[Federal Register Volume 75, Number 118 (Monday, June 21, 2010)]
[Proposed Rules]
[Pages 35128-35264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12286]
[[Page 35127]]
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Part II
Environmental Protection Agency
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40 CFR Parts 257, 261, 264 et al.
Hazardous and Solid Waste Management System; Identification and Listing
of Special Wastes; Disposal of Coal Combustion Residuals From Electric
Utilities; Proposed Rule
Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 /
Proposed Rules
[[Page 35128]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 257, 261, 264, 265, 268, 271 and 302
[EPA-HQ-RCRA-2009-0640; FRL-9149-4]
RIN-2050-AE81
Hazardous and Solid Waste Management System; Identification and
Listing of Special Wastes; Disposal of Coal Combustion Residuals From
Electric Utilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
proposing to regulate for the first time, coal combustion residuals
(CCRs) under the Resource Conservation and Recovery Act (RCRA) to
address the risks from the disposal of CCRs generated from the
combustion of coal at electric utilities and independent power
producers. However, the Agency is considering two options in this
proposal and, thus, is proposing two alternative regulations. Under the
first proposal, EPA would reverse its August 1993 and May 2000 Bevill
Regulatory Determinations regarding coal combustion residuals (CCRs)
and 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 the second proposal, EPA would leave the
Bevill determination in place and regulate disposal of such materials
under subtitle D of RCRA by issuing national minimum criteria. Under
both alternatives EPA is proposing to establish dam safety requirements
to address the structural integrity of surface impoundments to prevent
catastrophic releases.
EPA is not proposing to change the May 2000 Regulatory
Determination for beneficially used CCRs, which are currently exempt
from the hazardous waste regulations under Section 3001(b)(3)(A) of
RCRA. However, EPA is clarifying this determination and seeking comment
on potential refinements for certain beneficial uses. EPA is also not
proposing to address the placement of CCRs in mines, or non-minefill
uses of CCRs at coal mine sites in this action.
DATES: Comments must be received on or before September 20, 2010. EPA
will provide an opportunity for a public hearing on the rule upon
request. Requests for a public meeting should be submitted to EPA's
Office of Resource Conservation and Recovery by July 21, 2010. See the
FOR FURTHER INFORMATION CONTACT section for contact information. Should
EPA receive requests for public meetings within this timeframe, EPA
will publish a document in the Federal Register providing the details
of such meetings.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2009-0640, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: Comments may be sent by electronic mail (e-mail)
to [email protected], Attention Docket ID No. EPA-HQ-RCRA-2009-0640.
In contrast to EPA's electronic public docket, EPA's e-mail system is
not an ``anonymous access'' system. If you send an e-mail comment
directly to the Docket without going through EPA's electronic public
docket, EPA's e-mail system automatically captures your e-mail address.
E-mail addresses that are automatically captured by EPA's e-mail system
are included as part of the comment that is placed in the official
public docket, and made available in EPA's electronic public docket.
Fax: Comments may be faxed to 202-566-0272; Attention
Docket ID No. EPA-HQ-RCRA-2009-0640.
Mail: Send your comments to the Hazardous Waste Management
System; Identification and Listing of Special Wastes; Disposal of Coal
Combustion Residuals From Electric Utilities Docket, Attention Docket
ID No., EPA-HQ-RCRA-2009-0640, Environmental Protection Agency,
Mailcode: 5305T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Please include a total of two copies.
Hand Delivery: Deliver two copies of your comments to the
Hazardous Waste Management System; Identification and Listing of
Special Wastes; Disposal of Coal Combustion Residuals From Electric
Utilities Docket, Attention Docket ID No., EPA-HQ-RCRA-2009-0640, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC
20460. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2009-0640. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Hazardous Waste
Management System; Identification and Listing of Special Wastes;
Disposal of Coal Combustion Residuals From Electric Utilities Docket,
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC 20460. This Docket Facility is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The Docket telephone
number is (202) 566-0270. The Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
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telephone number for the Public Reading Room is (202) 566-1744.
FOR FURTHER INFORMATION CONTACT: Alexander Livnat, Office of Resource
Conservation and Recovery, Environmental Protection Agency, 5304P;
telephone number: (703) 308-7251; fax number: (703) 605-0595; e-mail
address: [email protected], or Steve Souders, Office of Resource
Conservation and Recovery, Environmental Protection Agency, 5304P;
telephone number: (703) 308-8431; fax number: (703) 605-0595; e-mail
address: [email protected]. For technical information on the CERCLA
aspects of this rule, contact Lynn Beasley, Office of Emergency
Management, Regulation and Policy Development Division (5104A), U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460, [E-mail address and telephone number:
[email protected] (202-564-1965).]
For more information on this rulemaking please visit http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/index.htm.
SUPPLEMENTARY INFORMATION:
A. Does this action apply to me?
The proposed rule would apply to all coal combustion residuals
(CCRs) generated by electric utilities and independent power producers.
However, this proposed rule does not address the placement of CCRs in
minefills. The U. S. Department of Interior (DOI) and EPA will address
the management of CCRs in minefills in a separate regulatory action(s),
consistent with the approach recommended by the National Academy of
Sciences, recognizing the expertise of DOI's Office of Surface Mining
Reclamation and Enforcement in this area.\1\ In addition, under either
alternative proposal, EPA is not proposing to affect the current status
of coal combustion residuals that are beneficially used.\2\ (See
section IV. D for further details on proposed clarifications of
beneficial use.) CCRs from non-utility boilers burning coal are not
included within today's proposed rule. EPA will decide on an
appropriate action for these wastes after completing this rulemaking
effort.
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\1\ The National Research Council (NRC) Committee on Mine
Placement of Coal Combustion Wastes stated: ``The committee believes
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.'' National
Academy of Sciences. Managing Coal Combustion Residues in Mines; The
National Academies Press, Washington, DC, 2006.
\2\ The NRC committee recommended ``that secondary uses of CCRs
that pose minimal risks to human health and the environment be
strongly encouraged.'' Ibid.
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The proposed rule may affect the following entities: electric
utility facilities and independent power producers that fall under the
North American Industry Classification System (NAICS) code 221112, and
hazardous waste treatment and disposal facilities that fall under NAICS
code 562211. The industry sector(s) identified above may not be
exhaustive; other types of entities not listed could also be affected.
The Agency's aim is to provide a guide for readers regarding those
entities that potentially could be affected by this action. To
determine whether your facility, company, business, organization, etc.,
is affected by this action, you should refer to the applicability
criteria contained in section IV of this preamble. If you have any
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
B. What should I consider as I prepare my comments for EPA?
1. Submitting confidential business information (CBI). Do not
submit information that you consider to be CBI through http://www.regulations.gov or by e-mail. Send or deliver information
identified as CBI only to the following address: RCRA CBI Document
Control Officer, Office of Resource Conservation and Recovery (5305P),
U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington DC 20460, Attention
Docket No, EPA-HQ-RCRA-2009-0640. You may claim information that you
submit to EPA as CBI by marking any part or all of the information as
CBI (if you submit CBI on a disk or CD ROM, mark the outside of the
disk or CD ROM as CBI and then identify electronically within the disk
or CD ROM the specific information that is claimed as CBI). Information
so marked will not be disclosed, except in accordance with the
procedures set forth in 40 CFR part 2. In addition to one complete
version of the comment that includes information claimed as CBI, a copy
of the comment that does not contain the information claimed as CBI
must be submitted for inclusion in the public docket. If you submit the
copy that does not contain CBI on disk or CD ROM, mark the outside of
the disk or CD ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior notice. If you have questions
about CBI or the procedures for claiming CBI, please contact: LaShan
Haynes, Office of Resource Conservation and Recovery (5305P), U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington DC 20460-0002, telephone (703) 605-0516, e-mail address
[email protected].
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes, and explain your
interest in the issue you are attempting to address.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Make sure to submit your comments by the comment period
deadline identified.
3. Docket Copying Costs. The first 100-copied pages are free.
Thereafter, the charge for making copies of Docket materials is 15
cents per page.
C. Definitions, Abbreviations and Acronyms Used in This Preamble (Note:
Any term used in this proposed rulemaking that is not defined in this
section will either have its normal dictionary meaning, or is defined
in 40 CFR 260.10.)
Acre-foot means the volume of one acre of surface area to a depth
of one foot.
Beneficial Use of Coal Combustion Products (CCPs) means the use of
CCPs that provides a functional benefit; replaces the use of an
alternative material, conserving natural resources that would otherwise
need to be obtained through practices such as extraction; and meets
relevant product specifications and regulatory standards (where these
are available). CCPs that are used in excess quantities (e.g., the
field-applications of FGD gypsum in amounts that exceed scientifically-
supported quantities required for enhancing soil properties and/or crop
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yields), placed as fill in sand and gravel pits, or used in large scale
fill projects, such as for restructuring the landscape, are excluded
from this definition.
Boiler slag means the molten bottom ash collected at the base of
slag tap and cyclone type furnaces that is quenched with water. It is
made up of hard, black, angular particles that have a smooth, glassy
appearance.
Bottom ash means the agglomerated, angular ash particles, formed in
pulverized coal furnaces that are too large to be carried in the flue
gases and collect on the furnace walls or fall through open grates to
an ash hopper at the bottom of the furnace.
CCR Landfill means a disposal facility or part of a facility where
CCRs 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 proposed rule,
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.
CCR Surface Impoundment or impoundment means 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 CCRs 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 CCRs 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.
Cenospheres are lightweight, inert, hollow spheres comprised
largely of silica and alumina glass.
Coal Combustion Products (CCPs) means fly ash, bottom ash, boiler
slag, or flue gas desulfurization materials, that are beneficially
used.
Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler
slag, and flue gas desulfurization materials destined for disposal.
CCRs are also known as coal combustion wastes (CCWs) and fossil fuel
combustion (FFC) wastes, when destined for disposal.
Electric Power Sector (Electric Utilities and Independent Power
Producers) means that sector of the power generating industry that
comprises electricity-only and combined-heat-and-power (CHP) plants
whose primary business is to sell electricity, or electricity and heat,
to the public.
Existing CCR Landfill means a landfill which was in operation or
for which construction commenced prior to the effective date of the
final rule. 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.
Existing CCR Surface Impoundment means a surface impoundment which
was in operation or for which construction commenced prior to the
effective date of the final rule. 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 either
(1) A continuous on-site, physical construction program has begun;
or
(2) The owner or operator has entered into contractual
obligations--which can not be cancelled or modified without substantial
loss--for physical construction of the CCR surface impoundment to be
completed within a reasonable time.
Flue Gas Desulfurization (FGD) material means the material produced
through a process used to reduce sulfur dioxide (SO2)
emissions from the exhaust gas system of a coal-fired boiler. The
physical nature of these materials varies from a wet sludge to a dry
powdered material, depending on the process, and their composition
comprises either sulfites, sulfates or a mixture thereof.
Fly ash means the very fine globular particles of silica glass
which is a product of burning finely ground coal in a boiler to produce
electricity, and is removed from the plant exhaust gases by air
emission control devices.
Hazard potential means the possible adverse incremental
consequences that result from the release of water or stored contents
due to failure of a dam (or impoundment) or mis-operation of the dam or
appurtenances.\3\
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\3\ The Hazard Potential Classification System for Dams was
developed by the U.S. Army Corps of Engineers for the National
Inventory of Dams (see https://rsgis.crrel.usace.army.mil/apex/f?p=397:1:913698079375545). Hazard potential ratings do not provide
an estimate of the probability of failure or mis-operation, but
rather what the consequences of such a failure or mis-operation
would be.
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High hazard potential surface impoundment means a surface
impoundment where failure or mis-operation will probably cause loss of
human life.
Significant hazard potential surface impoundment means a surface
impoundment where failure or mis-operation results in no probable loss
of human life, but can cause economic loss, environment damage,
disruption of lifeline facilities, or impact other concerns.
Low hazard potential surface impoundment means a surface
impoundment where failure or mis-operation results in no probable loss
of human life and low economic and/or environmental losses. Losses are
principally limited to the surface impoundment owner's property.
Less than low hazard potential surface impoundment means a surface
impoundment not meeting the definitions for High, Significant, or Low
Hazard Potential.
Independent registered professional engineer or hydrologist means a
scientist or engineer who is not an employee of the owner or operator
of a CCR landfill or surface impoundment who has received a
baccalaureate or post-graduate degree in the natural sciences or
engineering and 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 judgments regarding groundwater monitoring, contaminant
fate and transport, and corrective action.
Lateral expansion means a horizontal expansion of the waste
boundaries of an existing CCR landfill, or existing CCR surface
impoundment made after the effective date of the final rule.
Maximum Contaminant Level (MCL) means the highest level of a
contaminant that is allowed in drinking water under the Safe Drinking
Water Act (SDWA). MCLs are set as close to the MCL goals as feasible
using the best available treatment technology and taking cost into
consideration. MCLs are enforceable standards for drinking water.
Minefill means a project involving the placement of CCRs in coal
mine voids for use as fill, grouting, subsidence control, capping, mine
sealing, and
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treating acid mine drainage, whether for purposes of disposal or for
beneficial use, such as mine reclamation.
Natural water table means the natural level at which water stands
in a shallow well open along its length and penetrating the surficial
deposits just deeply enough to encounter standing water at the bottom.
This level is uninfluenced by groundwater pumping or other engineered
activities.
Organosilanes are organic compounds containing at least one carbon
to silicon bond, and are typically used to promote adhesion.
Potential damage case means those cases with documented MCL
exceedances that were measured in ground water beneath or close to the
waste source. In these cases, while the association with CCRs has been
established, the documented exceedances had not been demonstrated at a
sufficient distance from the waste management unit to indicate that
waste constituents had migrated to the extent that they could cause
human health concerns.
Pozzolanic material means primarily vitreous siliceous materials,
such as many types of CCRs that, when combined with calcium hydroxide
and in the presence of water, exhibit cementitious properties.
Proven damage case means those cases with (i) Documented
exceedances of primary maximum contaminant levels (MCLs) or other
health-based standards measured in ground water at sufficient distance
from the waste management unit to indicate that hazardous constituents
have migrated to the extent that they could cause human health
concerns, and/or (ii) where a scientific study provides documented
evidence of another type of damage to human health or the environment
(e.g., ecological damage), and/or (iii) where there has been an
administrative ruling or court decision with an explicit finding of
specific damage to human health or the environment. In cases of co-
management of CCRs with other industrial waste types, CCRs must be
clearly implicated in the reported damage.
Sand and gravel pit, and/or quarry means an excavation for the
commercial extraction of aggregate for use in construction projects.
CCRs have historically been used to fill sand and gravel pits and
quarries. CCRs are not known to be used to fill metal mines.
Secondary Drinking Water Standards are non-enforceable federal
guidelines regarding cosmetic effects (such as tooth or skin
discoloration) or aesthetic effects (such as taste, odor, or color) of
drinking water.
Special Wastes means any of the following wastes that are managed
under the modified subtitle C requirements: CCRs destined for disposal.
Surface Water means all water naturally open to the atmosphere
(rivers, lakes, reservoirs, ponds, streams, impoundments, seas,
estuaries, etc.).
Uniquely associated wastes means low-volume wastes other than those
defined as CCRs that are related to the coal combustion process.
Examples of uniquely associated wastes are precipitation runoff from
coal storage piles at the electric utility, waste coal or coal mill
rejects that are not of sufficient quality to burn as a fuel, and
wastes from cleaning boilers used to generate steam.
CCPs Coal Combustion Products
CCRs Coal Combustion Residuals
CFR Code of Federal Regulations
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act
EPA U.S. Environmental Protection Agency
EPCRA Emergency Planning and Community Right-to-Know Act
MCL Maximum Contaminant Level
m/L milligrams per liter
NPDES National Pollutant Discharge Elimination System
NRC National Response Center
PDWS Primary Drinking Water Standard
OSM Office of Surface Mining Reclamation and Enforcement, U.S.
Department of the Interior
RCRA Resource Conservation and Recovery Act (42 USCA 6901)
RQ Reportable Quantity
SDWS Secondary Drinking Water Standard
SMCRA Surface Mining Control and Reclamation Act
[mu]g/L micrograms per liter
WQC Federal water quality criteria
D. The Contents of This Preamble Are Listed in the Following Outline
I. Background
A. Why is EPA proposing two options?
1. Basis of Why EPA Is Proceeding With Today's Co-Proposals
2. Brief Description of Today's Co-Proposals
3. Summary of Estimated Regulatory Costs and Benefits
B. What is the statutory authority for this action?
C. Regulation of Wastes Under RCRA Subtitle C
D. Regulation of Solid Wastes Under RCRA Subtitle D
E. Summary of the 1993 and 2000 Regulatory Determinations
F. What are CCRs?
1. Chemical Constituents in CCRs
2. Recent EPA Research on Constituent Leaching From CCRs
G. Current Federal Regulations or Standards Applicable to the
Placement of CCRs in Landfills and Surface Impoundments
II. New Information on the Placement of CCRs in Landfills and
Surface Impoundments
A. New Developments Since the May 2000 Regulatory Determination
B. CCR Risk Assessment
C. Damage Cases
III. Overview and Summary of the Bevill Regulatory Determination and
the Proposed Subtitle C and Subtitle D Regulatory Options
A. Summary of Subtitle C Proposal
B. Summary of Subtitle D Proposal
IV. Bevill Regulatory Determination Relating to CCRs From Electric
Utilities
A. Basis for Reconsideration of May 2000 Regulatory
Determination
B. RCRA Section 8002(n) Study Factors Environmental Benefits
C. Preliminary Bevill Conclusions and Impact of Reconsideration
D. EPA Is Not Reconsidering the Regulatory Determination
Regarding Beneficial Use
1. Why is EPA not proposing to change the determination that
CCRs that are beneficially used do not warrant federal regulation?
2. What constitutes beneficial use?
3. Disposal of CCRs in Sand and Gravel Pits and Large Scale Fill
Operations Is Not Considered a Beneficial Use
4. Issues Associated With Unencapsulated Beneficial Uses
E. Placement of CCRs in Minefilling Operations
F. EPA Is Not Proposing To Revise the Bevill Determination for
CCRs Generated by Non-Utilities
V. Co-Proposed Listing of CCRs as a Special Waste Under RCRA
Subtitle C and Special Requirements for Disposal of CCRs Generated
by Electric Utilities
A. What is the basis for listing CCRs as a special waste?
1. Criteria for Listing CCRs as a Special Waste and Background
on 2010 Risk Assessment
B. Background on EPA's 2010 Risk Assessment
1. Human Health Risks
2. Ecological Risks
C. Consideration of Individual Listing Criteria
1. Toxicity--Factor (i)
2. Concentration of Constituents in Waste--Factor (ii)
3. Migration, Persistence, Degradation, and Bioaccumulation--
Factors (iii), (iv), (v), and (vi)
4. Plausible Types of Mismanagement, Quantities of the Waste
Generated, Nature and Severity of Effects From Mismanagement--
Factors (vii), (viii) and (ix)
5. Action Taken by Other Governmental Agencies or Regulatory
Programs Based on the Health or Environmental Hazard Posed by the
Waste or Waste Constituent--Factor (x)
6. Other Factors--Factor (xi)
VI. Summary of the Co-Proposed Subtitle C Regulations
A. Special Waste Listing
B. Proposed Special Requirements for CCRs
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1. Modification of Technical Standards Under 3004(x)
i. Modification of CCR Landfills and Surface Impoundments From
the Section 3004(o) Liner and Leak Detection Requirements
ii. Fugitive Dust Controls
iii. Special Requirements for Stability of CCR Surface
Impoundments
iv. Wet-Handling of CCRs, Closure, and Interim Status for
Surface Impoundments
v. Proposed Land Disposal Restrictions
2. Proposed Treatment Standards for Non-Wastewaters (Dry CCRs)
3. Proposed Treatment Standards for Wastewaters (Wet-Handled
CCRs)
4. Effective Date of the LDR Prohibitions
C. Applicability of Subtitle C Regulations
D. CERCLA Designation and Reportable Quantities
1. Reporting Requirements
2. Basis for RQs and Adjustments
3. Application of the CERCLA Mixture Rule to Listed CCR
4. Correction of Table of Maximum Observed Constituent
Concentrations Identified by EPA
E. Listing of CCR as Special Wastes To Address Perceived Stigma
Issue
VII. How would the proposed subtitle C requirements be implemented?
A. Effective Dates
B. What are the requirements with which facilities must comply?
1. Generators and Transporters
2. Treatment, Storage, and Disposal Facilities (TSDs)
C. RCRA Section 3010 Notification
D. Permit Requirements
1. Facilities Newly Subject to RCRA Permit Requirements
2. Existing Interim Status Facilities
3. Permitted Facilities
E. Requirements in 40 CFR Parts 264 and 265
VIII. Impacts of a Subtitle C Rule on State Authorization
A. Applicability of the Rule in Authorized States
B. Effect on State Authorization
IX. Summary of the Co-Proposal Regulating CCRs Under Subtitle D
Regulations
A. Overview and General Issues
1. Regulatory Approach
2. Notifications
B. Section-by-Section Discussion of RCRA Subtitle D Criteria
1. Proposed Modifications to Part 257, Subpart A
2. General Provisions
3. Definitions
4. Location Restrictions
5. Design Requirements
6. Operating Requirements
7. Ground Water Monitoring/Corrective Action
8. Closure and Post-Closure Care
9. Financial Assurance
10. Off-Site Disposal
11. Alternative RCRA Subtitle D Approaches
X. How would the proposed subtitle D regulations be implemented?
A. Effective Dates
B. Implementation and Enforcement of Subtitle D Requirements
XI. Impact of a Subtitle D Regulation on State Programs
XII. Impacts of the Proposed Regulatory Alternatives
A. What are the economic impacts of the proposed regulatory
alternatives?
B. Benefits Not Quantified in the RIA
1. Non-Quantified Plant and Wildlife Protection Benefits
2. Non-Quantified Surface Water Protection Benefits
3. Non-Quantified Ambient Air Protection Benefits
C. Comparison of Costs to Benefits for the Regulatory
Alternatives
D. What are the potential environmental and public health
impacts of the proposed regulatory alternatives?
1. Environmental and Public Health Impacts Estimated in the RIA
2. Environmental and Public Health Impacts Not Estimated in the
RIA
XIII. Other Alternatives EPA Considered
XIV. Is the EPA soliciting comments on specific issues?
XV. Executive Orders and Laws Addressed in This Action
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health & Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
APPENDIX to the Preamble: Documented Damages From CCR Management
Practices
I. Background
A. Why is EPA proposing two options?
1. Basis of Why EPA Is Proceeding With Today's Co-Proposals
EPA is revisiting its regulatory determination for CCRs under the
Bevill amendment. This decision is driven in part by the failure of a
surface impoundment retaining wall in Kingston, TN in December 2009.
Deciding upon the appropriate course of action to address over 100
million tons per year of CCRs is an extremely important step. In
developing this proposal, EPA conducted considerable data gathering and
analysis. While the public was able to comment on significant portions
of our analyses in August 2007, as part of a Notice of Data
Availability, there are differing views regarding the meaning of EPA's
information and what course of action EPA should take. In part, the
differing views are fueled by the complex data, analyses, legislation,
implications of available options, possible unintended consequences,
and a decision process, all of which pose considerations that could
justify EPA selecting a RCRA subtitle C approach or selecting a RCRA
subtitle D approach.
Deciding whether or not to maintain the Bevill exemption for CCRs,
entails an evaluation of the eight RCRA Section 8002(n) study factors:
Source and volumes of CCRs generated per year
Present disposal and utilization practices
Potential danger, if any, to human health and the
environment from the disposal and reuse of CCRs
Documented cases in which danger to human health or the
environment from surface runoff or leachate has been proved
Alternatives to current disposal methods
The cost of such alternatives
The impact of the alternatives on the use of coal and
other natural resources
The current and potential utilization of CCRs
Ultimately, the approach selected will need to ensure that catastrophic
releases such as occurred at the Tennessee Valley Authority's (TVA's)
Kingston, Tennessee facility do not occur and that other types of
damage cases associated with CCR surface impoundments and landfills are
prevented. Thus, this process requires EPA to balance the eight
factors, which ultimately rests on a policy judgment. This is further
complicated in this case because the facts identified under each of the
individual factors are even subject to widely varying perspectives. For
example, in considering the alternatives to current disposal methods,
some claim that RCRA subtitle C would significantly lessen beneficial
use while others see beneficial use expanding as disposal becomes more
costly; some see damage cases as substantial, while others note very
few incidences of significant off-site contamination.
Given the inherently discretionary nature of the decision, the
complexities of the scientific analyses, and the controversy of the
issue, EPA wants to ensure that the ultimate decision is based on the
best available data, and is taken with the fullest possible extent of
public input. As discussed in section IV in greater detail, there are a
number of issues on which additional or more recent information would
be useful in
[[Page 35133]]
allowing the Agency to reach a final decision. In the absence of this
information, EPA has not yet reached a conclusion as to how to strike
the appropriate balance among these eight factors and so is presenting
two proposals for federal regulation of CCRs.
As EPA weighs the eight Bevill study factors to reach our ultimate
decision, EPA will be guided by the following principles, which are
reflected in the discussions throughout this preamble. The first is
that EPA's actions must ultimately be protective of human health and
the environment. Second, any decision must be based on sound science.
Finally, in conducting this rulemaking, EPA wants to ensure that our
decision processes are transparent and encourage the greatest degree of
public participation. Consequently, to further the public's
understanding and ability to comment on all the issues facing the
Agency, within this proposal, EPA identifies a series of scientific,
economic, and materials management issues on which we are seeking
comment from the public to strengthen our knowledge of the impact of
EPA's decision.
There are three key areas of analyses where EPA is seeking comment:
The extent of existing damage cases, the extent of the risks posed by
the mismanagement of CCRs, and the adequacy of State programs to ensure
proper management of CCRs (e.g., is groundwater monitoring required of
CCR landfills and surface impoundments). Since the 2007 NODA, EPA
received new reports from industry and environmental and citizen groups
regarding damage cases. Industry provided information indicating that
many of EPA's listed proven damage cases do not meet EPA's criteria for
a damage case to be proven. Environmental and citizen groups, on the
other hand, reported that there are additional damage cases of which
EPA is unaware. EPA's analysis, as well as the additional information
from industry and environmental and citizen groups, which is in the
docket for this proposal, needs to undergo public review, with the end
result being a better understanding of the nature and number of damage
cases. In addition, as discussed at length in sections II and IV, a
number of technical questions have been raised regarding EPA's
quantitative groundwater risk assessment. The Agency would implement
similar technical controls under RCRA subtitle C or D. Therefore, a
central issue is the adequacy of State programs. Under either
regulatory approach, State programs will have key implementation roles.
This is a very complex area to evaluate. For example, as EPA reports
that 36% of the States do not have minimum liner requirements for CCR
landfills, and 67% do not have liner requirements for CCR surface
impoundments, we also observe that nearly all new CCR landfills and
surface impoundments are constructed with liners. It should also be
recognized that while states currently have considerable expertise in
their State dam safety programs, those programs do not tend to be part
of State solid waste or clean water act programs, and so, oversight may
not be adequately captured in EPA's existing data. In several areas,
there are these types of analytical tensions that warrant careful
consideration by the public and EPA. This proposal requests states and
others to provide further information on state programs, including the
prevalence of groundwater monitoring at existing facilities (an area
where our information is nearly 15 years old) and why state programs
may address groundwater monitoring and risks differently for surface
impoundments located proximate to rivers.
The results of the risk analysis demonstrate significant risks from
surface impoundments. A common industry practice, however, is to place
surface impoundments right next to water bodies. While the Agency's
population risk assessment analysis accounted for adjacent water
bodies, the draft risk assessment that presents individual risk
estimates does not account for the presence of adjacent water bodies in
the same manner that the population risk assessment did. EPA is
requesting public comment on the exact locations of CCR waste
management units so that the Agency can more fully account for water
bodies that may exist between a waste management unit and a drinking
water well (and thus, could potentially intercept a contaminated
groundwater plume). EPA is also requesting comments on how the risk
assessment should inform the final decision.
While the Agency believes the analyses conducted are sound, today's
co-proposal of two options reflects our commitment to use the public
process fully to ensure the best available scientific and regulatory
impact analyses are considered in our decision. The final course of
action will fully consider these legitimate and complex issues, and
will result in the selection of a regulatory structure that best
addresses the eight study factors identified in section 8002(n) of
RCRA, and ensures protection of human health and the environment.
2. Brief Description of Today's Co-Proposals
a. Summary of Subtitle C Proposal
In combination with its proposal to reverse the Bevill
determination for CCRs destined for disposal, EPA is proposing to list
as a special waste, to be regulated under the RCRA subtitle C
regulations, CCRs from electric utilities and independent power
producers when destined for disposal in a landfill or surface
impoundment. These CCRs would be regulated from the point of their
generation to the point of their final disposition, including during
and after closure of any disposal unit. This would include the
generator and transporter requirements and the requirements for
facilities managing CCRs, such as siting, liners (with modification),
run-on and run-off controls, groundwater monitoring, fugitive dust
controls, financial assurance, corrective action, including facility-
wide corrective action, closure of units, and post-closure care (with
certain modifications). In addition, facilities that dispose of, treat,
or, in many cases, store, CCRs also would be required to obtain permits
for the units in which such materials are disposed, treated, and
stored. The rule would also regulate the disposal of CCRs in sand and
gravel pits, quarries, and other large fill operations as a landfill.
To address the potential for catastrophic releases from surface
impoundments, we also are proposing requirements for dam safety and
stability for impoundments that, by the effective date of the final
rule, have not closed consistent with the requirements. We are also
proposing land disposal restrictions and treatment standards for CCRs,
as well as a prohibition on the disposal of treated CCRs below the
natural water table.
b. Summary of Subtitle D Proposal
In combination with today's proposal to leave the Bevill
determination in place, EPA is proposing to regulate CCRs disposed of
in surface impoundments or landfills under RCRA subtitle D requirements
which would establish national criteria to ensure the safe disposal of
CCRs in these units. The units would be subject to, among other things,
location standards, composite liner requirements (new landfills and
surface impoundments would require composite liners; existing surface
impoundments without liners would have to retrofit within five years,
or cease receiving CCRs and close); groundwater monitoring and
corrective action standards for releases from the unit; closure and
post-closure care
[[Page 35134]]
requirements; and requirements to address the stability of surface
impoundments. We are also soliciting comments on requiring financial
assurance. The rule would also regulate the disposal of CCRs in sand
and gravel pits, quarries, and other large fill operations as a
landfill. The rule would not regulate the generation, storage or
treatment of CCRs prior to disposal. Because of the scope of subtitle D
authority, the rule would not require permits, nor could EPA enforce
the requirements. Instead, states or citizens could enforce the
requirements under RCRA citizen suit authority; the states could also
enforce any state regulation under their independent state enforcement
authority.
EPA is also considering a potential modification to the subtitle D
option, called ``D prime'' in the following table. Under this option,
existing surface impoundments would not have to close or install
composite liners but could continue to operate for their useful life.
In the ``D prime'' option, the other elements of the subtitle D option
would remain the same.
3. Summary of Estimated Regulatory Costs and Benefits
For the purposes of comparing the estimated regulatory compliance
costs to the monetized benefits for each regulatory option, the
Regulatory Impact Analysis (RIA) computed two comparison indicators:
Net benefits (i.e., benefits minus costs), and benefit/cost ratio
(i.e., benefits divided by costs). Table 1 below provides a summary of
estimated regulatory costs and benefits for three regulatory options,
based on the 7% discount rate base case and the 50-year period-of-
analysis applied in the RIA. Furthermore, this benefit and cost summary
table displays ranges of net benefit and benefit/cost results across
three different scenarios concerning the potential impacts of each
option on the future annual beneficial use of CCRs under each option.
The first scenario presents the potential impact scenario that assumes
that the increased future annual cost of RCRA-regulated CCR disposal
will induce coal-fired electric utility plants to increase beneficial
use of CCRs. The second scenario presents a potential market stigma
effect under the subtitle C option which will induce a decrease in
future annual CCR beneficial use. The third scenario assumed that
beneficial use of CCRs continues according to its recent trend line
without any future change as a result of any of the regulatory options.
The RIA estimates both the first and second scenario incrementally in
relation to the third scenario no change trend line. Table 1 shows the
range of impacts and associated ranges of net benefits and benefit-cost
ratios across these three beneficial use scenarios for each regulatory
option. While each of these three scenario outcomes may be possible,
EPA's experience with the RCRA program indicates that industrial
generators of RCRA-regulated wastes are often able to increase
recycling and materials recovery rates after a subtitle C regulation.
Section XII in this preamble provides additional discussion of these
estimates.
Table 1--Summary Table Comparison of Regulatory Benefits to Costs--Ranging Over All Three Beneficial Use
Scenarios
[$Millions @ 2009$ prices and @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
Subtitle C ``Special
waste'' Subtitle D Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
1. Regulatory Costs:......... $20,349.................. $8,095.................. $3,259.
2. Regulatory Benefits:...... $87,221 to $102,191...... $34,964 to $41,761...... $14,111 to $17,501.
3. Net Benefits (2-1)........ ($251,166) to $81,842.... ($6,927) to $33,666..... ($2,666) to $14,242.
4. Benefit/Cost Ratio (2/1).. (11.343) to 5.022........ 0.144 to 5.159.......... 0.182 to 5.370.
B. Average Annualized Equivalent
Values:*
1. Regulatory Costs.......... $1,474................... $587.................... $236.
2. Regulatory Benefits:...... $6,320 to $7,405......... $2,533 to $3,026........ $1,023 to $1,268.
3. Net Benefits (2-1)........ ($18,199) to $5,930...... ($502) to $2,439........ ($193) to $1,032.
4. Benefit/Cost Ratio (2/1).. (11.347) to 5.022........ 0.145 to 5.159.......... 0.182 to 5.370.
----------------------------------------------------------------------------------------------------------------
\*\ Note: Average annualized equivalent values calculated by multiplying 50-year present values by a 50-year 7%
discount rate ``capital recovery factor'' of 0.07246.
B. What is the statutory authority for this action?
These regulations are being proposed under the authority of
sections 1008(a), 2002(a), 3001, 3004, 3005, and 4004 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. 6907(a), 6912(a), 6921,6924,
6925 and 6944. These statutes, combined, are commonly referred to as
``RCRA.''
RCRA section 1008(a) authorizes EPA to publish ``suggested
guidelines for solid waste management.'' 42 U.S.C. 6907(a). Such
guidelines must provide a technical and economic description of the
level of performance that can be achieved by available solid waste
management practices that provide for protection of human health and
the environment.
RCRA section 2002 grants EPA broad authority to prescribe, in
consultation with federal, State, and regional authorities, such
regulations as are necessary to carry out the functions under federal
solid waste disposal laws. (42 U.S.C. 6912(a)).
RCRA section 3001(b) requires EPA to list particular wastes that
will be subject to the requirements established under subtitle C. (42
U.S.C. 6921(b)). The regulation listing such wastes must be based on
the listing criteria established pursuant to section 3001(a), and
codified at 40 CFR 261.11.
Section 3001(b)(3)(A) of RCRA established a temporary exemption for
fly ash waste, bottom ash waste, slag waste, and flue gas emission
control waste generated primarily from the combustion of coal or other
fossil fuels, among others, and required the Agency to conduct a study
of those wastes and, after public hearings and an opportunity for
comment, determine whether these wastes should be regulated pursuant to
subtitle C requirements (42 U.S.C. 6921 (b)(3)(A)).
Section 3004 of RCRA generally requires EPA to establish standards
applicable to the treatment, storage, and disposal of hazardous waste
to ensure that human health and the environment are protected. 42
U.S.C. 6924. Sections
[[Page 35135]]
3004(c) and (d) prohibit free liquids in hazardous waste landfills.
Sections 3004(g) and (m) prohibit land disposal of hazardous wastes,
unless, before disposal, those wastes meet treatment standards
established by EPA that will ``substantially diminish the toxicity of
the waste or substantially reduce the likelihood of migration of
hazardous constituents from the waste so that short-term and long-term
threats are minimized.'' (42 U.S.C. 6924(c), (d), (g), and (m)).
RCRA section 3004(x) allows the Administrator to tailor certain
specified requirements for particular categories of wastes, including
those that are the subject of today's proposal, namely ``fly ash waste,
bottom ash waste, and flue gas emission control wastes generated
primarily from the combustion of coal or other fossil fuels'' (42
U.S.C. 6924(x)). EPA is authorized to modify the requirements of
sections 3004 (c), (d), (e), (f), (g), (o), and (u), and section
3005(j), to take into account the special characteristics of the
wastes, the practical difficulties associated with implementation of
such requirements, and site-specific characteristics, including but not
limited to the climate, geology, hydrology and soil chemistry at the
site. EPA may only make such modifications, provided the modified
requirements assure protection of human health and the environment. (42
U.S.C. 6924(x)).
RCRA section 3005 generally requires any facility that treats,
stores, or disposes of wastes identified or listed under subtitle C, to
have a permit. 42 U.S.C. 6925(a). This section also generally imposes
requirements on facilities that become newly subject to the permitting
requirements as a result of regulatory changes, and so can continue to
operate for a period until they obtain a permit--i.e., ``interim status
facilities.'' 42 U.S.C. 6925(e), (i), (j). Congress imposed special
requirements on interim status surface impoundments in section 3005(j).
In order to continue receiving wastes, interim status surface
impoundments are generally required to retrofit the impoundment within
4 years, to install a double liner, with a leachate collection system,
and groundwater monitoring. 42 U.S.C. 6925(j)(6). In addition, wastes
disposed into interim status surface impoundments must meet the land
disposal restrictions in EPA's regulations, or the unit must be
annually dredged. 42 U.S.C. 6925(j)(11).
RCRA Section 4004 generally requires EPA to promulgate regulations
containing criteria for determining which facilities shall be
classified as sanitary landfills (and not open dumps) so that there is
no reasonable probability of adverse effects on health or the
environment from disposal of solid wastes at such facilities.
C. Regulation of Wastes Under RCRA Subtitle C
Solid wastes may become subject to regulation under subtitle C of
RCRA in one of two ways. A waste may be subject to regulation if it
exhibits certain hazardous properties, called ``characteristics,'' or
if EPA has specifically listed the waste as hazardous. See 42 U.S.C.
6921(a). EPA's regulations in the Code of Federal Regulations (40 CFR)
define four hazardous waste characteristic properties: Ignitability,
corrosivity, reactivity, or toxicity (See 40 CFR 261.21-261.24). All
generators must determine whether or not a waste exhibits any of these
characteristics by testing the waste, or by using knowledge of the
process that generated the waste (see Sec. 262.11(c)). While not
required to sample the waste, generators will be subject to enforcement
actions if found to be improperly managing wastes that exhibit one or
more of the characteristics.
EPA may also conduct a more specific assessment of a waste or
category of wastes and ``list'' them if they meet the criteria set out
in 40 CFR 261.11. Under the third criterion, at 40 CFR 261.11(a)(3), a
waste will be listed if it contains hazardous constituents identified
in 40 CFR part 261, Appendix VIII, and if, after considering the
factors noted in this section of the regulations, we ``conclude that
the waste is capable of posing a substantial present or potential
hazard to human health or the environment when improperly treated,
stored, transported, or disposed of, or otherwise managed.'' We place a
chemical on the list of hazardous constituents on Appendix VIII only if
scientific studies have shown a chemical has toxic effects on humans or
other life forms. When listing a waste, we also add the hazardous
constituents that serve as the basis for listing the waste to 40 CFR
part 261, Appendix VII.
The regulations at 40 CFR 261.31 through 261.33 contain the various
hazardous wastes that EPA has listed to date. Section 261.31 lists
wastes generated from non-specific sources, known as ``F-wastes,'' that
are usually generated by various industries or types of facilities,
such as ``wastewater treatment sludges from electroplating operations''
(see EPA Hazardous Waste No. F006). Section 261.32 lists wastes
generated from specific industry sources, known as ``K-wastes,'' such
as ``Spent potliners from primary aluminum production'' (see EPA
Hazardous Waste No. K088). Section 261.33 contains lists of commercial
chemical products and other materials, known as ``P-wastes'' or ``U-
wastes,'' that become hazardous wastes when they are discarded or
intended to be discarded.
As discussed in greater detail later in this proposal, EPA is
considering whether to codify a listing of CCRs that are disposed of in
landfills or surface impoundments, in a new section of the regulations,
as ``Special Wastes.'' EPA is considering creating this new category of
wastes, in part, to reflect the fact that these wastes would be subject
to modified regulatory requirements using the authority provided under
section 3004(x) of RCRA (e.g., the modified 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).
If a waste exhibits a hazardous characteristic or is listed under
subtitle C, then it is subject to the requirements of RCRA subtitle C,
and the implementing regulations found in 40 CFR parts 260 through 268,
parts 270 to 279, and part 124. These requirements apply to persons who
generate, transport, treat, store or dispose of such waste and
establish rules governing every phase of the waste's management from
its generation to its final disposition and beyond. Facilities that
treat, store or dispose of hazardous wastes require a permit which
incorporates all of the design and operating standards established by
EPA rules, including standards for piles, landfills, and surface
impoundments. Under RCRA subtitle C requirements, land disposal of
hazardous waste is prohibited unless the waste is first treated to meet
the treatment standards (or meets the treatment standards as generated)
established by EPA that minimize threats to human health and the
environment posed by the land disposal of the waste, or unless the
waste is disposed in a unit from which there will be no migration of
hazardous constituents for as long as the waste remains hazardous. In
addition, RCRA subtitle C facilities are required to clean up any
releases of hazardous waste or constituents from solid waste management
units at the facility, as well as beyond the facility boundary, as
necessary to protect human health and the environment. RCRA subtitle C
also requires that permitted facilities demonstrate that they have
adequate financial resources (i.e., financial assurance) for
obligations, such as closure, post-closure care, necessary
[[Page 35136]]
clean up, and any liability from facility operations.
The RCRA subtitle C requirements are generally implemented under
state programs that EPA has authorized to operate in lieu of the
federal program, based upon a determination that the state program is
no less stringent than the federal program. In a state that operates
under an authorized program, any revisions made to EPA requirements are
generally effective as part of the federal RCRA program in that state
only after the state adopts the revised requirement, and EPA authorizes
the state requirement. The exception applies with respect to
requirements implementing statutory provisions added to subtitle C by
the 1984 Hazardous and Solid Waste Amendments to RCRA; such
requirements are immediately effective in all states, and are enforced
by EPA.
All RCRA hazardous wastes are also hazardous substances under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), as defined in section 101(14)(C) of the CERCLA statute. This
applies to wastes listed in Sec. Sec. 261.31 through 261.33, as well
as any wastes that exhibits a RCRA hazardous characteristic. Table
302.4 at 40 CFR 302.4 lists the CERCLA hazardous substances along with
their reportable quantities (RQs). Anyone spilling or releasing a
hazardous substance at or above its RQ must report the release to the
National Response Center, as required in CERCLA Section 103. In
addition, Section 304 of the Emergency Planning and Community Right-to-
Know Act (EPCRA) requires facilities to report the release of a CERCLA
hazardous substance at or above its RQ to State and local authorities.
Today's rule proposes an approach for estimating whether released CCRs
exceed an RQ. Wastes listed as special wastes will generally be subject
to the same requirements under RCRA subtitle C and CERCLA as are
hazardous wastes, although as discussed elsewhere in this preamble, EPA
is proposing to revise certain requirements under the authority of
section 3004(x) of RCRA to account for the large volumes and unique
characteristics of these wastes.
D. Regulation of Solid Wastes Under RCRA Subtitle D
Solid wastes that are neither a listed and/or 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 in this arrangement is to
establish the overall regulatory direction, by providing minimum
nationwide standards for protecting human health and the environment,
and to providing technical assistance to states for planning and
developing their own environmentally sound waste management practices.
The actual planning and direct implementation of solid waste programs
under RCRA subtitle D, however, remains a state and local function, and
the act authorizes States to devise programs to deal with State-
specific conditions and needs. That is, EPA has no role in the planning
and direct implementation of solid waste programs under RCRA subtitle
D.
Under the authority of sections 1008(a)(3) and 4004(a) of subtitle
D of RCRA, EPA first promulgated the Criteria for Classification of
Solid Waste Disposal Facilities and Practices (40 CFR part 257) on
September 13, 1979. These subtitle D Criteria establish minimum
national performance standards necessary to ensure that ``no reasonable
probability of adverse effects on health or the environment'' will
result from solid waste disposal facilities or practices. Practices not
complying with the criteria constitute ``open dumping'' for purposes of
the Federal prohibition on open dumping in section 4005(a). EPA does
not have the authority to enforce the prohibition directly (except in
situations involving the disposal or handling of sludge from publicly-
owned treatment works, where Federal enforcement of POTW sludge-
handling facilities is authorized under the CWA). States and citizens
may enforce the prohibition on open dumping using the authority under
RCRA section 7002. EPA, however, may act only if the handling, storage,
treatment, transportation, or disposal of such wastes may present an
imminent and substantial endangerment to health or the environment
(RCRA 7003). In addition, the prohibition may be enforced by States and
other persons under section 7002 of RCRA.
In contrast to subtitle C, RCRA subtitle D requirements relate only
to the disposal of the solid waste, and EPA does not have the authority
to establish requirements governing the generation, transportation,
storage, or treatment of such wastes prior to disposal. Moreover, EPA
would not have administrative enforcement authority to enforce any RCRA
subtitle D criteria for CCR facilities, authority to require states to
issue permits for them or oversee those permits, nor authority for EPA
to determine whether any state permitting program for CCR facilities is
adequate. Subtitle D of RCRA also provides less extensive authority to
establish requirements relating to the cleanup (or corrective action)
and financial assurance at solid waste facilities.
EPA regulations affecting RCRA subtitle D facilities are found at
40 CFR parts 240 through 247, and 255 through 258. The existing part
257 criteria include general environmental performance standards
addressing eight major topics: Floodplains (Sec. 257.3-1), endangered
species (Sec. 257.3-2), surface water (Sec. 257.3-3), ground water
(Sec. 257.3-4), land application (Sec. 257.35), disease (Sec. 257.3-
6), air (Sec. 257.3-7), and safety (Sec. 257.3-8). EPA has also
established regulations for RCRA subtitle D landfills that accept
conditionally exempt small quantity generator hazardous wastes, and
household hazardous wastes (i.e., ``municipal solid waste'') at 40 CFR
Part 258, but these are of limited relevance to CCRs, which fall into
neither category of wastes.
E. Summary of the 1993 and 2000 Regulatory Determinations
Section 3001(b)(3)(A)(i) of RCRA (known as the Bevill exclusion or
exemption) excluded certain large-volume wastes generated primarily
from the combustion of coal or other fossil fuels from being regulated
as hazardous waste under subtitle C of RCRA, pending completion of a
Report to Congress required by Section 8002(n) of RCRA and a
determination by the EPA Administrator either to promulgate regulations
under RCRA subtitle C or to determine that such regulations are
unwarranted.
In 1988, EPA published a Report to Congress on Wastes from the
Combustion of Coal by Electric Utility Power Plants (EPA, 1988). The
report, however, did not address co-managed utility CCRs, other fossil
fuel wastes that are generated by utilities, and wastes from non-
utility boilers burning any type of fossil fuel. Further, because of
other priorities, EPA did not complete its Regulatory Determination on
fossil fuel combustion (FFC) wastes at that time.
In 1991, a suit was filed against EPA for failure to complete a
Regulatory Determination on FFC wastes (Gearhart v. Reilly Civil No.
91-2345 (D.D.C.), and on June 30, 1992, the Agency entered into a
Consent Decree that established a schedule for EPA to complete the
Regulatory Determinations for all FFC wastes. Specifically, FFC wastes
were divided into two categories: (1) Fly ash, bottom ash, boiler slag,
and flue gas emission control waste from the combustion of coal by
electric utilities and independent commercial power
[[Page 35137]]
producers, and (2) all remaining wastes subject to RCRA Sections
3001(b)(3)(A)(i) and 8002(n)--that is, large volume coal combustion
wastes generated at electric utility and independent power producing
facilities that are co-managed together with certain other coal
combustion wastes; coal combustion wastes generated at non-utilities;
coal combustion wastes generated at facilities with fluidized bed
combustion technology; petroleum coke combustion wastes; wastes from
the combustion of mixtures of coal and other fuels (i.e., co-burning of
coal with other fuels where coal is at least 50% of the total fuel);
wastes from the combustion of oil; and wastes from the combustion of
natural gas.
On August 9, 1993, EPA published its Regulatory Determination for
the first category of wastes (58 FR 42466, http://www.epa.gov/epawaste/nonhaz/industrial/special/mineral/080993.pdf), concluding that
regulation under subtitle C of RCRA for these wastes was not warranted.
To make an appropriate determination for the second category, or
``remaining wastes,'' EPA concluded that additional study was
necessary. Under the court-ordered deadlines, the Agency was required
to complete a Report to Congress by March 31, 1999, and issue a
Regulatory Determination by October 1, 1999.
In keeping with its court-ordered schedule, and pursuant to the
requirements of Section 3001(b)(3)(A)(i) and Section 8002(n) of RCRA,
EPA prepared a Report to Congress on the remaining FFC wastes in March
1999 (http://www.epa.gov/epaoswer/other/fossil/volume_2.pdf). The
report addresses the eight study factors required by Section 8002(n) of
RCRA for FFC wastes (see discussion in section IV. B).
On May 22, 2000, EPA published its Regulatory Determination on
wastes from the combustion of fossil fuels for the remaining wastes (65
FR 32214, http://www.epa.gov/fedrgstr/EPA-WASTE/2000/May/Day-22/f11138.htm). In its Regulatory Determination, EPA concluded that the
remaining wastes were largely identical to the high-volume monofilled
wastes, which remained exempt based on the 1993 Regulatory
Determination. The high volume wastes simply dominate the waste
characteristics even when co-managed with other wastes, and thus the
May 2000 Regulatory Determination addressed not only the remaining
wastes, but effectively reopened the decision on CCRs that went to
monofills.
EPA concluded that these wastes could pose significant risks if not
properly managed, although the risk information was limited. EPA
identified and discussed a number of documented proven damage cases, as
well as cases indicating at least a potential for damage to human
health and the environment, but did not rely on its quantitative
groundwater risk assessment, as EPA concluded that it was not
sufficiently reliable. However, EPA concluded that significant
improvements were being made in waste management practices due to
increasing state oversight, although gaps remained in the current
regulatory regime. On this basis, the Agency concluded to retain the
Bevill exemption, and stated we would issue a regulation under subtitle
D of RCRA, establishing minimum national standards. Those subtitle D
standards have not yet been issued. (Today's proposal could result in
the development of the subtitle D standards consistent with the May
2000 Regulatory Determination, or with a revision of the determination,
or the issuance of subtitle C standards under RCRA.)
EPA also explicitly stated in the May 2000 Regulatory Determination
that the Agency would continue to review the issues, and would
reconsider its decision that subtitle C regulations were unwarranted
based on a number of factors. EPA noted that its ongoing review would
include (1) ``the extent to which [the wastes] have caused damage to
human health or the environment;'' (2) the adequacy of existing
regulation of the wastes; (3) the results of an NAS report regarding
the adverse human health effects of mercury; \4\ and (4) ``risk posed
by managing coal combustion solid wastes if levels of mercury or other
hazardous constituents change due to any future Clean Air Act air
pollution control requirements for coal burning utilities'' and that
these efforts could result in a subsequent revision to the Regulatory
Determination. For a further discussion of the basis for the Agency's
determination, see section IV below.
---------------------------------------------------------------------------
\4\ Toxicological Effects of Methylmercury, National Academy of
Sciences, July 2000 (http://books.nap.edu/catalog.php?record_id=9899#toc). EPA has not taken any actions regarding the May 2000
Regulatory Determination as a result of the NAS report.
---------------------------------------------------------------------------
F. What are CCRs?
CCRs are residuals from the combustion of coal. For purposes of
this proposal, CCRs are fly ash, bottom ash, boiler slag (all composed
predominantly of silica and aluminosilicates), and flue gas
desulfurization materials (predominantly Ca-SOX compounds) that were
generated from processes intended to generate power.
Fly ash is a product of burning finely ground coal in a boiler to
produce electricity. Fly ash is removed from the plant exhaust gases
primarily by electrostatic precipitators or baghouses and secondarily
by wet scrubber systems. Physically, fly ash is a very fine, powdery
material, composed mostly of silica. Nearly all particles are spherical
in shape.
Bottom ash is comprised of agglomerated coal ash particles that are
too large to be carried in the flue gas. Bottom ash is formed in
pulverized coal furnaces and is collected by impinging on the furnace
walls or falling through open grates to an ash hopper at the bottom of
the furnace. Physically, bottom ash is coarse, with grain sizes
spanning from fine sand to fine gravel, typically grey to black in
color, and is quite angular with a porous surface structure.
Boiler slag is the molten bottom ash collected at the base of slag
tap and cyclone type furnaces that is quenched with water. When the
molten slag comes in contact with the quenching water, it fractures,
crystallizes, and forms pellets. This boiler slag material is made up
of hard, black, angular particles that have a smooth, glassy
appearance.
Flue Gas Desulfurization (FGD) material is produced through a
process used to reduce sulfur dioxide (SO2) emissions from
the exhaust gas system of a coal-fired boiler. The physical nature of
these materials varies from a wet sludge to a dry powdered material,
depending on the process. The wet sludge generated from the wet
scrubbing process using a lime-based reagent is predominantly calcium
sulfite, while the wet sludge generated from the wet scrubbing process
using a limestone-based reagent is predominantly calcium sulfate. The
dry powdered material from dry scrubbers that is captured in a baghouse
consists of a mixture of sulfites and sulfates.
CCRs are managed in either wet or dry disposal systems. In wet
systems, materials are generally sluiced via pipe to a surface
impoundment. The material can be generated wet, such as FGD, or
generated dry and water added to facilitate transport (i.e. sluiced)
through pipes. In dry systems, CCRs are transported in its dry form to
landfills for disposal.
1. Chemical Constituents in CCRs
The chemical characteristics of CCRs depend on the type and source
of coal, the combustion technology, and the pollution control
technology employed. For the 1999 Report to Congress and the May 2000
Regulatory Determination, EPA developed an extensive database
[[Page 35138]]
on the leaching potential of CCR constituents using the toxicity
characteristic leaching procedure (TCLP) from a number of sources. More
recent data on the composition of CCRs, including their leaching
potential, have been collected and are discussed in the next sub-
section. The CCR constituent database (available in the docket to this
proposal) contains data on more than 40 constituents. Table 2 presents
the median compositions of trace element TCLP leachates of each of the
main four types of large volume CCRs (fly ash, bottom ash, boiler slag,
and FGD gypsum). (Additional information, including the range of TCLP
values, is available in the docket or on-line in the documents
identified in the footnotes to the following table.)
Table 2--TCLP Median Compositions of Coal-Fired Utility Large-Volume CCRs \5\ (mg/l)
----------------------------------------------------------------------------------------------------------------
Constituent Fly ash Bottom ash Boiler slag FGD
----------------------------------------------------------------------------------------------------------------
As.............................................. 0.066 0.002 0.002 0.290
Ba.............................................. 0.289 0.290 0.260 0.532
B............................................... 0.933 0.163 n/a --
Cd.............................................. 0.012 0.005 0.0018 0.010
Cr\VI\.......................................... 0.203 0.010 0.003 0.120
Cu.............................................. n/a n/a 0.050 n/a
Pb.............................................. 0.025 0.005 0.0025 0.120
Hg.............................................. 0.0001 0.0001 0.0002 0.0001
Se.............................................. 0.020 0.0013 0.0025 0.280
Ag.............................................. 0.005 0.0050 0.0001 0.060
V............................................... 0.111 0.0050 0.010 --
Zn.............................................. 0.285 0.015 0.075 --
----------------------------------------------------------------------------------------------------------------
n/a = data not available.
-- = too few data points to calculate statistics.
Source: Data from supporting documentation to the 1993 Regulatory Determination; values below the detection
limit were treated as one-half the detection limit.
The composition of FGD gypsum depends on the position within the
air emissions control system where the SO2 component is
subject to scrubbing: If scrubbing takes place up stream of the removal
of fly ash particulates, the FGD would actually comprise a mix of both
components. Table 3 presents mean TCLP trace element compositions of
FGD gypsum generated by a scrubbing operation that is located down
stream from the particulate collection elements of the air emissions
control system; it therefore represents an `end member' FGD gypsum.
---------------------------------------------------------------------------
\5\ Compiled from Tables 3-1, 3-3, 3-5 and 3-7, in: Technical
Background Document for the Report to Congress on Remaining Wastes
from Fossil Fuel Combustion: Waste Characteristics, March 15, 1999
(http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ffc2_399.pdf).
Table 3--FGD Gypsum TCLP Compositions (mg/l) From: (1) Two Ohio Power Plants *\6\ (Mean Data); (2) 12 Samples of
Commercial Wallboard Produced From Synthetic Gypsum **\7\(Median Data)
----------------------------------------------------------------------------------------------------------------
Bruce Mansfield Synthetic Gypsum
Constituent Cardinal Plant * Plant * **
----------------------------------------------------------------------------------------------------------------
As........................................................ <0.006 0.0075 0.00235
Ba........................................................ 0.373 0.270 0.043
B......................................................... 0.137 0.0255 n/a
Cd........................................................ 0.00167 0.00055 0.00145
Cr........................................................ 0.00587 0.00575 0.0047
Cu........................................................ <0.001 <0.001 n/a
Pb........................................................ <0.003 <0.003 0.0006
Hg........................................................ 1.8x10-5 2.6x10-6 <0.0003
Se........................................................ 0.0123 <0.011 0.044
V......................................................... <0.001 0.002 n/a
Zn........................................................ 0.170 0.0560 n/a
Ag........................................................ n/a n/a <0.00005
----------------------------------------------------------------------------------------------------------------
n/a = data not available.
The contaminants of most environmental concern in CCRs are
antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury,
nickel, selenium, silver and thallium. Although these metals rarely
exceed the RCRA hazardous waste toxicity characteristic (TC), because
of the mobility of metals and the large size of typical disposal units,
metals (especially arsenic) have leached at levels of concern from
unlined landfills and surface impoundments. In addition, it should also
be noted that since the Agency announced its May 2000 Regulatory
Determination, EPA has revised the maximum contaminant level (MCL) for
arsenic,\8\ without a corresponding revision of the TC. As a result,
while arsenic levels are typically well below the TC, drinking water
risks from contaminated groundwater due to releases from landfills and
impoundments may still be high. Also, as discussed below, a
considerable body of evidence has emerged indicating that the TCLP
alone is not a good predictor
[[Page 35139]]
of the mobility of metals in CCRs under a variety of different
conditions. This issue is further discussed in the following
subsection.
---------------------------------------------------------------------------
\6\ Compiled from: Table 3-5, in: An Evaluation of Flue Gas
Desulfurization Gypsum for Abandoned Mine Land Reclamation, Rachael
A. Pasini, Thesis, The Ohio State University, 2009.
\7\ Compiled from: Table 10, in: Fate of Mercury in Synthetic
Gypsum Used for Wallboard Production, J. Sanderson et al., USG
Corporation, Final Report prepared for NETL, June 2008.
\8\ See http://www.epa.gov/safewater/arsenic/regulations.html.
---------------------------------------------------------------------------
From Tables 2 and 3 above, it is evident that each of the main four
types of CCRs, when subjected to a TCLP leach test, yields a different
amount of trace element constituents. EPA is soliciting public comments
on whether, in light of these differences in the mobility of hazardous
metals between the four major types of CCRs, regulatory oversight
should be equally applied to each of these CCR types when destined for
disposal.
2. Recent EPA Research on Constituent Leaching From CCRs
Changes to fly ash and other CCRs are expected to occur as a result
of increased use and application of advanced air pollution control
technologies in coal-fired power plants. These technologies include
flue gas desulfurization (FGD) systems for SO2 control,
selective catalytic reduction (SCR) systems for NOX control,
and activated carbon injection systems for mercury control. These
technologies are being installed or are expected to be installed in
response to federal regulations, state regulations, legal consent
decrees, and voluntary actions taken by industry to adopt more
stringent air pollution controls. Use of more advanced air pollution
control technology reduces air emissions of metals and other pollutants
in the flue gas of a coal-fired power plant by capturing and
transferring the pollutants to the fly ash and other air pollution
control residues. The impact of changes in air pollution control on the
characteristics of CCRs and the leaching potential of metals is the
focus of ongoing research by EPA's Office of Research and Development
(ORD). This research is being conducted to identify any potential
cross-media transfers of mercury and other metals and to meet EPA's
commitment in the Mercury Roadmap (http://www.epa.gov/hg/roadmap.htm)
to report on the fate of mercury and other metals from implementation
of multi-pollutant control at coal-fired power plants.
Over the last few years, in cooperation with Electric Power
Research Institute (EPRI) and the utility industry, EPA obtained 73
different CCRs from 31 coal-fired boilers spanning a range of coal
types and air pollution control configurations. Samples of CCRs were
collected to evaluate differences in air pollution control, such as
addition of post-combustion NOX controls (i.e., selective
catalytic reduction), FGD scrubbers, and enhanced sorbents for mercury
capture. A series of reports have been developed to document the
results from the ORD research: The first report (Characterization of
Mercury-Enriched Coal Combustion Residuals from Electric Utilities
Using Enhanced Sorbents for Mercury Control, EPA-600/R-06/008, February
2006; http://www.epa.gov/ORD/NRMRL/pubs/600r06008/600r06008.pdf) was
developed to document changes in fly ash resulting from the addition of
sorbents for enhanced mercury capture. The second report
(Characterization of Coal Combustion Residuals from Electric Utilities
Using Wet Scrubbers for Multi-Pollutant Control; EPA-600/R-08/077, July
2008, http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf) was
developed to evaluate residues from the expanded use of wet scrubbers.
The third report (Characterization of Coal Combustion Residues from
Electric Utilities--Leaching and Characterization Data, EPA-600/R-09/
151, December 2009, http://www.epa.gov/nrmrl/pubs/600r09151/600r09151.html) updates the data in the earlier reports and provides
data on an additional 40 samples to cover the range of coal types and
air pollution control configurations, including some not covered in the
two previous reports.
Data from these studies is being used to identify potential trends
in the composition and leaching behavior of CCRs resulting from changes
in air pollution controls. Summary data on the higher volume CCRs is
provided for 34 fly ashes (Table 4) and 20 FGD gypsum samples (Table
5). The report provides analysis of other types of CCRs (i.e., non-
gypsum scrubber residues (primarily scrubber sludge containing calcium
sulfite), blended CCRs (non-gypsum scrubber residues, fly ash, and
lime), and wastewater treatment filter cake). For each of the metals
that are reported (Sb, As, Ba, B, Cd Cr, Co, Hg, Pb, Mo, Se, and Tl)
from the leaching test results, ``box and whisker'' plots have been
developed comparing the different materials and providing comparison to
field leachate data.
The purpose of this research was to try to understand how power
plant air pollution control residues, and their leaching potential, are
likely to change with the increased use of multi-pollutant and mercury
controls, anticipated in response to new Clean Air Act regulations. An
initial focus was to identify appropriate leach testing methods to
assess leaching potential under known or expected CCR management
conditions (beneficial use or disposal). The EPA's Science Advisory
Board and the National Academy of Sciences have in the past raised
concerns over the use of single-point pH tests that do not reflect the
range of actual conditions under which wastes are plausibly managed.\9\
Because metal leaching rates change with changing environmental
conditions (especially pH), single point tests may not be the most
accurate predictor of potential environmental release of mercury or
other metals because they do not provide estimates of leaching under
some disposal or reuse conditions that can plausibly occur.
---------------------------------------------------------------------------
\9\ National Academy of Sciences, Managing Coal Combustion
Residues in Mines; The National Academies Press, Washington, DC,
2006.
---------------------------------------------------------------------------
In response to these concerns, a review of available leaching test
methods was conducted. A leaching test method \10\ based on research
conducted at Vanderbilt University in the United States and the Energy
Research Center of the Netherlands, among others, was selected to
address some of these concerns.
---------------------------------------------------------------------------
\10\ Kosson, D.S.; Van Der Sloot, H.A.; Sanchez, F.;
Garrabrants, A.C., An Integrated Framework for Evaluating Leaching
in Waste Management and Utilization of Secondary Materials.
Environmental Engineering Science 2002, 19, 159-204.
---------------------------------------------------------------------------
While EPA/ORD's research relied on the Vanderbilt method, similar
methods (i.e, tests evaluating leaching at different plausible disposal
pH values) have been used to evaluate the leaching behavior and support
hazardous waste listings of other materials as well.\11\ Because of
their general utility, the research methods have been drafted into the
appropriate format and are being evaluated for inclusion in EPA's waste
analytical methods guidance, SW-846 \12\
[[Page 35140]]
to facilitate their routine use for evaluating other wastes or reuse
materials (http://www.epa.gov/osw/hazard/testmethods/sw846/index.htm).
---------------------------------------------------------------------------
\11\ See 65 FR 67100 (November 8, 2000) for a discussion of
EPA's use of multi-pH leach testing in support of listing a mercury-
bearing sludge from VCM-A production, and EPA/600/R-02/019,
September 2001, Stabilization and Testing of Mercury Containing
Wastes: Borden Catalyst.
\12\ Five different methods have been developed for use
depending upon the information needed and the waste form.
1. Draft Method 1313--Liquid-Solid Partitioning as a Function of
Eluate pH using a Parallel Batch Extraction Test
2. Draft Method 1314--Liquid-Solid Partitioning as a Function of
Liquid-Solid Ratio Using an Up-flow Column Test
3. Draft Method 1315--Mass Transfer in Monolithic or Compacted
Granular Materials Using a Semi-dynamic Tank Leach Test
4. Draft Method 1316--Liquid-Solid Partitioning as a Function of
Liquid-Solid Ratio Using a Parallel Batch Test
5. Draft Method 1317--Concise Test for Determining Consistency
in Leaching Behavior
The test methods were developed to identify differences in the
constituent leaching rate resulting from the form of the tested
material, as well as the effects of pH and the liquid/solid ratio.
Fine grained materials (e.g., particle sizes of 2 mm or less) will
have greater contact with leaching solutions (in a lab test) or
rainfall (in the environment) than will solid materials such as
concrete or CCRs that are pozzolanic when exposed to water. In
applying these methods to CCRs or other materials, batch tests that
are designed to reach equilibrium are used with fine-grained or
particle-size reduced materials. For solid materials, the tests were
designed to evaluate constituent leaching from the exposed surface
(leaching of constituents that are either at the surface, or that
have migrated over time to the surface), can be used. Testing at
equilibrium provides an upper bound estimate of constituent leaching
at each set of conditions tested. In some instances, these results
may represent the real situation, since when rainfall percolation
through a material in the environment is slow, the constituent
concentration in the water passing through the materials may reach,
or nearly reach equilibrium. Testing of solid (or ``monolithic'')
materials evaluates constituent leaching from materials of low
permeability for which most rainfall flows around the material
rather than percolating through it. This results in less contact
between the rainfall and the material, and so typically, a lower
rate of constituent leaching. For monolithic materials, both the
equilibrium and monolith tests are conducted to understand the
likely initial rates of leaching from the monolith (while it remains
solid), and the upper bound on likely leaching, when the monolith
degrades over time, exposing more surface area to percolating
rainwater, and typically, higher constituent leaching rates. It may
also be possible to avoid the cost of testing solid, monolithic
materials, if the material leaches at low constituent concentrations
under the equilibrium testing conditions.
---------------------------------------------------------------------------
For the ORD research, equilibrium batch test methods that identify
changes in leaching at different pH and liquid/solid ratio values were
used to evaluate CCRs resulting from different air pollution controls
at coal-fired power plants. This allowed evaluation of leaching
potential over a range of field conditions under which CCRs are
anticipated to be managed during either disposal or beneficial use
applications. Landfill field leachate data from EPA \13\ and EPRI \14\
studies were used to establish the range of pH conditions expected to
be found in actual disposal. From this data set, and excluding the
extreme values (below 5th percentile and above 95th percentile), a pH
range of 5.4 and 12.4 was determined to represent the range of
plausible management conditions (with regard to pH) for CCRs. This
means that approximately 5% of the values had a pH below 5.4 and
approximately 5% of the values had a pH greater than 12.4. However, it
is important to note that 9 of the 34 fly ash samples generated a pH in
deionized water (i.e., the pH generated by the tested material itself)
below pH 5.4. Therefore, these results might understate CCR leaching
potential if actual field conditions extend beyond the pH range of 5.4
and 12.4.
---------------------------------------------------------------------------
\13\ U.S. EPA (2000) Characterization and evaluation of landfill
leachate, Draft Report. 68-W6-0068, Sept 2000.
\14\ EPRI (2006) Characterization of Field Leachates at Coal
Combustion Product Management Sites: Arsenic, Selenium, Chromium,
and Mercury Speciation, EPRI Report Number 1012578. EPRI, Palo Alto,
CA and U.S. Department of Energy, Pittsburgh, PA.
---------------------------------------------------------------------------
In Tables 4 and 5, the total metals content of the fly ash and FGD
gypsum samples evaluated is provided along with the leach test results.
Reference indicators (i.e., MCL,\15\ TC,\16\ and DWEL \17\) are also
provided to provide some context in understanding the leach results. It
is critical to bear in mind that the leach test results represent a
distribution of potential constituent release from the material as
disposed or used on the land. The data presented do not include any
attempt to estimate the amount of constituent that may reach an aquifer
or drinking water well. Leachate leaving a landfill is invariably
diluted in ground water to some degree when it reaches the water table,
or constituent concentrations are attenuated by sorption and other
chemical reactions in groundwater and sediment. Also, groundwater pH
may be different from the pH at the site of contaminant release, and so
the solubility and mobility of leached contaminants may change when
they reach groundwater. None of these dilution or attenuation processes
is incorporated into the leaching values presented. That is, no
dilution and attenuation factor, or DAF,\18\ has been applied to these
results. Thus, comparisons with regulatory health values, particularly
drinking water values, must be done with caution. Groundwater transport
and fate modeling would be needed to generate an assessment of the
likely risk that may result from the CCRs represented by these data.
---------------------------------------------------------------------------
\15\ MCL is the maximum concentration limit for contaminants in
drinking water.
\16\ TC is the toxicity characteristic and is a threshold for
hazardous waste determinations.
\17\ DWEL is the drinking water equivalent level to be
protective for non-carcinogenic endpoints of toxicity over a
lifetime of exposure. DWEL was developed for chemicals that have a
significant carcinogenic potential and provides the risk manager
with evaluation on non-cancer endpoints, but infers that
carcinogenicity should be considered the toxic effect of greatest
concern (http://www.epa.gov/safewater/pubs/gloss2.html#D).
\18\ For example, EPA used a generic DAF values of 100 in the
Toxicity Characteristic final regulation. (See: 55 FR 11827, March
29, 1990)
---------------------------------------------------------------------------
In reviewing the data and keeping these caveats in mind,
conclusions to date from the research include:
(1) Review of the fly ash and FGD gypsum data (Tables 4 and 5) show
a range of total constituent concentration values that vary over a much
broader range than do the leach data. This much greater range of
leaching values only partially illustrates what more detailed review of
the data shows: That for these CCRs, the rate of constituent release to
the environment is affected by leaching conditions (in some cases
dramatically so), and that leaching evaluation under a single set of
conditions may, to the degree that single point leach tests fail to
consider actual management conditions, lead to inaccurate conclusions
about expected leaching in the field.
(2) Comparison of the ranges of totals values and leachate data
from the complete data set supports earlier conclusions
5119 20 21 that the rate of constituent leaching cannot be
reliably estimated based on total constituent concentration alone.
---------------------------------------------------------------------------
\19\ Senior, C; Thorneloe, S.; Khan, B.; Goss, D. Fate of
Mercury Collected from Air Pollution Control Devices; EM, July 2009,
15-21.
\20\ U.S. EPA, Characterization of Mercury-Enriched Coal
Combustion Residuals from Electric Utilities Using Enhanced Sorbents
for Mercury Control, EPA-600/R-06/008, Feb. 2006; http://www.epa.gov/ORD/NRMRL/pubs/600r06008/600r06008.pdf.
\21\ U.S. EPA, Characterization of Coal Combustion Residuals
from Electric Utilities Using Wet Scrubbers for Multi-Pollutant
Control; EPA-600/R-08/077, July 2008, http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf.
---------------------------------------------------------------------------
(3) From the more complete data in Report 3, distinctive patterns
in leaching behavior have been identified over the range of pH values
that would plausibly be encountered for CCR disposal, depending on the
type of material sampled and the element. This reinforces the above
conclusions based on the summary data.
(4) Based on the data (summarized in Table 4), on the leach results
from evaluation of 34 fly ashes across the plausible management pH
range of 5.4 to 12.4,
[cir] The leach results at the upper end of the leachate
concentration range exceed the TC values for As, Ba, Cr, and Se
(indicated by the shading in the table).
(5) Based on the data (summarized in Table 5), on the leach results
from evaluation of 20 FGD gypsums across the plausible management pH
range of 5.4 to 12.4,
[cir] The leach results at the upper end of the leachate
concentration ranges exceed the TC value for Se.
(6) The variability in total content and the leaching of
constituents within a material type (e.g., fly ash, gypsum) is such
that, while leaching of many samples exceeds one or more of the
available health indicators, many of the other samples within the
material type may be lower than the available regulatory or health
indicators.
[[Page 35141]]
Additional or more refined assessment of the dataset may allow some
distinctions regarding release potential to be made among particular
sources of some CCRs, which may be particularly useful in evaluating
CCRs in reuse applications.
EPA anticipates development of a fourth report that presents such
additional analysis of the leaching data to provide more insight into
constituent release potential for a wider range of CCR management
scenarios, including beneficial use applications. This will include
calculating potential release rates over a specified time for a range
of management scenarios, including use in engineering and commercial
applications using probabilistic assessment modeling (Sanchez and
Kosson, 2005).\22\ This report will be made publicly available when
completed.
---------------------------------------------------------------------------
\22\ Sanchez, F., and D. S. Kosson, 2005. Probabilistic approach
for estimating the release of contaminants under field management
scenarios. Waste Management 25(5), 643-472 (2005).
---------------------------------------------------------------------------
Finally, the Agency recognizes that this research has generated a
substantial amount of data, and believes this data set can be useful as
a reference for assessing additional CCR samples in the future. The
docket for today's rule therefore includes the full dataset, in the
form of a database to provide easier access to EPA's updated leach
data.\23\
---------------------------------------------------------------------------
\23\ The database, called ``Leach XS Lite'' can be used to
estimate the leaching potential of CCRs under any specified set of
pH or infiltration conditions that may occur in the field. While the
database is presented as a ``Beta'' version, and may be further
developed, the data presented in the data base are final data, from
the three EPA research reports cited above.
[GRAPHIC] [TIFF OMITTED] TP21JN10.000
Note: The dark shading is used to indicate where there could be
a potential concern for a metal when comparing the leach results to
the MCL, DWEL, or concentration level used to determine the TC. Note
that MCL and DWEL values are intended to represent concentrations at
a well and the point of exposure; leachate dilution and attenuation
processes that would occur in groundwater before leachate reaches a
well are not accounted for, and so MCL and DWEL values cannot be
---------------------------------------------------------------------------
directly compared with leachate values.
[[Page 35142]]
[GRAPHIC] [TIFF OMITTED] TP21JN10.001
Note: The dark shading is used to indicate where there could be
a potential concern for a metal when comparing the leach results to
the MCL, DWEL, or concentration level used to determine the TC. Note
that MCL and DWEL values are intended to represent concentrations at
a well and the point of exposure; leachate dilution and attenuation
processes that would occur in groundwater before leachate reaches a
well are not accounted for, and so MCL and DWEL values cannot be
directly compared with leachate values.
G. Current Federal Regulations or Standards Applicable to the Placement
of CCRs in Landfills and Surface Impoundments.
CCR disposal operations are typically regulated by state solid
waste management programs, although in some instances, surface
impoundments are regulated under the states water programs. However,
there are limited regulations of CCRs at the federal level.
The discharge of pollutants from CCR management units to waters of
the United States are regulated under the National Pollutant Discharge
Elimination System (NPDES) at 40 CFR Part 122, authorized by the Clean
Water Act (CWA). NPDES permits generally specify an acceptable level of
a pollutant or pollutant parameter in a discharge. NPDES permits ensure
that a state's mandatory standards for clean water and the federal
minimums are being met. A number of the damage cases discussed in the
preamble also involved surface water contamination, which were
violations of the NPDES permit requirements.
II. New Information on the Placement of CCRs in Landfills and Surface
Impoundments
A. New Developments Since the May 2000 Regulatory Determination.
Since publication of the May 2000 Regulatory Determination, new
information and data have become available, including additional damage
cases, risk modeling, updated information on current management
practices and state regulations associated with the disposal of CCRs,
petitions from environmental and citizens groups for EPA to develop
rules for the management of CCRs, an industry voluntary agreement on
how they would manage CCRs, and a proposal from environmental and
citizens groups for a CCR rule. Much of this new information was made
available to the public in August 2007 through a Notice of Data
Availability (NODA) at 72 FR 49714 (http://www.epa.gov/fedrgstr/EPA-WASTE/2007/August/Day-29/f17138.pdf). EPA has received extensive
comments from environmental groups, industry, states and others in
response to the NODA and as we have moved toward rulemaking. All of the
comments and subsequent information we have received are included in
the docket to this proposal. The new information on risks and the
damage cases are discussed briefly below and in more detail in
subsequent sections of this proposed rule; a more detailed discussion
of this new information is discussed in other sections of the preamble.
At the time of the May 2000 Regulatory Determination, the Agency
was aware of 14 cases of proven damages \24\ and 36 cases of potential
damages resulting from the disposal of
[[Page 35143]]
CCRs. The Agency has since learned of an additional 13 cases of proven
damages and 4 cases of potential damages, including a catastrophic
release of CCRs from a disposal unit at the Tennessee Valley Authority
(TVA) Kingston facility in Harriman, Tennessee in December 2008. In
total, EPA has documented 27 cases of proven damages and 40 cases of
potential damages resulting from the disposal of CCRs. Proven damage
cases have been documented in 12 states, and potential damage cases--in
17 states. See section II.C. and the Appendix to this proposal for more
detailed discussions of EPA's CCR damage cases.
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\24\ As discussed later in the preamble, 11 of these documented
cases of damage were to human health and the environment, while four
of these cases were cases of ecological damage, one of which has now
been reclassified as a potential damage case.
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As part of the process for making the May 2000 Regulatory
Determination for CCRs, EPA prepared a draft quantitative risk
assessment. However, because of time constraints, the Agency was unable
to address public comments on the draft risk assessment in time for the
Regulatory Determination. Between 2000 and 2006, EPA addressed the
public comments and updated the quantitative risk assessment for the
management of CCR in landfills and surface impoundments. The revised
risk assessment was made available for public comment in the August
2007 draft report titled ``Human and Ecological Risk Assessment of Coal
Combustion Wastes.''
In the May 2000 Regulatory Determination, the Agency concluded that
the utility industry had made significant improvements in its waste
management practices for new landfills and surface impoundments since
the practices reflected in the 1999 Report to Congress, and that most
state regulatory programs had similarly improved. To verify its
conclusion, in 2005, the U.S. Department of Energy (DOE) and EPA
conducted a joint study to collect more recent information on the
management practices for CCRs by the electric power industry, and state
programs in 11 states. The results of the study were published in the
report titled ``Coal Combustion Waste Management at Landfills and
Surface Impoundments, 1994-2004.'' Additionally, we are aware of at
least one state (Maryland) that has recently amended its regulatory
requirements for the management of CCRs.
In February 2004, 125 environmental and citizens groups petitioned
the EPA Administrator for a rulemaking prohibiting the disposal of coal
power plant wastes into groundwater and surface water until such time
as EPA promulgates federally enforceable regulations pursuant to RCRA.
A copy of the petition is available at http://www.regulations.gov/fdmspublic/component/main?/main=DocumentDetail&o=09000064801cf8d1.
In October 2006, the utility industry through their trade
association, the Utility Solid Waste Activities Group (USWAG) submitted
to EPA a ``Utility Industry Action Plan for the Management of Coal
Combustion Products.'' The plan outlines the utility industry's
commitment to adopt groundwater performance standards and monitoring,
conduct risk assessments prior to placement of CCRs in sand and gravel
pits, and to consider dry-handling prior to constructing new disposal
units.
In January 2007, environmental and citizens groups submitted to EPA
a ``Proposal for the Federal Regulation of Coal Combustion Waste.'' The
proposal provides a framework for comprehensive regulation under
subtitle D of RCRA for waste disposed of in landfills and surface
impoundments generated by coal-fired power plants. Then in July 2009,
environmental and citizens groups filed a second petition requesting
that the EPA Administrator promulgate regulations that designate CCRs
as hazardous waste under subtitle C of RCRA.\25\ In support of their
petition, the environmental groups cited ``numerous reports and data
produced by the Agency since EPA's final Regulatory Determination * * *
which quantify the waste's toxicity, threat to human health and the
environment, inadequate state regulatory programs, and the damage
caused by mismanagement.'' A copy of the petition is available in the
docket to this proposal. The Agency has, as yet, not made a decision as
to whether to lift the Bevill exemption, and, while it has determined
that federal regulation is appropriate, it has not made a determination
as to whether regulations should be promulgated under subtitles C or D
of RCRA. Consequently, EPA is deferring its response to the petitioner.
However, the preamble discusses the issues raised in these petitions at
length. In addition, the Agency is deferring its proposed response to
the petitioners' request regarding the placement of CCRs in minefills
as the Agency will work with OSM to address the management of CCRs in
minefills in a separate rulemaking action. (See discussion in other
parts of the preamble for the Agency's basis for its decisions.)
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\25\ This rulemaking petition was filed by: Earthjustice; the
Sierra Club; the Environmental Integrity Project; the Natural
Resources Defense Council; the Southern Environmental Law Center;
and Kentucky Resources Council.
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In August 2007, EPA published a NODA (72 FR 49714, http://www.epa.gov/fedrgstr/EPA-WASTE/2007/August/Day-29/f17138.htm) which
made public, and sought comment on, the new information we received
since the May 2000 Regulatory Determination through 2007, except for
the July 2009 petition entitled, Petition for Rulemaking Pursuant to
Section 7004(a) of the Resource Conservation and Recovery Act
Concerning the Regulation of Coal Combustion Waste and the Basis for
Reconsideration of the 2000 Regulatory Determination Concerning Wastes
from the Combustion of Fossil Fuels. The new information included the
joint DOE and EPA report entitled: Coal Combustion Waste Management at
Landfills and Surface Impoundments, 1994-2004; the draft risk
assessment; and EPA's damage case assessment. EPA also included in the
docket to the NODA the February 2004 Petition for Rulemaking submitted
by a number of environmental and citizens' groups to prohibit the
placement or disposal of CCRs into ground water and surface water; and
two suggested approaches for managing CCRs in landfills and surface
impoundments. One approach is the Voluntary Action Plan that was
formulated by the electric utility industry. The second approach was
the January 2007 framework prepared by a number of environmental and
citizens' groups proposing federal regulation under subtitle D of RCRA
for CCRs generated by U.S. coal-fired power plants and disposed of in
landfills and surface impoundments. The Agency received a total of 396
comments on the NODA from 375 citizens and citizen and environmental
groups, 16 industry groups, and 5 state and local government
organizations. In general, citizens, citizens groups, and environmental
groups commented that state regulations are inadequate and called on
EPA to develop enforceable regulations for the disposal of CCRs under
the hazardous waste provisions of RCRA. Industry groups, on the other
hand, stated that the significant recent improvement in industry
management and state regulatory oversight of CCR disposal demonstrates
that the conditions that once led EPA to determine that federal
subtitle D regulations were warranted no longer exist and therefore,
further development of subtitle D regulations is no longer necessary.
In September 2008, the Environmental Council of the States (ECOS)
issued a resolution that states already have regulations in place that
apply to CCRs, and a federal regulation is not necessary. The 2008 ECOS
resolution was revised in March 2010 and calls upon EPA to conclude
that
[[Page 35144]]
additional federal CCR regulations would be duplicative of most state
programs, are unnecessary, and should not be adopted, but if adopted
must be developed under RCRA subtitle D rather than RCRA subtitle C
(see http://www.ecos.org/files/4018_file_Resolution_08_14_2010_version.doc). Comments on the NODA are available in the docket to the
NODA at http://www.regulations.gov, docket number EPA-HQ-RCRA-2006-
0796.
Finally, in July and August of 2008, EPA conducted a peer review of
the 2007 draft risk assessment ``Human and Ecological Risk Assessment
of Coal Combustion Wastes.'' The peer review was conducted by a team of
five experts in groundwater modeling, environmental fate and transport
modeling, and human health and ecological risk assessment. EPA has
revised its risk assessment based on the peer review comments. Results
of the peer review and the revised risk assessment are included in the
docket to this proposal. Also, see section II.B. below and the document
titled ``What Are the Environmental and Health Effects Associated with
Disposing of CCRs in Landfills and Surface Impoundments?'' available
from the docket to this notice for more detailed discussions of the
risk assessment.
In summary, since the May 2000 Regulatory Determination, the Agency
has (1) Documented an additional 17 cases of damage from the disposal
of CCRs (13 proven and 3 potential); (2) gathered additional
information on industry practices; (3) revised its risk assessment,
based on comments received on the 1999 Report to Congress, conducted a
peer review of the revised risk assessment, and further revised its
risk assessment based on peer review comments and comments received on
the August 2007 NODA; (4) received a voluntary action plan from the
utility industry; (5) received two petitions for rulemaking from
environmental and citizens groups; and (6) received a proposal for
regulating the management of CCRs in landfills and surface impoundments
from environmental and citizens groups. EPA has considered all of this
information in making the decisions on the proposals in this notice.
B. CCR Risk Assessment
In making the May 2000 Regulatory Determination for CCRs, EPA
prepared a draft quantitative risk assessment based on groundwater
modeling. However, commenters from all sides raised fundamental
scientific questions with the study, and raised issues that went beyond
groundwater modeling capability at the time. EPA was unable to address
these issues in the available time, and therefore did not rely on the
draft risk assessment as part of its basis in making its May 2000
Regulatory Determination; rather we relied on the damage cases
identified, as well as other information. In this regard, it is worth
noting that EPA did not conclude that the available information
regarding the extent or nature of the risks were equivocal. Rather, EPA
noted that we had not definitively assessed the ground water risks, due
to the criticisms of our draft risk assessment, but still concluded
that there were ``risks from arsenic that we cannot dismiss.'' Largely
what drove the risks in the original risk assessment were the old units
that lacked liners and ground water monitoring (for landfills, only 57%
of the units had liners and 85% of the units had ground water
monitoring, while for surface impoundments, only 26% of the units had
liners and only 38% of the units had ground water monitoring).
Between 2000 and 2006, EPA addressed public comments and updated
the quantitative risk assessment for the management of CCRs in
landfills and surface impoundments. The purpose of the risk assessment
is to identify CCR constituents, waste types, liner types, receptors,
and exposure pathways with potential risks and to provide information
that EPA can use as we continue to evaluate the risks posed by CCRs
disposed of in landfills and surface impoundments. The risk assessment
was designed to develop national human and ecological risk estimates
that are representative of onsite CCR management settings throughout
the United States. A revised draft risk assessment was made available
to the public through the August 2007 NODA (which is discussed in other
sections of the preamble) and is available at http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&o=090000648027b9cc.
EPA submitted the revised draft risk assessment report, together
with public comments on the report in response to the 2007 NODA, to a
peer review panel. EPA completed the risk assessment, taking into
account peer review comments, in a final report titled ``Human and
Ecological Risk Assessment of Coal Combustion Wastes,'' (September
2009). The report, peer review comments, and EPA's response to the peer
review comments are available in the docket for this proposal.
For purposes of this rulemaking, EPA defined the target level of
protection for human health to be an incremental lifetime cancer risk
of no greater than one in 100,000 (10-5) for carcinogenic
chemicals and a hazard quotient of 1.0 for noncarcinogenic chemicals.
The hazard quotient is the ratio of an individual's chronic daily dose
of a constituent to the reference dose for that constituent, where the
reference dose is an estimate of the daily dose that is likely to be
without appreciable risk of deleterious effects over a lifetime. These
are the target levels that EPA typically uses in its listing decisions.
(See, for example, the final rule for Nonwastewaters From Productions
of Dyes, Pigments, and Food, Drug, and Cosmetic Colorants (70 FR 9144)
at http://www.epa.gov/wastes/laws-regs/state/revision/frs/fr206.pdf.)
The results of this risk assessment provide further confirmation of
the high risks presented in the mismanagement of CCRs disposed in
landfills and surface impoundments. The assessment does confirm that
there are methods to manage CCRs safely, although it calls into
question the reliability of clay liners, especially in surface
impoundments, and it points to very high potential risks from unlined
surface impoundments.
Specifically, the revised draft CCR risk assessment presents
results at a typical exposure (50th percentile), as well as a high-end
exposure (90th percentile) risk based on a probabilistic analysis. The
revised draft CCR risk assessment results at the 90th percentile
suggest that the management of CCRs in unlined or clay-lined waste
management units (WMUs) result in risks greater than the risk criteria
of 10-5 for excess cancer risk to humans or an HQ greater
than 1 for noncancer effects to both human and ecological receptors
which are the criteria generally used in EPA's listing determination
procedure.\26\ While still above the criteria, clay-lined units tended
to have lower risks than unlined units. However, it was the composite-
lined units that effectively reduced risks from all pathways and
constituents below the risk criteria. More specifically:
---------------------------------------------------------------------------
\26\ EPA's hazardous waste listing determination policy is
described in the notice of proposed rulemaking for wastes from the
dye and pigment industries at 59 FR 66075-66077 available at http://www.epa.gov/fedrgstr/EPA-WASTE/1994/December/Day-22/pr-98.html and
in the final rule for Nonwastewaters From Productions of Dyes,
Pigments, and Food, Drug, and Cosmetic Colorants (70 FR 9144) at
http://www.epa.gov/wastes/laws-regs/state/revision/frs/fr206.pdf.
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[cir] For humans exposed via the groundwater-to-drinking-water
pathway, estimated risks from clay-lined landfills that dispose of CCRs
or
[[Page 35145]]
CCRs co-managed with coal refuse are lower than those for unlined
landfills. However, the 90th percentile risk estimates, for arsenic
that leaks from clay-lined landfills are still above the risk
criteria--as high as 1 in 5,000 individual lifetime excess cancer
risk.\27\ When landfills are unlined, estimated risks above the
criteria occur for antimony and molybdenum, as well as arsenic (as high
as 1 in 2,000 individual lifetime excess cancer risk). In addition to
arsenic, clay-lined fluidized bed combustion (FBC) landfills also
presented estimated 90th percentile risks above the criteria for
antimony. However, unlined FBC landfills differed in that they were
estimated to exceed the risk criteria only for arsenic.\28\ At the 50th
percentile, only trivalent arsenic from CCRs codisposed with coal
refuse was estimated to exceed the risk criteria with cancer risks of 1
in 50,000.
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\27\ Excess cancer risk means risk in addition to pre-existing,
``background'' risk from other exposures.
\28\ Unlined FBC landfills showed less risk as modeled; note
that the number of FBC landfills modeled was very small (seven).
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[cir] Arsenic and cobalt were the constituents with the highest
estimated risks for surface impoundments. Clay-lined surface
impoundments were estimated to present 90th percentile risks above the
criteria for arsenic, boron, cadmium, cobalt, molybdenum, and nitrate.
The 90th percentile clay-lined impoundment estimated risks and hazard
quotients (HQs) were as follows: for arsenic, the estimated risk was as
high as 1 in 140; cobalt's estimated HQ as high as 200, while the
estimated HQs for boron, cadmium, molybdenum and nitrate ranged from 2
to 20. The 90th percentile unlined surface impoundment estimates were
above the criteria for constituents that include arsenic, lead, cobalt
and selenium: estimated arsenic cancer risks are as high as 1 in 50,
and non-cancer effects estimates for cobalt ranged from an estimated HQ
of 0.9 to 500 depending on whether CCRs were co-managed with coal
refuse. At the 50th percentile, the only surface impoundment results
estimated to exceed the risk criteria were arsenic and cobalt: unlined
impoundments had estimated arsenic cancer risks as high as 6 in 10,000,
while clay-lined impoundments had estimated arsenic cancer risks as
high as 1 in 5,000. The 50th percentile noncancer HQs due to cobalt in
drinking water were estimated to be as high as 20 and 6 for unlined and
clay-lined surface impoundments, respectively.
