the proposed minimum federal criteria 180 days after promulgation of
the final rule. As noted elsewhere in today's preamble (see Section
XI.), facilities would need to comply with the RCRA subtitle D
criteria, irrespective of whether or not the states have adopted the
standards. For the remaining requirements, the compliance dates would
be as follows:
     For new CCR landfills and surface impoundments that are
placed into service after the effective date of the final rule, the
location restrictions and design criteria would apply the date that
such CCR landfills and surface impoundments are placed into service.
     For existing CCR surface impoundments, the compliance date
for the liner requirement is five years after the effective date of the
final rule.
     For existing CCR landfills and surface impoundments, the
compliance date for the groundwater monitoring requirements is one year
after the effective date of the final rule.
     For new CCR landfills and surface impoundments, and
lateral expansions of existing CCR landfills and surface impoundments,
the groundwater monitoring requirement must be in place and in
compliance with the

groundwater monitoring requirements before CCRs can be placed in the
unit.

    Note:  As discussed in Section IX, if EPA determines that
financial assurance requirements would be implemented pursuant to
CERCLA 108(b) authority, the compliance date for this provision
would be the date specified in those regulations.

B. Implementation and Enforcement of Subtitle D Requirements

    As stated previously, EPA has no authority to implement and enforce
the co-proposed RCRA subtitle D regulation. Therefore, the proposed
RCRA subtitle D standards have been drafted so that they can be self
implementing--that is, the facilities can comply without interaction
with a regulatory agency. EPA can however take action under section
7003 of RCRA to abate conditions that ``may present an imminent and
substantial endangerment to health or the environment.'' EPA could also
use the imminent and substantial endangerment authorities under CERCLA,
or under other federal authorities, such as the Clean Water Act, to
address those circumstances where a unit may pose a threat.
    In addition, the federal RCRA subtitle D requirements would be
enforceable by states and by citizens using the citizen suit provisions
of RCRA 7002. Under this section, any person may commence a civil
action on his own behalf against any person, who (1) is alleged to be
in violation of any permit, standard, regulation * * * which has become
effective pursuant to this chapter'' Because a RCRA subtitle D proposal
relies heavily on citizen enforcement, our proposal requires facilities
to make any significant information related to their compliance with
the proposed requirements publicly available.

XI. Impact of a Subtitle D Regulation on State Programs

    Under today's co-proposal, EPA is proposing to establish minimum
nationwide criteria under RCRA subtitle D as one alternative. If the
Agency were to choose to promulgate such nationwide criteria, EPA would
encourage the states to adopt such criteria; however, the Agency has no
authority to require states to adopt such criteria, or to implement the
criteria upon their finalization. Nor does EPA have authority in this
instance to require federal approval procedures for state adoption of
the minimum nationwide criteria. States would be free to develop their
own regulations and/or permitting programs using their solid waste laws
or other state authorities. While states are not required to adopt such
minimum nationwide criteria, some states (about 25) incorporate federal
regulations by reference or have specific state statutory requirements
that their state program can be no more stringent than the federal
regulations (about 12, with varying degrees of exceptions). In those
cases, EPA would expect that if the minimum nationwide criteria were
promulgated, these states would adopt them, consistent with their state
laws and administrative procedures.
    If the states do not adopt or adopt different standards for the
management of CCRs, facilities would still have to comply with the co-
proposed subtitle D criteria, if finalized, independently of those
state regulations. Thus, even in the absence of a state program, CCR
landfills and CCR surface impoundments would be required to meet the
proposed federal minimum criteria as set out in 40 CFR part 257,
subpart D. As a result and to make compliance with the requirements as
straightforward as possible, we have drafted the proposed criteria so
that facilities are able to implement the standards without interaction
with regulatory officials--that is, the requirements are self-
implementing. Also, even in the absence of a state regulatory program
for CCRs, these federal minimum criteria are enforceable by citizens
and by states using the citizen suit provision of RCRA (Section 7002).
EPA is also able to take action under RCRA Section 7003 to abate
conditions that may pose an imminent and substantial endangerment to
human health or the environment or and can rely on other federal
authorities. See the previous section for a full discussion of this
issue.

XII. Impacts of the Proposed Regulatory Alternatives

A. What are the economic impacts of the proposed regulatory
alternatives?

    EPA prepared an analysis of the potential costs and benefits
associated with this action contained in the ``Regulatory Impact
Analysis'' (RIA). A copy of the RIA is available in the docket for this
action and the analysis is briefly summarized here. For purposes of
evaluating the potential economic impacts of the proposed rule, the RIA
evaluated baseline (i.e., current) management of CCRs consisting of two
baseline components: (1) The average annual cost of baseline CCR
disposal practices by the electric utility industry, and (2) the
monetized value of existing CCR beneficial uses in industrial
applications. Incremental to this baseline, the RIA estimated (1)
future industry compliance costs for CCR disposal associated with the
regulatory options described in today's action, and (2) although not
completely quantified or monetized, three categories of potential
future benefits from RCRA regulation of CCR disposal consisting of (a)
Groundwater protection benefits at CCR disposal sites, (b) CCR
impoundment structural failure prevention benefits, and (c) induced
future annual increases in CCR beneficial use. The findings from each
of these main sections of the RIA are summarized below. These
quantified benefit results are based on EPA's initial analyses using
existing information and analytical techniques.
1. Characterization of Baseline Affected Entities and CCR Management
Practices
    Today's action will potentially affect CCRs generated by coal-fired
electric utility plants in the NAICS industry code 221112 (i.e., the
``Fossil Fuel Electric Power Generation'' industry within the NAICS 22
``Utilities'' sector code). Based on 2007 electricity generation data
published by the Energy Information Administration (EIA), the RIA
estimated a total of 495 operational coal-fired electric utility plants
in this NAICS code could be affected by today's action. These plants
are owned by 200 entities consisting of 121 companies, 18 cooperative
organizations, 60 state or local governments, and one Federal Agency. A
sub-total of 51 of the 200 owner entities (i.e., 26%) may be classified
as small businesses, small organizations, or small governments.
    Based on the most recent (2005) EIA data on annual CCR tonnages
generated and managed by electric utility plants greater than 100
megawatts nameplate capacity in size, supplemented with additional
estimates made in the RIA for smaller sized electric utility plants
between 1 and 100 megawatts capacity, these 495 plants generate about
140 million tons of CCRs annually, of which 311 plants dispose 57
million tons in company-owned landfills, 158 plants dispose 22 million
tons in company-owned surface impoundments, and an estimated 149 plants
may send upwards of 15 million tons of CCRs to offsite disposal units
owned by other companies (e.g., NAICS 562 commercial waste management
service companies). Based on lack of data on the type of offsite CCR
disposal units, and the fact that it costs much more to transport wet
CCRs than dry CCRs (i.e., CCRs which have been de-watered), the RIA
assumes all offsite CCR disposal units are landfills. Because some
plants use more than one CCR management method, these management plant
counts exceed 495 total plants. Based on the estimates

developed for the RIA, total CCR disposal is about 94 million tons
annually which is two-thirds of annual CCR generation. (EPA notes that
the alternative, lower CCR generation and disposal estimates of 131
million tons and 75 million tons cited elsewhere in today's notice were
derived from different and less comprehensive ACAA and EIA survey data
sources, respectively, that do not include tonnage estimates for plants
between 1 and 100 megawatt capacity.) In addition, 272 of the 495
plants supply CCRs which are not disposed for beneficial uses in at
least 14 industries, of which 28 of the 272 plants solely supply CCRs
for beneficial uses. As of 2005, CCR beneficial uses (i.e., industrial
applications) involved about 47 million tons annually representing one-
third of annual CCR generation, which the RIA estimates may grow to an
annual quantity of 62 million tons by 2009. For 2008, the American Coal
Ash Association estimates CCR beneficial use has grown to 60.6 million
tons.\155\
---------------------------------------------------------------------------

    \155\ Note that ACAA's definition of beneficial use does not
align with that used by EPA in this rulemaking. For example, ACAA
includes minefilling as a beneficial use, where EPA classifies it as
a separate category of use.
---------------------------------------------------------------------------

2. Baseline CCR Disposal
    For each of the 467 operating electric utility plants which dispose
CCRs onsite or offsite (28 of the 495 total plants solely send their
CCRs for beneficial use and not disposal), the RIA estimated baseline
engineering controls at CCR disposal units and associated baseline
disposal costs for two types of CCR disposal units: landfills and
surface impoundments. Impoundments are sometimes named by electricity
plant personnel as basins, berms, canals, cells, dams, embankments,
lagoons, pits, ponds, reservoirs, or sumps. The baseline is defined as
existing (current) conditions with respect to the presence or absence
of 10 types of environmental engineering controls and eight ancillary
regulatory elements, plus projection of future baseline conditions of
CCR disposal units without regulation over the 50-year future period-
of-analysis--2012 to 2061--applied in the RIA. A 50-year future period
was applied in the RIA to account for impacts of the proposed
regulatory options which are specific only to future new disposal units
given average lifespans of over 40-years. Existing conditions were
determined based on review of a sample of current state government
regulations of CCR disposal in 34 states, as well as limited survey
information on CCR disposal units from studies published in 1995, 1996,
and 2006 about voluntary engineering controls installed for CCR
disposal units at some electric utility plants. The 10 baseline
engineering controls evaluated in the RIA are (1) Groundwater
monitoring, (2) bottom liners, (3) leachate collection and removal
systems, (4) dust controls, (5) rainwater run-on and run-off controls,
(6) financial assurance for corrective action, disposal unit closure,
and post-closure care, (7) disposal unit location restrictions, (8)
closure capping of disposal units, (9) post-closure groundwater
monitoring, and (10) CCR storage design and operating standards prior
to disposal (Note: Although listed here, this 10th element was not
estimated in the RIA because of EPA's lack of information on baseline
CCR storage practices). This specific set of engineering controls
represents the elements of the RCRA 3004(x) custom-tailored technical
standards proposed in today's notice for the RCRA subtitle C option.
The eight ancillary elements evaluated in the RIA are (11) offsite
transport and disposal, (12) disposal unit structural integrity
inspections, (13) electricity plant facility-wide environmental
investigations, (14) facility-wide corrective action requirements, (15)
waste disposal permits, (16) state government regulatory enforcement
inspections, (17) environmental release remediation requirements, and
(18) recordkeeping and reporting to regulatory agencies. Some states
require many of these technical standards for future newly-constructed
CCR disposal units, some states require them for existing units, and
some states have few or no regulatory requirements specific to CCR
disposal and thus were not estimated in the baseline cost. Furthermore,
some of the ancillary elements are only relevant to the regulatory
options based on subtitle C as co-proposed in today's notice. The
percentage of CCR landfills with baseline controls ranged from 61% to
81%, and the percentage of CCR surface impoundments with baseline
controls ranged from 20% to 49%, depending upon the type of control.
Based on this estimation methodology, the RIA estimates the electric
utility industry spends an average of $5.6 billion per year for meeting
state-required and company voluntary environmental standards for CCR
disposal. Depending upon state location for any given electricity plant
(which determines baseline regulatory requirements), and whether any
given plant disposes CCRs onsite or offsite, this baseline cost is
equivalent to an average cost range of $2 to $80 per ton of CCRs
disposed of.
3. Baseline CCR Beneficial Use
    In addition to evaluating baseline CCR disposal practices, the RIA
also estimated the baseline net benefits associated with the 47 million
tons per year (2005) of industrial beneficial uses of CCRs. CCRs are
beneficially used nationwide as material ingredients in at least 14
industrial applications according to the American Coal Ash Association:
(1) Concrete, (2) cement, (3) flowable fill, (4) structural fill, (5)
road base, (6) soil modification, (7) mineral filler in asphalt, (8)
snow/ice control, (9) blasting grit, (10) roofing granules, (11)
placement in mine filling operations,\156\ (12) wallboard, (13) waste
solidification, and (14) agriculture. The baseline annual sales
revenues (as of 2005) received by the electric utility industry for
sale of CCRs used in these industrial applications are estimated at
$177 million per year. In comparison, substitute industrial ingredient
materials (e.g., portland cement, quarried stone aggregate, limestone,
gypsum) would cost industries $2,477 million per year. Thus, the
beneficial use of CCRs provides $2,300 million in annual cost savings
to these industrial applications, labeled economic benefits in the RIA.
Based on the lifecycle materials and energy flow economic framework
presented in the RIA, although only based on limited data representing
47% of annual CCR beneficial use tonnage involving only three of the 14
industrial applications (i.e., concrete, cement and wallboard),
baseline lifecycle benefits of beneficially using CCRs compared to
substitute industrial materials are (a) $4,888 million per year in
energy savings, (b) $81 million per year in water consumption savings,
(c) $365 million per year in greenhouse gas (i.e., carbon dioxide and
methane) emissions reductions, and (d) $17,772 million per year in
other air pollution reductions. Altogether, industrial beneficial uses
of CCRs provide over $23 billion in annual environmental benefits as of
2005. In addition, baseline CCR beneficial use provides $1,830 million
per year in industrial raw materials costs savings to beneficial users,
and $2,927 million per year in avoided CCR disposal cost to the
electric utility industry as of 2005. The sum of environmental
benefits,

industrial raw materials costs savings, and CCR disposal cost savings,
$27.9 billion per year, gives the baseline level of what the RIA has
labeled social benefits from the beneficial use of CCRs.
---------------------------------------------------------------------------

