The consequence of this interpretation is that, for example, no
permit would be required if, after the rule's effective date, a
facility neither continued to accept the listed wastes for disposal,
nor continued to ``manage the wastes'' in the existing unit. In other
words, under this interpretation, facility owners could abandon the
unit before the effective date of the rule without incurring any
regulatory obligations under RCRA subtitle C (presuming no other
regulated unit is present on-site).
    Given the particularly significant risk associated with CCR
impoundments described above, as well as the fact that these risks are
primarily driven by the existing disposal units, EPA believes a broader
interpretation of disposal is appropriate in this case. This is
reinforced by the fact that the continued release of constituents to
surrounding soil and groundwater through the continued infiltration of
precipitation through inappropriately closed CCR impoundments (or
failure to remove the impoundment waters, which provides a hydraulic
head) properly constitute regulatory disposal in this specific
situation.
    As a practical matter, EPA believes that owners of facilities where
CCRs are managed in existing surface impoundments being brought under
RCRA subtitle C by today's proposal would choose not to, or would not
be able to, comply with either of these alternatives (i.e., retrofit or
clean closure), given the size of the units and the volume of CCRs
involved. Therefore, EPA believes that the section 3005(j)
requirements, for all practical purposes, will have the effect of
requiring the closure of existing surface impoundments receiving CCRs
within four years of the effective date of today's proposed rule
(unless they already meet the liner requirements).\130\
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    \130\ The HSWA surface impoundment retrofit requirements, as
they applied to impoundments in existence at the time RCRA was
amended in 1984, went into effect in 1988. EPA is not aware of any
facility owner/operator managing an existing surface impoundment at
the time who chose to retrofit its impoundment, rather than to close
it. EPA believes facilities managing surface impoundments today,
will similarly choose to close the surface impoundment rather than
retrofit.
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    Section 3004(x), however, gives EPA the authority to modify section
3005(j) requirements, if the specific criteria listed in that section
are met. In today's notice, EPA is proposing to modify the time
required for retrofitting surface impoundments under section 3005(j),
because of the special characteristics (i.e., extremely large volumes)
of CCRs and the practical difficulties associated with requiring
facilities to cease to store CCRs within four years of the effective
date of today's rule.
    Therefore, EPA is proposing to modify the section 3005(j)
requirements by extending the time limit for unit closure. The modified
standard in today's proposal would require facilities operating surface
impoundments that do not meet minimum technology

requirements and are receiving CCRs to stop receiving those CCRs no
later than five years after the effective date of the final regulation
and to close the unit within two years after that date. In other words,
the time required for closure would be up to seven years rather than
four years.
    EPA believes that the four-year deadline in RCRA section 3005(j)
receiving CCRs will be extraordinarily difficult if not impossible for
many facilities to meet, given the size of the units and limitations in
available alternative subtitle C disposal capacity. Facility owners
choosing to close surface impoundments may have to make significant
engineering and process changes, e.g., to convert from wet- to dry-
handling of wastes, which cannot necessarily be accomplished within
four years. For example, USWAG has raised concerns that there is
limited manufacturing capacity for key conversion equipment, which
could reasonably be expected to complicate the utilities' ability to
collectively make the necessary engineering changes within a four-year
timeframe. An additional consideration is that EPA expects that many
facilities would need to obtain permits for new units or find
alternative subtitle C capacity to receive the wastes diverted from
surface impoundments. Also, facilities that use surface impoundments
receiving CCRs to manage stormwater and nonhazardous wastewater will
have to site and get permits for new stormwater management units before
facility owners can cease utilizing existing units. The amount of time
to achieve either of these alternatives relies, to some extent, on
events beyond the facility's control; for example, the timeframes to
obtain a permit for a new unit can vary substantially and, in large
measure, are ultimately dictated by the permitting authority, rather
than the applicant. This may be further complicated by the fact that
location standards or on-site space limitations can restrict the
opportunity for siting new units at the generating facility, requiring
utilities to find off-site disposal facilities able to receive the
special waste in the volumes in question.
    In the 1984 amendments, Congress only allowed surface impoundments
four years to cease receiving hazardous waste (or comply with minimum
technological design requirements, etc.). Given the enormously greater
volume of waste involved with CCR surface impoundments and the process
changes that the facilities will need to implement to convert to dry
handling, EPA believes it not practicable to require surface
impoundments to cease receiving CCR waste or comply with the minimum
technological requirements four years and that additional time is
appropriate. (As noted below, facilities in most states will have
significantly more time for planning, because the rules will not become
effective in states authorized for the RCRA program before those states
have amended their requirements consistent with today's rule; the state
regulatory process will likely take several years.) On the other hand,
as the risks predicted in the risk assessment are extraordinarily high
(up to 2 x 10-2), EPA believes that closure within the
shortest practicable time is important.
    Any modifications of section 3005(j) must meet the section 3004(x)
stricture that the modification must still ``assure protection of human
health and the environment (42 U.S.C. 6924(x).'' EPA believes that
allowing three additional years for closure, under today's proposal,
would be protective because surface impoundments subject to the closure
requirements would be required (during this interim period) to have
groundwater monitoring systems sufficient to detect releases of
hazardous constituents into the groundwater, and take corrective action
where releases were detected above drinking water levels.\131\
Additionally, the median number of years until peak well water
concentrations are reached for selenium and arsenic are estimated at 74
and 78 years, respectively, for unlined surface impoundments and 90 and
110 years, respectively, for clay-lined surface impoundments, reducing
the likely risks posed over this five-year period.
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    \131\ The Agency is also modifying the requirement that surface
impoundments be dredged annually, based on RCRA section 3004(x).
This is discussed in detail in section v (Proposed Land Disposal
Restrictions) below.
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    In addition, although not directly relevant to leaching from these
surface impoundments, we would also note (as described previously in
this section) that the facility would be required to have an
independent registered professional engineer certify that design of the
impoundment is in accordance with recognized and generally accepted
good engineering practices (RAGAGEP) \132\ for the maximum volume of
CCR slurry and wastewater that will be impounded therein, and that the
design and management features ensure dam stability. Finally, the
facilities will be required to conduct weekly inspections to ensure
that any potentially hazardous condition or structural weakness will be
quickly identified. Therefore, the additional timeframe that EPA is
proposing to allow--needed to address practical realities--will
``assure protection of human health and the environment. While
groundwater monitoring, corrective action, and close oversight of these
units is not, we believe, the most appropriate long-term solution, we
do believe that these steps will protect public health and the
environment in the short term while the permanent solutions are being
implemented.
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    \132\ Recognized and generally accepted good engineering
practices (RAGAGEPs) are engineering, operation, or maintenance
activities based on established codes, standards, published
technical reports or recommended practices (RP) or a similar
document. RAGAGEPs detail generally approved ways to perform
specific engineering, inspection or mechanical integrity activities.
See http://www.osha.gov/OshDoc/Directive_pdf/CPL_03-00-010.pdf.
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    EPA recognizes that the costs of these requirements will be
significant, especially for existing surface impoundments and similar
units that handle wet CCRs. EPA also acknowledges that the date by
which impoundments have to close is an important issue, affecting the
costs of phase-out of wet handling and the ability of industry to
comply. USWAG has argued strenuously against a closure requirement in
the first place, and has asserted that, if such a requirement were
imposed, industry would require ten years to comply.\133\
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    \133\ In developing cost estimates for closing its surface
impoundments, TVA also assumed that the process would take place
over ten years.
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    EPA is not persuaded by these comments. We appreciate the cost
considerations but also believe it is important that these surface
impoundments cease receiving wet-handled CCRs and proceed to closure as
soon as practicable. The Agency believes that the time period proposed
today is sufficient to provide industry the time necessary to convert
from wet handling to dry handling of these wastes, close out existing
units, and find or put in place new disposal capacity for these wastes.
In addition, the Agency notes that TVA and other utilities have already
decided, or are being required by states, to close existing
impoundments, regardless of the requirements of today's proposed rule.
As a result, EPA believes today's proposal would have less effect than
industry commenters suggest because some facilities may be making these
changes anyway and they reflect best management practices in today's
environment. However, EPA solicits comments on whether seven years (5
years to cease receiving waste and 2 years to close) from the effective
date to implement these provisions is an achievable time for facilities
to comply.