[cir] Composite liners, as modeled in this assessment, effectively
reduce risks from all constituents to below the risk criteria for both
landfills and surface impoundments at the 90th and 50th percentiles.
[cir] The model generally predicts that groundwater risks will
occur centuries later for landfills than for surface impoundments. For
the groundwater-to-drinking water pathway for unlined landfills,
arrival times of the peak concentrations at a receptor well peaked in
the hundreds or thousands of years, while unlined surface impoundment
risks typically peaked within the first 100 years. Clay liners resulted
in later arrival of peak risks, nearly always in the thousands of years
for landfills but still in the first few hundred years for surface
impoundments. Finally, while composite liners often resulted in a
failure of the plume to reach groundwater wells, composite-lined
landfills with plumes that were estimated to reach groundwater wells
eventually had peak arsenic-in-groundwater concentrations at
approximately 10,000 years, while composite-lined surface impoundments'
plumes peaked in the thousands of years.
[cir] For humans exposed via the groundwater-to-surface-water (fish
consumption) pathway, unlined and clay-lined surface impoundments were
estimated to pose risks above the criteria at the 90th percentile. For
CCRs managed alone in surface impoundments, these exceedances came from
selenium (estimated HQs of 3 and 2 for unlined and clay-lined units,
respectively). For CCRs co-managed with coal refuse, these exceedences
came from arsenic (3 in 100,000 and 2 in 100,000 estimated excess
cancer risks for unlined and clay-lined units, respectively). All 50th
percentile surface impoundment risks are estimated to be below the risk
criteria. No constituents pose estimated risks above the risk criteria
for landfills (including FBC landfills) at the 90th or 50th percentile.
[cir] EPA also conducted a separate draft fugitive dust screening
assessment which indicates that, without fugitive dust controls, there
could be exceedances of the National Ambient Air Quality Standards for
fine particulate matter in the air at residences near CCR
landfills.\29\ The 1998 risk assessment \30\ also showed risks from
inhalation of chromium in fugitive dust but at levels below the
criteria.\31\
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\29\ EPA's decision to address fugitive dust was based on a peer
review comment to the draft Risk Assessment, stakeholder NODA
comments, photographic documentation of fugitive dust associated
with the hauling and disposal of CCRs, Agency efforts to control
fugitive dust emissions from the TVA Kingston spill (see e.g.,
http://www.epakingstontva.com/EPA%20Air%20Audits%20and%20Reviews/Kingston%20Fly%20Ash%20-%20EPA%20Audit.pdf), and OSHA's requirement
for MSDS sheets for coal ash.
\30\ Non-Groundwater Pathways, Human Health and Ecological Risk
Analysis for Fossil Fuel Combustion Phase 2 (FFC2): Draft Final
Report (http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ngwrsk1.pdf).
\31\ All chromium present in the particulate matter was assumed
to be in the more toxic, hexavalent form.
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EPA recognizes that there are significant uncertainties in national
risk assessments of this nature, although it did attempt to address
potential uncertainties through Monte Carlo and sensitivity analyses.
Uncertainties discussed in the revised risk assessment include:
The locations and characteristics of currently operating
facilities;
The failure to account for direct discharges to surface
water;
Changing conditions over the 10,000-year period modeled;
Shifting populations and ecological receptors;
Additive risks from multiple constituents or multiple
pathways;
Clean closure of surface impoundments;
The speciation and bioavailability of constituents;
The effect of compacting CCRs before disposal;
The assumption that all disposal units are above the water
table;
Full mixing of the groundwater plume;
The choice of iron sorbent in the soil;
The appropriateness of the leachate data used and the
treatment of nondetects;
The distance to receptor wells and surface water bodies;
and
The potential conservativeness of human health benchmarks.
The Agency, however, does solicit comment on several specific
aspects of the underlying risk assessment. In particular, EPA requests
comment on whether clay liners designed to meet a 1x10-7 cm/
sec hydraulic conductivity might perform differently in practice than
modeled in the risk assessment. Thus, EPA solicits specific data on the
hydraulic conductivity of clay liners associated with CCR disposal
units. In addition to the effectiveness of various liner systems, the
hydraulic conductivity of coal ash can be reduced with the appropriate
addition of moisture followed by compaction to attain 95% of the
standard Proctor
[[Page 35146]]
maximum dry density value.\32\ This concept, it has been reported,
could potentially be taken further with the use of compaction coupled
with the addition of organosilanes. According to recent studies,
organosilanes could take the hydraulic conductivity to zero.\33\ EPA
solicits comments on the effectiveness of such additives, including any
analysis that would reflect long-term performance, as well as the
appropriateness of a performance standard that would allow such control
measures in lieu of composite liners. EPA has also observed that
surface impoundments are often placed right next to surface water
bodies which may present complex subsurface environments not considered
by the groundwater model, and therefore EPA seeks data on the distance
of surface impoundments to water bodies, site specific groundwater risk
analysis which accounts for the presence of a nearby surface water
body, and groundwater monitoring data associated with such sites.
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\32\ The standard and modified Proctor compaction tests (ASTM D
698 and D 1557 respectively) are used to determine the maximum
achievable density of soils and aggregates by compacting the soil or
aggregate in a standardized mould at a standardized compactive
force. The maximum dry density value (or maximum achievable dry
density value) is determined by dividing the mass of the compacted
material (weight divided by the gravitational force) by the volume
of the compacted material.
\33\ ``Organo-silane Chemistry: A Water Repellant Technology for
Coal Ash and Soils,'' John L. Daniels, Mimi S. Hourani, and Larry S.
Harper, 2009 World of Coal Ash Conference. Available at http://www.flyash.info/2009/025-daniels2009.pdf and in the docket to this
proposal.
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In characterizing CCRs and utilizing such data for the risk
analysis, EPA gathered a variety of data over a long period of time. As
a general matter, EPA finds these data to be an accurate
characterization, and that the values are in line with recent studies
EPA has conducted to characterize new air pollution controls. However,
with respect to a few of the highest surface impoundment porewater
concentrations (for arsenic in particular), questions have been raised
regarding the representativeness of these individual data points. In
one case, a facility with the highest arsenic pore water concentration
(86.0 mg/L) involved values that were measured in a section of a
surface impoundment where coal refuse (defined as coal waste from coal
handling, crushing, and sizing operations) was disposed of at the water
surface. Pore water samples taken in the coal ash sediment beneath the
coal refuse involved concentrations of arsenic as low as 0.003 mg/L.
Thus, there is the question of whether those pore water samples
measured in the coal refuse represent what leaches out of the bottom of
the surface impoundment.
The next highest arsenic values (an average of 5.37 mg/L over 4
samples with the highest concentration being 15.5 mg/L) came from site
CASJ (known as SJA in the EPRI report). The concern is that arsenic in
the pore water was orders of magnitude higher than in the pond water.
That type of change doesn't appear to occur for other constituents in
these samples or for arsenic in samples from other surface
impoundments. EPA recently attempted to obtain further information that
could assist us to better characterize these specific data, but the
data are old, the impoundment is no longer in operation, and there are
apparently no additional records upon which to draw conclusions.
Additional high concentration values, especially for lead, are
associated with ash data provided by Freeman United Mining, which
acquired ash for a minefilling project. None of this ash data is
associated with electric utilities, but rather with other coal
combusters such as John Deere, American Cyanamid, and Washington
University in St. Louis, Missouri. The Agency is uncertain whether the
high lead levels are associated with lead levels in the source coal,
the operations at these facilities, or whether other wastes were mixed
with the CCRs.
While these concerns are associated with a small fraction of the
data, these data reflect the highest concentrations, and thus can be
important considerations in the risk analysis. Based on the above
concerns, EPA solicits comment on several questions.
For the highest concentrations in EPA's database, such as
the examples mentioned above, are there values that do not
appropriately represent leaching to groundwater, and if so, why not?
Are there any additional data that are representative of
CCR constituents in surface impoundment or landfill leachate (from
literature, state files, industry or other sources) that EPA has not
identified?
EPA understands that the disposal practices associated
with coal refuse in surface impoundments may have improved based on the
development of an industry guide.\34\ EPA solicits information on the
degree to which coal refuse management practices have changed since the
issuance of the guide and the impacts of those changes (e.g., have
concentrations of arsenic been reduced in leach samples that have been
taken at facilities operating in concert with the industry guide).
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\34\ Guidance for Comanagement of Mill Rejects at Coal-Fired
Power Plants, Electric Power Research Institute, 1999. Available in
the docket to this proposal.
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For CCR surface impoundments, are there any examples of
pore water concentrations for arsenic increasing orders of magnitude
over pond water concentrations?
For more detailed discussions of the CCR risk assessment, see the
document titled: ``What Are the Environmental and Health Effects
Associated with Disposing of CCRs in Landfills and Surface
Impoundments?'' and the report titled ``Human and Ecological Risk
Assessment of Coal Combustion Wastes'' which are included in the docket
to this notice.
C. Damage Cases
Under the Bevill Amendment for the ``special waste'' categories of
RCRA, EPA was statutorily required to examine ``documented cases in
which danger to human health or the environment from surface runoff or
leachate has been proved'' from the disposal of coal combustion wastes
(RCRA Section 8002(n)). The criteria used to determine whether danger
to human health and the environment has been proven are described in
detail in the May 2000 Regulatory Determination at 65 FR 32224.\35\
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\35\ For definition of ``proven damage case,'' see section C in
the Supplementary Information section.
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At the time of the May 2000 Regulatory Determination, the Agency
was aware of 11 documented cases of proven damage to ground water and
36 cases of potential damage to human health and the environment from
the improper management of CCRs in landfills and surface impoundments.
Additionally, the Agency determined that another four cases were
documented cases of ecological damages.\36\ However, for the May 2000
Regulatory Determination, EPA did not consider these ecological damage
cases because all involved some form of discharge from waste management
units to nearby lakes or creeks that would be subject to the Clean
Water Act regulations. Moreover, EPA concluded that the threats in
those cases were not substantial enough to cause large scale, system
level ecological disruptions. On review, EPA has concluded that the
ecological damage cases are appropriate for consideration because,
while they might involve CWA violations, they nevertheless reflect
damages from CCR disposal that might be handled under RCRA controls.
And, while they may or may not have involved ``systems-level''
[[Page 35147]]
disruption, they were significant enough to lead to state response
actions, e.g., fish advisories. EPA now believes that ecological
damages warranting state environmental response are generally
appropriate for inclusion as damage cases, and to fail to include them
would lead to an undercounting of real and recognized damages.
Accordingly, at the time of the May 2000 Regulatory Determination, in
total, 15 cases of proven damages had occurred. Subsequently, one of
the 15 proven damage cases has been reclassified as a potential damage
case, resulting in a total of 14 proven cases of damage, as of the May
2000 Regulatory Determination.
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\36\ Ecological damages are damages to mammals, amphibians,
fish, benthic layer organisms and plants.
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Since the May 2000 Regulatory Determination, additional damage
cases, including ecological damage cases, have occurred, and were
discussed in the August 2007 NODA. Specifically, EPA has gathered or
received information on 135 alleged damage cases. Six of the alleged
damage cases have been excluded from this analysis because they
involved minefills, a management method which is outside the scope of
this proposal, while sixty-two of the damage cases have not been
further assessed because there was little or no information supporting
the concerns identified. Of the remaining 67 damage cases evaluated,
EPA determined that 24 were proven cases of damage (which includes the
14 proven damage cases from the May 2000 Regulatory Determination); of
the 24 damage cases, eight were determined to be proven damages to
surface water and sixteen were determined to be proven damages to
ground water, with four of the cases to groundwater being from unlined
landfills, five coming from unlined surface impoundments, one was from
a surface impoundment where it was unclear whether it was lined, and
the remaining six cases coming from unlined sand and gravel pits.
Another 43 cases (which includes the 36 potential damage cases from the
May 2000 Regulatory Determination) were determined to be potential
damages to groundwater or surface water; however, four of the potential
damage cases were attributable to oil combustion wastes and thus are
outside the scope of this proposal; therefore, resulting in 39 CCR
potential damage cases. The remaining 10 alleged damage cases were not
considered to be proven or potential damage cases due to a lack of
evidence that damages were uniquely associated with CCRs; therefore,
they were not considered to be CCR damage cases.
Finally, within the last couple of years, EPA has learned of an
additional five cases of claimed damage. Two of the cases involve the
structural failure of the surface impoundment; i.e., dam safety and
structural integrity issues, a pathway which EPA did not consider at
the time of the May 2000 Regulatory Determination. These cases are (1)
a 0.5 million cubic yard release of water and fly ash to the Delaware
River at the Martin's Creek Power Plant in Pennsylvania in 2005,
leading to a response action costing $37 million, and (2) the
catastrophic failure of a dike at TVA's Kingston, Tennessee facility,
leading to the release of 5.4 million cubic yards of fly ash sludge
over an approximately 300 acre area and into a branch of the Emory
River, followed by a massive cleanup operation overseen by EPA and the
state of Tennessee. EPA classifies these as proven damage cases.
Another case involved the failure of a discharge pipe at the TVA Widows
Creek plant in Stevenson, Alabama, resulting in a 6.1 million gallon
release from an FGD pond, leading to $9.2 million in cleanup costs. EPA
did not classify this as a damage case, because samples at relevant
points of potential exposure did not exceed applicable standards. Two
other cases involved the placement of coal ash in large scale fill
operations. The first case, the BBBS Sand and Gravel Quarries in
Gambrills, Maryland, 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 for contouring of a golf course. Groundwater contamination
above drinking water levels 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 a proven
damage case. However, due to the onsite groundwater contamination, EPA
considers this site to be a potential damage case. Thus, the Agency has
classified three of the five new cases as proven damage cases, one as a
potential damage case, and the other as not being a damage case (i.e.,
not meeting the criteria to be considered either a proven or potential
damage case). This brings the total number of proven damage cases to 27
and 40 potential cases of damage from the mismanagement of CCRs being
disposed.
The Martins Creek and TVA Kingston fly ash impoundment failures
underscore the need for surface impoundment integrity requirements. In
the case of the Martins Creek failure, 0.5 million cubic yards of fly
ash slurry was released into the Delaware River when a dike failed.
Fortunately, there are no homes in the path of the release and all the
damage was confined to power plant property and the Delaware River. On
the other hand, the 5.4 million cubic yards of fly ash sludge released
as a result of the TVA Kingston impoundment failure covered an area of
approximately 300 acres, flowed into a branch of the Emory River,
disrupted power, ruptured a gas line, knocked one home off its
foundation and damaged others. Fortunately, there were no injuries.
While much of our risk modeling deals with ground water
contamination, based on historical facts, EPA recognizes that failures
of large CCR impoundments can lead to catastrophic environmental
releases and large cleanup costs. It is critical to understand as well,
however, that the structural integrity requirements and the
requirements for conversion or retrofitting of existing or new
impoundments are designed to avoid such releases and that the benefits
of avoiding such catastrophic failures are very significant. As
discussed in more detail in Section XII of today's proposal and as
fully explained in our Regulatory Impact Analysis (RIA), EPA estimated
the benefits of avoiding the future cleanup costs of or impoundment
failures. Depending on the regulatory option chosen, the annualized
benefits range from $29 million to $1,212 million per year, and the net
present value of these ranges from $405 million to $16,732 million. In
addition, the RIA did not quantify or monetize several other additional
benefits consisting of future avoided social costs associated with
ecological and socio-economic damages. These include avoided damages to
natural resources, damages to property and physical infrastructure,
avoided litigation costs associated with such events, and reduction of
toxic chemical-contaminated effluent discharges from impoundments to
surface waters.
In December 2009, EPA received a new report from EPRI challenging
our conclusions on many of the proven damage cases often noting that
there was not significant off-site contamination.
The report, ``Evaluation of Coal Combustion Product Damage Cases
(Volumes 1 and 2), Draft Report,
[[Page 35148]]
November 2009,'' is available in the docket to this proposal. EPA
solicits comments on EPRI's report and welcomes additional data
regarding the proven damage cases identified by EPA, especially the
degree to which there was off-site contamination.
EPA notes that several stakeholders have very recently identified
additional claimed damage cases, and the agency has not had the time to
review them closely.\37\ Similarly, other stakeholders have recently
provided valuable information on CCR risks, costs of different possible
options, and characterization data, which EPA has also not had time to
review in detail or to respond to. Generally, these reports include
information that is relevant to today's proposal. EPA will review this
information carefully as we proceed to a final rule, and we encourage
commenters on the proposal to consider this material, which EPA has
placed in the rulemaking docket, as they prepare comments.
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\37\ On February 24, the Environmental Integrity Project and
EarthJustice issued a report on 31 'new' alleged CCRs damage cases
which is available at: http://www.environmentalintegrity.org/news_reports/documents/OutofControl-MountingDamagesFromCoalAshWasteSites.pdf.
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For a more detailed discussion of the damage cases, see the
Appendix to this notice, the table ``Summary of Proven Cases with
Damages to Groundwater and to Surface Water'' at the end of the
Appendix, and the document ``Coal Combustion Wastes Damage Case
Assessments'' available at http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&d=EPA-HQ-RCRA-2006-0796-0015.
III. Overview and Summary of the Bevill Regulatory Determination and
the Proposed Subtitle C and Subtitle D Regulatory Options
In today's notice, EPA is reevaluating its August 1993 and May 2000
Bevill Regulatory Determinations regarding CCRs generated at electric
utilities and independent power producers. In the May 2000
determination, EPA concluded that disposal of CCRs did not warrant
regulation under RCRA subtitle C as a hazardous waste, but did warrant
federal regulation as a solid waste under subtitle D of RCRA. However,
EPA never issued federal regulations under subtitle D of RCRA for CCRs.
(As noted previously, today's proposal could result in the development
of subtitle D standards consistent with the May 2000 Regulatory
Determination, or with a revision of the determination, or the issuance
of subtitle C standards under RCRA.) Today, EPA is reconsidering this
determination, and is soliciting comments on two alternative options:
(1) to reverse the Bevill determination (with respect to disposal of
CCRs in surface impoundments and landfills), and regulate such CCRs as
special wastes under RCRA subtitle C, and (2) to leave the Bevill
determination in place and regulate CCRs going to disposal under
federal RCRA subtitle D standards. Today's co-proposal provides
regulatory text for both options.
In determining whether or not to exclude a Bevill waste from
regulation under RCRA subtitle C, EPA must evaluate and weigh eight
factors. In section IV. B. of this preamble, EPA discusses CCRs from
electric utilities in light of these factors, and we highlight the
considerations that might lead us to reversing the August 1993 and May
2000 Regulatory Determinations (and therefore regulate CCR disposal
under RCRA subtitle C), or to leave the determination in place (and
regulate CCR disposal under RCRA subtitle D).
At the same time, EPA continues to believe the Bevill exclusion
should remain in place for CCRs going to certain beneficial uses,
because of the important benefits to the environment and the economy
from these uses, and because the management scenarios for these
products are very different from the risk case being considered for CCR
disposal in surface impoundments and landfills. EPA makes it clear that
CCRs in sand and gravel pits, quarries, and other large fill operations
is not beneficial use, but disposal. As such, it would be regulated
under whichever option is finalized. EPA solicits comments, however, on
whether unencapsulated uses of CCRs warrant tighter federal control.
A. Summary of Subtitle C Proposal
In combination with its proposal to reverse the Bevill
determination for CCRs destined for disposal, EPA is proposing to list
as a special waste, CCRs from electric utilities and independent power
producers when destined for disposal in a landfill or surface
impoundment. These CCRs would be regulated under the RCRA subtitle C
rules (as proposed to be amended here) from the point of their
generation to the point of their final disposition, which includes both
during and after closure of any disposal unit. In addition, EPA is
proposing that all existing units that have not closed in accordance
with the criteria outlined in this proposal, by the effective date of
the final rule, would be subject to all of the requirements of subtitle
C, including the permitting requirements at 40 CFR parts 124 and 270.
As such, persons who generate, transport and treat, store or dispose of
CCRs would be subject to the existing cradle-to-grave subtitle C waste
management requirements at 40 CFR parts 260 through 268, parts 270 to
279, and part 124 including the generator and transporter requirements
and the requirements for facilities managing CCRs, such as siting,
liners (with modification), run-on and run-off controls, groundwater
monitoring, fugitive dust controls, financial assurance, corrective
action, including facility-wide corrective action, closure of units,
and post-closure care (with certain modifications). In addition,
facilities that dispose of, treat, or, in many cases, store, CCRs also
would be required to obtain permits for the units in which such
materials are disposed, treated, and stored. EPA is also considering
and seeking comment on a modification, which would not require the
closure or installation of composite liners in existing surface
impoundments; rather, these surface impoundments could continue to
operate for the remainder of their useful life. The rule would also
regulate the disposal of CCRs in sand and gravel pits, quarries, and
other large fill operations as a landfill.
To address the potential for catastrophic releases from surface
impoundments, we also are proposing requirements for dam safety and
stability for impoundments that, by the effective date of the final
rule, have not closed consistent with the requirements. Finally, we are
proposing land disposal restrictions and treatment standards for CCRs,
as well as a prohibition on the disposal of treated CCRs below the
natural water table.
B. Summary of Subtitle D Proposal
In combination with its proposal to leave the Bevill determination
in place, EPA is proposing to regulate CCRs disposed of in surface
impoundments or landfills under the RCRA subtitle D requirements, which
would establish national criteria to ensure the safe disposal of CCRs
in these units. The units would be subject to, among other things,
location standards, composite liner requirements (new landfills and
surface impoundments would require composite liners; existing surface
impoundments without liners would have to retrofit within five years,
or cease receiving CCRs and close); groundwater monitoring and
corrective action for releases from the unit standards; closure and
post-closure care requirements; and requirements to address the
stability of surface impoundments. We solicit comments on requiring
financial assurance and on
[[Page 35149]]
how the requirements apply to surface impoundments that continue to
receive CCRs after the effective date of the rule; specifically, EPA is
requesting comment on an alternative under which existing surface
impoundments would be allowed to continue to operate without requiring
the facility to retrofit the unit to install a composite liner. The
rule would also regulate the disposal of CCRs in sand and gravel pits,
quarries, and other large fill operations as a landfill. The rule would
not regulate the generation, storage or treatment of CCRs prior to
disposal. Because of the scope of subtitle D authority, the rule would
not require permits, nor could EPA enforce the requirements. Instead,
states or citizens could enforce the requirements under RCRA citizen
suit authority; the states could also enforce any state regulation
under their independent state enforcement authority.
EPA is also considering, and is seeking comment on, a potential
modification to the subtitle D option, called ``D prime.'' Under the
``D prime'' option, existing surface impoundments would not have to
close or install composite liners but could continue to operate for
their useful life. In the ``D prime'' option, the other elements of the
subtitle D option would remain the same.
IV. Bevill Regulatory Determination Relating to CCRs From Electric
Utilities
As discussed in the preceding sections, EPA originally conditioned
its May 2000 Regulatory Determination on continued review of, among
other factors, ``the extent to which [the wastes] have caused damage to
human health or the environment; and the adequacy of existing
regulation of the wastes.'' (See 65 FR 32218.) Review of the
information developed over the past ten years has confirmed EPA's
original risk concerns, and has raised significant questions regarding
the accuracy of the Agency's predictions regarding anticipated
improvements in management and state regulatory oversight of these
wastes. Consequently, the Agency has determined that reconsideration of
its May 2000 Regulatory Determination is appropriate, and is
revaluating whether regulation of CCRs under RCRA subtitle C is
necessary in light of the most recent information. The scientific
analyses, however, are complex and present legitimate questions for
comment and further consideration. Thus, while EPA has concluded that
federal regulation of this material is necessary, the Agency has yet
not reached a conclusion as to whether the Bevill determination should
be revised, or whether regulation under RCRA subtitle C or D is
appropriate, but is soliciting comments on the two options described in
the previous section.
As stated earlier, EPA's application of its discretion in weighing
the eight Bevill factors--and consequently our ultimate decision--will
be guided by the following principles. The first is that EPA's actions
must be protective of human health and the environment. Second, any
decision must be based on sound science. Finally, in conducting this
rulemaking, EPA will ensure that its decision processes are
transparent, and encourage the greatest degree of public participation.
Consequently, to further the public's understanding and ability to
comment on the issues facing the Agency, EPA provides an extensive
discussion of the technical issues associated with the available
information, as well as the policy considerations and the key factors
that will weigh in the Agency's ultimate decision.
A. Basis for Reconsideration of May 2000 Regulatory Determination
EPA decided in May 2000 that regulation under RCRA subtitle C was
not warranted in light of the trends in present disposal and
utilization practices, the current and potential utilization of the
wastes, and the concerns expressed against duplication of efforts by
other federal and state agencies. In addition, EPA noted that the
utility industry has made significant improvements in its waste
management practices with respect to new management units over recent
years, and most state regulatory programs are similarly improving. In
particular, EPA noted that, of the new units constructed between 1985
and 1995, 60% of the new surface impoundments were lined and 65% had
groundwater monitoring. Further, the risk information available was
limited, although we also noted that we expected that the limited
number of damage cases identified in the Regulatory Determination was
an underestimate. However, EPA did not conclude that the available
information regarding the extent or nature of the risks were equivocal.
However, the Agency noted that ``* * * we identified a potential for
risks from arsenic that we cannot dismiss * * *.'' \38\ EPA further
noted that ``[i]n the absence of a more complete groundwater risk
assessment, we are unable at this time to draw quantitative conclusions
regarding the risks due to arsenic or other contaminants posed by
improper waste management.'' Existing older units that lacked liners
and groundwater monitoring (for surface impoundments, only 26% of all
units had liners and only 38% of all units had groundwater monitoring)
were the major risk drivers in the study.
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\38\ See 65 FR 32216 at http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ff2f-fr.pdf.
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As discussed in greater detail in section II.B, EPA has revised the
draft quantitative risk assessment made available when it solicited
public comment on the 1999 Report to Congress to account for the
concerns raised by the public during the public comment period. The
results of these risk analyses show that certain management practices--
the disposal of both wet and dry CCRs in unlined waste management
units, but particularly in unlined surface impoundments, and the
prevalence of wet handling, can pose significant risks to human health
and the environment from releases of CCR toxic constituents to ground
water and surface water. The Agency has estimated that there are
approximately 300 CCR landfills and 584 CCR surface impoundments or
similar management units in use at roughly 495 coal-fired power plants.
(Data also indicate that a small number of utilities dispose of CCRs
off-site, typically near the generating utility.) Many of these units--
particularly surface impoundments--lack liners and groundwater
monitoring systems. EPA's revised CCR risk assessment \39\ estimated
the cancer risk from arsenic \40\ that leaches into groundwater from
CCRs 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 CCRs are co-disposed with coal refuse), groundwater
interception and arsenic speciation, the 90th percentile risks from
unlined surface impoundments ranged from 2x10-2 to
1x10-4. The risks from clay-lined surface impoundments
ranged from 7x103 to 4x10-5. Similarly, estimated
risks from unlined landfills ranged between 5x10-4 to
3x10-6, and
[[Page 35150]]
from 2x10-4 to 5x10-9 for clay-lined landfills.
EPA's risk assessment also estimated HQs above 1 for other metals,
including selenium and lead in unlined and clay-lined units. EPA also
notes in this regard that recent research indicates that traditional
leach procedures (e.g., TCLP and SPLP) may underestimate the actual
leach rates of toxic constituents from CCRs under different field
conditions.
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\39\ ``Human and Ecological Risk Assessment of Coal Combustion
Wastes,'' (April 2010).
\40\ The risk estimates for arsenic presented in the revised
risk assessment are based on the existing cancer slope factor of 1.5
mg/kg/d-1 in EPA's Integrated Risk Information System
(IRIS). However, EPA is currently evaluating the arsenic cancer
slope factor and it is likely to increase. In addition, the National
Resources Council (NRC) of the National Academy of Sciences (NAS)
made new recommendations regarding new toxicity information in the
NRC document, ``Arsenic in Drinking Water, 2001 Update.'' Using this
NRC data analysis, EPA calculated a new cancer slope factor of 26
mg/kg/d-1 which would increase the individual risk
estimates by about 17 times.
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Recent events also have demonstrated that, if not properly
controlled, these wastes have caused greater damage to human health and
the environment than EPA originally estimated in its risk assessments.
On December 22, 2008, a failure of the northeastern dike used to
contain fly ash occurred at the dewatering area of the TVA's Kingston
Fossil Plant in Harriman, Tennessee. Subsequently, approximately 5.4
million cubic yards of fly ash sludge was released over an
approximately 300 acre area. The ash slide disrupted power, ruptured a
gas line, knocked one home off its foundation and damaged others. A
root-cause analysis report developed for TVA, accessible at http://www.tva.gov/kingston/rca/index.htm, established that the dike failed
because it was expanded by successive vertical additions, to a point
where a thin, weak layer of fly ash (`slime') on which it had been
founded, failed by sliding. The direct costs to clean up the damage
from the TVA Kingston incident are well into the billions, and is
currently estimated to exceed $1.2 billion.\41\
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\41\ $3.0 billion is EPA's ``social cost'' estimate assigned in
the April 2010 RIA to the December 2008 TVA Kingston, TN impoundment
release event. Social cost represents the opportunity costs incurred
by society, not just the monetary costs for cleanup. OMB's 2003
``Circular A-4: Regulatory Analysis'' (page 18) instructs Federal
agencies to estimate ``opportunity costs'' for purpose of valuing
benefits and costs in RIAs. This $3.0 billion social cost estimate
is larger than TVA's $933 million to $1.2 billion cleanup cost
estimate (i.e., TVA's estimate as of 03 Feb 2010), because EPA's
social cost estimate consists of three other social cost elements in
addition to TVA's cleanup cost estimate: (a) TVA cleanup cost, (b)
response, oversight and ancillary costs associated with local,
state, and other Federal agencies, (c) ecological damages, and (d)
local (community) socio-economic damages. Appendix Q to the April
2010 RIA provides EPA's documentation and calculation of these four
cost elements, which total $3.0 billion in social cost.
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Although the TVA spill was the largest, it was not the only damage
case to involve impoundment stability. A smaller, but still significant
incident occurred in August 2005, when a gate in a dam confining a 40-
acre CCR surface impoundment in eastern Pennsylvania failed. The dam
failure, a violation of the facility's state-issued solid waste
disposal permit and Section 402 of the Clean Water Act, resulted in the
discharge of 0.5 million cubic yards of coal-ash and contaminated water
into the Oughoughton Creek and the Delaware River.
Moreover, documented cases of the type of damage that EPA
originally identified to result from improper management of CCR have
continued to occur, leading EPA to question whether the risks that EPA
originally identified have been sufficiently mitigated since our May
2000 Regulatory Determination. As discussed in more detail below, and
in materials contained in the docket, there is a growing record of
proven damage cases to groundwater and surface water, as well as a
large number of potential damage cases. Since the May 2000 Regulatory
Determination, EPA has documented an additional 13 proven damage cases
and 4 potential damage cases.
Further, recently collected information regarding the existing
state regulatory programs \42\ calls into question whether those
programs, in the absence of national minimum standards, have
sufficiently improved to address the gaps that EPA had identified in
its May 2000 Regulatory Determination such that EPA can continue to
conclude that in the absence of federal oversight, the management of
these wastes will be adequate to protect human health and the
environment. Many state regulatory programs for the management of CCRs,
including requirements for liners and groundwater monitoring, are
lacking, and while industry practices may be improving, EPA continues
to see cases of inappropriate management or cases in which key
protections (e.g., groundwater monitoring at existing units) are
absent. Although the joint DOE and EPA study entitled, Coal Combustion
Waste Management at Landfills and Surface Impoundments, 1994-2004,
indicates that most new units appear to be better designed, in that
they are lined and have installed groundwater monitoring systems, and
therefore the total percentages of unprotected units have decreased, it
appears that a large amount of waste is still being disposed into units
that lack the necessary protections of liners, and groundwater
monitoring. Furthermore, while corrective action has generally been
taken at the proven damage cases, the RCRA regulatory program is
designed to prevent contamination in the first place, if at all
practicable, rather than one in which contamination is simply remedied
after discovery.\43\ This information also highlights that EPA still
lacks details regarding the manner and degree to which states are
regulating the management of this material. All of these factors
emphasize the need for prompt federal rulemaking and have led EPA to
reconsider its May 2000 Regulatory Determination.
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\42\ ASTSWMO Survey Conducted Feb.--Mar. 2009 (Excel
spreadsheet) available in the docket for this proposal.
\43\ As noted in Appendix I on Damage Cases, of the 16 proven
cases of damages to groundwater, the Agency has been able to confirm
that corrective actions have been completed in seven cases and are
ongoing in the remaining nine cases. Corrective action measures at
these CCR management units vary depending on site specific
circumstances and include formal closure of the unit, capping, re-
grading of ash and the installation of liners over the ash,
groundwater treatment, ground-water monitoring, installation of a
barrier wall, and combinations of these measures.
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In sum, as a result of the significant new information accumulated
on two of the four considerations specifically identified in the May
2000 Regulatory Determination (65 FR 32218), the Agency has determined
that reevaluation of its original conclusions in light of all of the
RCRA Section 8002(n) study factors is necessary. Based on its
consideration of these statutory factors, EPA has not yet reached a
decision on whether to revise the Bevill Regulatory Determination.
Rather, EPA has summarized the information available for each of the
factors, and identifies those considerations on which EPA believes that
critical information is lacking. Accordingly, EPA is soliciting further
information and public input on each of these considerations that will
factor into the Agency's determination as to whether regulation under
RCRA subtitle C or D is warranted.
As stated previously and as fully explained in Section XII of
today's proposal and in our Regulatory Impact Analysis, our proposed
requirements for surface impoundment structural stability and
conversion or retrofitting of units, will have substantial benefits in
avoided future clean up costs.
B. RCRA Section 8002(n) Study Factors
Section 8002(n) of RCRA requires the Administrator to conduct a
detailed and comprehensive study and submit a report on the adverse
effects on human health and the environment, if any, of the disposal
and utilization of fly ash waste, bottom ash waste, slag waste, flue
gas emission control waste, and other by-product materials generated
primarily from the combustion of coal or other fossil fuels. The study
was to include an analysis of the eight factors required under section
8002(n) of RCRA. EPA addressed these study factors in the 1988 and 1999
Reports to
[[Page 35151]]
Congress. The findings of these two Reports to Congress were the basis
for our decisions in the August 1993 and the May 2000 Regulatory
Determinations to maintain the Bevill exemption for CCRs. In
considering whether to retain or to reverse the August 1993 and May
2000 Regulatory Determinations regarding the Bevill exemption of CCRs
destined for disposal, we have reexamined the RCRA section 8002(n)
study factors against the data on which we made the May 2000 Regulatory
Determination, as well as the most recent data we have available.
1. Source and volumes of CCR generated per year: In the mid-1990s,
according to various sources, between 62 and 71 million tons of CCRs
were generated by coal-fired electric power plants.\44\ In comparison,
much larger volumes are being generated now (primarily due to the
increase in coal-fired power plants), with 136 million tons of CCRs
generated by coal-fired electric power plants in 2008.\45\
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\44\ Cited in ``Technical Background Document for the Report to
Congress on Remaining Wastes from Fossil Fuel Combustion: Industry
Statistics and Waste Management Practices,'' March 1999.
\45\ ACAA (American Coal Ash Association). 2009. 2008 Coal
Combustion Product (CCP) Production & Use Survey Report. http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_100509.
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2. Present disposal and utilization practices: In 2008, 34% (46
million tons) of CCRs were landfilled, 22% (29.4 million tons) were
disposed into surface impoundments,\46\ nearly 37% (50.1 million tons)
were beneficially used (excluding minefill operations), and nearly 8%
(10.5 million tons) were placed in mines. This compares to
approximately 23% (26.2 million tons) landfilled, 46% (53.2 million
tons) disposed of into surface impoundments, 23% beneficially used
(excluding minefill operations), and 8% (9 million tons) placed in
mines in 1995. Thus, while the overall volume of CCRs going to disposal
in surface impoundments and landfills has remained relatively constant,
the total volume going to surface impoundments has decreased, and the
total volume going to landfills has increased.
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\46\ Estimated from the 2009 ACAA survey and Energy Information
Administration 2005 F767 Power Plant database.
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The Agency has estimated that there are approximately 300 CCR
landfills and 584 CCR surface impoundments or similar management units
in use at roughly 495 coal-fired power plants. The age of the disposal
units varies considerably. For example, while there are new surface
impoundments, 75% are greater than 25 years old, with 10% being greater
than 50 years old. Similarly, information from an EPRI survey used in
the 1999 Report to Congress indicates that the average planned life
expectancy of a landfill is approximately 31 years, with about 12%
having planned life expectancy over 50 years (with one planning for
over 100 years). Many of these units--particularly surface
impoundments, lack liners and ground water monitoring systems. EPA has
estimated that in 2004, 31% of the CCR landfills and 62% of the CCR
surface impoundments lacked liners, and 10% of the CCR landfills and
58% of the CCR surface impoundments lacked groundwater monitoring.\47\
In the mid-1990s, there were approximately 275 CCR landfills and 286
CCR surface impoundments in use.\48\ EPA does not believe the increased
number of surface impoundments identified in today's rule reflects an
actual change of practice, but rather more stringent definitions, as
well as possibly, the greater availability of more accurate
information. For example, much of the increase in surface impoundments
likely results from counting units that receive wastewater that has
been in contact with even small amounts of coal ash, and thus includes
many units which were not included in EPA's mid-1990 estimates.
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\47\ Estimated from the 1995 data reported in the May 2000
Regulatory Determination and the data for new units from 1994 to
2004 reported in the 2006 DOE/EPA report ``Coal Combustion Waste
Management at Landfills and Surface Impoundments, 1994-2004.''
\48\ Technical Background Document, Ibid.
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a. Existing State Regulatory Oversight. The results of the joint
DOE and EPA study entitled, Coal Combustion Waste Management at
Landfills and Surface Impoundments, 1994-2004 indicates that of the
states evaluated in this report, state regulations have generally
improved since 2000. In addition, it would appear that the industry
itself is changing and improving its management practices. For example,
all new surface impoundments and nearly all new landfills (97%)
identified in the survey that were constructed between 1994 and 2004
were constructed with liners. Regarding the prevalence of groundwater
monitoring at new units, the joint DOE/EPA study suggests that nearly
all new landfills (98%) and most new surface impoundments (81%)
constructed between 1994 and 2004 were constructed with groundwater
monitoring systems. Moreover, the frequency of dry handling in
landfills appears to have increased; approximately two-thirds of the
new units are landfills, while the remaining one-third are surface
impoundments. The number of new units from 1994 to 2004 was 56.
Assuming that replacement continued at a rate of 5.6 per year since
2004, we would have an additional 34 new units, but it would still be
decades at this rate to replace the large collection of older units.
The DOE/EPA study also identifies significant gaps that remain
under existing state regulation. For example, only 19% (3 out of 19) of
the surveyed surface impoundment unit permits included requirements
addressing groundwater protection standards (i.e., contaminant
concentrations that cannot be exceeded) or closure/post-closure care,
and only 12% (2 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 CCRs generated is
potentially entirely exempt from the state solid waste permitting
requirements \49\ (EPA/DOE Report at pages 45-46). For example, Alabama
does not currently regulate CCR disposal under any state waste
authority and does not currently have a dam safety program (although
the state has an initiative to develop one). Texas (the largest coal
ash producer) does not require permits for waste managed on-site.\50\
Tennessee currently does not regulate surface impoundments under its
waste authority, but is now reconsidering this, in light of the TVA
spill. Finally, a number of states only regulate surface impoundments
under Clean Water Act authorities, and consequently primarily address
the risks from effluent discharges to navigable waters, but do not
require liners or groundwater monitoring.
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\49\ 38.7 million tons of out of 129 million tons generated CCRs
(Based on DOE/EIA 2004 data).
\50\ In Texas, on-site means the same or geographically
contiguous property which may be divided by public or private
rights-of-way, provided the entrance and exit between the properties
is at a cross-roads intersection, and access is by crossing, as
opposed to going along, the right-of-way. Noncontiguous properties
owned by the same person but connected by a right-of-way which he
controls and to which the public does not have access, is also
considered on-site property. (Title 30 TAC 335.1)
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The Agency recognizes that these statistics may be difficult to
interpret due to the limitations of the study. The study focused on
only eleven states, which account for approximately half the CCRs
generated in the U.S., and it may not address all of the existing
regulatory requirements that states may or could impose through other
authorities to control these units. As one example, the DOE/EPA report
notes that four of the six states that do not require solid waste
permits rely on other state authorities to regulate these units: ``In
[[Page 35152]]
Florida, if CCWs are disposed in an on-site landfill at a coal-fired
electric generating plant authorized under the Florida Power Plant
Siting Act (PPSA), no separate permits, including solid waste
construction and operation permits, are required. Instead, the entire
facility is covered under the PPSA certification, which will contain
the same substantive requirements as would otherwise have been imposed
by other permits.'' (EPA/DOE Report at page 46). The DOE/EPA report
identified whether states tightened, relaxed, or were neutral with
regard to program changes. From the time of the 1999 Report to Congress
to 2005, most all programs were neutral, with a couple of programs
tightening requirements and none relaxing requirements. Going back to
the period of the 1988 Report to Congress to 2005, two states (Alabama
and Florida) are reported to have relaxed portions of their standards,
while not tightening any other portions of their program. Part of the
difficulty in interpreting this information stems from the fact that
the survey responses contained little or no details of the state
requirements; rather, the responses merely indicated (by checking a
box) whether states imposed some sort of requirement relating to the
issue. Consequently, the Agency lacks detailed information on the
content of the requirements, and whether, for example, performance
based requirements or other state programs are used to address the
risks from these units. EPA also received detailed comments on this
report authored by several environmental groups, who criticized several
of the general conclusions. These comments are included in the rule
docket (see comment attachment submitted by Marty Rustan on behalf of
Lisa Evans, Attorney, Earthjustice; EPA-HQ-RCRA-2006-0796-0446.5).
A more recent survey conducted by the Association of State and
Territorial Solid Waste Management Officials (ASTSWMO) seems to support
the view that the states still have not yet adequately implemented
regulatory programs over CCR management units, although like the DOE/
EPA study, it lacks details on the substance of the state requirements.
According to a 2009 ASTSWMO survey of states with coal ash generation
\51\ (available in the docket), of the 42 states with coal fired
utilities, at least 36 have permit programs for landfills used to
manage CCRs, and of the 36 states that have CCR surface impoundments,
25 have permit programs. Permitting is particularly important to
provide oversight and to approve implementation plans such as the
placement of groundwater monitoring wells. Without a state permit
program, regulatory flexibility is limited, and certification by an
independent registered professional engineer is necessary. With regard
to liner requirements, 36% (15 of the 42 states that responded to this
question) do not have minimum \52\ liner requirements for CCR
landfills, while 67% (24 of the 36 states that responded to this
question) do not have CCR liner requirements for surface impoundments.
Similarly, 19% (8 of the 42 states that responded to this question) do
not have minimum groundwater monitoring requirements for landfills and
61% (22 of the 36 states that responded to this question) do not have
groundwater monitoring requirements for surface impoundments.\53\ These
findings are particularly significant as groundwater monitoring for
these kinds of units is a minimum for any credible regulatory regime.
The 2009 ASTSWMO survey also indicates that only 36 percent of the
states regulate the structural stability of surface impoundments, and
only 31 percent of the states require financial assurance for surface
impoundments. Because structural stability of surface impoundments is
largely regulated by state dam safety programs which are separate from
state solid waste programs, EPA recognizes that information from the
dam safety programs would be a much more meaningful measure of state
regulation of the structural stability of surface impoundments, and
solicits such information.
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\51\ ASTSWMO Survey Conducted Feb.-Mar. 2009 (Excel
spreadsheet).
\52\ For both landfills and surface impoundments, most of the
states that responded to questions addressing their liner and
groundwater monitoring program provisions had less stringent
requirements, e.g., allowing variance, exemption, or a case-by-case
evaluation. In the absence of state-specific information, we are
unable to translate these statistics into a concrete number of
affected waste units.
\53\ Additionally, the July 2009 Petition pointed out
deficiencies in state regulatory programs.
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Thus, while the states seem to be regulating landfills to a greater
extent, given the significant risks associated with surface
impoundments, these results suggest that there continue to be
significant gaps in state regulatory programs for the disposal of CCRs.
(See Letter from ASTSWMO to Matt Hale dated April 1, 2009, a copy of
which is in the docket to today's proposed rule for complete results of
the survey.)
EPA is also aware of some additional information from ASTSWMO.
There are 15 states (Colorado, Florida, Indiana, Iowa, Kansas,
Kentucky, Maryland, Minnesota, Mississippi, Montana, New York, North
Carolina, Ohio, Pennsylvania, and Virginia) that were considering
changes to their CCR regulations at the time of the ASTSWMO survey
(February 2009). In late November 2009, ASTSWMO also identified 15
states (Arizona, Delaware, Georgia, Idaho, Iowa, Kansas, Louisiana,
Maryland, Mississippi, North Dakota, South Carolina, Tennessee,
Washington, Wisconsin, and West Virginia) that had revised their CCR
requirements since 2000. Finally, ASTSWMO identified 8 states (Georgia,
Illinois, Indiana, Iowa, Montana, Ohio, Pennsylvania, and South
Carolina) which are requiring groundwater monitoring at existing
facilities that previously did not have groundwater monitoring.
Several issues complicate this assessment, however. As noted
previously, EPA lacks any real details regarding how states, in
practice, oversee the management of these materials when treated as
wastes. For example, some states may use performance based standards or
implement requirements to control CCR landfills and surface
impoundments under other state programs. Also, most of the new data
primarily focuses on the requirements applicable to new management
units, which represent approximately 10% of the disposal units. EPA has
little, if any information, that describes the extent to which states
and utilities have implemented requirements--such as groundwater
monitoring, for existing units, for the many landfills and surface
impoundments that receive CCRs. The information currently in the record
with respect to existing units is fifteen years old. EPA expects that
it would be unlikely that states would have required existing units to
install liners, states would have been more likely to have imposed
groundwater monitoring for such units over the last 15 years. Finally,
as discussed in the next section, the fact that many of the surface
impoundments are located adjacent to water bodies--which is not
accounted for in EPA's groundwater risk assessment--may affect our
assessment of the extent of the liner and groundwater monitoring
requirements that would be necessary. Therefore, EPA solicits detailed
comments specifically on the current management practices of state
programs, not only under state waste authorities, but under other
authorities as well. The adequacy of state regulation is one of the key
issues before the Agency, as it will address some of the more
significant questions remaining regarding the extent of the
[[Page 35153]]
risks presented by the disposal of CCRs. Accordingly, the Agency
specifically solicits information, whether from state regulatory
authorities or from members of the public, regarding details on the
entire state regulatory structure, including the specific requirements
that states have in place to regulate CCRs, and to provide oversight of
these units. EPA would also welcome more detailed information regarding
the states' historic practice in implementing its existing
requirements, including for example, the states' record of enforcement
and its practice in providing for public participation in the
development and implementation of any existing permitting requirements.
EPA is particularly interested in information on the extent to which
states have implemented requirements applicable to the older, existing
units, which represent the majority of the units into which CCRs are
currently disposed (approximately 90%). EPA also requests information
on the extent to which EPA's current information adequately reflects
changes in industry practices, adopted independent of state
requirements.
b. Beneficial Use. In the May 2000 Regulatory Determination, EPA
stated: ``The Agency has concluded that no additional regulations are
warranted for coal combustion wastes that are used beneficially (other
than for minefilling) and for oil and gas combustion wastes. We do not
wish to place any unnecessary barriers on the beneficial use of fossil
fuel combustion wastes so that they can be used in applications that
conserve natural resources and reduce disposal costs.'' (65 FR 32214)
(See separate discussion regarding minefilling in section IV. E of this
preamble.) EPA identified specific beneficial uses as covered by the
May 2000 determination. In particular, EPA stated that: ``Beneficial
purposes include waste stabilization, beneficial construction
applications (e.g., cement, concrete, brick and concrete products, road
bed, structural fill, blasting grit, wall board, insulation, roofing
materials), agricultural applications (e.g., as a substitute for lime)
and other applications (absorbents, filter media, paints, plastics and
metals manufacture, snow and ice control, waste stabilization).'' (See
65 FR 32229) These beneficial uses are described in more detail in
EPA's Report to Congress on Wastes from the Combustion of Fossil Fuels
in March 1999 (see Volume 2, Section 3.3.5).
Since EPA's Regulatory Determination in May 2000, there has been a
significant increase in the use of CCRs and the development of
established commercial sectors that utilize and depend on the
beneficial use of CCRs. Additional uses have been identified; for
example, the use of CCRs as ingredients in specific products, such as
resin-bound products or mineral filler in asphalt. New applications of
CCRs have been developed, which may hold great green house gas (GHG)
benefits (for example, fly ash bricks and a process to use CO2
emissions to produce cement). Further, EPA expects that uses could
shift in the future because the composition and characteristics of CCRs
are likely to change due to the addition of new air pollution controls
at coal-fired utilities. (See section IV. D. below for a more detailed
discussion on the beneficial use of CCRs.)
3. Potential danger, if any, to human health and the environment
from the disposal and reuse of CCRs:
a. From Disposal. The contaminants of concern in CCRs include
antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury,
nickel, selenium, silver and thallium. Potential human exposure
pathways for these contaminants from the disposal of CCRs are ground
water ingestion, inhalation, and the consumption of fish exposed to
contaminants. Ecological impacts include surface water contamination,
contamination of wetlands, and aquatic life exposure to contaminants of
concern. As discussed in section II. B, V., and the Regulatory Impact
Analysis, the risks modeled for the 2010 risk assessment often exceeded
EPA's typical regulatory levels of concern. With very few exceptions,
the risks modeled for the 2010 risk assessment correspond with ground
water exceedances of constituents observed in EPA's damage case
assessments (e.g., arsenic, boron, cadmium, lead, molybdenum, and
selenium were modeled and found to exceed the risk criteria in at least
some instances, and were also found in at least some of the damage
cases). Additionally, as discussed in section I.F.2, the potential
exists for the chemical characteristics of certain CCRs (e.g., fly ash
and FGD) to increase, which could result in increases in releases from
management units, particularly if such wastes are placed in old unlined
units, as a result of the increased use and application of advanced air
pollution control technologies in coal-fired power plants. Further
details on the results of EPA's quantitative groundwater risk
assessment, and the technical issues that remain to be addressed, and
on the unquantified human and ecological risks can be found in section
II and in the Regulatory Impact Analysis for today's proposal.
EPA also conducted a population risk assessment for the
groundwater-arsenic pathway, as a complement to the individual risk
analysis. While the RCRA program necessarily focuses on individual
risks, and individual risks have been the basis of previous Bevill and
hazardous waste determinations, the population risk estimate provides
perspective, and was used to develop the Agency's cost benefit analyses
of different regulatory approaches (discussed in section XII.A of this
preamble). In this analysis, EPA calculated a best estimate that
current risks from arsenic via the groundwater used as drinking water
pathway are 2,509 total excess cancers, over a 75-year period.\54\ (A
75-year period was used in this analysis to capture peak risk while the
RIA generally covers 50 years.) These estimates are based on a cancer
slope factor which represents the most recent science derived from a
2001 National Resources Council review of arsenic toxicity. It should
be noted that the analysis did not include risks from other pathways or
constituents, as explained in section 5A of the Regulatory Impact
Analysis for this proposal.
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\54\ Chapter 5, Page 121 of the Regulatory Impact Analysis for
this proposal.
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Of the approximately 584 surface impoundments currently operating
in the United States, a certain percentage of these 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
recent CERCLA 104(e) information request letters 109 impoundments have
either a high or significant hazard potential rating,\55\ thirteen 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 coal-fired
boilers, on the order of 40 years. However, many impoundments are
aging: 56 units are older than 50 years, 96 are older than 40 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
[[Page 35154]]
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. Further, 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.
Additional details regarding these releases can be found in the docket
for this rulemaking. EPA continues its assessments of CCR surface
impoundments. The most recent information on these can be found on
EPA's internet site at http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/index.htm#surveyresults.
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\55\ 429 of these impoundments currently have no rating. Thus,
the Agency expects the number of surface impoundments with a high or
significant hazard rating may increase as additional impoundments
are assigned ratings. See the definitions in the Summary section of
this notice for the definitions of high and significant hazard
potential.
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b. From Beneficial Use. The risks associated with the disposal of
CCRs stem from the specific nature of that activity and the specific
risks it involves; that is, the disposal of CCRs in (often unlined)
landfills or surface impoundments, with hundreds of thousands, if not
millions, of tons placed in a single concentrated location. And in the
case of surface impoundments, the CCRs are managed with water, under a
hydraulic head, which promotes more rapid leaching of contaminants into
neighboring groundwater than do landfills. The beneficial uses
identified as excluded under the Bevill amendment for the most part
present a significantly different picture, and a significantly
different risk profile.
In 1999 EPA conducted a risk assessment of certain agricultural
uses of CCRs,\56\ since the use of CCRs in this manner was considered
the most likely to raise concerns from a human health and environmental
point of view. EPA's risk assessment estimated the risks associated
with such uses to be within the range of 1x10-6. The results
of the risk assessment, as well as EPA's belief that the use of CCRs in
agricultural settings was the most likely use to raise concerns,
resulted in EPA concluding that none of the identified beneficial uses
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 cited the importance of beneficially using
secondary materials and of resource conservation, as an alternative to
disposal.
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\56\ 1998 Draft Final Report; Non-groundwater Pathways, Human
Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase
2 (FFC2) and its appendices (A through J); available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm.
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To date, EPA has still seen no evidence of damages from the
beneficial uses of CCRs that EPA identified in its original Regulatory
Determination. For example, there is wide acceptance of the use of CCRs
in encapsulated uses, such as wallboard, concrete, and bricks because
the CCRs are bound into products. The Agency believes that such
beneficial uses of CCRs offer significant environmental benefits.
As we discuss in other sections of this preamble, there are
situations where large quantities of CCRs have been used
indiscriminately as unencapsulated, general fill. The Agency does not
consider this a beneficial use under today's proposal, but rather
considers it waste management.
Environmental Benefits
The beneficial use of CCRs offers significant environmental
benefits, including greenhouse gas (GHG) reduction, energy
conservation, reduction in land disposal (i.e., avoidance of potential
CCR disposal impacts), and reduction in the need to mine and process
virgin materials and the associated environmental impacts.
Specifically:
Greenhouse Gas and Energy Benefits. The beneficial use of CCRs
reduces energy consumption and GHG emissions in a number of ways. One
of the most widely recognized beneficial applications of CCRs is the
use of coal fly ash as a substitute for Portland cement in the
manufacture of concrete. Reducing the amount of cement produced by
beneficially using fly ash as a substitute for cement leads to large
supply chain-wide reductions in energy use and GHG emissions.\57\ For
example, fly ash typically replaces between 15 and 30 percent of the
cement in concrete, although the percentages can and have been higher.
However, assuming a 15 to 30 percent fly ash to cement replacement
rate, and considering the approximate amount of cement that is produced
each year, would result in a reduction of GHG emissions by
approximately 12.5 to 25 million tons of CO2 equivalent and
a reduction in oil consumption by 26.8 to 53.6 million barrels of
oil.\58\ This estimate is likely to underestimate the total benefits
that can be achieved. As an added benefit, 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.
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\57\ Waste and Materials-Flow Benchmark Sector Report:
Beneficial Use of Secondary Materials--Coal Combustion Products,
February 12, 2008.
\58\ Avoided GHG and energy saving estimates based on energy and
environmental benefits estimates in the EPA report entitled, ``Study
on Increasing the Usage of Recovered Mineral Components in Federally
Funded Projects Involving Procurement of Cement or Concrete''
available at http://www.epa.gov/osw/conserve/tools/epg/pdf/rtc/report4-08.pdf.
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Benefits From Reducing the Need To Mine and Process Virgin
Materials. CCRs can be substituted for many virgin materials that would
otherwise have to be mined and processed for use. These virgin
materials include 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 them, 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.
Benefits From Reducing the Disposal of CCRs. Beneficially using
CCRs instead of disposing of them in landfills and surface impoundments
also reduces the need for additional landfill space and any risks
associated with their disposal. In particular, the U.S. disposed of
over 75 million tons of CCRs in landfills and surface impoundments in
2008, which is equivalent to the space required of 26,240 quarter-acre
home sites under 8 feet of CCRs.
While the Agency recognizes the need for regulations for the
management of CCRs in landfills and surface impoundments, we strongly
support the beneficial use of CCRs in an environmentally sound manner
because of the significant environmental benefits that accrue both
locally and globally. As discussed below in section XII.A, the current
beneficial use of CCRs 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,
[[Page 35155]]
beneficially using CCRs as a substitute for industrial raw materials
contributes (a) $4.89 billion per year in energy savings, (b) $0.081
billion per year in water savings, (c) $0.239 billion per year in GHG
\59\ (i.e., carbon dioxide and methane) emissions reduction, and (d)
$17.8 billion per year in other air pollution reduction. In addition,
these applications also result in annual material and disposal cost
savings of approximately $2.93 billion. All together, the beneficial
use of CCRs provides $25.9 billion in annual national economic and
environmental benefits (relative to 2005 tonnage).\60\
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\59\ The RIA monetizes the annual tonnage of greenhouse gas
effects associated with the CCR beneficial use life cycle analysis,
based on the 2009 interim social cost of carbon (i.e., interim SCC)
of Table III.H.6-3, page 29617 of the joint EPA and DOT-NHTSA
``Proposed Rulemaking to Establish Light-Duty Vehicle Greenhouse Gas
Emission Standards and Corporate Average Fuel Economy Standards,''
Federal Register, Volume 74, No. 186, 28 Sept 2009. The value
applied in the RIA is the $19.50 per ton median value from the $5 to
$56 per ton range displayed in the 2007 column in that source.
Furthermore, the RIA updated the 2007$ median value from 2007 to
2009 dollars using the NASA Gross Domestic Product Deflator
Inflation Calculator at http://cost.jsc.nasa.gov/inflateGDP.html.
EPA is aware that final SCC values were published on March 9, 2010
in conjunction with a Department of Energy final rule. EPA intends
to use the final SCC values for the CCR final rule RIA. The final
SCC values are published in the Department of Energy, Energy
Efficiency & Renewable Energy Building Technologies Program, ``Small
Electric Motors Final Rule Technical Support Document: Chapter 16--
Regulatory Impact Analysis,'' March 9, 2010 at http://www1.eere.energy.gov/buildings/appliance_standards/commercial/sem_finalrule_tsd.html).
\60\ These benefits estimates are further discussed in Chapter
5C of the RIA which is available in the docket for this proposal.
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However, as discussed in the next section, there are cases where
large quantities of CCRs have been ``used'' indiscriminately as
unencapsulated ``fill,'' e.g., to fill sand and gravel pits or
quarries, or as general fill (e.g., Pines, Indiana and the Battlefield
Golf Course in Chesapeake, Virginia \61\). Although EPA does not
consider these practices to be legitimate beneficial uses, others
classify them as such. In any case, EPA has concluded that these
practices raise significant environmental concerns.
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\61\ These instances are associated with 7 proven damage cases
and 1 potential damage case.
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4. Documented cases in which danger to human health or the
environment from surface runoff or leachate has been proved: As
described previously, EPA has identified 27 proven damage cases: 17
cases of damage to groundwater, and ten cases of damage to surface
water, 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 there was a liner.
We have also identified 40 potential damage cases to groundwater and
surface water. These numbers compare to 14 proven damage cases and 36
potential cases of damage when the Agency announced its Regulatory
Determination in May 2000. The Agency believes that these numbers
likely underestimate the number of proven and potential damage cases
and that it is likely that additional cases of 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.
Several of the new damage cases involve activities that differ from
prior damage cases, which were focused on groundwater contamination
from landfills and surface impoundments. These new cases present
additional risk concerns that EPA did not evaluate in the May 2000
Regulatory Determination. Specifically, some of the recent proven
damage cases involved the catastrophic release due to the structural
failure of CCR surface impoundments, such as the dam failures that
occurred in Martins Creek, Pennsylvania and Kingston, Tennessee.
In addition, a number of proven damage cases involve the large-
scale placement, akin to disposal, of CCRs, under the guise of
``beneficial use.'' The ``beneficial use'' in these cases involved the
filling of old, unlined quarries or gravel pits, or the regrading of
landscape with large quantities of CCRs. For example, the 216-acre
Battlefield Golf Course was contoured with 1.5 million yards of fly ash
to develop the golf course. In late 2008, groundwater and surface water
sampling was conducted. There were exceedances of primary drinking
water standards in on-site groundwater for contaminants typically found
in fly ash. In addition, there were exceedances of secondary drinking
water standards in both on-site and off-site groundwater (in nine
residential wells); however, the natural levels of both manganese and
iron in the area's shallow aquifer are very high (0.14 mg/L to 0.24.mg/
L and 5.0 mg/L to 13.0 mg/L, respectively), and, thus, it could not be
ruled out that the elevated levels of manganese and iron are a result
of the natural background levels of these two contaminants. Surface
water samples showed elevated levels of aluminum, chromium, iron, lead,
manganese, and thallium in one or more on-site samples. The lone off-
site surface water sample had elevated levels of aluminum, iron, and
manganese. In April 2010 EPA issued a Final Site Inspection Report \62\
which concluded that (i) metals contaminants were below MCLs and Safe
Drinking Water Act action levels in all residential wells that EPA
tested; (2) the residential well data indicate that metals are not
migrating from the fly ash to residential wells; and (iii) there are no
adverse health effects expected from human exposure to surface water or
sediments on the Battlefield Golf Course site as the metal
concentrations were below the ATSDR standards for drinking water and
soil. Additionally, the sediments samples in the ponds were below EPA
Biological Technical Assistance Group screening levels and are not
expected to pose a threat to ecological receptors. Similarly, beginning
in 1995, the BBBS sand and gravel quarries in Gambrills, Maryland, used
fly ash and bottom ash from two Maryland power plants to fill excavated
portions of two sand and gravel quarries. Groundwater samples collected
in 2006 and 2007 from residential drinking water wells near the site
indicated that, in certain locations, contaminants, including heavy
metals and sulfates, were present at or above groundwater quality
standards. Private wells in 83 homes and businesses in areas around the
disposal site were tested. MCLs were exceeded in 34 wells [arsenic (1),
beryllium (1), cadmium (6), lead (20),\63\ and thallium (6)]. SMCLs
were exceeded in 63 wells [aluminum (44), manganese (14), and sulfate
(5)]. The state concluded that leachate from the placement of CCRs at
the site resulted in the discharge of pollutants to waters of the
state.
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\62\ http://www.epa.gov/reg3hwmd/CurrentIssues/finalr-battlefield_golf_club_site/redacted_DTN_0978_Final_Battlefield_SI_Report.pdf.
\63\ It is uncertain whether lead exceedances were due to CCRs
or lead in the plumbing and water holding tanks.
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Further details on these additional damage cases are provided in
section II. C (above), and in the Appendix to this notice.
As mentioned in section II.C, during the development of this
proposal, EPA received new reports from industry and citizen groups
regarding damage cases. Industry provided information that, they
suggested, shows that many of EPA's listed proven damage cases do not
meet EPA's criteria for a damage case to be proven. On the other hand,
citizen groups recently identified additional alleged damage cases. The
Agency has not yet had an opportunity to evaluate this additional
information. EPA's analysis, as well as the additional information from
industry and citizen groups, all of which is available in the docket to
this proposed rule, would
[[Page 35156]]
benefit from public input and further review, in the interest of
reaching a more complete understanding of the nature and number of
damage cases. EPA encourages commenters to consider all of these
analyses in developing their comments.
5. Alternatives to current disposal methods: There are no
meaningful disposal alternatives other than land disposal. Improved
disposal management practices are practical (e.g., liners, groundwater
monitoring, dust control), although EPA has not identified meaningful
or practical treatment options prior to disposal, other than
dewatering. (There are, however, available technologies, or
technologies under development, to process CCRs now likely destined for
disposal so that they can effectively be converted to appropriate
beneficial uses.) The beneficial use of these materials as products
continues to be an important alternative to disposal.
6. The cost of such alternative disposal methods: The Agency has
estimated the nationwide costs to the electric utility industry (or to
electric rate payers) for each alternative considered for this
proposal. These estimates are discussed in the regulatory impact
analysis presented within section XII.A of this preamble.
7. The impact of the alternative disposal methods on the use of
coal and other natural resources: The alternative disposal methods
mentioned above are not expected to impact the use of coal or other
natural resources. However, we would note that some surface
impoundments at coal-fired utilities are also used as wastewater
treatment systems for other non-CCR wastewaters. Therefore, if
facilities switch from wet to dry handling of CCRs, construction of
alternative wastewater treatment systems could become necessary for
other non-CCR wastewaters, especially if they involved acidic wastes
that are currently neutralized by the coal ash. (Note that the issue of
beneficial uses of CCRs is discussed below; if the effect of a subtitle
C approach is to increase beneficial uses, it could lead to a decrease
in the use of virgin materials like ingredients in cement making,
aggregate, mined gypsum, etc. On the other hand, if the effect of that
approach were to decrease beneficial uses, as some commenters
suggested, it would have the opposite effect on the use of natural
resources.)
8. The current and potential utilization of CCRs: In 2008, nearly
37% (50.1 million tons) of CCRs were beneficially used (excluding
minefill operations) and nearly 8% (10.5 million tons) were placed in
minefills. (This compares to 23% of CCRs that were beneficially used,
excluding minefilling, at the time of the May 2000 Regulatory
Determination, and represents a significant increase.)
Parties have commented that any regulation of CCRs under RCRA
subtitle C will impose a crippling stigma on their beneficial use, and
eliminate or significantly curtail these uses, even if EPA were to
regulate only CCRs destined for disposal, without modifying the
regulatory status of beneficial reuse. On the other hand, other parties
have commented that increasing the cost of disposal of CCRs through
regulation under subtitle C will actually increase their usage in non-
regulated beneficial uses, simply as a result of the economics of
supply and demand. States, at the same time, have commented that, by
operation of state law, the beneficial use of CCRs would be prohibited
under the states' beneficial use programs, if EPA designated CCRs as
hazardous waste when disposed of in landfills or surface impoundments.
At the time of the May 2000 Regulatory Determination, commenters had
raised this similar concern, and without agreeing that regulation under
RCRA subtitle C would necessarily affect the beneficial reuse of this
material, EPA nevertheless strongly expressed concern that beneficial
use not be adversely affected.
EPA is interested in additional information supporting the claims
that ``stigma'' will drive people away from the use of valuable
products, or that states will prohibit the reuse of CCRs under their
beneficial use programs if EPA regulates any aspect of CCR management
under subtitle C. Specifically, the Agency requests that commenters
provide analyses and other data and information that demonstrate this
to be the case. To date, we have received statements and declarations
that regulation under subtitle C will have devastating effects on
beneficial uses of CCRs. In addition, for those commenters who suggest
that regulating CCRs under subtitle C of RCRA would raise liability
issues, EPA requests that commenters describe the types of liability
and the basis, data, and information on which these claims are based.
The issue of beneficial use and stigma are more fully discussed in
section VI, where we discuss the alternative of regulating CCRs under
subtitle C of RCRA. EPA would also be interested in suggestions on
methods by which the Agency could reduce any stigmatic impact that
might indirectly arise as a result of regulation of CCRs destined for
disposal as a ``special'' waste under RCRA subtitle C.
C. Preliminary Bevill Conclusions and Impact of Reconsideration
The Agency is proposing two different approaches to regulating
CCRs: Regulation as a ``special'' waste listed under RCRA subtitle C if
EPA decides to lift the Bevill exemption with respect to disposal; and
regulation as a solid waste under RCRA subtitle D, if the Bevill
exemption is retained for disposal. Under both of these approaches,
requirements for liners and groundwater monitoring would be
established, although there are differences with respect to the other
types of requirements that can be promulgated by EPA under RCRA
subtitle C and D. In addition, as discussed in greater detail below,
one of the primary differences between the various approaches relates
to the degree and extent of federal oversight, as this varies
considerably between the alternatives. As noted previously, EPA has not
yet reached a decision on whether to regulate CCRs under RCRA subtitle
D or C, but continues to evaluate each of these options in light of the
8002(n) factors.
In determining the level of regulation appropriate for the
management of CCRs, several considerations weigh heavily with the
Agency; information on these issues will therefore be important for
commenters to consider as they prepare their comments. One particularly
critical question relates to the extent of the risks posed by the
current management of this material, along with the corresponding
degree of Federal oversight and control necessary to protect human
health and the environment. As discussed in the preceding sections,
since EPA's Regulatory Determination in May 2000, new information has
called into question EPA's original assessment of the risks posed by
the current management of CCRs that are disposed of. In summary, this
includes (1) The results of EPA's 2010 risk assessment, which indicates
that certain management practices--particularly units without composite
liners and the prevalence of wet handling can pose significant risks;
(2) the growing record of proven damage cases to ground water and
surface water, as well as a large number of potential damage cases; (3)
recent events, which have demonstrated that these wastes have caused
greater damage to human health and the environment than originally
estimated (i.e., catastrophic environmental impacts from surface
impoundment breaches, and damage resulting from ``sham beneficial
uses''); and (4) questions regarding the adequacy of
[[Page 35157]]
state regulatory programs for the management of CCRs, as many states
appear to lack key protective requirements for liners and groundwater
monitoring and a permitting program to ensure that such provisions are
being properly implemented, even though overall industry practices
appear to be improving. All of these considerations illustrate that in
many cases CCRs have not been properly managed. The question is whether
federal regulation is more appropriate under subtitle C or subtitle D
of RCRA.
Several significant uncertainties remain with respect to all of the
identified considerations. For example, as discussed previously, the
data and analyses associated with this proposal are complex, and
several uncertainties remain in EPA's quantitative risk analysis. One
of these uncertainties is the evolving character/composition of CCRs
due to electric utility upgrades and retrofits needed to comply with
the emerging CAA requirements, which could present new or otherwise
unforeseen contaminant issues (e.g., hexavalent chromium from post-
NOX controls). Other uncertainties relate to the extent to
which some sampled data with high concentrations used in the risk
assessment accurately reflect coal ash leaching from landfills or
surface impoundments, and the extent to which releases from surface
impoundments located in close proximity to water bodies intercept
drinking water wells. For example, as explained earlier in the
preamble, 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. There are also technical issues associated
with releases from surface impoundments located in close proximity to
water bodies which intercept 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.
As mentioned previously, EPA has received additional reports on
damage cases, one from industry and one from citizen groups. Closer
analyses of these reports could have the potential to significantly
affect the Agency's conclusions.
An equally significant component of the overall picture, if not
more so, relates to how effectively state regulatory programs address
the risks associated with improper management of this material. As
discussed earlier in this preamble, the continued damage cases and the
reports on state regulatory programs call into question whether the
trend in improving state regulatory regimes that EPA identified in May
2000 has materialized to the degree anticipated in the Regulatory
Determination. Although recent information indicates that significant
gaps remain, EPA continues to lack substantial details regarding the
full extent of state regulatory authority over these materials, and the
manner in which states have in practice, implemented this oversight.
Nevertheless, based on the information made available on state
programs, the Agency is reticent to establish a regulatory program
without any federal oversight. Thus, EPA seeks additional details on
regulation of CCRs by states to ensure that EPA's understanding of
state programs is as complete as possible. While EPA recognizes that
the extent of regulation of CCRs varies between states, EPA is not yet
prepared to draw overall conclusions on the adequacy of state programs,
as a general matter. EPA is, therefore, requesting that commenters, and
particularly state regulatory authorities, provide detailed information
regarding the extent of available state regulatory authorities, and the
manner in which these have been, and are currently implemented. In this
regard, EPA notes that ``survey'' type information that does not
provide these details is unlikely to be able to resolve the concerns
arising from the recent information developed since the May 2000
Regulatory Determination. EPA is also soliciting comments on the extent
to which the information currently available to the Agency reflects
current industry practices at both older and new units. For example,
EPA would be particularly interested in information that indicates how
many facilities currently have groundwater monitoring systems in place,
how those systems are designed and monitored, and what, if anything,
they have detected.
EPA has identified several issues that will be relevant as it
continues to evaluate the overall adequacy of state regulatory
programs. Specifically, EPA intends to 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 CCRs; (6)
whether financial responsibility requirements are in place for the
management of CCRs; (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.
Directly related to the level of risk presented by improper
management of CCRs, EPA is also weighing the differing levels of
Federal oversight and control, and the practical implementation
challenges, associated with the level and type of regulation under RCRA
subtitles C and D. In the interest of furthering the public
understanding of this topic, EPA presents an extensive discussion of
the differences and concerns raised between regulation under subtitles
C and D of RCRA, including a comparison of the advantages and
disadvantages of each.
The subtitle C approach proposed today would provide full national
cradle-to-grave control over CCRs destined for disposal, consistently
managed under federally enforceable standards and through federal
permits, or permits issued by the states that EPA has authorized to
regulate CCRs in lieu of EPA. Permits can be a particularly important
mechanism, because they allow the regulatory Agency to scrutinize the
design of disposal units and the management practices of the permit
applicant. They also allow the regulator to tailor the permit
conditions to the facility site conditions, including the ability to
impose additional specific conditions where it deems current or
proposed facility practices to be inadequate to protect human health or
the environment, pursuant to the omnibus authority in RCRA section
3005(c). Additionally, permitting processes provide the public and the
local community the opportunity to participate in regulatory decisions.
The combined requirements under subtitle C would effectively phase-out
all wet handling of CCRs and prohibit the disposal of CCRs in surface
impoundments. Moreover, the subtitle C approach is the only approach
that
[[Page 35158]]
allows direct federal enforcement of the rule's requirements. The many
damage cases, including more recent damage cases, suggest the value of
control and oversight at the federal level.
At the same time, EPA acknowledges concerns with a subtitle C
approach on the part of states, the utilities, and users of CCR-derived
products. The states have expressed concern that any federal approach,
including a subtitle D approach, has the potential to cause disruption
to the states' implementation of CCR regulatory programs under their
own authority. For example, the state of Maryland has recently upgraded
its disposal standards for CCRs under its state solid waste authority,
and the new state regulations address the major points in today's
proposal (except the stability requirement for impoundments and the
prohibition against surface impoundments). The state has expressed
concern about having to revise its regulations again, and re-permit
disposal units under subtitle C of RCRA. A subtitle D approach, as
described in today's proposal, would eliminate or significantly reduce
these concerns. EPA acknowledges these concerns, and certainly does not
wish to force the states to go through unnecessary process steps. EPA
nevertheless solicits comment on this issue, including more specifics
on the potential for procedural difficulties for state programs, and
measures that EPA might adopt to try to mitigate these effects.
Two additional substantive concerns with regulation of CCRs under
subtitle C have been raised by commenters: the effect of listing CCRs
as hazardous waste under RCRA on beneficial uses, and the availability
of existing subtitle C landfill capacity to manage CCRs. As explained
previously, EPA shares the concern that beneficial uses not be
inadvertently adversely affected by the regulation of CCRs destined for
disposal. EPA continues to believe that certain beneficial use, when
performed properly, is the environmentally preferable destination for
these materials and, therefore, wants to address any potential stigma
that might arise from designating CCRs as hazardous wastes. Thus, EPA
is seeking data and information, including detailed analyses, of why
the subtitle C regulation outlined in today's proposal will have the
impact that some commenters have identified. As explained at length in
section VI of this preamble, EPA believes it can generally address the
concerns that have been raised regarding the effect of subtitle C
regulation on legitimate beneficial uses in today's proposal through
several of the actions outlined in today's proposal. The most important
of these is that EPA is not proposing to revise its May 2000 Regulatory
Determination that beneficial uses retain the Bevill exemption and do
not warrant federal regulation. Nevertheless, EPA agrees that
``stigma'' is an important consideration in the Agency's decision, and
solicits information and data that will help the Agency quantify the
potential effects of any stigma arising from association with CCR
disposal regulated under subtitle C.
On the question of hazardous waste disposal capacity, EPA believes
that management patterns of CCRs will continue: That landfills and
surface impoundments currently receiving CCRs will obtain interim
status and convert to RCRA subtitle C status, and that the proposal
will not shift disposal patterns in a way that substantially increases
the disposal of CCRs off-site from generating utilities to commercial
hazardous waste landfills. Therefore, EPA's regulatory analysis assumes
disposal patterns will remain generally the same. As commenters have
pointed out, CCRs do, in theory, have the potential to overwhelm the
current hazardous waste capacity in the United States. EPA's Biennial
Report indicates that approximately two million tons of hazardous waste
are disposed of annually in hazardous waste landfills, and EPA
estimates that the current total national commercial hazardous waste
landfill disposal capacity is between 23.5 and 30.3 million tons, while
the annual amount of CCRs currently going to land disposal is 46
million tons (with an additional 29.4 million tons going to surface
impoundments).\64\ These figures illustrate the very large volume of
CCR material involved, and how it could overwhelm existing subtitle C
disposal capacity. While a DOE survey reports that 70% of disposal
involves ``company on-site'' disposal units and 30% involves ``off-
site'' disposal units, DOE indicated that off-site disposal capacity
can be company owned or commercial disposal units. In communications
with USWAG, they indicated, in some cases smaller facilities may send
ash to a commercial operation, but believed that is in no way
representative of the industry as a whole. In some cases, the disposal
facility may be operated by a contractor for the utility, and the
landfill is a captive facility that does not receive other industrial
wastes. At the same time, EPA points out that, to the extent that new
capacity is needed, the implementation of today's rule, if the subtitle
C alternative is selected, will take place over a number of years,
providing time for industry and state permitting authorities to address
the issue. However, this is an issue on which EPA would find further
information to be helpful. Therefore, EPA solicits detailed information
on this topic, to aid in further quantifying the extent to which
existing capacity may be insufficient. For example, EPA is interested
in detailed information on the volume of CCRs now going off-site for
disposal; the nature of off-site disposal sites (e.g., commercial
subtitle D landfills versus dedicated CCR landfills owned by the
utility); and the amount of available land on utility sites for added
disposal capacity.
---------------------------------------------------------------------------
\64\ These figures reflect the total current capacity, not
annual capacity. The annual capacity is significantly less:
modifications to annual capacity would require modifications to
existing permits.
---------------------------------------------------------------------------
Finally, the states have expressed concern that the RCRA subtitle C
requirements will be considerably more expensive for them to implement
than a RCRA subtitle D regulation, without providing commensurate
benefits. For example, the states have reported that regulation under
RCRA subtitle C, versus subtitle D, would cost them an additional $17
million per year to implement. EPA acknowledges the concern that the
RCRA subtitle C requirements can be costly to implement, and could put
more pressure on diminishing state budgets. However, were states to
utilize the subtitle D requirements of today's proposal, the cost of
implementing a RCRA subtitle D program will also be expensive. Thus,
EPA is aware of the pressures on state budgets and will consider
potential impacts when making a final determination for this
rulemaking. Nevertheless, in the event that EPA determines that RCRA
subtitle C regulation is warranted, it will be because EPA has
determined that there are serious environmental and human health risks
that can only be remedied by regulation under subtitle C. Further,
under the subtitle C scenario, we believe that most states should be
able to address any shortfalls through hazardous waste generator or
disposal fees. EPA specifically solicits comments from states as to the
extent to which such fees would be able to offset the costs of
administering permit, inspection, and enforcement programs.
EPA notes that its estimates of costs of compliance with the
subtitle C requirements have increased since its estimates in the 1999
Report to Congress; as explained later in this preamble, EPA believes
these costs are commensurate with the benefits to be derived from the
controls, and that the costs of regulation under RCRA subtitle D are
substantial as well. For example,
[[Page 35159]]
one of the major potential costs under either the subtitle C or
subtitle D option is associated with the required closure of all
existing surface impoundments that do not meet the rule's technical
requirements, which EPA is proposing under both the subtitle C and
subtitle D co-proposals. Further, the technical unit design and
groundwater monitoring requirements that will effectively protect human
health and the environment under either option are quite similar.
Finally, EPA is proposing to modify certain aspects of the RCRA
subtitle C framework to address some of the practical implementation
challenges associated with applying the existing regulatory framework
to these wastes. However, commenters have suggested that EPA has
underestimated the costs of compliance under the subtitle C
requirements upstream of surface impoundments and landfills (e.g., for
storage). Commenters, however, have not provided specific cost
estimates associated with storage of CCRs. EPA specifically solicits
substantiating detail from commenters.
One disadvantage of a RCRA subtitle C approach, compared to a RCRA
subtitle D approach, is that the subtitle C approach, in most states,
will not go into effect as quickly as subtitle D. That is, the subtitle
C regulations require an administrative process before they become
effective and federally enforceable (except in the two states that are
not authorized to manage the RCRA program). The RCRA hazardous waste
implementation and authorization process is described in detail in
sections VII and VIII of this preamble. But to summarize, federal
regulations under subtitle C would not go into effect and become
federally enforceable until RCRA-authorized states \65\ have adopted
the requirements under their own state laws, and EPA has authorized the
state revisions. Under the RCRA subtitle C regulations, when EPA
promulgates more stringent regulations, states are required to adopt
those rules within one year, if they can do so by regulation, and two
years if required by legislative action. If a state does not adopt new
regulations promptly, EPA's only recourse is to withdraw the entire
state hazardous waste program. If EPA determines that a subtitle C rule
is warranted, the Agency will place a high priority on ensuring that
states promptly pick up the new rules and become authorized, and EPA
will work aggressively toward this end. Three decades of history in the
RCRA program, however, suggest that this process will take two to five
years (if not longer) for rules to become federally enforceable.\66\
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\65\ Currently, all but two states are authorized for the base
RCRA program.
\66\ In addition, existing facilities would generally operate
under self-implementing interim status provisions until the state
issued a RCRA permit, which is a several year process, although
presumably the facility might remain under state solid waste
permits, depending on state law.
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At the same time, EPA believes there may be benefits in a RCRA
subtitle D approach that establishes specific self-implementing
requirements that utilities and others managing regulated CCRs would
have to comply with, even in the absence of permitting or direct
regulatory oversight. EPA recognizes that many of the states have
regulatory programs in place, albeit with varying requirements, for the
disposal of CCRs, and that industry practices have been improving. The
RCRA subtitle D approach would complement existing state programs and
practices by filling in gaps, and set forth criteria for disposing of
CCRs to meet the national minimum standards that are designed to
address key risks identified in damage cases and the risk assessment--
including the risk of surface impoundment failure, which has been
identified as a concern appropriate for control.
The co-proposed RCRA subtitle D option is less costly than the co-
proposed RCRA subtitle C option, according to EPA's Regulatory Impact
Assessment. The main differences in the costs are based on the
assumption that there will be less compliance, or slower compliance,
under a RCRA subtitle D option. In addition, the industry and state
commenters suggested that a RCRA subtitle D approach would eliminate
two of their concerns: (1) That a RCRA subtitle C approach would
inappropriately stigmatize uses of CCRs that provide significant
environmental or economic benefits, or that (according to those
commenters) hold significant potential promise, and (2) that the volume
of CCR wastes generated--particularly if requirements of a RCRA
subtitle C regulation led to more off-site disposal--would overwhelm
existing subtitle C capacity based on the large volumes of CCRs that
are generated and would need to be disposed of. It would also reduce or
eliminate expressed industry concerns about the effect of RCRA subtitle
C requirements on plant operations, and state concerns related to the
burden of the RCRA subtitle C permitting process. Related to the
capacity issue, these same commenters have also suggested that, under
the RCRA subtitle C regulations, future cleanup of poorly sited or
leaking disposal sites (including historical or legacy sites) would be
considerably more expensive, especially where off-site disposal was
chosen as the option. (EPA's RIA does not quantify this last issue, but
the RIA does discuss two recent cases as examples; EPA solicits more
detailed comment on this issue, preferably with specific examples.) As
stated earlier, EPA does not have sufficient information to conclude
that regulation under RCRA subtitle C will stigmatize CCRs destined for
beneficial use, for the reasons discussed elsewhere in today's
preamble, and the Agency does not at this point have reason to assume
that use of off-site commercial disposal of CCRs will increase
significantly.
EPA also notes that many of the requirements discussed above would
go into effect more quickly under RCRA subtitle D. Under subtitle D of
RCRA, EPA would set a specific nationwide compliance date and industry
would be subject to the requirements on that date, although as
discussed elsewhere in today's preamble, EPA's ability to enforce those
requirements is limited. (Of course, certain requirements, such as
closure of existing surface impoundments, would have a delayed
compliance date set to reflect practical compliance realities, but
other requirements, for example, groundwater monitoring or the
requirement that new surface impoundments be constructed with composite
liners could be imposed substantially sooner than under a RCRA subtitle
C rule.) The possible exception would be if EPA decided to establish
financial assurance requirements through a regulatory process currently
underway that would establish financial assurance requirements for
several industries pursuant to CERCLA 108(b), including the Electric
Power Generation, Transmission and Distribution Industry. For a more
detailed discussion of these issues see section IX.
However, there are also disadvantages to any approach under RCRA
subtitle D. Subtitle D provides no Federal oversight of state programs
as it relates to CCRs. It establishes a framework for Federal, state,
and local government cooperation in controlling the management of
nonhazardous solid waste. The Federal role in this arrangement is to
establish the overall regulatory direction, by providing minimum
nationwide standards for protecting human health and the environment,
and to provide technical assistance to states for planning and
developing their own environmentally sound waste management practices.
The co-proposed subtitle D alternative in this proposal would establish
national minimum
[[Page 35160]]
standards specifically for CCRs for the first time. The actual planning
and direct implementation of solid waste programs under RCRA subtitle
D, however, remain state and local functions, and the act authorizes
states to devise programs to deal with state-specific conditions and
needs.
In further contrast to subtitle C, RCRA subtitle D requirements
would regulate only the disposal of solid waste, and EPA does not have
the authority to establish requirements governing the transportation,
storage, or treatment of such wastes prior to disposal. Under RCRA
sections 4004 and 4005(a), EPA cannot require that facilities obtain a
permit for these units. EPA also does not have the authority to
determine whether any state permitting program for CCR facilities is
adequate. This complicates the Agency's ability to develop regulations
that can be effectively implemented and tailored to individual site
conditions. Moreover, EPA does not have the authority to enforce the
regulations, although, the ``open dumping'' prohibition may be enforced
by states and citizens under section 7002 of RCRA.
D. EPA Is Not Reconsidering the Regulatory Determination Regarding
Beneficial Use
As noted previously, in the May 2000 Regulatory Determination, EPA
concluded that federal regulation was not warranted for the beneficial
uses identified in the notice, because: ``(a) We have not identified
any other beneficial uses that are likely to present significant risks
to human health or the environment; and (b) no documented cases of
damage to human health or the environment have been identified.
Additionally, we do not want to place any unnecessary barriers on the
beneficial uses of coal combustion wastes so they can be used in
applications that conserve natural resources and reduce disposal
costs.'' (See 65 FR 32221) EPA did not conduct specific risk
assessments for the beneficial use of these materials, except as noted
below and elsewhere in this preamble. Instead, it generally described
the uses and benefits of CCRs, and cited the importance of beneficially
using secondary materials and of resource conservation, as an
alternative to disposal. However, EPA did conduct a detailed risk
assessment of certain agricultural uses of CCRs,\67\ since the use of
CCRs in this manner is most likely to raise concerns from an
environmental point of view. Overall, EPA concluded at the time that
the identified uses of CCRs provided significant benefits
(environmental and economic), that we did not want to impose an
unnecessary stigma on these uses and therefore, we did not see a
justification for regulating these uses at the federal level.
---------------------------------------------------------------------------
\67\ Draft Final Report; Non-groundwater Pathways, Human Health
and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2
(FFC2) and its appendices (A through J); available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm.
---------------------------------------------------------------------------
Since EPA's Regulatory Determination in May 2000, the Agency has
gathered additional information. In addition to the evolving character/
composition of CCRs due to electric utility upgrades and retrofits
needed to comply with the emerging CAA requirements, which could
present new or otherwise unforeseen contaminant issues (e.g.,
hexavalent chromium from post-NOX controls), changes
include: (1) A significant increase in the use of CCRs, and the
development of established commercial sectors that utilize and depend
on the beneficial use of CCRs, (2) the recognition that the beneficial
use of CCRs (and, in particular, specific beneficial uses of CCRs, such
as using fly ash as a substitute for Portland cement in the production
of concrete) provide significant environmental benefits, including the
reduction of GHG emissions, (3) the development of new applications of
CCRs, which may hold even greater GHG benefits (for example, fly ash
bricks and a process to use CO2 emissions to produce cement), (4) new
research by EPA and others indicating that the standard leach tests--
e.g., the Toxicity Characteristic Leaching Procedure (TCLP) that have
generally been used may not accurately represent the performance of
varying types of CCRs under variable field conditions, (5) new studies
and research by academia and federal agencies on the use of CCRs,
including studies on the performance of CCR-derived materials in
concrete, road construction,\68\ and agriculture,\69\ and studies of
the risks that may or may not be associated with the different uses of
CCRs, including uses of unencapsulated CCRs, and (6) the continuing
development of state ``beneficial use'' regulatory programs under state
solid waste authorities.
---------------------------------------------------------------------------
\68\ See http://www.epa.gov/osw/partnerships/c2p2/cases/index.htm.
\69\ See http://www.epa.gov/osw/partnerships/c2p2/pubs/fgd-fs.pdf.
---------------------------------------------------------------------------
Some of these changes confirm or strengthen EPA's Regulatory
Determination in May 2000 (e.g., the growth and maturation of state
beneficial use programs and the growing recognition that the beneficial
use of CCRs is a critical component in strategies to reduce GHG
emissions); other developments raise critical questions regarding this
determination (e.g., the potentially changing composition of CCRs as a
result of improved air pollution control and the new science on metals
leaching). EPA solicits information and data on these developments and
how the beneficial use of CCRs will be affected (e.g., increased use of
fly ash in cement and concrete).
However, on balance, after considering all of these issues and the
information available to us at this time, EPA believes that the most
appropriate approach toward beneficial use is to leave the May 2000
Regulatory Determination in place, as the Agency, other federal
agencies, academia, and society more broadly investigate these critical
questions and clarify the appropriate beneficial use of these
materials. This section provides EPA's basis for leaving the Bevill
exemption in place for these beneficial uses, although as discussed
throughout this section, EPA is also soliciting comment on
unencapsulated uses of CCRs and whether they should continue to be
exempted as a beneficial use under the Bevill exemption.
EPA is proposing this approach in recognition that some uses of
CCRs, such as encapsulated uses in concrete, and use as an ingredient
in the manufacture of wallboard, provide benefits and raise minimal
health or environmental concerns. That is, from information available
to date, EPA believes that encapsulated uses of CCR, as is common in
many consumer products, does not merit regulation. On the other hand,
unencapsulated uses have raised concerns and merit closer attention.
For example, the placement of unencapsulated CCRs on the land, such as
in road embankments or in agricultural uses, presents a set of issues,
which may pose similar concerns as those that are causing the Agency to
propose to regulate CCRs destined for disposal. Still, the amounts and,
in some cases, the manner in which they are used--i.e., subject to
engineering specifications and material requirements rather than
landfilling techniques--are very different from land disposal. EPA also
notes that stakeholders, such as Earthjustice have petitioned EPA to
ban particular uses of CCR; for example, the placement of CCRs in
direct contact with water bodies.
Due to such issues as the changing characteristics of CCRs, as a
result of more widespread use of air pollution control technologies and
the new information becoming available on the
[[Page 35161]]
leaching of metals from CCRs, we are considering approaches such as,
better defining beneficial use or developing detailed guidance on the
beneficial use of CCRs to supplement the regulations. The Agency
solicits information and data on these and other approaches that EPA
could take in identifying when uses of CCRs constitute a ``beneficial
use,'' and consequently will remain exempt.