    \156\ While today's proposed rule does not deal directly with
the mine filling of CCRs, the RIA includes it as a baseline
beneficial use because the RIA uses the categories identified by the
American Coal Ash Association (http://acaa.affiniscape.com/
displaycommon.cfm?an=1&subarticlenbr=3). However, as noted
previously in today's notice, the Agency is working with OSM of the
Department of Interior on the placement of CCRs in mine fill
operations.
---------------------------------------------------------------------------

4. Estimated Costs for RCRA Regulation of CCR Disposal
    The RIA includes estimates of the costs associated with the options
described in today's notice are summarized here: (1) RCRA subtitle C
regulation of CCRs as a ``special waste''; (2) RCRA subtitle D
regulation as ``non-hazardous waste''; and (3) the subtitle ``D prime''
options. Full descriptions of each option are presented in a prior
section of today's notice. The RIA assumes that the engineering
controls that would be established under the RCRA subtitle C option
would be tailored on the basis of RCRA section 3004(x). The controls
for the RCRA subtitle D option are identical to the subtitle C option.
The controls under the subtitle ``D prime'' option would be identical
as well, except that existing surface impoundments would not have to
close or be dredged and have composite liners installed within five
years of the effective date of the regulation. The RIA also assumes all
three options retain the existing Bevill exemption for CCR beneficial
uses.
    The estimated costs for each option are incremental to the
baseline, and are estimated in the RIA using both an average annualized
and a present value equivalent basis over a 50-year period-of-analysis
(2012 to 2061) using both a 7% and an alternative 3% discount rate.
These two alternative discount rates are required by the Office of
Management and Budget's September 2003 ``Regulatory Analysis'' Circular
A-4. For the purpose of summary here, only the 7% discount rate results
are presented for each option because the 7% rate represents the ``base
case'' in the RIA for the reason that most of the regulatory compliance
costs will be incurred by industry (i.e., private capital). On an
average annualized basis, the estimated regulatory compliance costs for
the three options are $1,474 million (subtitle C special waste), $587
million (subtitle D), and $236 million (subtitle ``D prime'') per year.
On a present value basis discounted at 7% over the 50-year future
period-of-analysis applied in the RIA, estimated future regulatory
compliance costs for the three options total $20,349 million, $8,095
million, and $3,259 million present value, respectively. EPA requests
public comment on all data sources and analytical approaches.
5. Benefits for RCRA Regulation of CCR Disposal
    The potential environmental and public health benefits of CCR
regulation estimated and monetized in the RIA include three categories:
    1. Groundwater protection benefits consisting of (a) human cancer
prevention benefits and (b) avoided groundwater remediation costs at
CCR disposal sites;
    2. CCR impoundment structural failure prevention benefits (i.e.,
cleanup costs avoided); and
    3. Induced future increase in industrial beneficial uses of CCRs.
    As was done with the cost estimates described above, the RIA
estimated benefits both at the 7% and 3% discount rates using the same
50-year period-of-analysis. However, only the benefit estimates based
on the 7% rate are summarized here. While the RIA focused on monetizing
these three impact categories, there are also human non-cancer
prevention benefits, ecological protection benefits, surface water
protection benefits, and ambient air pollution prevention benefits,
which are not monetized in the RIA, but qualitatively described below.
i. Groundwater Protection Benefits
    The RIA estimated the benefits of reduced human cancer risks and
avoided groundwater remediation costs associated with controlling
arsenic leaching from CCR landfills and surface impoundments. These
estimates are based on EPA's risk assessment (described elsewhere in
today's notice), which predicts arsenic leaching rates using SPLP and
TCLP data. Furthermore, recent research and damage cases indicate that
these leaching tests under-predict risks from dry disposal.\157\
Therefore, the groundwater protection benefits may be underestimated in
the RIA. The RIA based estimation of future human cancer cases avoided
on the individual ``excess'' lifetime cancer probabilities reported in
the EPA risk assessment, although the RIA also used more recent (2001)
science published by the National Research Council on arsenic
carcinogenicity.
---------------------------------------------------------------------------

    \157\ Recent EPA research demonstrates that CCRs can leach
significantly more aggressively under different pH conditions
potentially present in disposal units. In the EPA Office of Research
& Development report ``Characterization of Coal Combustion Residues
from Electric Utilities--Leaching and Characterization Data,'' EPA-
600/R-09/151, Research Triangle Park, NC, December 2009, CCRs from
19 of the 34 facilities evaluated in the study exceeded at least one
of the Toxicity Characteristic regulatory values for at least one
type of CCR (e.g., fly ash or FGD residue) at the self-generated pH
of the material. This behavior likely explains the rapid migration
of constituents from disposal sites like Chesapeake, VA and
Gambrills, MD. See also the EPA Office of Research & Development
reports (a) ``Characterization of Mercury-Enriched Coal Combustion
Residues from Electric Utilities Using Enhanced Sorbents for Mercury
Control,'' EPA 600/R-06/008, January 2006; and (b) Characterization
of Coal Combustion Residues from Electric Utilities Using Wet
Scrubbers for Multi-Pollutant Control, EPA/600/R-08/077, July 2008.
---------------------------------------------------------------------------

    The RIA estimated groundwater protection benefits by categorizing
electric utility plants according to their individual types of CCR
disposal units (i.e., landfill or impoundment) and presence/types of
liners in those units. For each category, GIS data were used to
determine the potentially affected populations of groundwater drinkers
residing within 1-mile of the disposal units. Results from the risk
assessment were applied to these populations by using a linear
extrapolation, starting from a risk of zero to the peak future risk as
demonstrated by the risk assessment. The count of people who might
potentially get cancer was then adjusted upward to account for the more
recent and more widely accepted arsenic carcinogenicity research by the
National Research Council.\158\ The RIA then segregated the future
cancer counts into lung cancers and bladder cancers, as well as into
those that were predicted to result in death versus those that were
not. The RIA monetized each of these cancer sub-categories using EPA-
published economic values for statistical life and cost of illness.
---------------------------------------------------------------------------

    \158\ EPA's current Integrated Risk Information System (IRIS)
has a cancer slope factor for arsenic developed in 1995. This slope
factor is based on skin cancer incidence and was used in the 2010
EPA risk assessment. Skin cancer is a health endpoint associated
with lower fatality risk than lung and bladder cancers induced by
arsenic. Since the IRIS slope factors were developed, quantitative
data on lung and bladder cancers have become available, and the skin
cancer based slope factors no longer represent the current state of
the science for health risk assessment for arsenic. The National
Research Council (NRC) published the report, ``Arsenic in Drinking
Water: 2001 Update'' (2001) which reviewed the available
toxicological, epidemiological, and risk assessment literature on
the health effects of inorganic arsenic, building upon the NRC's
prior report, ``Arsenic in Drinking Water'' (NRC 1999). The 2001
report, developed by an eminent committee of scientists with
expertise in arsenic toxicology and risk assessment provides a
scientifically sound and transparent assessment of risks of bladder
and lung cancers from inorganic arsenic. EPA's Science Advisory
Board is currently reviewing EPA's new proposed IRIS cancer slope
factors based on bladder and lung cancer. Because the more recent
NRC scientific information is available, the RIA (2010) uses the NRC
arsenic cancer data for the estimate of benefits associated with
cancers avoided by the proposed regulation of CCR.
---------------------------------------------------------------------------

    The RIA further adjusted these monetized future cancer counts, to
take into account existing state requirements for groundwater
monitoring at CCR disposal units, such that fewer cancer

cases than initially projected would ultimately occur from early
detection of groundwater contamination in those states. Therefore, a
baseline was established for the operation of state regulatory and
remedial programs which led to a reduction in expected cancer cases in
states with existing groundwater protection requirements. However, once
groundwater contamination was found in those states, remediation costs
would be incurred. Thus, the RIA also accounted for these costs under
each of the regulatory options as well, thus avoiding possible double-
counting of cancer cases and remediation costs. On an average
annualized basis, the human cancer prevention component of the
groundwater protection benefit category for the three options are $37
million (RCRA subtitle C special waste), $15 million (RCRA subtitle D),
and $8 million (subtitle ``D prime'') per year. On a present value
basis, the human cancer prevention benefit totals $504 million, $207
million, and $104 million present value, respectively. On an average
annualized basis, the estimated avoided groundwater remediation cost
benefit component of the groundwater protection benefit category for
the three options are $34 million (RCRA subtitle C special waste), $12
million (RCRA subtitle D), and $6 million (subtitle ``D prime'') per
year. On a present value basis, the avoided remediation cost benefit
totals to $466 million, $168 million, and $84 million present value,
respectively. Added together on an average annualized basis, these two
groundwater protection benefit components total to $71 million (RCRA
subtitle C special waste), $27 million (RCRA subtitle D), and $14
million (subtitle ``D prime'') per year. On a present value basis, the
groundwater protection benefit category totals to $970 million, $375
million, and $188 million present value, respectively.
ii. Impoundment Structural Failure Prevention Benefits
    The December 2008 CCR surface impoundment collapse at the Tennessee
Valley Authority's Kingston, Tennessee coal-fired electricity plant
illustrated that structural failures of large CCR impoundments can lead
to catastrophic environmental releases and large cleanup costs. The RIA
estimated the benefit of avoiding future cleanup costs for impoundment
failures, which the structural integrity inspection requirement of all
regulatory options, and the future conversion or retrofitting of
existing or new impoundments (under the subtitle C, subtitle D, and
subtitle ``D prime'' options) would be expected to prevent.
    The RIA based the estimate of future cleanup costs avoided on
information contained in EPA's 2009 mail survey \159\ of 584 CCR
impoundments operated by the electric utility industry. In response to
the survey request for information on known spills or non-permitted
releases from CCR impoundments within the last 10 years, revealed 42
CCR impoundment releases spanning 1995 to 2009. Particularly, there
were five significant releases between 4,950 cubic yards and 5.4
million cubic yards of CCRs, and one catastrophic release of 5.4
million cubic yards of CCRs during this time period at coal fired power
plants. Given these historic releases, the RIA projected the
probability of future impoundment releases using a Poisson
distribution. In addition to this approach, the RIA formulated two
alternative failure scenarios based on 96 high-risk CCR impoundments
identified as at least 40 feet tall and at least 25 years old. The two
alternative failure scenarios assumed impoundment failure rates
involving these 96 impoundments of 10% and 20%, respectively. On an
average annualized basis ranging across these three alternative failure
probability estimation methods (scenarios), the avoided cleanup cost
benefit category for the three options is estimated at $128 million to
$1,212 million (subtitle C special waste), $58 million to $550 million
(subtitle D), and $29 million to $275 million (subtitle ``D prime'')
per year. On a present value basis, the avoided cleanup cost benefit
category totals $1,762 million to $16,732 million (RCRA subtitle C
special waste), $793 million to $7,590 million (RCRA subtitle D), and
$405 million to $3,795 million present value (RCRA subtitle ``D
prime''), respectively.
---------------------------------------------------------------------------

