Inventory, EPA's Biennial Report of hazardous waste facilities). By
requiring citizen groups to obtain their information from industry
instead of a regulator, the commenters argued that EPA is inviting
conflict as to the adequacy of data and the sufficiency of the
utilities' responses to citizen groups' requests for clarification or
additional information. The fact that the industry has provided
information to a federal agency, subject to criminal penalties for
providing false information, provides a useful public assurance of the
integrity of the information.
    Other commenters stated that the proposed requirement to maintain a
Web site was excessive, and generated a regulatory burden upon
companies that serves no useful function. Commenters urged that the
same purpose could be served simply through making the certification of
the registered professional engineer available on the Web site. Other
commenters argued that internet posting of information on a surface
impoundment's construction raised homeland security issues. These
commenters alleged that the information ``can be extremely sensitive
and may contain information that could be used by certain individuals
with an intent to destroy a dam (e.g., engineering information on the
structure's foundation, detailed information on physical and
engineering properties, the basis for the structure hazard
classification, slope stability information, etc.).''
    Finally, some commenters offered an alternative to the requirement
to establish and maintain a publicly accessible internet site. Under
this alternative the information would be included in the owner or
operator's operating record only, and persons with ``legitimate
interests in reviewing these data'' could make a written request to the
owner or operator or the permitting authority to obtain the
information. The commenters alleged that this would also allow the
owner, operator, and federal and state authorities to know the names
and identities of all organizations requesting information on the
facility, which would help protect against the misuse of these data.
    EPA disagrees that RCRA section 4004(a) does not authorize EPA to
require facilities to disclose all of the information required under
these final rule provisions. Section 4004(a) delegates broad authority
to EPA to establish criteria governing facilities' management of solid
waste, requiring only that such criteria ensure that there will be no
reasonable probability of adverse effects on health or the environment
from the disposal of solid waste. The statute imposes no limits on the
actions EPA may require facilities to perform to achieve that level of
protection. Moreover, unlike other statutes, e.g., the Toxic Substances
Control Act, or the Federal Insecticide, Rodenticide and Fungicide Act,
RCRA contains neither provisions that grant facilities the right to
withhold regulatory compliance information from the public, nor
provisions that establish any reasonable expectation that such
information will be kept confidential. To the contrary, section 7004
explicitly provides that ``[p]ublic participation in

the . . . implementation, and enforcement of any regulation under this
chapter shall be provided for, encouraged, and assisted by the
Administrator.'' 42 U.S.C. 6974(b). And in fact, this kind of
information would routinely be publically available under the
permitting process for hazardous waste facilities. Accordingly, RCRA
provides more than ample authority to support these requirements.
    As repeatedly discussed throughout this preamble, under section
4004(a) EPA must be able to demonstrate, based on the record available
at the time the rule is promulgated that the final rule provisions will
achieve the statutory standard. EPA explained in the proposal that a
key component of EPA's support for determining that the rule achieves
the statutory standard is the existence of a mechanism for states and
citizens to monitor the situation, such as when groundwater monitoring
shows evidence of potential contamination, so that they can determine
when intervention is appropriate. The existence of effective oversight
measures provides critical support for the statutory finding,
particularly with respect to some of the more flexible alternatives EPA
has adopted in certain of the technical standards in response to
commenters' requests for greater flexibility. These ``transparency''
requirements serve as a key component by ensuring that the entities
primarily responsible for enforcing the requirements have access to the
information necessary to determine whether enforcement is warranted.
Unlike a federal or state regulatory authority, private citizens cannot
access a private facility to conduct inspections. While EPA encourages
states to adopt and implement a CCR regulatory program, and seek EPA's
approval of it via a state SWMP, EPA cannot require it. The final rule
therefore must establish oversight mechanisms that will function
effectively even in the absence of a state regulatory authority.
    Such notifications will also reduce the incentives for owners or
operators to abuse the rule's self-implementing requirements, and can
improve compliance. Indeed, the public disclosure of information is an
increasingly common and important regulatory tool, as evidenced by the
2010 guidance issued by the Office of Management and Budget (OMB), with
principles to assist agencies in using information disclosure to
achieve regulatory objectives.
    Thus, even if the commenters were correct that there exists a
general ``presumption'' that information held by private entities need
not be made publically available, that presumption can be, and has
been, effectively rebutted by the facts at hand.
    None of the alternatives offered by the commenters would fulfill
these same objectives. For example, simply making the certification of
the qualified professional engineer available on the Web site without
the underlying support information fails to provide the same incentives
because no one could evaluate the accuracy of that certification. This
alternative could also present the same concerns raised in comments on
other sections of the rule, i.e., that such a requirement could place
the engineer at great risk of being subject to lawsuits. Requiring
persons with ``legitimate interests in reviewing these data'' to
request the data from the owner or operator also fails to provide an
effective guarantee, as facilities that have failed to comply will have
a strong incentive to withhold information documenting their non-
compliance, however ``legitimate'' the request. And as noted, the
absence of a guaranteed state permitting program means that requiring
citizens to request information from such entities is also not a viable
alternative. Given the absence of a guaranteed regulatory authority,
EPA also disagrees that posting such information on a company internet
site is necessarily duplicative, particularly in those states that have
no regulatory program for controlling CCR. In addition, state
requirements, whether pursuant to permits or other regulatory
mechanisms, may not necessarily correspond to the requirements of this
rule.
    EPA acknowledges that parties may be suspicious of information
self-reported by regulated entities. However, it is important to
remember that facilities that provide information in compliance with
these regulation remain subject to the penalties for providing false
information under 18 U.S.C. 1001, even though the information will not
be submitted to EPA. For example, the Tenth Circuit has held that
federal jurisdiction lies under 18 U.S.C. 1001 when a defendant has
submitted false information to a state delegated to enforce a federal
environmental statute. United States v. Wright, 988 F.2d 1036 (10th
Cir. 1993) (defendant submitted false monitoring reports required by
the Safe Drinking Water Act to Oklahoma officials). This is consistent
with rulings in other areas that the false statement need not be made
directly to the federal government. United States v. Uni Oil Co., 646
F.2d 946, 954-55 (9th Cir. 1981); see also United States v. Patullo,
709 F.2d 1178, 1180 (7th Cir. 1983); United States v. Ross, 77 F.3d
1525, 1544 (7th Cir. 1996) (``This court has repeatedly found the
submission of a fraudulent statement to a private (or non-federal
government) entity to be within the jurisdiction of a federal agency
where the agency has given funding to the entity and fraudulent
statements cause the entity to utilize the funds improperly.''). As
commenters recognized, the potential for criminal penalties under 18
U.S.C. 1001 provides a significant guarantee, as well as a strong
incentive for compliance.
    EPA also disagrees with the comments raising concern about the
homeland security implications of posting information on a CCR surface
impoundment's construction, as it relates to structural stability. Much
of the information relevant to an impoundment's structural stability is
currently available through Google Earth or through EPA's Web site. For
example, EPA's Web site currently provides access to all of the
information from the responses to EPA's original 104(e) information
requires and the information obtained through the CCR Assessment
Program. This information can be accessed at the following pages:
http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm, http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm, and http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccrs-fs/index.htm. Moreover, the Department of Homeland
Security has cleared both the internet posting of all of the
information currently on EPA's Web site, as well as, in general,
information on the design, hydraulic parameters, volume of contained
liquids and solids, and hazard rating of all major CCR surface
impoundments across the U.S.

VI. Development of the Final Rule--Technical Requirements

A. Applicability

    EPA proposed general provisions to identify those solid waste
disposal units subject to the proposed RCRA subpart D requirements
(i.e., CCR landfills and CCR surface impoundments as defined under
proposed Sec.  257.40(b)). The applicability section also identified
three of the existing subpart A criteria that would continue to apply
to these facilities: Sec.  257.3-1 Floodplains, Sec.  257.3-2
Endangered Species, and Sec.  257.3-3 Surface Water. Consistent with
RCRA section 4004(c), EPA specified an effective date of 180 days after
publication of the final rule.
    The Agency received numerous comments on this part of the rule. In

general, commenters were concerned with three specific areas. First,
commenters requested additional clarification as to the specific
sources of CCR that would be subject to the requirements of the rule,
i.e., CCR generated by the electric utilities and independent power
producers. Second, commenters requested clarification on the
applicability of the proposed regulations to MSWLFs disposing of CCR
and third, the definition and status of ``uniquely associated wastes.''
Uniquely associated wastes are addressed in Unit XIII of this preamble.
EPA also received numerous comments regarding the proposal to apply the
rule to ``inactive'' CCR surface impoundments that had not completed
closure prior to the effective date of the rule.
    EPA is finalizing minimum national criteria that apply to owners
and operators of new and existing CCR landfills and CCR surface
impoundments, including any lateral expansions of these units that
dispose, or otherwise conduct solid waste management of CCR generated
from the combustion of coal at electric utilities and independent power
producers. The rule applies only to CCR units at ``active'' electric
utilities and independent power producers, i.e., those that generate
electricity, regardless of the fuel currently used to produce
electricity. However, disposal units at facilities that are
``closed''--i.e., the entire facility has been permanently taken out of
service and no longer produces electricity--are outside of the scope of
this rule.
    Unless otherwise provided, the rule applies to CCR units located
both on-site and off-site of the electric utility or independent power
producer.
1. CCR Generated by Non-Utility Boilers
    The requirements of this rule do not apply to wastes, including fly
ash, bottom ash, boiler slag, and FGD materials generated at facilities
that are not part of the electric power sector or an independent power
producer and that use coal as the fuel in non-utility boilers, such as
manufacturing facilities, universities, and hospitals. Industries that
primarily burn coal to generate power for their own purposes (i.e.,
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 any excess may be sold in the
wholesale market. According to the Energy Information Administration
(EIA), CHPs produced less than one percent of the total electricity
generated from coal combustion in 2013 and, similarly, burned less than
one percent of the total coal consumed for electricity generation or
less than 5 million tons (http://www.eia.gov/electricity/data.cfm).
    EPA never proposed to include these wastes in the rule because EPA
lacked critical data from these facilities that would allow us to
address key Bevill criteria (see 75 FR 35165). These other industries,
and the manufacturing industries in particular, generate other types of
wastes which are likely to be mixed or co-managed with the CCR at least
at some facilities. As a result, the chemical compositions of the co-
managed wastes are likely to be fundamentally different from the
chemical composition of CCR generated by electric utilities or
independent power producers. In addition, EPA noted that insufficient
information was available on non-utility boilers burning coal to
determine whether a regulatory flexibility analysis would be required
under the Regulatory Flexibility Act, and to conduct one if it is
necessary. Without such data, we were unable to fully assess CCR wastes
from non-utility operations and indicated that we would decide on an
appropriate course of action for these wastes after completing this
rulemaking (see 75 FR 35129).
    Several commenters stated that EPA's decision to propose limiting
the scope of the rule only to CCR generated by the electric power
sector (electric utilities and independent power producers) was
arbitrary. These commenters claimed that CCR generated by the electric
power sector and CCR generated by non-utilities are generally
comparable in physical and chemical composition and are typically
managed similarly. As a result, these commenters suggested that EPA
amend the applicability of the rule to subject all facilities that
generate CCR to the same disposal requirements. EPA also received
comments maintaining that important differences exist between CCR
generated by electric power sector facilities and non-utility
facilities, and that supported EPA's proposed decision to exclude CCR
generated by non-utilities from the rule. Differences identified by the
commenters included waste management issues (e.g., mixing and
subsequent co-management of non-utility CCR and other industrial wastes
generated by non-utilities), CCR generation rates, CCR management unit
design, and CCR management unit operation. In response to our request
for additional information, a few commenters provided either waste
characterization data for non-utility CCR or information on alleged
damage cases involving non-utility CCR.
    Based on the proposed rule, EPA cannot include these facilities in
this final rule, even if the Agency had concluded that it had received
the necessary information from commenters. EPA specifically stated its
intention to exclude them, and clearly stated that it had not assessed
the operations. (See 75 FR 35166.) The Agency provided no indication of
any intention to include such facilities, and did not solicit comment
on such an option. Moreover, under the Administrative Procedure Act,
the public must be given the opportunity to comment on not only the
information that would support such an action, but also EPA's
evaluation of that information, and the reasoning behind the Agency's
decision. And with respect to this subset of facilities, no such
opportunity has been presented. EPA will consider the information
provided by commenters at a future point, and will determine whether
the information is sufficient to address key Bevill criteria and to
decide on the appropriate regulatory scheme for disposal of CCR
generated by non-utilities. Accordingly, this rule does not apply to
owners and operators of landfills and surface impoundments in which CCR
are disposed that were generated by non-utility boilers burning coal.
2. CCR Generated Primarily From the Combustion of Fuels Other Than Coal
    These requirements also do not apply to fly ash, bottom ash, boiler
slag, and flue gas desulfurization materials, generated primarily from
the combustion of fuels (including other fossil fuels) other than coal,
for the purpose of generating electricity unless the coal comprises
more than fifty percent (50%) of the fuel burned on a total heat input
or mass input basis, whichever results in the greater mass feed rate of
coal (see Sec.  266.112). Fuel mixtures that contain less than 50% coal
are not considered to be CCR, but other fossil fuel wastes. Other
fossil fuels that are typically co-combusted with coal are oil and
natural gas. In the May 22, 2000 Regulatory Determination, EPA
determined that it is not appropriate to establish national regulations
applicable to oil combustion wastes (OCW) because: (1) We found in most
cases that OCW, whether managed alone or co-managed, are rarely
characteristically hazardous; (2) we have not identified any beneficial
uses that are likely to present significant risks to human health or
the environment; (3) we identified no significant ecological risks
posed by