Other alternative approaches--for example, to regulate the
beneficial use of CCRs under the regulations that apply to ``use
constituting disposal,'' to prohibit unencapsulated uses outright,
including CCRs used in direct contact with water matrices, including
the seasonal high groundwater table, or to require front-end CCR and
site characterization through the use of leach tests adapted for
specific uses of CCR, prior to CCR management decisions--could address
concerns that have been expressed over the land placement of CCRs.
However, EPA is trying to balance concerns that proposing one or more
of these alternatives might have the effect of stifling economic
activities and innovation in areas that have potential for
environmental benefits, while also providing adequate protection of
human health and the environment.
At the same time, EPA recognizes that seven proven damage cases
involving the large-scale placement, akin to disposal, of CCRs has
occurred under the guise of ``beneficial use''--the ``beneficial'' use
being the filling up of old quarries or gravel pits, or the regrading
of landscape with large quantities of CCRs. EPA did not consider this
type of use as a ``beneficial'' use in its May 2000 Regulatory
Determination, and does not consider this type of use to be covered by
the exclusion. Therefore, today's proposed rule explicitly removes
these types of uses from the category of beneficial use, such that they
would be subject to the management standards that EPA finally
promulgates. EPA also seeks information and data on whether it should
take a similar approach in today's proposal to unencapsulated uses of
CCRs, such as the placement of unencapsulated CCRs on the land--e.g.,
agricultural uses. Alternatively, EPA is also soliciting comment on
whether the Agency should promulgate standards allowing such uses, on a
site-specific basis, based on a site specific risk assessment, taking
into consideration, inter alia, the CCRs character and composition,
their leaching potential under the range of conditions under which CCRs
will be managed, and the context in which the CCRs will be applied,
such as location, volume, rate of application, and proximity to water.
Before getting into a detailed discussion of the materials in
question, EPA would reiterate that CCRs, when beneficially used will
conserve resources, provide improved material properties, reduce GHG
emissions, lessen the need for waste disposal units, and provide
significant domestic economic benefits (as noted above in section XII).
At the same time, EPA recognizes that there are important issues and
uncertainties associated with specific uses of specific CCRs, that
there has been considerable recent and ongoing research on these uses,
and that the composition of CCRs are likely changing as a result of
more aggressive air pollution controls. EPA is particularly concerned
that we avoid the possibility of cross-media transfers stemming from
CAA regulations requiring the removal of hazardous air pollutants
(e.g., arsenic, mercury, selenium) from utility stacks being released
back into the soil and groundwater media through inappropriate
``beneficial'' uses.
EPA has received numerous comments on specific uses of CCRs, and we
have been working with states to help them develop effective beneficial
use programs (which apply to a wide range of secondary materials, not
just CCRs). EPA, other federal agencies, and academia have conducted
research on specific uses, and have provided guidance and best
management practices on using CCRs in an environmentally sound manner
in a range of applications. For example, EPA, working with the Federal
Highway Administration (FHWA), DOE, the American Coal Ash Association
(ACAA), and USWAG issued guidance in April 2005 on the appropriate use
of coal ash in highway construction. EPA understands that the
composition of CCRs, the nature of different CCR uses, and the specific
environment in which CCRs are used, can affect the effectiveness and
the environmentally sound use of particular projects. In today's
proposal, EPA is suggesting that an appropriate balance can be met by
(1) determining that the placement of CCRs in sand and gravel pits, as
well as the use of large volumes of CCRs in restructuring landscapes to
constitute disposal, rather than the beneficial use of CCRs, and at the
same time (2) leaving in place its determination that the beneficial
uses of CCRs--e.g., those identified in the May 2000 Regulatory
Determination as clarified in this notice--should not be prohibited
from continuing. As described later in this section of today's notice,
EPA solicits comment on whether an alternative approach is appropriate,
particularly for unencapsulated uses of CCRs on the land.
1. Why is EPA not proposing to change the determination that CCRs that
are beneficially used do not warrant federal regulation?
As an initial matter, we would note that for some of the beneficial
uses, CCRs are a raw material used as an ingredient in a manufacturing
process that have never been ``discarded,\70\'' and thus, would not be
solid wastes under the existing hazardous waste rules. For example,
synthetic gypsum is a product of the FGD process at coal-fired power
plants. In this case, the utility designs and operates its air
pollution control devices to produce an optimal product, including 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 CCRs that meet product specifications
would not be affected by today's proposed rule in any case, regardless
of the option taken.
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\70\ In order for EPA to regulate a material under RCRA, the
material must be a solid waste, which the statute defines as
materials that have been discarded. See Section 1004(27) of RCRA for
definition of solid waste.
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With that said, today's proposed action would leave in place EPA's
May 2000 Regulatory Determination that beneficially used CCRs do not
warrant federal regulation under subtitle C or D of RCRA. As EPA stated
in the May 2000 Regulatory Determination, ``In the [Report to
Congress], we were not able to identify damage cases associated with
these types of beneficial uses, nor do we now believe that these uses
of coal combustion wastes present a significant risk to human health
and the environment. While some commenters disagreed with our findings,
no data or other support for the commenters' position was provided, nor
was any information provided to show risk or damage associated with
agricultural use. Therefore, we conclude that none of the beneficial
uses of coal combustion wastes listed above pose risks of concern.''
(See 65 FR 32230.) Since that time, EPA is not aware of data or other
information to indicate that existing
[[Page 35162]]
efforts of states, EPA and other federal agencies are not adequate to
address environmental issues associated with the beneficial uses of
CCRs, that were originally identified in the Regulatory Determination.
Therefore, at this time, EPA is not proposing to reverse that
determination. Specifically: (1) EPA believes today's proposal will
ensure that inappropriate beneficial use situations, like the
Gambrills, MD site, will be regulated as disposal; (2) many states are
developing effective beneficial use programs which, in many cases,
allow the use of CCRs as long as they are demonstrated to be non-
hazardous materials, and (3) EPA does not wish to inhibit or eliminate
the significant and measurable environmental and economic benefits
derived from the use of this valuable material without a demonstration
of an environmental or health threat.
EPA also wants to make clear that wastes that consist of or contain
these Bevill-exempt beneficially used materials, including demolition
debris from beneficially used CCRs in wallboard or concrete that were
generated because the products have reached the end of their useful
lives--would also not be listed as a special waste subject to subtitle
C of RCRA, from the point of their generation to their ultimate
disposal.
In summary, EPA continues to believe that the beneficial use of
CCRs, when performed properly and in an environmentally sound manner,
is the environmentally preferable outcome for CCRs and, therefore, is
concerned about regulatory decisions that would limit beneficial uses,
including research on beneficial uses. Thus, EPA is not proposing to
modify the existing Bevill exemption for CCRs (sometimes referred to as
CCPs when beneficially used), and instead is proposing to leave the
current determination in place. However, EPA recognizes that there is a
disparity in the quality of state programs dealing with beneficial
uses, uncertainty relative to the future characteristics of CCRs and,
therefore, uncertainty concerning the risks associated with some
beneficial uses. At the same time, EPA recognizes the potential
environmental benefits with regard to the uses of CCRs. For these
reasons, EPA is requesting information and data on the appropriate
means of characterizing beneficial uses that are both protective of
human health and the environment and provide benefits. EPA is also
requesting information and data demonstrating where the federal and
state programs are or have been inadequate in being environmentally
protective and, conversely, where states have, or are developing,
increasingly effective beneficial use programs.
As previously discussed, and discussed in section VI, some
stakeholders have commented that EPA should not regulate CCRs when
disposed of in landfills or surface impoundments as a hazardous waste,
because such an approach would stigmatize the beneficial use of CCRs,
and these uses would disappear. Although it remains unclear whether any
stigmatic effect from regulating CCRs destined for disposal as
hazardous waste would decrease the beneficial use of CCRs, and
irrespective of whether EPA ultimately concludes to promulgate
regulations under RCRA subtitles C or D, EPA is convinced that
regulating the beneficial use of CCRs under RCRA subtitle C as
hazardous waste would be unnecessary, in light of the potential risks
associated with these uses. For example, use of fly ash as a
replacement for Portland cement is one of the most environmentally
beneficial uses of CCRs (as discussed below), yet regulating this
beneficial use under RCRA subtitle C requirements would substantially
increase the cost and regulatory difficulties of using this material,
without providing any corresponding risk reduction. Regulating the use
of coal ash as a cement ingredient under RCRA subtitle C would subject
the coal ash to full hazardous waste requirements up to the point that
it is made into concrete, including requirements for generators,
manifesting for transportation, and permits for storage. In addition,
ready-mix operators would be subject to the land disposal restrictions
and other requirements, as use of the concrete would constitute
disposal if placed on the land. EPA instead is proposing an approach
that would allow beneficial uses to continue, under state controls, EPA
guidance, and current industrial standards and practices. Where
specific problems are identified, EPA believes they can be safely
addressed, but we do not believe that an approach that eliminates a
wide range of uses that would add considerably to the costs of the
rule, and that would disrupt and potentially close ongoing businesses
legitimately using CCRs is justified, on the strength of the existing
evidence.
EPA's May 2000 Regulatory Determination not to regulate various
beneficial uses under the hazardous waste requirements, and today's
proposal to leave that determination in place, does not conflict with
EPA's view that certain beneficial uses, e.g., use in road construction
or agriculture, should be conducted with care, according to appropriate
management practices, and with appropriate characterization of the
material and the site where the materials would be placed. In this
respect, CCRs are similar to other materials used in this manner--
including raw materials derived from quarried aggregates, secondary
materials from other industrial processes, and materials derived from
natural ores. Rather, EPA concludes that, based on our knowledge of how
CCRs are used, that potential risks of these uses do not warrant
federal regulation, but can be addressed, if necessary, in other ways,
as discussed previously, such as the State of Wisconsin has an
extensive beneficial use program that supports the use of CCRs in a
variety of circumstances, including in road base construction and
agriculture uses, provided certain criteria are met. Similarly, EPA is
working with the U.S. Department of Agriculture to develop guidance on
the use of FGD gypsum in agriculture.
2. What constitutes beneficial use?
As discussed previously, EPA is not proposing to change the
regulatory status of those CCRs that are beneficially used. However,
because EPA is proposing to draw a distinction between CCRs that are
destined for disposal and those that are beneficially used, we believe
it is necessary and appropriate to distinguish between beneficial use
and operations that would constitute disposal operations--such as large
volumes of CCRs that are used in sand and gravel pits or for
restructuring the landscape. EPA believes the following criteria can be
used to define legitimate beneficial uses appropriately, and are
consistent with EPA's approach in the May 2000 Regulatory
Determination, although such criteria were not specifically identified
at that time:
[cir] The material used must provide a functional benefit. For
example, CCRs in concrete increase the durability of concrete--and are
more effective in combating degradation from salt water; synthetic
gypsum serves exactly the same function in wallboard as gypsum from
ore, and meets all commercial specifications; CCRs as a soil amendment
adjusts the pH of soil to promote plant growth.
[cir] 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
[[Page 35163]]
lieu of portland cement reduces the need for cement. CCRs used in road
bed replace quarried aggregate or other industrial materials. These
CCRs substitute for another ingredient in an industrial or commercial
product.
[cir] Where relevant product specifications or regulatory standards
are available, the materials meet those specifications, and where such
specifications or standards have not been established, they are not
being used in excess quantities. Typically, when CCRs are used as a
commercial product, the amount of CCRs used is controlled by product
specifications, or the demands of the user. Fly ash used as a
stabilized base course in highway construction is part of many
engineering considerations, such as the ASTM C 593 test for compaction,
the ASTM D 560 freezing and thawing test, and a seven day compressive
strength above 2760 (400 psi). If excessive volumes of CCRs are used--
i.e., greater than were necessary for a specific project,--that could
be grounds for a determination that the use was subject to regulations
for disposal.
[cir] In the case of agricultural uses, CCRs would be expected to
meet appropriate standards, constituent levels, prescribed total loads,
application rates, etc. EPA has developed specific standards governing
agricultural application of biosolids. While the management scenarios
differ between biosludge application and the use of CCRs as soil
amendments, EPA would consider application of CCRs for agriculture uses
not to be a legitimate beneficial use if they occurred at constituent
levels or loading rates greater than EPA's biosolids regulations
allow.\71\ EPA also recognizes that the characteristics of CCRs are
such that total concentrations of metals, as biosolids are assessed,
may not be the most appropriate standard, as CCRs have been shown to
leach metals with significant variability.
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\71\ See 40 CFR part 503.
EPA is proposing that these criteria be included in the regulations
as part of the definition of beneficial use. EPA requests comment on
these criteria, as well as suggestions for other criteria that may need
to be included to ensure that legitimate beneficial uses can be
identified and enforcement action can be taken against inappropriate
uses.
Each of the uses identified in the May 2000 Regulatory
Determination, CCRs can and have been utilized in a manner that is
beneficial. The discussion that follows provides a brief summary of how
certain of the beneficial uses meet the various criteria. EPA solicits
comment on the need to provide a formal listing of all beneficial uses.
To this end, EPA solicits comment on whether additional uses of CCRs
have been established since the May 2000 Regulatory Determination that
have not been discussed elsewhere in today's preamble should be
regarded as beneficial. Of particular concern in this regard are
reports that CCRs are being used in producing counter tops, bowling
balls, and in the production of makeup. The Agency solicits comment on
whether use of CCRs in consumer products of this kind can be safely
undertaken. The Agency further solicits comments for any new uses of
CCR, as well as the information and data that supports that it is
beneficially used in an environmentally sound manner. The concern with
such an alternative is that new and innovative uses that are not on the
list would be subject to disposal regulations, until EPA revised its
rule.
In the uses where the CCR is encapsulated in the product, such as
cement, concrete, brick and concrete products, wallboard, and roofing
materials--the CCRs provide a functional benefit--that is, the CCRs
provide a cementitious or structural function, the CCRs substitute for
cement, gypsum, and aggregate and thus save resources that would
otherwise need to be mined and processed, and the CCRs are subject to
product specifications, such as ASTM standards. Some of the uses, such
as CCRs in paints and plastics not only provide benefits, but EPA
generally does not consider materials used in these ways to be waste--
that is, they have not been discarded. Use of CCRs in highway projects
is a significant practice covering road bed and embankments. CCRs used
according to FHA/DOT standards provide an important function in road
building, replacing material that would otherwise need to be obtained,
such as aggregate or clay. In many cases, the CCRs can lead to better
road performance. For snow and ice controls, the beneficial use is
limited to boiler slag and bottom ash, which replaces fine aggregate
that would otherwise need to be used to prevent skidding, and amounts
used are in line with the materials they replace.\72\
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\72\ According to the ACAA survey, 80% of boiler slag--a
vitreous material often used as an abrasive--is reused, although
industry has reported that the demand for boiler slag products is
high, and virtually all of the slag is currently used.
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3. Disposal of CCRs in Sand and Gravel Pits and Large Scale Fill
Operations Is Not Considered a Beneficial Use
As indicated earlier, EPA has identified several proven damage
cases associated with the placement of CCRs in sand and gravel pits.
There has also been significant community concern with large-scale fill
operations. Because of the damage cases and the concern that sand and
gravel pits and large scale fill operations are essentially landfills
under a different name, EPA is clarifying and, thus, proposing to
define the placement of CCRs in sand and gravel pits and large scale
fill projects as land disposal that would be subject to either the
proposed RCRA subtitle C or D regulations. Sites that are excavated so
that more coal ash can be used as fill are also considered CCR
landfills.
However, EPA recognizes that we need to define or provide guidance
on the meaning of ``a large scale fill operation.'' EPA solicits
comments on appropriate criteria to distinguish between legitimate
beneficial uses and inappropriate operations, such as, for example, a
comparison to features associated with relatively small landfills used
by the utility industry, and whether characteristics of the materials
would allow their safe use for a particular application in a particular
setting (i.e., characterize both the materials for the presence of
leachable metals and the area where the materials will be placed).
4. Issues Associated With Unencapsulated Beneficial Uses
Since the May 2000 Regulatory Determination, the major issues
associated with the placement of CCRs on the land for beneficial use
has involved the Gambrills, MD site which involves a sand and gravel
pit and the Battlefield golf course, which was a large scale fill
operation. These are the types of operations that EPA is proposing
would be subject to any disposal regulations proposed in today's rule.
However, because the Gambrills and Battlefield sites involved the
unencapsulated placement of CCRs on the land, it raises questions
regarding the beneficial use of unencapsulated uses of CCRs;
accordingly, in this section, the Agency presents information on the
issues on which it is specifically soliciting comment.
First, we identify the array of environmental issues associated
with unencapsulated uses. CCRs can leach toxic metals at levels of
concern, so depending on the characteristics of the CCR, the amount of
material placed, how it is placed, and the site conditions, there is a
potential for environmental concern.
The importance of characterizing CCRs prior to their
utilization is that CCRs from certain facilities may be acceptable
under particular beneficial
[[Page 35164]]
use scenarios, while the same material type from a different facility
or from the same facility, but generated under different operating
conditions (e.g., different air pollution controls or configurations)
may not be acceptable for the same management scenario. Changes in air
pollution controls will result in fly ash and other CCRs presenting new
contaminant issues (e.g., hexavalent chromium from post-NOx controls).
Additionally, as described in section I. F. 2, there is significant
variability in total metals content and leach characteristics.
The amount of material placed can significantly impact
whether placement of unencapsulated CCRs causes environmental risks.
There are great differences between the amount of material disposed of
in a landfill and in beneficial use settings. For example, a stabilized
fly ash base course for roadway construction may be on the order of 6
to 12 inches thick under the road where it is used--these features
differ considerably from the landfill and sand and gravel pit
situations where hundreds of thousands to millions of tons of CCRs are
disposed of and for which damage cases are documented.
Unencapsulated fly ash used for structural fill is
moistened and compacted in layers, and placed on a drainage layer. By
moistening and compacting the fly ash in layers, the hydraulic
conductivity can be greatly reduced, sometimes achieving levels similar
to liner systems. This limits the transport of water through the ash
and thus acts to protect groundwater. The drainage layer prevents
capillary effects and thus also limits the amount of water that remains
in contact with the fly ash. Although EPA is not aware of the use of
organosilanes for beneficial use operations in the U.S., if mixed with
fly ash, it is reported to be able to essentially render the fly ash
impermeable to water, and thus there may be emerging placement
techniques that can also greatly influence the environmental
assessment.
Site conditions are important factors. Hydraulic
conductivity of the subsurface, the rainfall in the area, the depth to
groundwater, and other factors (e.g., changes in characteristics due to
the addition of advanced air pollution controls) are important
considerations in whether a specific beneficial use will remain
protective of the environment.
Second, EPA notes the work and research being done by states,
federal agencies, and academics to assess, provide guidance on, or
regulate to address the environmental issues that may be associated
with beneficial use. In addition to the recent EPA research on
constituent leaching from CCRs described earlier in the preamble, a few
highlights include:
Many states have beneficial use programs. The ASTSWMO 2006
Beneficial Use Survey Report states: ``A total of 34 of the 40
reporting States, or 85 percent, indicated they had either formal or
informal decision-making processes or beneficial use programs relating
to the use of solid wastes.'' \73\
\73\ Part of EPA's efforts with the states is to support the
development of a national database on state beneficial use
determinations. Information on the beneficial use determination
database can be found on the Northeast Waste Management Officials'
Association (NEWMOA) 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.
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(http://www.astswmo.org/files/publications/solidwaste/2007BUSurveyReport11-30-07.pdf) For example, Wisconsin's Department of
Natural Resources has developed a regulation (NR 538 Wis. Adm. Code),
which includes a five-category system to allow for the beneficial use
of industrial by-products, including coal ash. The state has approved
CCRs in a full range of uses, including road construction and
agricultural uses.
EPA and USDA are conducting a multi-year study on the use
of FGD gypsum in agriculture. The results of that study should be
available in late 2012.
EPA developed an easy to use risk model for assessing the
use of recycled industrial materials in highways. This model is shared
with states to facilitate assessments to determine if such beneficial
use projects will be environmentally protective.\74\
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\74\ See a Final Report titled, ``Use of EPA's Industrial Waste
Management Evaluation Model (IWEM) to Support Beneficial Use
Determinations'' at http://www.epa.gov/partnerships/c2p2/pubs/iwem-report.pdf and the Industrial Waste Management Evaluation Model
(IWEM) at http://www.epa.gov/osw/nonhaz/industrial/tools/iwem.
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There is also considerable study and research by states
and academic institutions, which EPA views as valuable in not only
guiding the parties to appropriate uses, but also in informing EPA. A
few examples are:
[cir] Li L, Benson CH, Edil TB, Hatipoglu B. Groundwater impacts
from coal ash in highways. Waste and Management Resources
2006;159(WR4):151-63.
[cir] Friend M, Bloom P, Halbach T, Grosenheider K, Johnson M.
Screening tool for using waste materials in paving projects (STUWMPP).
Office of Research Services, Minnesota Dept. of Transportation,
Minnesota; 2004. Report nr MN/RC-2005-03.
[cir] Sauer JJ, Benson CH, Edil TB. Metals leaching from highway
test sections constructed with industrial byproducts. University of
Wisconsin--Madison, Madison, WI: Geo Engineering, Department of Civil
and Environmental Engineering; 2005 December 27, Geo Engineering Report
No. 05-21.
Overall, federal agencies, states, and others are doing a great
amount of work to promote environmentally sound beneficial use
practices, to advance our understanding, and to consider emerging
science and practices. Furthermore, the beneficial use of CCRs is a
world wide activity, so there is also considerable work and effort from
around the globe. In Europe, nearly all CCRs are beneficially used, and
when used are considered to be products rather than wastes. Sweden, for
example, actively supports the use of CCRs in road construction, and
has conducted long-term tests of its use in this manner.
While recognizing the many beneficial use opportunities for CCRs,
EPA believes it is imperative to gather a full range of views on the
issue of unencapsulated uses in order to ensure the protection of human
health and the environment. EPA is fully prepared to reconsider our
proposed approach for these uses if comments provide information and
data to demonstrate that it is inappropriate. For example, previous
risk analyses do not address many of the use applications currently
being implemented, and have not addressed the changes to CCR
composition with more advanced air pollution control methods and
improved leachate characterization. In addition, some scientific
literature indicates that the uncontrolled (i.e., excessive)
application of CCRs can lead to the potentially toxic accumulation of
metals (e.g., in agricultural applications \75\ and as fill material
\76\). Thus, while EPA does not want to negatively impact the
legitimate beneficial use of CCRs unnecessarily, we are also aware of
the need to fully consider the risks, management practices, state
controls, research, and any other pertinent information. Thus, to help
EPA determine whether to revise
[[Page 35165]]
its approach and regulate, for example, unencapsulated uses of CCRs on
the land, we solicit comments on whether to regulate, and if so, the
most appropriate regulatory approach to be taken. For example, EPA
might consider a prohibition on these uses, except where, as part of a
case-by-case, or material-by-material petition process where
appropriate characterization of the material is used (including taking
into account the pH to which the material will be exposed) and a risk
assessment, approved by a regulatory Agency, shows that the risks were
within acceptable ranges.\77\ Moreover, if regulating these uses under
the RCRA hazardous waste authority is deemed warranted, the risk
assessment would have to be approved, through a notice-and-comment
process, by EPA or an authorized state. EPA expects that the risk
assessment would be based on actual leach data from the material. (See
request for comment below on material characterization.)
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\75\ See, 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.
\76\ 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.
\77\ As part of the petition application, the petitioner would
also need to demonstrate that the CCRs are being beneficially used.
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In reaching its decision on whether to regulate unencapsulated
uses, EPA would be interested in comments and data on the following:
We would like comment on whether persons should be
required to use a leaching assessment tool in combination with the
Draft SW-846 leaching test methods described in Section I. F. 2 and
other tools (e.g., USEPA's Industrial Waste Management Evaluation Model
(IWEM)) to aid prospective beneficial users in calculating potential
release rates over a specified period of time for a range of management
scenarios, including use in engineering and commercial applications
using probabilistic assessment modeling.
As discussed previously, EPA is working with USDA to study
agricultural use of FGD gypsum to provide further knowledge in this
area. The Agency is interested in comments relating to the focus of
these assessments, the use of historical data, the impact of pH on
leaching potential of metals, the scope of management scenarios, the
variable and changing nature of CCRs, and variable site conditions.
Commenters interested in the EPA/USDA effort should consider the
characteristics of FGD gypsum (see http://www.epa.gov/epawaste/partnerships/c2p2/pubs/fgdgyp.pdf) and information on the current study
(see http://www.epa.gov/epawaste/partnerships/c2p2/pubs/fgd-fs.pdf).
If EPA determines that regulations are needed, should EPA
consider removing the Bevill exemption for such unencapsulated uses and
regulate these under RCRA subtitle C or should EPA develop regulations
under RCRA subtitle D?
If materials characterization is required, what type of
characterization is most appropriate? If the CCRs exceed the toxicity
characteristic at pH levels different from the TCLP, should they be
excluded from beneficial use? When are total levels relevant? EPA
solicits information and data on the extent to which states request and
evaluate CCR characterization data prior to the use of unencapsulated
CCRs (keeping in mind that EPA ORD studies generally show that
measurement of total concentrations for metals do not correlate well
with metal leachate concentrations).
If regulations are developed, should they cover specific
practices, for example, restricting fill operations to those that
moisten and compact fly ash in layers to attain 95% of the standard
Proctor maximum dry density value and provide a drainage layer? Are
such construction practices largely followed now?
Historically, EPA has proposed or imposed conditions on
other types of hazardous wastes destined for land placement (e.g.,
maximum application rates and risk-based concentration limits for
cement kiln dust used as a liming agent in agricultural applications
(see 64 FR 45639; August 20, 1999); maximum allowable total
concentrations for non-nutritive and toxic metals in zinc fertilizers
produced from recycled hazardous secondary materials (see 67 FR 48393;
July 24, 2002). Comments are solicited as to whether EPA should
establish standards or rely on implementing states to impose CCR-/site-
specific limits based on front-end characterization that ensures
individual beneficial uses remain protective.
Whether to exclude from beneficial use unencapsulated uses
in direct contact with water bodies (including the seasonal high
groundwater table)?
E. Placement of CCRs in Minefilling Operations
In today's proposal, EPA is not addressing its Regulatory
Determination on minefilling, and instead will work with the OSM to
develop effective federal regulations to ensure that the placement of
coal combustion residuals in minefill operations is adequately
controlled. In doing so, EPA and OSM will consider the recommendations
of the National Research Council (NRC), which, at the direction of
Congress, studied the health, safety, and environmental risks
associated with the placement of CCRs in active and abandoned coal
mines in all major U.S. coal basins. The NRC published its findings on
March 1, 2006, in a report entitled ``Managing Coal Combustion Residues
(CCRs) in Mines,'' which is available at http://books.nap.edu/openbook.php?isbn=0309100496.
The report concluded that the ``placement of CCRs in mines as part
of coal mine reclamation may be an appropriate option for the disposal
of this material. In such situations, however, an integrated process of
CCR characterization, site characterization, management and engineering
design of placement activities, and design and implementation of
monitoring is required to reduce the risk of contamination moving from
the mine site to the ambient environment.'' The NRC report recommended
that enforceable federal standards be established for the disposal of
CCRs in minefills to ensure that states have specific authority and
that states implement adequate safeguards. The 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.
Therefore, the Agency is not addressing minefilling operations in this
proposed rule.
F. EPA Is Not Proposing To Revise the Bevill Determination for CCRs
Generated by Non-Utilities
In this notice, EPA is not proposing to revise the Bevill exclusion
for CCRs generated at facilities that are not part of the electric
power sector and which use coal as the fuel in non-utility boilers,
such as manufacturing facilities, universities, and hospitals. The
Agency lacks sufficient information at this time to determine an
appropriate course of action for the wastes from these facilities.
Industries that primarily burn coal to generate power for their own
purposes (i.e., non-utilities), also known as combined heat and power
(CHP) plants, are primarily engaged in business activities, such as
agriculture, mining, manufacturing, transportation, and education. The
electricity that they generate is mainly for their own use, but
[[Page 35166]]
any excess may be sold in the wholesale market.\78\ According to the
Energy Information Administration (EIA), CHPs produced 2.7% of the
total electricity generated from coal combustion in 2007 \79\ and
burned 2.3% of the total coal consumed for electricity generation (24
million tons) \80\ at 2,967 facilities.\81\ EPA estimates that CHPs
generate approximately 3 million tons of CCRs annually or an average of
just over 1,000 tons per facility. This is in comparison to electric
utilities, which generated 136 million tons of CCRs in 2008, or an
average of approximately 275,000 tons per facility. In addition, these
manufacturing facilities generate other types of waste, many of which
are generated in much larger quantities than CCRs, and thus, they are
likely to be mixed or co-managed together. As a result, the composition
of any co-managed waste might be fundamentally different from the CCRs
that are generated by electric utilities. Presently, EPA lacks critical
data from these facilities sufficient to address key Bevill criteria
such as current management practices, damage cases, risks, and waste
characterization. Thus, EPA solicits information and data on CCRs that
are generated by these other industries, such as volumes generated,
characteristics of the CCRs, whether they are co-managed with other
wastes generated by the industry, as well as other such information. In
addition, EPA does not currently have enough information on non-
utilities to determine whether a regulatory flexibility analysis would
be required under the Regulatory Flexibility Act, nor to conduct one if
it is necessary. Therefore, the Agency has decided not to assess these
operations in today's proposal, and will instead focus on the nearly
98% of CCRs that are generated at electric utilities.
---------------------------------------------------------------------------
\78\ Energy Information Administration (http://www.eia.doe.gov/cneaf/electricity/page/prim2/toc2.html#non).
\79\ http://www.eia.doe.gov/cneaf/electricity/epa/epaxlfile1_1.pdf.
\80\ http://www.eia.doe.gov/cneaf/electricity/epa/epaxlfile4_1.pdf.
\81\ http://www.eia.doe.gov/cneaf/electricity/epa/epaxlfile2_3.pdf.
---------------------------------------------------------------------------
V. Co-Proposed Listing of CCRs as a Special Waste Under RCRA Subtitle C
and Special Requirements for Disposal of CCRs Generated by Electric
Utilities
One of the alternatives in today's co-proposal is to add a new
category of wastes that would be subject to regulation under subtitle C
of RCRA, by adding to 40 CFR part 261, Subpart F--Special Wastes
Subject to Subtitle C Regulations for CCRs destined for disposal. Under
this alternative, the Agency further proposes to list CCRs destined for
disposal as a special waste and CCRs would then be subject to
regulation under 40 CFR parts 260 through 268 and 270 to 279 and 124,
and subject to the notification requirements of section 3010 of RCRA.
This listing would apply to all CCRs destined for disposal. This
section provides EPA's basis for regulating CCRs under subtitle C of
RCRA when disposed. As described in this preamble, the proposed listing
would not apply to CCRs that are beneficially used (see section IV),
CCRs that are part of a state or federally required cleanup that
commenced prior to the effective date of the final rule (see section
VI), or CCRs generated by facilities outside the electric power sector
(see section IV).
A. What is the basis for listing CCRs as a special waste?
Many of the underlying facts on which EPA would rely on to support
its proposed special waste listing have been discussed in the previous
sections, which lay out reasons why the Agency may decide to reverse
the Bevill Regulatory Determination and exemption. Rather than repeat
that discussion here, EPA simply references the discussion in the
earlier sections. In addition, EPA would be relying on the various risk
assessments conducted on CCRs to provide significant support for a
listing determination. EPA's risk assessment work includes four
analyses: (1) U.S. EPA 1998, ``Draft Final Report: Non-groundwater
Pathways, Human Health and Ecological Risk Analysis for Fossil Fuel
Combustion Phase 2 (FFC2)'' (June 5, 1998) referred to hereafter as the
1998 Non-groundwater risk assessment (available in docket F-
1999-FF2P-FFFFF in the RCRA Information Center, and on the EPA Web site
at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ngwrsk1.pdf); (2) preliminary groundwater and ecological risk screening
of selected constituents in U.S. EPA 2002, ``Constituent Screening for
Coal Combustion Wastes,'' (contractor deliverable dated October 2002,
available in docket EPA-HQ-RCRA-2006-0796 as Document EPA-HQ-
RCRA-2006-0796-0470); referred to hereafter as the 2002 screening
analysis; (3) U.S. EPA 2010a, ``Human and Ecological Risk Assessment of
Coal Combustion Wastes'' (April 2010) available in the docket for this
proposed rule, and referred to hereafter as the 2010 risk assessment;
and (4) U.S. EPA 2010b, ``Inhalation of Fugitive Dust: A Screening
Assessment of the Risks Posed by Coal Combustion Waste Landfills--
DRAFT'' available in the docket for this proposed rule. As explained
below, the 2010 risk assessment correlates closely with the listing
criteria in EPA's regulations.
1. Criteria for Listing CCRs as a Special Waste and Background on 2010
Risk Assessment
In making listing determinations under subtitle C of RCRA, the
Agency considers the listing criteria set out in 40 CFR 261.11. EPA
considered these same criteria in making the proposed special waste
listing decision.
The criteria provided in 40 CFR 261.11(a)(3) include eleven factors
that EPA must consider in determining whether the waste poses a
``substantial present or potential hazard to human health and the
environment when improperly treated, stored, transported or disposed of
or otherwise managed.'' Nine of these factors, as described generally
below, are incorporated or are considered in EPA's risk assessment for
the waste streams of concern:
[cir] Toxicity (Sec. 261.11(a)(3)(i)) is considered in developing
the health benchmarks used in the risk assessment modeling.
[cir] Constituent concentrations (Sec. 261.11(a)(3)(ii)) and the
quantities of waste generated (Sec. 261.11(a)(3)(viii)) are combined in
the calculation of the levels of the CCR constituents that pose a
hazard.
[cir] Potential of the hazardous constituents and any degradation
products to migrate, persist, degrade, and bioaccumulate (sections
261(a)(3)(iii), 261.11(a)(3)(iv), 261.11(a)(3)(v), and
261.11(a)(3)(vi)) are all considered in the design of the fate and
transport models used to determine the concentration of the
contaminants to which individuals are exposed.
[cir] Two of the factors, plausible mismanagement and the
regulatory actions taken by other governmental entities based on the
damage caused by the constituents ((Sec. Sec. 261.11(a)(3)(vii) and
261.11(a)(3)(x)), were used in establishing the waste management
scenario(s) modeled in the risk assessment.
One of the remaining factors of the eleven listed in 261.11(a)(3)
is consideration of damage cases (Sec. 261.11(a)(3)(ix)); these are
discussed in section II. C. The final factor allows EPA to consider
other factors as appropriate (Sec. 261.11(a)(3)(xi)).
As discussed earlier, EPA conducted analyses of the risks posed by
CCRs and determined (subject to consideration of public comment) that
it would meet the criteria for listing set forth in 40 CFR
261.11(a)(3). The criteria for listing determinations found at 40 CFR
part
[[Page 35167]]
261.11 require the Administrator to list a solid waste as a hazardous
waste (and thus subject to subtitle C regulation) upon determining that
the solid waste meets one of three criteria in 40 CFR 261.11(a)(1)-(3).
As just noted, the criteria considered by EPA in determining that
listing is warranted pursuant to 40 CFR 261.11(a)(3) are:
Whether the waste contains any of the toxic constituents
listed in Appendix VIII of 40 CFR part 261 (Hazardous Waste
Constituents) and, after considering the following factors, the
Administrator concludes that the waste is capable of posing a
substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported or disposed
of, or otherwise managed:
(i) The nature of the toxicity presented by the constituent.
(ii) The concentration of the constituent in the waste.
(iii) The potential of the constituent or any toxic degradation
product of the constituent to migrate from the waste into the
environment under the types of improper management considered in
paragraph (vii).
(iv) The persistence of the constituent or any toxic degradation
product of the constituent.
(v) The potential for the constituent or any toxic degradation
product of the constituent to degrade into non-harmful constituents and
the rate of degradation.
(vi) The degree to which the constituent or any degradation product
of the constituent bioaccumulates in ecosystems.
(vii) The plausible types of improper management to which the waste
could be subjected.
(viii) The quantities of the waste generated at individual
generation sites or on a regional or national basis.
(ix) The nature and severity of the human health and environmental
damage that has occurred as a result of the improper management of
wastes containing the constituent.
(x) Action taken by other governmental agencies or regulatory
programs based on the health or environmental hazard posed by the waste
or waste constituent.
(xi) Such other factors as may be appropriate.
In 1994, EPA published a policy statement regarding how the Agency
uses human health and environmental risk estimates in making listing
decisions, given the uncertainty that can co-exist with risk estimates.
Specifically:
``* * * the Agency's listing determination policy utilizes a
``weight of evidence'' approach in which risk is a key factor * * *
however, risk levels themselves do not necessarily represent the
sole basis for a listing. There can be uncertainty in calculated
risk values and so other factors are used in conjunction with risk
in making a listing decision. * * *. EPA's current listing
determination procedure * * * uses as an initial cancer risk ``level
of concern'' a calculated risk level of 1 x 10-5 (one in
one hundred thousand) * * * (1) Waste streams for which the
calculated high-end individual cancer-risk level is 1 x 10
-5 or higher generally are considered candidates for a
list decision * * * (2) Waste streams for which these risks are
calculated to be 1 x 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 listed as
hazardous waste. Such waste streams fall into a category
presumptively assumed to present sufficient risk to require their
listing as hazardous waste. However, even for these waste streams
there can in some cases be factors which could mitigate the high
hazard presumption. These additional factors * * * will also be
considered by the Agency in making a final determination. (3) Waste
streams for which the calculated high-end individual cancer-risk
level is lower than 1 x 10-5 generally are considered
initial candidates for a no-list decision. (4) Waste streams for
which these risks are calculated to be 1 x 10-6 or lower,
and lower than 1.0 HQs or EQs for any non-carcinogens, generally
will be considered not to pose a substantial present or potential
hazard to human health and the environment and generally will not be
listed as hazardous waste. Such waste streams fall into a category
presumptively assumed not to pose sufficient risk as to require
their listing as hazardous waste. However, even for these waste
streams, in some cases, there can be factors that could mitigate the
low hazard presumption. These also will be considered by the Agency
in making a final determination. (5) Waste streams where the
calculated high-end individual cancer-risk level is between 1 x
10-4 and 1 x 10-6 fall in the category for
which there is a presumption of candidacy for either listing (risk >
10-5) or no listing (risk < 10-5). However,
this presumption is not as strong as when risks are outside this
range. Therefore, listing determinations for waste streams would
always involve assessment of the additional factors discussed below.
* * * Additional factors. b. The following factors will be
considered in making listing determinations, particularly for wastes
falling into the risk range between 1 x 10-4 and 1 x
10-6. (1) Certainty of waste characterization; (2)
Certainty in risk assessment methodology; (3) Coverage by other
regulatory programs; (4) Waste volume; (5) Evidence of co-
occurrence; (6) Damage cases showing actual impact to human health
or the environment; (7) Presence of toxicant(s) of unknown or
unquantifiable risk.'' See 59 FR 66075-66077, December 22, 1994.
B. Background on EPA's 2010 Risk Assessment
1. Human Health Risks
Individuals can be exposed to the constituents of concern found in
CCRs through a number of exposure routes. Potential contaminant
releases from landfills and surface impoundments include: leaching to
ground water; overland transport from erosion and runoff; and air
emissions. The potential of human exposure from any one of these
exposure pathways for a particular chemical is dependent on the
physical and chemical characteristics of the chemical, the properties
of the waste stream, and the environmental setting. EPA has conducted a
peer-reviewed risk assessment of potential human health risks from CCR
constituents leaching to groundwater that subsequently migrate either
to a nearby drinking water well, or to nearby surface water, and is
ingested as drinking water or through fish consumption (U.S. EPA
2010a). EPA has also performed preliminary analyses of human health
effects from CCR constituents that have eroded or have run off from CCR
waste management units (U.S. EPA 2002), and of human health effects
from breathing windblown particulate matter from CCR landfill disposal
operations (the 1998 risk assessment and U.S. EPA 2010b).
Longstanding EPA policy is for EPA risk assessments to include a
characterization of the risks at two points on a distribution (i.e.,
range) of risk estimates: a central tendency estimate that represents
conditions likely to be encountered in a typical exposure situation,
and a high end estimate that represents conditions likely to be
encountered by individuals with higher exposures (U.S. EPA 1995).\82\
Examples of factors that would influence a nearby resident's exposure
are the residence's distance from a CCR waste management unit, and an
individual's behavior or activity patterns. In the 2010 risk
assessment, the high end risk estimates are the 90th percentile
estimates from a probabilistic analysis.
---------------------------------------------------------------------------
\82\ Guidance for Risk Characterization, U.S. Environmental
Protection Agency, 1995; accessible at http://www.epa.gov/OSA/spc/pdfs/rcguide.pdf, which states that ``For the Agency's purposes,
high end risk descriptors are plausible estimates of the individual
risk for those persons at the upper end of the risk distribution,''
or conceptually, individuals with ``exposure above about the 90th
percentile of the population distribution''. As suggested in the
Guidance, we also provide 50th percentile results as the central
tendency estimate of that risk distribution.
---------------------------------------------------------------------------
The comparisons that EPA used in this rule to judge whether either
a high end or central tendency estimated risk
[[Page 35168]]
is of concern are the risk criteria discussed in the 1995 policy. As
noted under that policy, for an individual's cancer risk, the risk
criteria are in the range of 1 x 10-6, or one in one million
``excess'' (above and beyond pre-existing risk) probability of
developing cancer during a lifetime, to 1 x 10-4 (one in ten
thousand),\83\ with 1 x 10-5 (one in one hundred thousand)
being the ``point of departure'' for listing a waste and subjecting it
to regulation under subtitle C of RCRA.\84\ For human non-cancer
hazard, the risk criterion is an estimated exposure above the level at
which no adverse health effects would be expected to occur (expressed
as a ratio of the estimated exposure to the exposure at which it is
likely that there would be no adverse health effects; this ratio is
also called a hazard quotient (HQ), and a risk of concern equates to a
HQ greater than one, or, in certain cases of drinking water exposure,
water concentrations above the MCL established under the Safe Drinking
Water Act.
---------------------------------------------------------------------------
\83\ See 40 CFR 300.430.
\84\ As noted previously, EPA's hazardous waste listing
determination policy is described in the notice of proposed
rulemaking for wastes from the dye and pigment industries at 59 FR
66075-66077.
---------------------------------------------------------------------------
The exposure pathways for humans that EPA has evaluated for CCR
landfills and surface impoundments are nearby residents' groundwater
ingestion and air inhalation, and fish consumption by recreational
fishers.
2. Ecological Risks
For ecological non-cancer hazards that are modeled, the risk
criterion is a hazard quotient that represents impacts on individual
organisms, with a risk of concern being an estimated HQ greater than
one. In some instances, EPA also considered documented evidence of
ecological harm, such as field studies published in peer-reviewed
scientific literature. Such evidence is often sufficient to determine
adverse ecological effects in lieu of or in addition to modeling
potential ecological risks.
Two types of exposures can occur for ecological receptors:
exposures in which ecological receptors inhabit a waste management unit
directly, and exposures in which CCRs or its chemical constituents
migrate, or move, out of the waste management unit and contaminate
nearby soil, surface water, or sediment.
C. Consideration of Individual Listing Criteria
CCRs contain the following Appendix VIII toxic constituents:
antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury,
nickel, selenium, silver, and thallium. These Appendix VIII
constituents are frequently found in CCRs, as has been reported by the
U.S. EPA (1988, 1999, 2002, 2006, 2008, and 2010).\85\ These are
discussed below with respect to the factors outlined in Sec.
261.11(a)(3)(i)-(xi), and the Agency's findings. In the following
discussion of the eleven listing factors, we combined factors iii
(Migration), iv (Persistence), v (Degradation) and vi
(Bioaccumulation); and factors vii (Plausible Types of Mismanagement),
viii (Quantities of the Waste Generated), and ix (Nature and Severity
of Effects from Mismanagement) for a more lucid presentation of our
arguments.
---------------------------------------------------------------------------
\85\ Full references: U.S. EPA (Environmental Protection
Agency). 1988. Wastes from the Combustion of Coal by Electric
Utility Power Plants--Report to Congress. EPA-530-SW-88-002. U.S.
EPA Office of Solid Waste and Emergency Response. Washington, DC.
November.
U.S. EPA (Environmental Protection Agency). 1999. Report to
Congress: Wastes from the Combustion of Fossil Fuels--Volume II, EPA
530-S-99-010. Office of Solid Waste. March.
U.S. EPA (Environmental Protection Agency). 2002. Constituent
Screening for Coal Combustion Wastes. Draft Report prepared by
Research Triangle Institute for Office of Solid Waste, Washington,
DC. September.
U.S. EPA (Environmental Protection Agency). 2006.
Characterization of Mercury-Enriched Coal Combustion Residuals from
Electric Utilities Using Enhanced Sorbents for Mercury Control. EPA
600/R-06/008. Office of Research and Development. Research Triangle
Park, NC. January.
U.S. EPA (Environmental Protection Agency). 2008.
Characterization of Coal Combustion Residuals from Electric
Utilities Using Wet Scrubbers for Multi-Pollutant Control. EPA/600/
R-08/077. Report to U.S. EPA Office of Research and Development, Air
Pollution Control Division. Research Triangle Park, NC. July.
U.S. EPA (Environmental Protection Agency). 2010. Human and
Ecological Risk Assessment of Coal Combustion Wastes. Office of
Resource Conservation and Recovery, Washington, DC. April.
---------------------------------------------------------------------------
1. Toxicity--Factor (i)
Toxicity is considered in developing the health benchmarks used in
risk assessment modeling. The Agency for Toxic Substances and Disease
Registry (ATSDR) ToxFAQs,\86\ the EPA Integrated Risk Information
System (IRIS),\87\ and the Toxicology Data Network (TOXNET) of the
National Institutes of Health \88\ are all sources of toxicological
data on the Appendix VIII hazardous constituents found in CCRs. (The
information from these data sources on the toxicity of the metals
identified is included in the docket to today's proposed rule.) Two
types of ingestion benchmarks are developed. For carcinogens, a cancer
slope factor (CSF) is developed. A CSF is the slope of the curve
representing the relationship between dose and cancer risk. It is used
to calculate the probability that the toxic nature of a constituent
ingested at a specific daily dose will cause cancer. For non-
carcinogens, a reference dose (RfD) is developed. The RfD (expressed in
units of mg of substance/kg body weight-day) is defined as an estimate
(with uncertainty spanning perhaps an order of magnitude) of a daily
exposure to the human population (including sensitive subgroups) that
is likely to be without an appreciable risk of deleterious effects
during a lifetime. The constituents of concern associated with CCRs
include antimony, arsenic, barium, beryllium, cadmium, hexavalent
chromium, lead, mercury, nickel, selenium, silver, and thallium. Based
on the information in ASTDR's Tox FAQs, EPA's IRIS system and TOXNET,
the Agency believes that the metals identified are sufficiently toxic
that they are capable of posing a substantial present or potential
hazard to human health and the environment when improperly treated,
stored, transported disposed of, or otherwise managed. A brief summary
of the toxic effects associated with these constituents is presented
below, including for the four Appendix VIII hazardous constituents that
were estimated in the draft groundwater risk assessment to pose high-
end (90th percentile) risks at or above the risk criteria in one or
more situations, and that were also found to present risk to human
health in one or more damage cases (arsenic, cadmium, lead, and
selenium):
---------------------------------------------------------------------------
\86\ http://www.atsdr.cdc.gov/toxfaq.html.
\87\ http://cfpub.epa.gov/ncea/iris/index.cfm?fuseaction=iris.showSubstanceList&list_type=alpha&view=B.
\88\ http://toxnet.nlm.nih.gov/cgi-bin/sis/htmlgen?HSDB.
---------------------------------------------------------------------------
Arsenic. Ingestion of arsenic has been shown to cause skin cancer
and cancer in the liver, bladder and lungs.\89\
---------------------------------------------------------------------------
\89\ ATSDR ToxFAQs. Available at: http://www.atsdr.cdc.gov/toxfaq.html.
---------------------------------------------------------------------------
Antimony. Antimony is associated with altered glucose and
cholesterol levels, myocardial effects, and spontaneous abortions. EPA
has set a limit of 145 ppb in lakes and streams to protect human health
from the harmful effects of antimony taken in through water and
contaminated fish and shellfish.\90\
---------------------------------------------------------------------------
\90\ Ibid.
---------------------------------------------------------------------------
Barium. Barium has been found to potentially cause gastrointestinal
disturbances and muscular weaknesses when people are exposed to it at
levels above the EPA drinking water standards for relatively short
periods of time.\91\
---------------------------------------------------------------------------
\91\ Ibid.
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[[Page 35169]]
Beryllium. Beryllium can be harmful if you breathe it. If beryllium
air levels are high enough (greater than 1,000 ug/m\3\), an acute
condition can result. This condition resembles pneumonia and is called
acute beryllium disease.\92\
---------------------------------------------------------------------------
\92\ Ibid.
---------------------------------------------------------------------------
Cadmium and Lead. Cadmium and lead have the following effects:
kidney disease, lung disease, fragile bone, decreased nervous system
function, high blood pressure, and anemia.\93\
---------------------------------------------------------------------------
\93\ Ibid.
---------------------------------------------------------------------------
Hexavalent Chromium. Hexavalent chromium has been shown to cause
lung cancer when inhaled.\94\
---------------------------------------------------------------------------
\94\ Ibid.
---------------------------------------------------------------------------
Mercury. Exposure to high levels of metallic, inorganic, or organic
mercury can permanently damage the brain, kidneys, and developing
fetus.\95\
---------------------------------------------------------------------------
\95\ Ibid.
---------------------------------------------------------------------------
Nickel. The most common harmful health effect of nickel in humans
is an allergic reaction. Approximately 10-20% of the population is
sensitive to nickel. The most common reaction is a skin rash at the
site of contact. Less frequently, some people who are sensitive to
nickel have asthma attacks following exposure to nickel. Some
sensitized people react when they consume food or water containing
nickel or breathe dust containing it.\96\
---------------------------------------------------------------------------
\96\ Ibid.
---------------------------------------------------------------------------
Selenium. Selenium is associated with selenosis.\97\
---------------------------------------------------------------------------
\97\ Ibid.
---------------------------------------------------------------------------
Silver. Exposure to high levels of silver for a long period of time
may result in a condition called arygria, a blue-gray discoloration of
the skin and other body tissues.\98\
---------------------------------------------------------------------------
\98\ Ibid.
---------------------------------------------------------------------------
Thallium. Thallium exposure is associated with hair loss, as well
as nervous and reproductive system damage.\99\
---------------------------------------------------------------------------
\99\ Ibid.
---------------------------------------------------------------------------
2. Concentration of Constituents in Waste--Factor (ii)
A CCR constituent database was developed for the Regulatory
Determination in May 2000 and in followup work leading to today's co-
proposal. This database contained data on the total CCR constituents
listed above, as well as many others, with the Appendix VIII
constituents found in varying concentrations (see Table 6).\100\
---------------------------------------------------------------------------
\100\ Additional data on the waste characteristics of fly ash
and FGD are presented in section I.F.2.
Table 6--Total Metals Concentrations Found in CCRs
[ppm]
------------------------------------------------------------------------
Constituent Mean Minimum Maximum
------------------------------------------------------------------------
Antimony......................... 6.32 0.00125 3100
Arsenic.......................... 24.7 0.00394 773
Barium........................... 246.75 0.002 7230
Beryllium........................ 2.8 0.025 31
Cadmium.......................... 1.05 0.000115 760.25
Chromium......................... 27.8 0.005 5970
Lead............................. 25 0.0074 1453
Mercury.......................... 0.18 0.000035 384.2
Nickel........................... 32 0.0025 54055
Selenium......................... 2.4075 0.0002 673
Silver........................... 0.6965 0 3800
Thallium......................... 1.75 0.09 100
------------------------------------------------------------------------
The data in Table 6 show that many of these metals are contained in
CCRs at relatively high concentrations, such that if CCRs were
improperly managed, they could leach out and pose a substantial present
or potential hazard to human health or the environment when improperly
treated, stored, transported or disposed of or otherwise managed. The
risk assessment that was conducted confirms this finding, as do the
many damage cases that have been documented and presented in today's
co-proposal, including documents contained in the docket to today's
proposed rule.
3. Migration, Persistence, Degradation, and Bioaccumulation--Factors
(iii), (iv), (v), and (vi)
The potential of the hazardous constituents and any degradation
products to migrate, persist, degrade and/or bioaccumulate in the
environment are all factors that EPA considered and evaluated in the
design of the fate and transport models that were used in assessing the
concentrations of the toxic constituents to which humans and ecological
receptors may be exposed. However, before discussing the hazardous
constituents in the fate and transport models, the Agency would note
that the toxic constituents for CCRs are all toxic metals--antimony,
arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel,
selenium, silver and thallium, which do not decompose or degrade with
the passage of time. Thus, these toxic metals will persist in the
environment for very long periods of time, and if they escape from the
disposal site, will continue to provide a potential source of long-term
contamination.
The purpose of the risk assessment was to use the fate and
transport models to assess likely migration of the CCR toxic
constituents from different waste types through different exposure
pathways, to receptors and to predict whether CCRs under different
management scenarios may produce risks to human health and the
environment. To estimate the risks posed by the management of CCRs in
landfills and surface impoundments, the risk assessment estimated the
release of the CCR toxic constituents from landfills and surface
impoundments, the concentrations of these constituents in environmental
media surrounding coal-fired utility power plants, and the risks that
these concentrations pose to human and ecological receptors. The risk
estimates were based on a groundwater fate and transport model in which
constituents leached to groundwater consumed as drinking water,
migrated to surface water and bioaccumulated in recreationally caught
and consumed fish, and on direct ecological exposure. The specific 50th
and 90th percentile risk assessment results for relevant Appendix VIII
constituents are discussed below. While these results are based on a
subset of CCR disposal units, they are likely representative of the
risks posed by other similar disposal units. As discussed previously,
the risk
[[Page 35170]]
assessment demonstrates that if CCRs are improperly managed, they have
the potential to present a hazard to human health and the environment
above a 1 x 10-4 to 1 x 10-6 cancer range or an
HQ of 1. A detailed discussion of the modeling and risks from this
pathway can be found in U.S. EPA 2009a (available in the docket for
this proposal). This report presents the methodology, results, and
uncertainties of EPA's assessment of human health risks resulting from
groundwater contamination from coal-fired electric utilities.
Ingestion of Groundwater: The risk assessment predicted that CCRs
pose an estimated trivalent arsenic cancer risk of 4 in 10,000 for
unlined landfills and 2 in 10,000 for clay-lined landfills at the 90th
percentile. No cancer risks above 1 in 100,000 were found at the 50th
percentile. The 90th percentile results also estimated that thallium is
ingested at three times the reference dose and antimony at twice the
reference dose for unlined landfills. For clay-lined landfills, only
thallium is estimated to exceed the reference dose, with a 90th
percentile ingestion of twice the reference dose.
CCRs co-managed with coal refuse in landfills are estimated to pose
arsenic cancer risks of 5 in 10,000 for an unlined landfill and 2 in
10,000 for a clay-lined landfill at the 90th percentile. EPA estimates
that arsenic poses a 2 in 100,000 risk of cancer at the 50th percentile
for unlined landfills, but poses cancer risks of less than 1 in 100,000
for clay or composite-lined landfills. For CCRs co-managed with coal
refule, thallium is estimated at two times the reference dose in
unlined landfills at the 90th percentile, but did not exceed the
reference dose at the 0th percentile for any liner type.
For unlined landfills managing FBC waste, arsenic is estimated to
have a cancer risk of three in one hundred thousand at the 90th
percentile. For clay-lined landfills managing FBC waste, arsenic is
estimated to have a cancer risk of six in one hundred thousand at the
90th percentile, while thallium is estimated to have an HQ of 4, and
antimony is estimated to have an HQ of 3.
The Appendix VIII constituents in CCRs managed in landfills are not
all estimated to arrive at the drinking water well at the same time.
For unlined landfills, the median number of years until peak well water
concentrations are estimated to occur is approximately 2,800 to 9,700
years for arsenic, 2,600 to 10,000 years for selenium, and 2,300 years
for thallium. For clay-lined landfills, the median estimated time until
peak well concentrations is approximately 4,000 to 10,000 years for
arsenic, 5,100 to more than 10,000 years for selenium, and 4,300 years
for thallium. Of the contaminated groundwater plumes that are estimated
to reach the receptor wells from composite-lined units, the median time
to peak well concentration as not estimated to sour in the 10,000 year
time period that was modeled.\101\
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\101\ The risk model used by EPA evaluates conditions over a
10,000 year period, and considers constituent concentrations during
that period. In some cases, peak concentrations do not occur during
the 10,000 year period.
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For surface impoundments, the risk estimates differ. CCRs managed
alone, that is, without coal refuse in the same impoundment, are found
to pose an arsenic cancer risk of 2 in 1,000 for unlined surface
impoundments and 9 in 10,000 for clay-lined surface impoundments at the
90th percentile. For unlined surface impoundments at the 90th
percentile, selenium's HQ is two and lead's is three. At the 50th
percentile, none of the constituents assessed for non-cancer effects
exceed their reference dose in any scenario, but arsenic did pose
estimated cancer risks of 1 in 10,000 and 6 in 100,000 for unlined and
clay-lined units, respectively. For the surface impoundments with
composite liners, arsenic did not exceed cancer risks of 1 in 100,000,
nor did selenium exceed its reference dose.
Co-disposed CCRs and coal refuse managed in surface impoundments
resulted in the highest risks. For the 90th percentile, arsenic's
estimated cancer risk is 2 in 100 and 7 in 1,000 for unlined and clay-
lined surface impoundments, respectively.\102\ At the 50th percentile,
these units still resulted in estimated arsenic cancer risks of 6 in
10,000 for the unlined surface impoundment and 2 in 10,000 for the
clay-lined surface impoundment. Cadmium and lead both are estimated to
exceed the reference dose by nine times at the 90th percentile for
unlined surface impoundments. In clay-lined surface impoundments,
cadmium has an estimated cadmium HQ of 3. When managed in surface
impoundments with composite liners, these constituents' estimated
cancer risks did not exceed 1 in 100,000, nor are they estimated to
exceed their reference doses.
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\102\ Including data with very high leach levels in surface
impoundments where pyritic wastes were managed. As mentioned
earlier, management of CCRs with coal refuse may have changed, and
some pore water data from the coal refuse may not represent the
management of these materials today. EPA has solicited comments on
these issues.
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As with landfills, the modeling shows differing arrival times of
various constituents at the modeled well locations. Due to differences
in behaviors when interacting in soil, some chemical constituents move
more quickly than others through the subsurface environment. For
unlined surface impoundments, the median number of years until peak
well water concentrations would occur is estimated to be 74 years for
hexavalent selenium and 78 years for arsenic. For clay-lined surface
impoundments, the median number of years was estimated to be 90 years
for hexavalent selenium and 110 years for trivalent arsenic. Of the
plumes that did reach the receptor wells from composite-lined
units,\103\ the median number of years was estimated to be 4,600 years
for hexavalent selenium and 8,600 years for trivalent arsenic.
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\103\ In other words, based on the results from this subset of
the total number of Monte Carlo realizations.
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While hexavalent chromium, and nickel were not modeled using the
fate and transport models, they did show the potential for excess risk
at the screening stage.\104\ Risk attenuation factors were developed
for each of these constituents at the 50th and 10th percentiles. Here,
attenuation refers to the dilution of the concentration of a
constituent. Thus, the 10th percentile (not the 90th percentile) was
developed to represent the high-end risks. These risk attenuation
factors were calculated by dividing the screening risk results by the
full-scale risk results, across all unit types combined, for the
constituents modeled in the full-scale assessment. Using the risk
attenuation factors, none of the constituents were estimated to exceed
an HQ of 1 at either the 50th or 10th percentile for landfills. For
surface impoundments, hexavalent chromium was estimated to exceed an HQ
of 1 at the 50th percentile, while hexavalent chromium was estimated to
exceed an HQ of 1 at the 10th percentile. The HQ for nickel under the
surface
[[Page 35171]]
impoundment scenario was less than 1 using the 50th and 10th percentile
values. However, the use of risk attenuation factors in place of
probabilistic fate and transport modeling increases the uncertainty
associated with these results. This analysis was conducted only for the
drinking water exposure pathway.
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\104\ Previous risk assessment results for CCR (U.S. EPA, 1998)
indicated concern for the groundwater pathway and limited concern
for aboveground pathways for human and ecological receptors. The
primary purpose of subsequent risk analyses was to update those
results by incorporating new waste characterization data received
since 1998 and by applying current data and methodologies to the
risk analyses. The initial step in this process is screening and
constituent selection for a more detailed analysis. The goal of
screening is to identify CCR constituents, waste types, receptors,
and exposure pathways with risks below the level of concern and
eliminate those combinations from further analysis. The screening
analysis (U.S. EPA, 2002) compared the 90th percentile leachate
values directly to the human health benchmarks identified above. In
other words, it was assumed that a human receptor was drinking
leachate directly from a CCR landfill or surface impoundment with no
attenuation or variation in exposure.
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Consumption of Recreationally Caught Fish: For the unlined, clay-
lined, or composite-lined landfills, none of the modeled Appendix VIII
hazardous constituents posed a cancer risk greater than 1 in 100,000,
nor did they exceed their reference doses. However, for surface
impoundments co-disposing of CCRs with coal refuse, trivalent arsenic's
90th percentile estimates are 3 in 100,000 and 2 in 100,000 excess
cancer risk for unlined and clay-lined units, respectively. Pentavalent
arsenic's 90th percentile estimate is 2 in 100,000 excess cancer risk
for unlined impoundments. For all other liner and management unit
scenarios at the 90th percentile, and all scenarios at the 50th
percentile, there were no arsenic cancer risks above 1 in 100,000.
Hexavalent selenium is estimated to result in exposures at three times
the reference dose and twice the reference dose in the unlined and
clay-lined surface impoundment scenarios, respectively, at the 90th
percentile. However, selenium is not estimated to exceed the reference
dose in the composite lined scenario at the 90th percentile, or any
scenario at the 50th percentile.
Particulate Matter Inhalation: Air emissions from CCR disposal and
storage sites can originate from waste unloading operations, spreading
and compacting operations, the re-suspension of particulates from
vehicular traffic, and from wind erosion. Air inhalation exposures may
cause adverse human health effects, either due to inhalation of small-
diameter (less than 10 microns) ``respirable'' particulate matter that
causes adverse effects (PM10 and smaller particles which
penetrate to and potentially deposit in the thoracic regions of the
respiratory tract), which particles are associated with a host of
cardio and pulmonary mortality and morbidity effects. See e.g. 71 FR at
61151-62 and 61178-85 (Oct. 6, 2006); see also 40 CFR 50.6 and 50.13
(National Ambient Air Quality Standards for thoracic coarse particles
and fine particles).
To evaluate the potential exposure of residents to particulate
matter that live near landfills that have disposed of CCRs, EPA has
performed a screening-level analysis using the SCREEN3 model. This
analysis, in Inhalation of Fugitive Dust: A Screening Assessment of the
Risks Posed by Coal Combustion Waste Landfills--DRAFT (U.S. EPA 2010b,
copy of which is in the docket for this proposed rule), indicates that,
without fugitive dust controls, there could be exceedances of the
National Ambient Air Quality Standards (NAAQS) for fine particulate
matter in the air at residences near CCR landfills. EPA requests
comment and data on the screening analysis, on the results of any
ambient air monitoring for particulate matter that has been conducted,
where air monitoring stations are located near CCR landfills, along
with information on any techniques, such as wetting, compaction, or
daily cover that may be employed to reduce such exposures.
A description of the modeling and risks from this pathway for
disposal of CCRs in landfills and surface impoundments can be found in
the Draft Final Report: Non-ground Water Pathways, Human Health and
Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2);
June 5, 1998.\105\ This analysis did not address the issue of
enrichment of toxic constituents present in the finer, inhalable
fraction of the overall particulate matter size distribution,\106\ but
used the total constituent concentrations to represent the
concentrations of constituents present on the inhaled particulate
matter. Based on the analysis, at landfills, the highest estimated risk
value was an individual excess lifetime risk of 4 in one million for
the farmer, due to inhalation of chromium (all chromium present in the
particulate matter was assumed to be in the more toxic, hexavalent
form). For surface impoundments, the highest risk value was 2 in one
million for the farmer (again assuming all chromium present was
hexavalent). The Agency requests comment on the analysis, as presented
in the draft final report, as well as any data, including air
monitoring data that may be available regarding the potential for
residents to be exposed to toxic constituents by this exposure pathway.
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\105\ http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ngwrsk1.pdf.
\106\ See, for example, Vouk, V. and Piver, W. ``Metallic
Elements in Fossil Fuel Combustion Products: Amounts and Form of
Emissions and Evaluation of Carcinogenicity and Mutagenicity.'' Env
Health Perspec 1983:47(201-225).
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Ecological Exposure: Where species were directly exposed to surface
impoundments, the risk assessment found ecological risks due to
selenium, silver, nickel, chromium, arsenic, cadmium, barium, lead, and
mercury. For scenarios where species were exposed to constituents that
had migrated from the groundwater to surface water and sediment,
ecological risk exceedances were found for lead, selenium, arsenic,
barium, antimony, and cadmium at the 90th percentile, but not at the
50th percentile. EPA's risk assessment, confirmed by the existing
damage cases and field studies published in the peer-reviewed
scientific literature, show elevated selenium levels in migratory
birds, and elevated contaminant levels in mammals as a result of
environmental uptake, fish deformities, and inhibited fish reproductive
capacity. Because of the large size of these management units, many
being 100's of acres to one that is about 2,600 acres, receptors can
often inhabit these waste management units. There are a number of
recent references in the peer-reviewed scientific literature specific
to CCRs managed in surface impoundments that confirm the 1998 risk
assessment results and provide additional pertinent information of
potential ecological damage. Hopkins, et al. (2006) \107\ observed
deformities and reproductive effects in amphibians living on or near
CCR disposal sites in Georgia. Rowe, et al. (2002) \108\ provided a
thorough review of laboratory and field studies that relate to the
impact of CCR surface impoundment management practices' on aquatic
organisms and communities. Examples of studies cited in Rowe, et al.
(2002) that illustrates the impact of CCRs on aquatic organisms in
direct contact with surface impoundment waters and/or sediments include
Benson and Birge (1985),\109\ Coutant, et al. (1978) \110\ and Rowe, et
al. (2001),\111\ while examples of studies cited in Rowe, et al. 2002
that illustrates the impact of CCRs on aquatic organisms in water
bodies near CCR surface
[[Page 35172]]
impoundments include Lemly (1993),\112\ Sorensen, et al. (1982) \113\
and (1988).\114\ This latter category may reflect CCR impacts
attributable to three constituent migration mechanisms: (1) NPDES-
permitted discharges from impoundments; (2) overtopping of
impoundments; and (3) groundwater-to-surface-water discharges (modeled
in US EPA 2010a), as well as other, non-CCR-related, sources of
pollutants.
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\107\ Hopkins, W.A., S.E. DuRant, B.P. Staub, C.L. Rowe, and
B.P. Jackson. 2006. Reproduction, embryonic development, and
maternal transfer of contaminants in the amphibian Gastrophryne
carolinensis. Environmental Health Perspectives. 114(5):661-666.
\108\ Rowe, C., Hopkins, W., Congdon, G. ``Ecotoxicological
Implications of Aquatic Disposal of Coal Combustion Residuals in the
United States: A Review.'' Env Monit Assess 2002: 80(270-276).
\109\ Benson, W. and Birge, W. ``Heavy metal tolerance and
metallothionein induction in fathead minnows: results from field and
laboratory investigations.'' Environ Toxicol Chem 1985:4(209-217).
\110\ Coutant, C., Wasserman, C., Chung, M., Rubin, D., Manning,
M. ``Chemistry and biological hazard of a coal-ash seepage stream.''
J. Water Poll. Control Fed. 1978:50(757-743).
\111\ Rowe C., Hopkins, W., and Coffman, V. ``Failed recruitment
of southern toads (Bufo terrestris) in a trace-element contaminated
breeding habitat: direct and indirect effects that may lead to a
local population sink.'' Arch. Environ. Contam. Toxicol.
2001:40(399-405).
\112\ Lemly A., ``Guidelines for evaluating selenium data from
aquatic monitoring and assessment studies.'' Environ. Monit. Assess.
1993:28(83-100).
\113\ Sorensen, E., Bauer, T., Bell, J., Harlan, C. ``Selenium
accumulation and cytotoxicity in teleosts following chronic,
environmental exposure.'' Bull. Environ. Contam. Toxicol.
1982:29(688-696).
\114\ Sorenson, E. ``Selenium accumulation, reproductive status,
and histopathological changes in environmentally exposed redear
sunfish.'' Arch Toxicol 1988:61(324-329).
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Although chromium, beryllium, and silver were not modeled, they
were analyzed using dilution attenuation factors developed for the 50th
and 10th percentiles in the same manner as described above. The only
exceedance of the HQ of 1 was for silver at the 10th percentile under
the landfill scenario. The only exceedances of the ecological criteria
for surface impoundments of the 40 CFR part 261 Appendix VIII
constituents was for chromium at the 10th percentile. Since full-scale
modeling was not conducted, the results for these constituents are
uncertain.
4. Plausible Types of Mismanagement, Quantities of the Waste Generated,
Nature and Severity of Effects From Mismanagement--Factors (vii),
(viii) and (ix)
As discussed earlier, approximately 46 million tons of CCRs were
managed in calendar year 2008 in landfills (34%) and nearly 29.4
million tons were managed in surface impoundments (22%).\115\ EPA has
estimated that in 2004, 69% of the CCR landfills and 38% of the CCR
surface impoundments had liners. As shown in the risk assessment and
damage cases, the disposal of CCRs into unlined landfills and surface
impoundments is likely to pose significant risks to human health and
the environment. Additionally, documented damage cases have helped to
confirm the actuality and magnitude of risks posed by these unlined
disposal units.
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\115\ Estimated from the 2009 ACAA survey and Energy Information
Administration 2005 F767 Power Plant database.
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The CCR waste stream is generated in very large volumes and is
increasing. The ACAA estimates that the production of CCRs has
increased steadily from approximately 30 million tons in the 1960s to
over 120 million tons in the 2000s.\116\ A recent ACAA survey estimates
a total CCR production of just over 136 million tons in 2008.\117\ This
is a substantially large waste stream when compared to the 6.9 million
tons of non-wastewater hazardous wastes disposed by all other sectors
in 2007, and the 2 million tons of hazardous waste being reported as
disposed of in landfills and surface impoundments in 2005.\118\
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\116\ ACAA (American Coal Ash Association). 2008. Production &
Use Chart (1966-2007). http://www.acaa-usa.org/associations/8003/files/Revised_1966_2007_CCP_Prod_v_Use_Chart.pdf.
\117\ ACAA (American Coal Ash Association). 2009. 2008 Coal
Combustion Product (CCP) Production & Use Survey Results. http://www.acaa-usa.org/associations/8003/files/2007_ACAA_CCP_Survey_Report_Form%2809-15-08%29.pdf.
\118\ The National Biennial RCRA Hazardous Waste Report (2007)
available at http://www.epa.gov/epawaste/inforesources/data/br07/national07.pdf.
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EPA currently has documented evidence of proven damages to
groundwater and surface water from 27 disposal sites and potential
damages at 40 sites which are discussed in detail above and in the
Appendix to this proposal. The damage cases resulting from CCR
constituents migrating into groundwater were generally the same with
those predicted in the risk assessment with respect to constituents
which migrated, the concentrations reaching receptors, and the
consequent magnitude of risk to those receptors. Of the constituents in
Appendix VIII of Part 261, four were found at levels of concern in both
the risk assessment and the damage cases (arsenic, cadmium, lead, and
selenium). Two additional Appendix VIII (Part 261) constituents
(chromium and nickel) were found in damage cases, and showed the
potential for risk in the risk assessment, but were not modeled through
fate and transport modeling. Finally, there were two Appendix VIII
(Part 261) constituents (antimony and thallium) that were projected to
be capable of migrating and reaching receptors at levels of concern in
the risk assessment, but have yet to be identified in any of our
groundwater damage cases.\119\
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\119\ While this could indicate a potential conservatism in the
model with respect to these two constituents, it is more likely to
result from a failure to sample for these constituents as
frequently. This is consistent with the data reported in Table 4-29
of the revised risk assessment (only 11 samples taken for antimony
and thallium in surface impoundments versus hundreds for various
other constituents).
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The damages to surface water from Appendix VIII (Part 261)
constituents do not reflect a ground water to surface water pathway,
but rather reflect surface water discharges. Five damage cases resulted
in selenium fish consumption advisories consistent with the risk
assessment's prediction that selenium consumption from fish in water
bodies affected by CCR disposal units would result in excess ecologic
and human health risk. We are aware that at least three of the fish
advisories were subsequently rescinded when the criteria was reassessed
and revised. The risk assessment also predicts that arsenic would pose
such risks. However, while no arsenic fish advisories have been linked
to CCR disposal at this time, the risk assessment predicts that
selenium will migrate faster than arsenic.
In addition to the impacts on human health from groundwater and
surface water contaminated by CCR released from disposal units, the
damage cases have also shown the following adverse effects to plants
and wildlife: Elevated selenium levels in migratory birds, wetland
vegetative damage, fish kills, amphibian deformities, snake metabolic
effects, plant toxicity, mammal uptake, fish deformities, and inhibited
fish reproductive capacity. Although these effects cannot easily be
linked to the results of the risk assessment as was done for
groundwater and surface water above, the risk assessment generally
agreed with the damage cases because it sometimes showed very high
risks to ecological receptors. For additional information on ecological
damages, see the document titled ``What Are the Environmental and
Health Effects Associated with Disposing of CCRs in Landfills and
Surface Impoundments?'' in the docket to this proposal.
Furthermore, four of the 27 proven damage case disposal sites have
been listed on the EPA's National Priorities List (NPL). The NPL is the
list of national priority sites with known releases or threatened
releases of hazardous substances, pollutants, or contaminants
throughout the United States and its territories. The Hazard Ranking
System (HRS), the scoring system EPA uses to assess the relative threat
associated with a release from a site, is the primary method used to
determine whether a site should be placed on the NPL.\120\ The HRS
takes into account the three elements of environmental and human health
risk: (1) Probability of release; (2) exposure; and (3) toxicity. EPA
generally will list sites with scores of 28.5 or above. The HRS is a
proven tool for evaluating and prioritizing the releases that may pose
threats to human health and the environment throughout the nation.
[[Page 35173]]
Whereas each of those 4 NPL sites also contains waste other than CCRs,
CCRs are one of the prevalent waste types in each case.\121\
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\120\ U.S. EPA 2007. ``Introduction to the Hazard Ranking System
(HRS).'' Accessed at: http://www.epa.gov/superfund/programs/npl_hrs/hrsint.htm.
\121\ For specifics, please see http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&d=EPA-HQ-RCRA-2006-0796-0015.
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In addition, the Kingston, Tennessee damage case (see the Appendix)
helps to illustrate the additional threats to human health and the
environment that can be caused by the failure of a CCR waste management
unit. At TVA's Kingston facility, there were four failure conditions:
The presence of an unusually weak fly ash (``Slimes'') foundation; the
fill geometry and setbacks; increased loads due to higher fill; and
hydraulically placed loose wet ash. If owners or operators do not
maintain due diligence regarding the structural integrity of surface
impoundments, significant damage to human health and the environment
could be a likely outcome. In summary, while the preponderance of
documented damage cases were the result of releases from unlined
landfills and surface impoundments, EPA believes that the above data
identify situations (e.g., adverse impacts on migratory birds)
illustrative of potential problems occurring from the management of
CCRs in any type of surface impoundment.
5. Action Taken by Other Governmental Agencies or Regulatory Programs
Based on the Health or Environmental Hazard Posed by the Waste or Waste
Constituent--Factor (x)
As a result of the mismanagement of CCRs, EPA and states have taken
steps to compel cleanup in several situations. Specifically, in
addition to EPA placing sites on the NPL due to the disposal or
indiscriminant placement of CCRs, at least 12 states have issued
administrative orders for corrective actions at CCR disposal sites.
Corrective action measures at these CCR management units vary depending
on the site specific circumstances and include formal closure of the
unit, capping, re-grading of ash and the installation of liners over
the ash, ground water treatment, groundwater monitoring, and
combinations of these measures.
6. Other Factors--Factor (xi)
The damage cases and the risk assessment also found excess risks
for human and ecological receptors that resulted from non-Appendix VIII
(Part 261) constituents.\122\ While not currently identified under RCRA
as hazardous or toxic constituents, several of these constituents have
the same toxic endpoints as the Appendix VIII (Part 261) constituents
found in CCRs, while nitrate is associated with pregnancy complications
and methemoglobinemia (blue baby syndrome).\123\ Although these non-
Appendix VIII (Part 261) constituents do not provide an independent
basis for listing CCRs, EPA finds their presence in the damage cases
and risk assessment results to be relevant to the listing decision
because of the potential to cause additive or synergistic effects to
the Appendix VIII constituents. For instance, exposure to high levels
of cobalt (cobalt has an HQ of 500 when rounded to 1 significant digit)
can result in lung and heart effects, the same endpoints as exposure to
high levels of antimony. Thus, these two constituents could act
additively or synergistically on both the heart and lungs. The risk
assessment showed 90th percentile cobalt drinking water ingestion to be
500 times the reference dose. Thus, cobalt could exacerbate the heart
and lung effects due to CCR antimony exposures.
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\122\ Aluminum, boron, chloride, cobalt, copper, fluoride, iron,
lithium, manganese, molybdenum, nitrate/nitrite, strontium, sulfate,
vanadium, and zinc.
\123\ ATSDR CSEM. Available at: http://www.atsdr.cdc.gov/csem/nitrate/no3physiologic_effects.html.
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Therefore, based on our examination of CCRs against the criteria
for listing, a listing determination for CCRs destined for disposal can
be based on such factors as (1) The continued evidence that CCRs in
landfills and surface impoundments may not be properly managed--e.g.,
the lack of groundwater monitoring for many existing units; (2) the
continued gaps in some state regulations; (3) the damage cases we have
documented to date, including the damage done by the recent
catastrophic release of CCRs from the impoundment failure in Kingston,
Tennessee; and (4) the results of the risk assessment, which indicates
high-end risks associated with disposal of CCRs in unlined and clay-
lined CCR landfills and surface impoundments far exceeding acceptable
levels (e.g., exceeding a cancer risk threshold of 1 x 10-5)
\124\ and the non-cancer risk threshold (HQ greater than 1).
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\124\ This risk level is consistent with those discussed in
EPA's hazardous waste listing determination policy (see the
discussion in a proposed listing for wastes from the dye and pigment
industries, December 22, 1994; 59 FR 66072).
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VI. Summary of the Co-Proposed Subtitle C Regulations
Under the subtitle C alternative, EPA would list CCRs from electric
utilities and independent power producers intended for disposal in
landfills and surface impoundments as a special waste, which would make
them 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.\125\ These
regulations establish, among other things, location restrictions;
standards for liners, leachate collection and removal systems, and
groundwater monitoring for land disposal units; fugitive dust control;
closure and post-closure care requirements; storage requirements;
corrective action; financial assurance; waste characterization; and
permitting requirements. These regulations also impose requirements on
generators and transporters of CCRs destined for disposal, including
manifesting (if the CCRs destined for disposal are sent off site). As
discussed in detail in section IV. E of today's preamble, EPA is
proposing to leave the Bevill determination in place for CCRs used
beneficially. Thus, CCRs beneficially used would not be subject to
regulation from the point of generation or from the point they are
recovered from landfills or surface impoundments, to the point where
they are used beneficially. In addition, when beneficially used (e.g.,
in wallboard and concrete), the CCRs become part of a new product;
these products do not carry the special waste listing. When these
products reach the end of their useful life and are to be disposed of,
this represents a new point of generation. This new waste would be
subject to RCRA subtitle C if the waste exhibits a characteristic of
hazardous waste (i.e., ignitability, corrosivity, reactivity, or
toxicity).
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\125\ As discussed in section VI. D of the preamble, as part of
the proposal to list CCRs as a special waste, as is done routinely
with listed wastes, EPA is also proposing to subject CCRs that are
disposed of to the notification requirements under CERCLA at 40 CFR
part 302.
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In the majority of cases, EPA is proposing that CCRs be subject to
the existing subtitle C requirements without modification. Accordingly,
for those regulatory requirements that we propose not to modify or for
which EPA does not specifically solicit comment, EPA is not proposing
to reopen any aspect of those requirements, and will not respond to any
unsolicited comments submitted during this rulemaking. However, where
EPA has determined that special
[[Page 35174]]
characteristics of these wastes warrant changes; e.g., where
implementation of existing requirements would present practical
difficulties, or where additional requirements are necessary due to the
special characteristics of these wastes, EPA is proposing to revise the
requirements to account for these considerations. For example, EPA is
proposing tailored design criteria for new CCR disposal units, pursuant
to its authority under section 3004(x) of RCRA.\126\ Similarly, under
the authority of section 3004(x) of RCRA, EPA is proposing to modify
the CCR landfill and surface impoundment liner and leak detection
system requirements and the effective dates for the land disposal
restrictions, and the surface impoundment retrofit requirements. EPA is
also proposing to establish new land disposal prohibitions and
treatment standards for both wastewater and non-wastewater CCRs. In
addition, to address dam safety and stability issues, EPA is proposing
design and inspection requirements for surface impoundments, similar to
those of the Mine Safety and Health Administration (MSHA) design
requirements for slurry impoundments at 30 CFR part 77.216 for surface
impoundments. Further, EPA is proposing that all existing surface
impoundments that have not closed in accordance with the rule's
requirements by the effective date of this rule would be subject to all
of the requirements of this rule, including the need to obtain a
permit, irrespective of whether the unit continues to receive CCRs or
the facility otherwise engages in the active management of those units.
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\126\ Section 3004(x) of RCRA provides EPA the authority to
modify certain statutory provision (i.e., 3004(c), (d), (e), (f),
(g), (o), and (u) and 3005(j) taking into account the special
characteristics of such wastes, the practical difficulties
associated with implementation of such requirements, and site-
specific characteristics, including, but not limited to, climate,
geology, hydrology, and soil chemistry at the site, so long as such
modified requirements are protective of human health and the
environment.
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Finally, we would note that if the Agency concludes to reverse the
Bevill determinations and list CCRs as a special waste, EPA would make
in any final rule conforming changes to 40 CFR parts 260 through 268
and 270 through 272 so that it is clear that these requirements apply
to all facilities regulated under the authority of RCRA subtitle C that
generate, transport, treat, store, or dispose of special wastes as well
as to those facilities that generate, treat, store, or dispose of
special wastes.
The following paragraphs set out the details of this subtitle C
proposal, with the modified or new requirement discussed in Section B.
and the existing subtitle C requirements discussed in Section C.
A. Special Waste Listing
Under this regulatory option, EPA is proposing to list CCRs
generated by electric utilities and independent power producers
destined for disposal as a special waste subject to the requirements of
RCRA subtitle C by amending 40 CFR part 261 and to add Subpart F--
Special Wastes Subject to Subtitle C Regulations. The Agency believes
this would be the appropriate manner for listing these wastes, and, as
discussed in detail later in this section, the Agency believes that
listing CCRs destined for disposal as a special waste, rather than a
hazardous waste could, in large measure, address potential issues of
stigma.
B. Proposed Special Requirements for CCRs
The following paragraphs discuss the special requirements the
Agency is proposing for CCRs. These requirements modify or are in
addition to the general subtitle C requirements found at 40 CFR parts
264-268 and 270-272.
1. Modification of Technical Standards Under 3004(x)
Section 3004(x) of RCRA authorizes the Administrator to modify the
statutory requirements of sections 3004(c), (d), (e), (f), (g), (o),
(u), and 3005(j) of RCRA in the case of landfills or surface
impoundments receiving Bevill wastes, including CCRs that EPA
determines to regulate under subtitle C, to take into account the
special characteristics of the wastes, the practical difficulties
associated with implementation of such requirements, and site-specific
characteristics, including, but not limited to the climate, geology,
hydrology and soil chemistry at the site, so long as such modified
requirements assure protection of human health and the environment. The
Agency is proposing to modify, through its authority under RCRA
3004(x), the CCR landfill and surface impoundment liner and leak
detection system requirements, the effective dates for the land
disposal restrictions, and the surface impoundment retrofit
requirements.
i. Modification of CCR Landfills and Surface Impoundments From the
Section 3004(o) Liner and Leak Detection Requirements
The minimum technological requirements set out in RCRA Section
3004(o)(1)(A)(i) requires that new hazardous waste landfills and
surface impoundments, replacements of existing landfills and
impoundments, and lateral expansions of existing landfills and
impoundments,\127\ to install two or more liners and a leachate
collection and removal system above (in the case of a landfill) and
between such liners. Section 3004(o)(4)(A) also requires these units to
install a leak detection system. Landfills and surface impoundments
covered under the regulations at 40 CFR part 264 are required to have a
double liner system, and a leachate collection and removal system that
can also serve as a leak detection system as described in 40 CFR
sections 264.221 and 264.301. Under section 3005 (j)(1) (and, as
explained below, effectively under section 3005 (j)(11) as well),
existing surface impoundments are required to meet all of these
requirements as well.
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\127\ Replacement unit means a landfill, surface impoundment, or
waste pile unit (1) from which all or substantially all of the waste
is removed, and (2) that is subsequently reused to treat, store, or
dispose of such waste. ``Replacement unit'' does not apply to a unit
from which waste is removed during closure, if the subsequent reuse
solely involves the disposal of waste from that unit and other
closing units or corrective action areas at the facility, in
accordance with an approved closure plan or EPA or State approved
corrective action. Lateral expansion means a horizontal expansion of
the waste boundaries of an existing landfill or surface impoundment.
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EPA is proposing to modify the double liner and leachate collection
and removal system requirement by substituting a requirement to install
a composite liner and leachate collection and removal system. As
modeled in EPA's risk assessment, composite liners effectively reduce
risks from all constituents to below the risk criteria for both
landfills and surface impoundments. Therefore, the Agency believes a
composite liner system would be adequately protective of human health
and the environment and a double liner system would be unnecessarily
burdensome. The modified standards specify a composite liner system
that consists of two components: the upper component must consist of a
minimum 30-mil flexible membrane liner (FML), and the lower component
must consist of at least a two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1x10-7 cm/sec. FML
components consisting of high density polyethylene (HDPE) shall be at
least 60-mil thick. The FML component must be installed in direct and
uniform contact with the compacted soil component. The leachate
collection system must be designed and constructed to maintain less
than a 30-cm depth of leachate over the liner.
[[Page 35175]]
EPA has concluded that these liner and leachate collection
requirements will be protective of human health and the environment
from the release of contaminants to groundwater from CCRs in landfills
and surface impoundments. Specifically, the risk assessment indicates
that risks from disposal units with composite liners will be less than
the 1 x 10-5 for carcinogens and less than an HQ of one for
other hazardous constituents--levels that EPA has considered protective
for the management of hazardous wastes. (The results of EPA's risk
analyses are discussed in section II.B, and in the full risk assessment
document, which is in the docket for today's proposed rulemaking.)
Further support is provided by the damage cases, as none of the proven
damage cases involved lined landfills or surface impoundments (with the
possible exception of one unit, which in any case did not have a
composite liner). In addition, the proposed modified requirements are
the design standards for composite liners specified for municipal solid
waste landfills at 40 CFR part 258; based on EPA's experience, such
liner design would be expected to be effective in mitigating the risks
of leaching to groundwater for a waste, such as CCRs. For example, CCRs
do not contain volatile organics, such as ethylbenzene, which has
recently been shown to be problematic for synthetic liners.
Although EPA has not confirmed damage cases involving the failure
of clay liners, it is not proposing to allow new disposal units to be
built solely with clay liners. EPA's modeling in its risk assessment
indicated that clay liners could be of concern; EPA also believes that
composite liners reflect today's best practices for new units, and, as
such, can therefore be feasibly implemented.\128\ Nevertheless, EPA
solicits comments on whether clay liners should also be allowed under
EPA's regulations. To assist EPA in its review, we request that
commenters provide data on the hydraulic conductivity of clay liners
associated with coal ash disposal units, and information on the
protectiveness of clay liner designs based on site-specific analyses.
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\128\ EPA notes that the state of Maryland, in developing new
standards for CCR disposal units under its subtitle D authorities,
prescribes composite liners.
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Thus, we are proposing to amend the current requirements of 40 CFR
264.220, and 264.300 to require that CCR surface impoundments and
landfills install a composite liner and leachate collection and removal
system. EPA would codify these requirements, as well as other special
requirements for CCR wastes in a new subpart FF of 40 CFR part 264.
EPA also notes that section 3004(o)(2) allows the Agency to approve
alternate liner designs, based on site-specific demonstrations that the
alternate design and operating practices, together with location
characteristics, will prevent the migration of any hazardous
constituents into ground or surface water at least as effectively as
the double-liner system (42 U.S.C. 6924(o)(2)). EPA solicits comment on
whether, in addition to the flexibility provided by section 3004(o)(2),
EPA's regulations should also provide for alternative liner designs
based on, for example, a specific performance standard, such as the
subtitle D performance standard in 40 CFR 258.40(a)(1), or a site
specific risk assessment, or a standard that the alternative liner,
such as a clay liner, was at least as effective as the composite liner.
Such an approach might be appropriate, for example, in situations where
groundwater is particularly deep and/or infiltration rates are low, or
where alternative liner systems provide an equivalent level of
protection.
Subtitle C of RCRA requires only new hazardous waste landfills (or
new portions of existing landfills) to meet the minimum technology
requirements for liners and leachate collection and removal systems.
RCRA section 3004 (o)(1)(A). The statute thus does not require existing
landfills that are brought into the subtitle C system because they are
receiving newly listed hazardous wastes, or the new category of listed
special wastes proposed in this notice, to be retrofitted with a new
minimum-technology liner/leachate collection and removal system (or to
close). They can continue to receive hazardous or special waste, and
continue to operate as compliant hazardous or special waste landfills.
Following from these provisions, EPA has not typically required
existing landfills to be retrofitted to meet the new requirements.
Congress specifically established this approach under subtitle C, and
EPA sees no reason or special argument to adopt more stringent
requirements for CCR landfills, particularly given the volume of the
material and the disruption that would be involved with any other
approach. However, under the proposal, existing units would have to
meet the groundwater monitoring, corrective action, and other
requirements of the subtitle C regulations to assure that any
groundwater releases from the unit were identified and promptly
remediated. This is consistent with the manner in which EPA has
historically implemented the hazardous waste requirements. EPA believes
that maintaining this approach in this context will be protective, in
part, because, unless facilities ship all of their wastes off-site
(which EPA believes is highly unlikely), they will need a permit for
on-site management of CCRs, which will provide regulatory oversight
that could, as necessary, address the risks from the existing
(unpermitted) landfills.
By contrast, Congress was significantly more concerned about the
risks associated with unlined surface impoundments managing newly
listed hazardous wastes (see 42 U.S.C. Section 6924, October 21, 1976).