    \159\ Descriptive information and electric utility industry
responses to EPA's 2009 mail survey is available at the survey
webpage http://www.epa.gov/waste/nonhaz/industrial/special/fossil/
surveys/.
---------------------------------------------------------------------------

iii. Benefit of Induced Future Increase in Industrial Beneficial Uses
of CCRs
    The third and final potential benefit category evaluated in the RIA
includes the potential effects of RCRA regulation of CCR disposal on
future annual tonnages of CCR beneficial use. As its base case, the RIA
estimates an expected future increase in beneficial use induced by the
increased costs of disposing CCR in RCRA-regulated disposal units. The
RIA also evaluates the potential magnitude of a future decrease in
beneficial use as a result of a potential ``stigma'' effect under the
subtitle C option. Both scenarios are based on a baseline consisting of
(a) projecting the future annual tonnage of CCR generation by the
electric utility industry in relation to the Energy Information
Administration's (EIA) future annual projection of coal consumption by
the electric utility industry, and (b) projecting the future baseline
growth in CCR beneficial use relative to the historical growth
trendline (i.e., absent today's proposed regulation).
    For the induced increase ``base case'' scenario, the compliance
costs for each regulatory option represent an ``avoided cost
incentive'' to the electric utility industry to shift additional CCRs
from disposal to beneficial use. Proportional to the estimated cost for
each option, the RIA applied a beneficial use market elasticity factor
to the projected baseline future growth in beneficial use to simulate
the induced increase. On an average annualized basis, the monetized
value--based on the same unitized (i.e., per-ton) monetized social
values assigned to the lifecycle benefits of baseline CCR beneficial
uses--of the estimated potential induced increases in future annual CCR
beneficial use tonnage for the three options are $6,122 million (RCRA
subtitle C special waste), $2,450 million (RCRA subtitle D), and $980
million (subtitle ``D prime'') per year. On a present value basis, the
potential induced increases in beneficial use totals to $84,489 million
(RCRA subtitle C special waste), $33,796 million (RCRA subtitle D), and
$13,518 million (subtitle ``D prime'') present value, respectively.
    The RIA also monetized the alternative ``stigma'' scenario of
future reduction in beneficial use induced by the RCRA subtitle C
option. The RIA formulated assumptions about the percentage future
annual tonnage reductions which might result to some of the 14
beneficial use markets. For example, federally purchased concrete was
assumed to stay at baseline levels because of the positive influence of
comprehensive procurement guidelines that are already in place to
encourage such types of beneficial uses. Conversely, the levels of non-
federally purchased concrete were assumed to decrease relative to the
baseline. On an average annualized basis, the monetized value--based on
the same unitized (i.e., per-ton) monetized social values assigned to
the lifecycle benefits of baseline CCR beneficial uses--of the
potential ``stigma'' reduction in future annual CCR beneficial use for
the RCRA subtitle C option is $16,923 million per year cost. On a
present value basis, the potential ``stigma'' reduction in beneficial
use totals to $233,549 million

present value cost. The RIA did not estimate a potential ``stigma''
reduction effect on the RCRA subtitle D or subtitle ``D prime''
regulatory options.

B. Benefits Not Quantified in the RIA

1. Non-Quantified Plant and Wildlife Protection Benefits
    EPA's risk assessment estimated significant risks of adverse
effects to plants and wildlife, which are confirmed by the existing CCR
damage cases and field studies published in peer-reviewed scientific
literature. Such reported adverse effects include: (a) Elevated
selenium levels in migratory birds, (b) wetland vegetative damage, (c)
fish kills, (d) amphibian deformities, (e) snake metabolic effects, (f)
plant toxicity, (g) elevated contaminant levels in mammals as a result
of environmental uptake, (h) fish deformities, and (i) inhibited fish
reproductive capacity. Requirements in the proposed rule should prevent
or reduce these impacts in the future by limiting the extent of
environmental contamination and thereby reducing the levels directly
available.
2. Non-Quantified Surface Water Protection Benefits
    In EPA's risk assessment, recreational fishers could be exposed to
chemical constituents in CCR via the groundwater-to-surface water
exposure pathway. Furthermore, State Pollutant Discharge Elimination
System (SPDES) and National Pollutant Discharge Elimination System
(NPDES) discharges from CCR wet disposal (i.e., impoundments) likely
exceed the discharges from groundwater to surface water. Thus, exposure
to arsenic via fish consumption could be significant. However, EPA
expects that most electric utility plants will eventually switch to dry
CCR disposal (or to beneficial use), a trend which is discussed in the
RIA. Such future switchover will reduce potential future exposures to
these constituents from affected fish.
3. Non-Quantified Ambient Air Protection Benefits
    Another impact on public health not discussed in the RIA is the
potential reduction of excess cancer cases associated with hexavalent
chromium inhaled from the air. As estimated in the RIA, over six
million people live within the Census population data ``zip code
tabulation areas'' for the 495 electric utility plant locations. Thus,
the potential population health benefits of RCRA regulation may be
quite large. Inhalation of hexavalent chromium has been shown to cause
lung cancer.\160\ By requiring fugitive dust controls, the proposed
rule would reduce inhalation exposure to hexavalent chromium near CCR
disposal units that are not currently required to control fugitive
dust.
---------------------------------------------------------------------------

    \160\ ATSDR Texas. Available at: http://www.atsdr.cdc.gov/
toxfaq.html.
---------------------------------------------------------------------------

    Furthermore, several non-cancer health effects associated with CCRs
are a result of particulate matter inhalation due to dry CCR disposal.
Human health effects for which EPA is evaluating causality due to
particulate matter exposure include (a) Cardiovascular morbidity, (b)
respiratory morbidity, (c) mortality, (d) reproductive effects, (e)
developmental effects, and (f) cancer.\161\ The potential for and
extent of adverse health effects due to fugitive dusts from dry CCR
disposal was demonstrated in the 2009 EPA report ``Inhalation of
Fugitive Dust: A Screening Assessment of the Risks Posed by Coal
Combustion Waste Landfills--DRAFT,'' which is available in the docket
for today's co-proposed rules. The co-proposed rules' fugitive dust
controls would serve to manage such potential risks by bringing them to
acceptable levels.
---------------------------------------------------------------------------

    \161\ Source: EPA Office of Research & Development report
``Integrated Science Assessment for Particulate Matter: First
External Review Draft,'' EPA/600/R-08/139, 2008.
---------------------------------------------------------------------------

    CCR dust (and other types of particulate matter) can also be
carried over long distances by wind and then settle on ground or water.
The effects of this settling could include: (a) Changing the pH of
lakes and streams; (b) changing the nutrient balance in coastal waters
and large river basins; (c) depleting nutrients in soil; (d) damaging
sensitive forests and farm crops; and (e) affecting the diversity of
ecosystems.\162\ Additionally, fine particulates are known to
contribute to haze.\163\ Thus, the fugitive dust controls contained in
the proposed rule would improve visibility, and reduce the
environmental impacts discussed above.
---------------------------------------------------------------------------

    \162\ Source: U.S. EPA Office of Air & Radiation, Particulate
Matter ``Health and Environment'' Web site at http://www.epa.gov/
particles/health.html.
    \163\ Ibid; and also see http://www.intheairwebreathe.com/html/
photo_gallery.html.
---------------------------------------------------------------------------

C. Comparison of Costs to Benefits for the Regulatory Alternatives

    For purposes of comparing the estimated regulatory compliance costs
to the monetized benefits for each regulatory option, the RIA computed
two comparison indicators: Net benefits (i.e., benefits minus costs),
and benefit/cost ratio (i.e., benefits divided by costs). The results
of each indicator are displayed in the following tables (Table 10,
Table 11 and Table 12) for three regulatory options, based on the 7%
discount rate and the 50-year period-of-analysis applied in the RIA.
There are three tables because three different scenarios were analyzed
concerning potential impacts on beneficial use of CCRs impact under the
regulatory options.
    The three tables below represent three possible outcomes regarding
impacts of the rule upon the beneficial use of CCR. In the first table,
EPA presents the potential impact scenario that we view to be most
likely. This first scenario assumes that the increased cost of disposal
from regulation under subtitle C will encourage industry to seek out
additional markets and greatly increase their beneficial use of CCRs.
In the second table, EPA presents a negative effect on beneficial use,
based on stigma, and the possibility of triggering use restrictions
under state regulation and private sector standards due to subtitle C
regulation. In the final table, EPA presents a scenario where
beneficial use continues on its current path, without any changes as a
result of the rule. On the basis of past experience, EPA believes that
it is likely that recycling rates will increase as presented in the
first scenario. Comments are requested on the impact of stigma on the
beneficial use of CCRs.

                              Table 10--Comparison of Regulatory Benefits to Costs
      [$Millions @ 2009$ prices and @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
                                        Subtitle C ``Special
                                               Waste''                 Subtitle D          Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
    1. Regulatory Costs (1A+1B+1C):   $20,349.................  $8,095.................  $3,259.
        1A. Engineering Controls....  $6,780..................  $3,254.................  $3,254.

        1B. Ancillary Regulatory      $1,480..................  $5.....................  $5.
         Requirements.
        1C. Conversion to Dry CCR     $12,089.................  $4,836.................  $0.
         Disposal.
    2. Regulatory Benefits            $87,221 to $102,191.....  $34,964 to $41,761.....  $14,111 to $17,501.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $504....................  $207...................  $104.
         Cancer Cases Avoided.
        2B.Groundwater Remediation    $466....................  $168...................  $84.
         Costs Avoided.
        2C. CCR Impoundment Failure   $1,762 to $16,732.......  $793 to $7,590.........  $405 to $3,795.
         Cleanup Costs Avoided.
        2D. Included Future Increase  $84,489.................  $33,796................  $13,518.
         in CCR Beneficial Use.
    3. Net Benefits (2-1)...........  $66,872 to $81,842......  $26,869 to $33,666.....  $10,852 to $14,242.
    4. Benefit/Cost Ratio ( 2/1 )...  4.286 to 5.022..........  4.319 to 5.159.........  4.330 to 5.370.
B. Average Annualized Equivalent
 Values:*.
    1. Regulatory Costs (1A+1B+1C)..  $1,474..................  $587...................  $236.
        1A. Engineering Controls....  $491....................  $236...................  $236.
        1B. Ancillary Regulatory      $107....................  <$1....................  <$1.
         Requirements.
        1C. Conversion to Dry CCR     $876....................  $350...................  $0.
         Disposal.
    2. Regulatory Benefits            $6,320 to $7,405........  $2,533 to $3,026.......  $1,023 to $1,268.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $37.....................  $15....................  $8.
         Cancer Cases Avoided.
        2B. Groundwater Remediation   $34.....................  $12....................  $6.
         Costs Avoided.
        2C. CCR Impoundment Failure   $128 to $1,212..........  $58 to $550............  $29 to $275.
         Cleanup Costs Avoided.
        2D. Included Future Increase  $6,122..................  $2,450.................  $980.
         in CCR Beneficial Use.
    3. Net Benefits (2-1)...........  $4,845 to $5,930........  $1,947 to $2,439.......  $786 to $1,032.
    4. Benefit/Cost Ratio (2/1).....  4.286 to 5.022..........  4.319 to 5.159.........  4.330 to 5.370.
----------------------------------------------------------------------------------------------------------------
* Note: Average annualized equivalent values calculated by multiplying the 50-year present values by a 50-year
  7% discount rate ``capital recovery factor'' of 0.07246.

 Table 11--Comparison of Regulatory Benefits to Costs Under Scenario 2--Induced Beneficial Use Decrease
        [$Millions @ 2009$ prices @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
                                        Subtitle C ``Special
                                               Waste''                 Subtitle D          Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
    1. Regulatory Costs (1A+1B+1C):   $20,349.................  $8,095.................  $3,259.
        1A. Engineering Controls....  $6,780..................  $3,254.................  $3,254.
        1B. Ancillary Costs.........  $1,480..................  $5.....................  $5.
        1C. Conversion to Dry CCR     $12,089.................  4,836..................  $0.
         Disposal.
    2. Regulatory Benefits            ($230,817) to ($215,847)  $1,168 to $7,965.......  $593 to $3,983.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $504....................  $207...................  $104.
         Cancer Risks Avoided.
        2B. Groundwater Remediation   $466....................  $168...................  $84.
         Costs Avoided.
        2C. CCR Impoundment Failure   $1,762 to $16,732.......  $793 to $7,590.........  $405 to $3,795.
         Cleanup Costs Avoided.
        2D. Induced Impact on CCR     ($233,549)..............  N/A....................  N/A.
         Beneficial Use.
    3. Net Benefits (2-1)...........  ($251,166) to ($236,196)  ($6,927) to ($130).....  ($2,666) to $724.
    4. Benefit/Cost Ratio (2/1).....  (11.343) to (10.607)....  0.144 to 0.984.........  0.182 to 1.222.
B. Average Annualized Equivalent
 Values*.
    1. Regulatory Costs (1A+1B+1C):   $1,474..................  $587...................  $236.
        1A. Engineering Controls....  $491....................  $236...................  $236.
        1B. Ancillary Costs.........  $107....................  $0.36..................  $0.36.