EPA is interested in comments on procedural, as well as technical,
issues (e.g., time to allow permit modifications for new capacity or
EPA or state approval of closure plans). As stated earlier, EPA does
note that, in the 1984 amendments to RCRA, Congress required existing
hazardous waste surface impoundments without liners to retrofit within
four years if they are to continue operating. Congress also required
impoundments which place hazardous wastes into impoundments to either
treat the wastes first, or to use minimum technology impoundments,
including a requirement to dredge the impoundment annually. See
discussion of section 3005(j)(11) and implementing regulations above.
As a practical matter, this meant that all but a very few surface
impoundments ceased receiving hazardous wastes within this time period.
Thus, a requirement that surface impoundments cease receiving liquid
wastes in five years and close in seven years is consistent with
Congressional direction on appropriate time periods to phase out the
management of CCRs in surface impoundments. Further, as noted
previously, these specific requirements will not go into effect in most
cases until a state is authorized for this aspect of the RCRA program,
which normally takes from two to five years after the regulations
become federally effective (with some estimates as long as eight
years), giving facilities substantial advance notice. (See discussion
on when the rules become effective in section VII of this preamble.)
For commenters who suggest a longer time period is needed, EPA solicits
comment on how a longer time period would meet the section 3004(x) risk
standard.
    Whatever time period EPA selects, the Agency solicits comment on
whether it should include a provision that would allow the regulatory
Agency to provide additional time on a case-by-case basis because of
site-specific issues (e.g., particular technical difficulties or
equipment availability outside the utility's control, as well as
permitting delays). This provision might be modeled after the provision
of 40 CFR 264.112 and 265.112 (Amendment of Plans), allowing facilities
to delay closure of hazardous waste management units.
    Commenters have also stated that, while it may be appropriate to
require closure of most existing impoundments, some may be clearly
safe. For example, existing impoundments theoretically may already have
a composite liner, and present minimal threat of release (e.g., because
they are below grade or not far above grade). EPA solicits comment on
whether a variance process would be appropriate allowing some
impoundments or similar units that manage wet-handled CCRs to remain in
operation because they present minimal risk to groundwater (e.g.,
because they have a composite liner) and minimal risk of a catastrophic
release (e.g., as indicated by a low potential hazard rating under the
Federal Guidelines for Dam Safety established by the Federal Emergency
Management Agency). It should be noted that the statute already
provides such a mechanism in section 3005 (j)(4) and (5) (based on
making a so-called `no-migration' demonstration--evidently Congress'
view of what level of control is considered protective for hazardous
waste impoundments not utilizing minimum technology controls \134\) and
commenters should address whether this existing case-by-case mechanism
should be utilized here. In such cases, the wastes might also meet
current LDR treatment standards.
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    \134\ See RCRA section 3004 (d), (e), (f), and (g) all of which
define a land disposal unit as protective of human health and the
environment if ``it has been demonstrated to a reasonable degree of
certainty that there will be no migration of hazardous constituents
from the disposal unit * * * for as long as the wastes remain
hazardous''.
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v. Proposed Land Disposal Restrictions
    Through RCRA sections 3004 (d), (e), (f), and (g), Congress has
prohibited the land disposal of hazardous waste unless the waste meets
treatment standards established by EPA before the waste is disposed of,
or is disposed of in units from which there will be no migration of
hazardous constituents for as long as the waste remains hazardous. The
treatment standards may be either a treatment level or a specified
treatment method, and the treatment must substantially diminish the
toxicity of the waste or substantially reduce the likelihood of
migration of hazardous constituents from the waste so that short-term
and long-term threats to human health and the environment are minimized
(RCRA section 3004(m)). If the hazardous waste has been treated to the
level or by a method specified in the regulations (or if the waste as
generated meets the treatment standard), the waste is not subject to
any land disposal prohibition and may be disposed of in a land disposal
unit which meets the requirements of 40 CFR parts 264 or 265 (the
exception being for surface impoundments discussed in the preceding
subsection and further below). For hazardous wastes identified or
listed under RCRA section 3001 after the date of the 1984 amendments to
RCRA subtitle C (the situation here), EPA is required to determine
whether the waste shall be prohibited from one or more methods of land
disposal within six months after the date of such identification or
listing, and if EPA determines that one or more methods are prohibited,
the Agency is also required to specify treatment levels or methods of
treatment for the waste (RCRA section 3004(g)(4)).
    In an effort to make treatment standards as uniform as possible,
while adhering to the fundamental requirement that the standards must
minimize threats to human health and the environment before hazardous
wastes can be land disposed, EPA developed the Universal Treatment
Standards (UTS) (codified at 40 CFR 268.48). Under the UTS, whenever
technically and legally possible, the Agency adopts the same
technology-based numerical limit for a hazardous constituent regardless
of the type of hazardous waste in which the constituent is present. See
63 FR 28560 (May 26, 1998); 59 FR 47982 (September 19, 1994). The UTS,
in turn, reflect the performance of Best Demonstrated Available
Technologies (BDAT) of the constituents in question. These treatment
standards can be met by any type of treatment, other than impermissible
dilution, and wastes can satisfy the treatment standards as generated
(i.e., without being treated).
    As explained above, section 3004(x) of RCRA authorizes the EPA
Administrator to modify the requirements of sections (d), (e), (f), and
(g) of section 3004 for Bevill wastes, including CCRs that EPA
determines to regulate as hazardous, to take into account the special
characteristics of the wastes, the practical difficulties associated
with implementation of the requirements, and site-specific
characteristics, so long as such modified requirements assure
protection of human health and the environment.
    In conjunction with a proposed listing, EPA is proposing to
prohibit the land disposal of CCRs, unless they meet the applicable
treatment standards. In addition, although CCRs could be disposed of
without treatment in landfills and impoundments from which there will
be no migration of hazardous constituents for as long as the waste
remains hazardous, EPA doubts that such a unit exists, given the
volumes of CCRs and their many (documented) release pathways discussed
above. In any case, no-migration determinations are necessarily made on
a case-by-case basis, and the burden is on petitioners to show that
individual land disposal units satisfy the exacting standard. See 40
CFR section 268.6.