land disposal of OCW; (4) we identified only one documented damage case
involving OCW in combination with coal combustion wastes, and it did
not affect human receptors; and (5) except for two unlined surface
impoundments, we have not identified any significant risks to human
health and the environment associated with any waste management
practices. Similarly, EPA determined that regulating natural gas
combustion wastes is not warranted because the burning of natural gas
produces virtually no solid waste. Therefore, the Agency has determined
that regulations for wastes generated primarily from the combustion of
fuels (including other fossil fuels) other than coal are not warranted
unless the fuel mixture consists primarily of coal.
3. Placement of CCR in Minefilling Operations
    Consistent with the approach in the proposed rule, this rule does
not apply to CCR placed in active or abandoned underground or surface
coal mines. The U. S. Department of Interior (DOI) and EPA will address
the management of CCR in minefills in a separate regulatory action(s).
EPA will work with the OSM to develop effective federal regulations to
ensure that the placement of coal combustion residuals in minefill
operations is adequately controlled. In doing so, EPA and OSM will
consider the recommendations of the National Research Council (NRC),
which, at the direction of Congress, studied the health, safety, and
environmental risks associated with the placement of CCR in active and
abandoned coal mines in all major U.S. coal basins. The NRC published
its findings on March 1, 2006, in a report entitled ``Managing Coal
Combustion Residues (CCR) in Mines,'' which is available at http://books.nap.edu/openbook.php?isbn=0309100496.
    The report concluded that the ``placement of CCR in mines as part
of coal mine reclamation may be an appropriate option for the disposal
of this material. In such situations, however, an integrated process of
CCR characterization, site characterization, management and engineering
design of placement activities, and design and implementation of
monitoring is required to reduce the risk of contamination moving from
the mine site to the ambient environment.'' The NRC report recommended
that enforceable federal standards be established for the disposal of
CCR in minefills to ensure that states have specific authority and that
states implement adequate safeguards. The NRC Committee on Mine
Placement of Coal Combustion Wastes also stated that OSM and its SMCRA
state partners should take the lead in developing new national
standards for CCR use in mines because the framework is in place to
deal with mine-related issues. Consistent with the recommendations of
the National Academy of Sciences, EPA anticipates that the U.S.
Department of the Interior (DOI) will take the lead in developing these
regulations. EPA will work closely with DOI throughout that process.
4. Municipal Solid Waste Landfills
    The issue receiving the majority of comment in this section focused
on the applicability of the rule to MSWLFs accepting CCR. The vast
majority of commenters on this issue requested that EPA clarify that
permitted MSWLFs, receiving CCR as daily cover or for disposal were not
covered by the rule.
    While most CCR is currently disposed of at electric utility owned
CCR landfills or surface impoundments, there is no prohibition against
disposing of CCR in state-permitted MSWLFs. However, many commenters
interpreted the proposed CCR subtitle D regulations to apply to a state
permitted MSWLF disposing of CCR, which as a consequence would be
subject to the additional burden of posting documentation to a Web
site, having a professional engineer review certification, etc. (See 75
FR 35210, where the preamble states that under a subtitle D regulation,
regulated CCR wastes shipped off-site for disposal would have to be
sent to facilities that meet the standards above.) Commenters argued
that since MSWLFs were never mentioned in the proposed rule, that it
should be made clear that the rule did not apply to these facilities.
Commenters further contended that since the requirements for CCR
landfills were directly modeled from the MSWLF requirements found at 40
CFR part 258, disposal in MSWLFs would be protective of human health
and the environment. Commenters also contended that a benefit of MSWLFs
would be their ability to provide additional capacity for the disposal
of CCR as utilities seek to close, upgrade, or develop their own
compliant CCR disposal sites.
    EPA recognizes that there are MSWLFs that either accept CCR for
disposal, use CCR for as daily cover, or both. Since the proposed and
final RCRA subtitle D standards for CCR landfills are modeled after the
standards for MSWLFs found at 40 CFR part 258, EPA has concluded that
disposal of CCR in MSWLFs is as protective as disposal in a CCR
landfill and that permitted MSWLFs are not subject to the requirements
of this rule. Like the MSWLF requirements, the CCR technical criteria
require new units to have composite liners or their equivalent, and all
units are subject to location restrictions, run-on and run-off
controls, fugitive dust controls, groundwater monitoring and corrective
action, closure and post-closure care requirements.\38\
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    \38\ One significant difference however is that MSWLFs are
required to have financial assurance, a requirement not applicable
to CCR under the subtitle D requirements.
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    While the MSWLF fugitive dust criteria (air criteria) are not as
specific as those in this rule, Sec.  258.4(a) states that owners or
operators of all MSWLFs must ensure that the units not violate any
applicable requirements developed under a State Implementation Plan
(SIP) approved or promulgated by the Administrator pursuant to section
110 of the Clean Air Act, as amended. It is expected that states will
impose additional requirements to address fugitive dusts, of the sort
codified in Illinois' 415 ILCS 5/9(a)(2012) \39\ and enforced by the
state (see People of the State of Illinois v. KCBX Terminals Company,
Injunction no. 2013CH24788 in the Circuit Court of Cook County,
Illinois. Moreover, if used as a daily cover, Sec.  258.21 requires
that the alternative cover (i.e., CCR) control disease, vectors, odors,
blowing litter, and scavenging without presenting a threat to human
health and the environment.
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    \39\ ``No person shall (a) Cause or threaten or allow the
discharge or emission of any contaminant into the environment in any
state so as to cause or tend to cause air pollution in Illinois,
either alone or in combination with contaminants from other sources,
or so as to violate regulations or standards adopted by the Board
under this Act; (b) Construct, install or operate any equipment,
facility, vehicle, vessel, or aircraft capable of causing or
contributing to air pollution or designed to prevent air pollution,
of any typed designated by Board regulations, (1) without a permit
granted by the Agency unless otherwise exempt by this Act or Board
regulations; or (2) in violation of any conditions imposed by such
permit.''
---------------------------------------------------------------------------

    The Agency is not requiring MSWLFs that receive CCR for disposal or
for use as daily cover to modify their groundwater monitoring programs
to comply with the rule; however the Agency expects that State
Directors will require MSWLFs to modify their MSWLF permits to address
the addition of CCR to the unit as it relates to groundwater monitoring
and corrective action. Section 258.54(a)(2) allows for the Director of
an approved state to establish an alternative list of inorganic
indicator parameters for a MSWLF unit if the alternative parameters
provide a reliable indication of inorganic releases

from the MSWLF unit to the groundwater (i.e., as would be the case if
CCR was disposed in the MSWLF unit). In determining alternative
parameters, the Director shall consider, among other things: (1) The
types, quantities, and concentrations in wastes managed at the MSWLF
unit; (2) the mobility, stability, and persistence of waste
constituents or their reaction products in the unsaturated zone beneath
the MSWLF unit; and (3) the detectability of indicator parameters,
waste constituents, and reaction products in the groundwater. In
situations where the MSWLF unit is receiving CCR for disposal and/or
daily cover, EPA expects the controlled management of CCR in these
units. Specifically, EPA expects State Directors to utilize the
provisions in Sec.  258.54(a)(2) to revise the detection monitoring
constituents to include those constituents being promulgated in this
rule under Sec.  257.90. These detection monitoring constituents or
inorganic indicator parameters are: boron, calcium, chloride, fluoride,
pH, sulfate and total dissolved solids (TDS). These inorganic indicator
parameters are known to be leading indicators of releases of
contaminants associated with CCR and the Agency strongly recommends
that State Directors add these constituents to the list of indicator
parameters to be monitored during detection monitoring of groundwater
if and when a MSWLF decides to accept CCR.
    The Agency has concluded that CCR can readily be handled in
permitted MSWLFs provided that they are evaluated for waste
compatibility and placement as required under the part 258
requirements. Furthermore, consistent with the recordkeeping
requirements in Sec.  258.29, the Agency further expects State
Directors to encourage MSWLF units receiving CCR after the effective
date of this rule to do so pursuant to a ``CCR acceptance plan'' that
is maintained in the facility operating record. This plan would assure
that the MSWLF facility is aware of the physical and chemical
characteristics of the waste received (i.e., CCR) and handles it with
the additional precautions necessary to avoid dust, maintain structural
integrity, and avoid compromising the gas and leachate collection
systems of the landfill so that human health and the environment are
protected. While the Agency sees no need to impose duplicative
requirements for MSWLFs that receive CCR for disposal or daily cover;
development of these acceptance plans as well as a revised list of
groundwater detection monitoring constituents will help ensure that CCR
is being managed in the most protective manner consistent with the Part
258 requirements.
5. Inactive CCR Surface Impoundments
    The final rule also applies to ``inactive'' CCR surface
impoundments at any active electric utilities or independent power
producers, regardless of the fuel currently being used to produce
electricity; i.e., surface impoundments at any active electric utility
or independent power producer that have ceased receiving CCR or
otherwise actively managing CCR. While it is true that EPA exempted
inactive units from the part 258 requirements in 1990, the original
subtitle D regulations at 40 CFR part 257 (which are currently
applicable to CCR wastes) applied to ``all solid waste disposal
facilities and practices'' except for eleven specifically enumerated
exemptions (none of which are relevant). 40 CFR 257.1(c). See also, 40
CFR 257.1(a)(1)-(2). And as discussed in greater detail below, subtitle
D of RCRA does not limit EPA's authority to active units--that is,
units that receive or otherwise manage wastes after the effective date
of the regulations. EPA has documented several damage cases that have
occurred due to inactive CCR surface impoundments, including the
release of CCR and wastewater from an inactive CCR surface impoundment
into the Dan River which occurred since publication of the CCR proposed
rule. As discussed in the proposal, the risks associated with inactive
CCR surface impoundments do not differ significantly from the risks
associated with active CCR surface impoundments; much of the risk from
these units is driven by the hydraulic head imposed by impounded units.
These conditions remain present in both active and inactive units,
which continue to impound liquid along with CCR. For all these reasons,
the Agency has concluded that inactive CCR surface impoundments require
regulatory oversight.
    The sole exception is for ``inactive'' CCR surface impoundments
that have completed dewatering and capping operations (in accordance
with the capping requirements finalized in this rule) within three
years of the publication of this rule. EPA considers these units to be
analogous to inactive CCR landfills, which are not subject to the final
rule. As noted, EPA's risk assessment shows that the highest risks are
associated with CCR surface impoundments due to the hydraulic head
imposed by impounded water. Dewatered CCR surface impoundments will no
longer be subjected to hydraulic head so the risk of releases,
including the risk that the unit will leach into the groundwater, would
be no greater than those from CCR landfills. Similarly, the
requirements of this rule do not apply to inactive CCR landfills--which
are CCR landfills that do not accept waste after the effective date of
the regulations. The Agency is not aware of any damage cases associated
with inactive CCR landfills, and as noted, the risks of release from
such units are significantly lower than CCR surface impoundments or
active CCR landfills. In the absence of this type of evidence, and
consistent with the proposal, the Agency has decided not to cover these
units in this final rule.
    Under both the subtitle C and subtitle D options, EPA proposed to
regulate ``inactive'' CCR surface impoundments that had not completed
closure prior to the effective date of the rule. EPA proposed that if
any inactive CCR surface impoundment had not met the interim status
closure requirements (i.e., dewatered and capped) by the effective date
of the rule, the unit would be subject to all of the requirements
applicable to CCR surface impoundments. Under the subtitle C option,
those requirements would have included compliance with the interim
status and permitting regulations. Under subtitle D, such units would
have been required to comply with all of the criteria applicable to CCR
surface impoundments that continued to receive wastes, including
groundwater monitoring, corrective action, and closure.
    EPA acknowledged that this represented a departure from the
Agency's long-standing implementation of the regulatory program under
subtitle C. While the statutory definition of ``disposal'' has been
broadly interpreted to include passive leaking, historically EPA has
construed the definition of ``disposal'' more narrowly for the purposes
of implementing the subtitle C regulatory requirements. For examples
see 43 FR 58984 (Dec. 18, 1978); and 45 FR 33074 (May 1980). Although
in some situations, post-placement management has been considered to be
disposal triggering RCRA subtitle C regulatory requirements, e.g.,
dredging of impoundments or management of leachate, EPA has generally
interpreted the statute to require a permit only if a facility treats,
stores, or actively disposes of the waste after the effective date of
its designation as a hazardous waste. EPA explained that relying on a
broader interpretation was appropriate in this instance given that the