        1C. Conversion to Dry CCR     $876....................  $350...................  $0.
         Disposal.
    2. Regulatory Benefits            ($16,725) to ($15,640)..  $85 to $577............  $43 to $289.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $37.....................  $15....................  $8.
         Cancer Risks Avoided.
    2B. Groundwater Remediation       $34.....................  $12....................  $6.
     Costs Avoided.
        2C. CCR Impoundment Failure   $128 to $1,212..........  $57 to $550............  $29 to $275.
         Cleanup Costs Avoided.
        2D. Induced Impact on CCR     ($16,923)...............  NA.....................  NA.
         Beneficial Use.
    3. Net Benefits (2-1)...........  ($18,199) to ($17,115)..  ($502) to ($9).........  ($193) to $52.
    4. Benefit/Cost Ratio (2/1).....  (11.347) to (10.610)....  0.145 to 0.983.........  0.182 to 1.225.
----------------------------------------------------------------------------------------------------------------
* Note: Average annualized equivalent values calculated by multiplying 50-year present values by a 50-year 7%
  discount rate ``capital recovery factor'' of 0.07246.

   Table 12--Comparison of Regulatory Benefits to Costs Under Scenario 3--No Change to Beneficial Use
        [$Millions @ 2009$ prices @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
                                        Subtitle C ``Special
                Costs                          Waste''                 Subtitle D          Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
    1. Regulatory Costs (1A+1B+1C):   $20,349.................  $8,095.................  $3,259.
        1A. Engineering Controls....  $6,780..................  $3,254.................  $3,254.
        1B. Ancillary Costs.........  $1,480..................  $5.....................  $5.
        1C. Dry Conversion..........  $12,089.................  4,836..................  $0.
    2. Regulatory Benefits            $2,732 to $17,702.......  $1,168 to $7,965.......  $593 to $3,983.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $504....................  $207...................  $104.
         Cancer Risks Avoided.
        2B. Groundwater Remediation   $466....................  $168...................  $84.
         Costs Avoided.
        2C. CCR Impoundment Failure   $1,762 to $16,732.......  $793 to $7,590.........  $405 to $3,795.
         Cleanup Costs Avoided.
    2D. Induced Impact on CCR         $0......................  $0.....................  $0.
     Beneficial Use.
    3. Net Benefits (2-1)...........  ($17,617) to ($2,647)...  ($6,927) to ($130).....  ($2,666) to $724.
    4. Benefit/Cost Ratio (2/1).....  0.134 to 0.870..........  0.144 to 0.984.........  0.182 to 1.222.
B. Average Annualized Equivalent
 Values.
    1. Regulatory Costs (1A+1B+1C):   $1,474..................  $587...................  $236.
        1A. Engineering Controls....  $491....................  $236...................  $236.
        1B. Ancillary Costs.........  $107....................  $0.36..................  $0.36.
        1C. Dry Conversion..........  $876....................  $350...................  $0.
    2. Regulatory Benefits            $198 to $1,283..........  $85 to $577............  $43 to $289.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $37.....................  $15....................  $8.
         Cancer Risks Avoided.
        2B. Groundwater Remediation   $34.....................  $12....................  $6.
         Costs Avoided.
        2C. CCR Impoundment Failure   $128 to $1,212..........  $57 to $550............  $29 to $275.
         Cleanup Costs Avoided.
        2D. Induced Impact on CCR     $0......................  $0.....................  $0.
         Beneficial Use.
    3. Net Benefits (2-1)...........  ($1,277) to ($192)......  ($502) to ($9).........  ($193) to $52.
    4. Benefit/Cost Ratio (2/1).....  0.134 to 0.870..........  0.145 to 0.983.........  0.182 to 1.225.
----------------------------------------------------------------------------------------------------------------
* Note: Average annualized equivalent values calculated by multiplying 50-year present values by a 50-year 7%
  discount rate ``capital recovery factor'' of 0.07246.

    EPA seeks comment on data and findings presented in the RIA, as
well as on the cost and benefit estimation uncertainty factors
identified in the RIA.

D. What are the potential environmental and public health impacts of
the proposed regulatory alternatives?

    The potential environmental and public health impacts of CCR
regulation assessed within the RIA include the following three
categories:
     Groundwater Benefits (human health benefits and cleanup
costs avoided)
     Catastrophic Failure Benefits (catastrophic and
significant releases avoided)
     Beneficial Use Benefits
    The analyses of the groundwater impacts for the RIA were derived
based on results from the risk assessment that was conducted for coal
combustion residue landfills and surface impoundments. The second
category of catastrophic impacts in the RIA was assessed, primarily
based upon data on releases, as reported in EPA's 2009 Information
Collection Request. And finally, the RIA assessment of beneficial use
impacts was conducted using life-cycle analyses of current types and
quantities of CCR beneficial use in the U.S. While the RIA focuses on
monetizing these three impact categories, EPA notes that there are also
likely noncancer health impacts, ecological impacts, other surface
water impacts, and impacts on the ambient air, which are not monetized
in this RIA.
1. Environmental and Public Health Impacts Estimated in the RIA
Groundwater Impacts
    In the RIA, EPA estimated the benefits of reduced cancer risks and
avoided groundwater remediation costs associated with controlling
arsenic from landfills and surface impoundments that manage coal
combustion residuals (CCRs). These estimates are based on EPA's risk
assessment, which predicts leaching behavior using SPLP and TCLP data.
Furthermore, recent research and damage cases indicate that these
leaching tests may under-predict risks from dry disposal.\164\
Therefore, the benefits estimated in this section are likely to
underestimate the actual benefits provided by the proposed rule. EPA
bases the cancer cases avoided on the individual ``excess'' lifetime
cancer probabilities reported in the risk assessment, although for the
present analysis, EPA uses more recent science on arsenic
carcinogenicity, reflected in more recent NRC research.
---------------------------------------------------------------------------

    \164\ Recent EPA research demonstrates that CCRs can leach
significantly more aggressively under different pH conditions
potentially present in disposal units. In U.S. EPA (2009c), a recent
ORD study of 34 facilities, CCRs from 19 facilities exceeded at
least one of the Toxicity Characteristic regulatory values for at
least one type of CCR (e.g., fly ash or FGD residue) at the self-
generated pH of the material. This behavior likely explains the
rapid migration of constituents from disposal sites like Chesapeake,
VA and Gambrills, MD. See also U.S. EPA (2006, 2008b).
---------------------------------------------------------------------------

    The RIA began its groundwater impacts assessment by first
segregating facilities by their individual type of liner and their
respective Waste Management Unit (WMU) designations. For each class of
facility, GIS data were used to determine the potentially affected
populations of groundwater drinkers within 1-mile of the WMU. Results
from the risk assessment were applied to these populations by using a
linear extrapolation, starting from a risk of zero--to the peak future
risk as demonstrated by the risk assessment. The number of people who
might potentially get cancer was then adjusted to account for more
recent research by the NRC.
    Given the number of total potential cancers, EPA was able to use
the same NRC data to split these cancers into lung cancers and bladder
cancers, as well as into those that resulted in death versus those that
did not. Once this subdivision was complete, EPA was then able to
monetize these cancers using accepted economic values for a statistical
life and cost of illness. In doing so, EPA was able to take account of
both the potential lag in cancer cessation and the increase in value of
a statistical life due to increases in income.
    EPA also recognized that due to the relevant pre-existing state
regulations in this area, fewer cancers than the number projected would
ultimately occur. Therefore, a baseline was established for the
operation of state regulatory and remedial programs. This led to the
exclusion of some cancers where states would likely fill the gap in the
absence of any EPA regulations. However, once contamination was found
by states, cleanup costs would be incurred. Thus, EPA accounted for
these costs under each of the regulatory options as well.
    Once groundwater remediation costs and cancer costs under the
baseline and each regulatory option were estimated, the aggregate
benefits from each regulatory option were calculated (in comparison to
the baseline). Net present value estimates were generated both at the
3% and 7% discount rate, as discussed in further detail within the RIA.
To summarize, at a discount rate of 7%, the net present value of the
groundwater benefits (including both the avoided cleanup costs and the
value of cancer cases avoided) from the proposed rule totaled $970
million under the subtitle C option, and $375 million under the
subtitle D option.
Catastrophic Failure Impacts
    The 2008 surface impoundment failure at the TVA's Kingston, TN
power plant illustrated that the improper handling of CCRs can lead to
catastrophic releases. EPA's co-proposal for the management of CCRs
includes requirements that would lead to all plants with surface
impoundments converting to dry handling in landfills within 5-years of
rule implementation. In the RIA, EPA estimated the avoided catastrophic
failures and associated cleanup cost savings resulting from this
provision of the rule.
    First, EPA began by characterizing the releases reported in its
2009 Information Collection Request. In this data set, 42 releases were
reported for the years 1995 through 2009. Particularly, there were 5
significant releases of between 1 million and 1 billion gallons, and
one catastrophic release of over 1 billion gallons during this time
period at coal fired power plants. Given these historic releases, EPA
projected the occurrence of future releases using a Poisson
distribution. EPA then estimated future avoided cleanup costs under the
two proposed rules, and determined net present values of these benefits
using both a 3% and 7% discount rate across the average and upper
percentiles of risk demonstrated by the results of the Poisson
distribution. The full details of these analyses are reported in the
RIA. To summarize the results here at the 7% discount rate, the
estimated net present value of avoided releases under the subtitle C
requirements total $1,762 million on average (with the upper-bound
estimates reaching from $3,140 to $4,177 million for the 90th and 99th
percentiles). And under the subtitle D requirements and discount rate
of 7%, the estimated net present value of avoided releases total $793
million on average (with the upper-bound estimates reaching from $1,413
to $1,880 million for the 90th and 99th percentiles).
    In addition, a second Poisson distribution was developed as a
sensitivity analysis, using an alternative historical rate of
occurrence. This was done to see to what extent an increased release
rate would pose in terms of greater risks. Given the age of many CCR
surface impoundments, an increase in the release rate might be
expected. The cleanup costs avoided under the two co-proposed rules
were again calculated as described above and included in the

