Daily Rules, Proposed Rules, and Notices of the Federal Government
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.
For more information on this rulemaking please visit
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.
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
• Identify the rulemaking by docket number and other identifying information (subject heading,
• 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.
(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.
(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.
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
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
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 (
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.
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.
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
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.
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 (
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
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—
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.
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.
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” (
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 (
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 (
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 §§ 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.
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 (§ 257.3-1), endangered species (§ 257.3-2), surface water (§ 257.3-3), ground water (§ 257.3-4), land application (§ 257.35), disease (§ 257.3-6), air (§ 257.3-7), and safety (§ 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 (
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 uti