substantial risks associated with currently operating CCR surface
impoundments, i.e., the potential for leachate and other releases to
contaminate groundwater and the potential for catastrophic releases
from structural failures, were not measurably different than the risks
associated with ``inactive'' CCR surface impoundments that continued to
impound liquid, even though the facility had ceased to place additional
wastes in the unit. EPA noted as well that the risks are primarily
driven by the older existing units, which are generally unlined.
    In the section of the preamble discussing the subtitle D option,
EPA did not expressly highlight the application of the rule to inactive
CCR surface impoundments, but generally explained that EPA's approach
to developing the proposed subtitle D requirements for surface
impoundments (which are not addressed by the part 258 regulations that
served as the model for the proposed landfill requirements) was to seek
to be consistent with the technical requirements developed under the
subtitle C option. (See 75 FR 35193.) (``In addition, EPA considered
that many of the technical requirements that EPA developed to
specifically address the risks from the disposal of CCR as part of the
subtitle C alternative would be equally justified under a RCRA subtitle
D regime . . . The factual record--i.e., the risk analysis and the
damage cases--supporting such requirements is the same, irrespective of
the statutory authority under which the Agency is operating . . . Thus
several of the provisions EPA is proposing under RCRA subtitle D either
correspond to the provisions EPA is proposing to establish for RCRA
subtitle C requirement. These provisions include the following
regulatory provisions specific to CCR that EPA is proposing to
establish: Scope and applicability (i.e., who will be subject to the
rule criteria/requirements) . . .'') (emphasis added).
    EPA received numerous comments on this aspect of the proposal. On
the whole, the comments were focused on EPA's legal authority under
subtitle C to regulate inactive and closed units, as well as inactive
and closed facilities. One group of commenters, however, specifically
criticized the proposed subtitle D regulation on the grounds that it
failed to address the risks from inactive CCR surface impoundments. The
majority of commenters, however, argued that RCRA does not authorize
EPA to regulate inactive or closed surface impoundments. These
commenters focused on two primary arguments: first, that RCRA's
definition of ``disposal'' cannot be interpreted to include ``passive
migration'' based on the plain language of the statute, and second,
that such an interpretation conflicted with court decisions in several
circuits, holding that under CERCLA ``disposal'' does not include
passive leaking or the migration of contaminants.
    In support of their first argument, commenters argued that the
plain language of RCRA demonstrates that the requirements are
``prospective in nature'' and thus cannot be interpreted to apply to
past activities, i.e., the past disposals in inactive CCR units. They
also argued that the absence of the word ``leaching'' from the
definition of ``disposal'' clearly indicates that Congress did not
intend to cover passive leaking or migration from CCR units. The
commenters also selectively quoted portions of past EPA statements,
claiming that these demonstrated that EPA had conclusively interpreted
RCRA to preclude jurisdiction over inactive units and facilities. In
particular, they pointed to EPA's decision in 1980 not to require
permits for closed or inactive facilities.
    Commenters cited several cases to support their second claim. These
include Carson Harbor Vill. v. Unocal Corp., 270 F.3d 863 (9th Cir.
2001); United States v. 150 Acres of Land, 204 F.3d 698, 706 (2000);
ABB Industrial Systems v. Prime Technology, 120 F.3d 351, 358 (2d Cir.
1997); United States v. CMDG Realty Co., 96 F.3d 706, 711 (3rd Cir.
1996); Joslyn Mfg. Co. v. Koppers Co., 40 F.3d 750, 762 (5th Cir.
1994); Delaney v. Town of Carmel, 55 F. Supp. 2d 237, 256 (S.D.N.Y.
1999); see also Interfaith Cmty. Org. v. Honey-Well Intl Inc., 263 F.
Supp. 2d 796, 846 n.10 (D.N.J. 2003). The commenters acknowledged that
these cases were all decided under CERCLA, but claim that the cases are
all equally dispositive with respect to RCRA's definition of disposal
because CERCLA specifically incorporates by reference RCRA`s statutory
definition of disposal.
    As an initial matter, it is important to correct certain
misunderstandings contained throughout a number of the comments. First,
EPA did propose to include inactive units under the subtitle D
alternative. EPA clearly signaled its intent to cover the same universe
of units and facilities covered under the subtitle C proposal. EPA did
not include a corresponding discussion in its explanation of the
subtitle D alternative because application of the criteria to inactive
units did not represent such a significant departure from EPA's past
practice or interpretation. As discussed in more detail below, the
original subtitle D regulations applied to all existing disposal units.
See 40 CFR 257.1(a)(1)-(2), (c) and 43 FR 4942-4943, 4944.
    Second, several commenters criticized EPA's purported proposal to
cover both ``closed'' and ``inactive'' surface impoundments, using the
terms interchangeably. These same commenters also refer to both
``inactive facilities'' and ``inactive units.'' These are all different
concepts, and EPA clearly distinguished between them.
    EPA proposed to regulate only ``inactive'' surface impoundments
that had not completed closure of the surface impoundment before the
effective date. ``Inactive'' surface impoundments are those that
contain both CCR and water, but no longer receive additional wastes. By
contrast, a ``closed'' surface impoundment would no longer contain
water, although it may continue to contain CCR (or other wastes), and
would be capped or otherwise maintained. There is little difference
between the potential risks of an active and inactive surface
impoundment; both can leak into groundwater, and both are subject to
structural failures that release the wastes into the environment,
including catastrophic failures leading to massive releases that
threaten both human health and the environment. This is clearly
demonstrated by the recent spill in the Dan River in North Carolina,
which occurred as the result of a structural failure at an inactive
surface impoundment. Similarly, as demonstrated by the discovery of
additional damage cases upon the recent installation of groundwater
monitoring systems at existing CCR surface impoundments in Michigan and
Illinois, many existing CCR surface impoundments are currently leaking,
albeit currently undetected. These are the risks the disposal rule
specifically seeks to address, and there is no logical basis for
distinguishing between units that present the same risks.
    EPA did not propose to require ``closed'' surface impoundments to
``reclose.'' Nor did EPA intend, as the same commenters claim, that
``literally hundreds of previously closed . . . surface impoundments--
many of which were properly closed decades ago under state solid waste
programs, have changed owners, and now have structures built on top of
them--would be considered active CCR units.'' Accordingly, the final
rule does not impose any requirements on any CCR surface impoundments
that have in fact ``closed'' before the rule's effective date--i.e.,
those that no longer contain water and can no longer impound liquid.

    Further, EPA never proposed that the rule would apply to inactive
facilities. The proposal was clear that the regulations would apply to
active facilities--i.e., those that continue to generate electricity
for distribution to the public, and those that continue to manage CCR.
Consistent with that proposal, the final rule applies only to inactive
surface impoundments at active electric utilities, i.e., facilities
that are actively generating electricity irrespective of the fuel used.
    Finally, some comments focused on issues that were specific to the
plain language of subtitle C provisions. While most of the issues the
commenters raised relate equally to EPA's authority under both
subtitles C and D, because the final rule establishes standards under
subtitle D of RCRA, EPA has not addressed comments that are purely
relevant or applicable to the extent of EPA's authority under subtitle
C.
a. Plain Language of RCRA and EPA's Past Interpretations
    Under both subtitle C and subtitle D, EPA's authority to regulate
``inactive'' units primarily stems from the agency's authority to
regulate ``disposal.'' The term is defined once in RCRA and applies to
both subtitles C and D. Moreover, the definition explicitly includes
``leaking'' and ``placing of any solid waste . . . into or on any land
so that such [waste] or any constituent thereof may enter the
environment . . . or be discharged into any waters, including
groundwaters.'' 42 U.S.C. 6903(3).
    Commenters focused on the past statements that EPA cited in the
proposal in acknowledging that the Agency was proposing to revise its
interpretation for this rulemaking. In general, the comments
misconstrue the significance of these past statements. The cited
passages merely explain that the permitting requirements in subtitle C
were written to be ``prospective in nature'' and as a consequence, EPA
has chosen to interpret ``disposal'' more narrowly in that context.
Thus EPA's historic interpretation under subtitle C was not based on an
interpretation that the plain language of RCRA's definition of
``disposal'' precluded reaching inactive units, but on a determination
that a narrower interpretation would be reasonable in light of specific
language in sections 3004 and 3005, and the practical consequences of
applying these requirements to inactive facilities.\40\
---------------------------------------------------------------------------

    \40\ It is also clear that certain subtitle C requirements in
fact do apply to inactive units, for example, section 3004(u)
requires facilities to clean up releases from inactive units located
on the facility site.
---------------------------------------------------------------------------

    None of EPA's past statements included any interpretation that
``leaking'' does not include leaking from an inactive disposal unit, or
that the statutory definition of ``disposal'' cannot be interpreted to
apply to the current consequences of past disposals. To the contrary,
EPA was clear in the original 1978 proposed hazardous waste regulations
that leaking from inactive disposal units constitutes ``disposal''
under RCRA.
    Neither RCRA nor its legislative history discusses whether section
3004 standards for owners and operators of hazardous waste treatment,
storage, or disposal facilities apply or were intended to apply to
inactive facilities, i.e., those facilities which have ceased
receiving, treating, storing, and disposing of wastes prior to the
effective date of the subtitle C regulations. ``This is an important
issue, however, because some, and perhaps most, inactive facilities may
still be ``disposing of waste'' within the meaning of that term in
Section 1004(3) of RCRA. `Disposal' includes: the discharge, dumping,
spilling, leaking, . . . of any solid waste or hazardous waste into or
on any land or water so that such solid waste or hazardous waste or any
constituent thereof may enter the environment or be emitted into the
air or discharged into any waters, including groundwaters. Many
inactive facilities may well be leaking solid or hazardous waste into
groundwater and thus be ``disposing'' under RCRA.'' 43 FR 58984
(emphasis added).
    Note as well that EPA declined to impose requirements on ``inactive
facilities'' not ``inactive units at active facilities,'' which are the
entities covered in this final CCR rule. Further, the complications
discussed in 1978 were specific to inactive or closed facilities: the
concern that the present owner of the land on which an inactive site
was located might have no connection (other than present ownership of
the land) with the prior disposal activities. Id. These considerations
are not relevant to inactive CCR surface impoundments at active
electric utilities.
    EPA further clarified this position in the 1980 final hazardous
waste rule, explaining that, while the Agency did not generally intend
to regulate those portions of facilities that had closed before the
effective date, there were exceptions to this, and that in individual
cases, inactive portions of a facility--or in other words, inactive
units, might be regulated.

    [O]wners and operators which continue to operate after the
effective date of the regulations must ensure that portions of
facilities closed before the effective date of these rules do not
interfere with the monitoring or control of active portions. This
requirement regulates the facility which operates under the RCRA
regulations, although it may require the owner or operator before he
receives a permit, or, as a permit condition, to take certain
measures on portions of his facility closed before the effective
date of these regulations.