RIA, given this alternative higher occurrence rate. To summarize the
results of this sensitivity analysis, at a 7% discount rate the
estimated net present value of avoided releases under the subtitle C
requirements total $5,154 million on average (with the upper-bound
estimates reaching from $7,356 to $9,423 million for the 90th and 99th
percentiles). And under the subtitle D requirements and same discount
rate of 7%, the estimated net present value of avoided releases total
$2,319 million on average (with the upper-bound estimates reaching from
$3,310 to $4,240 million for the 90th and 99th percentiles).
    Finally, a further sensitivity analysis was also performed to
determine the extent to which these benefits would change if the
catastrophic failures occurred sooner than projected by the Poisson
distribution. Here, 96 impoundments were identified that were at least
40 feet tall and at least 25 years old. For the purposes of the
assessment, benefit estimates were calculated based on assumed
impoundment failure rates of both 10% and 20%. The RIA includes net
present value estimates of the avoided cleanup costs under the two co-
proposed rules for these two assumed failure rates, which are
calculated using both 3% and 7% discount rates. Given the potential
earlier releases, the analyses in the RIA find that at a 7% discount
rate and a 10% failure rate, the net present value of avoided
catastrophic failure costs is $8,366 under subtitle C, versus $3,795
million under subtitle D. Furthermore, when assuming a failure rate of
20% rather than 10%, the estimated net present value of avoided
catastrophic failure costs increases to $16,732 million under Subtitle
C, versus $7,590 million under subtitle D.
Beneficial Use Impacts
    The last category of such impacts assessed within the RIA includes
the potential effects that the different regulatory options for
disposal of coal combustion residuals (CCRs) may have upon the
quantities of CCRs that are being beneficially used. In the RIA, EPA
estimates the expected increase in beneficial use associated with the
increased costs of disposing CCRs, and also evaluates potential future
changes in the beneficial uses of CCRs as a result of a potential
``stigma'' effect.
    To begin, EPA projected the quantity of CCRs that will be produced
in the future, based upon Energy Information Administration's (EIA)
estimates of future coal supply and demand. At the same time, EPA also
projected the growth in the percent of beneficial use that would take
place absent any EPA rule. Combining these, EPA was able to project the
total quantities of beneficially used CCRs under the baseline of no
federal rule.
    However, it is anticipated that the increased CCR disposal costs
associated with a federal RCRA subtitle C rule, and the continued
application of the Bevill exclusion to CCRs that are beneficially used,
would provide significant incentive to electric utilities avoid higher
disposal costs by increasing the quantity of CCRs going to beneficial
use. Using the cost projections from the RIA for CCR disposal, EPA
assumed that there would initially be unit elasticity with respect to
cost, but that the elasticity would decrease with increasing market
saturation. Based upon these assumptions, EPA projected the increased
growth in beneficial use under a subtitle C rule. EPA then took the
monetized benefits of current beneficial use, and applied them to our
projected increases in beneficial use under the rule.
    When monetized, the values of these increases are extremely large,
summing to a net present value of $5,560 million in economic benefits
at a 7% discount rate. Furthermore, when considering total social
benefits (e.g., decreased GHG emissions) the numbers are even greater,
resulting in $84,489 million at a 7% discount rate. (Please note that
because the total social benefits overlap with the economic benefits,
these numbers should not be added together.) This number represents
EPA's lower-bound estimate of the potential increase that it
anticipates will occur.
    On the basis of past experience, EPA believes it is realistic to
expect that there is a possibility that recycling rates will increase
under a subtitle C rule, increasing the beneficial use of CCRs.
However, stakeholders have raised the potential issue of ``stigma.''
Thus, the RIA also assesses this potential stigma effect and develops
estimates of its potential impacts. Here, assumptions were made about
what losses or reductions might result among the various sectors
involved in the beneficial use of CCRs. For example, federally
purchased concrete was assumed to stay at baseline levels because of
the positive influence of comprehensive procurement guidelines that are
already in place to encourage such types of beneficial uses.
Conversely, for the purposes of assessing potential stigma effects, the
levels of non-federally purchased concrete were assumed to decrease
relative to the baseline.
    When monetized, the values of these decreases are also large,
summing to a net present value of $18,744 million in economic costs at
a 7% discount rate. Furthermore, when considering total social benefits
(e.g., GHG emissions) the numbers are even greater, resulting in
$233,549 million in economic costs at a 7% discount rate. This number
represents EPA's estimate of the potential worst-case decrease that
could occur in the event of potential stigma effect.
    Since the potential increases in beneficial use as discussed above
are driven largely by increases in disposal costs under the subtitle C
option, EPA further estimated the effects that would result under a
subtitle D rule by applying a ratio of the rule's respective costs
under both the C and D options. Using the ratio of the subtitle D costs
to the subtitle C costs (a ratio of 0.40:1); the net present value of
social benefits associated with increased beneficial use under subtitle
D would be approximately $33,796 million (at an assumed discount rate
of 7%). It is important to note further that under the subtitle D
option for the proposed rule, no such stigma effect would exist and is,
therefore, not accounted for in our analyses. However, to the extent
that a stigma effect is real, it could just as easily decrease
beneficial use under a subtitle D option.
2. Environmental and Public Health Impacts Not Estimated in the RIA
Impacts on Plants and Wildlife
    The risk assessment estimated significant risk of adverse effects
to plants and wildlife, which is confirmed by the many impacts seen in
the existing damage cases and field studies published in the peer-
reviewed scientific literature. These include: elevated selenium levels
in migratory birds, wetland vegetative damage, fish kills, amphibian
deformities, snake metabolic effects, plant toxicity, elevated
contaminant levels in mammals as a result of environmental uptake, fish
deformities, and inhibited fish reproductive capacity. Requirements in
the proposed rule should prevent or reduce these impacts in the future
by limiting the extent of environmental contamination and thereby
reducing the levels directly available.
Impacts on Surface Water Not Captured in the RIA
    In EPA's risk assessment, recreational fishers could be exposed to
constituents via the groundwater to surface water pathway. Furthermore,
State Pollutant Discharge Elimination System (SPDES) and National
Pollutant Discharge

Elimination System (NPDES) discharges from wet handling likely exceed
the discharges from groundwater to surface water. Thus, exposure to
arsenic via fish consumption could be significant. However, EPA expects
that most facilities will eventually switch to dry handling of CCRs, a
trend which is discussed in the RIA. This will reduce potential
exposures to these constituents from affected fish.
Impacts on Ambient Air
    Another impact on public health not discussed in the RIA is the
potential reduction of excess cancer cases associated with hexavalent
chromium inhaled from the air. Since over six million individuals are
estimated to live within the Census population data ``zip code
tabulation areas'' for the plant location zip codes of coal-fired power
plants affected by this proposed rule,\165\ the potential population
health effects may be quite large. Inhalation of hexavalent chromium
has been shown to cause lung cancer.\166\ By requiring fugitive dust
controls, the proposed rule would reduce inhalation exposure to
hexavalent chromium near waste management units that are not currently
required to control fugitive dust.
---------------------------------------------------------------------------

    \165\ U.S. EPA. Regulatory Impact Analysis for EPA's Proposed
Regulation of Coal Combustion Wastes Generated by the Electric
Utility Industry, 2009. Office of Resource Conservation and
Recovery.
    \166\ ATSDR Texas. Available at: http://www.atsdr.cdc.gov/
toxfaq.html.
---------------------------------------------------------------------------

Non-Cancer Health Effects Associated With CCR Particulate Matter
    There are several non-cancer health effects associated with CCRs
are a result of particulate matter inhalation due to dry handling.
Human health effects for which EPA is evaluating causality due to
particulate matter exposure include cardiovascular morbidity,
respiratory morbidity, and mortality, reproductive and developmental
effects, and cancer.\167\ The potential for and extent of adverse
health effects due to fugitive dusts from dry handling of CCRs was
demonstrated in U.S. EPA 2010b, ``Inhalation of Fugitive Dust: A
Screening Assessment of the Risks Posed by Coal Combustion Waste
Landfills--DRAFT.'' The proposed rule's fugitive dust controls would
serve to manage such potential risks by bringing them to acceptable
levels.
---------------------------------------------------------------------------

    \167\ Integrated Science Assessment for Particulate Matter:
First External Review Draft. EPA/600/R-08/139. Research Triangle
Park, NC: U.S. Environmental Protection Agency, Office of Research
and Development. 2008.
---------------------------------------------------------------------------

    Particles can also be carried over long distances by wind and then
settle on ground or water. The effects of this settling include:
changing the pH of lakes and streams; changing the nutrient balance in
coastal waters and large river basins; depleting nutrients in soil;
damaging sensitive forests and farm crops; and affecting the diversity
of ecosystems.\168\ Additionally, fine particulates are known to
contribute to haze.\169\ Thus, the fugitive dust controls contained in
the proposed rule would improve visibility, and reduce the
environmental impacts discussed above.
---------------------------------------------------------------------------

    \168\ http://www.epa.gov/particles/health.html.
    \169\ Ibid.
---------------------------------------------------------------------------

XIII. Other Alternatives EPA Considered

    In determining the level of regulation appropriate for the
management of CCRs, taking into account both the need for regulations
to protect human health and the environment and the practical
difficulties associated with implementation of such regulations, the
Agency considered a number of approaches in addition to regulating CCRs
under subtitle C or subtitle D of RCRA. Specifically, the Agency also
considered several combination approaches, such as regulating surface
impoundments under subtitle C of RCRA, while regulating landfills under
subtitle D of RCRA.
    Under all of the approaches EPA considered, CCRs that were
beneficially used would retain the Bevill exemption. In addition, under
all the approaches, requirements for liners and ground water monitoring
would be established, as well as annual inspections of all CCR surface
impoundments by an independent registered professional engineer to
ensure that the design, operation, and maintenance of surface
impoundments are in accordance with recognized and generally accepted
good engineering standards. However, the degree and extent of EPA's
authority to promulgate certain requirements, such as permitting,
financial assurance, facility-wide corrective action, varies under RCRA
subtitle C versus subtitle D. In addition, the degree and extent of
federal oversight, including enforcement, varies based on whether a
regulation is promulgated under RCRA subtitle C or subtitle D
authority. (See Section IV. for a more detailed discussion on the
differences in EPA's authorities under RCRA subtitle C and subtitle D.)
    Under one such approach, wet-handled CCRs--that is, those CCRs
managed in surface impoundments or similar management units--would be
regulated as a hazardous or special waste under RCRA subtitle C, while
dry handled CCRs--that is, those CCRs managed in landfills--would be
regulated under RCRA subtitle D. Wet-handled CCR wastes would be
regulated under the co-proposed subtitle C alternative described
earlier in the preamble (see section VI), while dry-handled CCRs would
be regulated under the co-proposed RCRA subtitle D alternative
described earlier in the preamble (see section IX). In addition, EPA
would retain the existing Bevill exemption for CCRs that are
beneficially used. Under this approach, EPA would establish modified
requirements for wet-handled CCRs, pursuant to RCRA 3004(x), as laid
out in the co-proposed subtitle C alternative.
    This approach would have many of the benefits of both of today's
co-proposed regulations. For example, this approach provides a high
degree of federal oversight, including permit requirements and
federally enforceable requirements, for surface impoundments and
similar units that manage wet CCRs. Based on the results of our ground
water risk assessment, it would also provide a higher level of
protection for those wastes whose method of management presents the
greatest risks (i.e., surface impoundments). On the other hand, dry
CCRs managed in landfills, while still presenting a risk if the CCRs
are not properly managed, clearly present a lower risk, according to
the risk assessment and, therefore, a subtitle D approach might be more
appropriate. Also, landfills that manage CCRs are unlikely to present a
risk of catastrophic failure, such as that posed by surface
impoundments that contain large volumes of wet-handled CCRs. EPA also
believes this approach could address the concerns of many commenters
who expressed their views that subtitle C regulations would overwhelm
off-site disposal capacity and would place a stigma on beneficial uses
of CCRs.
    Of course, this approach also shares the disadvantages of the
subtitle C approach, as it applies to surface impoundments, and of the
subtitle D approach, as it applies to landfills. For example, portions
of the rules applicable to surface impoundments would not become
enforceable until authorized states adopt the subtitle C regulations
and become authorized; and rules applicable to landfills would not be
directly federally enforceable. For a full discussion of the advantages
and disadvantages of the subtitle C and subtitle D options see sections
VI and IX.
    Under another approach considered by EPA, the Agency would issue
the proposed subtitle C regulations, but they would not go into effect
for some time

period, such as three years, as an example, after promulgation. The
rule would include a condition that would exclude CCRs from regulation
under subtitle C of RCRA in states that: (l) Had developed final
enforceable subtitle D regulations that are protective of human health
and the environment,\170\ (2) had submitted those regulations to EPA
for review within two years after the promulgation date of EPA's
subtitle C rule, and (3) EPA had approved within one year, through a
process allowing for notice and comment, possibly comparable to the
current MSW subtitle D approval process. If a state failed to develop
such a program within the two year timeframe for state adoption of the
regulations or if EPA did not approve a state program within the one-
year timeframe for state approval, the hazardous waste or special waste
listing would become effective. Under this alternative, each state
would be evaluated individually, which could lead to a situation where
CCRs were managed as hazardous or special wastes in certain states,
while in other states, they would be managed as non-hazardous wastes.
Such an approach could present some implementation issues, particularly
if CCRs were transported across state lines. In addition, EPA has
serious questions as to whether RCRA, as currently drafted, would allow
EPA to promulgate such a regulation. However, EPA solicits comments on
this option, both generally and with respect to the specific time
frames.
---------------------------------------------------------------------------

    \170\ Under this approach, EPA also would establish minimum
national standards that ensure that CCRs that are managed under the
``D'' regulations would be protective of human health and the
environment.
---------------------------------------------------------------------------