This is addressed in more detail in section (iv) below titled ``Wet-
Handling of CCRs, Closure, and Interim Status for Surface
Impoundments.''
ii. Fugitive Dust Controls
The proposed subtitle C approach would require that surface
impoundments and landfills be managed in a manner that controls
fugitive dust consistent with any applicable requirements developed
under a State Implementation Plan (SIP) or issued by EPA under section
110 of the Clean Air Act (CAA). Specifically, EPA is proposing to adopt
as a standard the 35 [mu]g/m\3\ level established as the level of the
24-hour NAAQS for fine particulate matter (PM-2.5). In addition, CCR
facilities would be required to control fugitive dust by either
covering or otherwise managing CCRs to control wind dispersal of dust,
emplacement as wet conditioned CCRs to control wind dispersal, when
stored in piles, or storage in tanks or buildings. For purposes of the
proposal, wet conditioning means wetting CCRs with water to a moisture
content that prevents wind dispersal, facilitates compaction, but does
not result in free liquids. Trucks or other vehicles transporting CCRs
are to be covered or otherwise managed to control wind dispersal of
dust. EPA is proposing this requirement based on the results of a
screening level analysis of the risks posed by fugitive dusts from CCR
landfills, which showed that, without fugitive dust controls, levels at
nearby locations could exceed the 35 [mu]g/m\3\ level established as
the level of the 24-hour PM 2.5 NAAQS for fine particulate.
iii. Special Requirements for Stability of CCR Surface Impoundments
To detect and prevent potential catastrophic releases, EPA is
proposing requirements for periodic inspections of surface
impoundments. The Agency
[[Page 35176]]
believes that such a requirement is critical to ensure that the owner
and operator of the surface impoundment becomes aware of any problems
that may arise with the structural stability of the unit before they
occur and, thus, prevent the past types of catastrophic releases, such
as at Martins Creek, Pennsylvania and TVA's Kingston, Tennessee
facility. Therefore, EPA is proposing that inspections be conducted
every seven days by a person qualified to recognize specific signs of
structural instability and other hazardous conditions by visual
observation and, if applicable, to monitor instrumentation. If a
potentially hazardous condition develops, the owner or operator shall
immediately take action to eliminate the potentially hazardous
condition; notify the Regional Administrator or the authorized State
Director; and notify and prepare to evacuate, if necessary, all
personnel from the property which may be affected by the potentially
hazardous condition(s). Additionally, the owner or operator must notify
state and local emergency response personnel if conditions warrant so
that people living in the area down gradient from the surface
impoundment can be evacuated. Reports of inspections are to be
maintained in the facility operating record.
To address surface impoundment (or impoundment) integrity (dam
safety), EPA considered two options. One option, which is the option
proposed in this notice, is to establish standards under RCRA for CCR
surface impoundments similar to those promulgated for coal slurry
impoundments regulated by the Mine Safety and Health Administration
(MSHA) at 30 CFR 77.216. Facilities relying on CCR impoundments would
need to (1) submit to EPA or the authorized state plans for the design,
construction, and maintenance of existing impoundments, (2) submit to
EPA or the authorized state plans for closure, (3) conduct periodic
inspections by trained personnel who are knowledgeable in impoundment
design and safety, and (4) provide an annual certification by an
independent registered professional engineer that all construction,
operation, and maintenance of impoundments is in accordance with the
approved plan. When problematic stability and safety issues are
identified, owners and operators would be required to address these
issues in a timely manner.
In developing these proposed regulations for structural integrity
of CCR impoundments, EPA sought advice from the federal agencies
charged with managing the safety of dams in the United States. Many
agencies in the federal government are charged with dam safety,
including the U.S. Department of Agriculture (USDA), the Department of
Defense (DOD), the Department of Energy (DOE), the Nuclear Regulatory
Commission (NRC), the Department of Interior (DOI), and the Department
of Labor (DOL), MSHA. EPA looked particularly to MSHA, whose charge and
jurisdiction appeared to EPA to be the most similar to our task. MSHA's
jurisdiction extends to all dams used as part of an active mining
operation and their regulations cover ``water, sediment or slurry
impoundments'' so they include dams for waste disposal, freshwater
supply, water treatment, and sediment control. In fact, MSHA's current
impoundment regulations were created as a result of the dam failure at
Buffalo Creek, West Virginia on February 26, 1972. (This failure
released 138 million gallons of stormwater run-off and fine coal
refuse, and resulted in 125 persons being killed, another 1,000 were
injured, over 500 homes were completely demolished, and nearly 1,000
others were damaged.)
MSHA has nearly 40 years of experience writing regulations and
inspecting dams associated with coal mining, which is directly relevant
to the issues presented by CCRs in this rule. In our review of the MSHA
regulations, we found them to be comprehensive and directly applicable
to the dams used in surface impoundments at coal-fired utilities to
manage CCRs. We also believe that, based on the record compiled by MSHA
for its rulemaking, and on MSHA's 40 years of experience implementing
these regulations, these requirements will prevent the catastrophic
release of CCRs from surface impoundments, as occurred at TVA's
facility in Kingston, Tennessee, and will generally meet RCRA's mandate
to ensure the protection of humans and the environment. Thus, we have
modeled our proposal on the MSHA regulations in 30 CFR Part 77 and we
have placed the text of the salient portions of the MSHA regulations in
the docket for this rulemaking. The Agency requests comment on EPA's
proposal to adopt the MSHA standards (with limited modifications to
deal with issues specific to CCR impoundments) to address surface
impoundment integrity under RCRA.
MSHA's regulations cover impoundments which can present a hazard
and which impound water, sediment or slurry to an elevation of more
than five (5) feet and have a storage volume of 20 acre-feet or more
and those that impound water, sediment, or slurry to an elevation of 20
feet or more. EPA seeks comment on whether to cover all CCR
impoundments for stability, regardless of height and storage volume,
whether to use the cut-offs in the MSHA regulations, or whether other
regulations, approaches, or size cut-offs should be used. If commenters
believe that other regulations or size cut-offs should be adopted (and
not the size-cut offs established in the MSHA regulations), we request
that commenters provide the basis and technical support for their
position.
The second option that EPA considered, but is not being proposed
today, is to establish impoundment integrity requirements under the
Clean Water Act's NPDES permit system. Existing regulations at 40 CFR
122.41(e) require that permittees properly operate and maintain all
facilities of treatment and control used to achieve compliance with
their permits. In addition, regulations at 40 CFR 122.44(k) allow the
use of best management practices for the control and abatement of the
discharge of toxic pollutants. Guidance could be developed to use best
management practices to address impoundment construction, operation,
and maintenance, consistent with the requirements of 40 CFR 122.41(e)
and 122.44(k). Associated permit conditions could require that surface
impoundments be designed and constructed in accordance with relevant
state and federal regulations. The Agency requests comments regarding
the alternate use of NPDES permits rather than the development of RCRA
regulations to address dam safety and structural integrity.
iv. Wet-Handling of CCRs, Closure, and Interim Status for Surface
Impoundments
Where a nonhazardous waste surface impoundment is storing a waste
that becomes newly subject to the RCRA hazardous waste requirements,
RCRA subtitle C and the implementing regulations require these surface
impoundments either to be closed or upgraded to meet the minimum
technology requirements within four years. RCRA section 3005 (j)(6), is
implemented by 40 CFR 268.14.\129\ In order to be eligible for this
four year grace period, the impoundment must be in compliance with the
applicable
[[Page 35177]]
groundwater monitoring provision under Part 40 CFR 265, Subpart F
within 12 months of the promulgation of the new hazardous listing or
characteristic.
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\129\ 40 CFR 268.14 allows owners and operators of newly
regulated surface impoundments to continue managing hazardous waste
without complying with the minimum technology requirements for a
period up to four years before upgrading or closing the unit.
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RCRA section 3005 (j)(11) allows the placement of untreated
hazardous waste (i.e. hazardous waste otherwise prohibited from land
disposal which has not been treated to meet EPA-established treatment
standards before land disposal) in surface impoundments under limited
circumstances. Such hazardous wastes may be placed in impoundments for
purposes of treatment provided the impoundments meet the minimum
technology requirements and provided that any treatment residues which
either do not meet the treatment standards or which remain classified
as hazardous wastes are removed from the impoundment annually. See the
implementing rules in 40 CFR section 268.4. EPA has interpreted this
provision so as not to nullify the provisions of section 3005(j)(6),
the upshot being that impoundments receiving newly identified or listed
wastes would have four years to close or retrofit under all
circumstances. See 56 FR 37194. If the surface impoundment continues to
treat hazardous wastes after the four year period, it must then be in
compliance with 40 CFR 268.4 (Treatment Surface Impoundment Exemption).
Section 3005(j) of RCRA generally requires that existing surface
impoundments cannot obtain interim status and continue to receive or
store newly regulated hazardous waste for more than four years after
the promulgation of the listing--unless the facility owner retrofits
the unit by installing a liner that meets the requirements of section
3004(o)(1)(A), or meets the conditions specified in section 3005(j)(2).
Under section 3005(j)(2), a surface impoundment may obtain interim
status and continue to receive or store hazardous waste after the four-
year deadline if (1) The unit has at least one liner, and there is no
evidence it is leaking, (2) is located more than one-quarter mile from
an underground source of drinking water; and (3) complies with the
groundwater monitoring requirements applicable to permitted facilities.
In this case, under section 3005(j)(9), the facility owner, at the
closure of the unit, would have to remove or decontaminate all waste
residues, all contaminated liner material, and contaminated soil to the
extent practicable.
As part of the requirement to assure that surface impoundments will
be safely phased out, EPA also proposes to regulate surface
impoundments that have not completed closure prior to the effective
date of the rule. Under that scenario, these units would be subject to
the interim status closure requirements of 40 CFR 265.111 and
265.228(a)(2). For surface impoundments that have not met the interim
status requirements by the effective date of the rule, they would be
subject to the full RCRA subtitle C closure requirements (e.g., obtain
a Part A permit and comply with the interim status regulations).
EPA recognizes that for regulatory purposes, it has historically
not required disposal units that cease receiving new listed or
characteristic wastes before the effective date of RCRA subtitle C to
comply with the requirements. However, EPA believes that a revised
approach is necessary to protect human health and the environment, in
this particular case, given the size of the CCR surface impoundments in
question; the enormous volumes of CCRs they typically contain (which
typically represent overwhelming mass of the material in place); the
fact that the CCRs are typically destined for permanent entombment when
the unit is eventually closed (typically with limited removal); the
presence of very large hydraulic head leading to continued release--
even where the impoundment has been drained--that is, improperly closed
CCR impoundments remain open to precipitation and infiltration; and the
continuing threat to human health and the environment through
catastrophic failure, if the impoundments are not properly closed.
EPA's authority under subtitle C of RCRA extends to wastes that are
treated, stored, or disposed of; the statutory definition of disposal
has been broadly interpreted to include passive leaking. But
historically, EPA has construed the definition of disposal for
regulatory purposes to be narrower than the statutory definition of
disposal. Although in some situations, post-placement management has
been considered disposal, triggering RCRA subtitle C regulatory
requirements e.g., multiple dredging of impoundments or management of
leachate, EPA has generally interpreted the statute to require a permit
only if a facility treats, stores, or disposes of the waste, after the
effective date of its designation as a hazardous waste. See, e.g., 43
FR 58984 (Dec. 18, 1978; 45 FR 33074 (May 1980).
The consequence of this interpretation is that, for example, no
permit would be required if, after the rule's effective date, a
facility neither continued to accept the listed wastes for disposal,
nor continued to ``manage the wastes'' in the existing unit. In other
words, under this interpretation, facility owners could abandon the
unit before the effective date of the rule without incurring any
regulatory obligations under RCRA subtitle C (presuming no other
regulated unit is present on-site).
Given the particularly significant risk associated with CCR
impoundments described above, as well as the fact that these risks are
primarily driven by the existing disposal units, EPA believes a broader
interpretation of disposal is appropriate in this case. This is
reinforced by the fact that the continued release of constituents to
surrounding soil and groundwater through the continued infiltration of
precipitation through inappropriately closed CCR impoundments (or
failure to remove the impoundment waters, which provides a hydraulic
head) properly constitute regulatory disposal in this specific
situation.
As a practical matter, EPA believes that owners of facilities where
CCRs are managed in existing surface impoundments being brought under
RCRA subtitle C by today's proposal would choose not to, or would not
be able to, comply with either of these alternatives (i.e., retrofit or
clean closure), given the size of the units and the volume of CCRs
involved. Therefore, EPA believes that the section 3005(j)
requirements, for all practical purposes, will have the effect of
requiring the closure of existing surface impoundments receiving CCRs
within four years of the effective date of today's proposed rule
(unless they already meet the liner requirements).\130\
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\130\ The HSWA surface impoundment retrofit requirements, as
they applied to impoundments in existence at the time RCRA was
amended in 1984, went into effect in 1988. EPA is not aware of any
facility owner/operator managing an existing surface impoundment at
the time who chose to retrofit its impoundment, rather than to close
it. EPA believes facilities managing surface impoundments today,
will similarly choose to close the surface impoundment rather than
retrofit.
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Section 3004(x), however, gives EPA the authority to modify section
3005(j) requirements, if the specific criteria listed in that section
are met. In today's notice, EPA is proposing to modify the time
required for retrofitting surface impoundments under section 3005(j),
because of the special characteristics (i.e., extremely large volumes)
of CCRs and the practical difficulties associated with requiring
facilities to cease to store CCRs within four years of the effective
date of today's rule.
Therefore, EPA is proposing to modify the section 3005(j)
requirements by extending the time limit for unit closure. The modified
standard in today's proposal would require facilities operating surface
impoundments that do not meet minimum technology
[[Page 35178]]
requirements and are receiving CCRs to stop receiving those CCRs no
later than five years after the effective date of the final regulation
and to close the unit within two years after that date. In other words,
the time required for closure would be up to seven years rather than
four years.
EPA believes that the four-year deadline in RCRA section 3005(j)
receiving CCRs will be extraordinarily difficult if not impossible for
many facilities to meet, given the size of the units and limitations in
available alternative subtitle C disposal capacity. Facility owners
choosing to close surface impoundments may have to make significant
engineering and process changes, e.g., to convert from wet- to dry-
handling of wastes, which cannot necessarily be accomplished within
four years. For example, USWAG has raised concerns that there is
limited manufacturing capacity for key conversion equipment, which
could reasonably be expected to complicate the utilities' ability to
collectively make the necessary engineering changes within a four-year
timeframe. An additional consideration is that EPA expects that many
facilities would need to obtain permits for new units or find
alternative subtitle C capacity to receive the wastes diverted from
surface impoundments. Also, facilities that use surface impoundments
receiving CCRs to manage stormwater and nonhazardous wastewater will
have to site and get permits for new stormwater management units before
facility owners can cease utilizing existing units. The amount of time
to achieve either of these alternatives relies, to some extent, on
events beyond the facility's control; for example, the timeframes to
obtain a permit for a new unit can vary substantially and, in large
measure, are ultimately dictated by the permitting authority, rather
than the applicant. This may be further complicated by the fact that
location standards or on-site space limitations can restrict the
opportunity for siting new units at the generating facility, requiring
utilities to find off-site disposal facilities able to receive the
special waste in the volumes in question.
In the 1984 amendments, Congress only allowed surface impoundments
four years to cease receiving hazardous waste (or comply with minimum
technological design requirements, etc.). Given the enormously greater
volume of waste involved with CCR surface impoundments and the process
changes that the facilities will need to implement to convert to dry
handling, EPA believes it not practicable to require surface
impoundments to cease receiving CCR waste or comply with the minimum
technological requirements four years and that additional time is
appropriate. (As noted below, facilities in most states will have
significantly more time for planning, because the rules will not become
effective in states authorized for the RCRA program before those states
have amended their requirements consistent with today's rule; the state
regulatory process will likely take several years.) On the other hand,
as the risks predicted in the risk assessment are extraordinarily high
(up to 2 x 10-2), EPA believes that closure within the
shortest practicable time is important.
Any modifications of section 3005(j) must meet the section 3004(x)
stricture that the modification must still ``assure protection of human
health and the environment (42 U.S.C. 6924(x).'' EPA believes that
allowing three additional years for closure, under today's proposal,
would be protective because surface impoundments subject to the closure
requirements would be required (during this interim period) to have
groundwater monitoring systems sufficient to detect releases of
hazardous constituents into the groundwater, and take corrective action
where releases were detected above drinking water levels.\131\
Additionally, the median number of years until peak well water
concentrations are reached for selenium and arsenic are estimated at 74
and 78 years, respectively, for unlined surface impoundments and 90 and
110 years, respectively, for clay-lined surface impoundments, reducing
the likely risks posed over this five-year period.
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\131\ The Agency is also modifying the requirement that surface
impoundments be dredged annually, based on RCRA section 3004(x).
This is discussed in detail in section v (Proposed Land Disposal
Restrictions) below.
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In addition, although not directly relevant to leaching from these
surface impoundments, we would also note (as described previously in
this section) that the facility would be required to have an
independent registered professional engineer certify that design of the
impoundment is in accordance with recognized and generally accepted
good engineering practices (RAGAGEP) \132\ for the maximum volume of
CCR slurry and wastewater that will be impounded therein, and that the
design and management features ensure dam stability. Finally, the
facilities will be required to conduct weekly inspections to ensure
that any potentially hazardous condition or structural weakness will be
quickly identified. Therefore, the additional timeframe that EPA is
proposing to allow--needed to address practical realities--will
``assure protection of human health and the environment. While
groundwater monitoring, corrective action, and close oversight of these
units is not, we believe, the most appropriate long-term solution, we
do believe that these steps will protect public health and the
environment in the short term while the permanent solutions are being
implemented.
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\132\ Recognized and generally accepted good engineering
practices (RAGAGEPs) are engineering, operation, or maintenance
activities based on established codes, standards, published
technical reports or recommended practices (RP) or a similar
document. RAGAGEPs detail generally approved ways to perform
specific engineering, inspection or mechanical integrity activities.
See http://www.osha.gov/OshDoc/Directive_pdf/CPL_03-00-010.pdf.
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EPA recognizes that the costs of these requirements will be
significant, especially for existing surface impoundments and similar
units that handle wet CCRs. EPA also acknowledges that the date by
which impoundments have to close is an important issue, affecting the
costs of phase-out of wet handling and the ability of industry to
comply. USWAG has argued strenuously against a closure requirement in
the first place, and has asserted that, if such a requirement were
imposed, industry would require ten years to comply.\133\
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\133\ In developing cost estimates for closing its surface
impoundments, TVA also assumed that the process would take place
over ten years.
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EPA is not persuaded by these comments. We appreciate the cost
considerations but also believe it is important that these surface
impoundments cease receiving wet-handled CCRs and proceed to closure as
soon as practicable. The Agency believes that the time period proposed
today is sufficient to provide industry the time necessary to convert
from wet handling to dry handling of these wastes, close out existing
units, and find or put in place new disposal capacity for these wastes.
In addition, the Agency notes that TVA and other utilities have already
decided, or are being required by states, to close existing
impoundments, regardless of the requirements of today's proposed rule.
As a result, EPA believes today's proposal would have less effect than
industry commenters suggest because some facilities may be making these
changes anyway and they reflect best management practices in today's
environment. However, EPA solicits comments on whether seven years (5
years to cease receiving waste and 2 years to close) from the effective
date to implement these provisions is an achievable time for facilities
to comply.
[[Page 35179]]
EPA is interested in comments on procedural, as well as technical,
issues (e.g., time to allow permit modifications for new capacity or
EPA or state approval of closure plans). As stated earlier, EPA does
note that, in the 1984 amendments to RCRA, Congress required existing
hazardous waste surface impoundments without liners to retrofit within
four years if they are to continue operating. Congress also required
impoundments which place hazardous wastes into impoundments to either
treat the wastes first, or to use minimum technology impoundments,
including a requirement to dredge the impoundment annually. See
discussion of section 3005(j)(11) and implementing regulations above.
As a practical matter, this meant that all but a very few surface
impoundments ceased receiving hazardous wastes within this time period.
Thus, a requirement that surface impoundments cease receiving liquid
wastes in five years and close in seven years is consistent with
Congressional direction on appropriate time periods to phase out the
management of CCRs in surface impoundments. Further, as noted
previously, these specific requirements will not go into effect in most
cases until a state is authorized for this aspect of the RCRA program,
which normally takes from two to five years after the regulations
become federally effective (with some estimates as long as eight
years), giving facilities substantial advance notice. (See discussion
on when the rules become effective in section VII of this preamble.)
For commenters who suggest a longer time period is needed, EPA solicits
comment on how a longer time period would meet the section 3004(x) risk
standard.
Whatever time period EPA selects, the Agency solicits comment on
whether it should include a provision that would allow the regulatory
Agency to provide additional time on a case-by-case basis because of
site-specific issues (e.g., particular technical difficulties or
equipment availability outside the utility's control, as well as
permitting delays). This provision might be modeled after the provision
of 40 CFR 264.112 and 265.112 (Amendment of Plans), allowing facilities
to delay closure of hazardous waste management units.
Commenters have also stated that, while it may be appropriate to
require closure of most existing impoundments, some may be clearly
safe. For example, existing impoundments theoretically may already have
a composite liner, and present minimal threat of release (e.g., because
they are below grade or not far above grade). EPA solicits comment on
whether a variance process would be appropriate allowing some
impoundments or similar units that manage wet-handled CCRs to remain in
operation because they present minimal risk to groundwater (e.g.,
because they have a composite liner) and minimal risk of a catastrophic
release (e.g., as indicated by a low potential hazard rating under the
Federal Guidelines for Dam Safety established by the Federal Emergency
Management Agency). It should be noted that the statute already
provides such a mechanism in section 3005 (j)(4) and (5) (based on
making a so-called `no-migration' demonstration--evidently Congress'
view of what level of control is considered protective for hazardous
waste impoundments not utilizing minimum technology controls \134\) and
commenters should address whether this existing case-by-case mechanism
should be utilized here. In such cases, the wastes might also meet
current LDR treatment standards.
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\134\ See RCRA section 3004 (d), (e), (f), and (g) all of which
define a land disposal unit as protective of human health and the
environment if ``it has been demonstrated to a reasonable degree of
certainty that there will be no migration of hazardous constituents
from the disposal unit * * * for as long as the wastes remain
hazardous''.
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v. Proposed Land Disposal Restrictions
Through RCRA sections 3004 (d), (e), (f), and (g), Congress has
prohibited the land disposal of hazardous waste unless the waste meets
treatment standards established by EPA before the waste is disposed of,
or is disposed of in units from which there will be no migration of
hazardous constituents for as long as the waste remains hazardous. The
treatment standards may be either a treatment level or a specified
treatment method, and the treatment must substantially diminish the
toxicity of the waste or substantially reduce the likelihood of
migration of hazardous constituents from the waste so that short-term
and long-term threats to human health and the environment are minimized
(RCRA section 3004(m)). If the hazardous waste has been treated to the
level or by a method specified in the regulations (or if the waste as
generated meets the treatment standard), the waste is not subject to
any land disposal prohibition and may be disposed of in a land disposal
unit which meets the requirements of 40 CFR parts 264 or 265 (the
exception being for surface impoundments discussed in the preceding
subsection and further below). For hazardous wastes identified or
listed under RCRA section 3001 after the date of the 1984 amendments to
RCRA subtitle C (the situation here), EPA is required to determine
whether the waste shall be prohibited from one or more methods of land
disposal within six months after the date of such identification or
listing, and if EPA determines that one or more methods are prohibited,
the Agency is also required to specify treatment levels or methods of
treatment for the waste (RCRA section 3004(g)(4)).
In an effort to make treatment standards as uniform as possible,
while adhering to the fundamental requirement that the standards must
minimize threats to human health and the environment before hazardous
wastes can be land disposed, EPA developed the Universal Treatment
Standards (UTS) (codified at 40 CFR 268.48). Under the UTS, whenever
technically and legally possible, the Agency adopts the same
technology-based numerical limit for a hazardous constituent regardless
of the type of hazardous waste in which the constituent is present. See
63 FR 28560 (May 26, 1998); 59 FR 47982 (September 19, 1994). The UTS,
in turn, reflect the performance of Best Demonstrated Available
Technologies (BDAT) of the constituents in question. These treatment
standards can be met by any type of treatment, other than impermissible
dilution, and wastes can satisfy the treatment standards as generated
(i.e., without being treated).
As explained above, section 3004(x) of RCRA authorizes the EPA
Administrator to modify the requirements of sections (d), (e), (f), and
(g) of section 3004 for Bevill wastes, including CCRs that EPA
determines to regulate as hazardous, to take into account the special
characteristics of the wastes, the practical difficulties associated
with implementation of the requirements, and site-specific
characteristics, so long as such modified requirements assure
protection of human health and the environment.
In conjunction with a proposed listing, EPA is proposing to
prohibit the land disposal of CCRs, unless they meet the applicable
treatment standards. In addition, although CCRs could be disposed of
without treatment in landfills and impoundments from which there will
be no migration of hazardous constituents for as long as the waste
remains hazardous, EPA doubts that such a unit exists, given the
volumes of CCRs and their many (documented) release pathways discussed
above. In any case, no-migration determinations are necessarily made on
a case-by-case basis, and the burden is on petitioners to show that
individual land disposal units satisfy the exacting standard. See 40
CFR section 268.6.
[[Page 35180]]
2. Proposed Treatment Standards for Non-Wastewaters (Dry CCRs)
For non-wastewaters (i.e., dry CCRs), EPA is proposing that CCRs be
subject to the UTS. As EPA has found repeatedly, this standard reflects
the performance of Best Demonstrated Available Technology and so
satisfies the requirements of section 3004 (m) (see Hazardous Waste
Treatment Council v. EPA, 886 F. 2d 355, 363 (D.C. Cir. 1989)), and
also does not force treatment past the point at which threats to human
health and the environment are minimized (see 55 FR 6640, 6641-42 (Feb.
26, 1990)). These standards should be achievable by application of
various available technologies, although data \135\ indicate that a
great portion (if not virtually all) dry CCRs meet these standards as
generated.
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\135\ EPA's CCR constituent database which is available from the
docket to this proposal.
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3. Proposed Treatment Standards for Wastewaters (Wet-Handled CCRs)
EPA is also proposing standards for wastewater CCRs. As an initial
matter, EPA is proposing to adopt a specific and different definition
of wastewater for CCRs. Under the existing RCRA subtitle C rules, a
wastewater is defined as one that contains less than 1% by weight total
organic carbon (TOC) and less than 1% by weight total suspended solids
(i.e., the current wastewater definition for purposes of LDRs; see 40
CFR part 268.2 (f)). Functionally, the current definition of
wastewaters would not include slurried fly ash or slurried FGD from wet
air pollution control systems. EPA believes it important to distinguish
between nonwastewaters which involve dry coal ash and surface
impoundment systems which are commonly viewed as involving wastewaters.
EPA, therefore, is proposing to create the distinction between
wastewater and nonwastewater CCRs by classifying CCRs as wastewaters if
the moisture content of the waste exceeds 50%. Thus, if CCRs contain
more water than solids, the CCR would be classified as a wastewater,
and would be subject to the LDR treatment standard for wastewaters. By
proposing the criteria at 50% moisture, EPA believes new methods for
pumping and disposal of high solids material without free liquids are
still viable. EPA is proposing this definition to appropriately address
risks associated with CCRs surface impoundments, which contain free
liquids. However, the Agency requests comment on this alternative
definition of wastewaters for purposes of determining which treatment
standards the CCRs would be subject to.
As part of the proposed treatment standard, EPA is proposing that
these wastewaters undergo solids removal so that the wastewaters
contain no greater than 100 mg/l total suspended solids (TSS) and meet
the UTS for wastewaters. This proposed level is consistent with
wastewater treatment requirements based on Best Practicable Control
Technology Currently Available for the Electric Power Generating Point
Source Category (40 CFR section 423.12).\136\ Solids separation is a
base level water pollution control technology, which assures that the
vast majority of coal ash and associated contaminants are removed and
managed in landfills.
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\136\ Although TSS is not a hazardous constituent, it is a
reasonable surrogate of effective treatment performance here because
TSS necessarily contain the metal hazardous constituents which are
the object of treatment, and these metals will necessarily be
removed as TSS are removed. See e.g.; National Lime Ass'n v. EPA,
234 F. 3d 625, 639 (D.C. Cir. 2000) (even though particulate matter
is not a hazardous air pollutant, it can be used as a permissible
surrogate for treatment of hazardous air pollutant metals since
those metals are removed by treatment as PM is removed).
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EPA is proposing that wastewaters meet the UTS for wastewaters at
40 CFR section 268.48 as the treatment standard for the liquid
fraction. (The CCR solids removed from the wastewater stream would be a
non-wastewater and would be subject to the UTS for non-wastewaters.)
EPA believes dry disposal of the CCR solids will protect human health
and the environment. As previously discussed, this is borne out by the
results of the Agency's risk assessment and damage case assessments,
which show that wet disposal poses the greatest risks of contaminant
releases.
The Agency believes the proposed treatment methods will diminish
the toxicity of the waste or substantially reduce the likelihood of
migration of toxic constituents from the waste so that short-term and
long-term threats to human health and the environment are minimized. If
finalized, EPA will add new treatment method codes to the table of
Technology Codes and Description of Technology-Based Standards at 40
CFR 268.42. EPA seeks comments on the proposed treatment standards.
4. Effective Date of the LDR Prohibitions
Land disposal prohibitions are to be effective immediately unless
EPA finds that there is insufficient alternative protective treatment,
recovery or disposal capacity for the wastes. RCRA section 3004(h)(2).
National capacity variances can be for up to two years from the date of
the prohibition. During the duration of a national capacity variance,
the wastes do not require treatment in order to be land disposed. If
they are disposed of in a landfill or surface impoundment, however,
that unit must meet the minimum technology requirements of RCRA section
3004(o). RCRA section 3004 (h) and 40 CFR section 268.5 (h).\137\
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\137\ EPA is also authorized to grant up to a one-year
extension, renewable for another year, of a prohibition effective
date on a case-by-case basis. RCRA section 3004 (h)(3). Applicants
must demonstrate that adequate alternative treatment, recovery, or
disposal capacity for the petitioners waste cannot reasonably be
made available by the effective date due to circumstances beyond the
applicant's control, and that the petitioner has entered into a
binding contractual commitment to construct or otherwise provide
such capacity. 40 CFR 268.5.
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In this case, EPA is proposing that the prohibition and treatment
standards for nonwastewaters take effect within 6 months from the date
of promulgation of the listing of CCRs as a special waste. We are
proposing 6 months to allow time for owners and operators to set up
analytic capacity and record-keeping mechanisms for dry CCR wastes, as
well as for federal and state agencies to assure that implementation
mechanisms are in place. We are not allocating additional time for
treatment because our expectation is that all or virtually all dry CCRs
meet the proposed treatment standards as generated. However, EPA
solicits comment on this issue. EPA also notes that the proposed LDR
prohibition and treatment standards would not take effect until
programs in authorized states are authorized and the state implementing
rules take effect, so this proposal effectively is for the prohibition
and treatment standard requirement to take effect 6 months following
the conclusion of the authorization process and effective date of
authorized state rules. This should be ample time to come into
compliance.
For wastewaters, however, under the authority of section 3004 (x),
we are proposing that the prohibition and treatment standards take
effect within five years of the prohibition. In practice, these
requirements will have the effect of prohibiting disposal of wet-
handled CCRs in surface impoundments after that date. The proposed date
for the wastewater treatment standards would thus be the same as the
proposed date that impoundments would stop receiving CCRs, and is being
proposed for many of the same reasons. Surface impoundments, of course,
are the land disposal units in which wastewaters are managed, so the
issues are necessarily connected. As discussed in section VI. B. above,
the statute allows owners and operators up to four years to retrofit
existing surface impoundments to meet
[[Page 35181]]
the minimum technology requirements (or to close such surface
impoundments), and EPA has interpreted this provision as applying to
treatment surface impoundments receiving hazardous wastes otherwise
prohibited from land disposal. See RCRA sections 3005 (j)(6) and 3005
(j)(11). As further explained above, EPA believes that an additional
three years is needed for owners and operators to close surface
impoundments--i.e. seven years in all--and is thus proposing a two year
national capacity variance (as provided in RCRA section 3004(h)(2)) and
a five year period for impoundment retrofitting yielding a seven year
extension.
The legal basis for the proposal is 3004 (x) (which specifically
authorizes modification of the section 3005 (j) requirements). Section
3005 (j) (11) allows untreated wastewaters to be managed in surface
impoundments that do not meet the minimum technology requirements, but
requires that residues in the impoundment be dredged at least annually
for management elsewhere. Given the enormous volume of CCRs currently
managed in surface impoundments, estimated at 29.4 million tons per
year (within EPA's estimated range of 23.5 to 30.3 million tons for the
total available U.S. hazardous waste disposal capacity), and the
absence of alternative disposal capacity in the short-term, EPA
believes annual dredging is impractical and would defeat the purpose of
providing additional time to convert to the dry handling of CCRs.
Moreover, in this short time, the utilities will be working to convert
their processes to dry handling and it is not practicable or necessary
to impose this additional requirement. Finally, as discussed
previously, in the interim period before surface impoundments cease
taking waste and are closed, numerous safeguards will be in place to
protect public health and the environment, including ground water
monitoring and the requirement to act on any releases quickly. Thus,
while such measures are not a long-term solution, they will ``assure
protection of human health and the environment'' in the short-term.
As this discussion clarifies, the issue of a national capacity
extension for CCR wastewaters is really an issue of how long it will
take to convert to dry handling and to find management capacity for
solids dredged from impoundments, i.e. issues arising under section
3005 (j)(11) of the statute. EPA, therefore, believes it has the
authority and that it is appropriate to use section 3004 (x) to extend
the national capacity period in order to convert to dry handling.\138\
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\138\ EPA notes in addition that it is authorized under section
3004 (x) to modify the requirements of LDR prohibitions under
section 3004 (g), and EPA views capacity variances related to such
prohibitions as within the scope of that section 3004 (x)
authorization.
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EPA is further proposing that during the national capacity variance
(the initial two years of the proposed two years plus five year
extension of otherwise-applicable requirements), CCR wastewaters could
continue to be managed in impoundments that do not meet the minimum
technology requirements. The reasons are identical to those allowing
such impoundments to receive CCRs for the remainder of the proposed
extension period.
EPA solicits comment on these proposals, including comment on
whether further time extensions are actually needed in light of the
already extended time which will be afforded by the state authorization
process.
C. Applicability of Subtitle C Regulations
The discussion in this section describes the existing technical
standards required in 40 CFR parts 264/265/267. However, persons who
generate and transport CCRs, under the subtitle C alternative, would
also be subject to the generator (40 CFR part 262) and transporter (40
CFR part 263) requirements. Although EPA presents this to provide the
public with background information as noted previously, EPA is not
proposing to modify these standards, nor to reopen the requirements.
1. General Facility Requirements, including Location Restrictions.
Under the existing regulations, all of the following requirements would
apply: the general facility standards of 40 CFR parts 264/265/267
(Subpart B), the preparedness and prevention standards of 40 CFR parts
264/265/267 (Subpart C), the contingency plan and emergency procedures
of 40 CFR parts 264/265/267 (Subpart D), and the manifest system,
recordkeeping, and reporting requirements of 40 CFR parts 264/265/267
(Subpart E). Consistent with section 264.18, the regulations would
include location standards prohibiting the siting of new treatment,
storage, or disposal units in a 100-year floodplain (unless the
facility made a specific demonstration)\139\ and seismic impact areas
would be prohibited.\140\
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\139\ A 100-year flood means a flood that as a one-percent or
greater chance of recurring in any given year or a flood of a
magnitude equaled or exceeded once in 100 years on the average over
a significantly long period.
\140\ A seismic impact area means an area with a two percent or
greater probability that the maximum horizontal acceleration in
lithified earth material, expressed as a percentage of the earth's
gravitational pull (g), will exceed 0.10 g in 50 years. Note that in
the pre-1997 editions of the NEHRP (National Earthquake Hazards
Reduction Program) provisions, seismic hazards around the nation
were defined at a uniform 10 percent probability of exceedance in 50
years. Since the 1997 NEHRP Provisions, however, the seismic design
maps have been redefined such that for most regions of the nation,
the maximum considered earthquake ground motion is defined with
uniform probability of exceedance of 2 percent in 50 years. The
change in the exceedance probability (from 10% to 2%) was responsive
to comments that the use of 10 percent probability of exceedance in
50 years is not sufficiently conservative in the central and eastern
United States where earthquakes are expected to occur infrequently.
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2. Ground water monitoring/corrective action for regulated units.
The subtitle C alternative to today's proposed rule would require the
current ground water monitoring and corrective action requirements of
40 CFR parts 264/265 for regulated landfills and surface impoundments,
without modification. Consistent with 40 CFR 265.90, existing CCR
disposal units would be required to install groundwater monitoring
systems within one year of the effective date of these regulations. The
facility would operate under the self-implementing interim status
requirements of 40 CFR part 265 until the regulatory authority imposed
the specific requirements of 40 CFR part 264 through the RCRA
permitting process. Generally, 40 CFR parts 264/265 require groundwater
monitoring systems that consist of enough wells, installed at
appropriate locations and depths, to yield ground water samples from
the uppermost aquifer that represent the quality of background
groundwater that has not been affected by leakage from the disposal
unit. A detection monitoring program would be required to detect
releases to groundwater of CCR constituents listed in the facility
permit (these constituents, we believe, would be the metals typically
identified as constituents of concern in CCRs). Monitoring frequency is
determined by the EPA Regional Administrator or, more typically the
authorized state, and required in the RCRA permit. If any of the
constituents listed in the facility permit are detected at levels that
constitute statistically significant evidence of contamination, the
owner or operator must initiate a compliance monitoring program to
determine whether the disposal units are in
[[Page 35182]]
compliance with the groundwater protection standards established by EPA
or the state and specified in the permit. (See 40 CFR part 264, subpart
F.)
Under 40 CFR part 264, subpart F, if the results of the compliance
monitoring program indicate exceedances of any of the constituent
levels listed in the permit for the groundwater protection standard,
the owner or operator would have to initiate corrective action to
achieve compliance with the groundwater protection standards.
3. Storage. EPA is not proposing to modify the existing 40 CFR
parts 264/265/267 storage standards. These regulations establish design
and operating requirements for containers, tanks, and buildings used to
treat or store hazardous wastes. For containers, the regulations
establish requirements for the storage of hazardous waste, including a
requirement for secondary containment. However, if the wastes do not
contain free liquids, they need not require a secondary containment
system, provided the storage area is sloped or is otherwise designed
and operated to drain and remove liquid resulting from precipitation or
the containers are elevated or otherwise protected from contact with
accumulated liquid.
For new tanks, owners or operators must submit to EPA or the
authorized states an assessment certified by an independent registered
professional engineer that the foundation, structural support, seams,
connections, and pressure controls (if applicable) are adequately
designed and that the tank system has sufficient structural strength,
compatibility with the waste(s) to be stored or treated, and corrosion
protection to ensure that the tank will not collapse, rupture, or fail.
Tank systems are required to have secondary containment under section
264.193, unless they receive a specific variance; however, tanks that
contain no free liquids and are in buildings with an impermeable floor
do not require secondary containment. New tanks (that are required to
have secondary containment) must have secondary containment when
constructed; existing tanks (that are required to have secondary
containment) must come into compliance within two years of the rule's
effective date (or when the tank has reached fifteen years of age).
Section 264.193 specifically describes the secondary containment
required, and the variance process.
Containment buildings must be completely enclosed with a floor,
walls, and a roof to prevent exposure to the elements (e.g.,
precipitation, wind, run-on), and to assure containment of the managed
wastes. Buildings must be designed so that they have sufficient
structural strength to prevent collapse or other failure, and all
surfaces to be in contact with hazardous wastes must be chemically
compatible with those wastes.
Recently, representatives of the utility industry have stated their
view that CCRs cannot be practically or cost effectively managed under
the existing 40 CFR parts 264/265/267 storage standards, and that these
standards impose significant costs without meaningful benefits when
applied specifically to CCRs.\141\ In particular, they cite the very
large volume of wastes that must be handled on a daily basis, and the
extensive storage and other infrastructure already in place that might
have to be retrofitted if the existing 40 CFR parts 264/265/267 storage
requirements applied. For example, they state that some CCRs are stored
prior to disposal in silos which are not located within a building and
may contain free liquids. As a result, under the subtitle C
requirements, the owner or operator would be required to construct a
building with an impermeable floor, or construct a secondary
containment system around the silo (alternatively, they could go
through a variance process with the regulatory Agency).
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\141\ While the utility industry did not specifically mention
the 40 CFR part 267 storage standards, we presume that they would
make the same technical arguments with respect to those standards.
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EPA believes that the variance process allowing alternatives to
secondary containment would address the concerns raised by industry.
The Agency, however, recognizes that the variance process imposes time
and resource burdens not only on industry, but on the regulatory
agencies. EPA notes that, in the case of larger volume, higher toxicity
mineral processing materials being reclaimed, the Agency developed
special storage standards under RCRA subtitle C, and it solicits
comments on whether those or similar-type standards would be
appropriate for CCRs.\142\
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\142\ Land Disposal Restrictions Phase IV: Final Rule
Promulgating Treatment Standards for Metal Wastes and Mineral
Processing Wastes; Mineral Processing Secondary Materials and Bevill
Exclusion Issues; Treatment Standards for Hazardous Soils, and
Exclusion of Recycled Wood Preserving Wastewaters; Final Rule
(http://www.epa.gov/EPA-WASTE/1998/May/Day-26/f989.htm).
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Namely, in 40 CFR 261.4(a)(17), EPA required that tanks,
containers, and buildings handling this material must be free standing
and not a surface impoundment (as defined in the definitions section of
this proposal) and be manufactured of a material suitable for storage
of its contents. (While not specifically mentioned in this section, we
would also consider a requirement that such materials meet appropriate
specifications, such as those established either by the American
Society of Testing Materials (ASTM), the American Petroleum Institute
(API), or Underwriters Laboratories, Inc. (UL) standards.) Buildings
must be man-made structures and have floors constructed from non-
earthen materials, have walls, and have a roof suitable for diverting
rainwater away from the foundation. A building may also have doors or
removable sections to enable trucks or machines access.
EPA solicits comments on the practicality of the proposed subtitle
C storage requirements for CCRs, the workability of the existing
variance process, and the alternative requirements based, for example,
on the mining and mineral processing wastes storage requirements. EPA
has not developed cost estimates for managing CCRs in compliance with
the 40 CFR parts 264/265/267 storage standards. EPA solicits specific
comments on these potential costs.
4. Closure and Post-Closure Care. Under the RCRA subtitle C
alternative to this co-proposal, all of the requirements for closure
and post-closure care of landfills and surface impoundments would apply
to those landfills that continue to receive CCRs, or otherwise actively
manage them, and to those surface impoundments that have not completed
closure, when the requirements of a final rule become effective. The 40
CFR parts 264/265 landfill and surface impoundment requirements
establish cover requirements (e.g., the cover must have a permeability
less than or equal to the permeability of any bottom liner system and
must minimize the migration of liquids through the closed landfill).
These requirements are generally applied through a closure-plan or
permit approval process. Also, the regulations require 30 years of
post-closure care, including maintenance of the cap and ground-water
monitoring, unless an alternative post-closure period is established by
EPA or the authorized state.
5. Corrective action. EPA is also not proposing to modify the
existing corrective action requirements, including the facility-wide
corrective action requirements of RCRA under section 3004(u), section
3008(h), and 40 CFR 264.101. Under these requirements, landfills that
continue to receive CCRs or otherwise actively manage them, and surface
impoundments that have not
[[Page 35183]]
completed closure on the date the final rule becomes effective, will be
requires to characterize, and as necessary remediate, releases of CCRs
or hazardous constituents. Section 3004(x) provides EPA the flexibility
to modify corrective action requirements for facilities managing CCRs,
including facility-wide corrective action (assuming EPA can reasonably
determine that an alternative is protective of human health and the
environment). The facility-wide corrective action requirement applies
to all solid waste management units from which there have been releases
of hazardous wastes or hazardous constituents; however, EPA does not
see a compelling reason to change the corrective action requirements.
Imposing corrective action requirements, including facility-wide
corrective action, will assure that closed and inactive units at the
facility are properly characterized and, if necessary, remediated,
especially since many of these closed or inactive units are unlined.
Nevertheless, EPA solicits comment on whether EPA should modify the
corrective action requirements under section 3004(x) of RCRA.
Commenters should specifically address the issue of how other
alternatives could be protective without mandating corrective action as
needed for all solid waste management units from which there have been
releases of hazardous waste or hazardous constituents at the facility.
6. Financial assurance. EPA is also not proposing to modify the
existing financial assurance requirements at 40 CFR parts 264/265/267,
subpart H. Financial assurance must be adequate to cover the estimated
costs of closure and post-closure care (including facility-wide
corrective action, as needed), and specific levels of financial
assurance are required to cover liability for bodily injury and
property damage to third parties caused by sudden accidental
occurrences arising from operations of the facility. Allowable
financial assurance mechanisms are trust funds, surety bonds, letters
of credit, insurance policies, corporate guarantees, and demonstrations
and documentation that owners or operators of the facility have
sufficient assets to cover closure, post-closure care, and liability.
The regulations also require financial assurance for corrective action
under section 264.101.
As we have estimated that 53 local governments own and operate
coal-fired electric utilities, EPA seeks comment on whether a financial
test similar to that in 40 CFR 258.74(f) in the Criteria for Municipal
Solid Waste Landfills should be established for local governments that
own and operate coal-fired power plants.
7. Permitting requirements. Under the RCRA subtitle C alternative,
facilities that manage CCRs (in this case, facilities with landfills
and surface impoundments, and other possible management units used to
store or dispose of CCRs, or generating facilities that store CCRs
destined for off-site disposal) must obtain a permit from EPA or from
the authorized state. The effect of EPA's proposed listing would extend
these permitting requirements to those facilities managing special
wastes regulated under subtitle C of RCRA. Parts 124, 267 and 270
detail the specific procedures for the issuance and modification of
permits, including public participation, and through the permit process
regulatory agencies impose technical design and management standards of
40 CFR parts 264/267. Facilities with landfills that are in existence
on the effective date of the regulation (which in this case would
generally be the effective date of the state regulations establishing
the federal CCR requirements)--which receive CCRs or actively manage
CCRs--are eligible for ``interim status'' under federal regulations,
providing they comply with the requirements of 40 CFR section 270.70.
By contrast, facilities with surface impoundments that have not
completed closure as outlined in this proposal would be subject to the
existing permitting requirements, irrespective of whether they continue
to receive CCRs into the unit or to actively manage CCRs. While
facilities are in interim status, they are subject to the largely self-
implementing requirements of 40 CFR part 265. As noted previously, in a
final regulation, EPA would make conforming changes to these parts of
the CFR to make it clear that the requirements apply to facilities that
manage either hazardous wastes or special wastes regulated under
subtitle C.
8. EPA is Not Proposing to Apply the Subtitle C Requirements to
CCRs from Certain On-Going State or Federally Required Cleanups. Under
the subtitle C alternative, the Agency is proposing to allow state or
federally-required cleanups commenced prior to the effective date of
the final rule to be completed in accordance with the requirements
determined to be appropriate for the specific cleanup. EPA's rationale
for this decision is two-fold. First, for state or federally required
cleanups that already commenced and are continuing, the state or
federal government has entered into an administrative agreement with
the facility owner or operator which specifies remedies, clean-up
goals, and timelines that were determined to be protective of human
health and the environment, based on the conditions at the site. The
overseeing Agency will also be able to ensure that the cleanup waste,
if sent off-site (which may sometimes be necessary) will go to
appropriately designed and permitted facilities. Second, altering the
requirements for cleanups currently underway would be disruptive and
could cause significant delays in achieving clean-up goals. Once the
rule becomes final, EPA or the state will be able to avail themselves
of regulations under RCRA designed specifically for cleanup. However,
the Agency takes comment on this proposed provision.
D. CERCLA Designation and Reportable Quantities
Under current law and regulations, all hazardous wastes listed
under RCRA and codified in 40 CFR 261.31 through 261.33, and special
wastes under 261.50 if the proposed special waste listing is finalized,
as well as any solid waste that is not excluded from regulation as a
hazardous waste under 40 CFR 261.4(b) and that exhibits one or more of
the characteristics of a RCRA hazardous waste (as defined in Sec. Sec.
261.21 through 261.24), are hazardous substances under CERCLA, as
amended (see CERCLA section 101(14)(C)). CERCLA hazardous substances
are listed in Table 302.4 at 40 CFR 302.4 along with their reportable
quantities (RQs). If a hazardous substance is released in an amount
that equals or exceeds its RQ within a 24-hour period, the release must
be reported immediately to the National Response Center (NRC) pursuant
to CERCLA section 103.
Thus, under this subtitle C alternative, and as EPA does with any
other listed waste, the Agency is proposing to also list CCRs as a
CERCLA hazardous substance in Table 302.4 of 40 CFR 302.4. The key
constituents of concern in CCRs are already listed as hazardous
substances under CERCLA (i.e., arsenic, cadmium, mercury, selenium),
and therefore persons who spill or release CCRs already have reporting
obligations, depending on the volume of the spill. Typically, under
current CERCLA requirements, a person releasing CCRs, for example,
would report depending on his estimate of the amount of arsenic or
other constituents contained in the release.
Typically, when EPA lists a new waste subject to RCRA subtitle C,
the statutory one-pound RQ is applied to the waste. However, EPA is
proposing two alternative methods to adjust the
[[Page 35184]]
one-pound statutory RQ. The first method, one traditionally utilized by
the Agency, adjusts the RQ based on the lowest RQ of the most toxic
substance present in the waste. The second method, as part of the
Agency's effort to review and re-evaluate its methods for CERCLA
designation and RQ adjustment, adjusts the one-pound statutory RQ based
upon the Agency's characterization and physical properties of the
complex mixtures which comprise the waste to be designated as S001. The
Agency invites comment on both methods, and may, based upon these
comments and further information, decide to go forward with either
method or both methods.
1. Reporting Requirements
Under CERCLA section 103(a), the person in charge of a vessel or
facility from which a CERCLA hazardous substance has been released in a
quantity that is equal to or exceeds its RQ within a 24-hour period
must immediately notify the NRC as soon as that person has knowledge of
the release. The toll-free telephone number of the NRC is 1-800-424-
8802; in the Washington, DC, metropolitan area, the number is (202)
267-2675. In addition to the reporting requirement under CERCLA,
section 304 of the Emergency Planning and Community Right-to-Know Act
(EPCRA) requires owners or operators of certain facilities to report
releases of extremely hazardous substances and CERCLA hazardous
substances to state and local authorities. The EPCRA section 304
notification must be given immediately after the release of an RQ (or
more) within a 24-hour period to the community emergency coordinator of
the local emergency planning committee (LEPC) for any area likely to be
affected by the release and to the state emergency response commission
(SERC) of any state likely to be affected by the release.
Under section 102(b) of CERCLA, all hazardous substances (as
defined by CERCLA section 101(14)) have a statutory RQ of one pound,
unless and until the RQ is adjusted by regulation. In this rule, EPA is
proposing to list CCRs that are generated by electric utility and
independent power producers that are intended for disposal (and not
beneficially used), as special wastes subject to regulation under
subtitle C of RCRA. In order to coordinate the RCRA and CERCLA
rulemakings with respect to the new special waste listing, the Agency
is also proposing adjustments to the one-pound statutory RQs for this
special waste stream.
2. Basis for RQs and Adjustments
EPA's methodology for adjusting the RQs of individual hazardous
substances begins with an evaluation of the intrinsic physical,
chemical, and toxicological properties of each hazardous substance. The
intrinsic properties examined, called ``primary criteria,'' are aquatic
toxicity, mammalian toxicity (oral, dermal, and inhalation),
ignitability, reactivity, chronic toxicity, and potential
carcinogenicity.
Generally, for each intrinsic property, EPA ranks the hazardous
substance on a five-tier scale, associating a specific range of values
on each scale with an RQ value of 1, 10, 100, 1,000, or 5,000 pounds.
The data for each hazardous substance are evaluated using the various
primary criteria; each hazardous substance may receive several
tentative RQ values based on its particular intrinsic properties. The
lowest of the tentative RQs becomes the ``primary criteria RQ'' for
that substance.
After the primary criteria RQ are assigned, the substances are
further evaluated for their susceptibility to certain degradative
processes, which are used as secondary adjustment criteria. These
natural degradative processes are biodegradation, hydrolysis, and
photolysis (BHP). If a hazardous substance, when released into the
environment, degrades relatively rapidly to a less hazardous form by
one or more of the BHP processes, its RQ (as determined by the primary
RQ adjustment criteria) is generally raised by one level. Conversely,
if a hazardous substance degrades to a more hazardous product after its
release, the original substance is assigned an RQ equal to the RQ for
the more hazardous substance, which may be one or more levels lower
than the RQ for the original substance. Table 7 presents the RQ for
each of the constituents of concern in CCRs taken from Table 302.4--
List of Hazardous Substances and Reportable Quantities at 40 CFR 302.4.
Table 7--Reportable Quantities of Constituents of Concern
------------------------------------------------------------------------
Hazardous waste No. Constituent of concern RQ Pounds (Kg)
------------------------------------------------------------------------
S001.......................... Antimony.............. 5000 (2270)
Arsenic............... 1 (0.454)
Barium................ No RQ
Beryllium............. 10 (4.54)
Cadmium............... 10 (4.54)
Chromium.............. 5000 (2270)
Lead.................. 10 (4.54)
Mercury............... 1 (0.454)
Nickel................ 100 (45.4)
Selenium.............. 100 (45.4)
Silver................ 1000 (454)
Thallium.............. 1000 (454)
------------------------------------------------------------------------
The standard methodology used to adjust the RQs for RCRA wastes is
based on an analysis of the hazardous constituents of the waste
streams. EPA determines an RQ for each hazardous constituent within the
waste stream and establishes the lowest RQ value of these constituents
as the adjusted RQ for the waste stream. EPA is proposing to use the
same methodology to adjust RQs for listed special wastes. In this
notice, EPA is proposing a one-pound RQ for listed CCRs based on the
one pound RQs for arsenic and mercury (i.e., the two constituents
within CCRs with the lowest RQ). In this same rule, however, EPA is
also proposing that an alternative method for adjusting the RQ of the
CCR wastes also can be used in lieu of the one pound RQ.
3. Application of the CERCLA Mixture Rule to Listed CCR
Although EPA is proposing a one-pound RQ for CCRs listed as a
special waste, we are also proposing to allow the owner or operator to
use the
[[Page 35185]]
maximum observed concentrations of the constituents within the listed
CCR wastes in determining when to report releases of the waste.
For listed CCR wastes, where the actual concentrations of the
hazardous constituents in the CCRs are not known and the waste meets
the S001 listing description, EPA is proposing that persons managing
CCR waste have the option of reporting on the basis of the maximum
observed concentrations that have been identified by EPA (see Table 8
below). Thus, although actual knowledge of constituent concentrations
may not be known, assumptions can be made of the concentrations based
on the EPA identified maximum concentrations. These assumptions are
based on actual sampling data, specifically the maximum observed
concentrations of hazardous constituents in CCRs.\143\ Table 7
identifies the hazardous constituents for CCRs, their maximum observed
concentrations in parts per million (ppm), the constituents' RQs, and
the number of pounds of CCRs needed to contain an RQ of each
constituent for the CCR to be reported.
---------------------------------------------------------------------------
\143\ EPA's CCR constituent concentrations database is available
in the docket to this notice.
Table 8--Pounds Required To Contain RQ for Each Constituent of Listed
CCR
------------------------------------------------------------------------
Pounds
Waste stream constituent Maximum ppm RQ (lbs) required to
contain RQ
------------------------------------------------------------------------
CCR.............................. ........... 1
Antimony......................... 3,100 5,000 1,612,903
Arsenic.......................... 773 1 1,294
Barium........................... 7,230 No RQ No RQ
Beryllium........................ 31 10 322,581
Cadmium.......................... 760 10 13,158
Chromium......................... 5,970 5,000 837,521
Lead............................. 1,453 10 6,883
Mercury.......................... 384 1 2,604
Nickel........................... 6,301 100 15,871
Selenium......................... 673 100 148,588
Silver........................... 338 1,000 2,958,580
Thallium......................... 100 1,000 10,000,000
------------------------------------------------------------------------
For example, if listed CCR wastes are released from a facility, and
the actual concentrations of the waste's constituents are not known, it
may be assumed that the concentrations will not exceed those listed
above in Table 8. Thus, applying the mixture rule, the RQ threshold for
arsenic in this waste is 1,294 pounds--that is, 1,294 pounds of listed
CCR waste would need to be released to reach the RQ for arsenic.
Reporting would be required only when an RQ or more of any hazardous
constituent is released.
Where the concentration levels of all hazardous constituents are
known, the traditional mixture rule would apply. Under this scenario,
if the actual concentration of arsenic is 100 ppm, 10,000 pounds of the
listed CCR waste would need to be released to reach the RQ for arsenic.
As applied to listed CCR waste, EPA's proposed approach reduces the
burden of notification requirements for the regulated community and
adequately protects human health and the environment.
The modified interpretation of the mixture rule (40 CFR 302.6) as
it applies to listed CCR wastes in this proposal is consistent with
EPA's approach in a final rule listing four petroleum refining wastes
(K169, K170, K171, and K172) as RCRA hazardous wastes and CERCLA
hazardous substances (see 63 FR 42110, Aug. 6, 1998). In that rule, the
Agency promulgated a change to the regulations and its interpretation
of the mixture rule to allow facilities to consider the maximum
observed concentrations for the constituents of the petroleum refining
wastes in determining when to report releases of the four wastes. EPA
codified this change to its mixture rule interpretation in 40 CFR
302.6(b)(1) as a new subparagraph (iii). In another rule, EPA also
followed this approach in the final rule listing two chlorinated
aliphatic production wastes (K174 and K175) as RCRA hazardous wastes
and CERCLA hazardous substances (see 65 FR 67068, Nov. 8, 2000). If the
proposed subtitle C alternative becomes final, EPA may modify 40 CFR
section 302.6(b)(1) to extend the modified interpretation of the
mixture rule to include listed CCR wastes.
4. Correction of Table of Maximum Observed Constituent Concentrations
Identified by EPA
When the final rule that listed Chlorinated Aliphatics Production
Wastes was published in the Code of Federal Regulations (CFR), the
existing table that provided the maximum observed constituent
concentrations for petroleum refining wastes (K169, K170, K171, and
K172) was inadvertently replaced instead of amended to add the maximum
observed constituent concentrations for the chlorinated aliphatic
production wastes (K174 and K175). Therefore, the Agency is at this
time proposing to correct that inadvertent removal of the petroleum
refining wastes by publishing a complete table that includes, the
petroleum refining wastes, the chlorinated aliphatic production wastes,
and now the CCR wastes (e.g., K169, K170, K171, K172, K174, K175, and
S001).
E. Listing of CCR as Special Wastes To Address Perceived Stigma Issue
Commenters suggested that the listing of CCRs as a hazardous waste
will impose a stigma on their beneficial use, and significantly curtail
these uses. EPA questions this assertion, in fact, our experience
suggests that the increased costs of disposal of CCRs as a result of
regulation of CCRs under RCRA subtitle C would create a strong economic
incentive for increased beneficial uses of CCRs. We also believe that
the increased costs of disposal of CCRs, as a result of regulation of
CCR disposal, but not beneficial uses, should achieve increased usage
in non-regulated beneficial uses, simply as a result of the economics
of supply and demand. The economic driver--availability of a low-cost,
functionally equivalent or often
[[Page 35186]]
superior substitute for other raw materials--will continue to make CCRs
an increasingly desirable product. Furthermore, it has been EPA's
experience in developing and implementing RCRA regulation and elsewhere
that material inevitably flows to less regulated applications.
However, with that said, the electric utility industry, the states,
and those companies that beneficially use CCRs have nevertheless
commented that listing of CCRs as a RCRA subtitle C waste will impose a
stigma on their beneficial use and significantly curtail these uses. In
their view, even an action that regulates only CCRs destined for
disposal as RCRA subtitle C waste, but retains the Bevill exemption for
beneficial uses, would have this adverse effect. Finally, the states
particularly have commented that, by operation of state law, the
beneficial use of CCRs would be prohibited under many states'
beneficial use programs, if EPA were to designate CCRs destined for
disposal as a RCRA subtitle C waste. Unlike the incentive effect
introduced by increased disposal costs in which firms rationally try to
avoid higher costs or seek lower cost of raw materials, the idea that
there will be a stigma effect rests on an assumption that stigma would
alter consumer preferences thereby decreasing end-users' willingness to
pay for products that include CCPs. This would have the practical
effect of shifting the aggregate CCP demand curve downward.
Some of the other comments that have been made include: (1)
Beneficially used CCRs are the same material as that which would be
considered hazardous; this asymmetry increases confusion and the
probability of lawsuits, however, unwarranted, (2) while the supply of
CCRs to be beneficially used may increase given the additional
incentives to avoid disposal costs, the consumer demand may decrease as
negative perceptions are not always based on reason, (3) any negative
impact on beneficial use will require more reliance on virgin materials
with higher GHG and environmental footprints, (4) state support may be
weakened or eliminated, even in states that are friendly to beneficial
use, (5) competitors who use virgin or other materials are taking
advantage of the hazardous waste designation by using scare tactics and
threats of litigation to get customers to stop using products
containing CCRs, (6) customers are already raising questions about the
safety of products that contain CCRs, and (7) uncertainty is already
hurting business as customers are switching to products where there is
less regulatory risk and potential for environmental liabilities. For
example, one commenter stated that they have received requests to stop
selling boiler slag for ice control due to potential liability.
EPA is concerned about potential stigma and, as we have stated
previously, we do not wish to discourage environmentally sound
beneficial uses of CCRs. In looking to evaluate this issue, we believe
it is first important to understand that the proposed rule (if the
subtitle C alternative is finalized) would regulate CCRs under subtitle
C of RCRA only if they are destined for disposal in landfills and
surface impoundments, and would leave the Bevill determination in
effect for the beneficial use of CCRs. That is, the legal status of
CCRs that are beneficially used would remain entirely unchanged (i.e.,
they would not be regulated under subtitle C of RCRA as a hazardous
waste, nor subject to any federal non-hazardous waste requirements).
EPA is proposing to regulate the disposal of CCRs under subtitle C of
RCRA because of the specific nature of disposal practices and the
specific risks these practices involve--that is, the disposal of CCRs
in (often unlined) landfills or surface impoundments, with millions of
tons placed in a concentrated location. The beneficial uses that EPA
identifies as excluded under the Bevill amendment, for the most part,
present a significantly different picture, and a significantly
different risk profile. As a result, EPA is explicitly not proposing to
change their Bevill status (although we do take comment on whether
``unconsolidated uses'' of CCRs need to be subject to federal
regulation). (For further discussion of the beneficial use of CCRs, see
section IV. D in this preamble.)
Furthermore, in today's preamble, we make it clear that certain
uses of CCRs--e.g., FGD gypsum in wallboard--do not involve ``waste''
management at all; rather, the material is a legitimate co-product
that, under most configurations, has not been discarded in the first
place and, therefore, would not be considered a ``solid waste'' under
RCRA. Moreover, EPA's experience suggests that it is unlikely that a
material that is not a waste in the first place would be stigmatized,
particularly when used in a consolidated form and while continuing to
meet long established product specifications.
In fact, EPA's experience with past waste regulation, and with how
hazardous waste and other hazardous materials subject to regulation
under subtitle C are used and recycled, suggests that a hazardous waste
``label'' does not impose a significant barrier to its beneficial use
and that non-regulated uses will increase as the costs of disposal
increase. There are a number of examples that illustrate these points,
although admittedly many of these products are not used in residential
settings:
Electric arc furnace dust is a listed hazardous waste
(K061), and yet it is a highly recycled material. Specifically, between
2001 and 2007, approximately 42% to 51% of K061 was recycled (according
to Biennial Reporting System (BRS) data). Both currently and
historically, it has been used as an ingredient in fertilizer and in
making steel, and in the production of zinc products, including
pharmaceutical materials. Slag from the smelting of K061 is in high
demand for use in road construction.\144\ In fact, there is little
doubt that without its regulation as a hazardous waste, a significantly
greater amount of electric arc further dust would be diverted from
recycling to disposal in non-hazardous waste landfills.
---------------------------------------------------------------------------
\144\ According to the most recently available data, in 2008
Horsehead produced about 300,000 tons per year of an Iron-Rich
Material (IRM) as a by-product of its dust recycling process, and in
2009 Inmetco produced close to 20,000 tons per year. PADEP asserts
that these plants cannot meet the demands for use of the slag by
PennDOT.
---------------------------------------------------------------------------
Electroplating wastewater sludge is a listed hazardous
waste (F006) that is recycled for its copper, zinc, and nickel content
for use in the commercial market. In 2007, approximately 35% of F006
material was recycled (according to BRS data). These materials do not
appear to be stigmatized in the marketplace.
Chat, a Superfund mining cleanup waste with lead, cadmium
and zinc contamination, is used in road construction in Oklahoma and
the surrounding states.\145\ In this case, the very waste that has
triggered an expensive Superfund cleanup is successfully offered in the
marketplace as a raw material in road building. The alternative costs
of disposal in this case are a significant driver in the beneficial use
of this material, and the Superfund origin of the material has not
served as a barrier to its use.
---------------------------------------------------------------------------
\145\ 40 CFR part 260, 39331-39353.
---------------------------------------------------------------------------
Used oil is regulated under RCRA subtitle C standards.
While used oil that is recycled is subject to a separate set of
standards under subtitle C (and is not identified as a hazardous
waste), ``stigma'' does not prevent home do-it-yourselfers from
collecting used oil, or automotive shops from accepting it and sending
it on for recovery. Collected used oil may be re-refined, reused, or
used as fuel in boilers, often at the site
[[Page 35187]]
where it is collected. Safety Kleen reported that in 2008, the company
recycled 200 million gallons of used oil. (This example is almost
directly analogous to the situation with respect to CCRs, although for
CCRs, we are not proposing to subject them to any management standards
when used or recycled, but, as in the case of used oil, this
alternative would avoid labeling CCR's as ``hazardous waste,'' even
while relying on subtitle C authority.)
Spent etchants are directly used as ingredients in the
production of a copper micronutrient for livestock; and
Spent solvents that are generated from metals parts
washing and are generally hazardous wastes before reclamation are
directly used in the production of roofing shingles.
Furthermore, common products and product ingredients routinely used
at home (e.g., motor oil; gasoline; many common drain cleaners and
household cleaners; and cathode ray tube monitors for TVs and
computers) are hazardous wastes in other contexts. This includes
fluorescent lamps (and CFLs) which are potentially hazardous because of
mercury. Consumers are generally comfortable with these products, and
their regulatory status does not discourage their use. Given this level
of acceptance, EPA questions whether CCR-based materials that might be
used in the home, like concrete or wallboard, would be likely to raise
concerns where they are safely incorporated into a product.
Certain commenters have also expressed the concern that standards-
setting organizations might prohibit the use of CCRs in specific
products or materials in their voluntary standards. Recently,
chairpersons of the American Standards and Testing Materials (ASTM)
International Committee C09, and its subcommittee, C09.24, in a
December 23, 2009 letter indicated that ASTM would remove fly ash from
the project specifications in its concrete standard if EPA determined
that CCRs were a hazardous waste when disposed. However, it remains
unclear whether ASTM would ultimately adopt this position, in light of
EPA's decision not to revise the regulatory status of CCRs destined for
beneficial use. Further ASTM standards are developed through an open
consensus process, and they currently apply to the use of numerous
hazardous materials in construction and other activities. For example,
ASTM provides specifications for the reuse of solvents and, thus, by
implication, does not appear to take issue with the use of these
recycled secondary materials, despite their classification as hazardous
wastes.\146\
---------------------------------------------------------------------------
\146\ See, for example, ASTM Volume 15.05, Engine Coolants,
Halogenated Organic Solvents and Fire Extinguishing Agents;
Industrial and Specialty Chemicals, at http://www.normas.com/ASTM/BOS/volume1505.html. See also ASTM D5396--04 Standard Specification
for Reclaimed Perchloroethylene, at http://www.astm.org/Standards/D5396.htm.
---------------------------------------------------------------------------
Others take a different view on how standard-setting organizations
will react. Most notably, a U.S. Green Building Council representative
was referenced in the New York Times as saying that LEED incentives for
using fly ash in concrete would remain in place, even under an EPA
hazardous waste determination.\147\ If the Green Building Council
(along with EPA) continues to recognize fly ash as an environmentally
beneficial substitute for Portland cement, the use of this material is
unlikely to decrease solely because of ``stigma'' concerns.
Additionally, we believe it is unlikely that ASTM will prohibit the use
of fly ash in concrete under its standards solely because of a
determination that fly ash is regulated under subtitle C of RCRA when
it is discarded, especially given that this use of fly ash is widely
accepted throughout the world as a practice that improves the
performance of concrete, it is one of the most cost-effective near-term
strategies to reduce GHG emissions, and there is no evidence of
meaningful risk, nor any reason to think there might be, involved with
its use in cement or concrete.
---------------------------------------------------------------------------
\147\ See http://www.nytimes.com/gwire/2020/01/13/13greenwire-recycling-questions-complicate-epa-coal-ash-de-90614.html.
---------------------------------------------------------------------------
Finally, many states commented that their statutes or regulations
prohibit the use of hazardous wastes in their state beneficial use
programs and, therefore, that if EPA lists CCRs as hazardous wastes
(even if only when intended for disposal), their use would be precluded
in those states. EPA reviewed the regulations of ten states with the
highest consumption of fly ash and concluded that, while these states
do not generally allow the use of hazardous waste in their beneficial
use programs, this general prohibition would not necessarily prohibit
the beneficial use of CCRs under the proposal that EPA outlines in this
rule. Beneficially used CCRs would remain Bevill-exempt solid wastes,
or in some cases, would not be considered wastes at all and thus, the
legal status of such CCRs may not be affected by EPA's proposed RCRA
subtitle C rule. As an example, the use of slag derived from electric
furnace dust (K061) is regulated under Pennsylvania's beneficial use
program, despite the fact that it is derived from a listed hazardous
waste. However, we are also aware that, in the case of Florida, its
state definition of hazardous waste would likely prohibit the
beneficial use of CCRs were the co-proposed RCRA subtitle C regulation
finalized and were there no change to Florida's definition of hazardous
waste.
The primary concern raised by these commenters is the fact that
CCRs would be labeled a ``hazardous waste'' (even if only when
disposed) and will change the public perception of products made from
CCRs. To address this concern, EPA is proposing, as one alternative, to
codify the listing in a separate, unique section of the regulations.
Currently, hazardous wastes are listed in 40 CFR 261, Subpart D, which
identifies the currently regulated industrial wastes, and which is
labeled, ``Lists of Hazardous Wastes.'' EPA would create a new Subpart
F and label the section as ``List of Special Wastes Subject to Subtitle
C,'' to distinguish it from the industrial hazardous wastes. The
regulations would identify CCRs as a ``Special Waste'' rather than a K-
listed hazardous waste, so that CCRs would not automatically be
identified with all other hazardous wastes. See sections V through VII
for the full description of our regulatory proposal.
EPA believes that this action could significantly reduce the
likelihood that products made from or containing CCRs would
automatically be perceived as universally ``hazardous.'' When taken in
combination with (1) the fact that beneficially used CCRs will remain
exempt and (2) EPA's continued promotion of the beneficial use of CCRs,
we believe this will go a long way to address any stigmatic impact that
might otherwise result from the regulation of CCRs under subtitle C of
RCRA. We are seeking comment on other suggestions on how EPA might
promote the beneficial use of CCRs, as well as suggestions that would
reduce any perceived impacts resulting from ``stigma'' due to the
identification of CCRs as ``special wastes regulated under subtitle C
authority.''
In summary, based on our experiences, we expect that it will be
more likely that the increased costs of disposal of CCRs as a result of
regulation of CCR disposal under subtitle C would increase their usage
in non-regulated beneficial uses, simply as a result of the economics
of supply and demand. The economic driver--availability of a low-cost,
functionally equivalent or often superior substitute for other raw
materials--would continue to make CCRs an increasingly desirable
product.
[[Page 35188]]
VII. How would the proposed subtitle c requirements be implemented?
A. Effective Dates
If EPA were to finalize the subtitle C regulatory alternative
proposed today, the rule, as is the case with all RCRA subtitle C
rules, would become effective six months after promulgation by the
appropriate regulatory authority--that is, six months after
promulgation of the federal rule in States and other jurisdictions
where EPA implements the hazardous waste program (Iowa, Alaska, Indian
Country, and the territories, except Guam) and in authorized States,
six months after the State promulgates its regulations that EPA has
approved via the authorization process (unless State laws specify an
alternative time). This means that facilities managing CCRs must be in
compliance with the provisions of these regulations on their effective
date, unless the compliance date is extended. For this proposed
regulatory alternative, the compliance dates for several of the
proposed requirements for existing units are being extended due to the
need for additional time for facilities to modify their existing units.
The precise dates that facilities will need to be in compliance with
the various requirements will depend on whether they are in a
jurisdiction where EPA administers the RCRA subtitle C program or
whether they are in a State authorized to administer the RCRA subtitle
C program.
To summarize, (1) In States and jurisdictions where EPA administers
the RCRA program (Iowa, Alaska, the territories [except Guam], and
Indian Country), most of the subtitle C requirements go into effect and
are enforceable by EPA six months after promulgation of the final rule.
This includes the generator requirements, transporter requirements,
including the manifest requirements, permitting requirements for
facilities managing CCRs, interim status standards, surface impoundment
stability requirements, and the Land Disposal Restriction (LDR)
treatment standards for non-wastewaters in 40 CFR part 268. However, we
are proposing that existing CCR landfills and surface impoundments (as
defined in this regulation) will be given additional time to comply
with several of the proposed requirements as specified later in this
section. Any new CCR landfills, including lateral expansions (as
defined in the regulation), must be in compliance with all the
requirements of any final regulation before CCRs can be placed in the
unit.
(2) In States that are authorized to administer the RCRA program,
the requirements that are part of the RCRA base program (i.e., those
promulgated under the authority of RCRA and not the HSWA amendments)
will not be effective until the State develops and promulgates its
regulations. Once those regulations are effective in the States, they
are enforceable as a matter of State law and facilities must comply
with those requirements under the schedule established by the State.
These RCRA base requirements will become part of the RCRA authorized
program and enforceable as a matter of federal law once the State
submits and EPA approves a modification to the State's authorized
program. (See the State Authorization section (section VIII) for a more
detailed discussion.) The requirements that are more stringent or
broader in scope than the existing regulations and are promulgated
pursuant to HSWA authority will become effective and federally
enforceable on the effective date of the approved state law designating
CCRs as a special waste subject to subtitle C--that is, they are
federally enforceable without waiting for authorization of the program
revision applicable to the HSWA provisions. On the other hand, any
requirements that are promulgated pursuant to HSWA authority, but are
less stringent than the existing subtitle C requirements (e.g.,
modifications promulgated pursuant to Section 3004(x)) will become
effective only when the State promulgates those regulations (and
federally enforceable when the State program revision is authorized),
as the State has the discretion to not adopt those less stringent
requirements.
B. What are the requirements with which facilities must comply?
It is EPA's intention that this proposed alternative, if finalized,
will be implemented in the same manner as previous regulations under
RCRA subtitle C have been. The following paragraphs describe generally
how this proposal will be implemented. While this notice provides some
details on specific requirements, it is EPA's intention that, unless
otherwise noted, all current Subtitle C requirements become applicable
to the facilities generating, transporting, or treating, storing or
disposing of CCRs listed as special wastes. While in this notice EPA
has described the major subtitle C requirements, EPA has not undertaken
a comprehensive description of all of the subtitle C regulatory
requirements which may be applicable; therefore, we encourage
commenters to refer to the regulations at 40 CFR parts 260 to 268, 270
to 279, and 124 for details.
1. Generators and Transporters
i. Requirements
Under this proposed regulation, regulated CCRs destined for
disposal become a newly listed special waste subject to the subtitle C
requirements. Persons that generate this newly identified waste is
required to notify EPA within 90 days after the wastes are identified
or listed \148\ (by EPA or the state) and obtain an EPA identification
number if they do not already have one in accordance with 40 CFR
262.12. (If the person who generates regulated CCRs already has an EPA
identification number, EPA is proposing not to require that they re-
notify EPA; however, EPA is seeking comment on this issue.) Moreover,
on the effective date of this rule in the relevant state, generators of
CCRs must be in compliance with the generator requirements set forth in
40 CFR part 262. These requirements include standards for waste
determination (40 CFR 262.11), compliance with the manifest (40 CFR
262.20 to 262.23), pre-transport procedures (40 CFR 262.30 to 262.34),
generator accumulation (40 CFR 262.34), record keeping and reporting
(40 CFR 262.40 to 262.44), and the import/export procedures (40 CFR
262.50 to 262.60). It should be noted that the current generator
accumulation provisions of 40 CFR 262.34 allow generators to accumulate
hazardous wastes without obtaining interim status or a permit only in
units that are container accumulation units, tank systems or
containment buildings; the regulations also place a limit on the
maximum amount of time that wastes can be accumulated in these units.
If these wastes are managed in landfills, surface impoundments or other
units that are not tank systems, containers, or containment buildings,
these units are subject to the permitting requirements of 40 CFR parts
264, 265, and 267 and the generator is required to obtain interim
status and seek a permit (or modify interim status or a permit, as
appropriate). These requirements would be applied to special wastes as
well. Permit requirements are described in Section VII.D below.
---------------------------------------------------------------------------
\148\ See section 3010 of RCRA.
---------------------------------------------------------------------------
Transporters of CCRs destined for disposal will be transporting a
special waste subject to subtitle C on the effective date of this
regulation. Persons who transport these newly identified wastes will be
required to obtain an EPA identification number as described
[[Page 35189]]
above and must comply with the transporter requirements set forth in 40
CFR part 263 on the effective date of the final rule. In addition,
generators and transporters of CCRs destined for disposal should be
aware that an EPA identified waste subject to the EPA waste manifest
requirements under 40 CFR part 262 meets the definition for a hazardous
material under the Department of Transportation's Hazardous Materials
Regulations (HMR; 49 CFR parts 171-180) and must be offered and
transported in accordance with all applicable HMR requirements,
including materials classification, packaging, and hazard
communication.\149\
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\149\ See the definition for ``hazardous waste'' in 49 CFR
171.8.
---------------------------------------------------------------------------
ii. Effective Dates and Compliance Deadlines
Generators must notify EPA within 90 days after the date that CCRs
are identified or listed as special wastes (by EPA or the state). The
other requirements for generators and transporters (in 40 CFR parts 262
and 263) are effective and generators and transporters must be in
compliance with these requirements on the effective date of the final
rules. The effective date of these rules is six months after
promulgation of the federal rule in non-authorized States and in
authorized States generally six months after promulgation of the State
regulations. (See previous section for a more detailed discussion of
effective dates.)
2. Treatment, Storage, and Disposal Facilities (TSDs)
i. Requirements
Facilities treating, storing, or disposing of the newly listed CCRs
are subject to the RCRA 3010 notification requirements, the permit
requirements in 40 CFR part 270, and regulations in 40 CFR part 264 or
267 for permitted facilities or part 265 for interim status facilities,
including the general facility requirements in subpart B, the
preparedness and prevention requirements in subpart C, the contingency
plan and emergency procedure requirement in subpart D, the manifest,
recordkeeping and reporting requirements in subpart E, the closure and
post-closure requirements in subpart G, the corrective action
requirements, including facility-wide corrective action in subpart F,
and the financial assurance requirements in subpart H.
C. RCRA Section 3010 Notification
Pursuant to RCRA section 3010 and 40 CFR 270.1(b), facilities
managing these special wastes subject to subtitle C must notify EPA of
their waste management activities within 90 days after the wastes are
identified or listed as a special waste. (As noted above, for
facilities in States where EPA administers the program, this will be 90
days from the date of promulgation of the final federal regulation; in
authorized States, it will be 90 days from the date of promulgation of
listing CCRs as a special waste by the state, unless the state provides
an alternative timeframe.) This requirement may be applied even to
those TSDs that have previously notified EPA with respect to the
management of hazardous wastes. The Agency is proposing to waive this
notification requirement for persons who handle CCRs and have already:
(1) Notified EPA that they manage hazardous wastes, and (2) received an
EPA identification number because requiring persons who have notified
EPA and received an EPA identification number would be duplicative and
unnecessary, although the Agency requests comment on whether it should
require such persons to re-notify the Agency that they generate,
transport, treat, store or dispose of CCRs. However, any person who
treats, stores, or disposes of CCRs and has not previously received an
EPA identification number for other waste must obtain an identification
number pursuant to 40 CFR 262.12 to generate, transport, treat, store,
or dispose of CCRs within 90 days after the wastes are identified or
listed as special wastes subject to subtitle C, as described above.
D. Permit Requirements
As specified in 40 CFR 270.1(b), six months after promulgation of a
new regulation, the treatment, storage or disposal of hazardous waste
or special waste subject to subtitle C by any person who has not
applied for and received a RCRA permit is prohibited from managing such
wastes. Existing facilities, however, may satisfy the permit
requirement by submitting Part A of the permit application. Timely
submission of Part A and the notification qualifies a facility for
interim status under section 3005 of RCRA and facilities with interim
status are treated as having been issued a permit until a final
decision is made on a permit application.
The following paragraphs provide addition details on how the
permitting requirements would apply to various categories of
facilities:
1. Facilities Newly Subject to RCRA Permit Requirements
Facilities that treat, store, or dispose of regulated CCRs at the
time the rule becomes effective would generally be eligible for interim
status pursuant to section 3005 of RCRA. (See section 3005(e)(1)(A)(ii)
of RCRA).\150\ EPA believes most, if not all utilities generating CCRs
and most if not all off-site disposal sites will be in this situation.
In order to obtain interim status based on treatment, storage, or
disposal of such newly listed CCRs, eligible facilities are required to
comply with 40 CFR 270.70(a) and 270.10(e) (or more likely with
analogous state regulations) by providing notice under RCRA section
3010 (if they do not have an EPA identification number) and submitting
a Part A permit application no later than six months after date of
publication of the regulations which first require them to comply with
the standards. (In most cases, these would be the state regulations
implementing the federal program; however, in those States and
jurisdictions where EPA implements the program, the deadline will be
six months after promulgation of the final federal rule.) Such
facilities are subject to regulation under 40 CFR part 265 until EPA or
the state issues a RCRA permit. In addition, under section 3005(e)(3)
and 40 CFR 270.73(d), not later than 12 months after the effective date
of the regulations that render the facility subject to the requirement
to have a RCRA permit and which is granted interim status, land
disposal facilities newly qualifying for interim status under section
3005(e)(1)(A)(ii) also must submit a Part B permit application and
certify that the facility is in compliance with all applicable ground
water monitoring and financial responsibility requirements. If the
facility fails to submit these certifications and the Part B permit
application, interim status will terminate on that date.
---------------------------------------------------------------------------
\150\ Section 3005(e) of RCRA states, in part, that ``Any person
who * * * is in existence on the effective date of statutory or
regulatory changes under this Act that render the facility subject
to the requirement to have a permit under this section * * * shall
be treated as having been issued such permit until such time as
final administrative disposition of such application is made, unless
the Administrator or other plaintiff proves that final
administrative disposition of such application has not been made
because of the failure of the applicant to furnish information
reasonably required or requested in order to process the
application.
---------------------------------------------------------------------------
2. Existing Interim Status Facilities
EPA is not aware of any utilities or CCR treatment or disposal
sites in RCRA interim status currently, and therefore
[[Page 35190]]
EPA does not believe the standard federal rules on changes in interim
status will apply. However, in case such a situation exists, EPA
describes below the relevant provisions. Again, EPA is describing the
federal requirements, but because the proposed requirements that
subject these facilities to permitting requirements are part of the
RCRA base program, authorized state regulations will govern the
process, and the date those regulations become effective in the
relevant state will trigger the process.
Pursuant to 40 CFR 270.72(a)(1), all existing hazardous waste
management facilities (as defined in 40 CFR 270.2) that treat, store,
or dispose of newly identified hazardous wastes and are currently
operating pursuant to interim status under section 3005(e) of RCRA,
must file an amended Part A permit application with EPA no later than
the effective date of the final rule in the State where the facility is
located. By doing this, the facility may continue managing the newly
listed wastes. If the facility fails to file an amended Part A
application by such date, the facility will not receive interim status
for management of the newly listed wastes (in this case CCRs) and may
not manage those wastes until the facility receives either a permit or
a change in interim status allowing such activity (40 CFR 270.10(g)).
This requirement, if applicable to any electric utilities, will be
applied to those facilities managing CCRs destined for disposal since
these facilities will now be managing CCRs subject to the subtitle C
requirements.
3. Permitted Facilities
EPA also believes that no electric utilities treating, storing, or
disposing of CCRs currently has a RCRA permit for its CCR management
unit(s), nor is EPA aware of any on-going disposal of CCRs at permitted
hazardous waste TSDs, although the latter situation is a possibility.
Federal procedures for how permitted hazardous waste facilities manage
newly listed hazardous wastes are described below, but again in
practice (with the exception of those jurisdictions in which EPA
administers the hazardous waste program), the authorized state
regulations will govern the process.
Under 40 CFR 270.42(g), facilities that already have RCRA permits
must request permit modifications if they want to continue managing the
newly listed wastes (see 40 CFR 270.42(g) for details). This provision
states that a permittee may continue managing the newly listed wastes
by following certain requirements, including submitting a Class 1
permit modification request on or before the date on which the waste or
unit becomes subject to the new regulatory requirements (i.e., the
effective date of the final federal rule in those jurisdictions where
EPA administers the program or the effective date of the State rule in
authorized States), complying with the applicable standards of 40 CFR
parts 265 and 266 and submitting a Class 2 or 3 permit modification
request within 180 days of the effective date of the final rule. Again,
these requirements, if applicable to any electric utilities, will be
applied to those facilities managing CCRs destined for disposal since
they are now subject to the subtitle C requirements.
E. Requirements in 40 CFR Parts 264 and 265
The requirements of 40 CFR part 264 and 267 for permitted
facilities or part 265 for interim status facilities, including the
general facility standards in subpart B, the preparedness and
prevention requirements in subpart C, the contingency plan and
emergency procedure requirements in subpart D, the manifest,
recordkeeping and reporting requirements in subpart E, the corrective
action requirements, including facility-wide corrective action in
subpart F, and the financial assurance requirements in Subpart H, are
applicable to TSDs and TSDs must be in compliance with those
requirements on the effective date of the final (usually state)
regulation, except as noted below. These requirements will apply to
those facilities managing CCRs destined for disposal.
Moreover, all units in which newly identified hazardous wastes are
treated, stored, or disposed of after the effective date of the final
(usually state) rule that are not excluded from the requirements of 40
CFR parts 264, 265 and 267 will be subject to both the general closure
and post-closure requirements of subpart G of 40 CFR parts 264 and 265
and the unit-specific closure requirements set forth in the applicable
unit technical standards in subparts 40 CFR parts 264 or 265 (e.g.,
subpart N for landfill units). In addition, EPA promulgated a final
rule that allows, under limited circumstances, regulated landfills or
surface impoundments, (or land treatment units which is not used for
the management of CCR waste) to cease managing hazardous waste, but to
delay subtitle C closure to allow the unit to continue to manage non-
hazardous waste for a period of time prior to closure of the unit (see
54 FR 33376, August 14, 1989). Units for which closure is delayed
continue to be subject to all applicable 40 CFR parts 264 and 265
requirements. Dates and procedures for submittal of necessary
demonstrations, permit applications, and revised applications are
detailed in 40 CFR 264.113(c) through (e) and 265.113(c) through (e).
As stated earlier, these requirements will be applicable to those
facilities managing CCRs destined for disposal, since they will be
managing a newly listed waste subject to subtitle C requirements.
Except as noted below, existing facilities are required to be in
compliance with the surface impoundment stability requirements, the LDR
treatment standards for non-wastewaters, and the fugitive dust controls
on the effective date of the final rule.
For certain of the other requirements, existing facilities will
have:
(a) 60 days from the effective date of the final rule to install a
permanent identification marker on each surface impoundment as required
by 40 CFR 264.1304(d) and 40 CFR 265.1304(d).
(b) 1 year from the effective date of the final rule:
To submit plans for each surface impoundments as required by
264.1304(b) and 265.1304(b).
To adopt and submit to the Regional Administrator a plan for
carrying out the inspection requirements for each surface impoundment
in 40 CFR 264.1305 and 40 CFR 265.1305.
To comply with the groundwater monitoring requirements for each
landfill and surface impoundment in 40 CFR 264, Subpart F and 265,
Subpart F.
(c) 2 years from the effective date of the final rule:
To install, operate, and maintain run-on and run-off controls as
required by 264.1304(g) and 265.1304(g) for surface impoundments and by
264.1307(d) and 265.1307(d) for landfills.
(d) 5 years from the effective date of the final rule:
To comply with the LDR wastewater treatment standard.
To stop receiving CCR waste in surface impoundments.
(e) 7 years from the effective date of the final rule to close
surface impoundments handling CCRs.
Any new CCR landfills, including lateral expansions of existing
landfills (as defined in the regulation), must be in compliance with
all the requirements of the final regulation before CCRs can be placed
in the unit.
The table below (Table 9) provides a summary of the effective dates
for the various requirements:
[[Page 35191]]
Table 9--CCR Rule Requirements
------------------------------------------------------------------------
Compliance date non Compliance date
authorized state authorized state
------------------------------------------------------------------------
Remove Bevill Exclusion..... 6 months after 6 months after State
promulgation of adopts regulations
final rule. (under State law);
federally
enforceable when
state program
revision is
authorized.
Listing CCRs as a Special Same................ Same.
Waste Subject to subtitle C.
Notification (generators and 90 days after rule 90 days after State
TSDs). promulgation (that rule promulgation
is, the date the (that is, the date
CCRs are listed as the CCRs are listed
a Special Waste as a Special Waste
subject to subtitle subject to subtitle
C. C.
Generator requirements (40 6 months after On the effective
CFR part 262). promulgation. date of the State
regulations.
Transporter Requirements (40 6 months after On the effective
CFR part 263). promulgation. date of State
regulations.
Permit Requirement/Interim File Part A of the File Part A of the
Status. permit application permit application
within six months within six months
of effective date of effective date
of final rule. of State final
rule.
Facility Standards in Part On effective date On effective date of
264/265. unless specifically state regulation
noted. unless specifically
noted.
Install a permanent 60 days from the 60 days from the
identification marker on effective date of effective date of
each surface impoundment as the final rule. the State
required by 40 CFR regulation.
264.1304(d) and 40 CFR
265.1304(d).
Submit plans required by 1 year from the 1 year from the
264.1304(b) and 265.1304(b). effective date of effective date of
the final rule. the State
regulation.
Adopt and submit to the 1 year from the 1 year from the
Regional Administrator a effective date of effective date of
plan for carrying out the the final rule. the State
inspection requirements in regulation.
40 CFR 264.1305 and 40 CFR
265.1305.
Comply with ground water 1 year from the 1 year from the
monitoring requirements in effective date of effective date of
40 CFR 264 Subpart F and 40 the final rule. the State
CFR 265 Subpart F. regulation.
Install, operate, and 2 years from the 2 years from the
maintain run-on and run-off effective date of effective date of
controls as required by the final rule. the State
264.1304 (g) and 265.1304 regulation.
(g) for surface
impoundments and by
264.1307 (d) and 265.1307
(d) for landfills.
Comply with the LDR 5 years from the 5 years from the
wastewater treatment effective date of effective date of
standard. the final rule. the State
regulation.
Close surface impoundments 7 years from the 7 years from the
receiving CCR waste. effective date of effective date of
the final rule. the State
regulation.
------------------------------------------------------------------------
VIII. Impacts of a Subtitle C Rule on State Authorization
A. Applicability of the Rule in Authorized States
Under section 3006 of RCRA, EPA authorizes qualified states to
administer their own hazardous waste programs in lieu of the federal
program within the state. Following authorization, EPA retains
enforcement authority under sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. The
standards and requirements for state authorization are found at 40 CFR
part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a state with final RCRA authorization administered its
subtitle C hazardous waste program in lieu of EPA administering the
federal program in that state. The federal requirements no longer apply
in the authorized state, and EPA could not issue permits for any
facilities in that state, since only the state was authorized to issue
RCRA permits. When new, more stringent federal requirements are
promulgated, the state was obligated to enact equivalent authorities
within specified time frames (one to two years). The new more stringent
federal requirements did not take effect in the authorized state until
the state adopted the federal requirements as state law, and the state
requirements are not federally enforceable until EPA authorized the
state program. This remains true for all of the requirements issued
pursuant to statutory provisions that existed prior to HSWA.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by the statute to
implement these requirements and prohibitions in authorized states,
until the state is granted authorization to do so. While states must
still adopt new more stringent HSWA related provisions as state law to
retain final authorization, EPA implements the HSWA provisions in
authorized states until the states do so.
Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than the existing federal requirements. RCRA section 3009 allows
the states to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.
This alternative of the co-proposal is considered more stringent
and broader in scope than current federal regulations and therefore
States would be required to adopt regulations and modify their programs
if this alternative is finalized.
B. Effect on State Authorization
If finalized, a subtitle C rule for CCRs would affect state
authorization in the same manner as any new RCRA subtitle C
requirement; i.e., (1) this alternative of the co-proposal would be
considered broader in scope and more stringent than the current federal
program, so authorized states must adopt regulations so that their
program remains at least as stringent as the federal program; and (2)
they must receive authorization from
[[Page 35192]]
EPA for these program modifications. The process and requirements for
modification of state programs at 40 CFR 271, specifically 271.21, will
be used.
However, this process is made more complex due to the nature of
this particular rulemaking and the fact that some of the provisions of
this alternative, if finalized, would be finalized pursuant to the RCRA
base program authority and some pursuant to HSWA authority. For RCRA
base program or non-HSWA requirements, the general rule, as explained
previously, is that the new requirements do not become enforceable as a
matter of federal law in authorized states until states adopt the
regulations, modify their programs, and receive authorization from EPA.
For HSWA requirements, the general rule is that HSWA requirements are
enforceable on the effective date of the final federal rule. If an
authorized State has not promulgated regulations, modified their
programs, and received authorization from EPA, then EPA implements the
requirements until the State receives program authorization.
In accord with 271.2(e)(2), authorized states must modify their
programs by July 1 of each year to reflect changes to the federal
program occurring during the ``12 months preceding the previous July
1.'' Therefore, for example, if the federal rule is promulgated in
December 2011, the states would have until July 1, 2013 to modify their
programs. States may have an additional year to modify their programs
if an amendment to a state statute is needed. See 40 CFR
271.21(e)(2)(v).
As noted above, this alternative to the co-proposal is proposed
pursuant in part to HSWA authority and in part to non-HSWA or RCRA base
program authority. The majority of this alternative is proposed
pursuant to non-HSWA authority. This includes, for example, the listing
of CCRs destined for disposal as a special waste subject to subtitle C
and the impoundment stability requirements. These requirements will be
applicable on the effective date of the final federal rule only in
those states that do not have final authorization for the RCRA program.
These requirements will be effective in authorized states once a state
promulgates the regulations and they will become a part of the
authorized RCRA program and thus federally enforceable, once the state
has submitted a program modification and received authorization for
this program modification.
The prohibition on land disposal unless CCRs meet the treatment
standards and modification of the treatment standards in 40 CFR part
268 are proposed pursuant to HSWA authority and would normally be
effective and federally enforceable in all States on the effective date
of the final federal rule. However, because the land disposal
restrictions apply to those CCRs that are regulated under subtitle C,
until authorized states revise their programs and become authorized to
regulate CCRs as a special waste subject to RCRA subtitle C, the land
disposal restriction requirements would apply only in those States that
currently do not exclude CCRs from subtitle C regulation (that is, CCRs
are regulated under subtitle C if they exhibit one or more of the
characteristics) and the CCRs in fact exhibit one or more of the RCRA
subtitle C characteristics. However, once the state has the authority
to regulate CCRs as a special waste, the LDR requirements become
federally enforceable in all States.
In addition, the tailored management standards promulgated pursuant
to section 3004(x) of RCRA are also proposed pursuant to HSWA
authority. However, as these tailored standards are less stringent than
the existing RCRA subtitle C requirements, States would not be required
to promulgate regulations for these less stringent standards--should a
State decide not to promulgate such regulations, the facilities in that
state would be required to comply with the full subtitle C standards.
Therefore, the tailored management standards will be effective in
authorized States only when States promulgate such regulations.
Therefore, the Agency would add this rule to Table 1 in 40 CFR
271.1(j), if this alternative to the co-proposal is finalized, which
identifies the federal program requirements that are promulgated
pursuant to HSWA and take effect in all states, regardless of their
authorization status. Table 2 in 40 CFR 271.1(j) would be modified to
indicate that these requirements are self-implementing. Until the
states receive authorization for the more stringent HSWA provisions,
EPA would implement them, as described above. In implementing the HSWA
requirements, EPA will work closely with the states to avoid
duplication of effort. Once authorized, states adopt an equivalent rule
and receive authorization for such rule from EPA, the authorized state
rule will apply in that state as the RCRA subtitle C requirement in
lieu of the equivalent federal requirement.
IX. Summary of the Co-Proposal Regulating CCRs Under Subtitle D
Regulations
A. Overview and General Issues
EPA is co-proposing and is soliciting comment on an approach under
which the May 2000 Regulatory Determination would remain in place, and
EPA would issue regulations governing the disposal of CCRs under
sections 1008(a), 2002, 4004 and 4005(a) of RCRA (i.e., ``Subtitle D''
of RCRA). Under this approach, the CCRs would remain classified as a
non-hazardous RCRA solid waste, and EPA would develop national minimum
criteria governing facilities for their disposal. EPA's co-proposed
subtitle D minimum criteria are discussed below.
Statutory standards for Subtitle D approach. Under RCRA 4005(a),
upon promulgation of criteria under 1008(a)(3), any solid waste
management practice or disposal of solid waste which constitutes the
``open dumping'' of solid waste is prohibited. The criteria under RCRA
1008(a)(3) are those that define the act of open dumping, and are
prohibited under 4005(a), and the criteria under 4004(a) are those to
be used by states in their planning processes to determine which
facilities are ``open dumps'' and which are ``sanitary landfills.'' EPA
has in practice defined the two sets of criteria identically. See,
e.g., Criteria for Classification of Solid Waste Disposal Facilities
and Practices, 44 FR 53438, 53438-39 (Sept. 13, 1979). EPA has designed
today's co-proposed subtitle D criteria to integrate with the existing
open dumping criteria in this respect, as reflected in the proposed
changes to 257.1.
Section 4004(a) of RCRA provides that EPA shall promulgate
regulations containing criteria distinguishing which facilities are to
be classified as sanitary landfills and which are open dumps. This
section provides a standard that varies from that under RCRA subtitle
C. Specifically, subtitle C provides that management standards for
hazardous waste treatment, storage, and disposal facilities are those
``necessary to protect human health or the environment.'' See, e.g.,
RCRA 3004(a). By contrast, Section 4004(a) provides that
[a]t a minimum, the such criteria shall provide that a facility
may be classified as a sanitary landfill and not an open dump only
if there is no reasonable probability of adverse effects on health
or the environment from disposal of solid waste at such facility.
Such regulations may provide for the classification of the types of
sanitary landfills.
Thus, under the RCRA subtitle D regulatory standard in 4004, EPA is
to
[[Page 35193]]
develop requirements based on the adverse effects on health or the
environment from disposal of solid waste at a facility, and
accordingly, EPA looked at such effects in developing today's co-
proposed Subtitle D rule.
At the same time, EPA believes that the differing standards, in
particular the reference to the criteria as those which are needed to
assure that there is ``no reasonable probability'' of adverse effects,
allows the Agency the ability to adopt standards different from those
required under the subtitle C proposal where appropriate. EPA notes
that the 4004(a) standard refers to the ``probability'' of adverse
effect on health or the environment. In EPA's view, this provides it
the discretion to establish requirements that are less certain to
eliminate a risk to health or the environment than otherwise might be
required under Subtitle C, and allows additional flexibility in how
those criteria may be applied to facilities. At the same time, however,
EPA notes that the requirements meeting the ``no reasonable
probability'' standard are those ``at a minimum''--thus, EPA is not
constrained to limit itself to that standard should it determine that
additional protections are appropriate.
Statements in the legislative history of 4004(a) are also
consistent with EPA's interpretation of the statutory language. While
it provides little in the way of guidance on the meaning of the
``reasonable probability'' standard, the legislative history does
indicate that Congress was aware of effects from solid waste disposal
facilities that included surface runoff, leachate contamination of
surface- and groundwaters, and also identified concerns over the
location and operations of landfills. See H. Rep. 94-1491, at 37-8. In
addition, the legislative history confirms that the standard in 4004(a)
was intended to set a minimum for the criteria. See H. Rep. 94-1491, at
40 (``This legislation requires that the Administrator define sanitary
landfill as disposal site at which there is no reasonable chance of
adverse effects on health and the environment from the disposal of
discarded material at the site. This is a minimum requirement of this
legislation and does not preclude additional requirements.'' Emphasis
added.)
1. Regulatory Approach
In developing the proposed RCRA subtitle D option for CCRs, EPA
considered a number of existing requirements as relevant models for
minimum national standards for the safe disposal of CCRs. The primary
source was the existing requirements under 40 CFR part 258, applicable
to municipal solid waste landfills, which provide a comprehensive
framework for all aspects of disposal in land-based units, such as CCR
landfills. Based on the Agency's substantial experience with these
requirements, EPA believes that the part 258 criteria represent a
reasonable balance between ensuring the protection of human health and
the environment from the risks of these wastes and the practical
realities of facilities' ability to implement the criteria. The
engineered structures regulated under part 258 are very similar to
those found at CCR disposal facilities, and the regulations applicable
to such units would be expected to address the risks presented by the
constituents in CCR wastes. Moreover, CCR wastes do not contain the
constituents that are likely to require modification of the existing
part 258 requirements, such as organics; for example, no adjustments
would be needed to ensure that groundwater monitoring would be
protective, as the CCR constituents are all readily distinguishable by
standard analytical chemistry. As discussed throughout this preamble,
each of the provisions adopted for today's subtitle D co-proposal
relies, in large measure, on the record EPA developed to support the 40
CFR part 258 municipal solid waste landfill criteria, along with the
other record evidence specific to CCRs, discussed throughout the co-
proposed subtitle C alternative. EPA also relied on the Agency's Guide
for Industrial Waste Management (EPA530-R-03-001, February 2003), to
provide information on existing best management practices that
facilities have likely adopted.
The Guide was developed by EPA and state and tribal
representatives, as well as a focus group of industry and public
interest stakeholders chartered under the Federal Advisory Committee
Act, and reflects a consensus view of best practices for industrial
waste management. It also contains recommendations based on more recent
scientific developments, and state-of-the art disposal practices for
solid wastes.
In addition, EPA considered that many of the technical requirements
that EPA developed to specifically address the risks from the disposal
of CCRs as part of the subtitle C alternative, would be equally
justified under a RCRA subtitle D regime. Thus, for example, EPA is
proposing the same MSHA-based standards for surface impoundments that
are discussed as part of the subtitle C alternative. 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. Although the statutory standards under
subsections C and D differ, EPA has historically interpreted both
statutory provisions to establish a comparable level of protection,
corresponding to an acceptable risk level ranging between 1 x 10-4 to 1
x 10-6. In addition, EPA does not interpret section 4004 to preclude
the Agency from establishing more stringent requirements where EPA
deems such more stringent requirements appropriate. 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, or
are modeled after the existing subtitle C requirements. These
provisions include the following regulatory provisions specific to CCRs
that EPA is proposing to establish: Scope, and applicability (i.e., who
will be subject to the rule criteria/requirements), the Design Criteria
and Operating Criteria (including provisions for surface impoundment
integrity), and several of the provisions specifying appropriate
pollution control technologies. Additional support for EPA's decision
to specify appropriate monitoring, corrective action, closure, and
post-closure care requirements (since the specific requirements
correlate closely with the existing 40 CFR 258 requirements) is found
in the risk analysis and damage case information. Finally, many of the
definitions are the same in each section.
However, both the RCRA subtitle C proposals and the existing 40 CFR
part 258 requirements were developed to be implemented in the context
of a permitting program, where an overseeing authority evaluates the
requirements, and can adjust them, as appropriate to account for site
specific conditions. Because there is no corresponding guaranteed
permit mechanism under the RCRA subtitle D regulations proposed today,
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. The interim status requirements were particularly
relevant in developing the proposed requirements for surface
impoundments, since such units are not regulated under 40 CFR part 258.
Beyond their self-implementing design, these requirements provided a
useful model because, based on decades of experience in implementing
these requirements, EPA has assurance that they provide national
requirements that have proven to be protective for a variety of wastes,
under a wide variety
[[Page 35194]]
of site conditions. Past experience also demonstrates that facilities
can feasibly implement these requirements.
Taking all of these considerations into account, EPA has generally
designed the proposed RCRA subtitle D criteria to create self-
implementing requirements. These self-implementing requirements
typically consist of a technical design standard (e.g., the composite
liner requirement for new CCR landfills and surface impoundments). In
addition, for many of these requirements, the Agency also has
established performance criteria that the owner or operator can meet,
in place of the technical design standard, which provides the facility
with flexibility in complying with the minimum national criteria. EPA
generally has chosen to propose an alternate performance standard for a
number of reasons. In several cases, the alternative standard is
intended to address the circumstances where the appropriate requirement
is highly dependent on site-specific conditions (such as the spacing
and location of ground-water wells); consequently, uniform, national
standards that assure the requisite level of protection are extremely
difficult to establish. EPA could establish a minimum national
requirement, but to do so, EPA would need to establish the most
restrictive criteria that would ensure protection of the most
vulnerable site conditions. Because this would result in overregulation
of less vulnerable sites, EPA questions whether such a restrictive
approach would be consistent with the RCRA section 4004 standard of
ensuring ``no reasonable probability of adverse effects.'' (emphasis
added). The existing 40 CFR part 258 requirements provide the
flexibility to address this issue by establishing alternate performance
standards and relying on the oversight resulting from state permitting
processes, and supported by EPA approval of state plans. Indeed, EPA
made clear in the final MSWLF rule that this was the reason that
several of the individual performance standards in the existing 40 CFR
part 258 requirements are available only in states with EPA approved
programs. See, e.g., 56 FR 51096 (authorizing alternative cover
designs). However, EPA cannot rely on these oversight mechanisms to
implement the RCRA 4004 subtitle D requirements. Under these provisions
of RCRA, EPA lacks the authority to require state permits, approve
state programs, and to enforce the criteria. Moreover as discussed in
Section IV, the level of state oversight varies appreciably among
states. Consequently, for these provisions EPA is also proposing to
require the owner or operator of the facility to obtain certifications
by independent registered professional engineers to provide
verification that these provisions are properly applied. EPA has also
proposed to require certifications by independent professional
engineers more broadly as a mechanism to facilitate citizen oversight
and enforcement. As discussed in greater detail below, EPA is proposing
to require minimum qualifications for the professionals who are relied
upon to make such certifications. In general, 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, and that they
operate under penalty of losing their license.
EPA believes that these provisions allow facilities the flexibility
to account for site conditions, by allowing them to deviate from the
specific technical criteria, provided the alternative meets a specified
performance standard, yet also provide some degree of third-party
verification of facility practices. The availability of meaningful
independent verification is critical to EPA's ability to conclude that
these performance standards will meet the RCRA section 4004
protectiveness standard. EPA recognizes that relying upon third party
certifications is not the same as relying upon the state regulatory
authority, and will likely not provide the same level of
``independence.'' For example, although not an employee, the engineer
will still have been hired by the utility. EPA therefore broadly
solicits comment on whether this approach provides the right balance
between establishing sufficient guarantee that the regulations will be
protective, and offering facilities sufficient flexibility to be able
to feasibly implement requirements that will be appropriate to the site
conditions. In this regard, EPA would also be interested in receiving
suggestions for other mechanisms to provide facility flexibility and/or
verification.
There is a broad range of the extent to which states already have
some of these requirements in place under their current RCRA subtitle D
waste management programs established under state law, as explained
previously in this preamble. EPA and certain commenters, however, have
identified significant gaps in state programs and current practices.
For example, EPA does not believe that many, if any, states currently
have provisions that would likely cause the closure of existing surface
impoundments, such as the provisions in today's proposed rule that
surface impoundments must either retrofit to meet all requirements,
such as installing a composite liner, or stop receiving CCRs within a
maximum of five years of the effective date of the regulation. The RCRA
subtitle D proposal outlined here is intended to fill such gaps and
ensure national minimum standards. EPA intends to provide a complete
set of requirements, designed to ensure there will be no reasonable
probability of adverse effects on health or the environment caused by
CCR landfills or surface impoundments. EPA's co-proposed RCRA subtitle
D minimum criteria are discussed below.
2. Notifications
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 proposed RCRA subtitle D standards by providing
for state and public notifications of the third party certifications,
as well as other information that documents the decisions made or
actions taken to comply with the performance criteria. As discussed in
the section-by-section analysis below, documentation of how the various
standards are met must be placed in the operating record and the state
notified.
The owner or operator must also maintain a web site available to
the public that contains the documentation that the standard is met.
EPA is proposing that owners and operators provide notification to the
public by posting notices and relevant information on an internet site
with a link clearly identified as being a link to notifications,
reports, and demonstrations required under the regulations. EPA
believes the internet is currently the most convenient and widely
accessible means for gathering information and disseminating it to the
public. However, the Agency solicits comments regarding the methods for
providing notifications to the public and the states. EPA also solicits
comments on whether there could be homeland security implications with
the requirement to post information on an internet site and whether
posting certain information on the internet may duplicate information
that is already available to the public through the state.
The co-proposed subtitle D regulation accordingly includes a number
of public notice provisions. In particular, to ensure that persons
residing near CCR surface impoundments are protected from potential
catastrophic releases, we are proposing that when a potentially
hazardous condition develops regarding
[[Page 35195]]
the integrity of a surface impoundment, that the owner or operator
immediately notify potentially affected persons and the state. The
Agency is also proposing to require that owners or operators notify the
state, and place the report and other supporting materials in the
operating record and on the company's internet site of various
demonstrations, documentation, and certifications. Accordingly, notice
must be provided: (1) Of demonstrations that CCR landfills or surface
impoundments will not adversely affect human health or the environment;
(2) of demonstrations of alternative fugitive dust control measures;
(3) annually throughout the active life and post-closure care period
that the landfill or surface impoundment is in compliance with the
groundwater monitoring and corrective action provisions; (4) when
documentation related to the design, installation, development, and
decommission of any monitoring wells, piezometers and other
measurement, sampling, and analytical devices has been placed in the
operating record; (5) when certification of the groundwater monitoring
system by an independent registered professional engineer or
hydrologist has been placed in the operating record; (6) when
groundwater monitoring sampling and analysis program documentation has
been placed in the operating record; (7) when the use of an alternative
statistical method is to be used in evaluating groundwater monitoring
data and a justification for the alternative statistical method has
been placed in the operating record; (8) when the owner or operator
finds that there is a statistically significant increase over
background for one or more of the constituents listed in Appendix III
of the proposed rule, at any groundwater monitoring well; (9) when a
notice of the results of assessment monitoring that may be required
under the groundwater monitoring program is placed in the operating
record; (10) when a notice is placed in the operating record that
constituent levels that triggered assessment monitoring have returned
to or below background levels; (11) when a notice of the intent to
close the unit has been placed in the operating record; and (12) when a
certification, signed by an independent registered professional
engineer verifying that post-closure care has been completed in
accordance with the post-closure plan, has been placed in the operating
record. Please consult the proposed subtitle D regulation provided with
this notice for all the proposed notification and documentation
requirements.
As explained earlier, the RCRA subtitle D approach relies on state
and citizen enforcement. EPA believes that it cannot conclude that the
RCRA subtitle D regulations will ensure there is no reasonable
probability of adverse effects on health or the environment, unless
there is a mechanism for states and citizens to monitor the situation,
such as when groundwater monitoring shows exceedances, so that they can
determine when intervention is appropriate. EPA also believes that
notifications, such as those described above, will minimize the danger
of owners or operators abusing the self-implementing system through
increased transparency and by facilitating the citizen suit enforcement
mechanism.
EPA is proposing that owners and operators provide notification to
the public by posting notices and relevant information on an internet
site with a link clearly identified as being a link to notifications,
reports, and demonstrations required under the regulations. EPA
believes the internet is currently the most convenient and widely
accessible means for gathering information. However, the Agency
solicits comments regarding the methods for providing notifications to
the public and the states.
B. Section-by-Section Discussion of RCRA Subtitle D Criteria
1. Proposed Modifications to Part 257, Subpart A
EPA is proposing to modify the existing open dumping criteria found
in 40 CFR 257.1, Scope and Purpose, to recognize the creation of a new
subpart D, which consolidates all of the criteria 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. Facilities and
practices failing to satisfy these consolidated subpart D criteria
violate RCRA's prohibition on open dumping. The proposed regulation
also excludes CCR landfills and surface impoundments subject to
proposed subpart D from subpart A, except as otherwise provided in
subpart D.
In general, these provisions are intended to integrate the new
requirements with the existing open dumping criteria, and have only
been modified to clarify that the proposed RCRA subtitle D regulations
define which CCR landfills and surface impoundments violate the federal
standards, and therefore may be enforced by citizen suit under RCRA
4005(a) and 7002. EPA has also proposed language to make clear that
those CCR landfills and surface impoundments that are subject to the
new proposed Subpart D would not also be subject to Subpart A, with the
exception of three of the existing Subpart A criteria (257.3-1,
Floodplains, 257.3-2 Endangered Species, 257.3-3 Surface water) that
would continue to apply to these facilities. The applicability of these
three provisions to CCR disposal facilities is discussed later in this
preamble.
Finally, EPA also notes that its intent in excluding CCR landfills
and surface impoundments from 40 CFR 257 Subpart A in this manner is to
consolidate the requirements applicable to those particular facilities
in one set of RCRA subtitle D regulations. EPA does not intend to
modify the coverage of 40 CFR 257 subpart A as to other disposal
facilities and practices for CCRs, such as beneficial uses of CCRs when
they are applied to the land used for food-chain crops. It is EPA's
intent that such activities would continue to be subject to the
existing criteria under Subpart A.
2. General Provisions
The proposed general provisions address the applicability of the
new proposed RCRA Subpart D requirements, the continuing applicability
of certain of the existing open dumping criteria, provide for an
effective date of 180 days after promulgation, and define key terms for
the proposed criteria.
Applicability. The applicability provisions identify those solid
waste disposal facilities subject to the new proposed RCRA Subpart D
(i.e., CCR landfills and CCR surface impoundments as defined under
proposed 257.40(b)). The applicability section also identifies three of
the existing subpart A criteria that would continue to apply to these
facilities: 257.3-1, Floodplains, 257.3-2 Endangered Species, 257.3-3
Surface water. The applicability of these provisions to CCR disposal
facilities is discussed later in this preamble.
The applicability section also specifies an effective date of 180
days after publication of the final rule. EPA believes that, with the
specific exceptions discussed below, this time frame strikes a
reasonable balance between the time that owners and operators of CCR
units would need in order to come into compliance with the rule's
requirements, and the need to implement the proposed requirements in a
timeframe that will maximize protection of health and the environment.
We note that 180 days is
[[Page 35196]]
the timeframe for persons to come into compliance with most of the
requirements under RCRA subtitle C, and believe that if persons can
meet the hazardous waste provisions within this time period under RCRA
subtitle C, that it is reasonable to conclude that persons should be
able to meet those same or similar requirements under RCRA subtitle D.
EPA also notes that pending finalization of any regulations, facilities
continue to be subject to the existing part 257 open dumping criteria
as they may apply.
3. Definitions
This section of the proposed regulation discusses the definitions
of some of the key terms used in the proposed RCRA subtitle D rule that
are necessary for the proper interpretation of the proposed criteria.
Because EPA is creating a separate section of the regulations specific
to CCR units, EPA is also consolidating the existing definitions in
this section. However, by simply incorporating these unmodified
definitions into this new section of the regulations, EPA is not
proposing to reopen, or soliciting comments on these requirements. Nor,
for definitions where the only modification relates to an adjustment
specific to CCRs, is EPA proposing to revise or reopen the existing
part 257 or part 258 definitions as they apply to other categories of
disposal facilities, as those will remain unaltered. Accordingly, EPA
will not respond to any comments on these definitions.
Aquifer. EPA has defined aquifer for this proposal as a geologic
formation, group of formations, or portion of a formation capable of
yielding significant quantities of ground water to wells or springs.
This is the same definition currently used in EPA's hazardous waste
program and MSWLF criteria in 40 CFR 258.2 and differs from the
original criteria definition (40 CFR 257.3-4(c)(1)) only in that it
substitutes the term ``significant'' for ``usable.'' The Agency is
proposing to adopt the modified definition to make the subtitle C and
subtitle D alternatives consistent.
Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler
slag, and flue gas desulfurization wastes. CCRs are also known as coal
combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes.
CCR Landfill. The co-proposed criteria includes a definition of
``CCR landfill'' to mean an area of land or an excavation, including a
lateral expansion, in which CCRs are placed for permanent disposal, and
that is not a land application unit, surface impoundment, or injection
well. For purposes of this proposed rule, landfills also include piles,
sand and gravel pits, quarries, and/or large scale fill operations. EPA
modeled this definition after the definition of ``Municipal solid waste
landfill (MSWLF) unit'' contained in the existing criteria for those
facilities. Although this is somewhat different than the definition
proposed under the subtitle C alternative (which is based on the
existing part 260 definition), EPA intends for this proposed definition
to capture those landfills and other large-scale disposal practices
that are described in EPA's damage cases and risk assessments discussed
in sections II, VI, and the RIA.
CCR Surface Impoundment. EPA has proposed to define this term to
mean a facility or part of a facility, including a lateral expansion,
that is a natural topographic depression, human-made excavation, or
diked area formed primarily of earthen materials (although it may be
lined with human-made materials), that is designed to hold an
accumulation of liquid CCR wastes or CCR wastes containing free liquids
and that is not an injection well. EPA has included as examples of
surface impoundments settling and aeration pits, ponds, and lagoons.
This is the same definition that EPA is proposing as part of the
subtitle C alternative, and is generally consistent with the definition
of ``surface impoundment or impoundment'' contained in the existing
257.2 criteria.
EPA further proposes in the definition a description of likely
conditions at a CCR surface impoundment, stating that CCR surface
impoundments often receive CCRs that have been sluiced (flushed or
mixed with water to facilitate movement), or wastes from wet air
pollution control devices. EPA intends for this proposed definition to
capture those surface impoundments that are described in EPA's damage
cases and risk assessments described in sections II, VI, and the RIA.
Existing CCR Landfill/Existing CCR Surface Impoundment. EPA has
included a proposed definition of this term to mean a CCR landfill or
surface impoundment, which was in operation on, or for which
construction commenced prior to the effective date of the final rule.
The proposed definition states that a CCR landfill or surface
impoundment has commenced construction if: (1) The owner or operator
has obtained the Federal, State and local approvals or permits
necessary to begin physical construction; and (2) either (i) a
continuous on-site, physical construction program has begun; or (ii)
the owner or operator has entered into contractual obligations--which
cannot be cancelled or modified without substantial loss--for physical
construction of the CCR landfill or surface impoundment to be completed
within a reasonable time. These definitions are identical to the co-
proposed subtitle C definitions, described in section VI. EPA sees no
reason to establish separate definitions of these units for purposes of
RCRA subtitle D since the question of whether these units are existing
should not differ between whether they are regulated under RCRA
subtitles C or D.
Factor of Safety (Safety Factor). The proposed definition is 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. This definition is the same as the co-proposed
subtitle C definitions, described in section VI. EPA sees no reason to
establish a separate definition for this term for purposes of RCRA
subtitle D since the question of ``Factor of safety'' should not differ
between units that would be regulated under RCRA subtitles C or D.
Hazard potential classification. This term is proposed to be
defined as the possible adverse incremental consequences that result
from the release of water or stored contents due to failure of a dam
(or impoundment) or misoperation of the dam or appurtenances.
The proposed definition further delineates the classification into
four categories:
--High hazard potential surface impoundment which is a surface
impoundment where failure or misoperation will probably cause loss of
human life;
--Significant hazard potential surface impoundment which is a surface
impoundment where failure or misoperation results in no probable loss
of human life, but can cause economic loss, environmental damage,
disruption of lifeline facilities, or impact other concerns; and
--Low hazard potential surface impoundment means a surface impoundment
where failure or mis-operation results in no probable loss of human
life and low economic and/or environmental losses. Losses are
principally limited to the surface impoundment owner's property.
--Less than low hazard potential surface impoundment means a surface
impoundment not meeting the definitions for High, Significant, or Low
Hazard Potential.
This definition, just like the proposed RCRA subtitle C definition,
follows the
[[Page 35197]]
Hazard Potential Classification System for Dams, developed by the U.S.
Army Corps of Engineers for the National Inventory of Dams. This system
is a widely-used definitional scheme for classifying the hazard
potential posed by dams, and EPA expects that the regulated community's
familiarity with these requirements will make their application to CCR
surface impoundments relatively straightforward.
Independent registered professional engineer or hydrologist. This
term is defined as a scientist or engineer who is not an employee of
the owner or operator of a CCR landfill or surface impoundment who has
received a baccalaureate or post-graduate degree in the natural
sciences or engineering and 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 judgments regarding groundwater monitoring,
contaminant fate and transport, and corrective action.
Because the proposed RCRA subtitle D requirements cannot presuppose
the existence of a permit or state regulatory oversight, the criteria
in today's proposed rule are self-implementing. However, as discussed
earlier, to try to minimize the potential for overregulation, and to
provide some degree of flexibility, EPA is proposing to allow
facilities to deviate from the criteria upon a demonstration that the
alternative meets a specified performance standard. But to provide for
a minimum level of verification and to reduce the opportunity for
abuse, the Agency believes it is imperative to have an independent
party review, and certify the facility's demonstrations. The Agency
also believes that those professionals certifying the requirements of
today's proposed rule should meet certain minimum qualifications. The
Agency is proposing to define a ``qualified ground-water scientist'' to
be a scientist or engineer who has received a baccalaureate or post-
graduate degree in the natural sciences or engineering and has
sufficient training and experience in ground-water hydrology and
related fields as may be demonstrated by State registration,
professional certification, or completion of accredited university
programs that enable that individual to make sound professional
judgments regarding ground-water monitoring, contaminant fate and
transport, and corrective action. This requirement is the same as the
current requirement at Sec. 258.50(f). The Agency believes that
specialized coursework and training should include, at a minimum,
physical geology, ground-water hydrology or hydrogeology, and
environmental chemistry (e.g., soil chemistry or low temperature
geochemistry). Some national organizations, such as the American
Institute of Hydrology and the National Water Well Association,
currently certify or register ground-water professionals. States may of
course establish more stringent requirements for these professionals,
including mandatory licensing or certification. As discussed above, EPA
seeks comment on the proposed reliance on independent professionals in
implementing the proposed flexibility of performance standards.
Lateral expansion means a horizontal expansion of the waste
boundaries of an existing CCR landfill, or existing CCR surface
impoundment made after the effective date of the final rule. This
definition is identical to the co-proposed subtitle C definition,
described in section VI. EPA sees no reason to establish a separate
definition of this term for purposes of RCRA subtitle D since whether a
lateral expansion has occurred at a CCR landfill or surface impoundment
should not differ between those units regulated under RCRA subtitles C
or D.
New CCR landfill means a CCR landfill from which there is placement
of CCRs without the presence of free liquids, which began operation, or
for which the construction commenced after the effective date of the
rule. This definition is identical to the co-proposed subtitle C
definition, described in section VI. EPA sees no reason to establish a
separate definition for this term for purposes of RCRA subtitle D since
whether a landfill is new should not differ between those landfills
that are regulated under RCRA subtitles C or D.
New CCR surface impoundment means a CCR surface impoundment into
which CCRs with the presence of free liquids have been placed, which
began operation, or for which the construction commenced after the
effective date of the rule. EPA sees no reason to establish a separate
definition for this term for purposes of RCRA subtitle D since whether
a surface impoundment is new should not differ between those surface
impoundments that are regulated under RCRA subtitles C or D.
Recognized and generally accepted good engineering practices means
engineering maintenance or operation activities based on established
codes, standards, published technical reports, recommended practice, or
similar document. Such practices detail generally approved ways to
perform specific engineering, inspection, or mechanical integrity
activities. In several provisions, EPA requires that the facility
operate in accordance with ``recognized and generally accepted good
engineering practices,'' or requires an independent engineer to certify
that a design or operating parameter meets this standard. The
definition references but does not attempt to codify any particular set
of engineering practices, but to allow the professional engineer
latitude to adopt improved practices that reflect the state-of-the art
practices, as they develop over time. This definition is the same as
the definition EPA is proposing under the subtitle C alternative.
4. Location Restrictions
To provide for no reasonable probability of adverse effects on
health or the environment from the disposal of CCRs at CCR landfills
and surface impoundments, EPA believes that any RCRA subtitle D
regulation would need to ensure that CCR disposal units were
appropriately sited. The proposed location restrictions include
requirements relating to placement of the CCRs above the water table,
wetlands, fault areas, seismic impact zones, and unstable areas. In
addition, as previously noted, the location standards in subpart A of
40 CFR part 257 for floodplains, endangered species, and surface waters
would also continue to apply. Finally, the proposed regulations also
address the closure of existing CCR landfills and surface impoundments.
The location standards in this proposal are primarily based on the
location standards developed for municipal solid waste landfill units,
and represent provisions to ensure that the structure of the disposal
unit is not adversely impacted by conditions at the site, or that the
location of a disposal unit at the site would not increase risks to
human health or the environment. The criteria for municipal solid waste
landfills provide restrictions on siting units in wetlands, fault
areas, seismic impact zones, and unstable areas.\151\
[[Page 35198]]
Each of those factors is generally recognized as having the potential
to impact the structure of a disposal unit negatively or increase the
risks to human health and the environment. As discussed below in more
detail, each of these provisions adopted for today's RCRA subtitle D
co-proposal relies in large measure, on the record EPA developed to
support the 40 CFR part 258 municipal solid waste landfill criteria.
EPA's Guide for Industrial Waste Management (EPA530-R-03-001, February
2003) also identifies these location restrictions as appropriate for
industrial waste management. These proposed requirements are all
discussed in turn below, after a general explanation of the Agency's
proposed treatment of new CCR disposal units compared to existing CCR
disposal units.
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\151\ The proposed definition of seismic impact zone was
modified from the part 258 definition as explained in the
``Discussion of Individual Location Requirements'' section below.
The part 258 criteria also include location restrictions relating to
airport safety and floodplains, in 258.10 and 258.11, respectively.
EPA has not proposed an analogue to 258.10 because the hazard
addressed by that criterion, bird strikes to aircraft, is
inapplicable in the context of CCR disposal units, which do not tend
to attract birds to them. As discussed in the main text, EPA is
proposing to maintain the existing criterion in 257, subpart A for
floodplains.
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a. Differences in Location Restrictions for Existing and New CCR
Landfills and Surface Impoundments, and Lateral Expansions. EPA is
proposing different sets of location restrictions under the Subtitle D
approach, depending on whether a unit is a CCR landfill or surface
impoundment, and whether it is an existing or new unit. Lateral
expansions fall within the definitions of new units, and are treated
accordingly.
While new landfills would be required to comply with all of the
location restrictions, EPA is proposing to subject existing landfills
to only two of the location restrictions--floodplains, and unstable
areas--in today's rule. Existing landfills are already subject to the
floodplains location restriction because it is contained in the
existing 40 CFR part 257, subpart A criteria, which have been in effect
since 1979. Because owners and operators of existing landfills already
should be in compliance with this criterion, applying this location
restriction will have no impact to the existing disposal capacity,
while continuing to provide protection of human health and the
environment.
The Agency decided to apply today's final unstable area location
restriction to existing CCR landfills, because the Agency believes that
the impacts to human health and the environment that would result from
the rapid and catastrophic destruction of these units outweighs any
disposal capacity concerns resulting from the closure of existing CCR
disposal units.
On the other hand EPA is not proposing to impose requirements on
existing CCR landfills in wetlands, fault areas, or seismic impact
areas. We base this decision on the possibility that a significant
number of CCR landfills may be located in areas subject to this
requirement. The Agency believes that such landfills pose less risks
and are structurally less vulnerable than surface impoundments, and
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 risks
caused by existing units in these locations. For example, if existing
CCR landfills located in wetlands were required to close, there would
be a significant decrease in disposal capacity, particularly given the
Agency's expectation that many existing surface impoundments will
choose to close, in response to this proposed rule. In addition,
wetlands are more prevalent in some parts of the country (e.g., Florida
and Louisiana). In these States, the closure of all existing CCR
landfills located in wetlands could potentially significantly disrupt
statewide solid waste management. Therefore, the Agency believes that
it may be impracticable to require the closure of existing CCR
landfills located in wetlands. However, EPA seeks comment and
additional information regarding the number of existing CCR landfills
that are located in such areas.
Concern about impacts on solid waste disposal capacity as well as
the lower level of risks and the structural vulnerability of landfills,
as compared to surface impoundments, were also the primary reasons the
Agency is not proposing to subject existing CCR landfills to today's
proposed fault area location restrictions. The closure of a significant
number of existing CCR landfills located in fault areas could result in
a serious reduction of CCR landfill capacity in certain regions of the
U.S. where movement along Holocene faults is common, such as along the
Gulf Coast and in much of California and the Pacific Northwest. The
Agency, however, does not have specific data showing the number of
units and the distance between these disposal units and the active
faults, and therefore, is unable to precisely estimate the number of
these existing CCR landfills that would not meet today's fault area
restrictions. EPA therefore solicits comment and additional data and
information regarding the extent to which existing CCR landfills are
currently located in such locations. However, given the potential for
impacts on solid waste capacity and the lower levels of risk associated
with landfills compared to surface impoundments, EPA has concluded that
it may not be appropriate to subject existing CCR landfills to the
proposed fault area requirements.
Similarly, the Agency is not proposing to impose the seismic impact
zone restrictions on existing CCR landfills located in these areas. As
with the other location restrictions, the Agency anticipates that a
significant number of existing CCR disposal units are located in these
areas. EPA is concerned that such facilities would be unable to meet
the requirements, because retrofitting would be prohibitively expensive
and technically very difficult in most cases, and would therefore be
forced to close.
EPA generally seeks comment and additional information regarding
the extent to which CCR landfill capacity would be affected by applying
these location restrictions to existing CCR landfills. Information on
the prevalence of existing CCR landfills in such areas would be of
particular interest to the Agency. EPA also notes that the proposed
location requirements do not reflect a complete prohibition on siting
facilities in such areas, but provide a performance standard that
facilities must meet in order to site a unit in such a location. EPA
therefore solicits comment on the extent to which facilities could
comply with these performance standards, and the necessary costs that
would be incurred to retrofit the unit to meet these standards.
As discussed earlier in this preamble, this proposed approach is
generally consistent with the proposed approach to existing landfills
under subtitle C of RCRA, and with Congressional distinctions between
the risks presented by landfills and surface impoundments. Existing
landfills that are brought into the hazardous waste system because they
are receiving newly listed hazardous wastes are not generally required
to be retrofitted with a new minimum-technology liner/leachate
collection and removal system (or to close), and they would not be
subject to such requirements under today's proposal. EPA sees no reason
or special argument to adopt more stringent requirements under the co-
proposed subtitle D criteria for CCR landfills, particularly given the
volume of the material and the disruption that could be involved if
these design requirements were applied to existing landfills.
By contrast, and consistent with its approach to existing surface
impoundments under subtitle C, the proposed regulations would apply all
of the location restrictions to existing surface impoundments. This
means that facilities would need to either
[[Page 35199]]
demonstrate that the surface impoundment meets the performance standard
that serves as the alternative to the prohibition, retrofit the unit so
that it can meet the performance standard, or close. EPA is making this
distinction because, as discussed in sections IV-VI, the record
indicates that the risks associated with CCR surface impoundments are
substantially higher than the risks posed by CCR landfills. The impacts
to human health and the environment that would result from the rapid
and catastrophic destruction of these units could result in injuries to
human health and the environment, that are far more significant, as
illustrated by the impacts of the recent TVA spill in Tennessee. The
risks to human health and the environment of such a catastrophic
collapse far outweigh the costs of requiring surface impoundments to
retrofit or close. Moreover, there are significant economic costs
associated with the failure of a surface impoundment; as noted earlier,
the direct cost to clean up the TVA spill is currently estimated to
exceed one billion dollars. Surface impoundments also are more
vulnerable to structural problems if located in unstable areas, fault
areas and seismic impact areas. Finally, as already noted, the
distinction EPA is making between existing landfills and existing
surface impoundments is also consistent with Congressional direction;
as discussed in section VI, Congress specifically required existing
surface impoundments receiving hazardous wastes to retrofit to meet the
new statutory requirements or to close, in direct contrast to their
treatment of existing landfills.
Although many surface impoundments may close as a result of these
requirements, EPA believes that it is proposing to take a number of
actions to alleviate concerns that this will present significant
difficulties with regard to disposal capacity in the short-term: e.g.,
``grandfathering'' in existing CCR landfills, allowing CCR landfills to
vertically expand without retrofitting, and delayed implementation
dates. At the same time, as discussed in greater detail in section VI,
with regard to the subtitle C co-proposal, EPA is soliciting comment on
the appropriate amount of time necessary to meet these time frames as
well as measures that could help to address the potential for
inadequate disposal capacity. EPA notes, however, that unlike under the
subtitle C co-proposal, EPA is not proposing to require facilities to
cease wet handling. Thus EPA expects that both the impacts and the time
frames needed for facilities to come into compliance would be lower.
While the proposed requirements relating to the placement above the
water table, wetlands, fault areas, and seismic impact zones would not
apply to existing CCR disposal units, all of these restrictions apply
to lateral expansions of existing CCR disposal units, as well as new
CCR disposal units. Therefore, under the proposal, owners and operators
of existing CCR landfills could vertically expand their existing
facilities in these locations, but must comply with the provisions
governing new units if they wish to laterally expand. EPA expects that
allowing such vertical expansion will allow for increased capacity,
which will be particularly important, if, as EPA expects, many surface
impoundments would close, should this regulation be adopted. At the
same time, EPA believes that the risks to human health or the
environment will be mitigated because facilities will be required to
otherwise comply with the more stringent environmental restrictions,
such as the corrective action and closure provisions proposed below.
b. Discussion of Individual Location Requirements
Placement above the water table. The co-proposed subtitle D
regulations would prohibit new CCR landfills and all surface
impoundments from being located within two feet of the upper limit of
the natural water table. EPA is proposing to define the natural water
table as the natural level at which water stands in a shallow well open
along its length and penetrating the surficial deposits just deeply
enough to encounter standing water at the bottom. This is the level of
water that exists, when uninfluenced by groundwater pumping or other
engineered activities.
Floodplains. CCR landfills and surface impoundments are currently
subject to the open dumping criteria contained in 40 CFR 257, Subpart
A. These minimum criteria include restrictions on floodplain impacts
under 257.3-1. As facilities should already be complying with this
requirement, EPA is not proposing to modify it as part of today's rule.
Accordingly, EPA is not reopening this requirement.
Wetlands. The regulations require that the facility prepare and
make available a written demonstration that such engineering measures
have been incorporated into the unit's design to mitigate any potential
adverse impact, and require certification by an independent registered
professional engineer either that the new CCR disposal unit is not in a
prohibited area, as defined by the regulation, or that the
demonstration meets the regulatory standards.
Today's proposed wetland provisions would apply only to new CCR
landfills, including lateral expansions of existing CCR disposal units,
and all surface impoundments. New CCR landfills, which include lateral
expansions, as well as all surface impoundments, are barred from
wetlands unless the owner or operator of the disposal unit can make the
following demonstrations certified by an independent registered
professional engineer or hydrologist. First, the owner or operator must
rebut the presumption that a practicable alternative to the proposed
CCR disposal unit or lateral expansion is available that does not
involve wetlands. Second, the owner or operator must 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 the protection of a marine
sanctuary. Third, the owner or operator must demonstrate that the CCR
disposal unit or lateral expansion will not cause or contribute to
significant degradation of wetlands. To this end, the owner or operator
must ensure the integrity of the CCR disposal unit, and its ability to
protect ecological resources by addressing: erosion, stability, and
migration potential of native wetland soils, muds and deposits used to
support the unit; erosion, stability, and migration potential of
dredged and fill materials used to support the unit; the volume and
chemical nature of the CCRs; impacts on fish, wildlife, and other
aquatic resources and their habitat from release of CCRs; the potential
effects of catastrophic release of CCRs to the wetland and the
resulting impacts on the environment; and any additional factors, as
necessary, to demonstrate that ecological resources in the wetland are
sufficiently protected. Fourth, the owner or operator must demonstrate
that steps have been taken to attempt to achieve no net loss of
wetlands by first avoiding impacts to wetlands to the maximum extent
practicable, then minimizing unavoidable impacts to the maximum extent
practicable, and finally offsetting remaining unavoidable wetland
impacts through all appropriate and practicable compensatory mitigation
actions. The owner or operator must place the demonstrations in the
operating record and the
[[Page 35200]]
company's Internet site, and notify the state that the demonstrations
have been placed in the operating record.
For facilities that cannot make such a demonstration, this proposed
provision effectively bans the siting of new CCR landfills or surface
impoundments in wetlands, and would require existing surface
impoundments to close.
EPA notes that this section of the proposal is consistent with
regulatory provisions currently governing the CWA section 404 program,
including the definition of wetlands contained in proposed 257.61. See
40 CFR 232.2(r). EPA believes that wetlands are very important, fragile
ecosystems that must be protected, and has identified wetlands
protection as a top priority. Nevertheless, EPA has proposed to
continue to allow existing CCR landfills to be sited in wetlands to
minimize the disruption to existing CCR disposal facilities, as it is
EPA's understanding that many existing CCR landfills are located near
surface water bodies, in areas that also may qualify as wetlands under
the proposed criteria. Likewise, EPA is concerned that an outright ban
of new CCR landfills in wetlands would severely restrict the available
sites or expansion possibilities, given that EPA is proposing to impose
other conditions on surface impoundments that may cause many to
ultimately close. As noted in section VI, concerns have been raised
regarding the potential for disposal capacity shortfalls, which could
lead to other health and environmental impacts, such as the
transportation of large volumes of CCRs over long distances to other
sites. Accordingly to provide additional flexibility in the proposed
RCRA Subtitle D rules, and to address concerns regarding the potential
for disposal capacity shortfalls, EPA is not proposing an outright ban
on siting of existing CCR disposal units in wetlands.
However, EPA continues to believe that siting new CCR disposal
units in wetlands should only be done under very limited conditions.
The Agency is therefore proposing a comprehensive set of demonstration
requirements. In addition, the Agency believes that when such
facilities are sited in a wetland, that the owner or operator should
offset any impacts through appropriate and practicable compensatory
mitigation actions (e.g., restoration of existing degraded wetlands or
creation of man-made wetlands). This approach is consistent with the
Agency's goal of achieving no overall net loss of the nation's
remaining wetland base, as defined by acreage and function.
Specifically, Sec. 257.61(a)(4) requires owners or operators of new
CCR landfills and surface impoundments to demonstrate that steps have
been taken to achieve no net loss of wetlands (as defined by acreage
and function) by first avoiding impacts to wetlands and then minimizing
such impacts to the maximum extent feasible, and finally, offsetting
any remaining wetland impacts through all appropriate and feasible
compensatory mitigation actions (e.g., restoration of existing degraded
wetlands or creation of man-made wetlands).
The Agency has also included other requirements to ensure that the
demonstrations required under the proposed rule are comprehensive and
ensure no reasonable probability of adverse effects to human health and
the environment. First, EPA has included language in Sec. 257.61(a)(2)
clarifying that the owner or operator must demonstrate that both the
construction and operation of the unit will not result in violations of
the standards specified in Sec. 257.61(a)(2)(i)-(iv). Second, in Sec.
257.61(a)(3) EPA proposes to identify the factors the owner or operator
must address in demonstrating that the unit will not cause or
contribute to significant degradation of wetlands. These factors, which
were partially derived from the section 404(b)(1) guidelines, address
the integrity of the CCR unit and its ability to protect the ecological
resources of the wetland. In addition, EPA is proposing requirements
for third-party certification and state/public notice, to provide some
verification of facility practices, and to generally assist citizens'
ability to effectively intervene and enforce the requirements, as
necessary.
Fault Areas. The proposed rule would ban the location of new CCR
landfills and any surface impoundment within 200 feet (60 meters) of
faults that have experienced displacement during the Holocene Epoch.
The Holocene is a unit of geologic time, extending from the end of the
Pleistocene Epoch to the present and includes the past 11,000 years of
the Earth's history. EPA is proposing to define a fault to include a
zone or zones of rock fracturing in any geologic material along which
there has been an observable amount of displacement of the sides
relative to each other. Faulting does not always occur along a single
plane of movement (a ``fault''), but rather along a zone of movement (a
``fault zone''). Therefore, ``zone of fracturing,'' which means a fault
zone in the context of the definition, is included as part of the
definition of fault, and thus the 200-foot setback distance will apply
to the outermost boundary of a fault or fault zone.
The 200-foot setback was first adopted by EPA in the criteria for
municipal solid waste landfills (MSWLFs), codified at 40 CFR part 258.
In the course of that proceeding, EPA documented that seismologists
generally believed that the structural integrity of MSWLFs could not be
unconditionally guaranteed when they are built within 200-feet of a
fault along which movement is highly likely to occur. Moreover, EPA
relied on a study that showed that damage to engineered structures from
earthquakes is most severe when the structures were located within 200-
feet of the fault along which displacement occurred. Because the
engineered structures found at MSWLFs are similar to those found in CCR
disposal units, EPA expects that the potential for damage to those
structures would be similar in the event of an earthquake near a CCR
landfill or surface impoundment. Therefore, EPA is proposing a similar
setback requirement for new CCR landfills and all surface impoundments.
In general, EPA believes that the 200-foot buffer zone is necessary to
protect engineered structures from seismic damages. EPA also expects
that the 200-foot buffer is appropriate for CCR surface impoundments,
but seeks comment and data on whether the buffer zone should be greater
for such units.
However, the Agency is also concerned that the 200-foot setback may
be overly protective in some geologic formations, but it is unable to
provide a clear definition of these geologic formations. Therefore, the
Agency is proposing to allow the opportunity for an owner or operator
of a new CCR disposal unit to demonstrate that an alternative setback
distance of less than 200 feet will prevent damage to the structural
integrity of facility and will be protective of human health and the
environment. The demonstration must be certified by an independent
registered professional engineer and the owner or operator of the CCR
disposal unit must notify the state that the demonstration has been
placed in the operating record and on the company's internet site. This
approach is consistent with other sections of today's RCRA subtitle D
co-proposal for alternatives to the specified self-implementing
requirement.
Seismic Impact Zones. As noted, the proposed rule would also ban
the location of new CCR landfills and any surface impoundments in
seismic impact zones, unless owners or operators demonstrate that the
unit is designed to resist the maximum horizontal acceleration in
lithified earth material for the site. The design features
[[Page 35201]]
to be protected include all containment structures (i.e., liners,
leachate collection systems, and surface water control systems). The
demonstration must be certified by an independent registered
professional engineer and the owner or operator must notify the state
that the demonstration has been placed in the operating record and on
the company's internet site. For purposes of this requirement, EPA is
proposing to define seismic impact zones as areas having a 10 percent
or greater probability that the maximum expected horizontal
acceleration in hard rock, expressed as a percentage of the earth's
gravitation pull (g), will exceed 0.10g in 250 years. This is based on
the existing part 258.14 definition of seismic impact. The maps for the
250-year intervals are readily available for all of the U.S. in the
U.S. Geological Survey Open-File Report 82-1033, entitled
``Probabilistic Estimates of Maximum Acceleration and Velocity in Rock
in the Contiguous United States.''
Another approach would be to adopt criteria of the National
Earthquake Hazards Reduction Program (NEHRP) of the U.S. Geological
Survey used to develop national seismic hazard maps. The NEHRP uses
ground motion probabilities of 2, 5, and 10% in 50 years to provide a
relative range of seismic hazard across the country. The larger
probabilities indicate the level of ground motion likely to cause
problems in the western U.S. The smaller probabilities show how
unlikely damaging ground motions are in many places of the eastern U.S.
The maps are available at http://earthquake.usgs.gov/hazards/products/.
A 50 year time period is commonly used because it represents the
typical lifespan of a building, and a 2% probability level is generally
considered an acceptable hazard level for building codes. For areas
along known active faults, deterministic and scenario ground motion
maps could be used to describe the expected ground motions and effects
of specific hypothetical large earthquakes (see http://earthquake.usgs.gov/hazards/products/scenario/). The Agency solicits
comments on the proposed definition and whether there are variants like
those used to develop the national seismic hazard maps that could
lessen the burden on the industry and the geographic areas covered by
the proposed definition. For additional information on the National
Seismic Hazard Mapping Project, see http://earthquake.usgs.gov/hazards/about/.
Unstable Areas. EPA is proposing to require owners or operators of
all CCR landfills, surface impoundments and lateral expansions located
in unstable areas to demonstrate that the integrity of the structural
components of the unit will not be disrupted. EPA's damage cases have
provided indirect evidence of the kind of environmental and human
health risks that would be associated with failure of the structural
components of the surface impoundment from subsidence or other
instability of the earth at a CCR disposal unit. Accordingly, EPA
believes that, to provide a reasonable probability of preventing
releases and consequent damage to health and the environment from CCRs
released from landfills or surface impoundments, limits on the siting
of such disposal units is appropriate.
The proposed Subtitle D rule provides that ``unstable areas'' are
locations that are susceptible to natural or human-induced events or
forces capable of impairing the integrity of some or all of the CCR
disposal unit's structural components responsible for preventing
releases from such units. Unstable areas are characterized by localized
or regional ground subsidence, settling (either slowly, or very rapidly
and catastrophically) of overburden, or by slope failure. The owner or
operator must consider 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 (on both the surface and subsurface). The
structural components include liners, leachate collection systems,
final cover systems, run-on and run-off control systems, and any other
component used in the construction and operation of the CCR landfill,
surface impoundment or lateral expansion that is necessary for
protection of human health and the environment.
Unstable areas generally include:
(1) Poor foundation conditions--areas where features exist that may
result in inadequate foundation support for the structural components
of the CCR landfill, surface impoundment or lateral expansion (this
includes weak and unstable soils);
(2) Areas susceptible to mass movement--areas where the downslope
movement of soil and rock (either alone or mixed with water) occurs
under the influence of gravity; and
(3) Karst terraces--areas that are underlain by soluble bedrock,
generally limestone or dolomite, and may contain extensive subterranean
drainage systems and relatively large subsurface voids whose presence
can lead to the rapid development of sinkholes.
Karst areas are characterized by the presence of certain
physiographic features such as sinkholes, sinkhole plains, blind
valleys, solution valleys, losing streams, caves, and big springs,
although not all these features are always present. EPA's intent in
this proposed requirement is to include as an unstable area only those
karst terraces in which rapid subsidence and sinkhole development have
been a common occurrence in recent geologic time. Many of the karst
areas are shown on the U.S. Geological Survey's National Atlas map
entitled ``Engineering Aspects of Karst,'' published in 1984.
Specific examples of such natural or human-induced phenomena
include: Debris flows resulting from heavy rainfall in a small
watershed; the rapid formation of a sinkhole as a result of excessive
local or regional ground-water withdrawal; rockfalls along a cliff face
caused by vibrations set up by the detonation of explosives, sonic
booms, or other mechanisms; or the sudden liquefaction of a soil with
the attendant loss of shear strength following an extended period of
constant wetting and drying. Various naturally-occurring conditions can
make an area unstable and these can be very unpredictable and
destructive, especially if amplified by human-induced changes to the
environment. Such conditions can include the presence of weak soils,
over steepened slopes, large subsurface voids, or simply the presence
of large quantities of unconsolidated material near a watercourse.
The Agency recognizes that rapid sinkhole formation that occurs in
some karst terraces can pose a serious threat to human health and the
environment by damaging the structural integrity of dams, liners, caps,
run-on/run-off control systems, and other engineered structures.
However, EPA is not proposing an outright ban of CCR landfills and
surface impoundments in all karst terraces because of concerns
regarding the impacts of such a ban in certain regions of the country.
For example, several States (i.e., Kentucky, Tennessee) are comprised
mostly of karst terraces and banning all CCR disposal facilities in
karst terraces would cause severe statewide disruptions in capacity
available for CCR disposal. Moreover, the Agency believes that some
karst terraces may provide sufficient structural support for CCR
disposal units and has accordingly tried to provide flexibility for
siting in these areas. Therefore, EPA is proposing to allow the
construction of new CCR units, and the continued operation of
[[Page 35202]]
existing CCR landfills and surface impoundments in karst terraces where
the owner or operator can demonstrate that engineering measures have
been incorporated into the landfill, surface impoundment, or lateral
expansion design to ensure that the integrity of the structural
components of the landfill or surface impoundment will not be
disrupted. The demonstration must be certified by an independent
registered professional engineer, and the owner or operator must notify
the state that the demonstration has been placed in the operating
record and on the company's internet site.
Closure of Existing CCR Landfills and Surface Impoundments. The
proposed rule would require owners and operators of existing CCR
landfills and surface impoundments that cannot make the demonstrations
required under Sec. 257.62(a) after the effective date of the rule, to
close the landfill or surface impoundment within five years of the date
of publication of the final rule. Closure and post-closure care must be
done in accordance with Sec. 257.100 and Sec. 257.101. The proposed
rule would also allow for a case-by-case extension for up to two more
years if the facility can demonstrate that there is no alternative
disposal capacity and there is no immediate threat to health or the
environment. This demonstration must be certified by an independent
registered professional engineer or hydrologist. The owner or operator
must place the demonstration in the operating record and on the
company's internet site and notify the state that this action was
taken.
Thus, the proposed rule allows a maximum of 7 years from the
effective date of the final rule if this alternative is finally
promulgated for existing CCR landfills to comply with the unstable area
restrictions, and existing CCR surface impoundments to comply with the
location restrictions or to close. As discussed under the subtitle C
option, EPA believes that five years will, in most cases, be adequate
time to complete proper and effective facility closure and to arrange
for alternative waste management. However, there may be cases where
alternative waste management capacity may not be readily available or
where the siting and construction of a new facility may take longer
than five years. EPA believes the two-year extension should provide
sufficient time to address these potential problems. EPA continues to
believe that impacts on human health and the environment need to be
carefully considered, and therefore, today's proposed rule requires the
owner or operator to demonstrate that there is no available alternative
disposal capacity and there is no potential threat to human health and
the environment before adopting the two-year extension. These time
frames are consistent with those EPA is proposing under its subtitle C
co-proposal for surface impoundments. EPA is aware of no reason that
the time frames would need to differ under subtitle D, but solicits
comment on this issue.
5. Design Requirements
The CCR damage cases and EPA's quantitative groundwater risk
assessment clearly show the need for effective liners--namely composite
liners--to very significantly reduce the probability of adverse
effects. The co-proposed subtitle D design standards would require that
new landfills and all surface impoundments that have not completed
closure prior to the effective date of the rule, can only continue to
operate if composite liners and leachate collection and removal systems
have been installed. Units must be retrofitted or closed within five
years of the effective date of the final rule, which is the time frame
EPA is proposing for surface impoundments to retrofit or close under
the subtitle C alternative. EPA is proposing to require the same liner
and leachate collection and removal systems as part of the subtitle D
criteria that are being proposed under the RCRA subtitle C co-proposal.
The technical justification for these requirements is equally
applicable to the wastes and the units, irrespective of the statutory
authority under which the requirement is proposed.
EPA is also proposing to adopt the same approach to new and
existing units under RCRA subtitle D that it is proposing under RCRA
subtitle C. EPA would only require new landfills (or new portions of
existing landfills) to meet these minimum technology requirements for
liners and leachate collection and removal systems. Existing landfills
that continue to receive CCRs after the effective date of the final
rule, would not be required to be retrofitted with a new minimum-
technology liner/leachate collection and removal system (or to close).
They can continue to receive CCRs, and continue to operate as compliant
landfills, without violating the open dumping prohibition. However,
existing landfills would have to meet groundwater monitoring,
corrective action, and other requirements (except as noted) of the
subtitle D criteria, to assure that any groundwater releases from the
unit were identified and promptly remediated. EPA sees no reason or
special argument to adopt any different approach under the co-proposed
subtitle D regulations for CCR landfills, particularly given the volume
of the material and the disruption that would be involved if these
design requirements were applied to existing landfills.
By contrast, existing surface impoundments that have not completed
closure by the effective date of the final rule would be required to
retrofit to install a liner. This is consistent with, but not identical
to, the approach proposed under the RCRA subtitle C alternative. Under
the subtitle C alternative, EPA is not proposing to require existing
surface impoundments to install the proposed liner systems because the
impoundments would only continue to operate for a limited period of
time. EPA's proposed treatment standards--dewatering the wastes--will
effectively phase out wet handling of CCRs. During this interim period
(seven years as proposed), EPA believes that it would be infeasible to
require surface impoundments to retrofit, and that compliance with the
groundwater monitoring and other subtitle C requirements would be
sufficiently protective. EPA lacks the authority under RCRA subtitle D
to establish a comparable requirement; EPA only has the authority under
RCRA section 4004 to establish standards relating to ``disposal,'' not
treatment, of solid wastes. Although EPA expects that many surface
impoundments will choose to close rather than install a liner, wet-
handling of CCRs can continue, even in existing units, and EPA's risk
assessment confirms that the long-term operation of such units would
not be protective without the installation of the composite liner and
leachate collection system described below.
The composite liner would consist of two components: An upper
component consisting of a minimum 30-mil flexible membrane liner (FML),
and a lower component consisting of at least a two-foot layer of
compacted soil with a hydraulic conductivity of no more than
1x10-7cm/sec. The FML component would be required to be
installed in direct and uniform contact with the compacted soil
component. (In other words, the new landfill or new surface impoundment
would be required to have a liner and leachate collection and removal
system meeting the same design standard now included in EPA's municipal
solid waste landfill criteria.) EPA solicits comment, however, on
whether any subtitle D option should allow facilities to use an
alternative design for new disposal units, so long as the owner or
operator of a unit could obtain certification from an independent
[[Page 35203]]
registered professional engineer or hydrologist that the alternative
design would ensure that the appropriate concentration values for a set
of constituents typical of CCRs will not be exceeded in the uppermost
aquifer at the relevant point of compliance--i.e., 150 meters from the
unit boundary down gradient from the unit, or the property boundary if
the point of compliance (i.e., the monitoring well) is beyond the
property boundary. Although the existing part 258 requirements allow
for such a demonstration, EPA is not proposing such a requirement in
today's rule. EPA's risk assessment shows that only a composite liner
would ensure that disposal of CCR will meet the RCRA section 4004
standard on a national level, even though site specific conditions
could support the use of alternate liner designs in individual
instances. In the absence of a strong state oversight mechanism, such
as a permit, EPA is reluctant to allow facilities to modify this key
protection. Nevertheless, EPA would be interested in receiving data and
information that demonstrates whether under other site conditions, an
alternative liner would be equally protective. In this regard, EPA
would also be interested in information documenting the extent to which
such conditions currently exist at CCR units. If EPA adopts such a
performance standard, EPA anticipates adopting a requirement that is as
consistent as possible with the existing part 258 requirements, and
would require the same documentation and notification procedures as
with the other self-implementing provisions in the co-proposed subtitle
D option.
--Stability requirements for surface impoundments. In our recent
assessment of surface impoundments managing CCRs, EPA has identified
deficiencies in units currently receiving wet-handled CCRs.\152\ The
damage cases also demonstrate the need for requirements to address the
stability of surface impoundments, to prevent the damages associated
with a catastrophic failure, such as occurred at the TVA facility in
2008. EPA is therefore proposing to adopt as part of the subtitle D
operating criteria for surface impoundments, the same stability
requirements that are proposed as part of the subtitle C alternative.
As explained in that section, these are based on the long-standing MSHA
requirements, with only minor modifications necessary to tailor the
requirements to CCR unit conditions.
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\152\ For the findings of the assessment, see: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/index.htm#surveyresults.
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For those surface impoundments which continue to operate, (i.e.,
both new and existing) the proposed regulation would require that an
independent registered professional engineer certify that the design of
the impoundment is in accordance with recognized and generally accepted
good engineering practices for the maximum volume of CCR slurry and
wastewater that will be impounded therein, and that together design and
management features ensure dam stability. The proposed regulation also
requires the facility to conduct weekly inspections to ensure that any
potentially hazardous condition or structural weakness will be quickly
identified. As with the co-proposed RCRA subtitle C option, the
proposed RCRA subtitle D regulation also requires that existing and new
CCR surface impoundments be inspected annually by an independent
registered professional engineer to assure that the design, operation,
and maintenance of the surface impoundment is in accordance with
current, prudent engineering practices for the maximum volume of CCR
slurry and CCR waste water which can be impounded. EPA has concluded,
subject to consideration of public comment, that these requirements are
necessary to ensure that major releases do not occur that would cause
adverse effects on health or the environment.
6. Operating Requirements
EPA is proposing to establish specific criteria to address the day-
to-day operations of the CCR landfill or surface impoundment. The
criteria were developed to prevent the health and environmental impacts
from CCR landfills and surface impoundments identified in EPA's
quantitative risk groundwater risk assessment and the damage cases.
Included among these criteria are controls relating to runon and runoff
from the surface of the facilities, discharges to surface waters, and
pollution caused by windblown dust from landfills, and recordkeeping.
--Existing criteria for Endangered Species and Surface Water. CCR
landfills and surface impoundments are currently subject to the open
dumping criteria contained in 40 CFR 257, Subpart A. These minimum
criteria include restrictions on impacts to endangered species under
257.3-2, and impacts to surface water under 257.3-3. As facilities
should already be complying with these requirements, EPA is not
proposing to modify these existing requirements in today's co-proposal.
EPA notes that the surface water criterion is not enforceable by RCRA
citizen suit. The extent to which this criterion may be enforced is
governed by the remedies available under the CWA, which is the source
of the requirement, rather than RCRA. See, e.g., Arc Ecology v. U.S.
Maritime Admin., No. 02:07-cv-2320 (E.D. Cal. Jan. 21, 2010);
Guidelines for the Development and Implementation of State Solid Waste
Management Plans and Criteria for Classification of Solid Waste
Disposal Facilities and Practices, 46 Fed. Reg. 47048, 47050 (Sept. 23,
1981).
--Run-on and run-off controls. The purpose of the run-on standard
is to minimize the amount of surface water entering the landfill and
surface impoundment facility. Run-on controls prevent (1) Erosion,
which may damage the physical structure of the landfill; (2) the
surface discharge of wastes in solution or suspension; and (3) the
downward percolation of run-on through wastes, creating leachate. The
proposed regulation requires run-on control systems to prevent flow
onto the active portion of the CCR landfill or surface impoundment
during the peak discharge from a 24-hour, 25-year storm. This helps to
ensure that run-off does not cause an overflow of the surface
impoundment or scouring of material from a landfill or the materials
used to build the surface impoundment.
Run-off is one of the major sources of hazardous constituent
releases from mismanaged waste disposal facilities, including CCR
landfills and surface impoundments. Additionally, run-off control
systems from the active portion of CCR disposal units are required to
collect and control at least the water volume resulting from a 24-hour,
25-year storm. This protects surface water that would otherwise flow
untreated into a body of water. The facility is required to prepare a
report, available to the public, documenting how relevant calculations
were made, and how the control systems meet the standard. A registered
professional engineer must certify that the design of the control
systems meet the standard. Also, the owner or operator is required to
prepare a report, certified by an independent registered professional
engineer, and documenting how relevant calculations were made, and how
the control systems meet the standard. The state must be notified that
the report was placed in the operating record for the site, and the
owner or operator must make it available to the public on the owner's
or operator's internet site. Under the existing part 257 requirements,
to which CCR units are currently subject, runoff must not cause
[[Page 35204]]
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
is not proposing to revise the existing requirement, but is merely
incorporating it here for ease of the regulated community.
The Agency chose the 24-hour period because it is an average that
includes storms of high intensity with short duration and storms of low
intensity with long duration. EPA believes that this is a widely used
standard, and is also the current standard used for hazardous waste
landfills and municipal solid waste landfill units under 40 CFR Part
258. EPA has no information that warrants a more restrictive standard
for CCR landfills and surface impoundments than for MSWLFs and
hazardous waste landfills.
Fugitive dust requirements. EPA has included under the co-proposed
RCRA subtitle D regulation requirements similar to those included under
the Subtitle C co-proposal, based upon its risk assessment findings
that fugitive dust control at 35 [micro]g/m3 or less is protective of
human health or the environment. This is discussed in section VI above.
Due to the lack of a permitting oversight mechanism under the RCRA
Subtitle D alternative, and to facilitate citizen-suit enforcement of
the criteria, EPA has provided for certification by an independent
registered professional engineer, notification to the state that the
documentation has been placed in the operating record, and provisions
making available to the public on the owner's or operator's internet
site documentation of the measures taken to comply with the fugitive
dust requirements.
Recordkeeping requirements. EPA believes that it is appropriate for
interested states and citizens to be able to access all of the
information required by the proposed rule in one place. Therefore, the
co-proposed Subtitle D alternative requires the owner or operator of a
CCR landfill or surface impoundment to record and retain near the
facility in an operating record which contains all records, reports,
studies or other documentation required to demonstrate compliance with
Sec. Sec. 257.60 through 257.83 (relating to the location
restrictions, design criteria, and operating criteria) and 257.90
through 257.101 (relating to ground water monitoring and corrective
action, and closure and post-closure care).
The proposed rule would also require owners and operators of CCR
surface impoundments that have not been closed in accordance with the
closure criteria to place in the operating record a report containing
several items of information. The reports would be required beginning
every twelfth months after existing CCR surface impoundments would be
required to comply with the design requirements in section 257.71 (that
is, no later than seven years after the effective date of the final
rule) and every twelfth month following the date of the initial plan
for the design, construction, and maintenance of new surface
impoundments and lateral expansions required under Sec. 257.72(b)) to
address:
(1) Changes in the geometry of the impounding structure for the
reporting period;
(2) Location and type of installed instruments and the maximum and
minimum recorded readings of each instrument for the reporting period;
(3) The minimum, maximum, and present depth and elevation of the
impounded water, sediment, or slurry for the reporting period;
(4) Storage capacity of the impounding structure;
(5) The volume of the impounded water, sediment, or slurry at the
end of the reporting period;
(6) Any other change which may have affected the stability or
operation of the impounding structure that has occurred during the
reporting period; and
(7) A certification by an independent registered professional
engineer that all construction, operation, and maintenance were in
accordance with the plan. The owner or operator would be required to
notify the state that the report has been placed in the operating
record and on the owner's or operator's internet site.
These reporting requirements are similar to those required under
MSHA regulations for coal slurry impoundments (30 CFR 77.216-4). As the
Agency has stated previously, MSHA has nearly 40 years of experience
writing regulations and inspecting dams associated with coal mining,
which is directly relevant to the issues presented by CCRs in this
proposal. In our review of the MSHA regulations, we found them to be
comprehensive and directly applicable to and appropriate for the dams
used in surface impoundments at coal-fired utilities to manage CCRs.
The proposed rule would also allow the owner or operator to submit
a certification by an independent registered professional engineer that
there have been no changes to the information in items (1)-(6) above to
the surface impoundment instead of a full report, although a full
report would be required at least every 5 years.
7. Groundwater Monitoring/Corrective Action
EPA's damage cases and risk assessments all indicate the potential
for CCR landfills and surface impoundments to leach hazardous
constituents into groundwater, impairing drinking water supplies and
causing adverse impacts on human health and the environment. Indeed,
groundwater contamination is one of the key environmental risks EPA has
identified with CCR landfills and surface impoundments. Furthermore, as
mentioned previously, the legislative history of RCRA section 4004
specifically evidences concerns over groundwater contamination from
open dumps. To this end, 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, EPA believes that, in order for a CCR landfill or
surface impoundment to show no reasonable probability of adverse
effects on health or the environment, a system of routine groundwater
monitoring to detect any such contamination from a disposal unit, and
corrective action requirements to address identified contamination, is
necessary.
Today's co-proposed subtitle D criteria require a system of
monitoring wells be installed at new and existing CCR landfills and
surface impoundments. The co-proposed criteria 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 facilities. The Agency is
proposing a groundwater monitoring program consisting of detection
monitoring, assessment monitoring, and a corrective action program.
This phased approach to groundwater monitoring and corrective action
programs provide 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 ground water, while protecting
human health and the environment, and minimizing unnecessary costs.
In EPA's view, the objectives of a groundwater monitoring and
corrective action regime and analytical techniques for evaluating the
quality of groundwater are similar regardless of the particular wastes
in a disposal unit, and regardless of whether the unit is a
[[Page 35205]]
landfill or surface impoundment. Therefore, EPA has largely modeled the
proposed groundwater monitoring and corrective action requirements for
CCR landfills and surface impoundments after those for MSWLFs in the 40
CFR part 258 criteria, and for disposal units that may receive
conditionally-exempt small quantity generator (CESQG) hazardous waste
under 40 CFR part 257, subpart B. EPA believes that the underlying
rationale for those requirements is generally applicable to groundwater
monitoring and corrective action for CCR landfills and surface
impoundments. Accordingly, EPA does not discuss these requirements at
length in today's preamble. Rather, EPA refers the reader to the
detailed discussions of these requirements in the preambles to the
final and proposed rules for the MSWLF criteria for more
information.\153\ See Solid Waste Disposal Facility Criteria, 56 Fed.
Reg. 50978 (Oct. 9, 1991) (final rule); Solid Waste Disposal Facility
Criteria, 53 Fed. Reg. 33314 (Aug. 30, 1988) (proposed rule).
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\153\ The preambles to the CESQG rules have more limited
discussions of these requirements. See Criteria for Classification
of Solid Waste Disposal Facilities and Practices; Identification and
Listing of Hazardous Waste; Requirements for Authorization of State
Hazardous Waste Programs, 61 FR 34252, 34259-61 (July 1, 1996)
(final rule); Criteria for Classification of Solid Waste Disposal
Facilities and Practices; Identification and Listing of Hazardous
Waste; Requirements for Authorization of State Hazardous Waste
Programs, 60 FR 30964, 30975-77 (June 12, 1995) (proposed rule).
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However, for a number of the requirements, EPA is proposing to
modify or revise these requirements. Below, EPA discusses the
particular areas where the Agency is proposing to make modifications,
and solicits comment on those specific differences. EPA, more
generally, solicits comment on whether relying on the existing
groundwater monitoring and corrective action requirements for MSWLFs
and CESQG facilities, as modified in today's proposal, are appropriate
for CCR landfills and surface impoundments.
Relying on the existing criteria in 40 CFR 258 and 257 Subpart B
has several advantages. Specifically, like the co-proposed Subtitle D
regulations for CCR disposal, these requirements are structured to be
largely self-implementing. In addition, states and citizens should
already be familiar with those processes, which have been in place
since 1991, and EPA expects that this familiarity with the processes
may facilitate the states' creation of regulatory programs for CCR
disposal facilities under state law, to the extent they do not already
exist, and thus providing oversight (which EPA believes is important in
implementing these rules) that is already found through MSWLFs and
CESQG landfill permitting programs. Furthermore, familiarity with the
overall approach may facilitate the states' and citizens' oversight of
CCR disposal activities through the citizen suit mechanism, which is
available, regardless of whether a state has adopted a regulatory
program under state law for CCR disposal facilities.
At the same time, however, EPA is mindful of the differences in the
statutory authorities for establishing criteria for CCR landfills and
surface impoundments versus MSWLFs and CESQG facilities, and in
particular, the possibility that a state may lack a permit program for
CCR disposal units. Accordingly, EPA has sought to tailor these
proposed requirements in the CCR disposal context, in particular by
including in several of the proposed requirements a certification by an
independent registered professional engineer or, in some cases,
hydrologist, in lieu of the state approval mechanisms that are used in
the 40 CFR part 258/257, Subpart B criteria. Such certifications are
found in proposed Sec. Sec. 257.95(h) (establishment of an alternative
groundwater protection standard for constituents for which MCLs have
not been established); and 257.97(e) (determination that remediation of
a release of an Appendix IV constituent from a CCR landfill or surface
impoundment is not necessary). As discussed earlier in this preamble,
EPA believes that this provides an important independent validation of
the particular route chosen. EPA solicits comment in particular on the
appropriateness of relying on such a mechanism under the proposed
groundwater monitoring and corrective action criteria.
In other instances, however, EPA has decided not to propose to
allow facilities to operate under an alternative standard, such as the
existing provisions under 257.21(g) and 258.50(h) (establishing
alternative schedules for groundwater monitoring and corrective
action); and 258.54(a)(1) and (2), and 257.24(a)(1) and (2), which
allow the Director of an approved State to delete monitoring
parameters, and establish an alternative list of indicator parameters,
under specified circumstances. EPA is proposing not to adopt these
alternatives for CCR disposal facilities because groundwater monitoring
is the single most critical set of protective measures on which EPA is
relying to protect human health and the environment. EPA is not
proposing to require existing landfills to retrofit to install a
composite liner. Since these units will continue to operate in the
absence of a composite liner, groundwater monitoring is the primary
means to prevent groundwater contamination. Although EPA is proposing
to require existing surface impoundments to retrofit with composite
liners, these units are more susceptible to leaking, and thus the need
for a rigorous groundwater monitoring program is correspondingly high.
Moreover, EPA is concerned that provisions allowing such modification
of these requirements are particularly susceptible to abuse, since such
provisions would allow substantial cost avoidance. Therefore, in the
absence of a state oversight mechanism in place to ensure such
modifications are technically appropriate, such a provision may operate
at the expense of protectiveness. In addition, given the extremely
technical nature of these requirements, EPA is concerned that such
provisions would render the requirements appreciably more difficult for
citizens to effectively enforce. In some instances, including these
alternative standards would not be workable. For example, establishing
alternative schedules under the groundwater monitoring and corrective
action provisions (as currently provided under 257.21(g) and 258.50(h))
the Agency believes would not be workable in the context of a self-
implementing rule, because there is no regulatory entity to judge the
reasonableness of the desired alternatives. The Agency thus solicits
comments on these omissions from today's proposed rule, and also on
whether a more prescriptive approach could or should be developed under
subtitle D of RCRA. EPA also solicits comment on whether the
requirement for certification by an independent professional engineer
would be effective or appropriate in such a case.
Applicability. The co-proposed subtitle D criteria require
facilities to install a groundwater monitoring system at existing
landfills and surface impoundments within one year of the effective
date of the regulation so that any releases from these units will be
detected, thus providing an opportunity to detect and, if necessary,
take corrective action to address any releases from the facilities. The
proposed rule also provides that new CCR landfills and surface
impoundments comply with the groundwater monitoring requirements in the
rule before CCRs can be placed in the units. EPA expects that the one-
year timeframe for existing units is a reasonable time for facilities
to install the necessary systems. This is the same time frame provided
to
[[Page 35206]]
facilities under the existing part 265 interim status regulations, and
past experience demonstrates this implementation schedule would
generally be feasible. Although one year for the installation of
groundwater monitoring is a shorter time frame than EPA provided to
facilities as part of the original part 258 or part 257 subpart A
requirements, there are good reasons to establish a shorter time frame
here. As discussed in section IV, many of the existing units into which
much of the CCR is currently disposed are unlined, and they are aging.
Under these circumstances, EPA believes that installation of
groundwater monitoring is critical to ensure that releases from these
units are detected and addressed appropriately. Moreover, EPA offered a
longer implementation period in 1991 based on a factual finding that a
shortage of drilling contractors existed; in the 1995 rule establishing
groundwater monitoring requirements for CESQG facilities, EPA
determined that this shortage had ended. EPA is aware of no information
to suggest that a similar shortage exists today, but specifically
solicits comment on this issue.
EPA has not included provisions for suspension of ground water
monitoring that is currently allowed under 257.21(b) and 258.50(b).
This is one of those provisions discussed above, that EPA believes are
potentially, particularly susceptible to abuse, and EPA is reluctant to
adopt a comparable provision in the absence of an approved state permit
program. In addition, since these proposed criteria are designed to be
applied even in the absence of state action, EPA has not included
provisions for state establishment of a compliance schedule under
257.21(d) and 258.50(d). EPA solicits comment on whether these types of
provisions are appropriate for CCR landfills and surface impoundments.
Section 257.90 also requires that the owner or operator of the CCR
landfill or surface impoundment must notify the state once each year
throughout the active life and post-closure care period that such
landfill or surface impoundment is in compliance with the groundwater
monitoring and corrective action provisions of this subpart. This
notification must also be placed on the owner or operator's internet
site. EPA believes that annual notification will facilitate state
oversight of the groundwater monitoring and corrective action
provisions.
Groundwater monitoring systems. The co-proposed subtitle D criteria
require facilities to install, at a minimum, one up gradient and three
down gradient wells at all CCR units. EPA is proposing this requirement
based on the subtitle C interim status self-implementing requirements.
The design of an appropriate groundwater monitoring system is
particularly dependent on site conditions relating to groundwater flow,
and the development of a system must have a sufficient number of wells,
installed at appropriate locations and depths, to yield groundwater
samples from the uppermost aquifer that represents the quality of
background groundwater that has not been affected by contaminants from
CCR landfills or surface impoundments. EPA's existing requirements
under parts 257, Subpart B, 258, and 264 all recognize this, and
because they operate in a permitting context, these requirements do not
generally establish inflexible minimum requirements. Because the same
guarantee of permit oversight is not available under the criteria
developed for this proposal, EPA believes that establishing a minimum
requirement is necessary. Past 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. Moreover, in many instances a more detailed groundwater
monitoring system may need to be in place, and EPA is therefore
requiring a certification by the independent registered professional
engineer or hydrologist that the groundwater monitoring system is
designed to detect all significant groundwater contamination.
Groundwater sampling and analysis requirements. Owners and
operators need to ensure that consistent sampling and analysis
procedures are in place to determine whether a statistically
significant increase in the level of a hazardous constituent has
occurred, indicating the possibility of groundwater contamination. The
co-proposed subtitle D criteria would require the same provisions
addressing groundwater sampling and analysis procedures with those
already in use for CESQG and MSWLF facilities, since generally the same
constituents and analysis procedures would be appropriate in both
instances. However, EPA is requesting comment on one issue in
particular. In the final MSWLF criteria, EPA noted that in order to
ensure protection of human health and the environment at MSWLFs, it was
important to make sure that the right test methodology from among those
listed in this section was selected for the conditions present at a
particular MSWLF. At the time, EPA indicated its expectation that as
states gained program approval, they would take on the responsibility
of approving alternate statistical tests proposed by the facilities.
See 56 Fed. Reg. 51071. Because states may choose not to create a
regulatory oversight mechanism under the co-proposed subtitle D rule
for CCR landfills and surface impoundments, however, EPA is requesting
comment on whether the lack of such an oversight mechanism will impair
selection of appropriate test methodologies, and whether EPA should
instead adopt a different approach to ensure the protection of human
health and the environment at CCR disposal facilities. For example, one
approach might be for EPA to tailor a list of methodologies to
particular site conditions. EPA would welcome suggestions from
commenters on alternative approaches to this issue.
Detection monitoring program. The parameters to be used as
indicators of groundwater contamination are the following: boron,
chloride, conductivity, fluoride, pH, sulphate, sulfide, and total
dissolved solids (TDS). In selecting the parameters for detection
monitoring, EPA selected constituents that are present in CCRs, and
would rapidly move through the subsurface and thus provide an early
detection as to whether contaminants were migrating from the disposal
unit. EPA specifically solicits comment on the appropriateness of this
list of parameters.
In this provision of the proposed RCRA subtitle D co-proposed rule,
EPA has decided not to include provisions parallel to 258.54(a)(1) and
(2), and 257.24(a)(1) and (2) which allow the Director of an approved
State to delete monitoring parameters, and establish an alternative
list of indicator parameters, under specified circumstances. EPA is not
including these provisions because it believes that a set of specified
parameters are necessary to ensure adequate protectiveness, since EPA's
information on CCRs indicates that their composition would not be
expected to vary such that the parameters are inappropriate. Under the
proposed rule, monitoring would be required no less frequently than
semi-annually. EPA has again decided not to include a provision that
would allow an alternative sampling frequency, because of the lack of
guaranteed state oversight and potential for this provision to diminish
protection of human health and the environment, as mentioned in the
introductory discussions above. EPA solicits comments on whether it
should allow deletion of monitoring parameters and alternative sampling
frequencies, based on compliance with a performance standard that has
been
[[Page 35207]]
documented by an independent registered professional engineer or
hydrologist. Commenters interested in supporting such an option are
encouraged to provide data to demonstrate the conditions under which
such alternatives would be protective, as well as information to
indicate the prevalence of such conditions at CCR facilities.
Assessment monitoring program. When a statistically significant
increase over background levels is detected for any of the monitored
constituents, the rule would require the facility to begin an
assessment monitoring program to detect releases of CCR constituents of
concern including aluminum, antimony, arsenic, barium, beryllium,
boron, cadmium, chloride, chromium, copper, fluoride, iron, lead,
manganese, mercury, molybdenum, pH, selenium, sulphate, sulfide,
thallium, and total dissolved solids.
EPA specifically solicits comment on the appropriateness of this
list of parameters. For the same reasons as discussed under the
proposed requirements for detection monitoring, EPA has chosen not to
include in the proposed requirements for assessment monitoring
provisions for allowing a subset of wells to be sampled, the deletion
of assessment monitoring parameters, or alternative sampling
frequencies. EPA again solicits comment on whether these options are
appropriate for CCR landfills and surface impoundments.
Assessment of corrective measures. The proposed rule also requires
that whenever monitoring results indicate a statistically significant
level of any appendix IV constituent exceeding the groundwater
protection standard, the owner or operator must initiate an assessment
of corrective action remedies. Unlike for the MSWLF and CESQG criteria,
the proposed rule provides a discrete time frame for completion of the
assessment, at 90 days, while the earlier criteria provided for its
completion within a ``reasonable period of time.'' EPA believes that
without a state oversight mechanism, a finite time frame is
appropriate. EPA selected 90 days as the period over which the
assessment must be completed because it expects that this will be a
sufficient length of time to complete the required activities. EPA
solicits comment on the appropriateness of the 90-day timeframe.
Selection of Remedy. The proposed rule establishes a framework for
remedy selection based upon the existing requirements for MSWLFs and
CESQG facilities. These provisions have been modified to eliminate
consideration of ``practicable capabilities'' where such considerations
have been included in the MSWLF and CESQG criteria. EPA believes that
it does not have the discretion to include this consideration under the
RCRA subtitle D co-proposal, because this consideration is explicitly
required under the terms of RCRA section 4010. That section by its
terms applies to facilities that may receive household hazardous wastes
and CESQG wastes, and so is inapplicable to today's co-proposed
standards for CCR landfills and surface impoundments. See 42 U.S.C.
6949a(c)(1). EPA solicits comment on these modifications, specifically,
on how this modification may affect the ability of the regulated
community to comply with the proposed criteria, and on how this
modification may affect the protectiveness of the proposed standards
for human health and the environment.
In the provisions discussing factors to be considered in
determining whether interim measures are necessary, EPA has modified
proposed 257.98(a)(3)(vi), to eliminate consideration of risks of fire
or explosion, since EPA does not expect that these risks would be
relevant to the disposal of CCRs in CCR landfills and surface
impoundments.
Implementation of the corrective action remedy. The co-proposed
subtitle D criteria require that the owner or operator comply with
several requirements to implement the corrective action program, again
modeled after the existing requirements for MSWLFs and CESQG
facilities. Similar to proposed section 257.97, these provisions have
been made consistent with the underlying statutory authorities for this
proposed rule. See discussions above.
In these provisions, EPA has decided not to include a provision
that is included in the MSWLF criteria in 258.58(e)(2) and
257.28(e)(2), allowing an alternative length of time during which the
owner or operator must demonstrate that concentrations of constituents
have not exceeded the ground water protection standards, in support of
a determination that the remedy is complete. See proposed 257.98(e)(2).
Instead, the proposed rule would require a set period of three
consecutive years. EPA solicits comment on whether to allow for a
different period of time. EPA is particularly concerned with whether
such a provision would provide protection to human health or the
environment because of the lack of a guaranteed state oversight
mechanism.
8. Closure and Post-Closure Care
Effective closure and post-closure care requirements, such as
requirements to drain the surface impoundment, are essential to
ensuring the long-term safety of disposal units. Closure requirements,
such as placing the cover system on the disposal unit, ensure that
rainfall is diverted from the landfill or surface impoundment,
minimizing any leaching that might occur based on the hydraulic head
placed on the material in the unit. EPA's Guide for Industrial Waste
Management, prepared in consultation with industry experts, a Tribal
representative, state officials, and environmental groups, documents
the general consensus on the need for effective closure and post-
closure requirements.\154\ Post-closure care requirements are also
particularly important for CCR units because the time to peak
concentrations for selenium and arsenic, two of the more problematic
constituents contained in CCR wastes, is particularly long, and
therefore the peak concentrations in groundwater may not occur during
the active life of the unit. Continued groundwater monitoring is
therefore necessary during the post-closure care period to ensure the
continued integrity of the unit and the safety of human health and the
receiving environment. For these provisions, then, EPA has again
modeled its proposed requirements for CCR landfills on those already in
place for MSWLFs with modifications to reflect the lack of a mandatory
permitting mechanism, and other changes that it believes are
appropriate to ensure that there is no reasonable probability of
adverse effects from the wastes that remain after a unit has closed.
For surface impoundments, EPA has modeled its proposed requirements on
the part 265 interim status closure requirements for surface
impoundments, as well as the MSHA requirements. EPA solicits comment on
whether these proposed requirements are appropriate for CCR landfills
and surface impoundments.
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\154\ Guide for Industrial Waste Management, available at http://www.epa.gov/epawaste/nonhaz/industrial/guide/index.htm.
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Requirements specific to closure of CCR landfills and surface
impoundments include proposed 257.100(a)-(c). These provisions provide
that prior to closure of any CCR unit, the owner or operator must
develop a plan describing the closure of the unit, and a schedule for
implementation. The plan must describe the steps necessary to close the
CCR landfill or surface impoundment at any point during the active life
in
[[Page 35208]]
accordance with the requirements in paragraphs (c) and (d) or (e) of
this section, as applicable, and based on recognized and generally
accepted good engineering practices. EPA is proposing to define
recognized and generally accepted good engineering practices in the
same manner as it is proposing under the subtitle C alternative. The
definition references but does not attempt to codify any particular set
of engineering practices, but to allow the professional engineer
latitude in adopting improved practices that reflect the state-of-the
art practices, as they develop over time. The plan must be certified by
an independent registered professional engineer. In addition, the owner
or operator must notify the state that a plan has been placed in the
operating record and on the owner's or operator's publically accessible
Internet site.
These provisions are modeled after the closure plan requirements in
258.60(c). Of note here is that, while EPA rejected a certification
requirement for MSWLF closure plans, EPA is proposing to require one
here to increase the ability of citizens to effectively enforce the
rules. In the MSWLF rule, EPA rejected a certification requirement
because ``it will be relatively easy to verify that the plan meets the
requirements,'' due to the specific design criteria specified in the
rule. However, this was in the context of a state program, where EPA
could assure that states would play an active role in overseeing and
enforcing the facility's implementation of the requirements.
EPA is also proposing that the closure plan provide, at a minimum,
the information necessary to allow citizens and states to determine
whether the facility's closure plan is reasonable. This includes an
estimate of the largest area of the CCR unit ever requiring a final
cover during the active life of the unit, and an estimate of the
maximum inventory of CCRs ever on-site during the active life of the
unit.