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

    In other words, EPA was clear that its jurisdiction under RCRA
extended to these portions of the facility but that the Agency had made
a policy choice not to exert its regulatory jurisdiction as a general
matter over inactive facilities, choosing instead to rely on section
7003 and CERCLA to address the risks and require clean-up of these
sites. EPA has adopted a substantially similar approach here, requiring
the current owner or operator of an active facility to address the
risks associated with an inactive portion of the facility that could
potentially interfere with the monitoring or control of the actively
operating portion of the facility through leaking contaminants or other
releases.
    Similarly, in the 1980 final rules, EPA expressly declined to
revise the regulatory definition of disposal to exclude accidental or
unintentional releases. EPA noted that ``[r]egardless of whether a
discharge of hazardous waste is intentional or not, the human health
and environmental effects are the same. Thus intentional and
unintentional discharges are included in the definition of `disposal.'
'' (See 45 FR 33068.) While EPA revised other provisions to clarify
that a permit would not be required for accidental discharges, EPA was
clear that such activities are properly considered to be ``disposal.''
    By contrast, EPA's past implementation of subtitle D, following
from the legislative history and the statutory language, consistently
applied regulatory requirements equally to all facilities, without
distinguishing between active and inactive or new and existing
facilities.
    Congress was clear that subtitle D was intended to specifically
address the problem of abandoned leaking ``open dumps'' scattered
across the country, ``where frequently the use of the site for waste
disposal is neither authorized nor supervised.'' H. Rep. No. 94-1491, p
37, 94th Cong., 2d Sess (1976). For example, the report described the
consequences when ``the City of Texarcana Arkansas/Texas, abandoned its
six open dumps, in 1968'' to support the need to require open dumps to
upgrade or close.

Similarly, in describing the need for the legislation, the House report
stated:

    Disposal of solid wastes, including hazardous wastes, can have
adverse environmental impacts in several ways. The following
paragraphs discuss five different types of such impacts.
    (i) Perhaps the most pernicious effect is the contamination of
groundwater by leachate from land disposal of waste. About half of
the U.S. domestic water supply is from underground water, and thus
is potentially subject to contamination. Such contamination is
particularly vexing because often it is discovered after the damage
is done and because the contamination is very long lasting. Thus
leachate from a landfill or dump may not show up for years, maybe
not even until after the landfill is closed.

Id. at 89 (emphasis added).

    Consequently, subtitle D of RCRA provides clear authority to
address inactive or abandoned disposal sites. The relevant provisions
of RCRA subtitle D do not distinguish between ``active'' and
``inactive'' disposal units. Nor do any of the relevant provisions tie
jurisdiction to the receipt or disposal of waste after a specific date.
    RCRA section 1004(14) defines an ``open dump'' as ``any facility or
site where solid waste is disposed of which is not a sanitary landfill
which meets the criteria promulgated under section [4004] of this
chapter and which is not a facility for disposal of hazardous waste.''
42 U.S.C. 6903(14) (emphasis added). Section 4004(a) delegates broad
authority to EPA to determine the facilities that will be considered
``open dumps,'' without any requirement that the units or facilities be
in operation. ``[T]he Administrator shall promulgate regulations
containing criteria for determining which facilities shall be
classified as sanitary landfills and which shall be classified open
dumps within the meaning of this chapter.'' 42 U.S.C. 6944(a). Section
4005(a), which is titled, ``Closing or upgrading of existing open
dumps,'' is also not limited in scope: ``Upon promulgation of criteria
under [1008(a)(3)] of this title, any solid waste management practice
of disposal of solid waste or hazardous waste which constitutes the
open dumping of solid or hazardous waste is prohibited, . . .'' 42
U.S.C. 6945(a) (emphasis added). See also, section 4003(a)(3),
requiring state plans to provide for the closing or upgrading of ``all
existing open dumps''). 42 U.S.C. 6943(a)(3) (emphasis added).
    Consistent with the statutory provisions, EPA's current subtitle D
regulations at 40 CFR part 257 apply to ``all solid waste disposal
facilities and practices'' whether active or inactive, and did not
differentiate between new and existing facilities.\41\ 40 CFR 257.1(c).
See also, 40 CFR 257.1(a)(1)-(2). EPA was clear in both the proposed
and final rules that the rules applied to all existing facilities:
``These criteria for the classification of disposal facilities apply to
all ``solid waste'' and ``disposal'' facilities, which are defined in
the Act [in] (section 1004).'' 43 FR 4942-4943, 4944. The final rule
was equally clear: ``These criteria apply to the full range of
facilities and practices for ``disposal'' of ``solid waste,'' as those
terms are defined in the Act.'' 44 FR 53440. (See also 44 FR 53438.)
The final rule describes eight categories of materials or activities
that are excluded; inactive facilities or units are not among them.
This stands in stark contrast to the hazardous waste regulations,
which, as discussed, specifically exempted inactive facilities from the
permitting and associated regulatory requirements.
---------------------------------------------------------------------------

    \41\ The regulations establish eleven specifically enumerated
exemptions, none of which are relevant to the units at issue.
---------------------------------------------------------------------------

b. Case Law on the Definition of Disposal
    EPA also disagrees with the commenters' second claim that
regulating inactive surface impoundments would be inconsistent with
case law in six circuits. The commenters are correct that some courts
have held that the subsequent passive migration of contamination left
on-site is insufficient to support liability against a third party that
merely owned the property under CERCLA. But the commenters misconstrue
this case law and fundamentally overstate its significance to the issue
at hand. Of greater significance, however, is that federal courts have
almost universally reached different conclusions under RCRA, holding
that the statutory definition of disposal does include the passive
migration of contamination from previously disposed of wastes.
    As an initial matter, the issue decided by the courts in the cited
CERCLA cases was narrower than the commenters allege; these cases
generally focused on whether current or past owners of land
contaminated by the activities of other owners were liable for passive
migration that occurred during their ownership of the land. This is
very different than the situation at hand, in which regulatory
requirements are being imposed to address the existing and future
contamination caused by the past and current activities of the current
owner.
    In addition, these decisions were largely predicated on language
that is unique to CERCLA, rather than on a definitive reading of RCRA's
definition of disposal. See, e.g., United States v. CMDG Realty Co.,
supra at 712-717. For example, in CMDG Realty, the court found that
passive migration was not disposal because Congress had clearly
distinguished between ``releases,'' and ``disposal,'' defining the two
terms differently and imposing liability on different parties for the
two activities. Id. Accord, Carson Harbor Village, supra, at 880-885;
ABB Industrial Systems v. Prime Technology, supra at 358.
    Moreover, even under CERCLA courts have not universally reached the
same conclusions on whether ``passive migration'' can be considered
``disposal.'' See, e.g., Nurad, Inc. v. William E. Hooper & Sons Co.,
966 F.2d 837, 844-46 (4th Cir. 1992) (concluding that because the
definition of disposal includes ``leaking,'' prior owners are liable if
they acquired a site with leaking barrels or underground storage tanks
even though the prior owner's actions are purely passive); ABB
Industrial Systems, Id., n.3 (expressly declining to decide whether
passive migration could ever be considered ``disposal'').
    But in any event, courts have consistently interpreted RCRA to
apply to passive migration. Two cases under RCRA are the most directly
analogous to the current situation as they address the extent of EPA's
authority to regulate based on the statutory definition of
``disposal'': In re Consolidated Land Disposal Regulation Litigation,
938 F.2d 1386 (D.C. Cir. 1991), and United States v. Power Engineering
Co., 10 F. Supp. 2d 1145 (D. Colo. 1998), aff'd 191 F.3d 1224 (10th
Cir. 1999). In both cases, the court considered whether EPA could
impose or enforce regulatory requirements to address passive migration
under the interpretation that this constituted ``disposal'' under RCRA.
And in both cases the court agreed that RCRA's definition encompassed
such activities.
    The issue in Consolidated Land Disposal was whether EPA could
require closed hazardous waste facilities to obtain a ``post-closure''
permit. 938 F.2d at 1388-1389. EPA had relied on the definition of
disposal to support the regulation, concluding that a facility ``at
which hazardous wastes have been disposed by placement in or on the
land'' remains subject to both permitting and regulation because ``such
hazardous wastes or constituents may continue `leaking' or `may enter
the environment or be emitted . . . or discharged . . .' '' into the
environment.'' Id. Similar to the commenters' current arguments, the
petitioners argued that under Sec.  3005, a permit can only be required
for ``on-

going activities''--the treatment, storage, or disposal of waste at
such facilities--not for the facility itself post-closure. The
petitioners argued that linguistically, ``disposal . . . is not a
continuing activity but occurs anew each time waste is placed into or
on land.'' The D.C. Circuit summarily rejected the petitioners'
interpretation, holding that this ``may be one way in which the word is
used in ordinary language, but is not necessarily how it is used in the
statute; the equation of ``disposal'' with ``leaking,'' which is a
continuous phenomenon rather than a discrete event, is enough to blunt
the sting of the petitioners' point.'' Id. This case is essentially
dispositive of the issue, given the similarities between the
requirement for a post-closure permit and the final requirements
applicable to inactive CCR surface impoundments. Electric utilities
retain ownership and control over these existing CCR units, just as
hazardous waste facilities retain ownership and control over the closed
units subject to post-closure permitting. In both situations, EPA
requirements are designed to address both the existing and future risks
of further ``releases'' or ``leaking'' from these units--i.e., further
disposal, as that term is defined in section 1004.
    Similarly, in Power Engineering the court considered whether under
section 3008 of RCRA, EPA could bring an action to compel the operator
of a metal refinishing plant to comply with the state's RCRA
regulations relating to financial assurance.\42\ 10 F. Supp.2d at 1159.
The defendants argued that since they were not currently disposing of
waste, they were operating in compliance with state regulations and
were exempt from financial assurance requirements. The court disagreed.
It held that the use of the word ``leaking'' in the definition of
``disposal'' indicated that the leaching of hazardous waste into the
groundwater constitutes the continuing disposal of hazardous waste. Id.
at 1159-60 (``Because the definition of ``disposal'' includes the word
``leaking,'' disposal occurs not only when a solid waste or a hazardous
waste is first deposited onto ground or into water, but also when such
wastes migrate from their initial disposal location.'').
---------------------------------------------------------------------------

    \42\ Under RCRA's financial assurance regulations, owners and
operators of hazardous waste facilities must document that they have
sufficient resources to close their facilities and pay third-party
claims that may arise.
---------------------------------------------------------------------------