    Commenters also have suggested an approach similar to that proposed
for cement kiln dust (CKD) in an August 20, 1999 proposed rule (see 64
FR 45632 available at http://www.epa.gov/fedrgstr/EPA-WASTE/1999/
August/Day-20/f20546.htm). Under the CKD approach, the Agency would
establish detailed management standards under subtitle D of RCRA. CCRs
managed in accordance with the standards would not be a hazardous or
special waste. However, CCRs that were in egregious violation of these
requirements, such as disposal in land-based disposal units that were
not monitored for groundwater releases or in new units built without
liners, would be considered listed hazardous or special waste and
subject to the tailored subtitle C requirements. (EPA is soliciting
comment on this approach because commenters have suggested it;
interested commenters may wish to consult the CKD proposal for more
detail on how it would work. See 64 FR 45632 available at http://
www.epa.gov/epawaste/nonhaz/industrial/special/ckd/ckd/ckd-fr.pdf).
Like the previous approach, EPA is evaluating (and in fact is re-
evaluating) this approach, and whether RCRA provides EPA the authority
to promulgate such a rule.
    Other commenters suggested yet another approach whereby EPA would
regulate CCRs going for disposal under RCRA subtitle C, but they assert
that EPA would not have to specifically list CCR as a hazardous waste
using the criteria established in 40 CFR 261.11. These commenters
believe that RCRA Sec.  3001(b)(3)(A) (the so-called Bevill Amendment)
authorizes the Agency to regulate CCRs under subtitle C as long as the
Agency determines that subtitle C regulation is warranted based on the
consideration of the eight factors identified in RCRA Sec.  8002(n).
The commenters analysis of their approach is set forth in a memorandum
submitted to the Agency and is in the docket for today's notice. EPA
has not adopted the commenters suggested reading of the statute, but
solicits comments on it. (See ``EPA Has Clear Authority to Regulate CCW
under RCRA's Subtitle C without Making a Formal Listing
Determination,'' White Paper from Eric Schaeffer, Environmental
Integrity Project which is available in the docket for this proposal.)
    Finally, some commenters have suggested that EPA not promulgate any
standards, whether it be RCRA subtitle C or D, but continue to rely on
the states to regulate CCRs under their existing or new state
authority, and that EPA could rely on RCRA section 7003 (imminent and
substantial endangerment) authority, to the extent the Agency had
information that a problem existed that it needed to address. The
Agency does not believe that such an approach is at all acceptable, and
that national regulations whether it be under RCRA subtitle C or D
needs to be promulgated. First, RCRA was designed as a preventative
statute and not one where EPA would get involved only after a problem
has been discovered. Thus, such an approach would not be consistent
with the purpose and objectives of RCRA. In addition, this approach
would basically implement the status quo--that is, the control of CCRs
over the last decade, which the Agency believes has not shown to be at
all acceptable. Furthermore, imminent and substantial endangerment
authority is facility-specific and resource intensive. That is, such
authority can only be used when EPA has sufficient information to
determine that disposal of CCRs are contributing to an imminent and
substantial endangerment. Thus, relying on this authority, without
national regulations, is poorly suited to address the many problems
that have occurred, and are likely to occur in the future.
Nevertheless, the Agency solicits comment on such an approach.
    EPA solicits comments on all of the approaches discussed above. The
Agency is still considering all of these approaches, as well as our
legal authorities to promulgate them, and will continue to do so as we
move toward finalizing the regulations applicable to the disposal of
CCRs.

XIV. Is the EPA soliciting comments on specific issues?

    Throughout today's preamble, the Agency has identified many issues
for which it is soliciting comment along with supporting information
and data. In order to assist readers in providing EPA comments and
supporting information, in this section EPA is identifying many of the
major issues on which comments with supporting information and data are
requested.

Management of CCRs

     Whether regulatory approaches should be established
individually for the four Bevill CCR wastes (fly ash, bottom ash,
boiler slag, and FGD sludges) when destined for disposal.
     The extent to which the information currently available to
EPA reflects current industry practices at both older and new units.
     The regulatory approaches proposed in the notice and the
alternative approaches EPA is considering as discussed in Section XIII
of the preamble.
     The Agency has documented, through proven damage cases and
risk analyses, that the wet handling of CCRs in surface impoundments
poses higher risks to human health and the environment than the dry
handling of CCRs in landfills. EPA seeks comments on the standards
proposed in this notice to protect human health and the environment
from the wet handling of CCRs. For example, in light of the TVA
Kingston, Tennessee, and the Martins Creek, Pennsylvania CCR
impoundment failures, should the Agency require that owners or
operators of existing and new CCR surface impoundments submit emergency
response plans to the regulatory authority if wet handling of CCRs is
practiced?
     The degree to which coal refuse management practices have
changed and the impacts of those changes or, for

example, groundwater monitoring and the use of liners.
     Information and data on CCRs that are generated by non-
utility industries, such as volumes generated, characteristics of the
CCRs, and whether they are co-managed with other wastes generated by
the non-utility industry.

Risk Assessment

     Are there any additional data that are representative of
CCR constituents in surface impoundment or landfill leachate (from
literature, state files, industry or other sources) that EPA has not
identified and should be used in evaluating the risks presented by the
land disposal of CCRs?
     The screening analysis conducted to estimate risks from
fugitive CCR dust; data from any ambient air monitoring for particulate
matter that has been conducted; where air monitoring stations are
located near CCR landfills or surface impoundments; and information on
any techniques, such as wetting, compaction, or daily cover that are or
can be employed to reduce such exposures.
     Whether site-averaged porewater data used in model runs in
EPA's risk analyses are representative of leachate from surface
impoundments.
     Information and data regarding the existence of drinking
water wells that are down-gradient of CCR disposal units, any
monitoring data that exists on those monitoring wells and the potential
of these wells to be intercepted by surface water bodies.

Liners

     Whether, in addition to the flexibility provided by
section 3004(o)(2), regulations should also provide for alternative
liner designs based on, for example, a specific performance standard,
such as the performance standard in 40 CFR 258.40(a)(1), or a site
specific risk assessment, or a standard that the alternative liner,
such as a clay liner, was at least as effective as the composite liner.
     Whether clay liners designed to meet a 1 x 10-7
cm/sec hydraulic conductivity might perform differently in practice
than modeled in the risk assessment, including specific data on the
hydraulic conductivity of clay liners associated with CCR disposal
units.
     The effectiveness of such additives as organosilanes,
including any analyses that would reflect long-term performance of the
additives, as well as the appropriateness of a performance standard
that would allow the use of these additives in lieu of composite
liners.

Beneficial Use

     The growth and maturation of state beneficial use programs
and the growing recognition that the beneficial use of CCRs is a
critical component in strategies to reduce GHG emissions taking into
account the potentially changing composition of CCRs as a result of
improved air pollution controls and the new science on metals leaching.
     Information and data on the extent to which states request
and evaluate CCR characterization data prior to the beneficial use of
unencapsulated CCRs.
     The appropriate means of characterizing beneficial uses
that are both protective of human health and the environment and
provide benefits. EPA is also requesting information and data
demonstrating where the federal and state programs could improve on
being environmentally protective and, where states have, or are
developing, increasingly effective beneficial use programs.
     Whether certain uses of CCRs (e.g., uses involving
unencapsulated uses of CCRs) warrant tighter control and why such
tighter control is necessary.
     If EPA determines that regulations are needed for the
beneficial use of CCRs, should EPA consider removing the Bevill
exemption for such uses and regulate these uses under RCRA subtitle C,
develop regulations under RCRA subtitle D or some other statutory
authority, such as under the Toxic Substances Control Act?
     Whether it is necessary to define beneficial use better or
develop detailed guidance on the beneficial use of CCRs to ensure
protection of human health and the environment, including whether
certain unencapsulated beneficial uses should be prohibited.
     Whether the Agency should promulgate standards allowing
uses on the land, on a site-specific basis, based on site specific risk
assessments, taking into consideration the composition of CCRs, their
leaching potential under the range of conditions under which the CCRs
would be managed, and the context in which CCRs would be applied, such
as location, volume, rate of application, and proximity to water.
     If materials characterization is required, what type of
characterization is most appropriate? If the CCRs exceed the toxicity
characteristic at pH levels different from the TCLP, should they be
excluded from beneficial use? When are totals levels relevant?
     Whether EPA should fully develop a leaching assessment
tool in combination with the Draft SW-846 leaching test methods
described in Section I. F. 2 and other tools (e.g., USEPA's Industrial
Waste Management Evaluation Model (IWEM)) to aid prospective beneficial
users in calculating potential release rates over a specified period of
time for a range of management scenarios.
     Information and data relating to the agricultural use of
FGD gypsum, including the submission of historical data, taking into
account the impact of pH on leaching potential of metals, the variable
and changing nature of CCRs, and variable site conditions.
     Historically, EPA has proposed or imposed conditions on
other types of hazardous wastes used in a manner constituting disposal
(e.g., maximum application rates and risk-based concentration limits
for cement kiln dust used as a liming agent in agricultural
applications (see 64 FR 45639; August 20, 1999); maximum allowable
total concentrations for non-nutritive and toxic metals in zinc
fertilizers produced from recycled hazardous secondary materials (see
67 FR 48393; July 24, 2002). Should EPA establish standards, such as
maximum/minimum thresholds, or rely on implementing states to impose
CCR site-specific limits based on front-end characterization that
ensures individual beneficial uses remain protective?
     Whether additional beneficial uses of CCRs have been
established, since the May 2000 Regulatory Determination, that have not
been discussed elsewhere in today's preamble. The Agency solicits
comment on any new uses of CCR, as well as the information and data
which support that CCRs are beneficially used in an environmentally
sound manner.
     Whether there are incentives that could be provided that
would increase the amount of CCRs that are beneficially used and
comment on specific incentives that EPA could adopt that would further
encourage the beneficial use of CCRs.
     Information and data on the best means for estimating
current and future quantities and changes in the beneficial use of
CCRs, as well as on the price elasticity of CCR applications in the
beneficial use market.

Stigma

     If EPA were to regulate CCRs as a ``special waste'' under
subtitle C of RCRA, and stigma turns out to be an issue, suggestions on
methods by which the Agency could reduce any stigmatic impact that
might indirectly arise. We are seeking information on actual instances
where ``stigma'' has adversely affected the beneficial use of CCRs and
the causes of these adverse effects.
     The issue of ``stigma'' and its impact on beneficial uses
of CCRs, including

more specifics on the potential for procedural difficulties for state
programs, and measures that EPA might adopt to try to mitigate these
effects.
     For those commenters who argue that regulating CCRs under
subtitle C of RCRA would raise liability issues, EPA requests that
commenters describe the types of liability and the basis/data/
information on which these claims are based.
     EPA furthermore welcomes ideas on how to best estimate
these effects for purposes of conducting regulatory impact analysis,
and requests any data or methods that would assist in this effort.

Today's Co-Proposed Regulations

General
     Some commenters have suggested that EPA not promulgate any
standards, whether they be RCRA subtitle C or D, but continue to rely
on the states to regulate CCRs under their existing or new state
authorities. The Agency solicits comment on such an approach, including
how such an approach would be protective of human health and the
environment.
RCRA Subtitle C Regulations
     Whether EPA should modify the corrective action
requirements for facility-wide corrective action under the subtitle C
co-proposal under the authority of section 3004(x) of RCRA. If so, how
such modification would be protective of human health and the
environment.
     Pursuant to RCRA section 3010 and 40 CFR 270.1(b),
facilities managing these special wastes subject to RCRA subtitle C
must notify EPA of their waste management activities within 90 days
after the wastes are identified or listed as a special waste. The
Agency is proposing to waive this notification requirement for persons
who handle CCRs and have already: (1) notified EPA that they manage
hazardous wastes, and (2) received an EPA identification number. Should
such persons be required to re-notify the Agency that they generate,
transport, treat, store or dispose of CCRs?
     Representatives of the utility industry have stated their
view that CCRs cannot be practically or cost effectively managed under
the existing RCRA subtitle C storage standards, and that these
standards impose significant costs without meaningful benefits when
applied specifically to CCRs. Comments are solicited on the
practicality of the proposed subtitle C storage requirements for CCRs,
the workability of the existing variance process allowing alternatives
to secondary containment, and the alternative requirements based, for
example, on the mining and mineral processing waste storage
requirements.
RCRA Subtitle D Regulations
     EPA broadly solicits comment on the approach of relying on
certifications by independent registered professional hydrologists or
engineers of the adequacy of actions taken at coal-fired utilities to
design and operate safe waste management systems.
     The Agency does not have specific data showing the number
of CCR landfills located in fault areas where movement along Holocene
faults is common, and the distance between these units and the active
faults and, thus, is unable to precisely estimate the number of these
existing CCR landfills that would not meet today's proposed fault area
restrictions. Additional information regarding the extent to which
existing landfills are currently located in such locations is
solicited.
     In general, EPA believes that a 200-foot buffer zone is
necessary to protect engineered structures from seismic damages and
also expects that the 200-foot buffer is appropriate for CCR surface
impoundments. The Agency seeks comment and data on whether the buffer
zone should be greater for surface impoundments.
     Additional information regarding the extent to which
landfill capacity would be affected by applying the proposed subtitle D
location restrictions to existing CCR landfills.
     The proposed location requirements do not reflect a
complete prohibition on siting facilities in areas of concern, but
provide a performance standard that facilities must meet in order to
site a unit in such a location. Information on the extent to which
facilities could comply with the proposed performance standards, and
the necessary costs that would be incurred to retrofit CCR disposal
units to meet these standards is solicited.
     The proposed definition of seismic impact zones and
whether there are variants that could lessen the burden on the industry
and the geographic areas covered by the proposed definition.
     Whether the subtitle D option, if promulgated, should
allow facilities to use alternative designs for new disposal units, so
long as the owner or operator of a unit could obtain certification from
an independent registered professional engineer or hydrologist that the
alternative design would ensure that the appropriate concentration
values for a set of constituents typical of CCRs will not be exceeded
in the uppermost aquifer at the relevant point of compliance (i.e., 150
meters from the unit boundary down gradient from the unit, or the
property boundary if the point of compliance is beyond the property
boundary).
     Whether there could be homeland security implications with
the requirement to post information on an internet site and whether
posting certain information on the internet may duplicate information
that is already available to the public through the State.
     Whether the subtitle ``D prime'' option is protective of
human health and the environment.
     EPA is proposing that existing CCR landfills and surface
impoundments that cannot make a showing that a CCR landfill or surface
impoundment can be operated safely in a floodplain or unstable area
must close within five years after the effective date of the rule. EPA
solicits comment on the appropriate amount of time necessary to meet
this requirement, as well as measures that could help to address the
potential for inadequate disposal capacity.
     The effectiveness of annual surface impoundment
assessments in ensuring the structural integrity of CCR surface
impoundments over the long term.