2. Proposed Treatment Standards for Non-Wastewaters (Dry CCRs)
    For non-wastewaters (i.e., dry CCRs), EPA is proposing that CCRs be
subject to the UTS. As EPA has found repeatedly, this standard reflects
the performance of Best Demonstrated Available Technology and so
satisfies the requirements of section 3004 (m) (see Hazardous Waste
Treatment Council v. EPA, 886 F. 2d 355, 363 (D.C. Cir. 1989)), and
also does not force treatment past the point at which threats to human
health and the environment are minimized (see 55 FR 6640, 6641-42 (Feb.
26, 1990)). These standards should be achievable by application of
various available technologies, although data \135\ indicate that a
great portion (if not virtually all) dry CCRs meet these standards as
generated.
---------------------------------------------------------------------------

    \135\ EPA's CCR constituent database which is available from the
docket to this proposal.
---------------------------------------------------------------------------

3. Proposed Treatment Standards for Wastewaters (Wet-Handled CCRs)

    EPA is also proposing standards for wastewater CCRs. As an initial
matter, EPA is proposing to adopt a specific and different definition
of wastewater for CCRs. Under the existing RCRA subtitle C rules, a
wastewater is defined as one that contains less than 1% by weight total
organic carbon (TOC) and less than 1% by weight total suspended solids
(i.e., the current wastewater definition for purposes of LDRs; see 40
CFR part 268.2 (f)). Functionally, the current definition of
wastewaters would not include slurried fly ash or slurried FGD from wet
air pollution control systems. EPA believes it important to distinguish
between nonwastewaters which involve dry coal ash and surface
impoundment systems which are commonly viewed as involving wastewaters.
EPA, therefore, is proposing to create the distinction between
wastewater and nonwastewater CCRs by classifying CCRs as wastewaters if
the moisture content of the waste exceeds 50%. Thus, if CCRs contain
more water than solids, the CCR would be classified as a wastewater,
and would be subject to the LDR treatment standard for wastewaters. By
proposing the criteria at 50% moisture, EPA believes new methods for
pumping and disposal of high solids material without free liquids are
still viable. EPA is proposing this definition to appropriately address
risks associated with CCRs surface impoundments, which contain free
liquids. However, the Agency requests comment on this alternative
definition of wastewaters for purposes of determining which treatment
standards the CCRs would be subject to.
    As part of the proposed treatment standard, EPA is proposing that
these wastewaters undergo solids removal so that the wastewaters
contain no greater than 100 mg/l total suspended solids (TSS) and meet
the UTS for wastewaters. This proposed level is consistent with
wastewater treatment requirements based on Best Practicable Control
Technology Currently Available for the Electric Power Generating Point
Source Category (40 CFR section 423.12).\136\ Solids separation is a
base level water pollution control technology, which assures that the
vast majority of coal ash and associated contaminants are removed and
managed in landfills.
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    \136\ Although TSS is not a hazardous constituent, it is a
reasonable surrogate of effective treatment performance here because
TSS necessarily contain the metal hazardous constituents which are
the object of treatment, and these metals will necessarily be
removed as TSS are removed. See e.g.; National Lime Ass'n v. EPA,
234 F. 3d 625, 639 (D.C. Cir. 2000) (even though particulate matter
is not a hazardous air pollutant, it can be used as a permissible
surrogate for treatment of hazardous air pollutant metals since
those metals are removed by treatment as PM is removed).
---------------------------------------------------------------------------

    EPA is proposing that wastewaters meet the UTS for wastewaters at
40 CFR section 268.48 as the treatment standard for the liquid
fraction. (The CCR solids removed from the wastewater stream would be a
non-wastewater and would be subject to the UTS for non-wastewaters.)
EPA believes dry disposal of the CCR solids will protect human health
and the environment. As previously discussed, this is borne out by the
results of the Agency's risk assessment and damage case assessments,
which show that wet disposal poses the greatest risks of contaminant
releases.
    The Agency believes the proposed treatment methods will diminish
the toxicity of the waste or substantially reduce the likelihood of
migration of toxic constituents from the waste so that short-term and
long-term threats to human health and the environment are minimized. If
finalized, EPA will add new treatment method codes to the table of
Technology Codes and Description of Technology-Based Standards at 40
CFR 268.42. EPA seeks comments on the proposed treatment standards.
4. Effective Date of the LDR Prohibitions
    Land disposal prohibitions are to be effective immediately unless
EPA finds that there is insufficient alternative protective treatment,
recovery or disposal capacity for the wastes. RCRA section 3004(h)(2).
National capacity variances can be for up to two years from the date of
the prohibition. During the duration of a national capacity variance,
the wastes do not require treatment in order to be land disposed. If
they are disposed of in a landfill or surface impoundment, however,
that unit must meet the minimum technology requirements of RCRA section
3004(o). RCRA section 3004 (h) and 40 CFR section 268.5 (h).\137\
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    \137\ EPA is also authorized to grant up to a one-year
extension, renewable for another year, of a prohibition effective
date on a case-by-case basis. RCRA section 3004 (h)(3). Applicants
must demonstrate that adequate alternative treatment, recovery, or
disposal capacity for the petitioners waste cannot reasonably be
made available by the effective date due to circumstances beyond the
applicant's control, and that the petitioner has entered into a
binding contractual commitment to construct or otherwise provide
such capacity. 40 CFR 268.5.
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    In this case, EPA is proposing that the prohibition and treatment
standards for nonwastewaters take effect within 6 months from the date
of promulgation of the listing of CCRs as a special waste. We are
proposing 6 months to allow time for owners and operators to set up
analytic capacity and record-keeping mechanisms for dry CCR wastes, as
well as for federal and state agencies to assure that implementation
mechanisms are in place. We are not allocating additional time for
treatment because our expectation is that all or virtually all dry CCRs
meet the proposed treatment standards as generated. However, EPA
solicits comment on this issue. EPA also notes that the proposed LDR
prohibition and treatment standards would not take effect until
programs in authorized states are authorized and the state implementing
rules take effect, so this proposal effectively is for the prohibition
and treatment standard requirement to take effect 6 months following
the conclusion of the authorization process and effective date of
authorized state rules. This should be ample time to come into
compliance.
    For wastewaters, however, under the authority of section 3004 (x),
we are proposing that the prohibition and treatment standards take
effect within five years of the prohibition. In practice, these
requirements will have the effect of prohibiting disposal of wet-
handled CCRs in surface impoundments after that date. The proposed date
for the wastewater treatment standards would thus be the same as the
proposed date that impoundments would stop receiving CCRs, and is being
proposed for many of the same reasons. Surface impoundments, of course,
are the land disposal units in which wastewaters are managed, so the
issues are necessarily connected. As discussed in section VI. B. above,
the statute allows owners and operators up to four years to retrofit
existing surface impoundments to meet