Proposed 257.100(b) of the rule allows closure of a CCR landfill or
surface impoundment with CCRs in place or through CCR removal and
decontamination of all areas affected by releases from the landfill or
surface impoundment. Proposed paragraph (c) provides that CCR removal
and decontamination are complete when constituent concentrations
throughout the CCR landfill or surface impoundment and any areas
affected by releases from the CCR landfill or surface impoundment do
not exceed the numeric cleanup levels for those CCR constituents, to
the extent that the state has established such clean up levels in which
the CCR landfill or surface impoundment is located. These ``clean-
closure'' provisions are modeled after EPA's ``Guide for Industrial
Waste Management,'' found at http://www.epa.gov/epawaste/nonhaz/industrial/guide/chap11s.htm. As previously noted, the Guide represents
a consensus view of best practices for industrial waste management,
based on involvement from EPA, and state and tribal representatives, as
well as a focus group of industry and public interest stakeholders
chartered under the Federal Advisory Committee Act. EPA has included
this provision to allow some flexibility in the self-implementing
scheme for facilities in their closure options, while providing
protection for health and the environment under either option. Although
EPA anticipates that facilities will mostly likely not clean close
their units, given the expense and difficulty of such an operation, EPA
believes that they are generally preferable from the standpoint of land
re-use and redevelopment, and so wishes explicitly to allow for such
action in the proposed subtitle D rule. EPA is also considering whether
to adopt a further incentive for clean closure, under which the owner
or operator of the CCR landfill or surface impoundment could remove the
deed notation required under proposed 257.100(m), if all CCRs are
removed from the facility, and notification is provided to the state.
In the absence of state cleanup levels, metals should be removed to
either statistically equivalent background levels, or to maximum
contaminant levels (MCLs), or health-based numbers. One tool that can
be used to help evaluate whether waste removal is appropriate at the
site is the risk-based corrective action process (RBCA) using
recognized and generally accepted good engineering practices such as
the ASTM Ec0-RBCA process. EPA solicits comment on the appropriateness
of this provision under a RCRA subtitle D rule, and information on the
number of facilities that may take advantage of a clean-closure option.
For closure of surface impoundments with CCRs in place, EPA has
developed substantive requirements modeled on a combination of the
existing 40 CFR part 265 interim status requirements for surface
impoundments, and the long-standing MSHA standards. At closure, the
owner or operator of a surface impoundment would be required to either
drain the unit, or solidify the remaining wastes. EPA is also proposing
to require that the wastes be stabilized to a bearing capacity
sufficient to support the final cover. The proposed criteria further
require that, in addition to the technical cover design requirements
applicable to landfills, any final cover on a surface impoundment would
have to meet requirements designed to address the nature of the large
volumes of remaining wastes. Specifically, EPA is proposing that the
cover be designed to minimize, over the long-term, the migration of
liquids through the closed impoundment; promote drainage; and
accommodate settling and subsidence so that the cover's integrity is
maintained. Finally, closure of the unit is also subject to the general
performance standard that the probability of future impoundment of
water, sediment, or slurry is precluded. This general performance
standard is based on the MSHA regulations, and is designed to ensure
the long-term safety of the surface impoundment.
The proposed RCRA subtitle D regulation requires that CCR landfills
and surface impoundments have a final cover system designed and
constructed to have a permeability less than or equal to the
permeability of any bottom liner system or natural subsoils present, or
a permeability no greater than 1 x 10-5 cm/sec, whichever is
less; it also requires an infiltration layer that contains a minimum of
18 inches of earthen material. The regulation also requires an erosion
layer that contains a minimum of 6 inches of earthen material that is
capable of sustaining native plant growth as a way to minimize erosion
of the final cover. These requirements are generally modeled after the
performance standard and technical requirements contained in the
existing RCRA subtitle D rules for MSWLFs, in 258.60. EPA is also
proposing, however a fourth requirement not found in those criteria
modeled after the interim status closure requirements of
265.228(a)(iii)(D) that accounts for the conditions found in surface
impoundments. Specifically, EPA is proposing that the final cover be
designed to minimize the disruption of the final cover through a design
that accommodates settling and subsidence. EPA believes that these
requirements strike a reasonable balance between the costs of a
protective final cover, and avoiding risks to health and the
environment from the remaining wastes at the CCR landfill or surface
impoundment. The regulation requires certification by an independent
registered professional engineer that these standards were met. The
design of the final cover system, including the certification, must be
placed in the operating record and on the owner's or
[[Page 35209]]
operator's Internet site. Based on the MSHA standards, EPA is also
proposing that unit closure must provide for major slope stability to
prevent the sloughing of the landfill over the long term.
Alternatively, the rule allows the owner or operator of the CCR
landfill or surface impoundment to select an alternative final cover
design, provided the alternative cover design is certified by an
independent registered professional engineer and notification is
provided to the state that the alternative cover design has been placed
in the operating record and on the owner's or operator's Internet site.
The alternative final cover design must include a infiltration layer
that achieves an equivalent reduction in infiltration, and an erosion
layer that provides equivalent protection from wind and water erosion,
as the infiltration and erosion layers specified in the technical
standards in paragraph (d). Under this alternative, EPA expects that
evapo-transpiration covers may be an effective alternative, which are
not appropriately evaluated based on permeability alone. For example,
an independent registered professional engineer might certify an
alternative cover design that prevents the same level of infiltration
as the system described above (i.e., no greater than 1 x
10-5 cm/sec, etc), based on: (1) hydrologic modeling and
lysimetry or instrumentation using a field scale test section, or (2)
Hydrologic modeling and comparison of the soil and climatic conditions
at the site with the soil and climatic conditions at an analogous site
with substantially similar cover design. In this case, the owner or
operator of the disposal unit must obtain certification from an
independent registered professional engineer that the alternative cover
would minimize infiltration at least as effectively as the ``design''
cover described above. As with the other final covers, the design of
the evapo-transpiration cover must be placed on the owner's or
operator's Internet site.
EPA has included this alternative cover requirement to increase the
flexibility for the facility to account for site-specific conditions.
However, EPA is specifically soliciting comment on whether this degree
of flexibility is appropriate, given the lack of guaranteed state
oversight. In the final MSWLF rule, EPA adopted a comparable provision,
but concluded that this alternative would not be available in States
without approved programs. See, 56 FR 51096. Given that EPA can neither
approve state programs, nor rely on the existence of a state permit
process, EPA questions whether this kind of requirement is appropriate.
Commenters who believe this requirement would be appropriate are
encouraged to include examples documenting the need for flexibility in
developing cover requirements, as well as data and information to
demonstrate that alternative cover designs would be protective. EPA
would also welcome suggestions for other methods to allow owners and
operators of CCR landfills and surface impoundment facilities to
account for site-specific conditions that provide a lower degree of
individual facility discretion, such as a list of approved cover
designs.
The proposed rule includes the same 30- and 180-day deadlines for
beginning and completing closure, respectively, that are contained in
existing section 258.60(f) and (g) for MSWLFs. However, EPA has decided
not to propose to include a provision under which the owner and
operator could extend those deadlines under the MSWLF criteria. EPA
believes that extending the closure deadlines in this context is
inappropriate because, in the absence of an approved State program, the
owner or operator could unilaterally decide to extend the time for
closure of the unit, without any basis, or oversight by a regulatory
authority.
The proposed closure requirements also include a provision
addressing required deed notations. In this regard, EPA is considering
whether to include a provision for removing the deed notation once all
CCRs are removed from the facility, and notification is provided to the
state of this action. In the MSWLF rule, we adopted such a provision,
but determined that state oversight of such a provision was essential,
given the potential for abuse. As we noted in the final MSWLF rule,
``EPA strongly believes that a decision to remove the deed notation
must be considered carefully and that in practice very few owners or
operators will be able to take advantage of the provision.'' EPA
solicits comment on the propriety of such a provision, and encourages
commenters who are interested in supporting such an option, to suggest
alternatives to state oversight to provide for facility accountability.
Following closure of the CCR management unit, the co-proposed
subtitle D approach requires post-closure care modeled after the
requirements in 258.60. The owner or operator of the disposal unit must
conduct post-closure care for 30 years. EPA is proposing to allow
facilities to conduct post-closure care for a decreased length of time
if the owner or operator demonstrates that (1) the reduced period is
sufficient to protect human health and the environment, as certified by
an independent registered professional engineer; (2) notice is provided
to the state that the demonstration has been placed in the operating
record and on the owner's or operator's Internet site; and (3) the
owner or operator notifies the state of the company's findings. The
proposed rule also allows an increase in this period, again, with
notification to the state, if the owner or operator of the CCR landfill
or surface impoundment determines that it is necessary to protect human
health and the environment. The 30-year period is consistent with the
period required under the criteria for MSWLFs, as well as under the
subtitle C interim status requirements. EPA has no information to
indicate that a different period would be appropriate for post-closure
care for CCR disposal units. EPA recognizes 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,
EPA also recognizes that there is no set length of time for post-
closure care that will be appropriate for all possible sites, and all
possible conditions. EPA therefore solicits comment on alternative
methods to account for different conditions, yet still provide methods
of oversight to assure facility accountability.
During post-closure care, the owner or operator of the disposal
unit is required to maintain the integrity and effectiveness of any
final cover, maintain and operate the leachate collection and removal
system in accordance with the leachate collection and removal system
requirements described above, maintain the groundwater monitoring
system and monitor the groundwater in accordance with the groundwater
monitoring requirements described above, and place the maintenance plan
in the operating record and on the company's Internet site.
EPA is also considering whether to adopt a number of provisions to
increase the flexibility available under these requirements. For
example, EPA is considering a self-certified stoppage of leachate
management, such as provided for in 258.61(a)(2), and is soliciting
public comment on the need for such a provision, as well as its
propriety, in light of the absence of guaranteed state oversight. EPA
is also considering whether to adopt a provision to allow any other
disturbance, provided that the owner or operator of the CCR landfill or
surface impoundment demonstrates that disturbance of the final cover,
liner or other component of the containment system, including any
removal of CCRs,
[[Page 35210]]
will not increase the potential threat to human health or the
environment. The demonstration would need to be certified by an
independent registered professional engineer, and notification provided
to the state that the demonstration had been placed in the operating
record and on the owner's or operator's Internet site. In the MSWLF
rule, EPA limited this option to approved states, on the ground that,
``under very limited circumstances it may be possible or desirable to
allow certain post-closure uses of land, including some recreational
uses, without posing a significant threat to human health and the
environment, but such situations are likely to be very limited and need
to be considered very carefully.'' Commenters interested in supporting
such an option should address why such a provision would nevertheless
be appropriate in this context. In this regard, EPA would also be
interested in suggestions for other mechanisms providing facility
flexibility and/or oversight.
9. Financial Assurance
EPA currently requires showings of financial assurance under
multiple programs, including for RCRA subtitle C hazardous waste
treatment, storage and disposal facilities; the RCRA subtitle I
underground storage tank program; and under other statutory
authorities. Financial assurance requirements generally help ensure
that owners and operators adequately plan for future costs, and help
ensure that adequate funds will be available when needed to cover these
costs if the owner or operator is unable or unwilling to do so;
otherwise, additional governmental expenditures may otherwise be
necessary to ensure continued protection of human health and the
environment. Financial assurance requirements also encourage the
development and implementation of sound waste management practices both
during and at the end of active facility operations, since the
associated costs of any financial assurance mechanism should be less
when activities occur in an environmentally protective manner.
Today's proposed RCRA subtitle D alternative does not include
proposed financial responsibility requirements. Any such requirements
would be proposed separately. Specifically, on January 6, 2010, EPA
issued an advance notice of proposed rulemaking (``ANPRM''),
identifying classes of facilities within the Electric Power Generation,
Transmission, and Distribution industry, among others, as those for
which it plans to develop, as necessary, financial responsibility
requirements under CERCLA Sec. 108(b). See Identification of
Additional Classes of Facilities for Development of Financial
Responsibility Requirements under CERCLA Section 108(b), 75 FR 816
(January 6, 2010). EPA solicits comments on whether financial
responsibility requirements under CERCLA Sec. 108(b) should be a key
Agency focus should it regulate CCR disposal under a RCRA subtitle D
approach. (By today's proposed rule, EPA is not reopening the comment
period on the January 2010 ANPRM, which closed on April 6, 2010. See
Identification of Additional Classes of Facilities for Development of
Financial Responsibility Requirements under CERCLA Section 108(b), 75
FR 5715 (Feb. 4, 2010) (extending comment period to April 6, 2010).)
However, EPA also solicits comment on existing state waste programs for
financial assurance for CCR disposal facilities, and whether and how
the co-proposed RCRA subtitle D regulatory approach might integrate
with those programs.
10. Off-Site Disposal
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.
11. Alternative RCRA Subtitle D Approaches
A potential modification to the subtitle D option that was
evaluated in our Regulatory Impact Analysis (RIA) is what we have
termed a subtitle ``D prime'' option. Under this modification, the
regulations would not require the closure or installation of composite
liners in existing surface impoundments; rather, these surface
impoundments could continue to operate for the remainder of their
useful life. New surface impoundments would be required to have
composite liners. The other co-proposed subtitle D requirements would
remain the same. This modification results in substantially lower
costs, but also lower benefits as described in section XII, which
presents costs and benefits of the RCRA subtitle C, D, and D prime
options. EPA solicits comments on this approach.
Finally, another approach that has been suggested to EPA is a
subtitle D regulation with the same requirements as spelled out in the
co-proposal, for example, composite liners for new landfills and
surface impoundments, groundwater monitoring, corrective action,
closure, and post-closure care requirements as co-proposed in this
notice; however, in lieu of the phase-out of surface impoundments, EPA
would establish and fund a program for conducting annual (or other
frequency) structural stability (assessments) of impoundments having a
``High'' or ``Significant'' hazard potential rating as defined by
criteria developed by the U.S. Army Corps of Engineers for the National
Inventory of Dams. EPA would conduct these assessments and, using
appropriate enforcement authorities already available under RCRA,
CERCLA, and/or the Clean Water Act, would require facilities to respond
to issues identified with their surface impoundments. The theory behind
this suggested approach is that annual inspections would be far more
cost effective than the phase-out of surface impoundments--
approximately $3.4 million annually for assessments versus $876 million
annually for phase-out. EPA also solicits comments on this approach and
its effectiveness in ensuring the structural integrity of CCR surface
impoundments.
X. How would the proposed subtitle D regulations be implemented?
A. Effective Dates
The effective date of the proposed RCRA subtitle D alternative, if
this alternative is ultimately promulgated, would be 180 days after
promulgation of a final rule. Thus, except as noted below, owners and
operators of CCR landfills and surface impoundments would need to meet
the proposed minimum federal criteria 180 days after promulgation of
the final rule. As noted elsewhere in today's preamble (see Section
XI.), facilities would need to comply with the RCRA subtitle D
criteria, irrespective of whether or not the states have adopted the
standards. For the remaining requirements, the compliance dates would
be as follows:
For new CCR landfills and surface impoundments that are
placed into service after the effective date of the final rule, the
location restrictions and design criteria would apply the date that
such CCR landfills and surface impoundments are placed into service.
For existing CCR surface impoundments, the compliance date
for the liner requirement is five years after the effective date of the
final rule.
For existing CCR landfills and surface impoundments, the
compliance date for the groundwater monitoring requirements is one year
after the effective date of the final rule.
For new CCR landfills and surface impoundments, and
lateral expansions of existing CCR landfills and surface impoundments,
the groundwater monitoring requirement must be in place and in
compliance with the
[[Page 35211]]
groundwater monitoring requirements before CCRs can be placed in the
unit.
Note: As discussed in Section IX, if EPA determines that
financial assurance requirements would be implemented pursuant to
CERCLA 108(b) authority, the compliance date for this provision
would be the date specified in those regulations.
B. Implementation and Enforcement of Subtitle D Requirements
As stated previously, EPA has no authority to implement and enforce
the co-proposed RCRA subtitle D regulation. Therefore, the proposed
RCRA subtitle D standards have been drafted so that they can be self
implementing--that is, the facilities can comply without interaction
with a regulatory agency. EPA can however take action under section
7003 of RCRA to abate conditions that ``may present an imminent and
substantial endangerment to health or the environment.'' EPA could also
use the imminent and substantial endangerment authorities under CERCLA,
or under other federal authorities, such as the Clean Water Act, to
address those circumstances where a unit may pose a threat.
In addition, the federal RCRA subtitle D requirements would be
enforceable by states and by citizens using the citizen suit provisions
of RCRA 7002. Under this section, any person may commence a civil
action on his own behalf against any person, who (1) is alleged to be
in violation of any permit, standard, regulation * * * which has become
effective pursuant to this chapter'' Because a RCRA subtitle D proposal
relies heavily on citizen enforcement, our proposal requires facilities
to make any significant information related to their compliance with
the proposed requirements publicly available.
XI. Impact of a Subtitle D Regulation on State Programs
Under today's co-proposal, EPA is proposing to establish minimum
nationwide criteria under RCRA subtitle D as one alternative. If the
Agency were to choose to promulgate such nationwide criteria, EPA would
encourage the states to adopt such criteria; however, the Agency has no
authority to require states to adopt such criteria, or to implement the
criteria upon their finalization. Nor does EPA have authority in this
instance to require federal approval procedures for state adoption of
the minimum nationwide criteria. States would be free to develop their
own regulations and/or permitting programs using their solid waste laws
or other state authorities. While states are not required to adopt such
minimum nationwide criteria, some states (about 25) incorporate federal
regulations by reference or have specific state statutory requirements
that their state program can be no more stringent than the federal
regulations (about 12, with varying degrees of exceptions). In those
cases, EPA would expect that if the minimum nationwide criteria were
promulgated, these states would adopt them, consistent with their state
laws and administrative procedures.
If the states do not adopt or adopt different standards for the
management of CCRs, facilities would still have to comply with the co-
proposed subtitle D criteria, if finalized, independently of those
state regulations. Thus, even in the absence of a state program, CCR
landfills and CCR surface impoundments would be required to meet the
proposed federal minimum criteria as set out in 40 CFR part 257,
subpart D. As a result and to make compliance with the requirements as
straightforward as possible, we have drafted the proposed criteria so
that facilities are able to implement the standards without interaction
with regulatory officials--that is, the requirements are self-
implementing. Also, even in the absence of a state regulatory program
for CCRs, these federal minimum criteria are enforceable by citizens
and by states using the citizen suit provision of RCRA (Section 7002).
EPA is also able to take action under RCRA Section 7003 to abate
conditions that may pose an imminent and substantial endangerment to
human health or the environment or and can rely on other federal
authorities. See the previous section for a full discussion of this
issue.
XII. Impacts of the Proposed Regulatory Alternatives
A. What are the economic impacts of the proposed regulatory
alternatives?
EPA prepared an analysis of the potential costs and benefits
associated with this action contained in the ``Regulatory Impact
Analysis'' (RIA). A copy of the RIA is available in the docket for this
action and the analysis is briefly summarized here. For purposes of
evaluating the potential economic impacts of the proposed rule, the RIA
evaluated baseline (i.e., current) management of CCRs consisting of two
baseline components: (1) The average annual cost of baseline CCR
disposal practices by the electric utility industry, and (2) the
monetized value of existing CCR beneficial uses in industrial
applications. Incremental to this baseline, the RIA estimated (1)
future industry compliance costs for CCR disposal associated with the
regulatory options described in today's action, and (2) although not
completely quantified or monetized, three categories of potential
future benefits from RCRA regulation of CCR disposal consisting of (a)
Groundwater protection benefits at CCR disposal sites, (b) CCR
impoundment structural failure prevention benefits, and (c) induced
future annual increases in CCR beneficial use. The findings from each
of these main sections of the RIA are summarized below. These
quantified benefit results are based on EPA's initial analyses using
existing information and analytical techniques.
1. Characterization of Baseline Affected Entities and CCR Management
Practices
Today's action will potentially affect CCRs 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 2007 electricity generation data
published by the Energy Information Administration (EIA), the RIA
estimated a total of 495 operational coal-fired electric utility plants
in this NAICS code could be affected by today's action. These plants
are owned by 200 entities consisting of 121 companies, 18 cooperative
organizations, 60 state or local governments, and one Federal Agency. A
sub-total of 51 of the 200 owner entities (i.e., 26%) may be classified
as small businesses, small organizations, or small governments.
Based on the most recent (2005) EIA data on annual CCR tonnages
generated and managed by electric utility plants greater than 100
megawatts nameplate capacity in size, supplemented with additional
estimates made in the RIA for smaller sized electric utility plants
between 1 and 100 megawatts capacity, these 495 plants generate about
140 million tons of CCRs annually, of which 311 plants dispose 57
million tons in company-owned landfills, 158 plants dispose 22 million
tons in company-owned surface impoundments, and an estimated 149 plants
may send upwards of 15 million tons of CCRs to offsite disposal units
owned by other companies (e.g., NAICS 562 commercial waste management
service companies). Based on lack of data on the type of offsite CCR
disposal units, and the fact that it costs much more to transport wet
CCRs than dry CCRs (i.e., CCRs which have been de-watered), the RIA
assumes all offsite CCR disposal units are landfills. Because some
plants use more than one CCR management method, these management plant
counts exceed 495 total plants. Based on the estimates
[[Page 35212]]
developed for the RIA, total CCR disposal is about 94 million tons
annually which is two-thirds of annual CCR generation. (EPA notes that
the alternative, lower CCR generation and disposal estimates of 131
million tons and 75 million tons cited elsewhere in today's notice were
derived from different and less comprehensive ACAA and EIA survey data
sources, respectively, that do not include tonnage estimates for plants
between 1 and 100 megawatt capacity.) In addition, 272 of the 495
plants supply CCRs which are not disposed for beneficial uses in at
least 14 industries, of which 28 of the 272 plants solely supply CCRs
for beneficial uses. As of 2005, CCR beneficial uses (i.e., industrial
applications) involved about 47 million tons annually representing one-
third of annual CCR generation, which the RIA estimates may grow to an
annual quantity of 62 million tons by 2009. For 2008, the American Coal
Ash Association estimates CCR beneficial use has grown to 60.6 million
tons.\155\
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\155\ Note that ACAA's definition of beneficial use does not
align with that used by EPA in this rulemaking. For example, ACAA
includes minefilling as a beneficial use, where EPA classifies it as
a separate category of use.
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2. Baseline CCR Disposal
For each of the 467 operating electric utility plants which dispose
CCRs onsite or offsite (28 of the 495 total plants solely send their
CCRs for beneficial use and not disposal), the RIA estimated baseline
engineering controls at CCR disposal units and associated baseline
disposal costs for two types of CCR disposal units: landfills and
surface impoundments. Impoundments are sometimes named by electricity
plant personnel as basins, berms, canals, cells, dams, embankments,
lagoons, pits, ponds, reservoirs, or sumps. The baseline is defined as
existing (current) conditions with respect to the presence or absence
of 10 types of environmental engineering controls and eight ancillary
regulatory elements, plus projection of future baseline conditions of
CCR disposal units without regulation over the 50-year future period-
of-analysis--2012 to 2061--applied in the RIA. A 50-year future period
was applied in the RIA to account for impacts of the proposed
regulatory options which are specific only to future new disposal units
given average lifespans of over 40-years. Existing conditions were
determined based on review of a sample of current state government
regulations of CCR disposal in 34 states, as well as limited survey
information on CCR disposal units from studies published in 1995, 1996,
and 2006 about voluntary engineering controls installed for CCR
disposal units at some electric utility plants. The 10 baseline
engineering controls evaluated in the RIA are (1) Groundwater
monitoring, (2) bottom liners, (3) leachate collection and removal
systems, (4) dust controls, (5) rainwater run-on and run-off controls,
(6) financial assurance for corrective action, disposal unit closure,
and post-closure care, (7) disposal unit location restrictions, (8)
closure capping of disposal units, (9) post-closure groundwater
monitoring, and (10) CCR storage design and operating standards prior
to disposal (Note: Although listed here, this 10th element was not
estimated in the RIA because of EPA's lack of information on baseline
CCR storage practices). This specific set of engineering controls
represents the elements of the RCRA 3004(x) custom-tailored technical
standards proposed in today's notice for the RCRA subtitle C option.
The eight ancillary elements evaluated in the RIA are (11) offsite
transport and disposal, (12) disposal unit structural integrity
inspections, (13) electricity plant facility-wide environmental
investigations, (14) facility-wide corrective action requirements, (15)
waste disposal permits, (16) state government regulatory enforcement
inspections, (17) environmental release remediation requirements, and
(18) recordkeeping and reporting to regulatory agencies. Some states
require many of these technical standards for future newly-constructed
CCR disposal units, some states require them for existing units, and
some states have few or no regulatory requirements specific to CCR
disposal and thus were not estimated in the baseline cost. Furthermore,
some of the ancillary elements are only relevant to the regulatory
options based on subtitle C as co-proposed in today's notice. The
percentage of CCR landfills with baseline controls ranged from 61% to
81%, and the percentage of CCR surface impoundments with baseline
controls ranged from 20% to 49%, depending upon the type of control.
Based on this estimation methodology, the RIA estimates the electric
utility industry spends an average of $5.6 billion per year for meeting
state-required and company voluntary environmental standards for CCR
disposal. Depending upon state location for any given electricity plant
(which determines baseline regulatory requirements), and whether any
given plant disposes CCRs onsite or offsite, this baseline cost is
equivalent to an average cost range of $2 to $80 per ton of CCRs
disposed of.
3. Baseline CCR Beneficial Use
In addition to evaluating baseline CCR disposal practices, the RIA
also estimated the baseline net benefits associated with the 47 million
tons per year (2005) of industrial beneficial uses of CCRs. CCRs are
beneficially used nationwide as material ingredients in at least 14
industrial applications according to the American Coal Ash Association:
(1) Concrete, (2) cement, (3) flowable fill, (4) structural fill, (5)
road base, (6) soil modification, (7) mineral filler in asphalt, (8)
snow/ice control, (9) blasting grit, (10) roofing granules, (11)
placement in mine filling operations,\156\ (12) wallboard, (13) waste
solidification, and (14) agriculture. The baseline annual sales
revenues (as of 2005) received by the electric utility industry for
sale of CCRs used in these industrial applications are estimated at
$177 million per year. In comparison, substitute industrial ingredient
materials (e.g., portland cement, quarried stone aggregate, limestone,
gypsum) would cost industries $2,477 million per year. Thus, the
beneficial use of CCRs provides $2,300 million in annual cost savings
to these industrial applications, labeled economic benefits in the RIA.
Based on the lifecycle materials and energy flow economic framework
presented in the RIA, although only based on limited data representing
47% of annual CCR beneficial use tonnage involving only three of the 14
industrial applications (i.e., concrete, cement and wallboard),
baseline lifecycle benefits of beneficially using CCRs compared to
substitute industrial materials are (a) $4,888 million per year in
energy savings, (b) $81 million per year in water consumption savings,
(c) $365 million per year in greenhouse gas (i.e., carbon dioxide and
methane) emissions reductions, and (d) $17,772 million per year in
other air pollution reductions. Altogether, industrial beneficial uses
of CCRs provide over $23 billion in annual environmental benefits as of
2005. In addition, baseline CCR beneficial use provides $1,830 million
per year in industrial raw materials costs savings to beneficial users,
and $2,927 million per year in avoided CCR disposal cost to the
electric utility industry as of 2005. The sum of environmental
benefits,
[[Page 35213]]
industrial raw materials costs savings, and CCR disposal cost savings,
$27.9 billion per year, gives the baseline level of what the RIA has
labeled social benefits from the beneficial use of CCRs.
---------------------------------------------------------------------------
\156\ While today's proposed rule does not deal directly with
the mine filling of CCRs, the RIA includes it as a baseline
beneficial use because the RIA uses the categories identified by the
American Coal Ash Association (http://acaa.affiniscape.com/displaycommon.cfm?an=1&subarticlenbr=3). However, as noted
previously in today's notice, the Agency is working with OSM of the
Department of Interior on the placement of CCRs in mine fill
operations.
---------------------------------------------------------------------------
4. Estimated Costs for RCRA Regulation of CCR Disposal
The RIA includes estimates of the costs associated with the options
described in today's notice are summarized here: (1) RCRA subtitle C
regulation of CCRs as a ``special waste''; (2) RCRA subtitle D
regulation as ``non-hazardous waste''; and (3) the subtitle ``D prime''
options. Full descriptions of each option are presented in a prior
section of today's notice. The RIA assumes that the engineering
controls that would be established under the RCRA subtitle C option
would be tailored on the basis of RCRA section 3004(x). The controls
for the RCRA subtitle D option are identical to the subtitle C option.
The controls under the subtitle ``D prime'' option would be identical
as well, except that existing surface impoundments would not have to
close or be dredged and have composite liners installed within five
years of the effective date of the regulation. The RIA also assumes all
three options retain the existing Bevill exemption for CCR beneficial
uses.
The estimated costs for each option are incremental to the
baseline, and are estimated in the RIA using both an average annualized
and a present value equivalent basis over a 50-year period-of-analysis
(2012 to 2061) using both a 7% and an alternative 3% discount rate.
These two alternative discount rates are required by the Office of
Management and Budget's September 2003 ``Regulatory Analysis'' Circular
A-4. For the purpose of summary here, only the 7% discount rate results
are presented for each option because the 7% rate represents the ``base
case'' in the RIA for the reason that most of the regulatory compliance
costs will be incurred by industry (i.e., private capital). On an
average annualized basis, the estimated regulatory compliance costs for
the three options are $1,474 million (subtitle C special waste), $587
million (subtitle D), and $236 million (subtitle ``D prime'') per year.
On a present value basis discounted at 7% over the 50-year future
period-of-analysis applied in the RIA, estimated future regulatory
compliance costs for the three options total $20,349 million, $8,095
million, and $3,259 million present value, respectively. EPA requests
public comment on all data sources and analytical approaches.
5. Benefits for RCRA Regulation of CCR Disposal
The potential environmental and public health benefits of CCR
regulation estimated and monetized in the RIA include three categories:
1. Groundwater protection benefits consisting of (a) human cancer
prevention benefits and (b) avoided groundwater remediation costs at
CCR disposal sites;
2. CCR impoundment structural failure prevention benefits (i.e.,
cleanup costs avoided); and
3. Induced future increase in industrial beneficial uses of CCRs.
As was done with the cost estimates described above, the RIA
estimated benefits both at the 7% and 3% discount rates using the same
50-year period-of-analysis. However, only the benefit estimates based
on the 7% rate are summarized here. While the RIA focused on monetizing
these three impact categories, there are also human non-cancer
prevention benefits, ecological protection benefits, surface water
protection benefits, and ambient air pollution prevention benefits,
which are not monetized in the RIA, but qualitatively described below.
i. Groundwater Protection Benefits
The RIA estimated the benefits of reduced human cancer risks and
avoided groundwater remediation costs associated with controlling
arsenic leaching from CCR landfills and surface impoundments. These
estimates are based on EPA's risk assessment (described elsewhere in
today's notice), which predicts arsenic leaching rates using SPLP and
TCLP data. Furthermore, recent research and damage cases indicate that
these leaching tests under-predict risks from dry disposal.\157\
Therefore, the groundwater protection benefits may be underestimated in
the RIA. The RIA based estimation of future human cancer cases avoided
on the individual ``excess'' lifetime cancer probabilities reported in
the EPA risk assessment, although the RIA also used more recent (2001)
science published by the National Research Council on arsenic
carcinogenicity.
---------------------------------------------------------------------------
\157\ Recent EPA research demonstrates that CCRs can leach
significantly more aggressively under different pH conditions
potentially present in disposal units. In the EPA Office of Research
& Development report ``Characterization of Coal Combustion Residues
from Electric Utilities--Leaching and Characterization Data,'' EPA-
600/R-09/151, Research Triangle Park, NC, December 2009, CCRs from
19 of the 34 facilities evaluated in the study exceeded at least one
of the Toxicity Characteristic regulatory values for at least one
type of CCR (e.g., fly ash or FGD residue) at the self-generated pH
of the material. This behavior likely explains the rapid migration
of constituents from disposal sites like Chesapeake, VA and
Gambrills, MD. See also the EPA Office of Research & Development
reports (a) ``Characterization of Mercury-Enriched Coal Combustion
Residues from Electric Utilities Using Enhanced Sorbents for Mercury
Control,'' EPA 600/R-06/008, January 2006; and (b) Characterization
of Coal Combustion Residues from Electric Utilities Using Wet
Scrubbers for Multi-Pollutant Control, EPA/600/R-08/077, July 2008.
---------------------------------------------------------------------------
The RIA estimated groundwater protection benefits by categorizing
electric utility plants according to their individual types of CCR
disposal units (i.e., landfill or impoundment) and presence/types of
liners in those units. For each category, GIS data were used to
determine the potentially affected populations of groundwater drinkers
residing within 1-mile of the disposal units. Results from the risk
assessment were applied to these populations by using a linear
extrapolation, starting from a risk of zero to the peak future risk as
demonstrated by the risk assessment. The count of people who might
potentially get cancer was then adjusted upward to account for the more
recent and more widely accepted arsenic carcinogenicity research by the
National Research Council.\158\ The RIA then segregated the future
cancer counts into lung cancers and bladder cancers, as well as into
those that were predicted to result in death versus those that were
not. The RIA monetized each of these cancer sub-categories using EPA-
published economic values for statistical life and cost of illness.
---------------------------------------------------------------------------
\158\ EPA's current Integrated Risk Information System (IRIS)
has a cancer slope factor for arsenic developed in 1995. This slope
factor is based on skin cancer incidence and was used in the 2010
EPA risk assessment. Skin cancer is a health endpoint associated
with lower fatality risk than lung and bladder cancers induced by
arsenic. Since the IRIS slope factors were developed, quantitative
data on lung and bladder cancers have become available, and the skin
cancer based slope factors no longer represent the current state of
the science for health risk assessment for arsenic. The National
Research Council (NRC) published the report, ``Arsenic in Drinking
Water: 2001 Update'' (2001) which reviewed the available
toxicological, epidemiological, and risk assessment literature on
the health effects of inorganic arsenic, building upon the NRC's
prior report, ``Arsenic in Drinking Water'' (NRC 1999). The 2001
report, developed by an eminent committee of scientists with
expertise in arsenic toxicology and risk assessment provides a
scientifically sound and transparent assessment of risks of bladder
and lung cancers from inorganic arsenic. EPA's Science Advisory
Board is currently reviewing EPA's new proposed IRIS cancer slope
factors based on bladder and lung cancer. Because the more recent
NRC scientific information is available, the RIA (2010) uses the NRC
arsenic cancer data for the estimate of benefits associated with
cancers avoided by the proposed regulation of CCR.
---------------------------------------------------------------------------
The RIA further adjusted these monetized future cancer counts, to
take into account existing state requirements for groundwater
monitoring at CCR disposal units, such that fewer cancer
[[Page 35214]]
cases than initially projected would ultimately occur from early
detection of groundwater contamination in those states. Therefore, a
baseline was established for the operation of state regulatory and
remedial programs which led to a reduction in expected cancer cases in
states with existing groundwater protection requirements. However, once
groundwater contamination was found in those states, remediation costs
would be incurred. Thus, the RIA also accounted for these costs under
each of the regulatory options as well, thus avoiding possible double-
counting of cancer cases and remediation costs. On an average
annualized basis, the human cancer prevention component of the
groundwater protection benefit category for the three options are $37
million (RCRA subtitle C special waste), $15 million (RCRA subtitle D),
and $8 million (subtitle ``D prime'') per year. On a present value
basis, the human cancer prevention benefit totals $504 million, $207
million, and $104 million present value, respectively. On an average
annualized basis, the estimated avoided groundwater remediation cost
benefit component of the groundwater protection benefit category for
the three options are $34 million (RCRA subtitle C special waste), $12
million (RCRA subtitle D), and $6 million (subtitle ``D prime'') per
year. On a present value basis, the avoided remediation cost benefit
totals to $466 million, $168 million, and $84 million present value,
respectively. Added together on an average annualized basis, these two
groundwater protection benefit components total to $71 million (RCRA
subtitle C special waste), $27 million (RCRA subtitle D), and $14
million (subtitle ``D prime'') per year. On a present value basis, the
groundwater protection benefit category totals to $970 million, $375
million, and $188 million present value, respectively.
ii. Impoundment Structural Failure Prevention Benefits
The December 2008 CCR surface impoundment collapse at the Tennessee
Valley Authority's Kingston, Tennessee coal-fired electricity plant
illustrated that structural failures of large CCR impoundments can lead
to catastrophic environmental releases and large cleanup costs. The RIA
estimated the benefit of avoiding future cleanup costs for impoundment
failures, which the structural integrity inspection requirement of all
regulatory options, and the future conversion or retrofitting of
existing or new impoundments (under the subtitle C, subtitle D, and
subtitle ``D prime'' options) would be expected to prevent.
The RIA based the estimate of future cleanup costs avoided on
information contained in EPA's 2009 mail survey \159\ of 584 CCR
impoundments operated by the electric utility industry. In response to
the survey request for information on known spills or non-permitted
releases from CCR impoundments within the last 10 years, revealed 42
CCR impoundment releases spanning 1995 to 2009. Particularly, there
were five significant releases between 4,950 cubic yards and 5.4
million cubic yards of CCRs, and one catastrophic release of 5.4
million cubic yards of CCRs during this time period at coal fired power
plants. Given these historic releases, the RIA projected the
probability of future impoundment releases using a Poisson
distribution. In addition to this approach, the RIA formulated two
alternative failure scenarios based on 96 high-risk CCR impoundments
identified as at least 40 feet tall and at least 25 years old. The two
alternative failure scenarios assumed impoundment failure rates
involving these 96 impoundments of 10% and 20%, respectively. On an
average annualized basis ranging across these three alternative failure
probability estimation methods (scenarios), the avoided cleanup cost
benefit category for the three options is estimated at $128 million to
$1,212 million (subtitle C special waste), $58 million to $550 million
(subtitle D), and $29 million to $275 million (subtitle ``D prime'')
per year. On a present value basis, the avoided cleanup cost benefit
category totals $1,762 million to $16,732 million (RCRA subtitle C
special waste), $793 million to $7,590 million (RCRA subtitle D), and
$405 million to $3,795 million present value (RCRA subtitle ``D
prime''), respectively.
---------------------------------------------------------------------------
\159\ Descriptive information and electric utility industry
responses to EPA's 2009 mail survey is available at the survey
webpage http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/.
---------------------------------------------------------------------------
iii. Benefit of Induced Future Increase in Industrial Beneficial Uses
of CCRs
The third and final potential benefit category evaluated in the RIA
includes the potential effects of RCRA regulation of CCR disposal on
future annual tonnages of CCR beneficial use. As its base case, the RIA
estimates an expected future increase in beneficial use induced by the
increased costs of disposing CCR in RCRA-regulated disposal units. The
RIA also evaluates the potential magnitude of a future decrease in
beneficial use as a result of a potential ``stigma'' effect under the
subtitle C option. Both scenarios are based on a baseline consisting of
(a) projecting the future annual tonnage of CCR generation by the
electric utility industry in relation to the Energy Information
Administration's (EIA) future annual projection of coal consumption by
the electric utility industry, and (b) projecting the future baseline
growth in CCR beneficial use relative to the historical growth
trendline (i.e., absent today's proposed regulation).
For the induced increase ``base case'' scenario, the compliance
costs for each regulatory option represent an ``avoided cost
incentive'' to the electric utility industry to shift additional CCRs
from disposal to beneficial use. Proportional to the estimated cost for
each option, the RIA applied a beneficial use market elasticity factor
to the projected baseline future growth in beneficial use to simulate
the induced increase. On an average annualized basis, the monetized
value--based on the same unitized (i.e., per-ton) monetized social
values assigned to the lifecycle benefits of baseline CCR beneficial
uses--of the estimated potential induced increases in future annual CCR
beneficial use tonnage for the three options are $6,122 million (RCRA
subtitle C special waste), $2,450 million (RCRA subtitle D), and $980
million (subtitle ``D prime'') per year. On a present value basis, the
potential induced increases in beneficial use totals to $84,489 million
(RCRA subtitle C special waste), $33,796 million (RCRA subtitle D), and
$13,518 million (subtitle ``D prime'') present value, respectively.
The RIA also monetized the alternative ``stigma'' scenario of
future reduction in beneficial use induced by the RCRA subtitle C
option. The RIA formulated assumptions about the percentage future
annual tonnage reductions which might result to some of the 14
beneficial use markets. For example, federally purchased concrete was
assumed to stay at baseline levels because of the positive influence of
comprehensive procurement guidelines that are already in place to
encourage such types of beneficial uses. Conversely, the levels of non-
federally purchased concrete were assumed to decrease relative to the
baseline. On an average annualized basis, the monetized value--based on
the same unitized (i.e., per-ton) monetized social values assigned to
the lifecycle benefits of baseline CCR beneficial uses--of the
potential ``stigma'' reduction in future annual CCR beneficial use for
the RCRA subtitle C option is $16,923 million per year cost. On a
present value basis, the potential ``stigma'' reduction in beneficial
use totals to $233,549 million
[[Page 35215]]
present value cost. The RIA did not estimate a potential ``stigma''
reduction effect on the RCRA subtitle D or subtitle ``D prime''
regulatory options.
B. Benefits Not Quantified in the RIA
1. Non-Quantified Plant and Wildlife Protection Benefits
EPA's risk assessment estimated significant risks of adverse
effects to plants and wildlife, which are confirmed by the existing CCR
damage cases and field studies published in peer-reviewed scientific
literature. Such reported adverse effects include: (a) Elevated
selenium levels in migratory birds, (b) wetland vegetative damage, (c)
fish kills, (d) amphibian deformities, (e) snake metabolic effects, (f)
plant toxicity, (g) elevated contaminant levels in mammals as a result
of environmental uptake, (h) fish deformities, and (i) inhibited fish
reproductive capacity. Requirements in the proposed rule should prevent
or reduce these impacts in the future by limiting the extent of
environmental contamination and thereby reducing the levels directly
available.
2. Non-Quantified Surface Water Protection Benefits
In EPA's risk assessment, recreational fishers could be exposed to
chemical constituents in CCR via the groundwater-to-surface water
exposure pathway. Furthermore, State Pollutant Discharge Elimination
System (SPDES) and National Pollutant Discharge Elimination System
(NPDES) discharges from CCR wet disposal (i.e., impoundments) likely
exceed the discharges from groundwater to surface water. Thus, exposure
to arsenic via fish consumption could be significant. However, EPA
expects that most electric utility plants will eventually switch to dry
CCR disposal (or to beneficial use), a trend which is discussed in the
RIA. Such future switchover will reduce potential future exposures to
these constituents from affected fish.
3. Non-Quantified Ambient Air Protection Benefits
Another impact on public health not discussed in the RIA is the
potential reduction of excess cancer cases associated with hexavalent
chromium inhaled from the air. As estimated in the RIA, over six
million people live within the Census population data ``zip code
tabulation areas'' for the 495 electric utility plant locations. Thus,
the potential population health benefits of RCRA regulation may be
quite large. Inhalation of hexavalent chromium has been shown to cause
lung cancer.\160\ By requiring fugitive dust controls, the proposed
rule would reduce inhalation exposure to hexavalent chromium near CCR
disposal units that are not currently required to control fugitive
dust.
---------------------------------------------------------------------------
\160\ ATSDR Texas. Available at: http://www.atsdr.cdc.gov/toxfaq.html.
---------------------------------------------------------------------------
Furthermore, several non-cancer health effects associated with CCRs
are a result of particulate matter inhalation due to dry CCR disposal.
Human health effects for which EPA is evaluating causality due to
particulate matter exposure include (a) Cardiovascular morbidity, (b)
respiratory morbidity, (c) mortality, (d) reproductive effects, (e)
developmental effects, and (f) cancer.\161\ The potential for and
extent of adverse health effects due to fugitive dusts from dry CCR
disposal was demonstrated in the 2009 EPA report ``Inhalation of
Fugitive Dust: A Screening Assessment of the Risks Posed by Coal
Combustion Waste Landfills--DRAFT,'' which is available in the docket
for today's co-proposed rules. The co-proposed rules' fugitive dust
controls would serve to manage such potential risks by bringing them to
acceptable levels.
---------------------------------------------------------------------------
\161\ Source: EPA Office of Research & Development report
``Integrated Science Assessment for Particulate Matter: First
External Review Draft,'' EPA/600/R-08/139, 2008.
---------------------------------------------------------------------------
CCR dust (and other types of particulate matter) can also be
carried over long distances by wind and then settle on ground or water.
The effects of this settling could include: (a) Changing the pH of
lakes and streams; (b) changing the nutrient balance in coastal waters
and large river basins; (c) depleting nutrients in soil; (d) damaging
sensitive forests and farm crops; and (e) affecting the diversity of
ecosystems.\162\ Additionally, fine particulates are known to
contribute to haze.\163\ Thus, the fugitive dust controls contained in
the proposed rule would improve visibility, and reduce the
environmental impacts discussed above.
---------------------------------------------------------------------------
\162\ Source: U.S. EPA Office of Air & Radiation, Particulate
Matter ``Health and Environment'' Web site at http://www.epa.gov/particles/health.html.
\163\ Ibid; and also see http://www.intheairwebreathe.com/html/photo_gallery.html.
---------------------------------------------------------------------------
C. Comparison of Costs to Benefits for the Regulatory Alternatives
For purposes of comparing the estimated regulatory compliance costs
to the monetized benefits for each regulatory option, the RIA computed
two comparison indicators: Net benefits (i.e., benefits minus costs),
and benefit/cost ratio (i.e., benefits divided by costs). The results
of each indicator are displayed in the following tables (Table 10,
Table 11 and Table 12) for three regulatory options, based on the 7%
discount rate and the 50-year period-of-analysis applied in the RIA.
There are three tables because three different scenarios were analyzed
concerning potential impacts on beneficial use of CCRs impact under the
regulatory options.
The three tables below represent three possible outcomes regarding
impacts of the rule upon the beneficial use of CCR. In the first table,
EPA presents the potential impact scenario that we view to be most
likely. This first scenario assumes that the increased cost of disposal
from regulation under subtitle C will encourage industry to seek out
additional markets and greatly increase their beneficial use of CCRs.
In the second table, EPA presents a negative effect on beneficial use,
based on stigma, and the possibility of triggering use restrictions
under state regulation and private sector standards due to subtitle C
regulation. In the final table, EPA presents a scenario where
beneficial use continues on its current path, without any changes as a
result of the rule. On the basis of past experience, EPA believes that
it is likely that recycling rates will increase as presented in the
first scenario. Comments are requested on the impact of stigma on the
beneficial use of CCRs.
Table 10--Comparison of Regulatory Benefits to Costs
[$Millions @ 2009$ prices and @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
Subtitle C ``Special
Waste'' Subtitle D Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
1. Regulatory Costs (1A+1B+1C): $20,349................. $8,095................. $3,259.
1A. Engineering Controls.... $6,780.................. $3,254................. $3,254.
[[Page 35216]]
1B. Ancillary Regulatory $1,480.................. $5..................... $5.
Requirements.
1C. Conversion to Dry CCR $12,089................. $4,836................. $0.
Disposal.
2. Regulatory Benefits $87,221 to $102,191..... $34,964 to $41,761..... $14,111 to $17,501.
(2A+2B+2C+2D):
2A. Monetized Value of Human $504.................... $207................... $104.
Cancer Cases Avoided.
2B.Groundwater Remediation $466.................... $168................... $84.
Costs Avoided.
2C. CCR Impoundment Failure $1,762 to $16,732....... $793 to $7,590......... $405 to $3,795.
Cleanup Costs Avoided.
2D. Included Future Increase $84,489................. $33,796................ $13,518.
in CCR Beneficial Use.
3. Net Benefits (2-1)........... $66,872 to $81,842...... $26,869 to $33,666..... $10,852 to $14,242.
4. Benefit/Cost Ratio ( 2/1 )... 4.286 to 5.022.......... 4.319 to 5.159......... 4.330 to 5.370.
B. Average Annualized Equivalent
Values:*.
1. Regulatory Costs (1A+1B+1C).. $1,474.................. $587................... $236.
1A. Engineering Controls.... $491.................... $236................... $236.
1B. Ancillary Regulatory $107.................... <$1.................... <$1.
Requirements.
1C. Conversion to Dry CCR $876.................... $350................... $0.
Disposal.
2. Regulatory Benefits $6,320 to $7,405........ $2,533 to $3,026....... $1,023 to $1,268.
(2A+2B+2C+2D):
2A. Monetized Value of Human $37..................... $15.................... $8.
Cancer Cases Avoided.
2B. Groundwater Remediation $34..................... $12.................... $6.
Costs Avoided.
2C. CCR Impoundment Failure $128 to $1,212.......... $58 to $550............ $29 to $275.
Cleanup Costs Avoided.
2D. Included Future Increase $6,122.................. $2,450................. $980.
in CCR Beneficial Use.
3. Net Benefits (2-1)........... $4,845 to $5,930........ $1,947 to $2,439....... $786 to $1,032.
4. Benefit/Cost Ratio (2/1)..... 4.286 to 5.022.......... 4.319 to 5.159......... 4.330 to 5.370.
----------------------------------------------------------------------------------------------------------------
* Note: Average annualized equivalent values calculated by multiplying the 50-year present values by a 50-year
7% discount rate ``capital recovery factor'' of 0.07246.
Table 11--Comparison of Regulatory Benefits to Costs Under Scenario 2--Induced Beneficial Use Decrease
[$Millions @ 2009$ prices @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
Subtitle C ``Special
Waste'' Subtitle D Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
1. Regulatory Costs (1A+1B+1C): $20,349................. $8,095................. $3,259.
1A. Engineering Controls.... $6,780.................. $3,254................. $3,254.
1B. Ancillary Costs......... $1,480.................. $5..................... $5.
1C. Conversion to Dry CCR $12,089................. 4,836.................. $0.
Disposal.
2. Regulatory Benefits ($230,817) to ($215,847) $1,168 to $7,965....... $593 to $3,983.
(2A+2B+2C+2D):
2A. Monetized Value of Human $504.................... $207................... $104.
Cancer Risks Avoided.
2B. Groundwater Remediation $466.................... $168................... $84.
Costs Avoided.
2C. CCR Impoundment Failure $1,762 to $16,732....... $793 to $7,590......... $405 to $3,795.
Cleanup Costs Avoided.
2D. Induced Impact on CCR ($233,549).............. N/A.................... N/A.
Beneficial Use.
3. Net Benefits (2-1)........... ($251,166) to ($236,196) ($6,927) to ($130)..... ($2,666) to $724.
4. Benefit/Cost Ratio (2/1)..... (11.343) to (10.607).... 0.144 to 0.984......... 0.182 to 1.222.
B. Average Annualized Equivalent
Values*.
1. Regulatory Costs (1A+1B+1C): $1,474.................. $587................... $236.
1A. Engineering Controls.... $491.................... $236................... $236.
1B. Ancillary Costs......... $107.................... $0.36.................. $0.36.
[[Page 35217]]
1C. Conversion to Dry CCR $876.................... $350................... $0.
Disposal.
2. Regulatory Benefits ($16,725) to ($15,640).. $85 to $577............ $43 to $289.
(2A+2B+2C+2D):
2A. Monetized Value of Human $37..................... $15.................... $8.
Cancer Risks Avoided.
2B. Groundwater Remediation $34..................... $12.................... $6.
Costs Avoided.
2C. CCR Impoundment Failure $128 to $1,212.......... $57 to $550............ $29 to $275.
Cleanup Costs Avoided.
2D. Induced Impact on CCR ($16,923)............... NA..................... NA.
Beneficial Use.
3. Net Benefits (2-1)........... ($18,199) to ($17,115).. ($502) to ($9)......... ($193) to $52.
4. Benefit/Cost Ratio (2/1)..... (11.347) to (10.610).... 0.145 to 0.983......... 0.182 to 1.225.
----------------------------------------------------------------------------------------------------------------
* Note: Average annualized equivalent values calculated by multiplying 50-year present values by a 50-year 7%
discount rate ``capital recovery factor'' of 0.07246.
Table 12--Comparison of Regulatory Benefits to Costs Under Scenario 3--No Change to Beneficial Use
[$Millions @ 2009$ prices @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
Subtitle C ``Special
Costs Waste'' Subtitle D Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
1. Regulatory Costs (1A+1B+1C): $20,349................. $8,095................. $3,259.
1A. Engineering Controls.... $6,780.................. $3,254................. $3,254.
1B. Ancillary Costs......... $1,480.................. $5..................... $5.
1C. Dry Conversion.......... $12,089................. 4,836.................. $0.
2. Regulatory Benefits $2,732 to $17,702....... $1,168 to $7,965....... $593 to $3,983.
(2A+2B+2C+2D):
2A. Monetized Value of Human $504.................... $207................... $104.
Cancer Risks Avoided.
2B. Groundwater Remediation $466.................... $168................... $84.
Costs Avoided.
2C. CCR Impoundment Failure $1,762 to $16,732....... $793 to $7,590......... $405 to $3,795.
Cleanup Costs Avoided.
2D. Induced Impact on CCR $0...................... $0..................... $0.
Beneficial Use.
3. Net Benefits (2-1)........... ($17,617) to ($2,647)... ($6,927) to ($130)..... ($2,666) to $724.
4. Benefit/Cost Ratio (2/1)..... 0.134 to 0.870.......... 0.144 to 0.984......... 0.182 to 1.222.
B. Average Annualized Equivalent
Values.
1. Regulatory Costs (1A+1B+1C): $1,474.................. $587................... $236.
1A. Engineering Controls.... $491.................... $236................... $236.
1B. Ancillary Costs......... $107.................... $0.36.................. $0.36.
1C. Dry Conversion.......... $876.................... $350................... $0.
2. Regulatory Benefits $198 to $1,283.......... $85 to $577............ $43 to $289.
(2A+2B+2C+2D):
2A. Monetized Value of Human $37..................... $15.................... $8.
Cancer Risks Avoided.
2B. Groundwater Remediation $34..................... $12.................... $6.
Costs Avoided.
2C. CCR Impoundment Failure $128 to $1,212.......... $57 to $550............ $29 to $275.
Cleanup Costs Avoided.
2D. Induced Impact on CCR $0...................... $0..................... $0.
Beneficial Use.
3. Net Benefits (2-1)........... ($1,277) to ($192)...... ($502) to ($9)......... ($193) to $52.
4. Benefit/Cost Ratio (2/1)..... 0.134 to 0.870.......... 0.145 to 0.983......... 0.182 to 1.225.
----------------------------------------------------------------------------------------------------------------
* Note: Average annualized equivalent values calculated by multiplying 50-year present values by a 50-year 7%
discount rate ``capital recovery factor'' of 0.07246.
[[Page 35218]]
EPA seeks comment on data and findings presented in the RIA, as
well as on the cost and benefit estimation uncertainty factors
identified in the RIA.
D. What are the potential environmental and public health impacts of
the proposed regulatory alternatives?
The potential environmental and public health impacts of CCR
regulation assessed within the RIA include the following three
categories:
Groundwater Benefits (human health benefits and cleanup
costs avoided)
Catastrophic Failure Benefits (catastrophic and
significant releases avoided)
Beneficial Use Benefits
The analyses of the groundwater impacts for the RIA were derived
based on results from the risk assessment that was conducted for coal
combustion residue landfills and surface impoundments. The second
category of catastrophic impacts in the RIA was assessed, primarily
based upon data on releases, as reported in EPA's 2009 Information
Collection Request. And finally, the RIA assessment of beneficial use
impacts was conducted using life-cycle analyses of current types and
quantities of CCR beneficial use in the U.S. While the RIA focuses on
monetizing these three impact categories, EPA notes that there are also
likely noncancer health impacts, ecological impacts, other surface
water impacts, and impacts on the ambient air, which are not monetized
in this RIA.
1. Environmental and Public Health Impacts Estimated in the RIA
Groundwater Impacts
In the RIA, EPA estimated the benefits of reduced cancer risks and
avoided groundwater remediation costs associated with controlling
arsenic from landfills and surface impoundments that manage coal
combustion residuals (CCRs). These estimates are based on EPA's risk
assessment, which predicts leaching behavior using SPLP and TCLP data.
Furthermore, recent research and damage cases indicate that these
leaching tests may under-predict risks from dry disposal.\164\
Therefore, the benefits estimated in this section are likely to
underestimate the actual benefits provided by the proposed rule. EPA
bases the cancer cases avoided on the individual ``excess'' lifetime
cancer probabilities reported in the risk assessment, although for the
present analysis, EPA uses more recent science on arsenic
carcinogenicity, reflected in more recent NRC research.
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\164\ Recent EPA research demonstrates that CCRs can leach
significantly more aggressively under different pH conditions
potentially present in disposal units. In U.S. EPA (2009c), a recent
ORD study of 34 facilities, CCRs from 19 facilities exceeded at
least one of the Toxicity Characteristic regulatory values for at
least one type of CCR (e.g., fly ash or FGD residue) at the self-
generated pH of the material. This behavior likely explains the
rapid migration of constituents from disposal sites like Chesapeake,
VA and Gambrills, MD. See also U.S. EPA (2006, 2008b).
---------------------------------------------------------------------------
The RIA began its groundwater impacts assessment by first
segregating facilities by their individual type of liner and their
respective Waste Management Unit (WMU) designations. For each class of
facility, GIS data were used to determine the potentially affected
populations of groundwater drinkers within 1-mile of the WMU. Results
from the risk assessment were applied to these populations by using a
linear extrapolation, starting from a risk of zero--to the peak future
risk as demonstrated by the risk assessment. The number of people who
might potentially get cancer was then adjusted to account for more
recent research by the NRC.
Given the number of total potential cancers, EPA was able to use
the same NRC data to split these cancers into lung cancers and bladder
cancers, as well as into those that resulted in death versus those that
did not. Once this subdivision was complete, EPA was then able to
monetize these cancers using accepted economic values for a statistical
life and cost of illness. In doing so, EPA was able to take account of
both the potential lag in cancer cessation and the increase in value of
a statistical life due to increases in income.
EPA also recognized that due to the relevant pre-existing state
regulations in this area, fewer cancers than the number projected would
ultimately occur. Therefore, a baseline was established for the
operation of state regulatory and remedial programs. This led to the
exclusion of some cancers where states would likely fill the gap in the
absence of any EPA regulations. However, once contamination was found
by states, cleanup costs would be incurred. Thus, EPA accounted for
these costs under each of the regulatory options as well.
Once groundwater remediation costs and cancer costs under the
baseline and each regulatory option were estimated, the aggregate
benefits from each regulatory option were calculated (in comparison to
the baseline). Net present value estimates were generated both at the
3% and 7% discount rate, as discussed in further detail within the RIA.
To summarize, at a discount rate of 7%, the net present value of the
groundwater benefits (including both the avoided cleanup costs and the
value of cancer cases avoided) from the proposed rule totaled $970
million under the subtitle C option, and $375 million under the
subtitle D option.
Catastrophic Failure Impacts
The 2008 surface impoundment failure at the TVA's Kingston, TN
power plant illustrated that the improper handling of CCRs can lead to
catastrophic releases. EPA's co-proposal for the management of CCRs
includes requirements that would lead to all plants with surface
impoundments converting to dry handling in landfills within 5-years of
rule implementation. In the RIA, EPA estimated the avoided catastrophic
failures and associated cleanup cost savings resulting from this
provision of the rule.
First, EPA began by characterizing the releases reported in its
2009 Information Collection Request. In this data set, 42 releases were
reported for the years 1995 through 2009. Particularly, there were 5
significant releases of between 1 million and 1 billion gallons, and
one catastrophic release of over 1 billion gallons during this time
period at coal fired power plants. Given these historic releases, EPA
projected the occurrence of future releases using a Poisson
distribution. EPA then estimated future avoided cleanup costs under the
two proposed rules, and determined net present values of these benefits
using both a 3% and 7% discount rate across the average and upper
percentiles of risk demonstrated by the results of the Poisson
distribution. The full details of these analyses are reported in the
RIA. To summarize the results here at the 7% discount rate, the
estimated net present value of avoided releases under the subtitle C
requirements total $1,762 million on average (with the upper-bound
estimates reaching from $3,140 to $4,177 million for the 90th and 99th
percentiles). And under the subtitle D requirements and discount rate
of 7%, the estimated net present value of avoided releases total $793
million on average (with the upper-bound estimates reaching from $1,413
to $1,880 million for the 90th and 99th percentiles).
In addition, a second Poisson distribution was developed as a
sensitivity analysis, using an alternative historical rate of
occurrence. This was done to see to what extent an increased release
rate would pose in terms of greater risks. Given the age of many CCR
surface impoundments, an increase in the release rate might be
expected. The cleanup costs avoided under the two co-proposed rules
were again calculated as described above and included in the
[[Page 35219]]
RIA, given this alternative higher occurrence rate. To summarize the
results of this sensitivity analysis, at a 7% discount rate the
estimated net present value of avoided releases under the subtitle C
requirements total $5,154 million on average (with the upper-bound
estimates reaching from $7,356 to $9,423 million for the 90th and 99th
percentiles). And under the subtitle D requirements and same discount
rate of 7%, the estimated net present value of avoided releases total
$2,319 million on average (with the upper-bound estimates reaching from
$3,310 to $4,240 million for the 90th and 99th percentiles).
Finally, a further sensitivity analysis was also performed to
determine the extent to which these benefits would change if the
catastrophic failures occurred sooner than projected by the Poisson
distribution. Here, 96 impoundments were identified that were at least
40 feet tall and at least 25 years old. For the purposes of the
assessment, benefit estimates were calculated based on assumed
impoundment failure rates of both 10% and 20%. The RIA includes net
present value estimates of the avoided cleanup costs under the two co-
proposed rules for these two assumed failure rates, which are
calculated using both 3% and 7% discount rates. Given the potential
earlier releases, the analyses in the RIA find that at a 7% discount
rate and a 10% failure rate, the net present value of avoided
catastrophic failure costs is $8,366 under subtitle C, versus $3,795
million under subtitle D. Furthermore, when assuming a failure rate of
20% rather than 10%, the estimated net present value of avoided
catastrophic failure costs increases to $16,732 million under Subtitle
C, versus $7,590 million under subtitle D.
Beneficial Use Impacts
The last category of such impacts assessed within the RIA includes
the potential effects that the different regulatory options for
disposal of coal combustion residuals (CCRs) may have upon the
quantities of CCRs that are being beneficially used. In the RIA, EPA
estimates the expected increase in beneficial use associated with the
increased costs of disposing CCRs, and also evaluates potential future
changes in the beneficial uses of CCRs as a result of a potential
``stigma'' effect.
To begin, EPA projected the quantity of CCRs that will be produced
in the future, based upon Energy Information Administration's (EIA)
estimates of future coal supply and demand. At the same time, EPA also
projected the growth in the percent of beneficial use that would take
place absent any EPA rule. Combining these, EPA was able to project the
total quantities of beneficially used CCRs under the baseline of no
federal rule.
However, it is anticipated that the increased CCR disposal costs
associated with a federal RCRA subtitle C rule, and the continued
application of the Bevill exclusion to CCRs that are beneficially used,
would provide significant incentive to electric utilities avoid higher
disposal costs by increasing the quantity of CCRs going to beneficial
use. Using the cost projections from the RIA for CCR disposal, EPA
assumed that there would initially be unit elasticity with respect to
cost, but that the elasticity would decrease with increasing market
saturation. Based upon these assumptions, EPA projected the increased
growth in beneficial use under a subtitle C rule. EPA then took the
monetized benefits of current beneficial use, and applied them to our
projected increases in beneficial use under the rule.
When monetized, the values of these increases are extremely large,
summing to a net present value of $5,560 million in economic benefits
at a 7% discount rate. Furthermore, when considering total social
benefits (e.g., decreased GHG emissions) the numbers are even greater,
resulting in $84,489 million at a 7% discount rate. (Please note that
because the total social benefits overlap with the economic benefits,
these numbers should not be added together.) This number represents
EPA's lower-bound estimate of the potential increase that it
anticipates will occur.
On the basis of past experience, EPA believes it is realistic to
expect that there is a possibility that recycling rates will increase
under a subtitle C rule, increasing the beneficial use of CCRs.
However, stakeholders have raised the potential issue of ``stigma.''
Thus, the RIA also assesses this potential stigma effect and develops
estimates of its potential impacts. Here, assumptions were made about
what losses or reductions might result among the various sectors
involved in the beneficial use of CCRs. For example, federally
purchased concrete was assumed to stay at baseline levels because of
the positive influence of comprehensive procurement guidelines that are
already in place to encourage such types of beneficial uses.
Conversely, for the purposes of assessing potential stigma effects, the
levels of non-federally purchased concrete were assumed to decrease
relative to the baseline.
When monetized, the values of these decreases are also large,
summing to a net present value of $18,744 million in economic costs at
a 7% discount rate. Furthermore, when considering total social benefits
(e.g., GHG emissions) the numbers are even greater, resulting in
$233,549 million in economic costs at a 7% discount rate. This number
represents EPA's estimate of the potential worst-case decrease that
could occur in the event of potential stigma effect.
Since the potential increases in beneficial use as discussed above
are driven largely by increases in disposal costs under the subtitle C
option, EPA further estimated the effects that would result under a
subtitle D rule by applying a ratio of the rule's respective costs
under both the C and D options. Using the ratio of the subtitle D costs
to the subtitle C costs (a ratio of 0.40:1); the net present value of
social benefits associated with increased beneficial use under subtitle
D would be approximately $33,796 million (at an assumed discount rate
of 7%). It is important to note further that under the subtitle D
option for the proposed rule, no such stigma effect would exist and is,
therefore, not accounted for in our analyses. However, to the extent
that a stigma effect is real, it could just as easily decrease
beneficial use under a subtitle D option.
2. Environmental and Public Health Impacts Not Estimated in the RIA
Impacts on Plants and Wildlife
The risk assessment estimated significant risk of adverse effects
to plants and wildlife, which is confirmed by the many impacts seen in
the existing damage cases and field studies published in the peer-
reviewed scientific literature. These include: elevated selenium levels
in migratory birds, wetland vegetative damage, fish kills, amphibian
deformities, snake metabolic effects, plant toxicity, elevated
contaminant levels in mammals as a result of environmental uptake, fish
deformities, and inhibited fish reproductive capacity. Requirements in
the proposed rule should prevent or reduce these impacts in the future
by limiting the extent of environmental contamination and thereby
reducing the levels directly available.
Impacts on Surface Water Not Captured in the RIA
In EPA's risk assessment, recreational fishers could be exposed to
constituents via the groundwater to surface water pathway. Furthermore,
State Pollutant Discharge Elimination System (SPDES) and National
Pollutant Discharge
[[Page 35220]]
Elimination System (NPDES) discharges from wet handling likely exceed
the discharges from groundwater to surface water. Thus, exposure to
arsenic via fish consumption could be significant. However, EPA expects
that most facilities will eventually switch to dry handling of CCRs, a
trend which is discussed in the RIA. This will reduce potential
exposures to these constituents from affected fish.
Impacts on Ambient Air
Another impact on public health not discussed in the RIA is the
potential reduction of excess cancer cases associated with hexavalent
chromium inhaled from the air. Since over six million individuals are
estimated to live within the Census population data ``zip code
tabulation areas'' for the plant location zip codes of coal-fired power
plants affected by this proposed rule,\165\ the potential population
health effects may be quite large. Inhalation of hexavalent chromium
has been shown to cause lung cancer.\166\ By requiring fugitive dust
controls, the proposed rule would reduce inhalation exposure to
hexavalent chromium near waste management units that are not currently
required to control fugitive dust.
---------------------------------------------------------------------------
\165\ U.S. EPA. Regulatory Impact Analysis for EPA's Proposed
Regulation of Coal Combustion Wastes Generated by the Electric
Utility Industry, 2009. Office of Resource Conservation and
Recovery.
\166\ ATSDR Texas. Available at: http://www.atsdr.cdc.gov/toxfaq.html.
---------------------------------------------------------------------------
Non-Cancer Health Effects Associated With CCR Particulate Matter
There are several non-cancer health effects associated with CCRs
are a result of particulate matter inhalation due to dry handling.
Human health effects for which EPA is evaluating causality due to
particulate matter exposure include cardiovascular morbidity,
respiratory morbidity, and mortality, reproductive and developmental
effects, and cancer.\167\ The potential for and extent of adverse
health effects due to fugitive dusts from dry handling of CCRs was
demonstrated in U.S. EPA 2010b, ``Inhalation of Fugitive Dust: A
Screening Assessment of the Risks Posed by Coal Combustion Waste
Landfills--DRAFT.'' The proposed rule's fugitive dust controls would
serve to manage such potential risks by bringing them to acceptable
levels.
---------------------------------------------------------------------------
\167\ Integrated Science Assessment for Particulate Matter:
First External Review Draft. EPA/600/R-08/139. Research Triangle
Park, NC: U.S. Environmental Protection Agency, Office of Research
and Development. 2008.
---------------------------------------------------------------------------
Particles can also be carried over long distances by wind and then
settle on ground or water. The effects of this settling include:
changing the pH of lakes and streams; changing the nutrient balance in
coastal waters and large river basins; depleting nutrients in soil;
damaging sensitive forests and farm crops; and affecting the diversity
of ecosystems.\168\ Additionally, fine particulates are known to
contribute to haze.\169\ Thus, the fugitive dust controls contained in
the proposed rule would improve visibility, and reduce the
environmental impacts discussed above.
---------------------------------------------------------------------------
\168\ http://www.epa.gov/particles/health.html.
\169\ Ibid.
---------------------------------------------------------------------------
XIII. Other Alternatives EPA Considered
In determining the level of regulation appropriate for the
management of CCRs, taking into account both the need for regulations
to protect human health and the environment and the practical
difficulties associated with implementation of such regulations, the
Agency considered a number of approaches in addition to regulating CCRs
under subtitle C or subtitle D of RCRA. Specifically, the Agency also
considered several combination approaches, such as regulating surface
impoundments under subtitle C of RCRA, while regulating landfills under
subtitle D of RCRA.
Under all of the approaches EPA considered, CCRs that were
beneficially used would retain the Bevill exemption. In addition, under
all the approaches, requirements for liners and ground water monitoring
would be established, as well as annual inspections of all CCR surface
impoundments by an independent registered professional engineer to
ensure that the design, operation, and maintenance of surface
impoundments are in accordance with recognized and generally accepted
good engineering standards. However, the degree and extent of EPA's
authority to promulgate certain requirements, such as permitting,
financial assurance, facility-wide corrective action, varies under RCRA
subtitle C versus subtitle D. In addition, the degree and extent of
federal oversight, including enforcement, varies based on whether a
regulation is promulgated under RCRA subtitle C or subtitle D
authority. (See Section IV. for a more detailed discussion on the
differences in EPA's authorities under RCRA subtitle C and subtitle D.)
Under one such approach, wet-handled CCRs--that is, those CCRs
managed in surface impoundments or similar management units--would be
regulated as a hazardous or special waste under RCRA subtitle C, while
dry handled CCRs--that is, those CCRs managed in landfills--would be
regulated under RCRA subtitle D. Wet-handled CCR wastes would be
regulated under the co-proposed subtitle C alternative described
earlier in the preamble (see section VI), while dry-handled CCRs would
be regulated under the co-proposed RCRA subtitle D alternative
described earlier in the preamble (see section IX). In addition, EPA
would retain the existing Bevill exemption for CCRs that are
beneficially used. Under this approach, EPA would establish modified
requirements for wet-handled CCRs, pursuant to RCRA 3004(x), as laid
out in the co-proposed subtitle C alternative.
This approach would have many of the benefits of both of today's
co-proposed regulations. For example, this approach provides a high
degree of federal oversight, including permit requirements and
federally enforceable requirements, for surface impoundments and
similar units that manage wet CCRs. Based on the results of our ground
water risk assessment, it would also provide a higher level of
protection for those wastes whose method of management presents the
greatest risks (i.e., surface impoundments). On the other hand, dry
CCRs managed in landfills, while still presenting a risk if the CCRs
are not properly managed, clearly present a lower risk, according to
the risk assessment and, therefore, a subtitle D approach might be more
appropriate. Also, landfills that manage CCRs are unlikely to present a
risk of catastrophic failure, such as that posed by surface
impoundments that contain large volumes of wet-handled CCRs. EPA also
believes this approach could address the concerns of many commenters
who expressed their views that subtitle C regulations would overwhelm
off-site disposal capacity and would place a stigma on beneficial uses
of CCRs.
Of course, this approach also shares the disadvantages of the
subtitle C approach, as it applies to surface impoundments, and of the
subtitle D approach, as it applies to landfills. For example, portions
of the rules applicable to surface impoundments would not become
enforceable until authorized states adopt the subtitle C regulations
and become authorized; and rules applicable to landfills would not be
directly federally enforceable. For a full discussion of the advantages
and disadvantages of the subtitle C and subtitle D options see sections
VI and IX.
Under another approach considered by EPA, the Agency would issue
the proposed subtitle C regulations, but they would not go into effect
for some time
[[Page 35221]]
period, such as three years, as an example, after promulgation. The
rule would include a condition that would exclude CCRs from regulation
under subtitle C of RCRA in states that: (l) Had developed final
enforceable subtitle D regulations that are protective of human health
and the environment,\170\ (2) had submitted those regulations to EPA
for review within two years after the promulgation date of EPA's
subtitle C rule, and (3) EPA had approved within one year, through a
process allowing for notice and comment, possibly comparable to the
current MSW subtitle D approval process. If a state failed to develop
such a program within the two year timeframe for state adoption of the
regulations or if EPA did not approve a state program within the one-
year timeframe for state approval, the hazardous waste or special waste
listing would become effective. Under this alternative, each state
would be evaluated individually, which could lead to a situation where
CCRs were managed as hazardous or special wastes in certain states,
while in other states, they would be managed as non-hazardous wastes.
Such an approach could present some implementation issues, particularly
if CCRs were transported across state lines. In addition, EPA has
serious questions as to whether RCRA, as currently drafted, would allow
EPA to promulgate such a regulation. However, EPA solicits comments on
this option, both generally and with respect to the specific time
frames.
---------------------------------------------------------------------------
\170\ Under this approach, EPA also would establish minimum
national standards that ensure that CCRs that are managed under the
``D'' regulations would be protective of human health and the
environment.
---------------------------------------------------------------------------
Commenters also have suggested an approach similar to that proposed
for cement kiln dust (CKD) in an August 20, 1999 proposed rule (see 64
FR 45632 available at http://www.epa.gov/fedrgstr/EPA-WASTE/1999/August/Day-20/f20546.htm). Under the CKD approach, the Agency would
establish detailed management standards under subtitle D of RCRA. CCRs
managed in accordance with the standards would not be a hazardous or
special waste. However, CCRs that were in egregious violation of these
requirements, such as disposal in land-based disposal units that were
not monitored for groundwater releases or in new units built without
liners, would be considered listed hazardous or special waste and
subject to the tailored subtitle C requirements. (EPA is soliciting
comment on this approach because commenters have suggested it;
interested commenters may wish to consult the CKD proposal for more
detail on how it would work. See 64 FR 45632 available at http://www.epa.gov/epawaste/nonhaz/industrial/special/ckd/ckd/ckd-fr.pdf).
Like the previous approach, EPA is evaluating (and in fact is re-
evaluating) this approach, and whether RCRA provides EPA the authority
to promulgate such a rule.
Other commenters suggested yet another approach whereby EPA would
regulate CCRs going for disposal under RCRA subtitle C, but they assert
that EPA would not have to specifically list CCR as a hazardous waste
using the criteria established in 40 CFR 261.11. These commenters
believe that RCRA Sec. 3001(b)(3)(A) (the so-called Bevill Amendment)
authorizes the Agency to regulate CCRs under subtitle C as long as the
Agency determines that subtitle C regulation is warranted based on the
consideration of the eight factors identified in RCRA Sec. 8002(n).
The commenters analysis of their approach is set forth in a memorandum
submitted to the Agency and is in the docket for today's notice. EPA
has not adopted the commenters suggested reading of the statute, but
solicits comments on it. (See ``EPA Has Clear Authority to Regulate CCW
under RCRA's Subtitle C without Making a Formal Listing
Determination,'' White Paper from Eric Schaeffer, Environmental
Integrity Project which is available in the docket for this proposal.)
Finally, some commenters have suggested that EPA not promulgate any
standards, whether it be RCRA subtitle C or D, but continue to rely on
the states to regulate CCRs under their existing or new state
authority, and that EPA could rely on RCRA section 7003 (imminent and
substantial endangerment) authority, to the extent the Agency had
information that a problem existed that it needed to address. The
Agency does not believe that such an approach is at all acceptable, and
that national regulations whether it be under RCRA subtitle C or D
needs to be promulgated. First, RCRA was designed as a preventative
statute and not one where EPA would get involved only after a problem
has been discovered. Thus, such an approach would not be consistent
with the purpose and objectives of RCRA. In addition, this approach
would basically implement the status quo--that is, the control of CCRs
over the last decade, which the Agency believes has not shown to be at
all acceptable. Furthermore, imminent and substantial endangerment
authority is facility-specific and resource intensive. That is, such
authority can only be used when EPA has sufficient information to
determine that disposal of CCRs are contributing to an imminent and
substantial endangerment. Thus, relying on this authority, without
national regulations, is poorly suited to address the many problems
that have occurred, and are likely to occur in the future.
Nevertheless, the Agency solicits comment on such an approach.
EPA solicits comments on all of the approaches discussed above. The
Agency is still considering all of these approaches, as well as our
legal authorities to promulgate them, and will continue to do so as we
move toward finalizing the regulations applicable to the disposal of
CCRs.
XIV. Is the EPA soliciting comments on specific issues?
Throughout today's preamble, the Agency has identified many issues
for which it is soliciting comment along with supporting information
and data. In order to assist readers in providing EPA comments and
supporting information, in this section EPA is identifying many of the
major issues on which comments with supporting information and data are
requested.
Management of CCRs
Whether regulatory approaches should be established
individually for the four Bevill CCR wastes (fly ash, bottom ash,
boiler slag, and FGD sludges) when destined for disposal.
The extent to which the information currently available to
EPA reflects current industry practices at both older and new units.
The regulatory approaches proposed in the notice and the
alternative approaches EPA is considering as discussed in Section XIII
of the preamble.
The Agency has documented, through proven damage cases and
risk analyses, that the wet handling of CCRs in surface impoundments
poses higher risks to human health and the environment than the dry
handling of CCRs in landfills. EPA seeks comments on the standards
proposed in this notice to protect human health and the environment
from the wet handling of CCRs. For example, in light of the TVA
Kingston, Tennessee, and the Martins Creek, Pennsylvania CCR
impoundment failures, should the Agency require that owners or
operators of existing and new CCR surface impoundments submit emergency
response plans to the regulatory authority if wet handling of CCRs is
practiced?
The degree to which coal refuse management practices have
changed and the impacts of those changes or, for
[[Page 35222]]
example, groundwater monitoring and the use of liners.
Information and data on CCRs that are generated by non-
utility industries, such as volumes generated, characteristics of the
CCRs, and whether they are co-managed with other wastes generated by
the non-utility industry.
Risk Assessment
Are there any additional data that are representative of
CCR constituents in surface impoundment or landfill leachate (from
literature, state files, industry or other sources) that EPA has not
identified and should be used in evaluating the risks presented by the
land disposal of CCRs?
The screening analysis conducted to estimate risks from
fugitive CCR dust; data from any ambient air monitoring for particulate
matter that has been conducted; where air monitoring stations are
located near CCR landfills or surface impoundments; and information on
any techniques, such as wetting, compaction, or daily cover that are or
can be employed to reduce such exposures.
Whether site-averaged porewater data used in model runs in
EPA's risk analyses are representative of leachate from surface
impoundments.
Information and data regarding the existence of drinking
water wells that are down-gradient of CCR disposal units, any
monitoring data that exists on those monitoring wells and the potential
of these wells to be intercepted by surface water bodies.
Liners
Whether, in addition to the flexibility provided by
section 3004(o)(2), regulations should also provide for alternative
liner designs based on, for example, a specific performance standard,
such as the performance standard in 40 CFR 258.40(a)(1), or a site
specific risk assessment, or a standard that the alternative liner,
such as a clay liner, was at least as effective as the composite liner.
Whether clay liners designed to meet a 1 x 10-7
cm/sec hydraulic conductivity might perform differently in practice
than modeled in the risk assessment, including specific data on the
hydraulic conductivity of clay liners associated with CCR disposal
units.
The effectiveness of such additives as organosilanes,
including any analyses that would reflect long-term performance of the
additives, as well as the appropriateness of a performance standard
that would allow the use of these additives in lieu of composite
liners.
Beneficial Use
The growth and maturation of state beneficial use programs
and the growing recognition that the beneficial use of CCRs is a
critical component in strategies to reduce GHG emissions taking into
account the potentially changing composition of CCRs as a result of
improved air pollution controls and the new science on metals leaching.
Information and data on the extent to which states request
and evaluate CCR characterization data prior to the beneficial use of
unencapsulated CCRs.
The appropriate means of characterizing beneficial uses
that are both protective of human health and the environment and
provide benefits. EPA is also requesting information and data
demonstrating where the federal and state programs could improve on
being environmentally protective and, where states have, or are
developing, increasingly effective beneficial use programs.
Whether certain uses of CCRs (e.g., uses involving
unencapsulated uses of CCRs) warrant tighter control and why such
tighter control is necessary.
If EPA determines that regulations are needed for the
beneficial use of CCRs, should EPA consider removing the Bevill
exemption for such uses and regulate these uses under RCRA subtitle C,
develop regulations under RCRA subtitle D or some other statutory
authority, such as under the Toxic Substances Control Act?
Whether it is necessary to define beneficial use better or
develop detailed guidance on the beneficial use of CCRs to ensure
protection of human health and the environment, including whether
certain unencapsulated beneficial uses should be prohibited.
Whether the Agency should promulgate standards allowing
uses on the land, on a site-specific basis, based on site specific risk
assessments, taking into consideration the composition of CCRs, their
leaching potential under the range of conditions under which the CCRs
would be managed, and the context in which CCRs would be applied, such
as location, volume, rate of application, and proximity to water.
If materials characterization is required, what type of
characterization is most appropriate? If the CCRs exceed the toxicity
characteristic at pH levels different from the TCLP, should they be
excluded from beneficial use? When are totals levels relevant?
Whether EPA should fully develop a leaching assessment
tool in combination with the Draft SW-846 leaching test methods
described in Section I. F. 2 and other tools (e.g., USEPA's Industrial
Waste Management Evaluation Model (IWEM)) to aid prospective beneficial
users in calculating potential release rates over a specified period of
time for a range of management scenarios.
Information and data relating to the agricultural use of
FGD gypsum, including the submission of historical data, taking into
account the impact of pH on leaching potential of metals, the variable
and changing nature of CCRs, and variable site conditions.
Historically, EPA has proposed or imposed conditions on
other types of hazardous wastes used in a manner constituting disposal
(e.g., maximum application rates and risk-based concentration limits
for cement kiln dust used as a liming agent in agricultural
applications (see 64 FR 45639; August 20, 1999); maximum allowable
total concentrations for non-nutritive and toxic metals in zinc
fertilizers produced from recycled hazardous secondary materials (see
67 FR 48393; July 24, 2002). Should EPA establish standards, such as
maximum/minimum thresholds, or rely on implementing states to impose
CCR site-specific limits based on front-end characterization that
ensures individual beneficial uses remain protective?
Whether additional beneficial uses of CCRs have been
established, since the May 2000 Regulatory Determination, that have not
been discussed elsewhere in today's preamble. The Agency solicits
comment on any new uses of CCR, as well as the information and data
which support that CCRs are beneficially used in an environmentally
sound manner.
Whether there are incentives that could be provided that
would increase the amount of CCRs that are beneficially used and
comment on specific incentives that EPA could adopt that would further
encourage the beneficial use of CCRs.
Information and data on the best means for estimating
current and future quantities and changes in the beneficial use of
CCRs, as well as on the price elasticity of CCR applications in the
beneficial use market.
Stigma
If EPA were to regulate CCRs as a ``special waste'' under
subtitle C of RCRA, and stigma turns out to be an issue, suggestions on
methods by which the Agency could reduce any stigmatic impact that
might indirectly arise. We are seeking information on actual instances
where ``stigma'' has adversely affected the beneficial use of CCRs and
the causes of these adverse effects.
The issue of ``stigma'' and its impact on beneficial uses
of CCRs, including
[[Page 35223]]
more specifics on the potential for procedural difficulties for state
programs, and measures that EPA might adopt to try to mitigate these
effects.
For those commenters who argue that regulating CCRs under
subtitle C of RCRA would raise liability issues, EPA requests that
commenters describe the types of liability and the basis/data/
information on which these claims are based.
EPA furthermore welcomes ideas on how to best estimate
these effects for purposes of conducting regulatory impact analysis,
and requests any data or methods that would assist in this effort.
Today's Co-Proposed Regulations
General
Some commenters have suggested that EPA not promulgate any
standards, whether they be RCRA subtitle C or D, but continue to rely
on the states to regulate CCRs under their existing or new state
authorities. The Agency solicits comment on such an approach, including
how such an approach would be protective of human health and the
environment.
RCRA Subtitle C Regulations
Whether EPA should modify the corrective action
requirements for facility-wide corrective action under the subtitle C
co-proposal under the authority of section 3004(x) of RCRA. If so, how
such modification would be protective of human health and the
environment.
Pursuant to RCRA section 3010 and 40 CFR 270.1(b),
facilities managing these special wastes subject to RCRA subtitle C
must notify EPA of their waste management activities within 90 days
after the wastes are identified or listed as a special waste. The
Agency is proposing to waive this notification requirement for persons
who handle CCRs and have already: (1) notified EPA that they manage
hazardous wastes, and (2) received an EPA identification number. Should
such persons be required to re-notify the Agency that they generate,
transport, treat, store or dispose of CCRs?
Representatives of the utility industry have stated their
view that CCRs cannot be practically or cost effectively managed under
the existing RCRA subtitle C storage standards, and that these
standards impose significant costs without meaningful benefits when
applied specifically to CCRs. Comments are solicited on the
practicality of the proposed subtitle C storage requirements for CCRs,
the workability of the existing variance process allowing alternatives
to secondary containment, and the alternative requirements based, for
example, on the mining and mineral processing waste storage
requirements.
RCRA Subtitle D Regulations
EPA broadly solicits comment on the approach of relying on
certifications by independent registered professional hydrologists or
engineers of the adequacy of actions taken at coal-fired utilities to
design and operate safe waste management systems.
The Agency does not have specific data showing the number
of CCR landfills located in fault areas where movement along Holocene
faults is common, and the distance between these units and the active
faults and, thus, is unable to precisely estimate the number of these
existing CCR landfills that would not meet today's proposed fault area
restrictions. Additional information regarding the extent to which
existing landfills are currently located in such locations is
solicited.
In general, EPA believes that a 200-foot buffer zone is
necessary to protect engineered structures from seismic damages and
also expects that the 200-foot buffer is appropriate for CCR surface
impoundments. The Agency seeks comment and data on whether the buffer
zone should be greater for surface impoundments.
Additional information regarding the extent to which
landfill capacity would be affected by applying the proposed subtitle D
location restrictions to existing CCR landfills.
The proposed location requirements do not reflect a
complete prohibition on siting facilities in areas of concern, but
provide a performance standard that facilities must meet in order to
site a unit in such a location. Information on the extent to which
facilities could comply with the proposed performance standards, and
the necessary costs that would be incurred to retrofit CCR disposal
units to meet these standards is solicited.
The proposed definition of seismic impact zones and
whether there are variants that could lessen the burden on the industry
and the geographic areas covered by the proposed definition.
Whether the subtitle D option, if promulgated, should
allow facilities to use alternative designs for new disposal units, so
long as the owner or operator of a unit could obtain certification from
an independent registered professional engineer or hydrologist that the
alternative design would ensure that the appropriate concentration
values for a set of constituents typical of CCRs will not be exceeded
in the uppermost aquifer at the relevant point of compliance (i.e., 150
meters from the unit boundary down gradient from the unit, or the
property boundary if the point of compliance is beyond the property
boundary).
Whether there could be homeland security implications with
the requirement to post information on an internet site and whether
posting certain information on the internet may duplicate information
that is already available to the public through the State.
Whether the subtitle ``D prime'' option is protective of
human health and the environment.
EPA is proposing that existing CCR landfills and surface
impoundments that cannot make a showing that a CCR landfill or surface
impoundment can be operated safely in a floodplain or unstable area
must close within five years after the effective date of the rule. EPA
solicits comment on the appropriate amount of time necessary to meet
this requirement, as well as measures that could help to address the
potential for inadequate disposal capacity.
The effectiveness of annual surface impoundment
assessments in ensuring the structural integrity of CCR surface
impoundments over the long term.
Surface Impoundment Closeout
Whether the Agency should provide for a variance process
allowing some surface impoundments that manage wet-handled CCRs to
remain in operation because they present minimal risk to groundwater
(e.g., because they have a composite liner) and minimal risk of a
catastrophic release (e.g., as indicated by a low or less than low
potential hazard rating under the Federal Guidelines for Dam Safety
established by the Federal Emergency Management Agency).
Surface Impoundment Stability
The adequacy of EPA's proposals to address surface
impoundment integrity under RCRA.
Whether to address all CCR impoundments for stability,
regardless of height and storage volume; whether to use the cut-offs in
the MSHA regulations; or whether other regulations, approaches, or size
cut-offs should be used. If commenters believe that other regulations
or different size cut-offs should be adopted, we request that
commenters provide the basis and technical support for their position.
Whether surface impoundment integrity should be addressed
under EPA's NPDES permit program, rather than the development of
regulations under RCRA, whether it be RCRA subtitles C or D.
[[Page 35224]]
Financial Assurance
EPA broadly solicits comments on whether financial
assurance should be a key program element under a subtitle D approach,
if the decision is made to promulgate regulations under RCRA subtitle
D.
Whether financial responsibility requirements under CERCLA
Sec. 108(b) should be a key Agency focus for ensuring that funds are
available for addressing the mismanagement of CCRs.
How the financial assurance requirements might apply to
surface impoundments that cease receiving CCRs before the effective
date of the rule.
Whether a financial test similar to that in 40 CFR
258.74(f) in the Criteria for Municipal Solid Waste Landfills should be
established for local governments that own and operate coal-fired power
plants.
State Programs
Detailed information on current and past individual state
regulatory and non-regulatory approaches taken to ensure the safe
management of CCRs, not only under State waste authorities, but under
other authorities as well, including the implementation of those
approaches.
The potential of federal regulations to cause disruption
to States' implementation of CCR regulatory programs under their own
authorities, including more specifics on the potential for procedural
difficulties for State programs, and measures that EPA might adopt to
try to mitigate these effects.
Damage Cases
EPRI's report and additional data regarding the proven
damage cases identified by EPA, especially the degree to which there
was off-site contamination.
The report of additional damage cases submitted to EPA on
February 24, 2010 by the Environmental Integrity Project and
EarthJustice.
Regulatory Impact Analysis
Data and findings presented in the RIA, as well as on the
cost and benefit estimation uncertainty factors identified in the RIA.
Data on the costs of converting coal fired power plants
from wet handling to dry handling with respect to the various air
pollution controls, transportation systems, disposal units, and other
heterogeneous factors.
Relevant RCRA corrective actions and related costs that
would be useful in characterizing the potential costs for future
actions.
Information on other significant and catastrophic surface
impoundment releases of CCRs or other similar materials and cleanup
costs associated with these releases?
Data on the costs of storage of CCRs in tanks or tank
systems, on pads, or in buildings.
EPA has also quantified and monetized the benefits of this
rule to the extent possible based on available data and modeling tools,
but welcomes additional data that may be available that would assist
the Agency in expanding and refining our existing benefit estimates.
XV. Executive Orders and Laws Addressed in This Action
A. Executive Order 12866: Regulatory Planning and Review
Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735,
October 4, 1993), this action is an ``economically significant
regulatory action'' because it is likely to have an annual effect on
the economy of $100 million or more (section 3(f)(1)). This
determination is based on the regulatory cost estimates provided in
EPA's ``Regulatory Impact Analysis'' (RIA) which is available in the
docket for this proposal. The RIA estimated regulatory implementation
and compliance costs, benefits and net benefits for a number of
regulatory options, including a subtitle C ``special waste'' option, a
subtitle D option and, a subtitle ``D prime'' option. The subtitle D
prime option was briefly described in the Preamble and is more fully
discussed in the RIA to the co-proposal. On an average annualized
basis, the estimated regulatory compliance costs for the three options
in today's proposed action are $1,474 million (subtitle C special
waste), $587 million (subtitle D), and $236 million (subtitle ``D
prime'') per year. On an average annualized basis, the estimated
regulatory benefits for the three options in today's proposed action
are $6,320 to $7,405 million (subtitle C special waste), $2,533 to
$3,026 million (subtitle D), and $1,023 to $1,268 million (subtitle ``D
prime'') per year. On an average annualized basis, the estimated
regulatory net benefits for the three options in today's proposed
action are $4,845 to $5,930 million (subtitle C special waste), $1,947
to $2,439 million (subtitle D), and $786 to $1,032 million (subtitle
``D prime'') per year. All options exceed $100 million in expected
future annual effect. Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under EO 12866, and
changes made in response to OMB recommendations are documented in the
docket for this proposal.