Surface Impoundment Closeout

     Whether the Agency should provide for a variance process
allowing some surface impoundments that manage wet-handled CCRs to
remain in operation because they present minimal risk to groundwater
(e.g., because they have a composite liner) and minimal risk of a
catastrophic release (e.g., as indicated by a low or less than low
potential hazard rating under the Federal Guidelines for Dam Safety
established by the Federal Emergency Management Agency).

Surface Impoundment Stability

     The adequacy of EPA's proposals to address surface
impoundment integrity under RCRA.
     Whether to address all CCR impoundments for stability,
regardless of height and storage volume; whether to use the cut-offs in
the MSHA regulations; or whether other regulations, approaches, or size
cut-offs should be used. If commenters believe that other regulations
or different size cut-offs should be adopted, we request that
commenters provide the basis and technical support for their position.
     Whether surface impoundment integrity should be addressed
under EPA's NPDES permit program, rather than the development of
regulations under RCRA, whether it be RCRA subtitles C or D.

Financial Assurance

     EPA broadly solicits comments on whether financial
assurance should be a key program element under a subtitle D approach,
if the decision is made to promulgate regulations under RCRA subtitle
D.
     Whether financial responsibility requirements under CERCLA
Sec.  108(b) should be a key Agency focus for ensuring that funds are
available for addressing the mismanagement of CCRs.
     How the financial assurance requirements might apply to
surface impoundments that cease receiving CCRs before the effective
date of the rule.
     Whether a financial test similar to that in 40 CFR
258.74(f) in the Criteria for Municipal Solid Waste Landfills should be
established for local governments that own and operate coal-fired power
plants.

State Programs

     Detailed information on current and past individual state
regulatory and non-regulatory approaches taken to ensure the safe
management of CCRs, not only under State waste authorities, but under
other authorities as well, including the implementation of those
approaches.
     The potential of federal regulations to cause disruption
to States' implementation of CCR regulatory programs under their own
authorities, including more specifics on the potential for procedural
difficulties for State programs, and measures that EPA might adopt to
try to mitigate these effects.

Damage Cases

     EPRI's report and additional data regarding the proven
damage cases identified by EPA, especially the degree to which there
was off-site contamination.
     The report of additional damage cases submitted to EPA on
February 24, 2010 by the Environmental Integrity Project and
EarthJustice.

Regulatory Impact Analysis

     Data and findings presented in the RIA, as well as on the
cost and benefit estimation uncertainty factors identified in the RIA.
     Data on the costs of converting coal fired power plants
from wet handling to dry handling with respect to the various air
pollution controls, transportation systems, disposal units, and other
heterogeneous factors.
     Relevant RCRA corrective actions and related costs that
would be useful in characterizing the potential costs for future
actions.
     Information on other significant and catastrophic surface
impoundment releases of CCRs or other similar materials and cleanup
costs associated with these releases?
     Data on the costs of storage of CCRs in tanks or tank
systems, on pads, or in buildings.
     EPA has also quantified and monetized the benefits of this
rule to the extent possible based on available data and modeling tools,
but welcomes additional data that may be available that would assist
the Agency in expanding and refining our existing benefit estimates.

XV. Executive Orders and Laws Addressed in This Action

A. Executive Order 12866: Regulatory Planning and Review

    Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735,
October 4, 1993), this action is an ``economically significant
regulatory action'' because it is likely to have an annual effect on
the economy of $100 million or more (section 3(f)(1)). This
determination is based on the regulatory cost estimates provided in
EPA's ``Regulatory Impact Analysis'' (RIA) which is available in the
docket for this proposal. The RIA estimated regulatory implementation
and compliance costs, benefits and net benefits for a number of
regulatory options, including a subtitle C ``special waste'' option, a
subtitle D option and, a subtitle ``D prime'' option. The subtitle D
prime option was briefly described in the Preamble and is more fully
discussed in the RIA to the co-proposal. On an average annualized
basis, the estimated regulatory compliance costs for the three options
in today's proposed action are $1,474 million (subtitle C special
waste), $587 million (subtitle D), and $236 million (subtitle ``D
prime'') per year. On an average annualized basis, the estimated
regulatory benefits for the three options in today's proposed action
are $6,320 to $7,405 million (subtitle C special waste), $2,533 to
$3,026 million (subtitle D), and $1,023 to $1,268 million (subtitle ``D
prime'') per year. On an average annualized basis, the estimated
regulatory net benefits for the three options in today's proposed
action are $4,845 to $5,930 million (subtitle C special waste), $1,947
to $2,439 million (subtitle D), and $786 to $1,032 million (subtitle
``D prime'') per year. All options exceed $100 million in expected
future annual effect. Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under EO 12866, and
changes made in response to OMB recommendations are documented in the
docket for this proposal.

B. Paperwork Reduction Act

    The information collection requirements contained in this proposed
rule has been submitted for approval to the Office of Management and
Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
The Information Collection Request (ICR) document prepared by EPA has
been assigned EPA ICR number 1189.22.
    Today's action co-proposes two regulatory alternatives that would
regulate the disposal of CCRs under RCRA. The regulatory options
described in today's notice contain mandatory information collection
requirements. One of the regulatory options (subtitle C special waste
option) would also trigger mandatory emergency notification
requirements for releases of hazardous substances to the environment
under CERCLA and EPCRA. The labor hour burden and associated cost for
these requirements are estimated in the ICR ``Supporting Statement''
for today's proposed action. The Supporting Statement identifies and
estimates the burden for the following nine categories of information
collection: (the proposed options also contain other regulatory
requirements not listed here because they do not involve information
collection).

1. Groundwater monitoring
2. Post-closure groundwater monitoring
3. RCRA manifest cost (for subtitle C only)
4. Added cost of RCRA subtitle C permits for all offsite CCR landfills
5. Structural integrity inspections
6. RCRA facility-wide investigation (for subtitle C only)
7. RCRA TSDF hazardous waste disposal permit (for subtitle C only)
8. RCRA enforcement inspection (for subtitle C only)
9. Recordkeeping requirements

    Based on the same data and cost calculations applied in the
``Regulatory Impact Analysis'' (RIA) for today's action, but using the
burden estimation methods for ICRs, the ICR ``Supporting Statement''
estimates an average annual labor hour burden of 2.88 million hours for
the subtitle C ``special waste'' option and 1.38 million hours for both
the subtitle D and ``D prime'' options at an average annual cost of
$192.93 million for the subtitle C ``special waste'' option and $92.6
million for both the subtitle D options. One-time capital and hourly
costs are included in these estimates based on a three-year
annualization period. The estimated number of likely respondents (under
the options) ranges

from 90 to 495, depending on the information category enumerated above.
Burden is defined at 5 CFR 1320.3(b). An Agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
The OMB control numbers for EPA's regulations in 40 CFR are listed in
40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2009-0640. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after June 21, 2010, a comment to OMB is best assured of having its
full effect if OMB receives it by July 21, 2010. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the Agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities in the electric utility industry, small entity is defined as:
(1) A small fossil fuel electric utility plant as defined by NAICS code
221112 with a threshold of less than four million megawatt-hours of
electricity output generated per year (based on Small Business
Administration size standards); (2) a small governmental jurisdiction
that is a government based on municipalities with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
    EPA certifies that this action will not have a significant economic
impact on a substantial number of small entities (i.e., no SISNOSE).
EPA nonetheless continues to be interested in the potential impacts of
the proposed rule on small entities and welcomes comments on issues
related to such impacts, including our estimated count of small
entities that own the 495 electric utility plants covered by this rule.
This certification is based on the small business analysis contained in
the RIA for today's proposal, which contains the following findings and
estimates.
     The RIA identifies 495 electric utility plants likely
affected by the proposed rule, based on 2007 data. The RIA estimates
these 495 plants are owned by 200 entities consisting of 121 companies,
18 cooperative organizations, 60 state or local governmental
jurisdictions, and one Federal government Agency. The RIA estimates
that 51 of these 200 owner entities (i.e., 26%) may be classified as
small entities, consisting of 33 small municipal governments, 11 small
companies, 6 small cooperatives, plus 1 small county government.
     The RIA includes a set of higher cost estimates for the
regulatory options and the RFA evaluation is based on these estimates
and therefore overestimates potential impacts of our proposed
regulations. The RIA estimated that (a) None of the 51 small entities
may experience average annualized regulatory compliance costs of
greater than three percent of annual revenues, (b) one to five of the
51 small entities (i.e., 2% to 10%) may experience regulatory costs
greater than one percent of annual revenues, and (c) 46 to 50 of the
small entities (i.e., 90% to 98%) may experience regulatory costs less
than one percent of annual revenues. These percentages constitute the
basis for today's no-SISNOSE certification.
    As analyzed in the RIA, there are two electricity market factors
which may be expected to reduce or eliminate these potential revenue
impacts on small entities, as well as for the other owner entities for
the 495 plants:
     Electric utility plants have a mechanism to cover
operating cost increases via rate hike petitions to public utility
commissions in states which regulate public utilities, and via market
price increases in the 18 states (as of 2008) which have de-regulated
electric utilities, and
     The residential, commercial, industrial, and
transportation sector economic demand for (i.e., consumption of)
electricity is relatively price inelastic, which suggests that electric
utility plants may succeed in passing through most or all regulatory
costs to their electricity customers.
    However, because the Agency is sensitive to any potential impacts
its regulations may have on small entities, the Agency requests comment
on its analysis, and its finding that this action is not expected to
have a significant economic impact on a substantial number of small
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory actions on
State, local, and tribal governments and the private sector. This co-
proposal contains a Federal mandate that may result in expenditures of
$100 million or more for State, local, and tribal governments, in the
aggregate, or for the private sector, in any one year.
    The RIA includes a set of higher cost estimates for the regulatory
options and the UMRA evaluation is based on these estimates and
therefore overestimates the potential impacts of this co-proposal.
Accordingly, EPA has prepared under section 202 of the UMRA a ``Written
Statement'' (an appendix to the RIA) which is summarized below. Today's
co-proposal will likely affect 495 electric utility plants owned by an
estimated 200 entities, of which 139 private sector electric utility
companies and cooperatives may incur between $415 million to $1,999
million in future annual direct costs across the high-end options in
the RIA, which exceed the $100 million UMRA direct cost threshold under
each of the regulatory options. In addition, 60 entities are state or
local governments which may incur between $56 million to $97 million in
future annual direct costs across the regulatory options, the upper-end
of which is slightly under the $100 million UMRA direct cost threshold.
The remainder single entity is a Federal government Agency (i.e.,
Tennessee Valley Authority).
    Although the estimated annual direct cost on state or local
governments is less than the $100 million UMRA threshold, (a) because
the highest-cost regulatory option is only 3% less than the $100
million annual direct cost threshold, and (b) because there are a
number of uncertainty factors (as identified in the RIA) which could
result in regulatory costs being lower or higher than estimated, EPA
consulted with small governments according to EPA's UMRA interim small
government consultation