the minimum technology requirements (or to close such surface
impoundments), and EPA has interpreted this provision as applying to
treatment surface impoundments receiving hazardous wastes otherwise
prohibited from land disposal. See RCRA sections 3005 (j)(6) and 3005
(j)(11). As further explained above, EPA believes that an additional
three years is needed for owners and operators to close surface
impoundments--i.e. seven years in all--and is thus proposing a two year
national capacity variance (as provided in RCRA section 3004(h)(2)) and
a five year period for impoundment retrofitting yielding a seven year
extension.
    The legal basis for the proposal is 3004 (x) (which specifically
authorizes modification of the section 3005 (j) requirements). Section
3005 (j) (11) allows untreated wastewaters to be managed in surface
impoundments that do not meet the minimum technology requirements, but
requires that residues in the impoundment be dredged at least annually
for management elsewhere. Given the enormous volume of CCRs currently
managed in surface impoundments, estimated at 29.4 million tons per
year (within EPA's estimated range of 23.5 to 30.3 million tons for the
total available U.S. hazardous waste disposal capacity), and the
absence of alternative disposal capacity in the short-term, EPA
believes annual dredging is impractical and would defeat the purpose of
providing additional time to convert to the dry handling of CCRs.
Moreover, in this short time, the utilities will be working to convert
their processes to dry handling and it is not practicable or necessary
to impose this additional requirement. Finally, as discussed
previously, in the interim period before surface impoundments cease
taking waste and are closed, numerous safeguards will be in place to
protect public health and the environment, including ground water
monitoring and the requirement to act on any releases quickly. Thus,
while such measures are not a long-term solution, they will ``assure
protection of human health and the environment'' in the short-term.
    As this discussion clarifies, the issue of a national capacity
extension for CCR wastewaters is really an issue of how long it will
take to convert to dry handling and to find management capacity for
solids dredged from impoundments, i.e. issues arising under section
3005 (j)(11) of the statute. EPA, therefore, believes it has the
authority and that it is appropriate to use section 3004 (x) to extend
the national capacity period in order to convert to dry handling.\138\
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    \138\ EPA notes in addition that it is authorized under section
3004 (x) to modify the requirements of LDR prohibitions under
section 3004 (g), and EPA views capacity variances related to such
prohibitions as within the scope of that section 3004 (x)
authorization.
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    EPA is further proposing that during the national capacity variance
(the initial two years of the proposed two years plus five year
extension of otherwise-applicable requirements), CCR wastewaters could
continue to be managed in impoundments that do not meet the minimum
technology requirements. The reasons are identical to those allowing
such impoundments to receive CCRs for the remainder of the proposed
extension period.
    EPA solicits comment on these proposals, including comment on
whether further time extensions are actually needed in light of the
already extended time which will be afforded by the state authorization
process.

C. Applicability of Subtitle C Regulations

    The discussion in this section describes the existing technical
standards required in 40 CFR parts 264/265/267. However, persons who
generate and transport CCRs, under the subtitle C alternative, would
also be subject to the generator (40 CFR part 262) and transporter (40
CFR part 263) requirements. Although EPA presents this to provide the
public with background information as noted previously, EPA is not
proposing to modify these standards, nor to reopen the requirements.
    1. General Facility Requirements, including Location Restrictions.
Under the existing regulations, all of the following requirements would
apply: the general facility standards of 40 CFR parts 264/265/267
(Subpart B), the preparedness and prevention standards of 40 CFR parts
264/265/267 (Subpart C), the contingency plan and emergency procedures
of 40 CFR parts 264/265/267 (Subpart D), and the manifest system,
recordkeeping, and reporting requirements of 40 CFR parts 264/265/267
(Subpart E). Consistent with section 264.18, the regulations would
include location standards prohibiting the siting of new treatment,
storage, or disposal units in a 100-year floodplain (unless the
facility made a specific demonstration)\139\ and seismic impact areas
would be prohibited.\140\
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    \139\ A 100-year flood means a flood that as a one-percent or
greater chance of recurring in any given year or a flood of a
magnitude equaled or exceeded once in 100 years on the average over
a significantly long period.
    \140\ A seismic impact area means an area with a two percent or
greater probability that the maximum horizontal acceleration in
lithified earth material, expressed as a percentage of the earth's
gravitational pull (g), will exceed 0.10 g in 50 years. Note that in
the pre-1997 editions of the NEHRP (National Earthquake Hazards
Reduction Program) provisions, seismic hazards around the nation
were defined at a uniform 10 percent probability of exceedance in 50
years. Since the 1997 NEHRP Provisions, however, the seismic design
maps have been redefined such that for most regions of the nation,
the maximum considered earthquake ground motion is defined with
uniform probability of exceedance of 2 percent in 50 years. The
change in the exceedance probability (from 10% to 2%) was responsive
to comments that the use of 10 percent probability of exceedance in
50 years is not sufficiently conservative in the central and eastern
United States where earthquakes are expected to occur infrequently.
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    2. Ground water monitoring/corrective action for regulated units.
The subtitle C alternative to today's proposed rule would require the
current ground water monitoring and corrective action requirements of
40 CFR parts 264/265 for regulated landfills and surface impoundments,
without modification. Consistent with 40 CFR 265.90, existing CCR
disposal units would be required to install groundwater monitoring
systems within one year of the effective date of these regulations. The
facility would operate under the self-implementing interim status
requirements of 40 CFR part 265 until the regulatory authority imposed
the specific requirements of 40 CFR part 264 through the RCRA
permitting process. Generally, 40 CFR parts 264/265 require groundwater
monitoring systems that consist of enough wells, installed at
appropriate locations and depths, to yield ground water samples from
the uppermost aquifer that represent the quality of background
groundwater that has not been affected by leakage from the disposal
unit. A detection monitoring program would be required to detect
releases to groundwater of CCR constituents listed in the facility
permit (these constituents, we believe, would be the metals typically
identified as constituents of concern in CCRs). Monitoring frequency is
determined by the EPA Regional Administrator or, more typically the
authorized state, and required in the RCRA permit. If any of the
constituents listed in the facility permit are detected at levels that
constitute statistically significant evidence of contamination, the
owner or operator must initiate a compliance monitoring program to
determine whether the disposal units are in