    Courts in several circuits have also considered whether the passive
migration of previously dumped waste constitutes a current or ongoing
violation of RCRA, i.e., illegal ``disposal,'' under the citizen suit
provisions of section 7002(a)(1)(A). Most have concluded that it does.
See, Scarlett & Associates v. Briarcliff Center Partners, 2009 WL
3151089 (N.D. Ga 2009) (deciding to ``follow the majority rule'' and
holding that ``the continued presence of migrating waste constitutes a
continuing violation under the RCRA''); Marrero Hernandez v. Esso
Standard Oil Co., 597 F. Supp. 2d 272, 283 (D.P.R. 2009) (holding that
unremedied, migrating contamination is not a wholly past violation);
Cameron v. Peach County, GA, No. 5:02-CV-41-1 (CAR), 2004 WL 5520003
(M.D. Ga. 2004) (holding that the continued presence of illegal
contamination that remains remedial constitutes a continuing violation,
even though the acts of unlawful disposal occurred in the past);
California v. M&P Investments, 308 F. Supp. 2d 1137, 1146-1147 (E.D. CA
2003) (Allowing RCRA 7002 claim of continuing violation to proceed on
evidence that wastes ``continue to exist unremediated'' as a result of
improper discharge that had ceased over 20 years prior to filing of
suit); Aurora National Bank v. TriStar Marketing, 990 F. Supp. 1020,
1025 (N.D. Ill. 1998) (``Although subsection (a)(1)(A) does not permit
a citizen suit for wholly past violations of the statute, the continued
presence of illegally dumped materials generally constitutes a
`continuing violation' of the RCRA, which is cognizable under Sec.
6972(a)(1)(A).'') (internal citation omitted); City of Toledo v. Beazer
Materials & Servs., Inc., 833 F. Supp. 646, 656 (N.D. Ohio 1993)
(``[T]he disposal of wastes can constitute a continuing violation so
long as no proper disposal procedures are put into effect or as long as
the waste has not been cleaned up and the environmental effects remain
remediable.''); Gache v. Town of Harrison, 813 F. Supp. 1037, 1041-42
(S.D.N.Y. 1993) (``The environmental harms do not stem from the act of
dumping when waste materials slide off the dump truck but rather after
they land and begin to seep into the ground, contaminating soil and
water. So long as wastes remain in the landfill threatening to leach
into the surrounding soil and water, a continuing violation sure may
exist.''); Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498,
1512 (E.D. Wisc. 1992) (``RCRA includes in its broad definition of
`disposal' the continuous leaking of hazardous substances. . . .
Accordingly, leaking of hazardous substances may constitute a
continuous or intermittent violation of RCRA.''); Fallowfield Dev.
Corp. v. Strunk, No. 89-8644, 1990 WL 52745 (E.D. Pa. 1990) (``If a
person disposes of hazardous waste on a parcel of property, the
hazardous waste remains in that property insidiously infecting the soil
and groundwater aquifers. In other words, the violation continues until
the proper disposal procedures are put into effect or the hazardous
waste is cleaned up.''). It is particularly notable that these cases
were all decided under subsection (A); in contrast to subsection (B),
section 7002(a)(1)(A) does not include any reference to liability for
past actions or for prior owners. Compare, 42 U.S.C. 6972(a)(1)(A) and
(B). In reaching their holdings, therefore, the courts necessarily
relied [solely] on the reach of the statutory definition of
``disposal,'' which is at the heart of EPA's authority to regulate
inactive CCR surface impoundments.
    Courts have also addressed the limits of RCRA's definition of
``disposal'' is in the context of an EPA action under RCRA section
7003. Section 7003 authorizes EPA to obtain injunctive relief for
actions, including disposal that ``may present an imminent and
substantial endangerment to health or the environment.'' 42 U.S.C.
6973(a). Several courts have evaluated whether an inactive disposal
site, where no affirmative acts of disposal are occurring, constitute
an ``imminent and substantial endangerment'' under this provision. Once
again, most courts accept a definition of disposal that encompasses
leaking or contaminant migration from previously discarded wastes. See
United States v. Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981), aff'd
United States v. Price, 688 F.2d 204 (3rd Cir. 1982) (``There is no
doubt, however, that [section 70003] authorizes the cleanup of a site,
even a dormant one, if that action is necessary to abate a present
threat to the public health or the environment.'') citing S. Rep. No.
96-848, 96th Cong., 2d Sess., at 11 (1980); H. R. Rep. 96-1016 (Part
I), 96th Cong., 2nd Sess., at 21 reprinted in [1980] U.S. Code Cong. &
Ad. News, 6119, 6124; United States v. Waste Indus., 734 F.2d 159 (4th
Cir. 1984) (Rejecting district court interpretation that disposal only
includes ``active human conduct'' based on the inclusion of ``leaking''
in the definition of disposal, and interpreting the ``movement of the
waste after it has been placed in a state of repose [to be] encompassed
in the broad definition of disposal''); United States v. Diamond
Shamrock Corp., 12 Envtl. L. Rep. 20819, 20821 (N.D. Ohio May 29, 1981)
(noting that ``a disposal clearly requires no active human conduct'');
United States v. Conservation Chemical Co.,

619 F. Supp. 162, 200 (D. Mo. 1985) (`` `disposal' occurs. . .when
[wastes] migrate from their initial location''). See also S. Rep. 98-
284, p 58 (98th Cong. 1st Sess.) (``The Environmental Protection Agency
and the Department of Justice have used the equitable authority and
[sic] granted in section 7003 to seek court orders directing those
persons whose past or present acts have contributed to or are
contributing to the existence of an imminent and substantial
endangerment to abate such conditions. This has been an intended use of
the section 7003 since 1976. . . . An [sic] evidenced by the definition
of `disposal' in section 1004(3), which includes the leaking of
hazardous wastes, section 7003 has always provided the authority to
require the abatement of present conditions of endangerment resulting
from past disposal practices, whether intentional or unintentional.'').
    While EPA continues to maintain that the statutory definition of
disposal does in fact authorize regulation of inactive CCR surface
impoundments, this is not the sole basis for that authority. Under
section 1008(a)(3), EPA is authorized to establish criteria governing
solid waste management, which includes the ``storage'' of solid waste.
42 U.S.C. 6904(28) and 6908(a)(3). RCRA's definition of ``storage'' is
limited to hazardous waste; under subtitle D, therefore, the definition
Congress intended was the dictionary definition, which incontrovertibly
covers the activities associated with continuing to maintain CCR in
inactive surface impoundments. For example, Merriam Webster defines
``storage'' as ``the state of being kept in a place when not being
used'' and ``the act of putting something that is not being used in a
place where it is available, where it can be kept safely, etc.''
    Finally, consistent with the proposed rule and the final Regulatory
Determination in Unit IV.B of this document, the final rule does not
apply to CCR that is beneficially used.
6. Beneficial Use
    The proposed rule generally distinguished between the disposal of
CCR and the beneficial use of CCR. Disposal activities would be subject
to regulation under one of two alternative regulatory schemes. But
under either alternative, beneficial use would remain Bevill exempt and
would not be subject to regulation. The proposal identified specific
criteria that would be used to distinguish between legitimate
beneficial uses of CCR and the disposal of CCR. These criteria were
largely drawn from the approach contained in the May 2000 Bevill
Regulatory Determination. The criteria were:
    --The material used must provide a functional benefit. For example,
CCR in concrete increases the durability of concrete--and is more
effective in combating degradation from salt water; synthetic gypsum
serves exactly the same function in wallboard as mined gypsum, and
meets all commercial specifications; CCR as a soil amendment adjusts
the pH of soil to promote plant growth.
    --The material substitutes for the use of a virgin material,
conserving natural resources that would otherwise need to be obtained
through practices, such as extraction. For example, the use of FGD
gypsum in the manufacture of wallboard (drywall) decreases the need to
mine natural gypsum, thereby conserving the natural resource and
conserving energy that otherwise would be needed to mine natural
gypsum; the use of fly ash in lieu of Portland cement reduces the need
for cement. CCR used in road bed replace quarried aggregate or other
industrial materials.
    --Where relevant product specifications or regulatory standards are
available, the materials meet those specifications, and where such
specifications or standards have not been established, they are not
being used in excess quantities. For example, when CCR is used as a
commercial product, the amount of CCR used is controlled by product
specifications, or the demands of the user. Fly ash used as a
stabilized base course in highway construction is part of many
engineering considerations, such as the ASTM C 593 test for compaction,
the ASTM D 560 freezing and thawing test, and a seven day compressive
strength above 2760 kPa (400 psi). If excessive volumes of CCR are
used--i.e., greater than were necessary for a specific project,--that
could be grounds for a determination that the use is not beneficial,
but rather is being disposed of. 75 FR 35162-35163.
    EPA explained that in the case of agricultural uses, CCR would be
expected to meet appropriate standards, constituent levels, prescribed
total loads, application rates, etc. EPA has developed specific
standards governing agricultural application of biosolids. While the
management scenarios differ between biosludge application and the use
of CCR as soil amendments, EPA stated that the Agency would consider
application of CCR for agriculture uses not to be a legitimate
beneficial use if they occurred at constituent levels or loading rates
greater than EPA's biosolids regulations allow. (75 FR 35162-35163,
June 21, 2010)
    EPA proposed to codify these criteria in the term, ``beneficial use
of coal combustion products (CCPs).'' This definition stated that the
beneficial use of CCPs was the use of CCPs that provides a functional
benefit; replaces the use of an alternative material, conserving
natural resources that would otherwise need to be obtained through
practices such as extraction; and meets relevant product specifications
and regulatory standards (where these are available). CCPs that are
used in excess quantities (e.g., the field-applications of FGD gypsum
in amounts that exceed scientifically-supported quantities required for
enhancing soil properties and/or crop yields), placed as fill in sand
and gravel pits, or used in large scale fill projects, such as
restructuring the landscape, are excluded from this definition. (75 FR
35129-35130, June 21, 2010).
    Commenters generally supported the criteria in the proposal but
raised concern that the criteria lacked specificity; some commenters
stated that the criteria were those that states already considered in
doing their beneficial use determination. Commenters also suggested the
use of a ``no toxics'' provision and others suggested that the criteria
include a requirement that ``environmental benefits'' be achieved. A
more general comment raised by several commenters was that the proposed
criteria failed to establish any standard that ensured protection of
human health and the environment. Finally, one commenter raised concern
that EPA's approach to beneficial use, and particularly to large scale
fill operations, inappropriately assumed that these operations
constituted the disposal of solid waste, which, the commenter claimed
was inconsistent with a series of judicial decisions.
    There are generally three critical issues in determining whether a
material is regulated under RCRA subtitle D: whether the material is a
``solid waste,'' whether the activity constitutes ``disposal,'' and
whether regulation of the disposal is warranted. Although there can be
some overlap between these issues in that the same facts may be
relevant to each of them, understanding the distinction between them is
critical to understanding the final approach to the beneficial use of
CCR adopted in this rulemaking.
    In order to be subject to RCRA, the material must be a solid waste.
The statute defines a solid waste as ``any garbage, refuse . . . and
other discarded material. . . .'' 42 U.S.C. 6903(27). As EPA noted in
the proposed rule, for some beneficial uses, CCR is a raw

material used as an ingredient in a manufacturing process that have
never been ``discarded,'' and thus, would not be considered solid
wastes under the existing RCRA regulations. For example, synthetic
gypsum is a product of the FGD process at coal-fired power plants. In
this case, the utility designs and operates its air pollution control
devices to produce an optimal product, including the oxidation of the
FGD to produce synthetic gypsum. In this example, after its production,
the utility treats FGD as a valuable input into a production process,
i.e., as a product, rather than as something that is intended to be
discarded. Wallboard plants are sited in close proximity to power
plants for access to raw material, with a considerable investment
involved. Thus, FGD gypsum used for wallboard manufacture is a product
rather than a waste or discarded material. This use and similar uses of
CCR that meet product specifications would not be regulated under the
final rule.
    However, this does not describe the majority of CCR, which are
unambiguously wastes; after generation in the boiler, they are placed
into landfills or surface impoundments. While they may subsequently be
dredged from these units and reused, placement in a landfill or surface
impoundment presents prima facie evidence of discard. At the time the
material is placed into the unit, the utility is not treating the
material as a valuable product or otherwise seeking to protect the
material for use. Although the material may subsequently be reused if a
buyer is found, the material is originally placed in the unit with the
intent to let it remain in place if no buyer is found. The waste
designation does not change merely because a material in a surface
impoundment or landfill may in the future be beneficially reused.
    For those materials that are ``wastes'' the second issue becomes
relevant: whether the activities involved with the material constitutes
``disposal'' or ``solid waste management.'' The statute distinguishes
between these activities and ``use;'' several activities are listed in
the definitions of ``disposal'' and ``solid waste management'' and
``use'' is not among them. See 42 U.S.C. 6903(3) and (28). In general,
commenters agreed that the three criteria in the proposal, and
discussed above, would identify those activities that were properly
considered to be legitimate beneficial uses rather than disposal. As
several commenters noted, many state beneficial use programs rely on
similar (or identical) criteria. And for encapsulated uses, EPA agrees
that these three criteria are sufficient to distinguish between the
activities that will be regulated as disposal under this final rule and
those that will be considered beneficial use. Accordingly, EPA has
adopted them in the final definition of ``beneficial use.''
    But as EPA acknowledged in the proposal, the issues are more
difficult with regard to unencapsulated uses. Because these uses
involve the direct placement of CCR on the land, they are clearly more
analogous to activities that have consistently been considered to be
``disposal.'' RCRA defines disposal to specifically include the
``placing of any solid waste or hazardous waste into or on any land or
water so that such solid waste or hazardous waste or any constituent
thereof may enter the environment . . .'' 42 U.S.C. 6903(3). The issue
is further complicated by the fact that there can be risks associated
with placement of unencapsulated CCR on the land. As described in the
proposal, CCR can leach toxic metals at levels of concern. The major
risks associated with the placement of unencapsulated CCR on the land
for beneficial use involved using large volumes of CCR to restructure
the landscape, such as occurred at the Battlefield golf course, and
placement in quarries and sand and gravel pits, such as occurred at the
Gambrills, Maryland site. EPA acknowledged in the proposal that these
types of operations would be subject to regulation as disposal, and so
were not directly on point. However, because these damage cases
involved the placement of unencapsulated CCR on the land, they raised
questions regarding the safety of other uses of unencapsulated CCR that
involved direct placement on the land. In addition, previous risk
analyses do not address many of the use applications currently being
implemented, and have not addressed the improved leachate
characterization methods. EPA also noted that some scientific
literature indicates that the uncontrolled (i.e., excessive)
application of CCR can lead to the potentially toxic accumulation of
metals.\43\
---------------------------------------------------------------------------

