 

been initiated specified under 

§ 257.105(h)(9). 

(8) The assessment of corrective 

measures specified under 

§ 257.105(h)(10). 

(9) The semiannual reports describing 

the progress in selecting and designing 

remedy and the selection of remedy 

report specified under § 257.105(h)(12), 

except that the selection of the remedy 

report must be maintained until the 

remedy has been completed. 

(10) The notification that the remedy 

has been completed specified under 

§ 257.105(h)(13). 

(i) Closure and post-closure care. The 

owner or operator of a CCR unit subject 

to this subpart must place the following 

information on the owner or operator’s 

CCR Web site: 

(1) The notification of intent to 

initiate closure of the CCR unit specified 

under § 257.105(i)(1). 

(2) The annual progress reports of 

closure implementation specified under 

§ 257.105(i)(2). 

(3) The notification of closure 

completion specified under 

§ 257.105(i)(3). 

(4) The written closure plan, and any 

amendment of the plan, specified under 

§ 257.105(i)(4). 

(5) The demonstration(s) for a time 

extension for initiating closure specified 

under § 257.105(i)(5). 

(6) The demonstration(s) for a time 

extension for completing closure 

specified under § 257.105(i)(6). 

(7) The notification of intent to close 

a CCR unit specified under 

§ 257.105(i)(7). 

(8) The notification of completion of 

closure of a CCR unit specified under 

§ 257.105(i)(8). 

(9) The notification recording a 

notation on the deed as required by 

§ 257.105(i)(9). 

(10) The notification of intent to 

comply with the alternative closure 

requirements as required by 

§ 257.105(i)(10). 

(11) The annual progress reports 

under the alternative closure 

requirements as required by 

§ 257.105(i)(11). 

(12) The written post-closure plan, 

and any amendment of the plan, 

specified under § 257.105(i)(12). 

(13) The notification of completion of 

post-closure care specified under 

§ 257.105(i)(13). 

(j) Retrofit criteria. The owner or 

operator of a CCR unit subject to this 

subpart must place the following 

information on the owner or operator’s 

CCR Web site: 

(1) The written retrofit plan, and any 

amendment of the plan, specified under 

§ 257.105(j)(1). 

(2) The notification of intent to 

comply with the alternative retrofit 

requirements as required by 

§ 257.105(j)(2). 

(3) The annual progress reports under 

the alternative retrofit requirements as 

required by § 257.105(j)(3). 

(4) The demonstration(s) for a time 

extension for completing retrofit 

activities specified under § 257.105(j)(4). 

(5) The notification of intent to retrofit 

a CCR unit specified under 

§ 257.105(j)(5). 

(6) The notification of completion of 

retrofit activities specified under 

§ 257.105(j)(6). 

■ 5. Amend part 257 by adding 

‘‘Appendix III to Part 257’’ and 

‘‘Appendix IV to Part 257’’ to read as 

follows: 

Appendix III to Part 257—Constituents 

for Detection Monitoring 

Common name 1

Boron 

Calcium 

Chloride 

Fluoride 

pH 

Sulfate 

Total Dissolved Solids (TDS) 

1 Common names are those widely used in 

government regulations, scientific publications, 

and commerce; synonyms exist for many 

chemicals. 

Appendix IV to Part 257—Constituents 

for Assessment Monitoring 

Common name 1

Antimony 

Arsenic 

Barium 

Beryllium 

Cadmium 

Chromium 

Cobalt 

Fluoride 

Lead 

Lithium 

Mercury 

Molybdenum 

Selenium 

Thallium 

Radium 226 and 228 combined 

1 Common names are those widely used in 

government regulations, scientific publications, 

and commerce; synonyms exist for many 

chemicals. 

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

■ 6. The authority citation for part 261 

continues to read as follows: 

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

6922, 6924(y) and 6938. 

■ 7. Section 261.4 is amended by 

revising paragraph (b)(4) to read as 

follows: 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules and Regulations 21501 

§ 261.4 Exclusions. 

* * * * * 

(b) * * * 

(4)(i) Fly ash waste, bottom ash waste, 

slag waste, and flue gas emission control 

waste generated primarily from the 

combustion of coal or other fossil fuels, 

except as provided by § 266.112 of this 

chapter for facilities that burn or process 

hazardous waste. 

(ii) The following wastes generated 

primarily from processes that support 

the combustion of coal or other fossil 

fuels that are co-disposed with the 

wastes in paragraph (b)(4)(i) of this 

section, except as provided by § 266.112 

of this chapter for facilities that burn or 

process hazardous waste: 

(A) Coal pile run-off. For purposes of 

paragraph (b)(4) of this section, coal pile 

run-off means any precipitation that 

drains off coal piles. 

(B) Boiler cleaning solutions. For 

purposes of paragraph (b)(4) of this 

section, boiler cleaning solutions means 

water solutions and chemical solutions 

used to clean the fire-side and waterside of the boiler. 

(C) Boiler blowdown. For purposes of 

paragraph (b)(4) of this section, boiler 

blowdown means water purged from 

boilers used to generate steam. 

(D) Process water treatment and 

demineralizer regeneration wastes. For 

purposes of paragraph (b)(4) of this 

section, process water treatment and 

demineralizer regeneration wastes 

means sludges, rinses, and spent resins 

generated from processes to remove 

dissolved gases, suspended solids, and 

dissolved chemical salts from 

combustion system process water. 

(E) Cooling tower blowdown. For 

purposes of paragraph (b)(4) of this 

section, cooling tower blowdown means 

water purged from a closed cycle 

cooling system. Closed cycle cooling 

systems include cooling towers, cooling 

ponds, or spray canals. 

(F) Air heater and precipitator 

washes. For purposes of paragraph (b)(4) 

of this section, air heater and 

precipitator washes means wastes from 

cleaning air preheaters and electrostatic 

precipitators. 

(G) Effluents from floor and yard 

drains and sumps. For purposes of 

paragraph (b)(4) of this section, effluents 

from floor and yard drains and sumps 

means wastewaters, such as wash water, 

collected by or from floor drains, 

equipment drains, and sumps located 

inside the power plant building; and 

wastewaters, such as rain runoff, 

collected by yard drains and sumps 

located outside the power plant 

building. 

(H) Wastewater treatment sludges. For 

purposes of paragraph (b)(4) of this 

section, wastewater treatment sludges 

refers to sludges generated from the 

treatment of wastewaters specified in 

paragraphs (b)(4)(ii)(A) through (F) of 

this section. 

* * * * * 

[FR Doc. 2015–00257 Filed 4–16–15; 8:45 am] 

BILLING CODE 6560–50–P 


asabaliauskas on DSK5VPTVN1PROD with RULES