plan developed pursuant to section 203 of the UMRA. EPA's interim plan
provides for two types of possible small government input: technical
input and administrative input. According to this plan, and consistent
with section 204 of the UMRA, early in the process for developing
today's co-proposal, the Agency implemented a small government
consultation process consisting of two consultation components.
     A series of meetings in calendar year 2009 were held with
the purpose of acquiring small government technical input, including:
(1) A February 27 meeting with ASTSWMO's Coal Ash Workgroup
(Washington, DC); (2) a March 22-24 meeting with ECOS at their Spring
Meeting (Alexandria VA); (3) a April 15-16 meeting with ASTSWMO at
their Mid-Year Meeting (Columbus OH), (4) a May 12-13 meeting at the
EPA Region IV State Directors Meeting (Atlanta, GA), (5) a June 17-18
meeting at the ASTSWMO Solid Waste Managers Conference (New Orleans,
LA), (6) a July 21-23 meeting at ASTSWMO's Board of Directors Meeting
(Seattle, WA), and (7) an August 12 meeting at ASTSWMO's Hazardous
Waste Subcommittee Meeting (Washington, DC). ASTSWMO is an organization
with a mission to work closely with EPA to ensure that its state
government members are aware of the most current developments related
to their state waste management programs. ECOS is a national non-
profit, non-partisan association of state and territorial environmental
Agency leaders. As a result of these meetings, EPA received letters in
mid-2009 from 22 state governments, as well as a letter from ASTSWMO
expressing their stance on CCR disposal regulatory options.
    Letters were mailed on August 24, 2009 to the following 10
organizations representing state and local elected officials, to inform
them and seek their input for today's proposed rulemaking, as well as
to invite them to a meeting held on September 16, 2009 in Washington,
DC: (1) National Governors Association; (2) National Conference of
State Legislatures, (3) Council of State Governments, (4) National
League of Cities, (5) U.S. Conference of Mayors, (6) County Executives
of America, (7) National Association of Counties, (8) International
City/County Management Association, (9) National Association of Towns
and Townships, and (10) ECOS. These 10 organizations of elected state
and local officials are identified in EPA's November 2008 Federalism
guidance as the ``Big 10'' organizations appropriate to contact for
purpose of consultation with elected officials. EPA has received
written comments from a number of these organizations and a copy of
their comments has been placed in the docket for this rulemaking. The
commenters express significant concerns with classifying CCRs as a
hazardous waste. Their major concerns are that federal regulation could
undercut or be duplicative of State regulations; that any federal
regulation will have a great impact on already limited State resources;
and that such a rule would have a negative effect on beneficial use. A
number of commenters also raise the issue of the cost to their
facilities of a subtitle C rule, particularly increased disposal costs
and the potential shortage of hazardous waste disposal capacity.
    Consistent with section 205 of UMRA, EPA identified and considered
a reasonable number of regulatory alternatives. Today's proposed rule
identifies a number of regulatory options, and EPA's RIA estimates that
the average annual direct cost to industry across the three originally
considered options (e.g. as reflected in the RIA in Exhibit 7L) may
range between $415 million to $1,999 million. Section 205 of the UMRA
requires Federal agencies to select the least costly or most cost-
effective regulatory alternative unless the Agency publishes with the
final rule an explanation of why such alternative was not adopted. We
are co-proposing two regulatory options in today's notice involving
RCRA subtitle C ``special waste'' and subtitle D. The justification for
co-proposing the higher-cost options is that this provides for greater
benefits and protection of public health and the environment by phasing
out surface impoundments, compared to the lower cost subtitle D prime
option.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    Under Executive Order 13132, EPA may not issue a regulation that
has federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation.
    EPA has concluded that this proposed rule may have federalism
implications, because it may impose substantial direct compliance costs
on State or local governments, and the Federal government may not
provide the funds necessary to pay those costs. Accordingly, EPA
provides the following federalism summary impact statement as required
by section 6(b) of Executive Order 13132.
    The RIA includes a set of higher cost estimates for the regulatory
options and the Federalism evaluation is based on these estimates and,
therefore, overestimates the potential impacts of our proposal.
    Based on the estimates in EPA's RIA for today's action, the
proposed regulatory options, if promulgated, may have federalism
implications because the options may impose between $56 million to $97
million in annual direct compliance costs on 60 state or local
governments. These 60 state and local governments consist of 33 small
municipal government jurisdictions, 19 non-small municipal government
jurisdictions, 7 state government jurisdictions, and one county
government jurisdiction. In addition, the 48 state governments with
RCRA-authorized programs for the proposed regulatory options may incur
between $0.05 million to over $5.4 million in added annual
administrative costs involving the 495 electric utility plants for
reviewing and enforcing the various requirements. Based on these
estimates, the expected annual cost to state and local governments for
at least one of the regulatory options described in today's notice
exceeds the $25 million per year ``substantial compliance cost''
threshold defined in section 1.2(A)(1) of EPA's November 2008
``Guidance on Executive Order 13132: Federalism.'' In developing the
regulatory options described in today's notice, EPA consulted with 10
national organizations representing state and local elected officials
to ensure meaningful and timely input by state/local governments,
consisting of two consultation components, which is described under the
UMRA Executive Order discussion.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this co-

proposal from elected State and local government officials.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175 (65 FR 67249-67252, November 9, 2000)
requires Federal agencies to provide funds to tribes, consult with
tribes, and to conduct a tribal summary impact statement, for
regulations and other actions which are expected to impose substantial
direct compliance costs on one or more Indian tribal governments.
Today's co-proposal, whether under subtitle C or subtitle D authority,
is likely to impose direct compliance costs on an estimated 495 coal-
fired electric utility plants. This estimated plant count is based on
operating plants according to the most recent (2007) data available as
of mid-2009 from the DOE's Energy Information Administration ``Existing
Generating Units in the United States by State, Company and Plant
2007.'' Based on information published by the Center for Media and
Democracy,\171\ three of the 495 plants are located on tribal lands,
but are not owned by tribal governments: (1) Navajo Generating Station
in Coconino County, Arizona owned by the Salt River Project; (2)
Bonanza Power Plant in Uintah County, Utah owned by the Deseret
Generation and Transmission Cooperative; and (3) Four Corners Power
Plant in San Juan County, New Mexico owned by the Arizona Public
Service Company. The Navajo Generating Station and the Four Corners
Power Plant are on lands belonging to the Navajo Nation, while the
Bonanza Power Plant is located on the Uintah and Ouray Reservation of
the Ute Indian Tribe. According to this same information source, there
is one additional coal-fired electric utility plant planned for
construction on Navajo Nation tribal land near Farmington, New Mexico,
but to be owned by a non-tribal entity (the Desert Rock Energy Facility
to be owned by the Desert Rock Energy Company, a Sithe Global Power
subsidiary). Because none of the 495 plants are owned by tribal
governments, this action does not have tribal implications as specified
in Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action. EPA solicits comment on the accuracy of the information
used for this determination. EPA met with a Tribal President, whose
Tribe owns a cement plant, and who was concerned about the adverse
impact of designating coal combustion residuals as a hazardous waste
and the effect that a hazardous waste designation would have on the
plant's business. We assured the Tribal President that we are aware of
the ``stigma'' concerns related to a hazardous waste listing and will
be analyzing that issue throughout the rulemaking process.
---------------------------------------------------------------------------

    \171\ The Center for Media and Democracy (CMD) was founded in
1993 as an independent, non-profit, non-partisan, public interest
organization. Information about electric utility plants located on
tribal lands is from CMD's SourceWatch Encyclopedia at: http://
www.sourcewatch.org/index.php?title=Coal_and_Native_American_
tribal_lands.
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G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks

    Executive Order (EO) 13045 (62 FR 19885, April 23, 1997)
establishes federal executive policy on children's health and safety
risks. Its main provision directs federal agencies, to the greatest
extent practicable and permitted by law, to make it a high priority to
identify and assess environmental health risks and safety risks that
may disproportionately affect children in the United States. EPA has
conducted a risk assessment which includes evaluation of child exposure
scenarios, as well as has evaluated Census child population data
surrounding the 495 plants affected by today's co-proposal, because
today's action meets both of the two criteria for ``covered regulatory
actions'' defined by Section 2-202 of EO 13045: (a) today's co-proposal
is expected to be an ``economically significant'' regulatory action as
defined by EO 12866, and (b) based on the risk analysis discussed
elsewhere in today's notice, the environmental and safety hazards
addressed by this action may have a disproportionate effect on
children.
    For each covered regulatory action, such as today's action, Section
5 of EO 13045 requires federal agencies (a) to evaluate the
environmental health or safety effects of the planned regulation on
children, and (b) to explain why the planned regulation is preferable
to other potentially effective and reasonably feasible alternatives
considered by the Agency. The remainder of this section below addresses
both of these requirements, as well as presents a summary of the human
health risk assessment findings with respect to child exposure
scenarios, and the results of the child demographic data evaluation.
G1. Evaluation of Environmental Health and Safety Effects on Children
    EPA conducted a risk evaluation consisting of two steps, focusing
on environmental and health effects to adults and to children that may
occur due to groundwater contamination. The first step, conducted in
2002, was a screening effort targeting selected hazardous chemical
constituents that appeared to be the most likely to pose risks. The
second step, conducted between 2003 and 2009, consisted of more
detailed ``probabilistic'' modeling for those constituents identified
in the screening as needing further evaluation. Constituents that may
cause either cancer or non-cancer effects in humans (i.e., both adults
and children) were evaluated under modeling scenarios where they
migrate from a CCR landfill or surface impoundment toward a drinking
water well or nearby surface water body, and where humans ingest the
constituents either by drinking the contaminated groundwater or by
eating fish caught in surface water bodies affected by the contaminated
groundwater.
    As described elsewhere in today's notice, EPA found that for the
non-cancer health effects in the groundwater-to-drinking-water pathway
and in the fish consumption pathways evaluated in the probabilistic
modeling, children rather than adults had the higher exposures. This
result stems from the fact that while at a given exposure point (e.g.,
a drinking water well located a certain distance and direction down-
gradient from the landfill or surface impoundment), the modeled
groundwater concentration is the same regardless of whether the
receptor is an adult or a child. Thus the other variables in the
exposure equations (that relate drinking water intakes or fish
consumption rates and body weight to a daily ``dose'' of the
constituent) mean that, on a per-kilogram-body-weight basis, children
are exposed to higher levels of constituents than adults.
G2. Evaluation of Children's Population Census Data Surrounding
Affected Electric Utility Plants
    The RIA for today's co-proposal contains an evaluation of whether
children may disproportionately live near the 495 electric utility
plants potentially affected by this rulemaking. This demographic data
analysis is supplemental to and separate from the risk assessment
summarized above. To make this determination, the RIA compares Census
demographic data on child populations residing near each of the 495
affected plants, to statewide children population data. The results of
that evaluation are summarized here.
     Of the 495 electric utility plants, 383 of the plants
(77%) operate CCR disposal units on-site (i.e., onsite landfills or
onsite surface

impoundments), 84 electric utility plants solely transport CCRs to
offsite disposal units operated by other companies (e.g., commercial
waste management companies), and 28 other electric utility plants
generate CCRs that are solely beneficially used rather than disposed.
Child demographic data is evaluated in the RIA for all 495 plants
because some regulatory options could affect the future CCR management
method (i.e., disposal versus beneficial use) for some plants.
     The RIA provides three complementary approaches to
comparison of child populations surrounding the 495 plants to statewide
child population data: (a) Plant-by-plant comparison basis, (b) state-
by-state aggregation comparison basis, and (c) nationwide total
comparison basis. There are year 2000 Census data for 464 (94%) of the
495 electric utility plants which the RIA used for these comparisons
and extrapolated to all 495 plants. Statewide children population
benchmark percentages range from 21.5% (Maine) to 30.9% (Utah), with a
nationwide average of 24.7%.
     For purpose of determining the relative degree by which
children may exceed these statewide percentages, the percentages are
not only compared in absolute terms, but also compared as a numerical
ratio whereby a ratio of 1.00 indicates that the child population
percentage living near an electric utility plant is equal to the
statewide average, a ratio greater than 1.00 indicates the child
population percentage near the electric utility plant is higher than
the statewide population, and a ratio less than 1.00 indicates the
child population is less than the respective statewide average.
     Using the plant-by-plant basis, 310 electric utility
plants (63%) have surrounding child populations which exceed their
statewide children benchmark percentages, whereas 185 of the electric
utility plants (37%) have children populations below their statewide