B. Paperwork Reduction Act
The information collection requirements contained in this proposed
rule has been submitted for approval to the Office of Management and
Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
The Information Collection Request (ICR) document prepared by EPA has
been assigned EPA ICR number 1189.22.
Today's action co-proposes two regulatory alternatives that would
regulate the disposal of CCRs under RCRA. The regulatory options
described in today's notice contain mandatory information collection
requirements. One of the regulatory options (subtitle C special waste
option) would also trigger mandatory emergency notification
requirements for releases of hazardous substances to the environment
under CERCLA and EPCRA. The labor hour burden and associated cost for
these requirements are estimated in the ICR ``Supporting Statement''
for today's proposed action. The Supporting Statement identifies and
estimates the burden for the following nine categories of information
collection: (the proposed options also contain other regulatory
requirements not listed here because they do not involve information
collection).
1. Groundwater monitoring
2. Post-closure groundwater monitoring
3. RCRA manifest cost (for subtitle C only)
4. Added cost of RCRA subtitle C permits for all offsite CCR landfills
5. Structural integrity inspections
6. RCRA facility-wide investigation (for subtitle C only)
7. RCRA TSDF hazardous waste disposal permit (for subtitle C only)
8. RCRA enforcement inspection (for subtitle C only)
9. Recordkeeping requirements
Based on the same data and cost calculations applied in the
``Regulatory Impact Analysis'' (RIA) for today's action, but using the
burden estimation methods for ICRs, the ICR ``Supporting Statement''
estimates an average annual labor hour burden of 2.88 million hours for
the subtitle C ``special waste'' option and 1.38 million hours for both
the subtitle D and ``D prime'' options at an average annual cost of
$192.93 million for the subtitle C ``special waste'' option and $92.6
million for both the subtitle D options. One-time capital and hourly
costs are included in these estimates based on a three-year
annualization period. The estimated number of likely respondents (under
the options) ranges
[[Page 35225]]
from 90 to 495, depending on the information category enumerated above.
Burden is defined at 5 CFR 1320.3(b). An Agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
The OMB control numbers for EPA's regulations in 40 CFR are listed in
40 CFR part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2009-0640. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after June 21, 2010, a comment to OMB is best assured of having its
full effect if OMB receives it by July 21, 2010. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the Agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities in the electric utility industry, small entity is defined as:
(1) A small fossil fuel electric utility plant as defined by NAICS code
221112 with a threshold of less than four million megawatt-hours of
electricity output generated per year (based on Small Business
Administration size standards); (2) a small governmental jurisdiction
that is a government based on municipalities with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
EPA certifies that this action will not have a significant economic
impact on a substantial number of small entities (i.e., no SISNOSE).
EPA nonetheless continues to be interested in the potential impacts of
the proposed rule on small entities and welcomes comments on issues
related to such impacts, including our estimated count of small
entities that own the 495 electric utility plants covered by this rule.
This certification is based on the small business analysis contained in
the RIA for today's proposal, which contains the following findings and
estimates.
The RIA identifies 495 electric utility plants likely
affected by the proposed rule, based on 2007 data. The RIA estimates
these 495 plants are owned by 200 entities consisting of 121 companies,
18 cooperative organizations, 60 state or local governmental
jurisdictions, and one Federal government Agency. The RIA estimates
that 51 of these 200 owner entities (i.e., 26%) may be classified as
small entities, consisting of 33 small municipal governments, 11 small
companies, 6 small cooperatives, plus 1 small county government.
The RIA includes a set of higher cost estimates for the
regulatory options and the RFA evaluation is based on these estimates
and therefore overestimates potential impacts of our proposed
regulations. The RIA estimated that (a) None of the 51 small entities
may experience average annualized regulatory compliance costs of
greater than three percent of annual revenues, (b) one to five of the
51 small entities (i.e., 2% to 10%) may experience regulatory costs
greater than one percent of annual revenues, and (c) 46 to 50 of the
small entities (i.e., 90% to 98%) may experience regulatory costs less
than one percent of annual revenues. These percentages constitute the
basis for today's no-SISNOSE certification.
As analyzed in the RIA, there are two electricity market factors
which may be expected to reduce or eliminate these potential revenue
impacts on small entities, as well as for the other owner entities for
the 495 plants:
Electric utility plants have a mechanism to cover
operating cost increases via rate hike petitions to public utility
commissions in states which regulate public utilities, and via market
price increases in the 18 states (as of 2008) which have de-regulated
electric utilities, and
The residential, commercial, industrial, and
transportation sector economic demand for (i.e., consumption of)
electricity is relatively price inelastic, which suggests that electric
utility plants may succeed in passing through most or all regulatory
costs to their electricity customers.
However, because the Agency is sensitive to any potential impacts
its regulations may have on small entities, the Agency requests comment
on its analysis, and its finding that this action is not expected to
have a significant economic impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory actions on
State, local, and tribal governments and the private sector. This co-
proposal contains a Federal mandate that may result in expenditures of
$100 million or more for State, local, and tribal governments, in the
aggregate, or for the private sector, in any one year.
The RIA includes a set of higher cost estimates for the regulatory
options and the UMRA evaluation is based on these estimates and
therefore overestimates the potential impacts of this co-proposal.
Accordingly, EPA has prepared under section 202 of the UMRA a ``Written
Statement'' (an appendix to the RIA) which is summarized below. Today's
co-proposal will likely affect 495 electric utility plants owned by an
estimated 200 entities, of which 139 private sector electric utility
companies and cooperatives may incur between $415 million to $1,999
million in future annual direct costs across the high-end options in
the RIA, which exceed the $100 million UMRA direct cost threshold under
each of the regulatory options. In addition, 60 entities are state or
local governments which may incur between $56 million to $97 million in
future annual direct costs across the regulatory options, the upper-end
of which is slightly under the $100 million UMRA direct cost threshold.
The remainder single entity is a Federal government Agency (i.e.,
Tennessee Valley Authority).
Although the estimated annual direct cost on state or local
governments is less than the $100 million UMRA threshold, (a) because
the highest-cost regulatory option is only 3% less than the $100
million annual direct cost threshold, and (b) because there are a
number of uncertainty factors (as identified in the RIA) which could
result in regulatory costs being lower or higher than estimated, EPA
consulted with small governments according to EPA's UMRA interim small
government consultation
[[Page 35226]]
plan developed pursuant to section 203 of the UMRA. EPA's interim plan
provides for two types of possible small government input: technical
input and administrative input. According to this plan, and consistent
with section 204 of the UMRA, early in the process for developing
today's co-proposal, the Agency implemented a small government
consultation process consisting of two consultation components.
A series of meetings in calendar year 2009 were held with
the purpose of acquiring small government technical input, including:
(1) A February 27 meeting with ASTSWMO's Coal Ash Workgroup
(Washington, DC); (2) a March 22-24 meeting with ECOS at their Spring
Meeting (Alexandria VA); (3) a April 15-16 meeting with ASTSWMO at
their Mid-Year Meeting (Columbus OH), (4) a May 12-13 meeting at the
EPA Region IV State Directors Meeting (Atlanta, GA), (5) a June 17-18
meeting at the ASTSWMO Solid Waste Managers Conference (New Orleans,
LA), (6) a July 21-23 meeting at ASTSWMO's Board of Directors Meeting
(Seattle, WA), and (7) an August 12 meeting at ASTSWMO's Hazardous
Waste Subcommittee Meeting (Washington, DC). ASTSWMO is an organization
with a mission to work closely with EPA to ensure that its state
government members are aware of the most current developments related
to their state waste management programs. ECOS is a national non-
profit, non-partisan association of state and territorial environmental
Agency leaders. As a result of these meetings, EPA received letters in
mid-2009 from 22 state governments, as well as a letter from ASTSWMO
expressing their stance on CCR disposal regulatory options.
Letters were mailed on August 24, 2009 to the following 10
organizations representing state and local elected officials, to inform
them and seek their input for today's proposed rulemaking, as well as
to invite them to a meeting held on September 16, 2009 in Washington,
DC: (1) National Governors Association; (2) National Conference of
State Legislatures, (3) Council of State Governments, (4) National
League of Cities, (5) U.S. Conference of Mayors, (6) County Executives
of America, (7) National Association of Counties, (8) International
City/County Management Association, (9) National Association of Towns
and Townships, and (10) ECOS. These 10 organizations of elected state
and local officials are identified in EPA's November 2008 Federalism
guidance as the ``Big 10'' organizations appropriate to contact for
purpose of consultation with elected officials. EPA has received
written comments from a number of these organizations and a copy of
their comments has been placed in the docket for this rulemaking. The
commenters express significant concerns with classifying CCRs as a
hazardous waste. Their major concerns are that federal regulation could
undercut or be duplicative of State regulations; that any federal
regulation will have a great impact on already limited State resources;
and that such a rule would have a negative effect on beneficial use. A
number of commenters also raise the issue of the cost to their
facilities of a subtitle C rule, particularly increased disposal costs
and the potential shortage of hazardous waste disposal capacity.
Consistent with section 205 of UMRA, EPA identified and considered
a reasonable number of regulatory alternatives. Today's proposed rule
identifies a number of regulatory options, and EPA's RIA estimates that
the average annual direct cost to industry across the three originally
considered options (e.g. as reflected in the RIA in Exhibit 7L) may
range between $415 million to $1,999 million. Section 205 of the UMRA
requires Federal agencies to select the least costly or most cost-
effective regulatory alternative unless the Agency publishes with the
final rule an explanation of why such alternative was not adopted. We
are co-proposing two regulatory options in today's notice involving
RCRA subtitle C ``special waste'' and subtitle D. The justification for
co-proposing the higher-cost options is that this provides for greater
benefits and protection of public health and the environment by phasing
out surface impoundments, compared to the lower cost subtitle D prime
option.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under Executive Order 13132, EPA may not issue a regulation that
has federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation.
EPA has concluded that this proposed rule may have federalism
implications, because it may impose substantial direct compliance costs
on State or local governments, and the Federal government may not
provide the funds necessary to pay those costs. Accordingly, EPA
provides the following federalism summary impact statement as required
by section 6(b) of Executive Order 13132.
The RIA includes a set of higher cost estimates for the regulatory
options and the Federalism evaluation is based on these estimates and,
therefore, overestimates the potential impacts of our proposal.
Based on the estimates in EPA's RIA for today's action, the
proposed regulatory options, if promulgated, may have federalism
implications because the options may impose between $56 million to $97
million in annual direct compliance costs on 60 state or local
governments. These 60 state and local governments consist of 33 small
municipal government jurisdictions, 19 non-small municipal government
jurisdictions, 7 state government jurisdictions, and one county
government jurisdiction. In addition, the 48 state governments with
RCRA-authorized programs for the proposed regulatory options may incur
between $0.05 million to over $5.4 million in added annual
administrative costs involving the 495 electric utility plants for
reviewing and enforcing the various requirements. Based on these
estimates, the expected annual cost to state and local governments for
at least one of the regulatory options described in today's notice
exceeds the $25 million per year ``substantial compliance cost''
threshold defined in section 1.2(A)(1) of EPA's November 2008
``Guidance on Executive Order 13132: Federalism.'' In developing the
regulatory options described in today's notice, EPA consulted with 10
national organizations representing state and local elected officials
to ensure meaningful and timely input by state/local governments,
consisting of two consultation components, which is described under the
UMRA Executive Order discussion.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this co-
[[Page 35227]]
proposal from elected State and local government officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (65 FR 67249-67252, November 9, 2000)
requires Federal agencies to provide funds to tribes, consult with
tribes, and to conduct a tribal summary impact statement, for
regulations and other actions which are expected to impose substantial
direct compliance costs on one or more Indian tribal governments.
Today's co-proposal, whether under subtitle C or subtitle D authority,
is likely to impose direct compliance costs on an estimated 495 coal-
fired electric utility plants. This estimated plant count is based on
operating plants according to the most recent (2007) data available as
of mid-2009 from the DOE's Energy Information Administration ``Existing
Generating Units in the United States by State, Company and Plant
2007.'' Based on information published by the Center for Media and
Democracy,\171\ three of the 495 plants are located on tribal lands,
but are not owned by tribal governments: (1) Navajo Generating Station
in Coconino County, Arizona owned by the Salt River Project; (2)
Bonanza Power Plant in Uintah County, Utah owned by the Deseret
Generation and Transmission Cooperative; and (3) Four Corners Power
Plant in San Juan County, New Mexico owned by the Arizona Public
Service Company. The Navajo Generating Station and the Four Corners
Power Plant are on lands belonging to the Navajo Nation, while the
Bonanza Power Plant is located on the Uintah and Ouray Reservation of
the Ute Indian Tribe. According to this same information source, there
is one additional coal-fired electric utility plant planned for
construction on Navajo Nation tribal land near Farmington, New Mexico,
but to be owned by a non-tribal entity (the Desert Rock Energy Facility
to be owned by the Desert Rock Energy Company, a Sithe Global Power
subsidiary). Because none of the 495 plants are owned by tribal
governments, this action does not have tribal implications as specified
in Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action. EPA solicits comment on the accuracy of the information
used for this determination. EPA met with a Tribal President, whose
Tribe owns a cement plant, and who was concerned about the adverse
impact of designating coal combustion residuals as a hazardous waste
and the effect that a hazardous waste designation would have on the
plant's business. We assured the Tribal President that we are aware of
the ``stigma'' concerns related to a hazardous waste listing and will
be analyzing that issue throughout the rulemaking process.
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\171\ The Center for Media and Democracy (CMD) was founded in
1993 as an independent, non-profit, non-partisan, public interest
organization. Information about electric utility plants located on
tribal lands is from CMD's SourceWatch Encyclopedia at: http://www.sourcewatch.org/index.php?title=Coal_and_Native_American_tribal_lands.
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G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order (EO) 13045 (62 FR 19885, April 23, 1997)
establishes federal executive policy on children's health and safety
risks. Its main provision directs federal agencies, to the greatest
extent practicable and permitted by law, to make it a high priority to
identify and assess environmental health risks and safety risks that
may disproportionately affect children in the United States. EPA has
conducted a risk assessment which includes evaluation of child exposure
scenarios, as well as has evaluated Census child population data
surrounding the 495 plants affected by today's co-proposal, because
today's action meets both of the two criteria for ``covered regulatory
actions'' defined by Section 2-202 of EO 13045: (a) today's co-proposal
is expected to be an ``economically significant'' regulatory action as
defined by EO 12866, and (b) based on the risk analysis discussed
elsewhere in today's notice, the environmental and safety hazards
addressed by this action may have a disproportionate effect on
children.
For each covered regulatory action, such as today's action, Section
5 of EO 13045 requires federal agencies (a) to evaluate the
environmental health or safety effects of the planned regulation on
children, and (b) to explain why the planned regulation is preferable
to other potentially effective and reasonably feasible alternatives
considered by the Agency. The remainder of this section below addresses
both of these requirements, as well as presents a summary of the human
health risk assessment findings with respect to child exposure
scenarios, and the results of the child demographic data evaluation.
G1. Evaluation of Environmental Health and Safety Effects on Children
EPA conducted a risk evaluation consisting of two steps, focusing
on environmental and health effects to adults and to children that may
occur due to groundwater contamination. The first step, conducted in
2002, was a screening effort targeting selected hazardous chemical
constituents that appeared to be the most likely to pose risks. The
second step, conducted between 2003 and 2009, consisted of more
detailed ``probabilistic'' modeling for those constituents identified
in the screening as needing further evaluation. Constituents that may
cause either cancer or non-cancer effects in humans (i.e., both adults
and children) were evaluated under modeling scenarios where they
migrate from a CCR landfill or surface impoundment toward a drinking
water well or nearby surface water body, and where humans ingest the
constituents either by drinking the contaminated groundwater or by
eating fish caught in surface water bodies affected by the contaminated
groundwater.
As described elsewhere in today's notice, EPA found that for the
non-cancer health effects in the groundwater-to-drinking-water pathway
and in the fish consumption pathways evaluated in the probabilistic
modeling, children rather than adults had the higher exposures. This
result stems from the fact that while at a given exposure point (e.g.,
a drinking water well located a certain distance and direction down-
gradient from the landfill or surface impoundment), the modeled
groundwater concentration is the same regardless of whether the
receptor is an adult or a child. Thus the other variables in the
exposure equations (that relate drinking water intakes or fish
consumption rates and body weight to a daily ``dose'' of the
constituent) mean that, on a per-kilogram-body-weight basis, children
are exposed to higher levels of constituents than adults.
G2. Evaluation of Children's Population Census Data Surrounding
Affected Electric Utility Plants
The RIA for today's co-proposal contains an evaluation of whether
children may disproportionately live near the 495 electric utility
plants potentially affected by this rulemaking. This demographic data
analysis is supplemental to and separate from the risk assessment
summarized above. To make this determination, the RIA compares Census
demographic data on child populations residing near each of the 495
affected plants, to statewide children population data. The results of
that evaluation are summarized here.
Of the 495 electric utility plants, 383 of the plants
(77%) operate CCR disposal units on-site (i.e., onsite landfills or
onsite surface
[[Page 35228]]
impoundments), 84 electric utility plants solely transport CCRs to
offsite disposal units operated by other companies (e.g., commercial
waste management companies), and 28 other electric utility plants
generate CCRs that are solely beneficially used rather than disposed.
Child demographic data is evaluated in the RIA for all 495 plants
because some regulatory options could affect the future CCR management
method (i.e., disposal versus beneficial use) for some plants.
The RIA provides three complementary approaches to
comparison of child populations surrounding the 495 plants to statewide
child population data: (a) Plant-by-plant comparison basis, (b) state-
by-state aggregation comparison basis, and (c) nationwide total
comparison basis. There are year 2000 Census data for 464 (94%) of the
495 electric utility plants which the RIA used for these comparisons
and extrapolated to all 495 plants. Statewide children population
benchmark percentages range from 21.5% (Maine) to 30.9% (Utah), with a
nationwide average of 24.7%.
For purpose of determining the relative degree by which
children may exceed these statewide percentages, the percentages are
not only compared in absolute terms, but also compared as a numerical
ratio whereby a ratio of 1.00 indicates that the child population
percentage living near an electric utility plant is equal to the
statewide average, a ratio greater than 1.00 indicates the child
population percentage near the electric utility plant is higher than
the statewide population, and a ratio less than 1.00 indicates the
child population is less than the respective statewide average.
Using the plant-by-plant basis, 310 electric utility
plants (63%) have surrounding child populations which exceed their
statewide children benchmark percentages, whereas 185 of the electric
utility plants (37%) have children populations below their statewide
benchmarks, which represents a ratio of 1.68 (i.e., 310/185). Since
this ratio is much greater than 1.00, this finding indicates that a
disproportionate number of electric utility plants have surrounding
child population percentages which exceed their statewide benchmark.
Using the state-by-state aggregation basis, 27 of the 47 states (57%)
where the 495 electric utility plants are located have disproportionate
percentages of children residing near the plants compared to the
statewide averages, which also indicates a disproportionate surrounding
child population. Using the nationwide aggregation basis across all 495
electric utility plants in all 47 states where the plants are located,
6.08 million people reside near these electric utility plants,
including 1.54 million children (25.4%). Comparison of this percentage
to the national aggregate benchmark across all states of 24.7% children
yields a ratio of 1.03 (i.e., 25.4%/24.7%). This ratio indicates a
slightly higher disproportionate child population surrounding the 495
electric utility plants.
These three alternative comparisons indicate that the current
(baseline) environmental and human health hazards and risks from
electric utility CCR disposal units, and the expected future benefits
of the regulatory options being considered in today's co-proposal may
have a disproportionately higher effect on child populations.
The public is invited to submit comments or identify peer-reviewed
studies and data that assess effects of early life exposure to CCRs
managed in landfills and surface impoundments.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This co-proposal, if either of the options being considered is
promulgated, is not expected to be a ``significant energy action'' as
defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because
the regulatory options described in today's co-proposal are not
expected to have a significant adverse effect on the supply,
distribution, or use of energy. This determination is based on the
energy price analysis presented in EPA's Regulatory Impact Analysis
(RIA) for this proposed rule. The following is the basis for this
conclusion.
The Office of Management and Budget's (OMB) July 13, 2001
Memorandum M-01-27 guidance for implementing this Executive Order
identifies nine numerical indicators (thresholds) of potential adverse
energy effects, three of which are relevant for evaluating potential
energy effects of this proposed rule: (a) Increases in the cost of
energy production in excess of 1%; (b) increases in the cost of energy
distribution in excess of 1%; or (c) other similarly adverse outcomes.
Because EPA does not have data on energy production costs or energy
distribution costs for the 495 electric utility plants likely affected
by this rulemaking, EPA in its RIA for today's action evaluated the
potential impact on electricity prices (for the regulatory options) as
measured relative to the 1% numerical threshold of these two Executive
Order indicators to represent an ``other similarly adverse outcome.''
The RIA calculated the potential increase in electricity prices of
affected plants that the industry might induce under each regulatory
option. Because the price analysis in the RIA is based only on the 495
coal-fired electric utility plants that would likely be affected by the
co-proposal (with 333,500 megawatts nameplate capacity), rather than on
all electric utility and independent electricity producer plants in
each state using other fuels, such as natural gas, nuclear,
hydroelectric, etc. (with 678,200 megawatts nameplate capacity), the
price effects estimated in the RIA are higher than would be if the
regulatory costs were averaged over the entire electric utility and
independent electricity producer supply (totaling 1,011,700 megawatts,
not counting an additional 76,100 megawatts of combined heat and
electricity producers).
The price effect calculation in the RIA involved estimating plant-
by-plant annual revenues, plant-by-plant average annualized regulatory
compliance costs for each regulatory option, and comparison with
statewide average electricity prices for the 495 electric utility
plants. In its analysis, the Agency used the May 2009 statewide average
retail prices for electricity published by DOE's, Energy Information
Administration; these costs ranged from $0.0620 (Idaho & Wyoming) to
$0.1892 (Hawaii) per kilowatt-hour, and the nationwide average for the
495 plants was $0.0884. Based on a 100% regulatory cost pass-thru
scenario representing an upper-bound potential electricity price
increase for each plant, the RIA estimated the potential target
electricity sales revenue needed to cover these costs for each plant.
The RIA then compared the higher target revenue to recent annual
revenue estimates per plant, to calculate the potential price effect of
this cost pass-thru scenario on electricity prices for each of the 495
electric utility plants, as well as on a state-by-state sub-total basis
and on a nationwide basis across all 495 electric utility plants.
The RIA includes a set of higher cost estimates for the regulatory
options and this Executive Order 13211 evaluation is based on the
higher estimates and, therefore, overestimates the potential impacts of
our proposal.
The RIA indicates that on a nationwide basis for all 495 electric
utility plants, compared to the estimated average electricity price of
$0.0884 per kilowatt-hour, the 100% regulatory cost pass-thru scenario
may increase prices for the 495 electric utility plants by 0.172% to
0.795% across the original regulatory options; the high-end is the
[[Page 35229]]
estimate associated with a regulatory cost pass-thru scenario increase
for the 495 electric utility plants for the subtitle C ``special
waste'' option. Based on this analysis, the Agency does not expect that
either of the options being co-proposed today would have a significant
adverse effect on the supply, distribution, or use of energy. However,
the Agency solicits comments on our analysis and findings.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629, February 16, 1994)
establishes federal executive policy on environmental justice. Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income (i.e., below poverty line) populations in
the United States.
Furthermore, Section 3-302(b) of EO 12898 states that Federal
agencies, whenever practicable and appropriate, shall collect, maintain
and analyze information on minority and low-income populations for
areas surrounding facilities or sites expected to have substantial
environmental, human health, or economic effects on the surrounding
populations, when such facilities or sites become the subject of a
substantial Federal environmental administrative or judicial action.
While EO 12898 does not establish quantitative thresholds for this
``substantial effect'' criterion, EPA has collected and analyzed
population data for today's co-proposal because of the substantial
hazards and adverse risks to the environment and human health described
elsewhere in today's notice.
The RIA for today's action presents comparisons of minority and
low-income population Census data for each of the 495 electric utility
plant locations, to respective statewide population data, in order to
identify whether these two demographic groups may disproportionately
reside near electric utility plants. The result of these comparisons
indicate (a) whether existing hazards associated with CCR disposal at
electric utility plants to community safety, human health, and the
environment may disproportionately affect minority and low-income
populations surrounding the plants, and (b) whether the expected
effects (i.e., benefits and costs) of the regulatory action described
in today's co-proposal rule may disproportionately affect minority and
low-income populations.
Of the 495 electric utility plants, 383 of the plants (77%) operate
CCR disposal units onsite (i.e., onsite landfills or onsite surface
impoundments), 84 electric utility plants solely transport CCRs to
offsite disposal units operated by other companies (e.g., commercial
waste management companies), and 28 of the electric utility plants
generate CCRs that are solely beneficially used rather than disposed.
The minority and low-income Census data evaluation is conducted for all
495 plants because some regulatory options could affect the future CCR
management method (i.e., disposal versus beneficial use) for some
plants.
In addition to this Census data evaluation, the RIA identifies
three other possible affects of the co-proposal on (a) populations
surrounding offsite CCR landfills, (b) populations surrounding the
potential siting of new CCR landfills and (c) populations within the
customer service areas of the 495 electric utility plants who may incur
electricity price increases resulting from regulatory cost pass-thru.
These three Census data evaluations are also summarized below.
J.1. Findings of Environmental Justice Analysis for Electric Utility
Plants
For the first comparison, the RIA provides three complementary
approaches to evaluating the Census data on minority and low-income
populations: (a) Itemized plant-by-plant comparisons to statewide
percentages, (b) state-by-state aggregation comparisons, and (c)
nationwide aggregate comparisons. There are year 2000 Census data for
464 (94%) of the 495 electric utility plants which the RIA used for
these comparisons and extrapolated to all 495 plants. Statewide
minority population benchmark percentages range from 3.1% (Maine) to
75.7% (Hawaii), with a nationwide average of 24.9%, and statewide low-
income population percentages range from 7.3% (Maryland) to 19.3% (New
Mexico), with a nationwide average of 11.9%.
For purpose of determining the relative degree by which either
group may exceed these statewide percentages, in addition to a
comparison of absolute percentages, the percentages are compared as a
numerical ratio whereby a ratio of 1.00 indicates that the group
population percentage living near an electric utility plant is equal to
the statewide average, a ratio greater than 1.00 indicates the group
population percentage near the electric utility plant is higher than
the statewide population, and a ratio less than 1.00 indicates the
group population is less than the respective statewide average.
Using the plant-by-plant comparison, 138 electric utility plants
(28%) have surrounding minority populations which exceed their
statewide minority benchmark percentages, whereas 357 of the electric
utility plants (72%) have minority populations below their statewide
benchmarks, which represents a ratio of 0.39 (i.e., 138/357). Because
this ratio is less than 1.00, this finding indicates a relatively small
number of the electric utility plants have surrounding minority
population percentages which disproportionately exceed their statewide
benchmarks. On a plant zip code tabulation area basis, 256 electric
utility plants (52%) have surrounding low-income populations which
exceed their respective statewide benchmarks, whereas 239 plants (48%)
have surrounding low-income populations below their statewide
benchmarks, which represents a ratio of 1.07 (i.e., 256/239). Because
this ratio is above 1.00, it indicates that a slightly disproportionate
higher number of electric utility plants have surrounding low-income
population percentages which exceed their statewide benchmarks.
Using the state-by-state aggregation comparison, the percentages of
minority and low-income populations surrounding the plants were
compared to their respective statewide population benchmarks. From this
analysis, state ratios revealed that 24 of the 47 states
[[Page 35230]]
(51%) have higher minority percentages, and 29 of the 47 states (62%)
have higher low-income percentages surrounding the 495 electric utility
plants, suggesting a slightly disproportionate higher minority
surrounding population and a higher disproportionate, higher low-income
surrounding population. However, in comparison to the other two
numerical comparisons--the plant-by-plant basis and the nationwide
aggregation basis, this approach does not include numerically weighting
of state plant counts or state surrounding populations, which explains
why this comparison method yields a different numerical result.
Using the nationwide aggregation comparison across all 495 electric
utility plants in all 47 states where the plants are located, 6.08
million people reside near these plants, including 1.32 million (21.7%)
minority and 0.8 million (12.9%) low-income persons. A comparison of
these percentages to the national benchmark of 24.9% minority and 11.9%
low-income, represents a minority ratio of 0.87 (i.e., 21.7%/24.9%) and
a low-income ratio of 1.08 (i.e., 12.9%/11.9%). These nationwide
aggregate ratios indicate a disproportionately lower minority
population surrounding the 495 electric utility plants, and a
disproportionately higher low-income population surrounding these
plants.
These demographic data comparisons indicate that the current
(baseline) environmental and human health hazards and risks from
electric utility CCR disposal units, and the expected future effects
(i.e., benefits and costs) of the regulatory options described in
today's co-proposal may have a disproportionately lower effect on
minority populations and may have a disproportionately higher effect on
low-income populations.
J.2. Environmental Justice Analysis for Offsite Landfills, Siting of
New Landfills, and Electricity Service Area Customers
There are three other potential differential effects of the
regulatory options on three other population groups: (a) Populations
surrounding offsite landfills, (b) populations surrounding the
potential siting of new landfills and (c) populations within the
customer service areas of the 495 electric utility plants. The RIA for
today's notice does not quantify these potential effects so only a
qualitative discussion appears below.
The potential effect on offsite landfills as evaluated in the RIA
only involves the RCRA subtitle C ``special waste'' based regulatory
option described in today's co-proposal, whereby electric utility
plants may switch the management of CCRs, in whole or in part, from
current onsite disposal to offsite commercial RCRA-permitted landfills.
In addition, some or all of the CCRs which are currently disposed in
offsite landfills that do not have RCRA operating permits may also
switch to RCRA-permitted commercial landfills. Another fraction of
annual CCR generation which could also switch to offsite commercial
RCRA-permitted landfills are CCRs which are currently supplied for
industrial beneficial use applications if such use is curtailed.
The future addition of any or all of these three fractions of CCR
generation to offsite commercial hazardous waste landfills could exceed
their capacity considering that a much smaller quantity of about 2
million tons per year of existing RCRA-regulated hazardous waste is
currently disposed of in RCRA subtitle C permitted landfills in the
U.S. As of 2009, there are 19 commercial landfills with RCRA hazardous
waste permits to receive and dispose of RCRA-regulated hazardous wastes
located in 15 states (AL, CA, CO, ID, IL, IN, LA, MI, NV, NY, OH, OK,
OR, TX, UT). This potential shift could have a disproportionate effect
on populations surrounding these locations, and in particular, minority
and low-income populations surrounding commercial hazardous waste
facilities, for the reason that a recent (2007) study determined that
minority and low-income populations disproportionately live near
commercial hazardous waste facilities. However, the study included
other types of commercial hazardous waste treatment and disposal
facilities in addition to commercial hazardous waste landfills.
The siting of new landfills is another potential effect due to
possible changes in the management of CCRs, especially if the switch to
offsite commercial hazardous waste landfills causes a capacity shortage
(as described above) under subtitle C option. However, since it is
unknown where these new landfills might possibly be sited, two
possibilities were examined: (a) An expansion of existing commercial
subtitle C landfills offsite from electric utility plants, and (b) an
expansion of existing electric utility plant onsite landfills. If an
expansion of existing commercial subtitle C landfills were to occur,
this potential shift could have a disproportionate effect on
populations surrounding these locations, as described previously.
The other possibility is the expansion of electric utility plant
onsite landfills. That is, these landfills become permitted under RCRA
subtitle C and expand existing onsite landfills or build new ones
onsite. If this were to occur, the environmental justice impacts could
be similar to the demographic comparison findings previously discussed,
which indicates that the current environmental and human health hazards
and risks from electric utility CCR disposal units, and the expected
future effects (i.e., benefits and costs) of the regulatory options,
may have a disproportionately lower effect on minority populations, but
may have a disproportionately higher effect on low-income populations.
A third potential effect of the regulatory options described in
today's notice is the increase in price of electricity supplied by some
or all of the affected 495 electric utility plants to cover the cost of
regulatory compliance (as evaluated in a previous section of today's
notice). Thus, customers in electric utility service areas could
experience price increases, as described above in the Federalism sub-
section of today's notice. The RIA for today's action did not evaluate
the demographics of the customer service area populations for the 495
electric utility plants.
Appendix to the Preamble: Documented Damages From CCR Management
Practices
EPA has gathered or received through comments on the 1999 Report to
Congress and the May 2000 Regulatory Determination, and through
allegations, 135 possible damage cases. Six cases involved minefills
and, therefore, are outside the scope of today's proposed rule. Sixty-
two cases have not been further assessed because there was little or no
supporting information to assess the allegations.
Of the remaining 67 cases, EPA determined that 24 were proven
damage cases. Sixteen were determined to be proven damage cases to
ground water and eight were determined to be proven damages cases to
surface water, as a result of elevated levels of contaminants from
CCRs.\172\ Four of the proven ground water damage cases were from
unlined landfills, five were from unlined surface impoundments, one
[[Page 35231]]
involved a surface impoundment for which it is not clear whether the
unit was lined, and the remaining six were from unlined sand and gravel
pits. Another 43 alleged cases were determined to be potential damage
cases to ground water or surface water. However, four of these
potential damage cases were attributable to oil combustion wastes,
which are outside the scope of this notice. Therefore, we have
determined that there were a total of 40 potential damage cases
attributable to CCRs. (The concern with wastes from the combustion of
oil involved unlined surface impoundments. Prior to the May 2000
Regulatory Determination, the unlined oil ash impoundments were closed,
and thus EPA decided regulatory action to address oil ash was
unnecessary.) These cases are discussed in more detail in the document
``Coal Combustion Wastes Damage Case Assessments'' available in the
docket to the 2007 NODA at http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&d=EPA-HQ-RCRA-2006-0796-0015. Three
proven damage cases are sites that have been listed on EPA's National
Priorities List (NPL). The sites, and links to additional information
are: (1) Chisman Creek, Virginia (http://www.epa.gov/reg3hwmd/npl/VAD980712913.htm), (2) Salem Acres, Massachusetts (http://yosemite.epa.gov/r1/npl_pad.nsf/f52fa5c31fa8f5c885256adc0050b631/C8A4A5BEC0121F048525691F0063F6F3?OpenDocument), and (3) U.S. Department
of Energy Oak Ridge Reservation, Tennessee (http://www.epa.gov/region4/waste/npl/npltn/oakridtn.htm). One potential damage case has also been
listed on the NPL: Lemberger Landfill, Wisconsin (http://www.epa.gov/region5/superfund/npl/wisconsin/WID980901243.htm). Another site has
undergone remediation under EPA enforcement action: Town of Pines
(http://cfpub.epa.gov/supercpad/cursites/cactinfo.cfm?id=0508071).
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\172\ Of the 16 proven cases of damages to ground water, the
Agency has been able to confirm that corrective action has been
completed in seven cases and are ongoing in the remaining nine
cases. Corrective action measures at these CCR management units vary
depending on site specific circumstances and include formal closure
of the unit, capping, re-grading of ash and the installation of
liners over the ash, ground water treatment, groundwater monitoring,
and combinations of these measures.
---------------------------------------------------------------------------
In response to the 2007 NODA (see section II. A.), EPA received
information on 21 alleged damage cases. Of these, 18 pertain to alleged
violations of state solid waste permits, and 3 to alleged violations of
NPDES permits. Upon review of this information, we conclude that 13 of
the alleged RCRA violations are new, and one of the alleged NPDES
violations is new; the other damage cases have previously been
submitted to EPA and evaluated. In addition, five new alleged damage
cases have been brought to EPA's attention since February 2005 (the
closure date of damage cases assessed by the NODA's companion
documents). For the most part, these cases involve activities that are
different from the prior damage cases and the focus of the regulatory
determination on groundwater contamination from landfills and surface
impoundments. Specifically:
[cir] Two of the new alleged cases involve the structural failure
of surface impoundments; i.e., dam safety and structural integrity
issues, which were not a consideration at the time of the May 2000
Regulatory Determination. In both cases, there were Clean Water Act
violations.
[cir] One other alleged case involves the failure of an old
discharge pipe, and is clearly a regulated NPDES permit issue.
[cir] Two other alleged cases involve the use of coal ash in large
scale structural fill operations, one of which involves an unlined sand
and gravel pit. The Agency is considering whether to regulate this
method of disposal as a landfill or whether to address the issue
separately as part of its rulemaking to address minefilling. EPA is
soliciting comments on those alternatives.
The Agency has classified three of the five new cases as proven
damage cases (BBBS Sand and Gravel Quarries, Martins Creek Power Plant,
TVA Kingston Power Plant), one as a potential damage case (Battlefield
Golf Course), and the other as not being a damage case under RCRA (TVA
Widows Creek). Several of the recently submitted damage cases are
discussed briefly below. The following descriptions further illustrate
that there are additional risk concerns (dam safety, and fill
operations) which EPA did not evaluate when it completed its the May
2000 Regulatory Determination, in which EPA primarily was concerned
with groundwater contamination associated with landfills and surface
impoundments and the beneficial use of CCRs. Additional information on
these damage cases is included in the docket.
Recent Cases
BBBS Sand and Gravel Quarries--Gambrills, Maryland
On October 1, 2007, the Maryland Department of the Environment
(MDE) filed a consent order in Anne Arundel County, Maryland Circuit
Court to settle an environmental enforcement action that was taken
against the owner of a sand and gravel quarry and the owner of coal
fired power plants (defendants) for contamination of public drinking
water wells in the vicinity of the sand and gravel quarry.
Specifically, beginning in 1995, the defendants used fly ash and
bottom ash from two Maryland power plants to fill excavated portions of
two sand and gravel quarries. Ground water samples collected in 2006
and 2007 from residential drinking water wells near the site indicated
that, in certain locations, contaminants, including heavy metals and
sulfates were present at or above ground water quality standards. The
Anne Arundel County, Maryland Department of Health tested private wells
in 83 homes and businesses in areas around the disposal site. MCLs were
exceeded in 34 wells [arsenic (1), beryllium (1), cadmium (6), lead
(20),\173\ and thallium (6)]. The actual number of wells affected by
fly ash and bottom ash is undetermined since some of the sample results
may reflect natural minerals in the area. SMCLs were exceeded in 63
wells [aluminum (44), manganese (14), and sulfate (5)]. MDE concluded
that leachate from the placement of CCRs at the site resulted in the
discharge of pollutants to waters of the state. Based on these
findings, as well as an MDE consent order, EPA has concluded that the
Gambrills site is a proven case of damage to ground water resulting
from the placement of CCRs in unlined sand and gravel quarries.
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\173\ It is uncertain whether lead exceedances were due to CCRs
or lead in plumbing and water holding tanks.
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Under the terms of the consent order, the defendants are required
to pay a fine, remediate the ground water in the area and provide
replacement water supplies for 40 properties. A retail development is
now planned for the site with a cap over the fill designed to reduce
infiltration and subsequent leaching from the site. An MDE fact sheet
on this site is available at http://www.mde.state.md.us/assets/document/AA_Fly_Ash_QA.pdf.
Battlefield Golf Course--Chesapeake, Virginia
On July 16, 2008, the City of Chesapeake, Virginia sent a letter to
the EPA Region III Regional Administrator requesting assistance to
perform an assessment of the Battlefield Golf Course. The 216 acre site
was contoured with 1.5 million cubic yards of fly ash, amended with
1.7% to 2.3% cement kiln dust to develop the golf course. Virginia's
Administrative Code allowed the use of fly ash as fill material
(considered a beneficial use under Virginia's Administrative Code)
without a liner as long as the fly ash was placed at least two feet
above groundwater and covered by an 18-inch soil cap.
Because of ground water contamination discovered at another site
where fly ash was used, the City of
[[Page 35232]]
Chesapeake initiated a drinking water well sampling assessment at
residences surrounding the golf course. Additionally, 13 monitoring
points were installed around the site. No monitoring points were
installed through the fly ash area to avoid creating an additional path
of contaminant migration. EPA conducted a site investigation by
reviewing analytical data from fly ash, soil, surface water, sediment,
and groundwater sampling events completed in 2001, 2008 and 2009. The
sampling results of the City of Chesapeake ground water and surface
water sampling \174\ indicated that the highest detections of metals
occurred in monitoring wells located on the golf course property. The
concentrations of arsenic, boron, chromium, copper, lead and vanadium
detected in groundwater collected from on-site monitoring wells were
considered to be significantly above background concentrations. Of
these compounds, only boron has been detected in approximately 25
drinking water wells.
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\174\ Available at http://cityofchesapeake.net/services/citizen_info/battlefieldgolfclub/index.shtml.
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Although not a primary contaminant of concern, boron is suspected
to be the leading indicator of fly ash migration. The highest level of
boron reported in a residential well was 596 [mu]g/L which was
significantly below the health-based regional screening level for boron
in tap water of 7,300 [mu]g/L. Additionally, the secondary drinking
water standard for manganese (0.05 mg/L) was exceeded in nine
residential wells; however, the natural levels of both manganese and
iron in the area's shallow aquifer are very high and, thus, it could
not be ruled out that the elevated levels of manganese and iron are a
result of the natural background levels of these two contaminants.
Metal contaminants were below MCLs and Safe Drinking Water Act
(SDWA) action levels in all residential wells that EPA tested, except
for lead. Lead has been detected during EPA sampling events above the
action level of 15 [mu]g/L in six residential wells. The lead in these
wells, however, does not appear to come from the fly ash. Lead
concentrations are lower in groundwater collected from monitoring wells
on the golf course (1.1 to 1.6 [mu]g/L) than in these residential
wells; and lead concentrations in the fly ash are not higher than
background concentrations of lead in soil.
The recently issued EPA Final Site Inspection Report \175\
concluded that (i) Metal contaminants were below MCLs and Safe Drinking
Water Act (SDWA) action levels in all residential wells that EPA
tested; (2) the residential well data indicate that metals are not
migrating from the fly ash to residential wells; and (iii) there are no
adverse health effects expected from human exposure to surface water or
sediments on the Battlefield Golf Course site as the metal
concentrations were below the ATSDR standards for drinking water and
soil. Additionally, the sediment samples in the ponds were below EPA
Biological Technical Assistance Group screening levels and are not
expected to pose a threat to ecological receptors. Based on these
findings, EPA has categorized the Battlefield Golf Club site as a
potential damage case, as there is a possibility that leaching could
cause levels of toxic constituents to increase over time and that
groundwater could become contaminated at off-site locations if due
diligence is not practiced.
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\175\ http://www.epa.gov/reg3hwmd/CurrentIssues/finalr-battlefield_golf_club_site/redacted_DTN_0978_Final_Battlefield_SI_Report.pdf.
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Martins Creek Power Plant--Martins Creek, Pennsylvania
In August 2005, a dam confining a 40 acre CCR surface impoundment
in eastern Pennsylvania failed. The dam failure, a violation of the
State's solid waste disposal permit, resulted in the discharge of 0.5
million cubic yards of coal-ash and contaminated water into the
Oughoughton Creek and the Delaware River.
Ground-water monitoring results from approximately 20 on-site
monitoring wells found selenium concentrations exceeding Pennsylvania's
Statewide Health Standards and Federal primary drinking water
standards. There was also one exceedance of the primary MCL for
chromium and two exceedances of the secondary MCL for iron.
Surface water samples were also taken from a number of locations
along the Delaware River upstream and downstream of the spill. Sampling
began soon after the spill in August 2005 and continued through
November 2005. Several samples exceeded the Federal Water Quality
Criteria (WQC) for aluminum, copper, iron, manganese, and silver (see
http://www.epa.gov/waterscience/criteria/wqctable/index.html). Four
samples also exceeded the WQC for arsenic--three of which were taken
near the outfall to the river. Lead, nickel and zinc were also detected
above the WQC in samples taken near the outfall to the river. Sampling
results are available from the Pennsylvania Department of Environmental
Protection (PADEP) at http://www.depweb.state.pa.us/northeastro/cwp/view.asp?a=1226&q=478264&northeastroNav=[verbarlm].
As a result of the exceedances of primary and secondary MCLs in on-
site ground water, and exceedances of federal water quality criteria in
off-site surface water, in addition to a PADEP consent order for clean
up, the Agency considers this site to be a proven damage case.
TVA Kingston--Harriman, Tennessee
On December 22, 2008, a failure of the northeastern dike used to
contain fly ash occurred at the dewatering area of the Tennessee Valley
Authority's (TVA's) Kingston Fossil Plant in Harriman, Tennessee.
Subsequently, approximately 5.4 million cubic yards of fly ash sludge
was released over an approximately 300 acre area and into a branch of
the Emory River. The ash slide disrupted power, ruptured a gas line,
knocked one home off its foundation and damaged others. The state-
issued NPDES permit requires that TVA properly operate and maintain all
facilities and systems for collection and treatment, and expressly
prohibits overflows of wastes to land or water from any portion of the
collection, transmission, or treatment system other than through
permitted outfalls. Therefore, the release was a violation of the NPDES
permit. A root-cause analysis report developed for TVA, accessible at
http://www.tva.gov/kingston/rca/index.htm, established that the dike
failed because it was expanded by successive vertical additions, to a
point where a thin, weak layer of fly ash (`slime') on which it had
been founded, failed by sliding. Additional information on the TVA
Kingston incident is available at http://www.epa.gov/region4/kingston/index.html and http://www.tva.gov/kingston/.
EPA joined TVA, the Tennessee Department of Environment and
Conservation (TDEC), and other state and local agencies in a
coordinated response. EPA provided oversight and technical advice to
TVA, and conducted independent water sampling and air monitoring to
evaluate public health and environmental threats.
Following the incident, EPA sampled the coal ash and residential
soil to determine if the release posed an immediate threat to human
health. Sampling results for the contaminated residential soil showed
arsenic, cobalt, iron, and thallium levels above the residential
Superfund soil screening levels.\176\ Sampling results also showed
[[Page 35233]]
average arsenic levels above the EPA Region 4 Residential Removal
Action Level (RAL) \177\ of 39 mg/L, but below EPA Region 4's
Industrial RAL of 177 mg/L. All residential soil results were below the
Residential RAL.
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\176\ Soil screening levels (SSLs) for contaminants in soil are
used to identify sites needing further investigation. SSLs alone do
not trigger the need for a response action or define
``unacceptable'' levels of contaminants in soil. Generally, at sites
where contaminant concentrations fall below the SSLs, no further
action or study is warranted under CERCLA. However, where
contaminant concentrations equal or exceed the SSLs, further study
or investigation, but not necessarily cleanup, is warranted.
\177\ RALs are used to trigger time-critical removal actions.
---------------------------------------------------------------------------
Shortly after the release, samples were also collected of untreated
river water, which showed elevated levels of suspended ash and heavy
metals known to be associated with coal ash. Nearly 800 surface water
samples were taken by TVA and TDEC, ranging from two miles upstream of
the release on the Emory River to approximately eight miles downstream
on the Clinch River. Sampling results of untreated river water showed
elevated levels of arsenic, cadmium, chromium, and lead just after the
incident. This was also observed again after a heavy rainfall. In early
January 2009, the Tennessee Wildlife Resources Agency (TWRA) issued a
fish advisory stating that until further notice, fishing should be
avoided in the lower section of the Emory River. TWRA plans to resample
fish tissue on a semiannual basis and expects that the assessment of
the impact of this release on wildlife resources and habitat will
require repeated sampling and evaluation over the next three to five
years.
Constituent concentrations measured in drinking water on December
23, 2008, near the intake of the Kingston Water Treatment Plant,
located downstream of the release, were below federal MCLs for drinking
water, with the exception of elevated thallium levels. Subsequent EPA
testing on December 30, 2008, of samples at the same intake found that
concentration levels for thallium had fallen below the MCL. Subsequent
testing of treated drinking water from the Kingston Water Treatment
Plant showed that the drinking water from the treatment plant met all
federal drinking water standards.
Additionally, EPA and TDEC identified and sampled potentially
impacted private wells that are used as a source for drinking water.
More than 100 wells have been tested to date and all have met drinking
water standards.
To address potential risks from windblown ash, TVA, under EPA
oversight, began air monitoring for coarse and fine particles. EPA also
conducted independent monitoring to validate TVA's findings. To date,
all of the more than 25,000 air samples from this area have measured
levels below the NAAQS for particulates.
On January 12, 2009, TDEC issued an order to TVA to, among other
things, continue to implement measures to prevent the movement of
contaminated materials into waters of the state and, where feasible,
minimize further down-stream migration of contaminated sediments.
Than on May 11, 2009, TVA agreed to clean up more than 5 million
tons of coal ash spilled from its Kingston Fossil Fuel Plant under an
administrative order and agreement on consent. TVA and EPA entered into
the agreement under CERCLA. The order requires TVA to perform a
thorough cleanup of coal ash from the Emory River and surrounding areas
and EPA will oversee the removal. Based on the consent order, EPA has
identified this site as a proven damage case.
TVA Widows Creek--Stevenson, Alabama
On Friday, January 9, 2009, a cap in an unused discharge pipe
became dislodged, resulting in a discharge from an FGD pond at a
Tennessee Valley Authority (TVA) coal-burning power plant in Stevenson,
Alabama. FGD is a residual of a process that reduces sulfur dioxide
emissions from coal-fired boilers Some 5,000 cubic yards of FGD
material containing water and a mixture of predominantly gypsum and
some fly ash, was released from the pond into Widows Creek which flows
into the Tennessee River.\178\ Information on the TVA Widows Creek
incident is available at http://www.epa.gov/region4/stevenson/index.html.
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\178\ http://www.tva.gov/emergency/wc_1-29-09.htm.
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EPA joined TVA and the Alabama Department of Environmental
Management (ADEM) in a coordinated response. EPA is supporting the
response by coordinating environmental sampling and monitoring response
operations by TVA. EPA has also collected surface water samples from
both Widows Creek and the Tennessee River to determine if there have
been any environmental impacts. Samples have also been taken from the
FGD pond to characterize the material that was released into the creek
fully. The drinking water intake for Scottsboro, Alabama, about 20
miles downstream, has also been sampled.
EPA Region 4 has received final results of its independent
environmental sampling activities for the TVA Widows Creek Fossil Plant
FGD pond release. Specifically, the concentrations of metals, solids
and nutrients detected in samples drawn from the drinking water intake
for Scottsboro, Alabama, along with samples collected from two
locations in Widows Creek and three other locations in the Tennessee
River, are all below national primary drinking water standards and/or
other health-based levels. The pH of all these samples also fell within
the standard range and no oil or grease was detected in any of the
samples.
Four waste samples and one water sample collected from the bank
along the ditch connecting TVA's permitted discharge outfall and the
Tennessee River, and from TVA's permitted discharge outfall showed
elevated pH and elevated concentrations of metals, nutrients, and
suspended and dissolved solids. However, because samples drawn
downstream at the drinking water intake and from locations where
individuals would likely come into contact with the water were below
the primary drinking water standards, EPA does not expect the release
to pose a threat to the public. On July 7, 2009, TVA issued a finding
of no significant impact and final environmental assessment for the
Gypsum Removal Project from Widows Creek.\179\ Therefore, EPA has not
classified the TVA Widows Creek fly ash release as a damage case.
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\179\ http://www.tva.gov/environment/reports/widows_creek/wcf_gypsum_removal_fonsi.pdf.
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Summary
In summary, as discussed above, the Agency has documented evidence
of proven damages to ground water or surface water in 27 cases \180\--
17 cases of damage to ground water, and ten cases of damage to surface
water, including ecological damages in seven of the ten. Sixteen of the
17 proven damages to ground water involved disposal in unlined units
(for the remaining unit, it is unclear whether a liner was present). We
have also identified 40 cases of potential damage to ground water or
surface water.\181\ Another two cases were determined to be potential
ecological damage cases. Finally, the more recently documented damage
cases also provide evidence that current management practices can pose
additional risks that EPA had not
[[Page 35234]]
previously studied--that is, from catastrophic releases due to the
structural failure of CCR surface impoundments.
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\180\ The 24 cases identified in the Damage Cases Assessment
report, plus Martin Creek, PA; Gambrills, MD; and Kingston/TVA, TN.
\181\ The 39 cases of potential damages from CCR identified in
the Damage Cases Assessment report (excludes the 4 damage cases from
oil combustion wastes), plus the Battlefield Golf Course,
Chesapeake, Virginia.
Table of EPA's Proven Damage Cases
--------------------------------------------------------------------------------------------------------------------------------------------------------
Constituents of Basis for consideration as a proven
Damage case, State Affected media concern Brief description damage case
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alliant Nelson Dewey Ash Landfill, Groundwater........... Arsenic, Selenium, The LF \182\ was originally Scientific--Although the boron
WI. Sulfate, Boron, constructed in the early standard was not health-based at the
Flourine. 1960's as a series of time of the exceedances, the boron
settling basins for levels reported for the facility
sluiced ash and permitted would have exceeded the State's
by the State in 1979. recently promulgated health-based ES
for boron, and
Administrative--The State required a
groundwater investigation, and the
facility took action to remediate
groundwater contamination and
prevent further contamination.
Dairyland Power E.J. Stoneman, WI.. Groundwater........... Cadmium, Chromium, Unlined SI \183\, on Scientific--Cadmium and chromium
Sulfate, Manganese, permeable substrate, that exceeded (health-based) primary
Iron, Zinc. managed ash, demineralizer MCLs, and contamination migrated to
regenerant, and sand nearby, private drinking water
filter backwash between wells, and
the 1950'and 1987. Administrative--The State required
closure of the facility.
WEPCO Cedar Sauk Ash Landfill/ Groundwater........... Selenium, Boron, An abandoned sand and Scientific--Selenium in groundwater
WEPCO, WI. Sulfate. gravel pit that received exceeded the (health-based) primary
CCW from the WEPCO Port MCL, and there was clear evidence of
Washington Power Plant vegetative damage, and
from 1969 to 1979. Administrative--The State required
remedial action.
WEPCO Highway 59 Landfill/We Groundwater........... Arsenic, Boron, Located in an old sand and Scientific--Although the boron
Energies 59, WI. Chlorides, Iron, gravel pit that received standard was not health-based at the
Manganese, Sulfate. fly ash and bottom ash time of the exceedances, the boron
between 1969 and 1978. levels reported for the facility
would have exceeded the State's
recently promulgated health-based ES
for boron; and contamination from
the facility appears to have
migrated to off-site private wells,
and
Administrative--As a result of the
various PAL \184\ and ES \185\
exceedances, the State required a
groundwater investigation.
WEPCO Port Washington Facility/ Groundwater........... Boron, Selenium........ The power company placed 40- Scientific--The off-site exceedance
Druecker Quarry Fly Ash Site, WI. 60 feet deep column of fly of a health-based standard for
ash in a sand & gravel pit selenium.
from 1948-1971. A well
located ~ 250' south of
the old quarry was
impacted.
SC Electric & Gas Canadys Plant, SC Groundwater........... Arsenic, Nickel........ Ash from the Canadys power Scientific--There are exceedances of
plant was mixed with water the health-based standard for
and managed in a SI. The arsenic at this site. While there
facility operated an are no known human exposure points
unlined, 80-acre SI from nearby, some recent exceedances have
1974 to 1989. been detected outside an established
regulatory boundary.
PEPCO Morgantown Generating Station Groundwater........... Iron, pH............... LFs at this shallow Scientific--Ground water
Faulkner Off-site Disposal groundwater site manage contamination migrated off-site, and
Facility, MD. fly ash, bottom ash, and Administrative--The State required
pyrites from the remedial action.
Morgantown Generating
Station starting in 1970.
Unlined settling ponds
also are used at the site
to manage stormwater
runoff and leachate from
the ash disposal area.
[[Page 35235]]
Don Frame Trucking, Inc., Fly Ash Groundwater........... Lead, Manganese........ This LF has been used for Scientific--The lead levels found in
Landfill, NY. disposal of fly ash, down-gradient wells exceed the
bottom ash, and other primary MCL Action Level.
material including yard Administrative--The State has
sweepings generated by the required remedial action as a result
Niagara Mohawk Power of the contamination, and the owner
Corporation's Dunkirk was directed, by the Supreme Court
Steam Station. The age of of the State of New York County of
the facility is unknown. Chautauqua (July 22, 1988), to cease
receiving the aforementioned wastes
at the facility no later than
October 15, 1988.
Salem Acres, MA.................... Groundwater........... Antimony, Arsenic, Fly ash disposal occurred Scientific--Arsenic and chromium
Manganese. at this site--a LF and SI, exceeded (health-based) primary
from at least 1952 to 1969. MCLs, and
Administrative--The site was placed
on the NPL list, and EPA signed a
Consent Order with the owner to
clean up the lagoons.
Vitale Fly Ash Pit, MA............. Groundwater........... Aluminum, Arsenic, An abandoned gravel and This case was not counted as a proven
Iron, Manganese, sand pit that was used as damage case in the 1999 RTC \186\
Selenium. an unpermitted LF between because it was a case of illegal
the 1950s and the mid- disposal not representative of
1970s. The Vitale historical or current disposal
Brothers, the site owners practices. However, it otherwise
until 1980, accepted and meets the criteria for a proven
disposed saltwater- damage case for the following
quenched fly ash from New reasons:
England Power Company Scientific--(i) Selenium and arsenic
along with other wastes. exceeded (health-based) primary
MCLs, and (ii) there is evidence of
contamination of nearby wetlands and
surface waters, and
Administrative--the facility was the
subject of several citations and the
State has enforced remedial actions.
Town of Pines, IN.................. Groundwater........... Boron, Molybdenum...... NIPSCO's Bailly and Scientific--Evidence for boron,
Michigan City power plants molybdenum, arsenic and lead
have deposited ~ 1 million exceeding health-based standards in
tons of fly ash in the water wells away from the Pines Yard
Town of Pines since 1983. 520 Landfill site, and
Fly ash was buried in the Administrative--Orders of consent
LF and used as signed between the EPA and IDEM with
construction fill in the responsible parties for continued
town. The ash is pervasive work at the site.
on site, visible in roads
and driveways.
North Lansing Landfill, MI......... Groundwater........... Lithium, Selenium...... The North Lansing Landfill Scientific--Observation of off-site
(NLL), an unlined, former exceedances of the State's health-
gravel quarry pit with an based standard for lithium.
elevated groundwater
table, was licensed in
1974 for disposal of inert
fill materials including
soil, concrete, and brick.
From 1980 to 1997, the NLL
was used for disposal of
coal ash from the Lansing
Board of Water and Light
electric and steam
generating plants.
Basin Electric, W.J. Neal Plant, ND Groundwater........... Aluminum, Arsenic, An unlined, 44-acre SI that Scientific--Several constituents have
Barium, Copper, received fly ash and exceeded their (health-based)
Manganese, Zinc. scrubber sludge from a primary MCLs in down-gradient
coal-fired power plant, groundwater, and the site inspection
along with other wastes found documentation of releases to
(including ash from the ground water and surface water from
combustion of sunflower the site, and
seed hulls), between the Administrative--The State required
1950s and the late 1980s. closure of the facility.
[[Page 35236]]
Great River Energy (GRE)--(formerly Groundwater........... Arsenic, Selenium...... This site includes a number Scientific--Arsenic and selenium
Cooperative Power Association/ of evaporation ponds and exceeded (health-based) primary
United Power) Coal Creek Station, SIs that were constructed MCLs, and
ND. in 1978 and 1979. Both the Administrative--The State required
SIs and the evaporation remedial action.
ponds leaked significantly
upon plant start-up. A ND
DOH regulator was
uncertain as to whether a
liner was initially
installed, although the
plant may have thought
they were placing some
sort of liner. The
surficial soils were
mostly sandy materials
with a high water table.
VEPCO Chisman Creek, VA............ Groundwater........... Selenium, Sulfate, Between 1957 and 1974, Designated as a proven damage case in
Vanadium. abandoned sand and gravel the 1999 RTC.
pits at the site received Scientific--(i) Drinking water wells
fly ash from the contained selenium above the (health-
combustion of coal and based) primary MCL and (ii) There is
petroleum coke at the evidence of surface water and
Yorktown Power Station. sediment contamination, and
Disposal at the site ended Administrative--The site was
in 1974 when Virginia remediated under CERCLA.
Power began burning oil at
the Yorktown plant. In
1980, nearby shallow
residential wells became
contaminated with vanadium
and selenium.
VEPCO Possum Point, VA............. Groundwater........... Cadmium, Nickel........ At this site, oil ash, Damage case described in the 1999
pyrites, boiler chemical RTC.
cleaning wastes, coal fly Administrative--Action pursued by the
ash, and coal bottom ash State based on evidence on
were co-managed in an exceedances of cadmium and nickel,
unlined SI, with solids by requiring the removal of the
dredged to a second pond. waste.
BBBS Sand and Gravel Quarries, Groundwater........... Aluminum, Arsenic, As of 1995, the defendants Scientific--Documented exceedances of
Gambrills, MD. Beryllium, Cadmium, used fly ash and bottom MCLs in numerous off-site drinking
Lead, Manganese, ash from two Maryland water wells.
Sulfate, Thallium. power plants to fill Administrative--On October 1, 2007,
excavated portions of two the Maryland Department of the
unlined sand and gravel Environment (MDE) filed a consent
quarries. GW samples order in Anne Arundel County,
collected in 2006/07 from Maryland Circuit Court to settle an
residential drinking water environmental enforcement action
wells near the site against the owner of a sand and
indicated contaminants at gravel quarry and the owner of coal
or above GW quality fired power plants for contamination
standards. Testing of of public drinking water wells in
private wells in 83 homes the vicinity of the sand and gravel
and businesses in areas quarry.
around the disposal site
revealed MCL exceedances
in 34 wells, and SMCLs
exceedances in 63 wells.
[[Page 35237]]
Hyco Lake, Roxboro, NC............. Surface Water......... Selenium............... Hyco Lake was constructed Scientific--Declines in fish
in 1964 as a cooling water populations were observed (1970s &
source for the Electric 1980s).
Plant. The lake received Administrative--The State concluded
discharges from the that the impacts were attributable
plant's ash-settling ponds to the ash ponds, and issued a fish
containing high levels of consumption advisory as a result of
selenium. The selenium the contamination.
accumulated in the fish in
the lake, affecting
reproduction and causing
declines in fish
populations in the late
1970s and 1980s.
Georgia Power Company, Plant Bowen, Surface Water......... Ash Slurry............. This unlined SI was put in Scientific--Unpermitted discharge of
Cartersville, GA. service in 1968. On July water containing ash slurry into the
28, 2002, a sinkhole Euharlee Creek resulting in a
developed in the SI that temporary degradation of public
ultimately reached four waters.
acres in area. An Administrative--Georgia Department of
estimated 2.25 million Natural Resources issued a consent
gallons of ash/water order requiring, among others, a
mixture was released to a fine and corrective action.
tributary of the Euharlee
Creek, containing 281 tons
of ash.
Department of Energy--Oak Ridge Y- Surface Water......... Aluminum, Arsenic, The Filled Coal Ash Pond Scientific--Exceedances of primary
12 Plant Chestnut Ridge Operable Iron, Manganese. (FCAP) is an ash retention and secondary MCLs were detected in
Unit 2, DOE Oak Ridge Reservation, SI used to dispose of coal on-site monitoring locations.
Oak Ridge, TN. ash slurry from the Y-12 Administrative--Federal RCRA and the
steam plant. It was Tennessee Department of
constructed in 1955 by Environmental Conservation (TDEC)
building an earthen dam requirements, including placement of
across a northern the entire Oak Ridge Reservation on
tributary of Upper McCoy the NPL.
Branch. After the SI was
filled to capacity, the
slurry was released
directly into Upper McCoy
Branch. Erosion of both
the spillway and the ash
itself resulted in
releases of ash into Upper
McCoy Branch.
Belews Lake, NC.................... Surface Water......... Selenium............... This Lake was impounded in Scientific--Evidence of extensive
the early 1970s to serve impacts on fish populations due to
as a cooling reservoir for direct discharge to a surface water
a large coal-fired power body.
plant. Fly ash was Administrative--The State required
disposed in a settling changes in operating practices to
basin, which released mitigate the contamination.
selenium-laden effluent in
return flows to the Lake.
Sixteen of the 20 fish
species originally present
in the reservoir were
entirely eliminated.
[[Page 35238]]
U.S. Department of Energy Savannah Surface Water......... Not cited.............. A coal-fired power plant Scientific--Evidence of impacts on
River Project, SC. sluices fly ash to a several species in a nearby wetland
series of open settling caused by releases from the ash
basins. A continuous flow settling ponds.
of sluice water exits the
basins, overflows, and
enters a swamp that in
turn discharges to Beaver
Dam Creek. Bullfrog
tadpoles inhabiting the
site have oral deformities
and impaired swimming and
predator avoidance
abilities, and there also
is evidence of metabolic
impacts on water snakes
inhabiting the site.
Brandy Branch Reservoir, TX........ Surface Water......... Selenium............... A power plant cooling Scientific--Observations of impacts
reservoir built in 1983 on fish populations were confirmed
for Southwestern Electric by scientific study, based on which
Power Company's Pirkey the State concluded that the impacts
Power Plant. The cooling were attributable to the ash ponds.
reservoir received Administrative--The State issued a
discharges from SIs fish consumption advisory as a
containing elevated levels result of the contamination.
of selenium.
Southwestern Electric Power Company Surface Water......... Selenium............... This Lake was constructed Scientific--Selenium accumulation in
Welsh Reservoir, TX. in 1976 to serve as a fish may be attributable to the ash
cooling reservoir for a settling ponds.
power plant and receives Administrative--The State has issued
discharges from an open a fish consumption advisory as a
SI. The Texas Parks and result of the contamination.
Wildlife Department's
monitoring documents
elevated levels of
selenium and other metals
in fish.
Texas Utilities Electric Martin Surface Water......... Selenium............... This Lake was constructed Scientific--Evidence of adverse
Lake Reservoir, TX. in 1974 to serve as a effects on wildlife--impacts on fish
cooling reservoir for a populations were observed, and the
power plant and was the State concluded that the impacts
site of a series of major were attributable to the ash setting
fish kills in 1978 and ponds.
1979. Investigations Administrative--The State has issued
determined that a fish consumption advisory as a
unpermitted discharges result of the contamination.
from ash settling ponds
resulted in elevated
levels of selenium in the
water and fish.
Martins Creek Power Plant, Martins Groundwater and Aluminum, Arsenic, In August 2005, a dam Scientific--Exceedances of primary
Creek, PA. Surface Water. Chromium, Copper, confining a 40 acre CCR SI and secondary MCLs in on-site ground
Iron, Lead, Manganese, failed. The dam failure, a water, and exceedances of federal
Nickel, Selenium, violation of the State's water quality criteria in off-site
Silver, Zinc. solid waste disposal surface water, and
permit, resulted in the Administrative--PA DEP issued a
discharge of 100 million consent order for cleanup.
gallons of coal-ash and
contaminated water into
the Oughoughton Creek and
the Delaware River.
Ground-water monitoring
found Se and Cr
concentrations exceeding
Pennsylvania's Statewide
Health Standards and
Federal primary drinking
water standards, and there
were also exceedances of
the secondary MCL for iron.
[[Page 35239]]
TVA Kingston, Harriman, TN......... Surface Water......... Arsenic, Cobalt, Iron, On December 22, 2008, the Administrative--On May 11, 2009, TVA
Thallium. northeastern dike of a SI agreed to clean up more than 5
failed. About 5.4 million million tons of spilled coal ash
cubic yards of fly ash under an administrative order and
sludge was released over agreement on consent under CERCLA
about a 300 acre area and issued by the USEPA, and In early
into a branch of the Emory January 2009, the Tennessee Wildlife
River, disrupting power, Resources Agency (TWRA) issued a
rupturing a gas line, and fish advisory stating that until
destroying or damaging further notice, fishing should be
scores of homes. avoided in the lower section of the
Emory River.
Sampling results for the
contaminated residential
soil showed arsenic,
cobalt, iron, and thallium
levels above the
residential Superfund soil
screening levels.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abbreviations key:
1 LF--Landfill
2 SI--Surface Impoundment
3 PAL--Prevention Action Level
4 ES--Enforcement Standard
5 RTC--Report to Congress
List of Subjects
40 CFR Part 257
Environmental Protection, coal combustion products, coal combustion
residuals, coal combustion waste, beneficial use, disposal, hazardous
waste, landfill, surface impoundment.
40 CFR Part 261
Hazardous waste, Recycling, Reporting and recordkeeping
requirements.
40 CFR Part 264
Air pollution control, Hazardous waste, Insurance, Packaging and
containers, Reporting and recordkeeping requirements, Security
measures, Surety bonds.
40 CFR Part 268
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 271
Administrative practice and procedure, Confidential business
information, Hazardous materials transportation, Hazardous waste,
Indians-lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
40 CFR Part 302
Air pollution control, Chemicals, Hazardous substances, Hazardous
waste, Intergovernmental relations, Natural resources, Reporting and
recordkeeping requirements, Superfund, Water pollution control, Water
supply.
Dated: May 4, 2010.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
Alternative 1: Co-Proposal Under Authority of Subtitle D
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), and
6949a(c); 33 U.S.C. 1345(d) and (e).
2. Section 257.1 is amended by revising the last sentence of
paragraph (a) introductory text, revising paragraphs (a)(1) and (a)(2),
and adding new paragraph (c)(12) to read as follows:
Sec. 257.1 Scope and purpose.
(a) * * * Unless otherwise provided, the criteria Sec. Sec. 257.51
through 257.101 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 either the criteria in Sec. Sec.
257.1 through 257.4 or Sec. Sec. 257.5 through 257.30 or Sec. Sec.
257.51 through 257.101 are considered open dumps, which are prohibited
under section 4005 of the Act.
(2) Practices failing to satisfy either the criteria in Sec. Sec.
257.1 through 257.4 or Sec. Sec. 257.5 through 257.30 or Sec. Sec.
257.51 through 257.101 constitute open dumping, which is prohibited
under section 4005 of the Act.
* * * * *
(c) * * *
(12) Except as otherwise provided in subpart C, the criteria in
subpart A of this part do not apply to CCR landfills and CCR surface
impoundments subject to subpart C of this part.
3. Section 257.2 is amended by adding definitions of ``CCR landfill
'' and ``CCR surface impoundment or impoundment'' to read as follows:
Sec. 257.2 Definitions.
* * * * *
CCR landfill means a disposal facility or part of a facility where
CCRs 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.
CCR surface impoundment or impoundment means 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 CCRs containing free liquids, and which is
not
[[Page 35240]]
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 CCRs 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.
* * * * *
Subpart C--[Added and Reserved]
4. Part 257 is amended by adding and reserving Subpart C.
5. Part 257 is amended by adding Subpart D to part 257 to read as
follows:
Subpart D--Standards for the Receipt of Coal Combustion Residuals
in Landfills and Surface Impoundments
General Provisions
Sec.
257.40 Disposal standards for owners/operators of CCR landfills and
CCR surface impoundments.
257.42-257.49 [Reserved]
General Requirements
257.50 Applicability of other regulations.
257.51-257.59 [Reserved]
Location Restrictions
257.60 Placement above the natural water table.
257.61 Wetlands.
257.62 Fault areas.
257.63 Seismic impact zones.
257.64 Unstable areas.
257.65 Closure of existing CCR landfills and surface impoundments.
257.66-257.69 [Reserved]
Design Criteria
257.70 Design criteria for new CCR landfills and lateral expansions.
257.71 Design criteria for existing CCR surface impoundments.
257.72 Design criteria for new CCR surface impoundments and lateral
expansions.
257.73-257.79 [Reserved]
Operating Criteria
257.80 Air criteria.
257.81 Run-on and run-off controls.
257.82 Surface water requirements.
257.83 Surface impoundment inspection requirements.
257.84 Recordkeeping requirements.
257.85-257.89 [Reserved]
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.
257.99 [Reserved]
Closure and Post-Closure Care
257.100 Closure criteria.
257.101 Post-closure care requirements.
257.102-257.109 [Reserved]
Subpart D--Standards for the Receipt of Coal Combustion Residuals
in Landfills and Surface Impoundments
General Provisions
Sec. 257.40 Disposal standards for owners/operators of CCR landfills
and CCR surface impoundments.
(a) Applicability. (1) The requirements of this subpart apply to
owners or operators of CCR landfills and CCR surface impoundments. Any
CCR landfill and surface impoundment continues to be subject to the
requirements in Sec. Sec. 257.3-1, 257.3-2, and 257.3-3.
(2) Except as otherwise specified in this Subpart, all of the
requirements in this Subpart are applicable [date 180 days after the
effective date of the final rule].
(b) Definitions. As used in this subpart:
Acre-foot means the volume of one acre of surface area to a depth
of one foot.
Active life means the period of operation beginning with the
initial placement of CCRs in the landfill or surface impoundment and
ending at completion of closure activities in accordance with Sec.
257.110.
Aquifer means a geological formation, group of formations, or
portion of a formation capable of yielding significant quantities of
groundwater to wells.
Area-capacity curves means graphic curves which readily show the
reservoir water surface area, in acres, at different elevations from
the bottom of the reservoir to the maximum water surface, and the
capacity or volume, in acre-feet, of the water contained in the
reservoir at various elevations.
Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler
slag, and flue gas desulfurization materials. CCRs are also known as
coal combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes.
CCR landfill means a disposal facility or part of a facility where
CCRs 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 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.
CCR surface impoundment or impoundment means 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 CCRs 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 CCRs 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.
Existing CCR landfill means a CCR landfill which was in operation
on, or for which construction commenced prior to [the effective date of
the final rule]. 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.
Existing CCR surface impoundment means a surface impoundment which
was in operation on, or for which construction commenced prior to [the
effective date of the final rule]. 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 either
(1) A continuous on-site, physical construction program has begun;
or
(2) The owner or operator has entered into contractual
obligations--which can not be cancelled or modified without substantial
loss--for physical construction of the CCR surface impoundment to be
completed within a reasonable time.
Facility means all contiguous land and structures, other
appurtenances, and improvements on the land used for the disposal of
CCRs.
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.
[[Page 35241]]
Freeboard means the vertical distance between the slurry or liquid
elevation in an impoundment and the lowest point on the crest of the
impoundment embankment.
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 a dam (or impoundment) or mis-
operation of the dam or appurtenances. (Note: The Hazard Potential
Classification System for Dams was developed by the U.S. Army Corps of
Engineers for the National Inventory of Dams.)
(1) High hazard potential surface impoundment means a surface
impoundment where failure or mis-operation will probably cause loss of
human life.
(2) Significant hazard potential surface impoundment means a
surface impoundment where failure or mis-operation results in no
probable loss of human life, but can cause economic loss, environmental
damage, disruption of lifeline facilities, or impact other concerns.
(3) Low hazard potential surface impoundment means a surface
impoundment where failure or mis-operation results in no probable loss
of human life and low economic and/or environmental losses. Losses are
principally limited to the surface impoundment owner's property.
Independent registered professional engineer or hydrologist means a
scientist or engineer who is not an employee of the owner or operator
of a CCR landfill or surface impoundment who has received a
baccalaureate or post-graduate degree in the natural sciences or
engineering and 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 judgments regarding the technical information for which a
certification under this subpart is necessary.
Lateral expansion means a horizontal expansion of the waste
boundaries of an existing CCR landfill, or existing CCR surface
impoundment made after [the effective date of the final rule].
New CCR landfill means a CCR landfill in which there is placement
of CCRs without the presence of free liquids, which began operation, or
for which the construction commenced after [the effective date of the
final rule].
New CCR surface impoundment means a CCR surface impoundment from
which there is placement of CCRs with the presence of free liquids,
which began operation, or for which the construction commenced after
[the effective date of the final rule].
Operator means the person(s) responsible for the overall operation
of a facility.
Owner means the person(s) who owns a facility or part of a
facility.
Probable maximum precipitation means the value for a particular
area which represents an envelopment of depth-duration-area rainfall
relations for all storm types affecting that area adjusted
meteorologically to maximum conditions.
Recognized and generally accepted good engineering practices means
engineering maintenance or operation activities based on established
codes, standards, published technical reports, recommended practice, or
similar document. Such practices detail generally approved ways to
perform specific engineering, inspection, or mechanical integrity
activities.
Representative sample means a sample of a universe or whole (e.g.,
waste pile, lagoon, groundwater) which can be expected to exhibit the
average properties of the universe or whole.
Run-off means any rainwater, leachate, or other liquid that drains
over land from any part of a CCR landfill or surface impoundment.
Run-on means any rainwater, leachate, or other liquid that drains
over land onto any part of a CCR landfill or surface impoundment.
Sand and gravel pit or quarry means an excavation for the
commercial extraction of aggregate for use in construction projects.
State means any of the several States, the District of Columbia,
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands.
Surface water means all water naturally open to the atmosphere
(rivers, lakes, reservoirs, ponds, streams, impoundments, seas,
estuaries, etc.).
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.
Waste boundary means a vertical surface located at the
hydraulically downgradient limit of the CCR landfill or CCR surface
impoundment, or lateral expansion. The vertical surface extends down
into the uppermost aquifer.
Sec. Sec. 257.42-257.49 [Reserved]
General Requirements
Sec. 257.50 Applicability of other regulations.
(a) The owner or operator of a CCR landfill or CCR surface
impoundment must comply with any other applicable federal, state,
tribal, or local laws or other requirements.
Sec. Sec. 257.51-257.59 [Reserved]
Location Restrictions
Sec. 257.60 Placement above the natural water table.
(a) New CCR landfills and new CCR surface impoundments and lateral
expansions must be constructed with a base that is located a minimum of
two feet above the upper limit of the natural water table.
(b) For purposes of this section, natural water table means the
natural level at which water stands in a shallow well open along its
length and penetrating the surficial deposits just deeply enough to
encounter standing water at the bottom. This level is uninfluenced by
groundwater pumping or other engineered activities.
Sec. 257.61 Wetlands.
(a) New CCR landfills, new CCR surface impoundments, and lateral
expansions shall not be located in wetlands, unless the owner or
operator can make the following demonstrations, certified by an
independent registered professional engineer or hydrologist. The owner
or operator must place the demonstrations in the operating record and
the owner's or operator's publicly accessible internet site, and notify
the state of this action.
(1) Where applicable under section 404 of the Clean Water Act or
applicable state wetlands laws, the presumption that a practicable
alternative to the proposed landfill, surface impoundment, or lateral
expansion is available which does not involve wetlands is clearly
rebutted; and
(2) The construction and operation of the new CCR landfill, new CCR
surface impoundment, or lateral expansion will not:
(i) Cause or contribute to violations of any applicable state water
quality standard,
(ii) Violate 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
[[Page 35242]]
(iv) Violate any requirement under the Marine Protection, Research,
and Sanctuaries Act of 1972 for the protection of a marine sanctuary;
and
(3) The new CCR landfill, new CCR surface impoundment, or lateral
expansion will not cause or contribute to significant degradation of
wetlands. The owner or operator must demonstrate the integrity of the
new CCR landfill, new CCR surface impoundment, or lateral expansion and
its ability to protect ecological resources by addressing the following
factors:
(i) Erosion, stability, and migration potential of native wetland
soils, muds and deposits used to support the new CCR landfill, new CCR
surface impoundment, or lateral expansion;
(ii) Erosion, stability, and migration potential of dredged and
fill materials used to support the landfill or surface impoundment.
(iii) The volume and chemical nature of the CCRs.
(iv) Impacts on fish, wildlife, and other aquatic resources and
their habitat from release of CCRs.
(v) The potential effects of catastrophic release of CCRs 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; and
(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 practicable as
required by paragraph (a)(1) of this section, then minimizing
unavoidable impacts to the maximum extent practicable, and finally
offsetting remaining unavoidable wetland impacts through all
appropriate and practicable 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 reasonable
determination with respect to these demonstrations.
(b) For purposes of this section, wetlands means those areas
defined in 40 CFR 232.2.
Sec. 257.62 Fault areas.
(a) New CCR landfills, new CCR surface impoundments and lateral
expansions shall not be located within 200 feet (60 meters) of a fault
that has had displacement in Holocene time unless the owner or operator
demonstrates that an alternative setback distance of less than 200 feet
(60 meters) will prevent damage to the structural integrity of the new
CCR landfill, new CCR surface impoundment and lateral expansion and
will be protective of human health and the environment. The
demonstration must be certified by an independent registered
professional engineer and the owner or operator must notify the state
that the demonstration has been placed in the operating record and on
the owner's or operator's publicly accessible Internet site.
(b) For the purposes of this section:
(1) 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.
(2) Displacement means the relative movement of any two sides of a
fault measured in any direction.
(3) Holocene means the most recent epoch of the Quaternary period,
extending from the end of the Pleistocene Epoch to the present.
Sec. 257.63 Seismic impact zones.
(a) New CCR landfills, new CCR surface impoundments and lateral
expansions shall not be located in seismic impact zones, unless the
owner or operator demonstrates 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 for the site. The
demonstration must be certified by an independent registered
professional engineer and the owner or operator must notify the state
that the demonstration has been placed in the operating record and on
the owner's or operator' publicly accessible internet site.
(b) For the purposes of this section:
(1) Seismic impact zone means an area with a ten percent or greater
probability that the maximum horizontal acceleration in lithified earth
material, expressed as a percentage of the earth's gravitational pull
(g), will exceed 0.10g in 250 years.
(2) Maximum horizontal acceleration in lithified earth material
means the maximum expected horizontal acceleration depicted on a
seismic hazard map, with a 98 percent or greater probability that the
acceleration will not be exceeded in 50 years, or the maximum expected
horizontal acceleration based on a site-specific seismic risk
assessment.
(3) 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.
Sec. 257.64 Unstable areas.
(a) Owners or operators of new or existing CCR landfills, new or
existing CCR surface impoundments and lateral expansions located in an
unstable area must demonstrate that engineering measures have been
incorporated into the landfill, surface impoundment, or lateral
expansion design to ensure that the integrity of the structural
components of the landfill or surface impoundment will not be
disrupted. The demonstration must be certified by an independent
registered professional engineer. The owner or operator must notify the
state that the demonstration has been placed in the operating record
and on the owner's or operator's publicly accessible internet site. The
owner or operator must consider 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).
(b) For purposes of this section:
(1) 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 CCR landfill or CCR surface impoundment or lateral
expansion structural components responsible for preventing releases
from a landfill or surface impoundment. Unstable areas can include poor
foundation conditions, areas susceptible to mass movements, and Karst
terrains.
(2) Structural components means liners, leachate collection
systems, final covers, run-on/run-off systems, and any other component
used in the construction and operation of the CCR landfill or CCR
surface impoundment or lateral expansion that is necessary for
protection of human health and the environment.
(3) Poor foundation conditions means those areas where features
exist which indicate that a natural or man-induced event may result in
inadequate foundation support for the structural components of a CCR
landfill, CCR surface impoundment, or lateral expansion.
(4) Areas susceptible to mass movement means those areas of
[[Page 35243]]
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 landfill, CCR surface impoundment, or
lateral expansion, 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, soil
fluction, block sliding, and rock fall.
(5) Karst terranes means areas where karst topography, with its
characteristic surface and subterranean features, has developed as a
result of dissolution of limestone, dolomite, or other soluble rock.
Characteristic physiographic features present in karst terranes
include, but are not limited to, sinkholes, sinking streams, caves,
large springs, and blind valleys.
Sec. 257.65 Closure of existing CCR landfills and surface
impoundments.
(a) Existing CCR landfills and surface impoundments that cannot
make the demonstration specified in Sec. 257.64 (a) pertaining to
unstable areas, must close by [date five years after the effective date
of the final rule], in accordance with Sec. 257.100 and conduct post-
closure activities in accordance with Sec. 257.101.
(b) The deadline for closure required by paragraph (a) of this
section may be extended up to two years if the owner or operator can
demonstrate that:
(1) There is no available alternative disposal capacity;
(2) There is no immediate threat to human health and the
environment.
(c) The demonstration in paragraph (b) of this section must be
certified by an independent registered professional engineer or
hydrologist.
(d) The owner or operator must place the demonstration in paragraph
(b) of this section in the operating record and on the owner's or
operator's publicly accessible internet site and notify the state that
this action was taken.
Sec. Sec. 257.66-257.69 [Reserved]
Design Criteria
Sec. 257.70 Design criteria for new CCR landfills and lateral
expansions.
(a) New CCR landfills and lateral expansions of CCR landfills shall
be constructed:
(1) With a composite liner, as defined in paragraph (a)(2) of this
section and a leachate collection system that is designed and
constructed to maintain less than a 30-cm depth of leachate over the
liner. The design of the composite liner and leachate collection system
must be prepared by, or under the direction of, and certified by an
independent registered, professional engineer.
(2) For purposes of this section, composite liner means a system
consisting of two components; the upper component must consist of a
minimum 30-mil flexible membrane liner (FML), and the lower component
must consist of at least a two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1x10-7 cm/sec. FML
components consisting of high density polyethylene (HDPE) shall be at
least 60-mil thick. The FML component must be installed in direct and
uniform contact with the compacted soil component.
(3) For purpose of this section, hydraulic conductivity means the
rate at which water can move through a permeable medium. (i.e., the
coefficient of permeability).
(b) [Reserved]
Sec. 257.71 Design criteria for existing CCR surface impoundments.
(a) No later than [five years after effective date of final rule]
existing CCR surface impoundments shall be constructed:
(1) With a composite liner, as defined in paragraph (a)(2) of this
section and a leachate collection system between the upper and lower
components of the composite liner. The design shall be in accordance
with a design prepared by, or under the direction of, and certified by
an independent registered professional engineer.
(2) For purposes of this section, composite liner means a system
consisting of two components; the upper component must consist of a
minimum 30-mil flexible membrane line (FML), and the lower component
must consist of at least two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1x10-7 cm/sec. FML
components consisting of high density polyethylene (HDPE) shall be at
least 60-mil thick. The FML component must be installed in direct and
uniform contact with the compacted soil component.
(3) For purposes of this section, hydraulic conductivity means the
rate at which water can move through a permeable medium (i.e., the
coefficient of permeability).
(b) The owner or operator of an existing CCR surface impoundment
shall place in the operating record and on the owner's or operator's
publicly accessible internet site, and provide to the state a history
of construction, and any record or knowledge of structural instability
if the existing surface impoundment can:
(1) Impound CCRs to an elevation of five feet or more above the
upstream toe of the structure and can have a storage volume of 20 acre-
feet or more; or
(2) Impound CCRs to an elevation of 20 feet or more above the
upstream toe of the structure.
(c) For purposes of this subpart, upstream toe means, for an
embankment dam, the junction of the upstream slope of the dam with the
ground surface. (Federal Guidelines for Dam Safety, Glossary of Terms,
Federal Emergency Management Agency, April 2004.)
(d) The history of construction specified in paragraph (b) of this
section shall contain, at a minimum, the following information as may
be available:
(1) The name and address of the persons owning or operating the CCR
surface impoundment; the name associated with the CCR surface
impoundment; and the identification number of the CCR surface
impoundment if one has been assigned by the state.
(2) The location of the CCR surface impoundment indicated on the
most recent USGS 7\1/2\ minute or 15 minute topographic quadrangle map,
or a topographic map of equivalent scale if a USGS map is not
available.
(3) A statement of the purpose for which the CCR surface
impoundment is being used.
(4) The name and size in acres of the watershed affecting the CCR
surface impoundment.
(5) A description of the physical and engineering properties of the
foundation materials on which the CCR surface impoundment is
constructed.
(6) A statement of the type, size, range, and physical and
engineering properties of the materials used in constructing each zone
or stage of the CCR surface impoundment; the method of site preparation
and construction of each zone of the CCR surface impoundment; and the
approximate dates of construction, and each successive stage of
construction of the CCR surface impoundment.
(7) At a scale not to exceed 1 inch = 100 feet, detailed
dimensional drawings of the CCR surface impoundment, including a plan
view and cross sections of the length and width of the CCR surface
impoundment, showing all zones, foundation improvements, drainage
provisions, spillways, diversion ditches, outlets, instrument
locations, and slope protection, in addition to the measurement of the
minimum vertical distance between the crest of the CCR surface
impoundment
[[Page 35244]]
and the reservoir surface at present and under design storm conditions,
CCR slurry level and CCR waste water level, and any identifiable
natural or manmade features which could affect operation of the CCR
surface impoundment.
(8) A description of the type and purpose of existing or proposed
instrumentation.
(9) Graphs showing area-capacity curves.
(10) The hazard potential classification for which the facility is
designed and a detailed explanation of the basis for this
classification.
(11) A description of the spillway and diversion design features
and capacities and calculations used in their determination.
(12) The computed minimum factor of safety for slope stability of
the CCR retaining structure(s) and the analyses used in their
determinations.
(13) A certification by an independent registered professional
engineer that the design of the CCR surface impoundment is in
accordance with current, prudent engineering practices for the maximum
volume of CCR slurry and CCR waste water which can be impounded therein
and for the passage of runoff from the design storm which exceeds the
capacity of the CCR surface impoundment; or, in lieu of the
certification, a report indicating what additional investigations,
analyses, or improvement work are necessary before such a certification
can be made by an independent registered professional engineer,
including what provisions have been made to carry out such work in
addition to a schedule for completion of such work. Upon completion of
such work, the owner or operator shall place the certification in the
operating record and on the owner's or operator's publicly accessible
internet site and provide to the state notice of such certification.
(14) The construction specifications and provisions for
surveillance, maintenance, and repair of the CCR surface impoundment.
(15) General provisions for closure.
(e) A permanent identification marker, at least six feet high and
showing the identification number of the existing CCR surface
impoundment, if one has been assigned by the state, the name associated
with the CCR surface impoundment and the name of the person owning or
operating the structure, shall be located on or immediately adjacent to
each existing CCR surface impoundment. This requirement becomes
effective [date 60 days after the effective date of the final rule].
(f) For existing CCR surface impoundments classified as having a
high or significant hazard potential, as certified by an independent
registered professional engineer, the owner or operator shall develop
and maintain in the operating record, and on the owner's or operator'
publicly accessible internet site, an Emergency Action Plan which:
defines responsible persons and the actions to be taken in the event of
a dam-safety emergency; provides contact information for emergency
responders; includes a map which delineates the downstream area which
would be affected in the event of a dam failure; and includes
provisions for an annual face-to-face meeting or exercise between
representatives of the facility owner and the local emergency
responders.
(g) CCR surface impoundments shall be dredged of CCRs and lined
with a composite liner system, as defined in paragraph (d)(2) of this
section, by [date five years after the effective date of the final
rule] or closed in accordance with Sec. 257.100.
Sec. 257.72 Design criteria for new CCR surface impoundments and
lateral expansions.
(a) New CCR surface impoundments and lateral expansions of CCR
landfills or surface impoundments shall be constructed:
(1) With a composite liner, as defined in paragraph (a)(2) of this
section and a leachate collection system between the upper and lower
components of the composite liner. The design of the composite liner
and leachate collection system must be prepared by, or under the
direction of, and certified by an independent registered, professional
engineer.
(2) For purposes of this section, composite liner means a system
consisting of two components; the upper component must consist of a
minimum 30-mil flexible membrane liner (FML), and the lower component
must consist of at least a two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1x10-7 cm/sec. FML
components consisting of high density polyethylene (HDPE) shall be at
least 60-mil thick. The FML component must be installed in direct and
uniform contact with the compacted soil component.
(3) For purpose of this section, hydraulic conductivity means the
rate at which water can move through a permeable medium (i.e., the
coefficient of permeability).