compliance with the groundwater protection standards established by EPA
or the state and specified in the permit. (See 40 CFR part 264, subpart
F.)
    Under 40 CFR part 264, subpart F, if the results of the compliance
monitoring program indicate exceedances of any of the constituent
levels listed in the permit for the groundwater protection standard,
the owner or operator would have to initiate corrective action to
achieve compliance with the groundwater protection standards.
    3. Storage. EPA is not proposing to modify the existing 40 CFR
parts 264/265/267 storage standards. These regulations establish design
and operating requirements for containers, tanks, and buildings used to
treat or store hazardous wastes. For containers, the regulations
establish requirements for the storage of hazardous waste, including a
requirement for secondary containment. However, if the wastes do not
contain free liquids, they need not require a secondary containment
system, provided the storage area is sloped or is otherwise designed
and operated to drain and remove liquid resulting from precipitation or
the containers are elevated or otherwise protected from contact with
accumulated liquid.
    For new tanks, owners or operators must submit to EPA or the
authorized states an assessment certified by an independent registered
professional engineer that the foundation, structural support, seams,
connections, and pressure controls (if applicable) are adequately
designed and that the tank system has sufficient structural strength,
compatibility with the waste(s) to be stored or treated, and corrosion
protection to ensure that the tank will not collapse, rupture, or fail.
Tank systems are required to have secondary containment under section
264.193, unless they receive a specific variance; however, tanks that
contain no free liquids and are in buildings with an impermeable floor
do not require secondary containment. New tanks (that are required to
have secondary containment) must have secondary containment when
constructed; existing tanks (that are required to have secondary
containment) must come into compliance within two years of the rule's
effective date (or when the tank has reached fifteen years of age).
Section 264.193 specifically describes the secondary containment
required, and the variance process.
    Containment buildings must be completely enclosed with a floor,
walls, and a roof to prevent exposure to the elements (e.g.,
precipitation, wind, run-on), and to assure containment of the managed
wastes. Buildings must be designed so that they have sufficient
structural strength to prevent collapse or other failure, and all
surfaces to be in contact with hazardous wastes must be chemically
compatible with those wastes.
    Recently, representatives of the utility industry have stated their
view that CCRs cannot be practically or cost effectively managed under
the existing 40 CFR parts 264/265/267 storage standards, and that these
standards impose significant costs without meaningful benefits when
applied specifically to CCRs.\141\ In particular, they cite the very
large volume of wastes that must be handled on a daily basis, and the
extensive storage and other infrastructure already in place that might
have to be retrofitted if the existing 40 CFR parts 264/265/267 storage
requirements applied. For example, they state that some CCRs are stored
prior to disposal in silos which are not located within a building and
may contain free liquids. As a result, under the subtitle C
requirements, the owner or operator would be required to construct a
building with an impermeable floor, or construct a secondary
containment system around the silo (alternatively, they could go
through a variance process with the regulatory Agency).
---------------------------------------------------------------------------

    \141\ While the utility industry did not specifically mention
the 40 CFR part 267 storage standards, we presume that they would
make the same technical arguments with respect to those standards.
---------------------------------------------------------------------------

    EPA believes that the variance process allowing alternatives to
secondary containment would address the concerns raised by industry.
The Agency, however, recognizes that the variance process imposes time
and resource burdens not only on industry, but on the regulatory
agencies. EPA notes that, in the case of larger volume, higher toxicity
mineral processing materials being reclaimed, the Agency developed
special storage standards under RCRA subtitle C, and it solicits
comments on whether those or similar-type standards would be
appropriate for CCRs.\142\
---------------------------------------------------------------------------

    \142\ Land Disposal Restrictions Phase IV: Final Rule
Promulgating Treatment Standards for Metal Wastes and Mineral
Processing Wastes; Mineral Processing Secondary Materials and Bevill
Exclusion Issues; Treatment Standards for Hazardous Soils, and
Exclusion of Recycled Wood Preserving Wastewaters; Final Rule
(http://www.epa.gov/EPA-WASTE/1998/May/Day-26/f989.htm).
---------------------------------------------------------------------------

    Namely, in 40 CFR 261.4(a)(17), EPA required that tanks,
containers, and buildings handling this material must be free standing
and not a surface impoundment (as defined in the definitions section of
this proposal) and be manufactured of a material suitable for storage
of its contents. (While not specifically mentioned in this section, we
would also consider a requirement that such materials meet appropriate
specifications, such as those established either by the American
Society of Testing Materials (ASTM), the American Petroleum Institute
(API), or Underwriters Laboratories, Inc. (UL) standards.) Buildings
must be man-made structures and have floors constructed from non-
earthen materials, have walls, and have a roof suitable for diverting
rainwater away from the foundation. A building may also have doors or
removable sections to enable trucks or machines access.
    EPA solicits comments on the practicality of the proposed subtitle
C storage requirements for CCRs, the workability of the existing
variance process, and the alternative requirements based, for example,
on the mining and mineral processing wastes storage requirements. EPA
has not developed cost estimates for managing CCRs in compliance with
the 40 CFR parts 264/265/267 storage standards. EPA solicits specific
comments on these potential costs.
    4. Closure and Post-Closure Care. Under the RCRA subtitle C
alternative to this co-proposal, all of the requirements for closure
and post-closure care of landfills and surface impoundments would apply
to those landfills that continue to receive CCRs, or otherwise actively
manage them, and to those surface impoundments that have not completed
closure, when the requirements of a final rule become effective. The 40
CFR parts 264/265 landfill and surface impoundment requirements
establish cover requirements (e.g., the cover must have a permeability
less than or equal to the permeability of any bottom liner system and
must minimize the migration of liquids through the closed landfill).
These requirements are generally applied through a closure-plan or
permit approval process. Also, the regulations require 30 years of
post-closure care, including maintenance of the cap and ground-water
monitoring, unless an alternative post-closure period is established by
EPA or the authorized state.
    5. Corrective action. EPA is also not proposing to modify the
existing corrective action requirements, including the facility-wide
corrective action requirements of RCRA under section 3004(u), section
3008(h), and 40 CFR 264.101. Under these requirements, landfills that
continue to receive CCRs or otherwise actively manage them, and surface
impoundments that have not

