Federal Register: June 21, 2010 (Volume 75, Number 118)

DOCID: fr21jn10-29 FR Doc 2010-12286

ENVIRONMENTAL PROTECTION AGENCY

Treasury Department

CFR Citation: 40 CFR Parts 257, 261, 264 et al.

EPA ID: [EPA-HQ-RCRA-2009-0640; FRL-9149-4]

NOTICE: Part II

DOCID: fr21jn10-29

DOCUMENT ACTION: Proposed rule.

SUBJECT CATEGORY:

Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities

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.

DOCUMENT 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 nonminefill uses of CCRs at coal mine sites in this action.

SUMMARY:

Environmental Protection Agency

SUPPLEMENTAL 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 nonutility 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.
\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 minerelated 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.

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 email. 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, EPAHQRCRA20090640. 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 204600002, telephone (703) 6050516, email address haynes.lashan@epa.gov.

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 directionsThe 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 100copied 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.)

    Acrefoot 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 fieldapplications of FGD gypsum in amounts that exceed scientifically supported quantities required for enhancing soil properties and/or crop [[Page 35130]]
    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, manmade excavation, or diked area formed primarily of earthen materials (although it may be lined with manmade 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 electricityonly and combinedheatandpower (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 onsite, physical construction program has begun; or
    (2) The owner or operator has entered into contractual obligationswhich cannot be cancelled or modified without substantial lossfor 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 onsite, physical construction program has begun; or
    (2) The owner or operator has entered into contractual obligationswhich can not be cancelled or modified without substantial lossfor 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 coalfired 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 misoperation of the dam or appurtenances.\3\
    \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 misoperation, but rather what the consequences of such a failure or misoperation would be.

    High hazard potential surface impoundment means a surface impoundment where failure or misoperation will probably cause loss of human life.

    Significant hazard potential surface impoundment means a surface impoundment where failure or misoperation 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 misoperation results in no probable loss of human life and low economic and/or environmental losses. Losses are principally limited to the surface impoundment owner's property.

    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 postgraduate 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 healthbased 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 nonenforceable 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 lowvolume 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 RighttoKnow 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 CoProposals

    2. Brief Description of Today's CoProposals

    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 NonUtilities
    V. CoProposed 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. ToxicityFactor (i)

    2. Concentration of Constituents in WasteFactor (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 ConstituentFactor (x)

    6. Other FactorsFactor (xi)
    VI. Summary of the CoProposed Subtitle C Regulations

    A. Special Waste Listing

    B. Proposed Special Requirements for CCRs

    [[Page 35132]]

    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. WetHandling of CCRs, Closure, and Interim Status for Surface Impoundments

    v. Proposed Land Disposal Restrictions

    2. Proposed Treatment Standards for NonWastewaters (Dry CCRs)

    3. Proposed Treatment Standards for Wastewaters (WetHandled 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 CoProposal Regulating CCRs Under Subtitle D Regulations

    A. Overview and General Issues

    1. Regulatory Approach

    2. Notifications

    B. SectionbySection 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 PostClosure Care

    9. Financial Assurance

    10. OffSite 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. NonQuantified Plant and Wildlife Protection Benefits

    2. NonQuantified Surface Water Protection Benefits

    3. NonQuantified 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 LowIncome 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 CoProposals

    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 offsite 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
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    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 coproposal 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 CoProposals

    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), runon and runoff controls, groundwater monitoring, fugitive dust controls, financial assurance, corrective action, including facility wide corrective action, closure of units, and postclosure 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 postclosure 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 50year periodof 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 RCRAregulated CCR disposal will induce coalfired 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 benefitcost 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 RCRAregulated 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 1Summary Table Comparison of Regulatory Benefits to CostsRanging Over All Three Beneficial Use Scenarios [$Millions @ 2009$ prices and @ 7% discount rate over 50year future periodofanalysis 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 (21)........ ($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 (21)........ ($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 50year present values by a 50year 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 shortterm and longterm 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 sitespecific 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 permiti.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 261.21261.24). 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 nonspecific sources, known as ``Fwastes,'' 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 ``Kwastes,'' 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 ``Pwastes'' 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, postclosure 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 Rightto 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. 257.31), endangered species (Sec. 257.32), surface water (Sec. 257.33), ground water (Sec. 257.34), land application (Sec. 257.35), disease (Sec. 257.3 6), air (Sec. 257.37), and safety (Sec. 257.38). 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 largevolume 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 comanaged 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. 912345 (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 comanaged together with certain other coal combustion wastes; coal combustion wastes generated at nonutilities; 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., coburning 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 courtordered 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 courtordered 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/ EPAWASTE/2000/May/Day22/ f11138.htm). In its Regulatory Determination, EPA concluded that the remaining wastes were largely identical to the highvolume monofilled wastes, which remained exempt based on the 1993 Regulatory Determination. The high volume wastes simply dominate the waste characteristics even when comanaged 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 CaSOX 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 coalfired 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 limebased reagent is predominantly calcium sulfite, while the wet sludge generated from the wet scrubbing process using a limestonebased 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

    FOR FURTHER INFORMATION CONTACT

    Alexander Livnat, Office of Resource Conservation and Recovery, Environmental Protection Agency, 5304P; telephone number: (703) 3087251; fax number: (703) 6050595; email address: livnat.alexander@epa.gov, or Steve Souders, Office of Resource Conservation and Recovery, Environmental Protection Agency, 5304P; telephone number: (703) 3088431; fax number: (703) 6050595; email address: souders.steve@epa.gov. 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, [Email address and telephone number: Beasley.lynn@epa.gov (2025641965).]

    For more information on this rulemaking please visit http:// www.epa.gov/epawaste/nonhaz/industrial/special/fossil/index.htm.