    \43\ 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;
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.
---------------------------------------------------------------------------

    As noted, several commenters raised concern that EPA's beneficial
use criteria did not include any standard that ensured protection of
human health and the environment. EPA agrees that a criterion that
accounted for the potential risks of the land placement of
unencapsulated CCR would be an appropriate element to include in
differentiating between disposal and beneficial use. RCRA's definition
of disposal includes some elements related to risk: specifically, the
definition includes as a relevant concept that the waste or any
constituent of concern ``may enter the environment.'' In this regard it
is also relevant that not all disposal activities are regulated by EPA
under subtitle D; rather, EPA only regulates those that present risks
that exceed the Agency's acceptable risk levels.
    Building off of these concepts, the Agency has developed an
additional criterion to address both the question of whether the
activity is appropriately considered to be ``disposal,'' and the
question of whether that ``disposal'' warrants regulation. Because uses
that fail to meet the beneficial use criteria will be considered
disposal and would therefore be considered disposal subject to the
final regulation, this fourth criterion was designed to exclude uses
likely to present the same risks as the management practices regulated
under other sections of the final rule. Thus, the final criterion
directly correlates to the practices and the risks that the disposal
regulations are designed to address: the risks associated with the
placement of large quantities of CCR in a single concentrated location,
such as a CCR landfill, as documented in the 2014 risk assessment and
the damage cases.
    As discussed in more detail below, to be considered a ``beneficial
use,'' prior to initiating an activity that involves placing
unencapsulated CCR on the land in amounts greater than 12,400 tons, in
non-roadway applications, the user must demonstrate that environmental
releases to groundwater, surface water, soil and air are comparable to
or lower than those from analogous products made without CCR, or that
environmental releases to groundwater, surface water, soil and air will
be at or below relevant regulatory and health-based benchmarks for
human and ecological receptors during use.
    EPA acknowledges that there may be risks associated with uses that
are below this threshold, depending on the characteristics of the CCR,
the amount of material and the manner in which it is placed, and
(perhaps most important) the site conditions. Consequently, all
unencapsulated uses, including use in road construction and
agriculture, should be conducted with care, according to appropriate
management

practices, and with appropriate characterization of the material and
the site where the material will be placed. However, as discussed in
the previous section, because the amounts and, in some cases, the
manner in which the CCR are used are very different from the land
disposal modeled in the risk assessment, EPA cannot extrapolate from
the risk assessment to reach conclusions regarding the risks these uses
may pose. And in the absence of such information, EPA cannot establish
criteria to regulate these uses.
a. Final Definition of the Term ``Beneficial Use of CCR''
    The final beneficial use criteria are as follows: (1) The CCR must
provide a functional benefit; (2) The CCR must substitute for the use
of a virgin material, conserving natural resources that would otherwise
need to be obtained through practices such as extraction; (3) the use
of CCR must meet relevant product specifications, regulatory standards,
or design standards when available, and when such standards are not
available, CCR are not used in excess quantities; and (4) when
unencapsulated use of CCR involves placement on the land of 12,400 tons
or more in non-roadway applications, the user must demonstrate and keep
records, and provide such documentation upon request, that
environmental releases to groundwater, surface water, soil and air are
comparable to or lower than those from analogous products made without
CCR, or that environmental releases to groundwater, surface water, soil
and air will be at or below relevant regulatory and health-based
benchmarks for human and ecological receptors during use. Any use that
fails to comply with all of the relevant criteria will be considered to
be disposal of CCR, subject to all of the requirements in the disposal
regulations, and the user will be considered to be the owner or
operator of a CCR disposal unit. Encapsulated uses need only comply
with the first three criteria. Unencapsulated uses involving placement
on the land of 12,400 tons or more in non-roadway applications that
fail to meet all of the beneficial use criteria are considered a CCR
unit. As previously noted, the first three criteria were discussed in
the proposal and commenters generally supported these criteria, which
establish flexible performance standards. As discussed above, the
Agency has developed an additional criterion in response to comments,
which generally reflects the issues discussed in the proposal. This
additional criterion is designed to address the environmental and human
health concerns associated with large-scale, unencapsulated uses that
have features similar to landfills. These four criteria are discussed
in greater detail in the sections below. Any user of CCR that, at a
later time, believes that there could be a health or environmental
issue associated with their beneficial use should work with their state
agency to address any potential issue.
    As noted above, encapsulated uses of CCR must only comply with the
first three criteria. Encapsulated beneficial uses are those that bind
the CCR into a solid matrix that minimizes their mobilization into the
surrounding environment. Examples of encapsulated uses include, but are
not limited to: (1) Filler or lightweight aggregate in concrete; (2) a
replacement for, or raw material used in production of, cementitious
components in concrete or bricks; (3) filler in plastics, rubber, and
similar products; and (4) raw material in wallboard production.
    Compliance with the first three criteria suffices because, as
discussed in Unit IV of this document, the available information
demonstrates that encapsulated uses of CCR raise minimal health or
environmental concerns. The Agency did not receive any data to
contradict this assessment during any of the comment periods. In
addition, since publication of the proposal, the Agency conducted a
study of FGD gypsum in wallboard and fly ash concrete, which further
supports this conclusion. This study ``Coal Combustion Residual
Beneficial Use Evaluation: Fly Ash Concrete and FGD Gypsum Wallboard''
(February 2014) concluded that ``environmental releases of constituents
of potential concern (COPCs) from CCR fly ash concrete and FGD gypsum
wallboard during use by the consumer are comparable to or lower than
those from analogous non-CCR products, or are at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors.''
    Criteria 1: CCR must provide a functional benefit. This criterion
is designed to ensure that the material performs a genuine function in
the product or use; while it need not improve product performance when
compared to the material for which it is substituting, CCR must
genuinely be a necessary component of the product. In other words,
there must be a legitimate reason for using CCR in the product other
than the fact that it is an alternative to disposal of the material,
e.g., the material fulfils material specifications. For example, CCR
provides a functional benefit when used as a replacement for cement in
concrete because the CCR increases the durability of the concrete and
is also more effective against degradation from salt water. FGD gypsum
serves the same function in the production of wallboard as mined
gypsum, and meets all product specification. Additionally, CCR can be
used to adjust the pH of soils thereby increasing and promoting plant
growth.
    One commenter noted that many states already consider whether the
material provides a functional benefit when making beneficial use
determinations under their regulatory programs. The Agency agrees that
this is an important criterion in determining whether a use is a
``beneficial use.'' To the extent that a state regulatory program has
determined that a particular use provides a functional benefit, this
may serve as evidence that this criterion has been met.
    Criteria 2: CCR must substitute for the use of a virgin material,
conserving natural resources that would otherwise need to be obtained
through practices, such as extraction. This criterion is intended to
ensure that the use is truly ``beneficial'' from an environmental
perspective. Examples of CCR used as a substitute for a virgin material
include FGD gypsum for mined gypsum and the use of fly ash in lieu of
Portland cement thereby reducing the need for cement. The use of FGD
gypsum in the manufacture of wallboard reduces the need to use virgin
gypsum, thereby conserving natural resources (virgin gypsum) while
conserving valuable energy that would be needed to mine the virgin
gypsum. Similarly, the use of CCR fly ash in lieu of Portland cement
reduces the overall need for cement. CCR used in a road bed application
substitutes for the use of quarried natural materials that provide
structural support for the road surface.
    One commenter again highlighted that many states consider this
criterion in their current state beneficial use programs. The Agency
agrees that this second criterion is appropriate, and that conserving
natural resources is an important function that should be encouraged.
Here as well, potential users of CCR materials may choose to rely on a
state determination to provide evidence that this criterion has been
met.
    Criteria 3: The use of CCR must meet relevant product
specifications, regulatory standards, or design standards, when
available, and where such specifications or standards have not been
established, CCR may not be used in excess quantities. This criterion
was intended to address both the legitimacy of the use and the
potential environmental and human health

consequences associated with the use of excess quantities of CCR,
particularly unencapsulated CCR. If excessive volumes of CCR are used--
i.e., greater than necessary for a specific project--that calls into
question whether the purpose of the application was in fact a sham to
avoid compliance with the disposal regulations. In addition, the record
demonstrates that the risks from use of CCR are more likely to be
associated with large volumes, particularly for unencapsulated uses.
    The Agency has modified this criterion slightly from the proposed
rule. The proposed rule merely referenced ``relevant product
specifications or regulatory standards'' and EPA was concerned that
this was too narrow, and might not incorporate all of the relevant
technical information currently available that provides guidance on
what constitutes an excess amount. Consequently, in the final
definition the Agency has added the phrase ``design standards.'' Design
standards are different from product specifications, because they
include things other than ``products.'' An example of a ``design
standard'' would be technical guidance specifying that six inches of
CCR is to be used in constructing a road.
    EPA received several comments on this provision, several of which
criticized the sole reliance on engineering performance standards. For
example, one commenter questioned how the Agency would quantify
acceptable amounts for each use if no specifications or standards were
in place. One commenter stated that the Agency needs to rely on more
than the existence of engineering performance standards or comparisons
to typical application rates of mined materials as coal combustion
wastes are unique materials and comparisons to typical rates of
application of natural gypsum or other soil amendments are
inappropriate. Another commenter suggested a provision that would
require users to follow a plan to only use what is necessary to reach
the desired effect, in lieu of product specifications.
    EPA purposely did not attempt to establish product specifications
for each potential beneficial use application. The potential products
are too varied, and in many instances EPA lacks the necessary expertise
(e.g., to develop manufacturing specifications for individual
products.). Nor is such an approach necessary. When CCR substitutes for
other materials, the amount used is typically controlled by product
specifications, particularly for encapsulated uses. Product
specifications currently exist for many, if not most, of the
significant uses of CCR and can be found in a variety of sources. For
example, as previously described, fly ash used as a stabilized base
course in highway construction is subject to both regulatory standards
under DOT/FHWA, and engineering specifications, such as the ASTM C 593
test for compaction, the ASTM D 560 freezing and thawing test, and a
seven-day compressive strength above 2760 kPa (400 psi).
    Similarly, in an agricultural setting, EPA expects all appropriate
standards, constituent levels, prescribed total loads, and application
rates to be met. For example, EPA has developed specific standards
governing the agricultural application of biosolids. While the
management scenarios differ between biosludge application and the use
of CCR as soil amendments, EPA would consider application of CCR for
agriculture uses not to be a legitimate beneficial use if they occurred
at constituent levels or loading rates greater than EPA's biosolids
regulations. Several commenters also noted that agronomic rates
currently exist for certain items such as peanuts, cotton, tomatoes,
corn and soybeans.\44\ EPA would generally consider application of CCR
above these rates, or any other rate that has been scientifically
justified, to constitute disposal rather than beneficial use.
---------------------------------------------------------------------------

    \44\ Commenters argued that, at least in agronomic settings,
there is no incentive to use excess amounts because it simply
increases the grower's cost.
---------------------------------------------------------------------------

    Many other sources of technical reports and documents exist for
other uses. ASTM Standard E2277-03 provides standard guidance and a
methodology for using CCR in a structural fill and includes a
consideration of engineering properties and behaviors, testing
procedures, and design considerations relevant to constructing a
structural fill project using CCR. Industry guidance, such as USWAG's
``Engineering and Environmental Guidance on the Beneficial Use of Coal
Combustion Products in Engineered Structural Fill Projects'' may also
provide information relevant to this issue. Further, some states, such
as Wisconsin and Virginia, have developed environmental guidance for
evaluating the suitability of a site prior to construction of a CCR
structural fill.
    While many of these documents do not establish binding
requirements, nor is EPA seeking to make them binding on users, they
provide evidence of the design and construction practices, including
the amounts that are typically used throughout the industry, and
provide a basis on which to evaluate whether excessive quantities have
been used in a particular application. These types of documents are
also relevant in making judgments on the larger question--whether the
activity is legitimate reuse or merely sham disposal. In essence,
product specifications serve the same function as the requirement
suggested by a commenter for a plan to only use what is necessary to
reach the desired effect.
    Commenters were also concerned that the proposed standards, and
particularly this criterion, did not include any provision that would
ensure that CCR reuse was protective of human health and the
environment. One commenter stated that product specifications and
engineering standards do not speak to environmental risk or consumer
exposure. This same commenter was concerned that the proposed criteria
used circular logic by stating that excess materials were not to be
used in cases where specifications or standards have not been
established. Another commenter criticized this criterion because it did
not include threshold levels that protect public health from the range
of toxicants routinely found in coal ash.
    EPA generally disagrees that the requirement to ensure that
excessive volumes have not been used is unrelated to environmental and
safety concerns. Minimizing the amount of material used in a product or
released to the environment decreases potential exposures to the
material. EPA agrees, however, that an additional criterion that more
directly addresses the potential health and environmental risks is
appropriate for unencapsulated uses, which present the greater
potential for exposures of concern. As discussed in more detail below,
the Agency has added a criterion to specifically require users of
unencapsulated CCR to demonstrate that environmental and health related
standards have been met. The criterion is a general performance
standard that is equally applicable to all sites and uses and will
account for a wide variety of potential exposures. By contrast, in
order to establish toxicant ``threshold levels,'' EPA would need to
develop risk assessments that account for the wide variety of potential
uses and exposures. This is neither practical nor feasible, given the
site specific nature of the potential risks and the myriad of potential
uses. In addition, EPA disagrees that this is necessary, as the
performance standard laid out in the fourth criterion will
appropriately address the risks documented in the current record for
these uses.