completed closure on the date the final rule becomes effective, will be
requires to characterize, and as necessary remediate, releases of CCRs
or hazardous constituents. Section 3004(x) provides EPA the flexibility
to modify corrective action requirements for facilities managing CCRs,
including facility-wide corrective action (assuming EPA can reasonably
determine that an alternative is protective of human health and the
environment). The facility-wide corrective action requirement applies
to all solid waste management units from which there have been releases
of hazardous wastes or hazardous constituents; however, EPA does not
see a compelling reason to change the corrective action requirements.
Imposing corrective action requirements, including facility-wide
corrective action, will assure that closed and inactive units at the
facility are properly characterized and, if necessary, remediated,
especially since many of these closed or inactive units are unlined.
Nevertheless, EPA solicits comment on whether EPA should modify the
corrective action requirements under section 3004(x) of RCRA.
Commenters should specifically address the issue of how other
alternatives could be protective without mandating corrective action as
needed for all solid waste management units from which there have been
releases of hazardous waste or hazardous constituents at the facility.
    6. Financial assurance. EPA is also not proposing to modify the
existing financial assurance requirements at 40 CFR parts 264/265/267,
subpart H. Financial assurance must be adequate to cover the estimated
costs of closure and post-closure care (including facility-wide
corrective action, as needed), and specific levels of financial
assurance are required to cover liability for bodily injury and
property damage to third parties caused by sudden accidental
occurrences arising from operations of the facility. Allowable
financial assurance mechanisms are trust funds, surety bonds, letters
of credit, insurance policies, corporate guarantees, and demonstrations
and documentation that owners or operators of the facility have
sufficient assets to cover closure, post-closure care, and liability.
The regulations also require financial assurance for corrective action
under section 264.101.
    As we have estimated that 53 local governments own and operate
coal-fired electric utilities, EPA seeks comment on whether a financial
test similar to that in 40 CFR 258.74(f) in the Criteria for Municipal
Solid Waste Landfills should be established for local governments that
own and operate coal-fired power plants.
    7. Permitting requirements. Under the RCRA subtitle C alternative,
facilities that manage CCRs (in this case, facilities with landfills
and surface impoundments, and other possible management units used to
store or dispose of CCRs, or generating facilities that store CCRs
destined for off-site disposal) must obtain a permit from EPA or from
the authorized state. The effect of EPA's proposed listing would extend
these permitting requirements to those facilities managing special
wastes regulated under subtitle C of RCRA. Parts 124, 267 and 270
detail the specific procedures for the issuance and modification of
permits, including public participation, and through the permit process
regulatory agencies impose technical design and management standards of
40 CFR parts 264/267. Facilities with landfills that are in existence
on the effective date of the regulation (which in this case would
generally be the effective date of the state regulations establishing
the federal CCR requirements)--which receive CCRs or actively manage
CCRs--are eligible for ``interim status'' under federal regulations,
providing they comply with the requirements of 40 CFR section 270.70.
By contrast, facilities with surface impoundments that have not
completed closure as outlined in this proposal would be subject to the
existing permitting requirements, irrespective of whether they continue
to receive CCRs into the unit or to actively manage CCRs. While
facilities are in interim status, they are subject to the largely self-
implementing requirements of 40 CFR part 265. As noted previously, in a
final regulation, EPA would make conforming changes to these parts of
the CFR to make it clear that the requirements apply to facilities that
manage either hazardous wastes or special wastes regulated under
subtitle C.
    8. EPA is Not Proposing to Apply the Subtitle C Requirements to
CCRs from Certain On-Going State or Federally Required Cleanups. Under
the subtitle C alternative, the Agency is proposing to allow state or
federally-required cleanups commenced prior to the effective date of
the final rule to be completed in accordance with the requirements
determined to be appropriate for the specific cleanup. EPA's rationale
for this decision is two-fold. First, for state or federally required
cleanups that already commenced and are continuing, the state or
federal government has entered into an administrative agreement with
the facility owner or operator which specifies remedies, clean-up
goals, and timelines that were determined to be protective of human
health and the environment, based on the conditions at the site. The
overseeing Agency will also be able to ensure that the cleanup waste,
if sent off-site (which may sometimes be necessary) will go to
appropriately designed and permitted facilities. Second, altering the
requirements for cleanups currently underway would be disruptive and
could cause significant delays in achieving clean-up goals. Once the
rule becomes final, EPA or the state will be able to avail themselves
of regulations under RCRA designed specifically for cleanup. However,
the Agency takes comment on this proposed provision.

D. CERCLA Designation and Reportable Quantities

    Under current law and regulations, all hazardous wastes listed
under RCRA and codified in 40 CFR 261.31 through 261.33, and special
wastes under 261.50 if the proposed special waste listing is finalized,
as well as any solid waste that is not excluded from regulation as a
hazardous waste under 40 CFR 261.4(b) and that exhibits one or more of
the characteristics of a RCRA hazardous waste (as defined in Sec. Sec.
261.21 through 261.24), are hazardous substances under CERCLA, as
amended (see CERCLA section 101(14)(C)). CERCLA hazardous substances
are listed in Table 302.4 at 40 CFR 302.4 along with their reportable
quantities (RQs). If a hazardous substance is released in an amount
that equals or exceeds its RQ within a 24-hour period, the release must
be reported immediately to the National Response Center (NRC) pursuant
to CERCLA section 103.
    Thus, under this subtitle C alternative, and as EPA does with any
other listed waste, the Agency is proposing to also list CCRs as a
CERCLA hazardous substance in Table 302.4 of 40 CFR 302.4. The key
constituents of concern in CCRs are already listed as hazardous
substances under CERCLA (i.e., arsenic, cadmium, mercury, selenium),
and therefore persons who spill or release CCRs already have reporting
obligations, depending on the volume of the spill. Typically, under
current CERCLA requirements, a person releasing CCRs, for example,
would report depending on his estimate of the amount of arsenic or
other constituents contained in the release.
    Typically, when EPA lists a new waste subject to RCRA subtitle C,
the statutory one-pound RQ is applied to the waste. However, EPA is
proposing two alternative methods to adjust the