(b) Plans for the design, construction, and maintenance of new CCR
surface impoundments and lateral expansions shall be placed in the
operating record and be submitted to the state upon certification by an
independent registered professional engineer, and a notice shall be
placed on the owner's or operator's publicly accessible internet site
that such plans have been placed in the operating record and submitted
to the state, if such proposed surface impoundment or lateral expansion
can:
(1) Impound CCRs to an elevation of five feet or more above the
upstream toe of the structure and can have a storage volume of 20 acre-
feet or more; or
(2) Impound CCRs to an elevation of 20 feet or more above the
upstream toe of the structure.
(c) A permanent identification marker, at least six feet high and
showing the identification number of the CCR surface impoundment, if
one has been assigned by the state, the name associated with the CCR
surface impoundment and the name of the person owning or operating the
structure, shall be located on or immediately adjacent to each CCR
surface impoundment. This requirement becomes effective [date 60 days
after the effective date of the final rule].
(d) The plan specified in paragraph (b) of this section, shall
contain at a minimum the following information:
(1) The name and address of the persons owning or operating the CCR
surface impoundment; the name associated with the CCR surface
impoundment; and the identification number of the CCR surface
impoundment if one has been assigned by the state.
(2) The location of the CCR surface impoundment indicated on the
most recent USGS 7\1/2\ minute or 15 minute topographic quadrangle map,
or a topographic map of equivalent scale if a USGS map is not
available.
(3) A statement of the purpose for which the CCR surface
impoundment is being used.
(4) The name and size in acres of the watershed affecting the CCR
surface impoundment.
(5) A description of the physical and engineering properties of the
foundation materials on which the CCR surface impoundment is
constructed.
(6) A statement of the type, size, range, and physical and
engineering properties of the materials used in constructing each zone
or stage of the CCR surface impoundment; the method of site preparation
and construction of each zone of the CCR surface impoundment; and the
approximate dates of construction, and each successive stage of
construction of the CCR surface impoundment.
(7) At a scale not to exceed 1 inch = 100 feet, detailed
dimensional drawings
[[Page 35245]]
of the CCR surface impoundment, including a plan view and cross
sections of the length and width of the CCR surface impoundment,
showing all zones, foundation improvements, drainage provisions,
spillways, diversion ditches, outlets, instrument locations, and slope
protection, in addition to the measurement of the minimum vertical
distance between the crest of the CCR surface impoundment and the
reservoir surface at present and under design storm conditions, CCR
slurry level and CCR waste water level, and any identifiable natural or
manmade features which could affect operation of the CCR surface
impoundment.
(8) A description of the type and purpose of existing or proposed
instrumentation.
(9) Graphs showing area-capacity curves.
(10) The hazard potential classification for which the facility is
designed and a detailed explanation of the basis for this
classification.
(11) A description of the spillway and diversion design features
and capacities and calculations used in their determination.
(12) The computed minimum factor of safety for slope stability of
the CCR retaining structure(s) and the analyses used in their
determinations.
(13) The construction specifications and provisions for
surveillance, maintenance, and repair of the CCR surface impoundment.
(14) General provisions for closure.
(15) A certification by an independent registered professional
engineer that the design of the CCR surface impoundment is in
accordance with generally accepted engineering standards for the
maximum volume of CCR slurry and CCR waste water which can be impounded
therein and for the passage of runoff from the design storm which
exceeds the capacity of the CCR surface impoundment. The owner or
operator shall place the certification in the operating record and on
the owner's or operator's publicly accessible internet site and notify
the state that these actions have been taken.
(e) Any changes or modifications to the plans for CCR surface
impoundments shall be certified by an independent registered
professional engineer and provided to the state prior to the initiation
of such changes or modifications. The certification required in this
paragraph shall be placed on the owner's or operator's publicly
accessible internet site.
(f) For CCR surface impoundments classified by as having a high or
significant hazard potential, as certified by an independent registered
professional engineer, the owner or operator shall develop and maintain
in the operating record and on the owner's or operator's publicly
accessible internet site, an Emergency Action Plan which: Defines
responsible persons and the actions to be taken in the event of a dam-
safety emergency; provides contact information for emergency
responders; includes a map which delineates the downstream area which
would be affected in the event of a dam failure; and includes
provisions for an annual face-to-face meeting or exercise between
representatives of the facility owner and the local emergency
responders.
Sec. Sec. 257.73-257.79 [Reserved]
Operating Criteria
Sec. 257.80 Air criteria.
(a) CCR surface impoundments and CCR landfills must be managed in a
manner that fugitive dusts do not exceed 35 [micro]g/m\3\, unless some
alternative standard has been established pursuant to applicable
requirements developed under a State Implementation Plan (SIP) approved
or promulgated by the Administrator pursuant to section 110 of the
Clean Air Act, as amended.
(b) CCR surface impoundments must be managed to control wind
dispersal of dusts, consistent with the standard in paragraph (a) of
this section.
(c) CCR landfills must be managed to control wind dispersal of
dusts, consistent with the standard in paragraph (a). CCRs must be
emplaced as conditioned CCRs as defied in paragraph (d) of this
section.
(d) For purposes of this section, conditioning means wetting CCRs
with water to a moisture content that will prevent wind dispersal, but
will not result in free liquids.
(e) Documentation of the measures taken to comply with the
requirements of this section must be certified by an independent
registered professional engineer and notification provided to the state
that the documentation has been placed in the operating record and on
the owner's or operator's publicly accessible internet site.
Sec. 257.81 Run-on and run-off controls.
(a) Owners or operators of all CCR landfills and surface
impoundments must design, construct, and maintain:
(1) A run-on control system to prevent flow onto the active portion
of the CCR landfill or surface impoundment during the peak discharge
from a 24-hour, 25-year storm;
(2) A run-off control system from the active portion of the CCR
landfill or surface impoundment to collect and control at least the
water volume resulting from a 24-hour, 25-year storm.
(b) The design required in paragraph (a) of this section must be
certified by an independent registered professional engineer that the
design meets the requirements of this section. The owner or operator
must notify the state that the design has been placed in the operating
record and on the owner's or operator's publicly accessible internet
site.
(c) The owner or operator must prepare a report, certified by an
independent registered professional engineer, that documents how
relevant calculations were made, and how the control systems meet the
requirements of this subpart and notify the state that the report has
been placed in the operating record and made available to the public on
the owner's or operator's publicly accessible internet site.
(d) Run-off from the active portion of the CCR landfill or surface
impoundment must be handled in accordance with Sec. 257.3-3.
Sec. 257.82 Surface water requirements.
(a) CCR landfills and surface impoundments shall not:
(1) Cause a discharge of pollutants into waters of the United
States, including wetlands, that violates any requirements of the Clean
Water Act, including, but not limited to, the National Pollutant
Discharge Elimination System (NPDES) requirements, pursuant to section
402 of the Clean Water Act.
(2) Cause the discharge of a nonpoint source of pollution to waters
of the United States, including wetlands, that violates any requirement
of an area-wide or State-wide water quality management plan that has
been approved under section 208 or 319 of the Clean Water Act, as
amended.
(b) [Reserved]
Sec. 257.83 Surface impoundment inspection requirements.
(a) All existing CCR surface impoundments shall be examined as
follows:
(1) At intervals not exceeding 7 days for appearances of structural
weakness and other hazardous conditions.
(2) At intervals not exceeding 7 days all instruments shall be
monitored.
(3) All inspections required by paragraphs (a)(1) and (2) of this
section shall be performed by a qualified person, as defined in
paragraph (e) of this section, designated by the person owning or
operating the CCR surface impoundment.
(4) All existing CCR surface impoundments shall be inspected
[[Page 35246]]
annually by an independent registered professional engineer to assure
that the design, operation, and maintenance of the surface impoundment
is in accordance with generally accepted engineering standards. The
owner or operator must notify the state that a certification by the
independent registered professional engineer that the design,
operation, and maintenance of the surface impoundment is in accordance
with generally accepted engineering standards has been placed in the
operating record and on the owner's or operator's publicly accessible
internet site.
(b) When a potentially hazardous condition develops, the person
owning or operating the CCR surface impoundment shall immediately:
(1) Take action to eliminate the potentially hazardous condition;
(2) Notify potentially affected persons and state and local first
responders;
(3) Notify and prepare to evacuate, if necessary, all personnel
from the owner or operator's property which may be affected by the
potentially hazardous conditions; and
(4) Direct a qualified person to monitor all instruments and
examine the structure at least once every eight hours, or more often as
required by an authorized representative of the state.
(c) After each inspection and instrumentation monitoring referred
to in paragraphs (a) and (b) of this section, each qualified person who
conducted all or any part of the inspection or instrumentation
monitoring shall promptly record the results of such inspection or
instrumentation monitoring in a book which shall be available in the
operating record and such qualified person shall also promptly report
the results of the inspection or monitoring to the state. A report of
each inspection and instrumentation monitoring shall also be placed on
the owner's or operator's publicly accessible internet site.
(d) All inspection and instrumentation monitoring reports recorded
in accordance with paragraph (c) of this section shall include a report
of the action taken to abate hazardous conditions and shall be promptly
signed by the person designated by the owner or operator as responsible
for health and safety at the owner or operator's facility.
(e) The qualified person or persons referred to in this section
shall be trained to recognize specific signs of structural instability
and other hazardous conditions by visual observation and, if
applicable, to monitor instrumentation.
Sec. 257.84 Recordkeeping requirements.
(a) The owner or operator of a CCR landfill or surface impoundment
must record and retain near the facility in an operating record and on
the owner's or operator's publicly accessible internet site, all
records, reports, studies or other documentation required to
demonstrate compliance with Sec. Sec. 257.60 through 257.83 and 257.90
through 257.101.
(b) Except as provided in paragraph (c) of this section, every
twelfth month following [the effective date of the final rule] for CCR
surface impoundments addressed under Sec. 257.71, and every twelfth
month following the date of the initial plan for the design (including
lateral expansions), construction, and maintenance of the surface
impoundments addressed under Sec. 257.72(b), the owner or operator of
such CCR surface impoundments that have not been closed in accordance
with Sec. 257.100 shall place in the operating record and on the
owner's or operator's publicly accessible internet site, a report
containing the following information. The owner or operator shall
notify the state that the report has been placed in the operating
record and on the owner's or operator's publicly accessible internet
site.
(1) Changes in the geometry of the impounding structure for the
reporting period.
(2) Location and type of installed instruments and the maximum and
minimum recorded readings of each instrument for the reporting period.
(3) The minimum, maximum, and present depth and elevation of the
impounded water, sediment, or slurry for the reporting period.
(4) Storage capacity of the impounding structure.
(5) The volume of the impounded water, sediment, or slurry at the
end of the reporting period.
(6) Any other change which may have affected the stability or
operation of the impounding structure that has occurred during the
reporting period.
(7) A certification by an independent registered professional
engineer that all construction, operation, and maintenance were in
accordance with the approved plan.
(c) A report is not required under this section when the owner or
operator provides the state with a certification by an independent
registered professional engineer that there have been no changes under
paragraphs (b)(1) through (b)(6) of this section to the surface
impoundment. However, a report containing the information set out in
paragraph (b) of this section shall be placed in the operating record
and on the owner's or operator's publicly accessible internet site and
notification submitted to the state at least every 5 years.
Sec. Sec. 257.85-257.89 [Reserved]
Groundwater Monitoring and Corrective Action
Sec. 257.90 Applicability.
(a) Owners and operators of all CCR landfills, surface impoundments
subject to this subpart must comply with the groundwater monitoring
requirements according to the following schedule:
(1) Existing CCR landfills and surface impoundments must comply
with the groundwater monitoring requirements specified in Sec. Sec.
257.91 through 257.95 within [one year after the effective date of the
final rule];
(2) New CCR landfills and surface impoundments must comply with the
groundwater monitoring requirements specified in Sec. Sec. 257.91
through 257.95 before CCR can be disposed of in the CCR landfill or
surface impoundment.
(b) The owner or operator must notify the state once each year
throughout the active life and post-closure care period that the CCR
landfill or surface impoundment is in compliance with the groundwater
monitoring and corrective action provisions of this subpart.
(c) Once established at a CCR landfill or surface impoundment,
groundwater monitoring shall be conducted throughout the active life
and post-closure care period of that CCR landfill or surface
impoundment as specified in Sec. 257.101.
Sec. 257.91 Groundwater monitoring systems.
(a) A groundwater monitoring system must be installed that consists
of a sufficient number of wells, installed at appropriate locations and
depths, to yield groundwater samples from the uppermost aquifer (as
defined in Sec. 257.41) that:
(1) Represent the quality of background groundwater that has not
been affected by leakage from a CCR landfill or surface impoundment. 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 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) Represent the quality of groundwater passing the waste
[[Page 35247]]
boundary. The downgradient monitoring system must be installed at the
waste boundary that ensures detection of groundwater contamination in
the uppermost aquifer.
(b) The groundwater monitoring system must include at a minimum one
up gradient and three downgradient wells.
(c) A multiunit groundwater monitoring system may be installed
instead of separate groundwater monitoring systems for each CCR
landfill or surface impoundment when the facility has several units,
provided the multi-unit groundwater monitoring system meets the
requirement of Sec. 257.91(a) and will be as protective of human
health and the environment as individual monitoring systems for each
CCR landfill or surface impoundment, based on the following factors:
(1) Number, spacing, and orientation of the CCR landfill or surface
impoundment;
(2) Hydrogeologic setting;
(3) Site history;
(4) Engineering design of the CCR landfill or surface impoundment;
and
(d) Monitoring wells must be cased in a manner that maintains the
integrity of the monitoring well bore hole. 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 bore hole 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 landfill or surface
impoundment must notify the state that the design, installation,
development, and decommission of any monitoring wells, piezometers and
other measurement, sampling, and analytical devices documentation has
been placed in the operating record and on the owner's or operator's
publicly accessible internet site; and
(2) The monitoring wells, piezometers, and other measurement,
sampling, and analytical devices must be operated and maintained so
that they perform to design specifications throughout the life of the
monitoring program.
(e) The number, spacing, and depths of monitoring systems shall be:
(1) Determined based upon site-specific technical information that
must include thorough characterization of:
(i) Aquifer thickness, groundwater flow rate, groundwater flow
direction including seasonal and temporal fluctuations in groundwater
flow; and
(ii) 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.
(2) Certified by an independent registered professional engineer or
hydrologist. Within 14 days of this certification, the owner or
operator must notify the state that the certification has been placed
in the operating record and on the owner's or operator's publicly
accessible internet site.
Sec. 257.92 [Reserved]
Sec. 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 installed in compliance with
Sec. 257.91. The owner or operator of the CCR landfill or surface
impoundment must notify the State that the sampling and analysis
program documentation has been placed in the operating record and on
the owner's or operator's publicly accessible internet site and the
program must include 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. Groundwater samples shall not be
field-filtered prior to laboratory analysis.
(c) The sampling procedures and frequency must be protective of
human health and the environment.
(d) Groundwater elevations must be measured in each well
immediately prior to purging, each time groundwater is sampled. The
owner or operator of the CCR landfill or surface impoundment 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.
(e) The owner or operator of the CCR landfill or surface
impoundment must establish background groundwater quality in a
hydraulically upgradient or background well(s) for each of the
monitoring parameters or constituents required in the particular
groundwater monitoring program that applies to the CCR landfill or
surface impoundment, as determined under Sec. 257.94(a) or Sec.
257.95(a). Background groundwater quality may be established at wells
that are not located hydraulically upgradient from the CCR landfill or
surface impoundment if it meets the requirements of Sec. 257.91(a)(1).
(f) The number of samples collected to establish groundwater
quality data must be consistent with the appropriate statistical
procedures determined pursuant to paragraph (g) of this section. The
sampling procedures shall be those specified under Sec. 257.94(b) for
detection monitoring, Sec. 257.95(b) and (c) for assessment
monitoring, and Sec. 257.96(b) for corrective action.
(g) The owner or operator of the CCR landfill or surface
impoundment must specify in the operating record and on the owner's or
operator's publicly accessible Internet site, one of the following
statistical methods to be used in evaluating groundwater monitoring
data for each hazardous constituent. The statistical test chosen shall
be conducted separately for each hazardous constituent in each well.
(1) A parametric analysis of variance (ANOVA) 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 (ANOVA) 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.
[[Page 35248]]
(4) A control chart approach that gives control limits for each
constituent.
(5) Another statistical test method that meets the performance
standards of paragraph (h) of this section. The owner or operator of
the CCR landfill or surface impoundment must place a justification for
this alternative in the operating record and on the owner's or
operator's publicly accessible internet site and notify the state of
the use of this alternative test. The justification must demonstrate
that the alternative method meets the performance standards of
paragraph (h) of this section.
(h) Any statistical method chosen under paragraph (g) of this
section shall comply with the following performance standards, as
appropriate:
(1) The statistical method used to evaluate groundwater monitoring
data shall be appropriate for the distribution of chemical parameters
or hazardous constituents. If the distribution of the chemical
parameters or hazardous constituents is shown by the owner or operator
of the CCR landfill or surface impoundment to be inappropriate for a
normal theory test, then the data should be transformed or a
distribution-free theory test should 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 ground-water 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 protective of human health and the
environment. The 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.
(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 protective of human health and the environment.
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 shall account for data below the limit
of detection with one or more statistical procedures that are
protective of human health and the environment. Any practical
quantitation limit (pql) 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 shall include procedures
to control or correct for seasonal and spatial variability as well as
temporal correlation in the data.
(i) The owner or operator of the CCR landfill or surface
impoundment must determine whether or not there is a statistically
significant increase over background values for each parameter or
constituent required in the particular groundwater monitoring program
that applies to the CCR landfill or surface impoundment, as determined
under Sec. Sec. 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 parameter or constituent at each monitoring well designated
pursuant to Sec. 257.91(a)(2) to the background value of that
constituent, according to the statistical procedures and performance
standards specified under paragraphs (g) and (h) of this section.
(2) 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.
Sec. 257.94 Detection monitoring program.
(a) Detection monitoring is required at CCR landfills and surface
impoundments at all groundwater monitoring wells. At a minimum, a
detection monitoring program must include monitoring for the parameters
listed in Appendix III to this part.
(b) The monitoring frequency for all parameters listed in Appendix
III to this part shall be at least semiannual during the active life of
the CCR landfill or surface impoundment (including closure) and the
post-closure period. A minimum of four independent samples from each
background and downgradient well must be collected and analyzed for the
Appendix III parameters during the first semiannual sampling event.
(c) At least one sample from each background and downgradient well
must be collected and analyzed during subsequent semiannual sampling
events.
(d) If the owner or operator of the CCR landfill or surface
impoundment determines, pursuant to Sec. 257.93(g) that there is a
statistically significant increase over background for one or more of
the parameters listed in Appendix III to this part at any monitoring
well at the waste boundary specified under Sec. 257.91(a)(2), the
owner or operator:
(1) Must, within 14 days of this finding, place a notice in the
operating record and on the owner's or operator's publicly accessible
internet site indicating which parameters have shown statistically
significant changes from background levels, and notify the state that
this notice was placed in the operating record and on the owner's or
operator's publicly accessible internet site; and
(2) Must establish an assessment monitoring program meeting the
requirements of Sec. 257.95 of this part within 90 days except as
provided for in paragraph (c)(3) of this section.
(3) The owner/operator may demonstrate that a source other than the
CCR landfill or surface impoundment caused the statistically
significant increase or that the statistically significant increase
resulted from error in sampling, analysis, statistical evaluation, or
natural variation in groundwater quality. A report documenting this
demonstration must be certified by an independent registered
professional engineer or hydrologist and be placed in the operating
record and on the owner's or operator's publicly accessible internet
site and the state notified of this finding. If a successful
demonstration is made and documented, the owner or operator of the CCR
landfill or surface impoundment may continue detection monitoring as
specified in this section. If, after 90 days, a successful
demonstration is not made, the owner or operator of the CCR landfill or
surface impoundment must initiate an assessment monitoring program as
required in Sec. 257.95.
Sec. 257.95 Assessment monitoring program.
(a) Assessment monitoring is required whenever a statistically
significant increase over background has been detected for one or more
of the
[[Page 35249]]
constituents listed in the 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 landfill or
surface impoundment must sample and analyze the groundwater for all
constituents identified in Appendix IV to this part. A minimum of one
sample from each downgradient well must be collected and analyzed
during each sampling event. For any constituent detected in the
downgradient wells as a result of the complete Appendix IV analysis, a
minimum of four independent samples from each well (background and
downgradient) must be collected and analyzed to establish background
for the constituents.
(c) After obtaining the results from the initial or subsequent
sampling events required in paragraph (b) of this section, the owner or
operator of the CCR landfill or surface impoundment must:
(1) Within 14 days, place a notice in the operating record and on
the owner's or operator's publicly accessible internet site identifying
the Appendix IV constituents that have been detected and notify the
state that this notice has been placed in the operating record and on
the owner's or operator's publicly accessible internet site;
(2) Within 90 days, and on at least a semiannual basis thereafter,
resample all wells specified by Sec. 257.91(a), 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 and place the results on the owner's or operator's
publicly accessible internet site. At least one sample from each well
(background and downgradient) must be collected and analyzed during
these sampling events.
(3) Establish background concentrations for any constituents
detected pursuant to paragraph (b) or (c)(2) of this section; and
(4) Establish groundwater protection standards for all constituents
detected pursuant to paragraph (b) or (c) of this section. The
groundwater protection standards shall be established in accordance
with paragraphs (g) or (h) of this section.
(d) If the concentrations of all Appendix IV constituents are shown
to be at or below background values, using the statistical procedures
in Sec. 257.93(g), for two consecutive sampling events, the owner or
operator of the CCR landfill or surface impoundment must place that
information in the operating record and on the owner's or operator's
publicly accessible internet site and notify the state of this finding
and may return to detection monitoring.
(e) If the concentrations of any Appendix IV constituents are above
background values, but all concentrations are below the groundwater
protection standard established under paragraphs (g) or (h) of this
section, using the statistical procedures in Sec. 257.93(g), the owner
or operator must continue assessment monitoring in accordance with this
section.
(f) If one or more Appendix IV constituents are detected at
statistically significant levels above the groundwater protection
standard established under paragraphs (g) or (h) of this section in any
sampling event, the owner or operator must, within 14 days of this
finding, place a notice in the operating record and on the owner's or
operator's publicly accessible internet site identifying the Appendix
IV constituents that have exceeded the groundwater protection standard
and notify the state and all appropriate local government officials
that the notice has been placed in the operating record and on the
owner's or operator's publicly accessible internet site. The owner or
operator of the CCR landfill or surface impoundment also must:
(1)(i) Characterize the nature and extent of the release by
installing additional monitoring wells as necessary;
(ii) 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 (c)(2) of this section;
(iii) 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 (f)(1) of this section; and
(iv) Initiate an assessment of corrective measures as required by
Sec. 257.96 of this part within 90 days; or
(2) May demonstrate that a source other than the CCR landfill or
surface impoundment caused the contamination, or that the statistically
significant increase resulted from error in sampling, analysis,
statistical evaluation, or natural variation in groundwater quality. A
report documenting this demonstration must be certified by an
independent registered professional engineer or hydrologist and placed
in the operating record and on the owner's or operator's publicly
accessible internet site, and the state notified of this action. If a
successful demonstration is made the owner or operator of the CCR
landfill or surface impoundment must continue monitoring in accordance
with the assessment monitoring program pursuant to this section, and
may return to detection monitoring if the Appendix IV constituents are
at or below background as specified in paragraph (d) of this section.
Until a successful demonstration is made, the owner or operator of the
CCR landfill or surface impoundment must comply with paragraph (f) of
this section including initiating an assessment of corrective measures.
(g) The owner or operator of the CCR landfill or surface
impoundment must establish a groundwater protection standard for each
Appendix IV constituent detected in the groundwater. The groundwater
protection standard shall be:
(1) For constituents for which a maximum contaminant level (MCL)
has been promulgated under section 1412 of the Safe Drinking Water Act
(codified) under 40 CFR part 141, the MCL for that constituent;
(2) For constituents for which MCLs have not been promulgated, the
background concentration for the constituent established from wells in
accordance with Sec. 257.91(a)(1); or
(3) For constituents for which the background level is higher than
the MCL identified under paragraph (g)(1) of this section or health
based levels identified under paragraph (h)(1) of this section, the
background concentration.
(h) The owner or operator may establish an alternative groundwater
protection standard for constituents for which MCLs have not been
established provided that the alternative ground-water 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.
These groundwater protection standards shall be appropriate health
based levels that satisfy the following criteria:
(1) The level is derived in a manner consistent with Agency
guidelines for assessing the health risks of environmental pollutants;
(2) The level is based on scientifically valid studies conducted in
accordance with the Toxic Substances Control Act Good Laboratory
Practice Standards (40 CFR part 792) or equivalent;
(3) For carcinogens, the level represents a concentration
associated with an excess lifetime cancer risk level
[[Page 35250]]
(due to continuous lifetime exposure) within the 1x10-4 to
1x10-6 range; and
(4) For systemic toxicants, the level represents a concentration to
which the human population (including sensitive subgroups) could be
exposed to on a daily basis that is likely to be without appreciable
risk of deleterious effects during a lifetime. For purposes of this
subpart, systemic toxicants include toxic chemicals that cause effects
other than cancer or mutation.
(i) In establishing groundwater protection standards under
paragraph (h) of this section, the owner or operator of the CCR
landfill or surface impoundment may consider the following:
(1) Multiple contaminants in the groundwater;
(2) Exposure threats to sensitive environmental receptors; and
(3) Other site-specific exposure or potential exposure to
groundwater.
Sec. 257.96 Assessment of corrective measures.
(a) 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
defined under Sec. 257.95 (g) or (h) of this part, the owner or
operator of the CCR landfill or surface impoundment must initiate an
assessment of corrective measures. Such an assessment must be completed
within 90 days.
(b) The owner or operator of the CCR landfill or surface
impoundment must continue to monitor in accordance with the assessment
monitoring program as specified in Sec. 257.95.
(c) The assessment shall include an analysis of the effectiveness
of potential corrective measures in meeting all of the requirements and
objectives of the remedy as described under Sec. 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 costs of remedy implementation; and
(4) 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).
(d) The owner or operator of the CCR landfill or surface
impoundment must provide notification of the corrective measures
assessment to the state and the public.
(e) The owner or operator must discuss the results of the
corrective measures assessment, prior to the selection of remedy, in a
public meeting with interested and affected parties.
Sec. 257.97 Selection of remedy.
(a) Based on the results of the corrective measures assessment
conducted under Sec. 257.96, the owner or operator of the CCR landfill
or surface impoundment must select a remedy that, at a minimum, meets
the standards listed in paragraph (b) of this section. The owner or
operator of the CCR landfill or surface impoundment must notify the
state and the public within 14 days of selecting a remedy, that a
report certified by an independent registered professional engineer or
hydrologist describing the selected remedy, has been placed in the
operating record and on the owner's or operator's publicly accessible
internet site, and how it meets the standards in paragraph (b) of this
section.
(b) Remedies must:
(1) Be protective of human health and the environment;
(2) Attain the groundwater protection standard as specified
pursuant to Sec. Sec. 257.95 (g) or (h);
(3) Control the source(s) of releases so as to reduce or eliminate,
to the maximum extent practicable, further releases of Appendix IV of
this part constituents into the environment that may pose a threat to
human health or the environment; and
(4) Comply with standards for management of wastes as specified in
Sec. 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 landfill or surface
impoundment 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 CCRs 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,
workers, 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
containment;
(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,
redisposal, 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;
(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 of the CCR landfill or surface
impoundment shall specify as part of the selected remedy a schedule(s)
for initiating and completing remedial activities. Such a schedule must
require the initiation of remedial activities within a reasonable
period of time taking into consideration the factors set forth in
paragraphs (d) (1) through (8) of this section. The owner or operator
of the CCR landfill or surface impoundment must consider the following
factors in determining the schedule of remedial activities:
(1) Extent and nature of contamination;
(2) Reasonable probabilities of remedial technologies in achieving
compliance with the groundwater protection standards established under
Sec. 257.95 (f) or (g) and other objectives of the remedy;
(3) Availability of treatment or disposal capacity for CCRs managed
during implementation of the remedy;
[[Page 35251]]
(4) 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;
(5) Potential risks to human health and the environment from
exposure to contamination prior to completion of the remedy;
(6) 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;
(vi) Groundwater removal and treatment costs; and
(vii) The cost and availability of alternative water supplies.
(7) Other relevant factors.
(e) The owner or operator of the CCR landfill or surface
impoundment may determine that remediation of a release of an Appendix
IV constituent from a CCR landfill or surface impoundment is not
necessary if the owner or operator of the CCR landfill or surface
impoundment demonstrates the following, and notifies the state that the
demonstration, certified by an independent registered professional
engineer or hydrologist, has been placed in the operating record and on
the owner's or operator's publicly accessible internet site:
(1) The groundwater is additionally contaminated by substances that
have originated from a source other than a CCR landfill or surface
impoundment and those substances are present in concentrations such
that cleanup of the release from the CCR landfill or surface
impoundment would provide no significant reduction in risk to actual or
potential receptors; or
(2) The constituent(s) is present in groundwater that:
(i) Is not currently or reasonably expected to be a source of
drinking water; and
(ii) Is not hydraulically connected with waters to which the
hazardous constituents are migrating or are likely to migrate in a
concentration(s) that would exceed the ground-water protection
standards established under Sec. 257.95 (g) or (h); or
(3) Remediation of the release(s) is technically impracticable; or
(4) Remediation results in unacceptable cross-media impacts.
(f) A determination by the owner or operator pursuant to paragraph
(e) of this section shall not affect the obligation of the owner or
operator to undertake source control measures or other measures that
may be necessary to eliminate or minimize further releases to the
groundwater, to prevent exposure to the groundwater, or to remediate
the groundwater to concentrations that are reasonable and significantly
reduce threats to human health or the environment.
Sec. 257.98 Implementation of the corrective action program.
(a) Based on the schedule established under Sec. 257.97(d) for
initiation 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 Sec. 257.95;
(ii) Indicates the effectiveness of the corrective action remedy;
and
(iii) Demonstrates compliance with ground-water protection standard
pursuant to paragraph (e) of this section.
(2) Implement the corrective action remedy selected under Sec.
257.97; and
(3) Take any interim measures necessary to ensure the protection of
human health and the environment. Interim measures should, to the
greatest extent practicable, be consistent with the objectives of and
contribute to the performance of any remedy that may be required
pursuant to Sec. 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 Appendix IV constituents;
(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 Appendix IV of
this part constituents to migrate or be released;
(vi) Potential for exposure to any of the Appendix IV of this part
constituents 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) An owner or operator of the CCR landfill or surface impoundment
may determine, based on information developed after implementation of
the remedy has begun or other information, that compliance with
requirements of Sec. 257.97(b) are not being achieved through the
remedy selected. In such cases, the owner or operator of the CCR
landfill or surface impoundment must implement other methods or
techniques that could reasonably achieve compliance with the
requirements, unless the owner or operator makes the determination
under paragraph (c) of this section.
(c) If the owner or operator determines that compliance with
requirements under Sec. 257.97(b) cannot be reasonably achieved with
any currently available methods, the owner or operator of the CCR
landfill or surface impoundment must:
(1) Obtain certification of an independent registered professional
engineer or hydrologist that compliance with requirements under Sec.
257.97(b) cannot be reasonably achieved with any currently available
methods;
(2) Implement alternate measures to control exposure of humans or
the environment to residual contamination, as necessary to protect
human health and the environment; and
(3) Implement alternate measures for control of the sources of
contamination or for removal or decontamination of equipment, units,
devices, or structures that are consistent with the overall objective
of the remedy.
(4) Notify the state within 14 days that a report, including the
certification required in paragraph (c)(1) of this section, justifying
the alternative measures prior to implementing the alternative measures
has been placed in the operating record and on the owner's or
operator's publicly accessible internet site.
(d) All CCRs that are managed pursuant to a remedy required under
Sec. 257.97, or an interim measure required under paragraph (a)(3) of
this section, shall be managed in a manner:
(1) That is protective of human health and the environment; and
(2) That complies with applicable RCRA requirements.
(e) Remedies selected pursuant to Sec. 257.97 shall be considered
complete when:
(1) The owner or operator of the CCR landfill or surface
impoundment complies with the groundwater protection standards
established under Sec. Sec. 257.95 (h) or (i) at all points within the
plume of contamination that lie beyond the groundwater monitoring well
system established under Sec. 257.91(a).
[[Page 35252]]
(2) Compliance with the groundwater protection standards
established under Sec. Sec. 257.95 (h) or (h) has been achieved by
demonstrating that concentrations of Appendix IV constituents have not
exceeded the groundwater protection standard(s) for a period of three
consecutive years using the statistical procedures and performance
standards in Sec. 257.93 (g) and (h).
(3) All actions required to complete the remedy have been
satisfied.
(f) Upon completion of the remedy, the owner or operator of the CCR
landfill or surface impoundment must notify the state within 14 days
that a certification that the remedy has been completed in compliance
with the requirements of paragraph (e) of this section has been placed
in the operating record and on the owner's or operator's publicly
accessible internet site. The certification must be signed by the owner
or operator and by an independent registered professional engineer or
hydrologist.
Sec. 257.99 [Reserved]
Closure and Post-Closure Care
Sec. 257.100 Closure criteria.
(a) Prior to closure of any CCR landfill or surface impoundment
covered by this subpart, the owner or operator shall submit to the
state, a plan for closure of the unit based on recognized and generally
accepted good engineering practices and certified by an independent
registered professional engineer. The closure plan shall be consistent
with paragraph (g) of this section and provide for major slope
stability, include a schedule for the plan's implementation and contain
provisions to preclude the probability of future impoundment of water,
sediment, or slurry. The closure plan shall be placed in the operating
record and on the owner's or operator's publicly accessible internet
site.
(b) Closure of a CCR landfill or surface impoundment may be
accomplished with CCRs in place or through CCR removal and
decontamination of all areas affected by releases from the CCR landfill
or surface impoundment. CCR removal and decontamination are complete
when constituent concentrations throughout the CCR landfill or surface
impoundment and any areas affected by releases from the CCR landfill or
surface impoundment do not exceed numeric cleanup levels for those
constituents found in the CCRs established by the state in which the
CCR landfill or surface impoundment is located.
(c) At closure, the owner or operator of a surface impoundment
must:
(1) Eliminate free liquids by removing liquid wastes or solidifying
the remaining wastes and waste residues;
(2) Stabilize remaining wastes to a bearing capacity sufficient to
support the final cover; and
(3) Cover the surface impoundment with a final cover designed and
constructed to:
(i) Provide long-term minimization of the migration of liquids
through the closed impoundment;
(ii) Function with minimum maintenance; and
(iii) Promote drainage and minimize erosion or abrasion of the
cover;
(iv) Accommodate settling and subsidence so that the cover's
integrity is maintained; and
(v) Have a final cover system that meets the requirements of
subsection (d).
(d) For closure with CCRs in place, a final cover system must be
installed at all CCR landfills and surface impoundments that is
designed to minimize infiltration and erosion. The final cover system
must be designed and constructed to:
(1) Have a permeability less than or equal to the permeability of
any bottom liner system or natural subsoils present, or a permeability
no greater than 1x10-5 cm/sec, whichever is less, and
(2) Minimize infiltration through the closed CCR landfill or
surface impoundment by the use of an infiltration layer that contains a
minimum 18-inches of earthen material, and
(3) Minimize erosion of the final cover by the use of an erosion
layer that contains a minimum 6-inches of earthen material that is
capable of sustaining native plant growth, and
(4) Minimize the disruption of the final cover through a design
that accommodates settling and subsidence.
(e) The owner or operator of the CCR landfill or surface
impoundment may select an alternative final cover design, provided the
alternative cover design is certified by an independent registered
professional engineer and notification is provided to the state and the
EPA Regional Administrator that the alternative cover design has been
placed in the operating record and on the owner's or operator's
publicly accessible internet site. The alternative final cover design
must include:
(1) An infiltration layer that achieves an equivalent reduction in
infiltration as the infiltration layer specified in paragraphs (d)(1)
and (d)(2) of this section, and
(2) An erosion layer that provides equivalent protection from wind
and water erosion as the erosion layer specified in paragraph (d)(3) of
this section.
(f) The design of the final cover system shall be placed on the
owner's or operator's publicly accessible internet site.
(g) The owner or operator of the CCR landfill or surface
impoundment must prepare a written closure plan that describes the
steps necessary to close the CCR landfill or surface impoundment at any
point during the active life in accordance with the cover design
requirements in paragraph (d) or (e) of this section, as applicable.
The closure plan, at a minimum, must include the following information:
(1) A description of the final cover, designed in accordance with
paragraph (d) or (e) of this section and the methods and procedures to
be used to install the cover;
(2) An estimate of the largest area of the CCR landfill or surface
impoundment ever requiring a final cover as required under paragraph
(d) or (e) of this section at any time during the active life;
(3) An estimate of the maximum inventory of CCRs ever on-site over
the active life of the CCR landfill or surface impoundment; and
(4) A schedule for completing all activities necessary to satisfy
the closure criteria in this section.
(h) The owner or operator of the CCR landfill or surface
impoundment must notify the state that a closure plan, certified by an
independent registered professional engineer, has been prepared and
placed in the operating record and on the owner's or operator's
publicly accessible internet site no later than the effective date of
this part, or by the initial receipt of CCRs, whichever is later.
(i) Prior to beginning closure of each CCR landfill or surface
impoundment as specified in paragraph (j) of this section, an owner or
operator of a CCR landfill or surface impoundment must notify the state
that a notice of the intent to close the unit has been placed in the
operating record and on the owner's or operator's publicly accessible
internet site.
(j) The owner or operator of the CCR landfill or surface
impoundment must begin closure activities no later than 30 days after
the date on which the CCR landfill or surface impoundment receives the
known final receipt of CCR or, if the CCR landfill or surface
impoundment has remaining capacity and there is a reasonable likelihood
that the CCR landfill or surface impoundment will receive additional
CCRs, no later than one year after the most recent receipt of CCRs.
[[Page 35253]]
(k) The owner or operator of the CCR landfill or surface
impoundment must complete closure activities in accordance with the
closure plan within 180 days following the beginning of closure as
specified in paragraph (j) of this section.
(l) Following closure of each CCR landfill or surface impoundment,
the owner or operator of the CCR landfill or surface impoundment must
notify the state that a certification, signed by an independent
registered professional engineer, verifying that closure has been
completed in accordance with the closure plan and the requirements of
this subpart that has been placed in the operating record and on the
owner's or operator's publicly accessible internet site.
(m)(1) Following closure of all CCR landfills or surface
impoundments, the owner or operator of the CCR landfill or surface
impoundment must record a notation on the deed to the property, or some
other instrument that is normally examined during title search, and
notify the state that the notation has been recorded and a copy has
been placed in the operating record and on the owner's or operator's
publicly accessible internet site.
(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 landfill or surface
impoundment; and
(ii) Its use is restricted under Sec. 257.101(c)(3).
Sec. 257.101 Post-closure care requirements.
(a) Following closure of each CCR landfill or surface impoundment,
the owner or operator must conduct post-closure care. Post-closure care
must be conducted for 30 years, except as provided under paragraph (b)
of this section, and consist of at least the following:
(1) Maintaining the integrity and effectiveness of any final cover,
including making repairs to the 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) 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 Sec. Sec.
257.70, 257.71, and 257.72.
(3) Maintaining the groundwater monitoring system and monitoring
the groundwater in accordance with the requirements of Sec. Sec.
257.91 through 257.98 of this part.
(b) The length of the post-closure care period may be:
(1) Decreased if the owner or operator of the CCR landfill or
surface impoundment demonstrates that the reduced period is sufficient
to protect human health and the environment and this demonstration is
certified by an independent registered professional engineer and notice
is provided to the state that the demonstration has been placed in the
operating record and on the owner's or operator's publicly accessible
Internet site; or
(2) Increased if the owner or operator of the CCR landfill or
surface impoundment determines that a lengthened period is necessary to
protect human health and the environment.
(c) The owner or operator of the CCR landfill or surface
impoundment must prepare a written post-closure plan, certified by an
independent registered professional engineer that includes, at a
minimum, the following information:
(1) A description of the monitoring and maintenance activities
required in paragraph (a) of this section for each CCR landfill or
surface impoundment, and the frequency at which these activities will
be performed;
(2) Name, address, and telephone number of the person or office to
contact about the facility during the post-closure period; and
(3) 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 components 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
landfill or surface impoundment demonstrates that disturbance of the
final cover, liner or other component of the containment system,
including any removal of CCRs, will not increase the potential threat
to human health or the environment. The demonstration must be certified
by an independent registered professional engineer, and notification
shall be provided to the state that the demonstration has been placed
in the operating record and on the owner's or operator's publicly
accessible internet site.
(d) The owner or operator of the CCR landfill or surface
impoundment must notify the state that a post-closure plan has been
prepared and placed in the operating record and on the owner's or
operator's publicly accessible internet site no later than the
effective date of this rule, or by the initial receipt of CCRs,
whichever is later.
(e) Following completion of the post-closure care period for the
CCR landfill or surface impoundment, the owner or operator of the CCR
landfill or surface impoundment must notify the state that a
certification, signed by an independent registered professional
engineer, verifying that post-closure care has been completed in
accordance with the post-closure plan has been placed in the operating
record and on the owner's or operator's publicly accessible internet
site.
Sec. Sec. 257.102-257.109 [Reserved]
6. Add Appendixes III and IV to Part 257 to read as follows:
Appendix III to Part 257--Constituents for Detection Monitoring
------------------------------------------------------------------------
Common Name \1\
-------------------------------------------------------------------------
Boron
Chloride
Conductivity
Fluoride
pH
Sulphate
Sulfide
Total Dissolved Solids
------------------------------------------------------------------------
\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\
-------------------------------------------------------------------------
Aluminum
Antimony
Arsenic
Barium
Beryllium
Boron
Cadmium
Chloride
Chromium (total)
Copper
Fluoride
Iron
Lead
Manganese
Mercury
Molybdenum
pH
Selenium
Sulphate
Sulfide
Thallium
Total Dissolved Solids
------------------------------------------------------------------------
\1\ Common names are those widely used in government regulations,
scientific publications, and commerce; synonyms exist for many
chemicals.
[[Page 35254]]
Alternative 2: Co-Proposal Under Authority of Subtitle C
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
6a. 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.
Sec. 261.4 Exclusions.
* * * * *
(b) * * *
(4)(i) Fly ash, bottom ash, boiler slag, and flue gas emission
control wastes, generated primarily from the combustion of coal for the
purpose of generating electricity by the electric power sector if the
fly ash, bottom ash, boiler slag, and flue gas emission control wastes
are beneficially used or placed in minefilling operations. Beneficial
Use of Coal Combustion Products (CCPs) means the use of CCPs that
provides a functional benefit; replaces the use of an alternative
material, conserving natural resources that would otherwise need to be
obtained through practices such as extraction; and meets relevant
product specifications and regulatory standards (where these are
available). CCPs that are used in excess quantities, placed as fill in
sand and gravel pits, or used in large scale fill projects, such as for
restructuring the landscape, are not considered beneficial uses.
(ii) Fly ash, bottom ash, boiler slag, and flue gas emission
control wastes generated primarily from the combustion of coal for the
purpose of generating electricity by facilities outside of the electric
power sector (i.e., not included in NAICS code 221112).
(iii) Fly ash, bottom ash, boiler slag, and flue gas emission
control wastes, generated primarily from the combustion of fossil fuels
other than coal, for the purpose of generating electricity, except as
provided by Sec. 266.112 of this chapter for facilities that burn or
process hazardous waste.
* * * * *
8. Part 261 is amended by adding Subpart F to read as follows.
Subpart F--Special Wastes Subject to Subtitle C Regulations
Sec. 261.50 General.
(a) The following solid wastes are special wastes subject to
regulation under parts 262 through 268, and parts 270, 271, and 124 of
this chapter, and to the notification requirements of section 3010 of
RCRA,
----------------------------------------------------------------------------------------------------------------
Industry and EPA special waste No. Special waste Hazard code
----------------------------------------------------------------------------------------------------------------
Coal Combustion Residuals:
S001...................................... Coal combustion residuals generated by the (T)
electric power sector (Electric Utilities and
Independent Power Producers).
----------------------------------------------------------------------------------------------------------------
(b) For the purposes of the S001 listing, the electric power sector
is defined as electricity-only and combined-heat-and-power (CHP) plants
whose primary business is to sell electricity, or electricity and heat,
to the public; i.e., NAICS code 221112 plants. Coal combustion
residuals are defined to include fly ash, bottom ash, boiler slag, and
flue gas desulfurization materials generated by the electric utility
industry. This listing does not apply to coal combustion residuals that
are:
(1) Uniquely associated wastes as defined in paragraph (c) of this
section;
(2) Beneficially used as defined in paragraph (d) of this section;
(3) Placed in minefilling operations;
(4) Generated by facilities outside the electric power sector
(i.e., not included in NAICS code 22112); or
(5) Generated from clean-up activities that are conducted as part
of a state or federally required clean-up that commenced prior to the
effective date of this rule.
(c) Uniquely associated wastes are low-volume wastes other than
those defined as coal combustion residuals in paragraph (a) of this
section that are related to the coal combustion process. Examples of
uniquely associated wastes are precipitation runoff from coal storage
piles at the facility, waste coal or coal mill rejects that are not of
sufficient quality to burn as fuel, and wastes from cleaning the
boilers used to generate steam.
(d) Beneficial Use of Coal Combustion Products (CCPs) means the use
of CCPs that provides a functional benefit; replaces the use of an
alternative material, conserving natural resources that would otherwise
need to be obtained through practices such as extraction; and meets
relevant product specifications and regulatory standards (where these
are available). CCPs that are used in excess quantities, placed as fill
in sand and gravel pits, or used in large scale fill projects, such as
for restructuring the landscape, are not considered beneficial uses.
9. Part 261 is amended by adding Appendix X to read as follows.
Appendix X to Part 261--Basis for Listing Special Wastes
------------------------------------------------------------------------
Hazardous constituents for which
EPA special waste No. listed
------------------------------------------------------------------------
S001.............................. Antimony, arsenic, barium,
beryllium, cadmium, chromium, lead,
mercury, nickel, selenium, silver,
thallium.
------------------------------------------------------------------------
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
10. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
11. Section 264.1 is amended by adding paragraph (k) to read as
follows:
Sec. 264.1 Purpose, scope and applicability.
* * * * *
(k) Owners or operators who treat, store or dispose of EPA Special
Waste Number S001, also referred to as coal combustion residuals are
subject to the requirements of this part, except as specifically
provided otherwise in this part. In addition, subpart FF of this part
includes additional requirements for the treatment, storage or disposal
of EPA Special Waste Number S001.
12. Section 264.140 is amended by revising paragraph (a) to read as
follows:
[[Page 35255]]
Sec. 264.140 Applicability.
(a) The requirements of Sec. Sec. 264.142, 264.143, and 264.147
through 264.151 apply to owners and operators of all hazardous waste
facilities and facilities that treat, store or dispose of special
wastes, except as provided otherwise in this section, or in Sec.
264.1.
* * * * *
13. Part 264 is amended by adding subpart FF to read as follows:
Subpart FF--Special Requirements for Coal Combustion Residual (S001)
Wastes
Sec.
264.1300 Applicability.
264.1301 Definitions.
264.1302 Reporting.
264.1303 Surface impoundments.
264.1304 Inspection requirements for surface impoundments.
264.1305 Requirements for surface impoundment closure.
264.1306 Landfills.
264.1307 Surface water requirements.
264.1308 Air requirements.
Subpart FF--Special Requirements for Coal Combustion Residual
(S001) Wastes
Sec. 264.1300 Applicability.
(a) The regulations in this subpart apply to owners or operators of
facilities that treat, store or dispose of EPA Special Waste Number
S001.
(b) Owners or operators of surface impoundments that cease
receiving EPA Special Waste Number S001, must comply with the closure
requirements in 40 CFR 265.111 and 40 CFR 265.228. Facilities that have
not met these closure requirements by the effective date of this
regulation would be subject to the requirements in Parts 260 through
268, and 270 through 272, of this chapter.
Sec. 264.1301 Definitions.
This section contains definitions for terms that appear throughout
this subpart; additional definitions appear in 40 CFR 260.10 or the
specific sections to which they apply.
Area-capacity curves means graphic curves which readily show the
reservoir water surface area, in acres, at different elevations from
the bottom of the reservoir to the maximum water surface, and the
capacity or volume, in acre-feet, of the water contained in the
reservoir at various elevations.
CCR landfill means a disposal facility or part of a facility where
CCRs 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 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.
CCR surface impoundment or impoundment means 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 CCRs 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 CCRs 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.
Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler
slag, and flue gas desulfurization materials, destined for disposal.
CCRs are also known as coal combustion wastes (CCWs) and fossil fuel
combustion (FFC) wastes, when destined for disposal.
Existing CCR landfill means a landfill which was in operation or
for which construction commenced prior to the effective date of the
final rule. 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.
Existing CCR surface impoundment means a surface impoundment which
was in operation or for which construction commenced prior to the
effective date of the final rule. 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 either
(1) A continuous on-site, physical construction program has begun;
or
(2) The owner or operator has entered into contractual
obligations--which can not be cancelled or modified without substantial
loss--for physical construction of the CCR surface impoundment to be
completed within a reasonable time.
Factor of safety (Safety factor) means the ratio of the forces
tending to resist the failure of a structure to the forces tending to
cause such failure as determined by recognized and generally accepted
good engineering practices.
Hazard potential means the possible adverse incremental
consequences that result from the release of water or stored contents
due to failure of a dam (or impoundment) or mis-operation of the dam or
appurtenances.
(1) High hazard potential surface impoundment means a surface
impoundment where failure or mis-operation will probably cause loss of
human life.
(2) Significant hazard potential surface impoundment means a
surface impoundment where failure or mis-operation results in no
probable loss of human life, but can cause economic loss, environment
damage, disruption of lifeline facilities, or impact other concerns.
(3) Low hazard potential surface impoundment means a surface
impoundment where failure or mis-operation results in no probable loss
of human life and low economic and/or environmental losses. Losses are
principally limited to the surface impoundment owner's property.
(4) Less than low hazard potential surface impoundment means a
surface impoundment not meeting the definitions for High, Significant,
or Low Hazard Potential.
Lateral expansion means a horizontal expansion of the waste
boundaries of an existing CCR landfill, or CCR surface impoundment made
after the effective date of the final rule.
New CCR landfill means a landfill, including lateral expansions, or
installation from which there is or may be placement of CCRs without
the presence of free liquids, which began operation, or for which the
construction commenced after the effective date of the final rule.
New CCR surface impoundment means a surface impoundment, including
lateral expansions, or installation from which there is or may be
placement of CCRs with the presence of free liquids, which began
operation, or for which the construction commenced after the effective
date of the final rule.
Probable maximum precipitation means the value for a particular
area which represents an envelopment of depth-duration-area rainfall
relations for all storm types affecting that area adjusted
meteorologically to maximum conditions.
Recognized and generally accepted good engineering practices
(RAGAGEPs)
[[Page 35256]]
means engineering, operation, or maintenance activities based on
established codes, standards, published technical reports or
recommended practices (RP) or a similar document. RAGAGEPs detail
generally approved ways to perform specific engineering, inspection or
mechanical integrity activities.
Sec. 264.1302 Reporting.
(a) Except as provided in paragraph (b) of this section, every
twelfth month following the date of the initial plan approval required
in Sec. 264.1303, the person owning or operating a CCR surface
impoundment that has not been properly closed in accordance with an
approved plan shall submit to the Regional Administrator a report
containing the following information:
(1) Changes in the geometry of the CCR surface impoundment for the
reporting period.
(2) Location and type of installed instruments and the maximum and
minimum recorded readings of each instrument for the reporting period.
(3) The minimum, maximum, and present depth and elevation of the
CCR slurry and CCR wastewater in the CCR surface impoundment for the
reporting period.
(4) The storage capacity of the CCR surface impoundment.
(5) The volume of the CCR slurry and CCR wastewater in the CCR
surface impoundment at the end of the reporting period.
(6) Any other change which may have affected the stability or
operation of the CCR surface impoundment that has occurred during the
reporting period.
(7) A certification by an independent registered professional
engineer that all construction, operation, and maintenance are in
accordance with the approved plan prepared in accordance with Sec.
264.1303.
(b) A report is not required under this section when the person
owning or operating the CCR surface impoundment provides the Regional
Administrator with a certification by an independent registered
professional engineer that there have been no changes in the operation
of the CCR surface impoundment or to any of the parameters previously
reported under paragraphs (a)(1) through (a)(6) of this section.
However, a report containing the information set out in paragraph (a)
of this section shall be submitted to the Regional Administrator at
least every 5 years.
Sec. 264.1303 Surface impoundments.
(a) In addition to the requirements in subpart K of this part, EPA
Special Waste No. S001 is subject to the requirements in this section.
(b) Plans for the design, construction, and maintenance of existing
CCR surface impoundments shall be required if such a unit can:
(1) Impound CCRs to an elevation of five feet or more above the
upstream toe of the structure and can have a storage volume of 20 acre-
feet or more; or
(2) Impound CCRs to an elevation of 20 feet or more above the
upstream toe of the structure.
(c) Plans required under paragraph (b) of this section shall be
submitted in triplicate to the Regional Administrator on or before
[date one year after the effective date of the final rule].
(d) A permanent identification marker, at least six feet high and
showing the identification number of the CCR surface impoundment as
assigned by the Regional Administrator, the name associated with the
CCR surface impoundment and the name of the person owning or operating
the structure, shall be located on or immediately adjacent to each CCR
surface impoundment by [date 60 days after the effective date of the
final rule].
(e) The plan specified in paragraph (b) of this section, shall
contain at a minimum the following information:
(1) The name and address of the persons owning or operating the CCR
surface impoundment; the name associated with the CCR surface
impoundment; and the identification number of the CCR surface
impoundment as assigned by the Regional Administrator.
(2) The location of the CCR surface impoundment indicated on the
most recent USGS 7\1/2\ minute or 15 minute topographic quadrangle map,
or a topographic map of equivalent scale if a USGS map is not
available.
(3) A statement of the purpose for which the CCR surface
impoundment is being used.
(4) The name and size in acres of the watershed affecting the CCR
surface impoundment.
(5) A description of the physical and engineering properties of the
foundation materials on which the CCR surface impoundment is
constructed.
(6) A statement of the type, size, range, and physical and
engineering properties of the materials used in constructing each zone
or stage of the CCR surface impoundment; the method of site preparation
and construction of each zone of the CCR surface impoundment; the
approximate dates of construction, and each successive stage of
construction of the CCR surface impoundment; and for existing CCR
surface impoundments, such history of construction as may be available,
and any record or knowledge of structural instability.
(7) At a scale not to exceed 1 inch = 100 feet, detailed
dimensional drawings of the CCR surface impoundment, including a plan
view and cross sections of the length and width of the CCR surface
impoundment, showing all zones, foundation improvements, drainage
provisions, spillways, diversion ditches, outlets, instrument
locations, and slope protection, in addition to the measurement of the
minimum vertical distance between the crest of the CCR surface
impoundment and the reservoir surface at present and under design storm
conditions, CCR slurry level and CCR wastewater level, and other
information pertinent to the CCR surface impoundment itself, including
any identifiable natural or manmade features which could affect
operation of the CCR surface impoundment.
(8) A description of the type and purpose of existing or proposed
instrumentation.
(9) Graphs showing area-capacity curves.
(10) The hazard potential classification for which the facility is
designed and a detailed explanation of the basis for this
classification.
(11) A statement of the runoff attributable to the storm for which
the CCR surface impoundment is designed and the calculations used in
determining such runoff and the minimum freeboard during the design
storm.
(12) A description of the spillway and diversion design features
and capacities and calculations used in their determination.
(13) The computed minimum factor of safety for slope stability of
the CCR retaining structure(s) and the analyses used in their
determinations.
(14) The construction specifications and provisions for
surveillance, maintenance, and repair of the CCR surface impoundment.
(15) General provisions for closure.
(16) Such other information pertaining to the CCR surface
impoundment which may be requested by the Regional Administrator.
(17) A certification by an independent registered professional
engineer that the design of the CCR surface impoundment is in
accordance with recognized and generally accepted good engineering
practices for the maximum volume of CCR slurry and CCR wastewater which
can be impounded therein and for the passage of runoff from the design
storm which exceeds the capacity of the CCR surface impoundment; or, in
lieu of the
[[Page 35257]]
certification, a report indicating what additional investigations,
analyses, or improvement work are necessary before such a certification
can be made by an independent registered professional engineer,
including what provisions have been made to carry out such work in
addition to a schedule for completion of such work.
(f) Any changes or modifications to the plans for CCR surface
impoundments shall be approved by the Regional Administrator prior to
the initiation of such changes or modifications.
(g) Effective [date two years after the effective date of the final
rule], all existing CCR surface impoundments that receive CCRs shall be
operated and maintained with:
(1) A run-on control system to prevent flow onto the active portion
of the CCR surface impoundment during the peak discharge from a 24-
hour, 25-year storm;
(2) A run-off control system from the active portion of the CCR
surface impoundment to collect and control at least the water volume
resulting from a 24-hour, 25-year storm. Run-off from the active
portion of the CCR surface impoundment must be handled in accordance
with Sec. 264.1307.
(h) For CCR surface impoundments classified as having high or
significant hazard potential, the owner or operator shall develop and
maintain in the operating record an Emergency Action Plan which:
defines responsible persons and the actions to be taken in the event of
a dam-safety emergency; provides contact information for emergency
responders; includes a map which delineates the downstream area which
would be affected in the event of a dam failure; and includes
provisions for an annual face-to-face meeting or exercise between
representatives of the facility owner and the local emergency
responders.
Sec. 264.1304 Inspection requirements for surface impoundments.
(a) In addition to the inspection requirements in Sec. 264.226 of
this part, all CCR surface impoundments that meet the requirements of
Sec. 264.1303(b) of this subpart shall be inspected by the owner or
operator as follows:
(1) At intervals not exceeding 7 days, or as otherwise approved by
the Regional Administrator, for appearances of structural weakness and
other hazardous conditions.
(2) At intervals not exceeding 7 days, or as otherwise approved by
the Regional Administrator, all instruments shall be monitored.
(3) Longer inspection or monitoring intervals approved under this
paragraph shall be justified by the owner or operator of the CCR
surface impoundment based on the hazard potential and performance of
the CCR surface impoundment, and shall include a requirement for
inspection immediately after a specified event approved by the Regional
Administrator.
(4) All inspections required by paragraphs (a)(1) and (2) shall be
performed by a qualified person, as defined in paragraph (e) of this
section, designated by the person owning or operating the CCR surface
impoundment.
(5) All CCR surface impoundments that meet the requirements of
Sec. 264.1303(b) of this subpart shall be inspected annually by an
independent registered professional engineer to assure that the design,
operation, and maintenance of the surface impoundment is in accordance
with recognized and generally accepted good engineering standards. The
owner or operator must notify the state and the EPA Regional
Administrator that a certification by the registered professional
engineer that the design, operation, and maintenance of the surface
impoundment is in accordance with recognized and generally accepted
good engineering standards has been placed in the operating record.
(b) When a potentially hazardous condition develops, the person
owning or operating the CCR surface impoundment shall immediately:
(1) Take action to eliminate the potentially hazardous condition;
(2) Notify the Regional Administrator and State and local first
responders;
(3) Notify and prepare to evacuate, if necessary, all personnel
from the owner or operator's property which may be affected by the
potentially hazardous conditions; and
(4) Direct a qualified person to monitor all instruments and
examine the structure at least once every eight hours, or more often as
required by an authorized representative of the Regional Administrator.
(c) After each inspection and instrumentation monitoring referred
to in paragraphs (a) and (b) of this section, each qualified person who
conducted all or any part of the inspection or instrumentation
monitoring shall promptly record the results of such inspection or
instrumentation monitoring in a book which shall be available in the
operating record for inspection by an authorized representative of the
Regional Administrator and such qualified person shall also promptly
report the results of the inspection or monitoring to one of the
persons specified in paragraph (d) of this section.
(d) All inspection and instrumentation monitoring reports recorded
in accordance with paragraph (c) of this section shall include a report
of the action taken to abate hazardous conditions and shall be promptly
signed or countersigned by the person designated by the owner or
operator as responsible for health and safety at the owner or
operator's facility.
(e) The qualified person or persons referred to in this section
shall be trained to recognize specific signs of structural instability
and other hazardous conditions by visual observation and, if
applicable, to monitor instrumentation.
Sec. 264.1305 Requirements for surface impoundment closure.
Prior to the closure of any CCR surface impoundment which meets the
requirements of Sec. 264.1303(b) of this subpart, the person owning or
operating such CCR surface impoundment shall submit to and obtain
approval from the Regional Administrator, a plan for closure in
accordance with the requirements of Sec. 264.228 and subpart G of this
part. This plan shall provide for major slope stability, include a
schedule for the plan's implementation and, contain provisions to
preclude the probability of future impoundment of water.
Sec. 264.1306 Landfills.
(a) Owners or operators of new CCR landfills and lateral expansions
of existing landfills are exempt from the double liner and leachate
collection system requirements of Sec. 264.301(c), and the
requirements of Sec. 264.302, provided the owner or operator is in
compliance with the requirements of paragraph (b) of this section.
Owners or operators of existing landfills are also exempt from the
liner requirements of paragraph (b)(1) of this section, provided they
comply with the requirements of paragraph (c) of this section and the
requirements at 40 CFR part 264 subparts F, G, H, and N.
(b) Prior to placement of CCRs in new landfills and lateral
expansions of new and existing landfills, new landfills and lateral
expansions shall be constructed:
(1) With a composite liner, as defined in paragraph (b)(2) of this
section, and a leachate collection and removal system that is designed
and constructed to maintain less than a 30-cm depth of leachate over
the liner.
(2) For purposes of this subpart, composite liner means a system
consisting of two components; the upper component must consist of a
[[Page 35258]]
minimum 30-mil flexible membrane liner (FML), and the lower component
must consist of at least a two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1 x 10-7 cm/sec. FML
components consisting of high density polyethylene (HDPE) shall be at
least 60-mil thick. The FML component must be installed in direct and
uniform contact with the compacted soil component.
(3) For purpose of this subpart, hydraulic conductivity means the
rate at which water can move through a permeable medium (i.e., the
coefficient of permeability).
(c) Effective [date two years after the effective date of the final
rule], all existing landfills that receive CCRs shall be operated and
maintained with:
(1) A run-on control system to prevent flow onto the active portion
of the CCR landfill during the peak discharge from a 24-hour, 25-year
storm;
(2) A run-off control system from the active portion of the CCR
landfill to collect and control at least the water volume resulting
from a 24-hour, 25-year storm. Run-off from the active portion of the
CCR landfill must be handled in accordance with Sec. 264.1307 of this
subpart.
Sec. 264.1307 Surface water requirements.
(a) Permits for CCR surface impoundments and CCR landfills shall
include conditions to ensure that:
(1) The operation of the unit will not cause any violation of any
requirements of the Clean Water Act, including, but not limited to, the
National Pollutant Discharge Elimination System (NPDES) requirements,
pursuant to section 402 of the Clean Water Act.
(2) The operation of the unit will not cause any violation of any
requirement of an area-wide or state-wide water quality management plan
that has been approved under section 208 or 319 of the Clean Water Act,
as amended.
(b) [Reserved]
Sec. 264.1308 Air requirements.
(a) CCR surface impoundments and CCR landfills must be managed in a
manner that fugitive dusts do not exceed 35 [mu]g/m\3\, unless an
alternative standard has been established by the Regional
Administrator.
(b) CCR surface impoundments must be managed to control wind
dispersal of dusts consistent with the standard in paragraph (a) of
this section unless an alternative standard has been established by the
Regional Administrator.
(c) CCR landfills must be managed to control wind dispersal of
dusts consistent with the standard in paragraph (a) of this section
unless an alternative standard has been established by the Regional
Administrator. CCRs placed in landfills as wet conditioned CCRs shall
not result in the formation of free liquids.
(d) Tanks, containers, buildings and pads used for the storage must
be managed to control the dispersal of dust. Pads must have wind
protection that will ensure comparable levels of control.
(e) CCRs transported in trucks or other vehicles must be covered or
otherwise managed to control the wind dispersal of dust consistent with
the standard in paragraph (a) of this section unless an alternative
standard has been established by the Regional Administrator.
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
14. The authority citation for part 265 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936, and 6937.
15. Section 265.1 is amended by adding paragraph (g) to read as
follows:
Sec. 265.1 Purpose, scope, and applicability.
* * * * *
(g) Owners or operators who treat, store or dispose of EPA Special
Waste Number S001, also referred to as coal combustion residuals (CCRs)
are subject to the requirements of this part, except as specifically
provided otherwise in this part. In addition, subpart FF of this part
includes additional requirements for the treatment storage or disposal
of EPA Special Waste No. S001.
* * * * *
16. Section 265.140 is amended by revising paragraph (a) to read as
follows:
Sec. 265.140 Applicability.
(a) The requirements of Sec. Sec. 265.142, 265.143 and 265.147
through 265.150 apply to owners or operators of all hazardous and
special waste facilities, except as provided otherwise in this section,
or in Sec. 265.1.
* * * * *
17. Part 265 is amended by adding Subpart FF to read as follows:
Subpart FF--Special Requirements for S001 Wastes
Sec.
265.1300 Applicability.
265.1301 Definitions.
265.1302 Reporting.
265.1303 Surface impoundments.
265.1304 Inspection requirements for surface impoundments.
265.1305 Requirements for surface impoundment closure.
265.1306 Landfills.
265.1307 Surface water requirements.
265.1308 Air requirements.
Subpart FF--Special Requirements for S001 Wastes
Sec. 265.1300 Applicability.
(a) The regulations in this subpart apply to owners or operators of
hazardous waste facilities that treat, store or dispose of EPA
Hazardous Waste Number S001.
(b) Owners or operators of surface impoundments that cease
receiving EPA Special Waste Number S001,must comply with the closure
requirements in 40 CFR Part 265.111 and 40 CFR 265.228. Facilities that
have not met these closure requirements by the effective date of this
regulation would be subject to the requirements in Parts 260 through
268, and 270 through 272, of this chapter.
Sec. 265.1301 Definitions.
This section contains definitions for terms that appear throughout
this subpart; additional definitions appear in 40 CFR 260.10 or the
specific sections to which they apply.
Area-capacity curves means graphic curves which readily show the
reservoir water surface area, in acres, at different elevations from
the bottom of the reservoir to the maximum water surface, and the
capacity or volume, in acre-feet, of the water contained in the
reservoir at various elevations.
Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler
slag, and flue gas desulfurization materials, destined for disposal.
CCRs are also known as coal combustion wastes (CCWs) and fossil fuel
combustion (FFC) wastes, when destined for disposal, and as coal
combustion products (CCPs) when beneficially used.
CCR landfill means a disposal facility or part of a facility where
CCRs 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 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.
CCR surface impoundment or impoundment means a facility or part of
a facility which is a natural topographic
[[Page 35259]]
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 CCRs 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 CCRs 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.
Existing CCR landfill means a landfill which was in operation or
for which construction commenced prior to the effective date of the
final rule 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.
Existing CCR surface impoundment means a surface impoundment which
was in operation or for which construction commenced prior to the
effective date of the final rule. 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 either
(1) A continuous on-site, physical construction program has begun;
or
(2) The owner or operator has entered into contractual
obligations--which can not be cancelled or modified without substantial
loss--for physical construction of the CCR surface impoundment to be
completed within a reasonable time.
Factor of safety (Safety factor) means the ratio of the forces
tending to resist the failure of a structure to the forces tending to
cause such failure as determined by recognized and accepted good
engineering practices.
Hazard potential means the possible adverse incremental
consequences that result from the release of water or stored contents
due to failure of a dam (or impoundment) or mis-operation of the dam or
appurtenances.
(1) High hazard potential surface impoundment means a surface
impoundment where failure or mis-operation will probably cause loss of
human life.
(2) Significant hazard potential surface impoundment means a
surface impoundment where failure or mis-operation results in no
probable loss of human life, but can cause economic loss, environment
damage, disruption of lifeline facilities, or impact other concerns.
(3) Low hazard potential surface impoundment means a surface
impoundment where failure or mis-operation results in no probable loss
of human life and low economic and/or environmental losses. Losses are
principally limited to the surface impoundment owner's property.
(4) Less than low hazard potential surface impoundment means a
surface impoundment not meeting the definitions for High, Significant,
or Low Hazard Potential.
Lateral expansion means a horizontal expansion of the waste
boundaries of an existing CCR landfill, or CCR surface impoundment made
after the effective date of the final rule.
New CCR landfill means a landfill, including lateral expansions, or
installation from which there is or may be placement of CCRs without
the presence of free liquids, which began operation, or for which the
construction commenced after the effective date of the final rule.
New CCR surface impoundment means a surface impoundment, including
lateral expansion, or installation from which there is or may be
placement of CCRs with the presence of free liquids, which began
operation, or for which the construction commenced after the effective
date of the final rule.
Probable maximum precipitation means the value for a particular
area which represents an envelopment of depth-duration-area rainfall
relations for all storm types affecting that area adjusted
meteorologically to maximum conditions.
Recognized and generally accepted good engineering practices
(RAGAGEPs) means engineering, operation, or maintenance activities
based on established codes, standards, published technical reports or
recommended practices (RP) or a similar document. RAGAGEPs detail
generally approved ways to perform specific engineering, inspection or
mechanical integrity activities.
Sec. 265.1302 Reporting.
(a) Except as provided in paragraph (b) of this section, every
twelfth month following the date of the initial plan approval required
in Sec. 265.1303 of this subpart, the person owning or operating a CCR
surface impoundment that has not been properly closed in accordance
with an approved plan shall submit to the Regional Administrator a
report containing the following information:
(1) Changes in the geometry of the CCR surface impoundment for the
reporting period.
(2) Location and type of installed instruments and the maximum and
minimum recorded readings of each instrument for the reporting period.
(3) The minimum, maximum, and present depth and elevation of the
CCR slurry and CCR waste water in the CCR surface impoundment for the
reporting period.
(4) The storage capacity of the CCR surface impoundment.
(5) The volume of the CCR slurry and CCR waste water in the CCR
surface impoundment at the end of the reporting period.
(6) Any other change which may have affected the stability or
operation of the CCR surface impoundment that has occurred during the
reporting period.
(7) A certification by an independent registered professional
engineer that all construction, operation, and maintenance are in
accordance with the approved plan prepared in accordance with Sec.
265.1303.
(b) A report is not required under this section when the person
owning or operating the CCR surface impoundment provides the Regional
Administrator with a certification by an independent registered
professional engineer that there have been no changes in the operation
of the CCR surface impoundment or to any of the parameters previously
reported under paragraphs (a)(1) through (a)(6) of this section.
However, a report containing the information set out in paragraph (a)
of this section shall be submitted to the Regional Administrator at
least every 5 years.
Sec. 265.1303 Surface impoundments.
(a) In addition to the requirements in subpart K of this part, EPA
Special Waste No. S001 is subject to the requirements in this section.
(b) Plans for the design, construction, and maintenance of existing
CCR surface impoundments shall be required if such a unit can:
(1) Impound CCRs to an elevation of five feet or more above the
upstream toe of the structure and can have a storage volume of 20 acre-
feet or more; or
(2) Impound CCRs to an elevation of 20 feet or more above the
upstream toe of the structure.
(c) Plans required under paragraph (b) of this section shall be
submitted in triplicate to the Regional Administrator on or before
[date one year after the effective date of the final rule].
[[Page 35260]]
(d) A marker, at least six feet high and showing the identification
number of the CCR surface impoundment as assigned by the Regional
Administrator, the name associated with the CCR surface impoundment and
the name of the person owning or operating the structure, shall be
located on or immediately adjacent to each CCR surface impoundment
permanent identification by [date 60 days after the effective date of
the final rule].
(e) The plan specified in paragraph (b) of this section, shall
contain at a minimum the following information:
(1) The name and address of the persons owning or operating the CCR
surface impoundment; the name associated with the CCR surface
impoundment; and the identification number of the CCR surface
impoundment as assigned by the Regional Administrator.
(2) The location of the CCR surface impoundment indicated on the
most recent USGS 7\1/2\ minute or 15 minute topographic quadrangle map,
or a topographic map of equivalent scale if a USGS map is not
available.
(3) A statement of the purpose for which the CCR surface
impoundment is being used.
(4) The name and size in acres of the watershed affecting the CCR
surface impoundment.
(5) A description of the physical and engineering properties of the
foundation materials on which the CCR surface impoundment is
constructed.
(6) A statement of the type, size, range, and physical and
engineering properties of the materials used in constructing each zone
or stage of the CCR surface impoundment; the method of site preparation
and construction of each zone of the CCR surface impoundment; the
approximate dates of construction, and each successive stage of
construction of the CCR surface impoundment; and for existing CCR
surface impoundments, such history of construction as may be available,
and any record or knowledge of structural instability.
(7) At a scale not to exceed 1 inch = 100 feet, detailed
dimensional drawings of the CCR surface impoundment, including a plan
view and cross sections of the length and width of the CCR surface
impoundment, showing all zones, foundation improvements, drainage
provisions, spillways, diversion ditches, outlets, instrument
locations, and slope protection, in addition to the measurement of the
minimum vertical distance between the crest of the CCR surface
impoundment and the reservoir surface at present and under design storm
conditions, CCR slurry level or CCR waste water level, and other
information pertinent to the CCR surface impoundment itself, including
any identifiable natural or manmade features which could affect
operation of the CCR surface impoundment.
(8) A description of the type and purpose of existing or proposed
instrumentation.
(9) Graphs showing area-capacity curves.
(10) The hazard potential classification for which the facility is
designed and a detailed explanation of the basis for this
classification.
(11) A statement of the runoff attributable to the storm for which
the CCR surface impoundment is designed and the calculations used in
determining such runoff and the minimum freeboard during the design
storm.
(12) A description of the spillway and diversion design features
and capacities and calculations used in their determination.
(13) The computed minimum factor of safety for slope stability of
the CCR retaining structure(s) and the analyses used in their
determinations.
(14) The construction specifications and provisions for
surveillance, maintenance, and repair of the CCR surface impoundment.
(15) General provisions for closure.
(16) Such other information pertaining to the stability of the CCR
surface impoundment which may be requested by the Regional
Administrator.
(17) A certification by an independent registered professional
engineer that the design of the CCR surface impoundment is in
accordance with recognized and generally accepted good engineering
practices for the maximum volume of CCR slurry and CCR waste water
which can be impounded therein and for the passage of runoff from the
design storm which exceeds the capacity of the CCR surface impoundment;
or, in lieu of the certification, a report indicating what additional
investigations, analyses, or improvement work are necessary before such
a certification can be made by an independent registered professional
engineer, including what provisions have been made to carry out such
work in addition to a schedule for completion of such work.
(f) Any changes or modifications to the plans for CCR surface
impoundments shall be approved by the Regional Administrator prior to
the initiation of such changes or modifications.
(g) Effective [date two years after the effective date of the final
rule], all existing surface impoundments that receive CCRs shall be
operated and maintained with:
(1) A run-on control system to prevent flow onto the active portion
of the CCR surface impoundment during the peak discharge from a 24-
hour, 25-year storm;
(2) A run-off control system from the active portion of the CCR
surface impoundment to collect and control at least the water volume
resulting from a 24-hour, 25-year storm. Run-off from the active
portion of the CCR surface impoundment must be handled in accordance
with Sec. 265.1307 of this subpart.
(h) For CCR surface impoundments classified as having high or
significant hazard potential, the owner or operator shall develop and
maintain in the operating record an Emergency Action Plan which:
defines responsible persons and the actions to be taken in the event of
a dam-safety emergency; provides contact information for emergency
responders; includes a map which delineates the downstream area which
would be affected in the event of a dam failure; and includes
provisions for an annual face-to-face meeting or exercise between
representatives of the facility owner and the local emergency
responders.
Sec. 265.1304 Inspection requirements for surface impoundments.
(a) In addition to the inspection requirements in Sec. 265.226,
all CCR surface impoundments that meet the requirements of Sec.
265.1303(b) of this subpart shall be inspected by the owner or operator
as follows:
(1) At intervals not exceeding 7 days, or as otherwise approved by
the Regional Administrator, for appearances of structural weakness and
other hazardous conditions.
(2) At intervals not exceeding 7 days, or as otherwise approved by
the Regional Administrator, all instruments shall be monitored.
(3) Longer inspection or monitoring intervals approved under this
paragraph shall be justified by the owner or operator of the CCR
surface impoundment based on the hazard potential and performance of
the CCR surface impoundment, and shall include a requirement for
inspection immediately after a specified event approved by the Regional
Administrator.
(4) All inspections required by paragraphs (a)(1) and (2) of this
section shall be performed by a qualified person, as defined in
paragraph (e) of this section, designated by the person owning or
operating the CCR surface impoundment.
[[Page 35261]]
(5) All CCR surface impoundments that meet the requirements of
Sec. 265.1303(b) of this subpart shall be inspected annually by an
independent registered professional engineer to assure that the design,
operation, and maintenance of the surface impoundment is in accordance
with recognized and generally accepted good engineering practices. The
owner or operator must notify the state and the EPA Regional
Administrator that a certification by the independent registered
professional engineer that the design, operation, and maintenance of
the surface impoundment is in accordance with recognized and generally
accepted good engineering practices has been placed in the operating
record.
(b) When a potentially hazardous condition develops, the person
owning or operating the CCR surface impoundment shall immediately:
(1) Take action to eliminate the potentially hazardous condition;
(2) Notify the Regional Administrator and State and local first
responders;
(3) Notify and prepare to evacuate, if necessary, all personnel
from the owner or operator's property which may be affected by the
potentially hazardous conditions; and
(4) Direct a qualified person to monitor all instruments and
examine the structure at least once every eight hours, or more often as
required by an authorized representative of the Regional Administrator.
(c) After each inspection and instrumentation monitoring referred
to in paragraphs (a) and (b) of this section, each qualified person who
conducted all or any part of the inspection or instrumentation
monitoring shall promptly record the results of such inspection or
instrumentation monitoring in a book which shall be available in the
operating record for inspection by an authorized representative of the
Regional Administrator and such qualified person shall also promptly
report the results of the inspection or monitoring to one of the
persons specified in paragraph (d) of this section.
(d) All inspection and instrumentation monitoring reports recorded
in accordance with paragraph (c) of this section shall include a report
of the action taken to abate hazardous conditions and shall be promptly
signed or countersigned by the person designated by the owner or
operator as responsible for health and safety at the owner or
operator's facility.
(e) The qualified person or persons referred to in this section
shall be trained to recognize specific signs of structural instability
and other hazardous conditions by visual observation and, if
applicable, to monitor instrumentation.
Sec. 265.1305 Requirements for surface impoundment closure.
Prior to the closure of any CCR surface impoundment which meets the
requirements of Sec. 264.1303(b) of this subpart, the person owning or
operating such CCR surface impoundment shall submit to and obtain
approval from the Regional Administrator, a plan for closure in
accordance with the requirements of Sec. 265.228 and part 265 subpart
G. This plan shall provide for major slope stability, include a
schedule for the plan's implementation, and contain provisions to
preclude the probability of future impoundment of water.
Sec. 265.1306 Landfills.
(a) Owners or operators of new CCR landfills and lateral expansions
of existing landfills are exempt from the double liner and leachate
collection system requirements of Sec. 265.301(c), and the
requirements of Sec. 265.302, provided the owner or operator is in
compliance with the requirements of paragraph (b) of this section.
Owners or operators of existing landfills are also exempt from the
liner requirements of paragraph (b)(1) of this section, provided they
comply with the requirements of paragraph (c) of this section and the
requirements at 40 CFR part 265 subparts F, G, H, and N.
(b) Prior to placement of CCRs in new landfills and lateral
expansions, new landfills and lateral expansions shall be constructed:
(1) With a composite liner, as defined in paragraph (b)(2) of this
section, and a leachate collection and removal system that is designed
and constructed to maintain less than a 30-cm depth of leachate over
the liner.
(2) For purposes of this subpart, composite liner means a system
consisting of two components; the upper component must consist of a
minimum 30-mil flexible membrane liner (FML), and the lower component
must consist of at least a two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1 x 10-7 cm/sec. FML
components consisting of high density polyethylene (HDPE) shall be at
least 60-mil thick. The FML component must be installed in direct and
uniform contact with the compacted soil component.
(3) For purposes of this subpart, hydraulic conductivity means the
rate at which water can move through a permeable medium. (i.e., the
coefficient of permeability.)
(c) Effective [date two years after the effective date of the final
rule], all existing landfills that receive CCRs shall be operated and
maintained with:
(1) A run-on control system to prevent flow onto the active portion
of the CCR landfill during the peak discharge from a 24-hour, 25-year
storm;
(2) A run-off control system from the active portion of the CCR
landfill to collect and control at least the water volume resulting
from a 24-hour, 25-year storm. Run-off from the active portion of the
CCR landfill must be handled in accordance with Sec. 265.1307 of this
subpart.
Sec. 265.1307 Surface water requirements.
(a) Permits for CCR surface impoundments and CCR landfills shall
include conditions to ensure that:
(1) The operation of the unit will not cause any violation of any
requirements of the Clean Water Act, including, but not limited to, the
National Pollutant Discharge Elimination System (NPDES) requirements,
pursuant to section 402 of the Clean Water Act.
(2) The operation of the unit will not cause any violation of any
requirement of an area-wide or state-wide water quality management plan
that has been approved under section 208 or 319 of the Clean Water Act,
as amended.
(b) [Reserved]
Sec. 265.1308 Air requirements.
(a) CCR surface impoundments and CCR landfills must be managed in a
manner that fugitive dusts do not exceed 35 [mu]g/m\3\, unless an
alternative standard has been established by the Regional
Administrator.
(b) CCR surface impoundments must be managed to control wind
dispersal of dusts consistent with the standard in paragraph (a) of
this section unless an alternative standard has been established by the
Regional Administrator.
(c) CCR landfills must be managed to control wind dispersal of
dusts consistent with the standard in paragraph (a) of this section
unless an alternative standard has been established by the Regional
Administrator. CCRs placed in landfills as wet conditioned CCRs shall
not result in the formation of free liquids.
(d) Tanks, containers, buildings and pads used for the storage must
be managed to control the dispersal of dust. Pads must have wind
protection that will ensure comparable levels of control.
(e) CCRs transported in trucks or other vehicles must be covered or
otherwise
[[Page 35262]]
managed to control the wind dispersal of dust consistent with the
standard in paragraph (a) of this section unless an alternative
standard has been established by the Regional Administrator.
PART 268--LAND DISPOSAL RESTRICTIONS
18. The authority citation for part 268 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
19. Section 268.2 is amended by revising paragraph (f) to read as
follows:
Sec. 268.2 Definitions applicable in this part.
* * * * *
(f) Wastewaters are wastes that contain less than 1% by weight
total organic carbon (TOC) and less than 1% by weight total suspended
solids (TSS), except for coal combustion residuals, [waste code S001],
which are wastewaters if the moisture content exceeds 50%.
* * * * *
20. Section 268.14 is amended by adding paragraph (d) to read as
follows:
Sec. 268.14 Surface impoundment exemptions.
* * * * *
(d) The waste specified in 40 CFR Part 261 as EPA Special Waste
Number S001 may continue to be placed in an existing CCR surface
impoundment of this subpart for 60 months after the promulgation date
of listing the waste provided the existing CCR surface impoundment is
in compliance with the requirements of subpart F of part 265 of this
chapter within 12 months after the promulgation of the new listing.
Closure in accordance with subpart G of part 264 must be completed
within two years after placement of waste in the existing CCR surface
impoundment ceases.
21. Section 268.21 is added to Subpart C to read as follows:
Sec. 268.21 Waste specific prohibitions--Coal combustion residuals.
(a) Effective [date six months after the effective date of the
final rule], nonwastewaters specified in 40 CFR part 261 as EPA Special
Waste Number S001 are prohibited from land disposal.
(b) Effective [date 60 months after the effective date of the final
rule], wastewaters specified in 40 CFR part 261 as EPA Special Waste
Number S001 are prohibited from land disposal.
(c) The requirements of paragraphs (a) and (b) of this section do
not apply if:
(1) The wastes meet the applicable treatment standards specified in
subpart D of this Part;
(2) Persons have been granted an exemption from a prohibition
pursuant to a petition under Sec. 268.6, with respect to those wastes
and units covered by the petition;
(3) The wastes meet the applicable treatment standards established
pursuant to a petition granted under Sec. 268.44;
(4) Persons have been granted an extension to the effective date of
a prohibition pursuant to Sec. 268.5, with respect to these wastes
covered by the extension.
22. In Sec. 268.40, the table ``Treatment Standards for Hazardous
Wastes'' is amended by adding in alphanumeric order the new entry for
S001 to read as follows:
Sec. 268.40 Applicability of treatment standards.
* * * * *
Treatment Standards for Hazardous Wastes
[Note: NA means not applicable]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulated hazardous constituent Wastewaters Nonwastewaters
----------------------------------------------------------------------------------------
Waste description and treatment/ Concentration in mg/
Waste code regulatory subcategory \1\ Concentration in mg/L kg \5\ unless noted as
Common name CAS \2\ No. \3\, or technology ``mg/L TCLP'', or
code \4\ technology code
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
S001.................... Coal combustion wastes generated by Antimony 7440-36-0 TSS of 100mg/l and Meet Sec. 268.48.
the electric power sector. For Arsenic................ 7440-38-2 meet Sec. 268.48.
purposes of this listing, the Barium................. 7440-39-3
electric power sector is defined as Beryllium.............. 7440-41-7
electricity-only and combined-heat- Cadmium................ 7440-43-9
and-power (CHP) plants whose primary Chromium............... 7440-47-3
business is to sell electricity, or Lead................... 7439-92-1
electricity and heat, to the public; Mercury................ 7439-97-6
i.e., NAICS code 221112 plants. For Nickel................. 7440-02-0
the purposes of this listing, coal Selenium............... 7782-49-2
combustion wastes are defined as fly Silver................. 7440-22-4
ash, bottom ash, boiler slag, and Thallium............... 7440-28-0
flue gas desulfurization materials
generated by the electric power
sector. This listing does not apply
to coal combustion residuals that
are: (1) Uniquely associated wastes
with wastes from the burning of
coal; (2) beneficially used; (3)
placed in minefilling operations;
(4) generated by facilities that are
outside the electric power sector;
or (5) generated from clean-up
activities that are conducted as
part of a state or federally
required clean-up that commenced
prior to the effective date of this
rule..
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Footnotes to Treatment Standard Table 268.40
\1\ The waste descriptions provided in this table do not replace waste descriptions in 40 CFR 261. Descriptions of Treatment/Regulatory Subcategories
are provided, as needed, to distinguish between applicability of different standards.
\2\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts
and/or esters, the CAS number is given for the parent compound only.
\3\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.
[[Page 35263]]
\4\ All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1--
Technology Codes and Descriptions of Technology-Based Standards.
\5\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were
established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR Part 264 Subpart O or Part 265
Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility may comply
with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on analysis of
grab samples.
* * * * *
23. In Sec. 268.42, Table 1 is amended by adding an entry for
``RSLDS'' to read as follows:
Sec. 268.42 Treatment standards expressed as specified technologies.
* * * * *
Table 1--Technology Codes and Description of Technology-Based Standards
------------------------------------------------------------------------
Description of technology-based
Technology code standards
------------------------------------------------------------------------
* * * * *
RSLDS............................. Removal of solids and meet Sec.
268.48 treatment levels.
* * * * *
------------------------------------------------------------------------
* * * * *
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
24. The authority citation for part 271 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), and 6926.
25. Section 271.1(j) is amended by adding the following entries to
Table 1 and Table 2 in chronological order by date of publication to
read as follows.
Sec. 271.1 Purpose and scope.
* * * * *
(j) * * *
Table 1--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Title of Federal Register
Promulgation date regulation reference Effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
[date of signature of final Listing of [Federal Register [effective date of final rule].
rule]. Special Waste page numbers for
S001. final rule].
----------------------------------------------------------------------------------------------------------------
Table 2--Self-Implementing Provisions of the Solid Waste Amendments of 1984
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effective date Self-implementing provision RCRA citation Federal Register reference
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
[effective date of final rule]........ Prohibition on land disposal 3001(b)(3)(A) and [date of publication date of final rule Federal
of S001 waste with free 3004(g)(4)(C). Register page numbers] [FR page numbers].
liquids and prohibition on
the disposal of S001 waste
below the natural water
table. For purposes of this
provision, free liquids means
liquids which readily
separate from the solid
portion of a waste under
ambient temperature and
pressure.
--------------------------------------------------------------------------------------------------------------------------------------------------------
PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION
26. The authority citation for part 302 continues to read as
follows:
Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and
1361.
27. In Sec. 302.4, Table 302.4 is amended by adding the following
new entry in alphanumeric order to the table to read as follows:
Sec. 302.4 Designation of hazardous substances.
* * * * *
Table 302.4--List of Hazardous Substances and Reportable Quantities
[Note: All comments/notes are located at the end of this table]
----------------------------------------------------------------------------------------------------------------
Final
Statutory RQ
Hazardous substance CASRN code[dagger] RCRA waste No. pounds
(Kg)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
S001\f\ Coal combustion residuals generated by the electric ........... 4 S001 1 (0.
power sector (Electric Utilities and Independent Power 4536)
Producers)..................................................
[[Page 35264]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[dagger] Indicates the statutory source defined by 1, 2, 3, and 4, as described in the note preceding Table
302.4.
* * * * *
\f\ See 40 CFR 302.6(b)(1) for application of the mixture rule to this hazardous waste.
* * * * *
28. Section 302.6 is amended by amending paragraph (b)(1)(iii),
including the Table, to read as follows:
Sec. 302.6 Notification requirements.
* * * * *
(b) * * *
(1) * * *
(iii) For waste streams K169, K170, K171, K172, K174, K175, and
S001, knowledge of the quantity of all of the hazardous constituent(s)
may be assumed, based on the following maximum observed constituent
concentrations identified by EPA:
------------------------------------------------------------------------
Waste Constituent Max ppm
------------------------------------------------------------------------
K169............................... Benzene.............. 220.0
K170............................... Benzene.............. 1.2
Benzo (a) pyrene..... 230.0
Dibenz (a,h) 49.0
anthracene.
Benzo (a) anthracene. 390.0
Benzo (b) 110.0
fluoranthene.
Benzo (k) 110.0
fluoranthene.
3-Methylcholanthrene. 27.0
7,12-Dimethylbenz (a) 1,200.0
anthracene.
K171............................... Benzene.............. 500.0
Arsenic.............. 1,600.0
K172............................... Benzene.............. 100.0
Arsenic.............. 730.0
K174............................... 2,3,7,8TCDD.......... 0.000039
1,2,3,7,8-PeCDD...... 0.0000108
1,2,3,4,7,8-HxCDD.... 0.0000241
1,2,3,6,7,8-HxCDD.... 0.000083
1,2,3,7,8,9-HxCDD.... 0.000062
1,2,3,4,6,7,8-HpCDD.. 0.00123
OCDD................. 0.0129
2,3,7,8-TCDF......... 0.000145
1,2,3,7,8-PeCDF...... 0.0000777
2,3,4,7,8-PeCDF...... 0.000127
1,2,3,4,7,8-HxCDF.... 0.001425
1,2,3,6,7,8-HxCDF.... 0.000281
1,2,3,7,8,9-HxCDF.... 0.00014
2,3,4,6,7,8-HxCDF.... 0.000648
1,2,3,4,6,7,8-HpCDF.. 0.0207
1,2,3,4,7,8,9-HpCDF.. 0.0135
OCDF................. 0.212
K175............................... Mercury.............. 9,200
S001............................... Antimony............. 3,100
Arsenic.............. 773
Barium............... 7,230
Beryllium............ 31
Cadmium.............. 760
Chromium............. 5,970
Lead................. 1,453
Mercury.............. 384
Nickel............... 6,301
Selenium............. 673
Silver............... 338
Thallium............. 100
------------------------------------------------------------------------
* * * * *
[FR Doc. 2010-12286 Filed 6-18-10; 8:45 am]
BILLING CODE 6560-50-P