Furthermore, as the Agency has previously stated in the May 2000
Regulatory Determination and the 2010 proposal, leaving the Bevill
determination in place for beneficial use does not conflict with EPA's
view that certain beneficial uses, e.g., use in road construction and
agriculture, should be conducted with care, according to appropriate
management practices, and with appropriate characterization of the
material and the site where the materials will be placed. EPA has
concluded that the potential risks of these uses do not warrant federal
regulation, but can be addressed, if necessary, in other ways.
    State programs exist and have the expertise to address beneficial
use applications. In addition, the Agency is currently developing a
framework to address the risks associated with the beneficial use of
unencapsulated materials. This framework is expected to be finalized in
2015; the framework will be available to assist in the implementation
of issues associated with the unencapsulated uses of CCR. The Agency
has also been working with the U.S. Department of Agriculture to
address the risks associated with the agricultural use of CCR. In
conclusion, the Agency believes that sufficient tools are available (or
will soon be available) to address the site-specific risks associated
with the beneficial use of CCR.
    Criteria 4: When unencapsulated use of CCR involving placement on
the land of 12,400 tons or more in non-roadway applications, the user
must demonstrate and keep records, and provide such documentation upon
request, that environmental releases to groundwater, surface water,
soil and air are comparable to or lower than those from analogous
products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use. The Agency has established an environmental
criterion to protect human health and the environment in response to
numerous comments received on the proposal raising concern that
additional provisions were necessary to ensure that unencapsulated uses
of CCR needed to be conducted in an environmentally protective manner.
The Agency discussed in the proposed rule the ways in which the use of
CCR in an unencapsulated manner could affect groundwater, surface
water, air and be associated with dust emissions. This fourth
``environmental'' criterion requires potential users to addresses
potential risks from all of these pathways in order to avoid compliance
with the final disposal requirements. Existing sources of guidance and
standards (e.g., ASTM E2277-03 and USWAG's ``Engineering and
Environmental Guidance on the Beneficial Use of Coal Combustion
Products in Engineered Structural Fill Projects,'' to name just two
that are currently available), are available and may provide useful
assistance for determining if the use of CCR are comparable to or lower
than those from analogous products made without CCR, or that
environmental releases to groundwater, surface water, soil and air will
be at or below relevant regulatory and health-based benchmarks for
human and ecological receptors during use. Information (e.g., modeling
results, proposed designs, risk assessments, etc.) that have been
proposed or developed to comply with state standards that explicitly
address the environmental impacts of unencapsulated uses may also be
relevant to this determination.
    i. Source of the 12,400 Ton Threshold and Fill Operations.
    As discussed earlier in this section, the fourth criterion was
designed to address whether the activity is appropriately considered to
be ``disposal'' and whether that ``disposal'' warrants regulation.
Thus, the final criterion correlates to the practices and the risks at
issue: The placement of large quantities of CCR in a single
concentrated location, as documented by the 2014 risk assessment and
the damage cases.
    In the proposed rule, EPA explained that the risks of greatest
concern from unencapsulated beneficial uses were associated with the
placement of CCR in quarries and sand and gravel pits, and with large
scale fill operations used to re-grade the landscape. EPA generally
proposed to define these operations as ``disposal'' rather than
``beneficial use.'' As discussed below, EPA has retained that approach
with respect to the placement in sand and gravel pits and quarries;
consequently the fourth criterion need not account for these uses. By
contrast, EPA has not definitively concluded that ``large scale fill
operations,'' per se, constitute the disposal of CCR. This is because
EPA agrees with commenters that, if constructed correctly, large scale
fill operations can meet all of the criteria for a beneficial use. But
EPA also agrees that these applications can present risks to human
health and the environment, and therefore has drafted the fourth
criterion to specifically address the risks presented by these
operations. The fourth criterion is thus tied to the Agency's general
approach to large scale fill.
    The Agency acknowledged in the proposal that additional guidance
was warranted on what would constitute a large scale fill operation,
and received numerous comments on this issue in response to the
proposal. EPA requested comments again on the topic of large scale
fills in a Notice of Data Availability (NODA). 78 FR 46940 (August 2,
2013). The NODA discussed the fact that many commenters on the proposed
CCR rule stated that EPA should have developed a size criterion to
define large scale fill operations. One commenter suggested 5,000 cubic
yards as a size criterion for a CCR landfill, but did not provide a
basis for this. Other commenters suggested size criteria but for
different reasons than defining disposal criteria; for example,
Wisconsin has a standard where all CCR used for unconfined and confined
``fill projects exceeding 5,000 cubic yards require concurrence by the
State prior to commencement of the project.'' Similarly, West Virginia
stated that ``unencapsulated use of CCR as structural fills not
exceeding 10,000 cubic yards are approvable on a case-by-case basis.''
    In the NODA, EPA identified three different types of data sets that
could provide information relevant to developing appropriate criteria
or to otherwise defining what constitutes a ``large scale'' fill
operation. EPA solicited comment on the adequacy of the data sets and
whether EPA should consider them for the purpose of creating criteria
or a definition. The three data sets were: (1) The size of the
structural fills that have resulted in damage cases; (2) the
distribution of landfill sizes, derived either from an EPA Office of
Water's questionnaire or from the landfill size distribution used in
the proposed rule; and (3) the size distribution for large scale fills
that have been constructed in North Carolina. Many commenters argued
that it was entirely inappropriate for EPA to specify in the rule when
a project constitutes beneficial use simply by volume or amount of
structural fill necessary to construct a stable base for a building.
Commenters argued that a large scale fill operation, if designed
appropriately, constituted a legitimate beneficial use. In fact,
industry commenters universally claimed that they were not aware of any
damage cases or adverse environmental impacts associated with
structural fills that had adhered to industry guidance (e.g., ASTM
standard E2277-03 for structural fills and the USWAG Engineering and
Environmental Guidance on the Beneficial Use of CCPs

in Engineered Structural Fill Projects), and argued that the history of
well-designed and implemented engineered structural fills demonstrate
that CCR can serve as a valuable resource in avoiding disturbing native
ground to secure borrow soils where fill materials are needed to
establish a final grade for a project site that meets the need of the
proposed final use. To this end, the commenters also acknowledged that
site characterization and characterization of the CCR are fundamental
to the construction of fills across the U.S. Similarly, other
commenters stated that size should not be the only criterion used to
define large scale fill operations and highlighted that the site
conditions, including such features as the hydraulic conductivity of
the area, should also be an important criterion to consider. Still
other commenters stated that CCR landfills cannot include large scale
fill CCR beneficial use projects because such operations do not involve
disposal of a solid waste. Rather, industry commenters argue that the
determination as to what is disposal as opposed to beneficial use
should be a determination that rests solely with state agencies. These
commenters suggested that the determination as to whether a particular
fill project constituted disposal, rather than beneficial use should be
based on a series of factors, and not simply a size-cut-off. Finally,
other commenters argued that the Agency incorrectly presumed that only
large scale fill operations could cause environmental damage, and
suggested that rather than regulating large scale fill operations
solely on the basis of the volume or the amount of CCR involved, the
information available to EPA from damage cases and monitoring data
suggests that an additional, if not primary criteria for regulating
fill operations, including those involved in highway construction,
should include the prevention of CCR coming into contact with water.
Focusing on the risks of concern--that large scale fills were
effectively operating as landfills--the Agency reviewed the database of
landfills used in the 2014 risk assessment and has established a
threshold limit that corresponds to the smallest size landfill in the
risk assessment database. EPA selected this threshold as the trigger
for requiring an affirmative demonstration by the user that there will
be no releases of concern as a consequence of the land application,
because the available evidence in the record (i.e., the 2014 risk
assessment) demonstrates that at these volumes the potential risks are
of such significance to warrant regulation. Based on this evidence, the
burden then shifts to the potential user to demonstrate that these
potential risks do not exist at the particular site or have been
adequately mitigated. Under this approach, unencapsulated beneficial
use applications greater than or equal to 12,400 tons can still be
conducted without becoming subject to the disposal regulations by using
engineering principles, such as a liner system, and demonstrating that
environmental releases to groundwater, surface water, soil and air are
comparable to or lower than those from analogous products made without
CCR, or that environmental releases to groundwater, surface water, soil
and air will be at or below relevant regulatory and health-based
benchmarks for human and ecological receptors. EPA agrees that the
volume of CCR involved should not be the sole basis for determining
whether an operation constitutes disposal. As such, the Agency is
requiring the use of the fourth criterion in order to address any
potential risks associated with unencapsulated uses of CCR that are in
excess of 12,400 tons. Users will be required to make an affirmative
demonstration relating to the potential environmental releases and the
potential risks of the application (in addition to requiring compliance
with the other three criteria). Specifically, users will be required to
demonstrate that environmental releases to groundwater, surface water,
soil and air are comparable to or lower than those from analogous
products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use. EPA expects such determinations to take into
account a wide variety of factors, including the hydraulic conductivity
of the area, proximity of the material to water, and the likelihood of
contact with water. EPA also expects that such determinations would
take into account, as many commenters acknowledged to be appropriate
and necessary, the need for site characterization and characterization
of the CCR. The fourth criterion was adopted in part, to address
commenters' concern that the EPA should include a criterion that
prevents the placement of CCR in water sources. These are legitimate
concerns; existing damage cases show that the placement of CCR in sand
and gravel pits was almost always associated with CCR being placed in
contact with water. The fourth criterion will require the user to
demonstrate that environmental releases to groundwater, surface water,
soil and air are comparable to or lower than those from analogous
products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use. As a consequence of this requirement, EPA expects
that significant changes may need to be made in order to proceed with a
proposed use; for example, conducting the required assessment, may
demonstrate that the only way to achieve the performance standard is to
install engineering features, such a liner, as part of the proposed
project.
    Application of unencapsulated CCR to the land in volumes less than
the 12,400 tons will not require an affirmative demonstration to be
considered a beneficial use. While the Agency has sufficient
information to document that unencapsulated uses can present a hazard,
based on the current rulemaking record, EPA lacks the information
necessary to demonstrate that unencapsulated uses in smaller amounts
are likely to present a risk.\45\ In other words, the evidence relating
to these uses is not sufficient to shift the burden to the potential
user to affirmatively demonstrate the safety of the proposed use.
Nevertheless, the Agency expects potential users of unencapsulated CCR
below this threshold to work with the states to determine the potential
risks of the proposed use at the site and to adopt the appropriate
controls necessary to address the risks. In this regard, EPA notes that
the composition and leaching behavior of CCR being beneficially used
may change over time due to upgrades in air pollution controls devices
at coal-fired power plants. Further, initial determinations for
existing beneficial use (BU) applications may have relied on single-
point pH test methods (e.g., TCLP, SPLP) that, depending on actual
field conditions in which the applications are occurring, can under- or
over-estimate leachate concentrations. Scientific advancements