one-pound statutory RQ. The first method, one traditionally utilized by
the Agency, adjusts the RQ based on the lowest RQ of the most toxic
substance present in the waste. The second method, as part of the
Agency's effort to review and re-evaluate its methods for CERCLA
designation and RQ adjustment, adjusts the one-pound statutory RQ based
upon the Agency's characterization and physical properties of the
complex mixtures which comprise the waste to be designated as S001. The
Agency invites comment on both methods, and may, based upon these
comments and further information, decide to go forward with either
method or both methods.
1. Reporting Requirements
    Under CERCLA section 103(a), the person in charge of a vessel or
facility from which a CERCLA hazardous substance has been released in a
quantity that is equal to or exceeds its RQ within a 24-hour period
must immediately notify the NRC as soon as that person has knowledge of
the release. The toll-free telephone number of the NRC is 1-800-424-
8802; in the Washington, DC, metropolitan area, the number is (202)
267-2675. In addition to the reporting requirement under CERCLA,
section 304 of the Emergency Planning and Community Right-to-Know Act
(EPCRA) requires owners or operators of certain facilities to report
releases of extremely hazardous substances and CERCLA hazardous
substances to state and local authorities. The EPCRA section 304
notification must be given immediately after the release of an RQ (or
more) within a 24-hour period to the community emergency coordinator of
the local emergency planning committee (LEPC) for any area likely to be
affected by the release and to the state emergency response commission
(SERC) of any state likely to be affected by the release.
    Under section 102(b) of CERCLA, all hazardous substances (as
defined by CERCLA section 101(14)) have a statutory RQ of one pound,
unless and until the RQ is adjusted by regulation. In this rule, EPA is
proposing to list CCRs that are generated by electric utility and
independent power producers that are intended for disposal (and not
beneficially used), as special wastes subject to regulation under
subtitle C of RCRA. In order to coordinate the RCRA and CERCLA
rulemakings with respect to the new special waste listing, the Agency
is also proposing adjustments to the one-pound statutory RQs for this
special waste stream.
2. Basis for RQs and Adjustments
    EPA's methodology for adjusting the RQs of individual hazardous
substances begins with an evaluation of the intrinsic physical,
chemical, and toxicological properties of each hazardous substance. The
intrinsic properties examined, called ``primary criteria,'' are aquatic
toxicity, mammalian toxicity (oral, dermal, and inhalation),
ignitability, reactivity, chronic toxicity, and potential
carcinogenicity.
    Generally, for each intrinsic property, EPA ranks the hazardous
substance on a five-tier scale, associating a specific range of values
on each scale with an RQ value of 1, 10, 100, 1,000, or 5,000 pounds.
The data for each hazardous substance are evaluated using the various
primary criteria; each hazardous substance may receive several
tentative RQ values based on its particular intrinsic properties. The
lowest of the tentative RQs becomes the ``primary criteria RQ'' for
that substance.
    After the primary criteria RQ are assigned, the substances are
further evaluated for their susceptibility to certain degradative
processes, which are used as secondary adjustment criteria. These
natural degradative processes are biodegradation, hydrolysis, and
photolysis (BHP). If a hazardous substance, when released into the
environment, degrades relatively rapidly to a less hazardous form by
one or more of the BHP processes, its RQ (as determined by the primary
RQ adjustment criteria) is generally raised by one level. Conversely,
if a hazardous substance degrades to a more hazardous product after its
release, the original substance is assigned an RQ equal to the RQ for
the more hazardous substance, which may be one or more levels lower
than the RQ for the original substance. Table 7 presents the RQ for
each of the constituents of concern in CCRs taken from Table 302.4--
List of Hazardous Substances and Reportable Quantities at 40 CFR 302.4.

        Table 7--Reportable Quantities of Constituents of Concern
------------------------------------------------------------------------
      Hazardous waste No.       Constituent of concern   RQ Pounds (Kg)
------------------------------------------------------------------------
S001..........................  Antimony..............  5000 (2270)
                                Arsenic...............  1 (0.454)
                                Barium................  No RQ
                                Beryllium.............  10 (4.54)
                                Cadmium...............  10 (4.54)
                                Chromium..............  5000 (2270)
                                Lead..................  10 (4.54)
                                Mercury...............  1 (0.454)
                                Nickel................  100 (45.4)
                                Selenium..............  100 (45.4)
                                Silver................  1000 (454)
                                Thallium..............  1000 (454)
------------------------------------------------------------------------

    The standard methodology used to adjust the RQs for RCRA wastes is
based on an analysis of the hazardous constituents of the waste
streams. EPA determines an RQ for each hazardous constituent within the
waste stream and establishes the lowest RQ value of these constituents
as the adjusted RQ for the waste stream. EPA is proposing to use the
same methodology to adjust RQs for listed special wastes. In this
notice, EPA is proposing a one-pound RQ for listed CCRs based on the
one pound RQs for arsenic and mercury (i.e., the two constituents
within CCRs with the lowest RQ). In this same rule, however, EPA is
also proposing that an alternative method for adjusting the RQ of the
CCR wastes also can be used in lieu of the one pound RQ.
3. Application of the CERCLA Mixture Rule to Listed CCR
    Although EPA is proposing a one-pound RQ for CCRs listed as a
special waste, we are also proposing to allow the owner or operator to
use the

maximum observed concentrations of the constituents within the listed
CCR wastes in determining when to report releases of the waste.
    For listed CCR wastes, where the actual concentrations of the
hazardous constituents in the CCRs are not known and the waste meets
the S001 listing description, EPA is proposing that persons managing
CCR waste have the option of reporting on the basis of the maximum
observed concentrations that have been identified by EPA (see Table 8
below). Thus, although actual knowledge of constituent concentrations
may not be known, assumptions can be made of the concentrations based
on the EPA identified maximum concentrations. These assumptions are
based on actual sampling data, specifically the maximum observed
concentrations of hazardous constituents in CCRs.\143\ Table 7
identifies the hazardous constituents for CCRs, their maximum observed
concentrations in parts per million (ppm), the constituents' RQs, and
the number of pounds of CCRs needed to contain an RQ of each
constituent for the CCR to be reported.
---------------------------------------------------------------------------

    \143\ EPA's CCR constituent concentrations database is available
in the docket to this notice.

  Table 8--Pounds Required To Contain RQ for Each Constituent of Listed
                                   CCR
------------------------------------------------------------------------
                                                                Pounds
     Waste stream constituent      Maximum ppm    RQ (lbs)   required to
                                                              contain RQ
------------------------------------------------------------------------
CCR..............................  ...........            1
Antimony.........................        3,100        5,000    1,612,903
Arsenic..........................          773            1        1,294
Barium...........................        7,230        No RQ        No RQ
Beryllium........................           31           10      322,581
Cadmium..........................          760           10       13,158
Chromium.........................        5,970        5,000      837,521
Lead.............................        1,453           10        6,883
Mercury..........................          384            1        2,604
Nickel...........................        6,301          100       15,871
Selenium.........................          673          100      148,588
Silver...........................          338        1,000    2,958,580
Thallium.........................          100        1,000   10,000,000
------------------------------------------------------------------------