in leach test protocols have found that the degree of leaching can vary
by several orders of magnitude. Accordingly, states overseeing CCR BU
programs are encouraged to closely evaluate existing BU applications in
light of ongoing scientific advances in tools and technologies to
ensure these applications remain protective of human health and the
environment. In addition, the Agency is working to provide assistance
to states and potential users; this includes the release of the
Agency's Industrial Waste Evaluation Model (IWEM), and the development
of a framework for systematically assessing unencapsulated BU
applications to aid in assessing whether there are environmental risks
associated with site specific structural fills.
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    \45\ In November 2014, EPA received reports alleging that
extensive groundwater monitoring data collected by the Wisconsin
Department of Natural Resources demonstrated a correlation between
beneficial uses of unencapsulated CCR below these thresholds and
contaminated drinking water wells in southeastern Wisconsin.
Insufficient time was available to allow EPA to evaluate these
reports as part of this rulemaking. However, EPA will continue to
evaluate the issues associated with unencapsulated uses of CCR, and
to the extent available data demonstrate the need for revisions to
these criteria, EPA will initiate the necessary rulemaking
procedures.
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    ii. Exclusion of Roadway Applications from the 4th Criterion. In
the 2010 proposal, the Agency stated that the placement of
unencapsulated CCR on the land, such as in road embankments, presented
concerns, but that the amount and the manner in which they are used--
subject to engineering specifications and material requirements rather
than landfilling techniques--are very different from land disposal. The
Agency highlighted the 2005 guidance that was developed by EPA, FHWA,
DOE, ACAA, and USWAG, addressing the appropriate methodologies and
engineering requirements for the use of coal ash in highway
construction. Lastly, the Agency noted the difference in terms of
volume; the difference between the amounts of CCR that could be
disposed of in a landfill vs. the amount of CCR used in the
construction of a roadbase (typically on the order of six to twelve
inches thick).
    EPA received a number of comments requesting that the definition of
a CCR landfill exclude CCR used in highway and road construction
projects and similar beneficial use projects authorized by an
appropriate state agency. These commenters reasoned that the
``arbitrary cutoff' discussed in the NODA would inappropriately capture
such uses.
    The Agency has excluded roadways and associated embankments from
the fourth criterion because the methods of application are
sufficiently different from CCR landfills that EPA cannot extrapolate
from the available risk information to determine whether these
activities present similar risks. Roadways are subject to engineering
specifications that generally specify CCR to be placed in a thin layer
(e.g., six to 12 inches) under a road. The placement under the surface
of the road limits the degree to which rainwater can influence the
leaching of the CCR.
    There are also significant differences between the manner in which
roadways and landfills can potentially impact groundwater. These
include the nature of mixing in the media, the leaching patterns, and
how input infiltration rates are generated. First, CCR landfills are
typically a homogenously mixed system, and as a result, there are no
spatial variations of the chemical and physical properties of the media
(for example, bulk density, hydraulic conductivity and contaminant
concentration). By contrast, roadways are generally constructed of
several layers with different material properties (heterogeneity). This
difference affects the hydraulic conductivity of a mass of CCR in a
landfill, as compared to CCR placed in an embankment. Any potential
leaching will tend to spread over the length of the embankment, as
opposed to the leaching in a downward motion that would occur in a
homogenously filled landfill.
    Finally, (and perhaps most critically) the construction of roads
and associated embankments are supervised and approved by State and/or
Federal Department of Transportation (DOT) engineers who ensure
compliance with engineering specifications
    While EPA is exempting roadbed applications of 12,400 tons or
larger from the fourth criterion, EPA is mindful of situations where
large quantities of CCR have been used without appropriate engineering
controls or where placement on the land has apparently far exceeded
those necessary for the engineering use of the materials. One such
situation occurred in Puerto Rico with CCR generated by the AES Coal
Fired Power Plant in Guayama. As discussed in Unit IV.B of this
document, CCR and an aggregate created from them (``AGREMAX'') were
being used as fill in housing developments and in road projects. Over
two million tons of this material was used between 2004 and 2012. When
made aware of the situation, EPA raised concerns over the use of CCR
and AGREMAX based on the fact that the Environmental Quality Board had
not imposed engineering controls, specified appropriate uses, or
otherwise limited the use of AGREMAX by the end users. Inspections of
some of the sites where the material had been placed showed use in
residential areas, areas close to wetlands and surface waters and/or
over shallow sole source drinking water aquifers. In addition, in some
cases the volumes appeared to be in excess of what was necessary for
engineering uses and some sites appeared to be abandoned. This kind of
situation will be directly addressed by the new beneficial use criteria
promulgated in the final rule. To qualify as a beneficial use, the use
of AGREMAX would need to meet all four of the criteria--that is, it
must provide a functional benefit, substitute for a virgin material,
meet product specifications, and in this case, the user would be
required to make the environmental demonstration for the non-roadbed
applications.
    iii. Kinds of unencapsulated uses of CCR required to comply with
the fourth criterion.
    Unencapsulated uses of CCR are numerous and range, in total use,
from hundreds of thousands of tons to millions of tons per year. These
applications include, as examples, the following: (1) Flowable fill;
(2) structural fills; (3) soil modification/stabilization; (4) waste
stabilization/solidification; (5) use in agriculture as a soil
amendment; and (6) aggregate.
    Many of these unencapsulated uses, other than structural fills, are
not generally expected to be used in amounts that would require an
environmental demonstration under the fourth criterion. And for several
of these applications, which can be structurally very different from
landfills, EPA expects that even if these applications are used in
amounts greater than 12,400 tons, potential users will be easily able
to meet the performance standard. For example, the use of CCR for soil
modification or stabilization, agriculture, waste stabilization/
solidification, aggregate or flowable fill applications, is generally
not similar to the mounding that occurs in a landfill situation. These
differences can have a tremendous bearing on the leaching potential of
the CCR materials.
    Structural fills, however, can be larger applications and so may be
required to demonstrate compliance with the environmental standards in
the fourth criterion more frequently. In addition, because structural
fills can be similar to the landfills regulated in the final disposal
rule, some proposed applications may need to install engineering
features to meet the performance standard.
    iv. Demonstration that ``environmental releases to groundwater,
surface water, soil and air are comparable to or lower than those from
analogous products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use.''

    The environmental fourth criterion requires a potential use of CCR
to compare analogous products or to perform an environmental assessment
evaluating whether releases to the environment are at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use. A demonstration should consider the development
of a conceptual model to assist in the determination of whether the
environmental criteria contained in the definition of the term
``beneficial use of CCR'' can be demonstrated. Numerous potential
pathways exist and these should be evaluated as necessary depending on
the potential application of the CCR. Potential exposure pathways
include exposure to groundwater, surface water, air, and soils.
Generation of dust, leaching to groundwater and surface water,
inhalation of mercury, and plant uptake are areas that need to be
evaluated. A complete evaluation of the types of releases, the types of
exposure and the receptors that may be potentially affected by a
potential application will need to be conducted. A screening comparison
will need to be performed comparing the concentrations of individual
constituents of potential concern to the following benchmarks: human
soil ingestion, ecological soil, tap water ingestion, fish ingestion,
surface water, sediment, and inhalation. As an example, a user could
compare a mercury concentration to a human health screening benchmark
with an inhalation value of 300 ng/m\3\. Existing documents that can be
used to gain an understanding of conceptual models, pathways and
regulatory limits include: Risk Assessment Guidance for Superfund,
Exposure Factors Handbook, Volumes I, II and III, Risk Assessment
Guidance for Superfund Volume I: Human Health Evaluation Manual Part A,
Industrial Waste Management Model (IWEM) Technical Backgrounds
Document, Exposure Factors Handbook, Human and Ecological Risk
Assessment of Coal Combustion Wastes. In addition, although it is not
directly applicable, a potential user of unencapsulated CCR may find it
useful to consult the previously mentioned ``Coal Combustion Residual
Beneficial Use Evaluation: Fly Ash Concrete and FGD Gypsum Wallboard''
and the ``Methodology for Evaluating Encapsulated Beneficial Uses of
Coal Combustion Residuals'' to assist in the determination of whether
the unencapsulated CCR is comparable to or lower than those from
analogous products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use.
    After the effective date of the final rule, any potential user of
CCR that makes the demonstration in the fourth criterion must keep
records and provide such documentation upon request.
b. Placement in Sand and Gravel Pits and Quarries
    EPA proposed that, without exception, unencapsulated CCR placed in
sand and gravel pits, and quarries should not constitute beneficial
use, but disposal. The Agency highlighted a number of damage cases that
involved the filling of old, unlined quarries or gravel pits with large
quantities of unencapsulated CCR, under the guise of ``beneficial
use.'' Because of the damage cases and the concern that in such
instances, sand and gravel pits and quarries were essentially operating
as landfills, EPA proposed to define the placement of CCR in sand and
gravel pits or quarries as land disposal that would be subject to
regulation under either of the proposed regulatory options. The
proposal specifically defined a CCR landfill as a disposal facility or
part of a facility where CCR are placed in or on land and which is not
a land treatment facility, a surface impoundment, an underground
injection well, a salt dome formation, a salt bed formation, an
underground mine, a cave, or a corrective action management unit. For
purposes of this part, landfills also include piles, sand and gravel
pits, quarries, and/or large scale fill operations. Sites that are
excavated so that more coal ash can be used as fill are also considered
CCR landfills.
    Commenters stated that there were numerous examples of harm caused
by the unencapsulated ``reuse'' in sand and gravel pits and quarries,
which demonstrate that these unencapsulated uses were merely disposal
in disguise, and must be regulated stringently under Subtitle C of RCRA
to prevent the risks they pose of contaminating groundwater, surface
water, and ecological systems with heavy metals and other harmful
pollutants. In particular, they argue that ``There have already been at
least 13 damage cases caused by the disposal of coal ash in sand and
gravel pits or former quarries that led to contamination of water
sources and/or ecological damages.'' Some commenters also agreed that
placement in sand and gravel pits and quarries should not be considered
beneficial use. For example, one commenter agreed that CCR placement in
sand and gravel pits and quarries is ``disposal'' and not beneficial
use while another commenter wrote that it concurs that large-scale
fills in quarries in poorly engineered applications can cause negative
impacts. Other commenters highlighted that damage cases related to sand
and gravel pits and quarries were old practices that no longer take
place. These commenters argued that while sand and gravel quarries have
been used to dispose of CCR, it is not correct to assume that with
proper engineering and environmental standards that CCR cannot be used
beneficially to reclaim quarries for uses such as recreational areas,
commercial or industrial uses, or to aesthetically improve the
characteristics of the land.
    EPA is finalizing its proposal that placement of CCR in sand and
gravel pits constitutes disposal, rather than beneficial use. The final
definition of a CCR landfill explicitly includes placement of CCR in
sand and gravel pits and quarries. EPA has adopted this approach
because the practice has resulted in numerous damage cases as a result
of the highly permeable strata typically present at such sites.
Moreover, while the commenters may be correct that ``with proper
engineering measures, placement in sand and gravel pits and quarries
can be conducted safely'', they submitted no data to support this
contention. The only engineering features the available information
demonstrate would be protective are those that have been determined to
be necessary for CCR landfills--i.e., composite liners and groundwater
monitoring. And in the absence of these features, any future placement
in sand and gravel pits and quarries could not meet the performance
standard in the fourth criterion: i.e., that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use.

B. Definitions

    EPA proposed definitions for a number of key terms used in the
proposed subtitle D rule that the Agency determined were necessary for
the proper interpretation of the proposed requirements, e.g., coal
combustion residuals, existing CCR landfill. (See 75 FR 35196-97, June
21, 2010.) In addition, EPA also proposed definitions for terms that
were specific to certain regulatory requirements, e.g., seismic impact
zone.

    EPA is finalizing many of the regulatory definitions that were
proposed, some with modifications. Several definitions that were
proposed have been removed because they are no longer relevant to this
rulemaking and a number of new definitions have been added.
Specifically, definitions that have been removed from the final rule