    For example, if listed CCR wastes are released from a facility, and
the actual concentrations of the waste's constituents are not known, it
may be assumed that the concentrations will not exceed those listed
above in Table 8. Thus, applying the mixture rule, the RQ threshold for
arsenic in this waste is 1,294 pounds--that is, 1,294 pounds of listed
CCR waste would need to be released to reach the RQ for arsenic.
Reporting would be required only when an RQ or more of any hazardous
constituent is released.
    Where the concentration levels of all hazardous constituents are
known, the traditional mixture rule would apply. Under this scenario,
if the actual concentration of arsenic is 100 ppm, 10,000 pounds of the
listed CCR waste would need to be released to reach the RQ for arsenic.
As applied to listed CCR waste, EPA's proposed approach reduces the
burden of notification requirements for the regulated community and
adequately protects human health and the environment.
    The modified interpretation of the mixture rule (40 CFR 302.6) as
it applies to listed CCR wastes in this proposal is consistent with
EPA's approach in a final rule listing four petroleum refining wastes
(K169, K170, K171, and K172) as RCRA hazardous wastes and CERCLA
hazardous substances (see 63 FR 42110, Aug. 6, 1998). In that rule, the
Agency promulgated a change to the regulations and its interpretation
of the mixture rule to allow facilities to consider the maximum
observed concentrations for the constituents of the petroleum refining
wastes in determining when to report releases of the four wastes. EPA
codified this change to its mixture rule interpretation in 40 CFR
302.6(b)(1) as a new subparagraph (iii). In another rule, EPA also
followed this approach in the final rule listing two chlorinated
aliphatic production wastes (K174 and K175) as RCRA hazardous wastes
and CERCLA hazardous substances (see 65 FR 67068, Nov. 8, 2000). If the
proposed subtitle C alternative becomes final, EPA may modify 40 CFR
section 302.6(b)(1) to extend the modified interpretation of the
mixture rule to include listed CCR wastes.
4. Correction of Table of Maximum Observed Constituent Concentrations
Identified by EPA
    When the final rule that listed Chlorinated Aliphatics Production
Wastes was published in the Code of Federal Regulations (CFR), the
existing table that provided the maximum observed constituent
concentrations for petroleum refining wastes (K169, K170, K171, and
K172) was inadvertently replaced instead of amended to add the maximum
observed constituent concentrations for the chlorinated aliphatic
production wastes (K174 and K175). Therefore, the Agency is at this
time proposing to correct that inadvertent removal of the petroleum
refining wastes by publishing a complete table that includes, the
petroleum refining wastes, the chlorinated aliphatic production wastes,
and now the CCR wastes (e.g., K169, K170, K171, K172, K174, K175, and
S001).

E. Listing of CCR as Special Wastes To Address Perceived Stigma Issue

    Commenters suggested that the listing of CCRs as a hazardous waste
will impose a stigma on their beneficial use, and significantly curtail
these uses. EPA questions this assertion, in fact, our experience
suggests that the increased costs of disposal of CCRs as a result of
regulation of CCRs under RCRA subtitle C would create a strong economic
incentive for increased beneficial uses of CCRs. We also believe that
the increased costs of disposal of CCRs, as a result of regulation of
CCR disposal, but not beneficial uses, should achieve increased usage
in non-regulated beneficial uses, simply as a result of the economics
of supply and demand. The economic driver--availability of a low-cost,
functionally equivalent or often

superior substitute for other raw materials--will continue to make CCRs
an increasingly desirable product. Furthermore, it has been EPA's
experience in developing and implementing RCRA regulation and elsewhere
that material inevitably flows to less regulated applications.
    However, with that said, the electric utility industry, the states,
and those companies that beneficially use CCRs have nevertheless
commented that listing of CCRs as a RCRA subtitle C waste will impose a
stigma on their beneficial use and significantly curtail these uses. In
their view, even an action that regulates only CCRs destined for
disposal as RCRA subtitle C waste, but retains the Bevill exemption for
beneficial uses, would have this adverse effect. Finally, the states
particularly have commented that, by operation of state law, the
beneficial use of CCRs would be prohibited under many states'
beneficial use programs, if EPA were to designate CCRs destined for
disposal as a RCRA subtitle C waste. Unlike the incentive effect
introduced by increased disposal costs in which firms rationally try to
avoid higher costs or seek lower cost of raw materials, the idea that
there will be a stigma effect rests on an assumption that stigma would
alter consumer preferences thereby decreasing end-users' willingness to
pay for products that include CCPs. This would have the practical
effect of shifting the aggregate CCP demand curve downward.
    Some of the other comments that have been made include: (1)
Beneficially used CCRs are the same material as that which would be
considered hazardous; this asymmetry increases confusion and the
probability of lawsuits, however, unwarranted, (2) while the supply of
CCRs to be beneficially used may increase given the additional
incentives to avoid disposal costs, the consumer demand may decrease as
negative perceptions are not always based on reason, (3) any negative
impact on beneficial use will require more reliance on virgin materials
with higher GHG and environmental footprints, (4) state support may be
weakened or eliminated, even in states that are friendly to beneficial
use, (5) competitors who use virgin or other materials are taking
advantage of the hazardous waste designation by using scare tactics and
threats of litigation to get customers to stop using products
containing CCRs, (6) customers are already raising questions about the
safety of products that contain CCRs, and (7) uncertainty is already
hurting business as customers are switching to products where there is
less regulatory risk and potential for environmental liabilities. For
example, one commenter stated that they have received requests to stop
selling boiler slag for ice control due to potential liability.
    EPA is concerned about potential stigma and, as we have stated
previously, we do not wish to discourage environmentally sound
beneficial uses of CCRs. In looking to evaluate this issue, we believe
it is first important to understand that the proposed rule (if the
subtitle C alternative is finalized) would regulate CCRs under subtitle
C of RCRA only if they are destined for disposal in landfills and
surface impoundments, and would leave the Bevill determination in
effect for the beneficial use of CCRs. That is, the legal status of
CCRs that are beneficially used would remain entirely unchanged (i.e.,
they would not be regulated under subtitle C of RCRA as a hazardous
waste, nor subject to any federal non-hazardous waste requirements).
EPA is proposing to regulate the disposal of CCRs under subtitle C of
RCRA because of the specific nature of disposal practices and the
specific risks these practices involve--that is, the disposal of CCRs
in (often unlined) landfills or surface impoundments, with millions of
tons placed in a concentrated location. The beneficial uses that EPA
identifies as excluded under the Bevill amendment, for the most part,
present a significantly different picture, and a significantly
different risk profile. As a result, EPA is explicitly not proposing to
change their Bevill status (although we do take comment on whether
``unconsolidated uses'' of CCRs need to be subject to federal
regulation). (For further discussion of the beneficial use of CCRs, see
section IV. D in this preamble.)
    Furthermore, in today's preamble, we make it clear that certain
uses of CCRs--e.g., FGD gypsum in wallboard--do not involve ``waste''
management at all; rather, the material is a legitimate co-product
that, under most configurations, has not been discarded in the first
place and, therefore, would not be considered a ``solid waste'' under
RCRA. Moreover, EPA's experience suggests that it is unlikely that a
material that is not a waste in the first place would be stigmatized,
particularly when used in a consolidated form and while continuing to
meet long established product specifications.
    In fact, EPA's experience with past waste regulation, and with how
hazardous waste and other hazardous materials subject to regulation
under subtitle C are used and recycled, suggests that a hazardous waste
``label'' does not impose a significant barrier to its beneficial use
and that non-regulated uses will increase as the costs of disposal
increase. There are a number of examples that illustrate these points,
although admittedly many of these products are not used in residential
settings:
     Electric arc furnace dust is a listed hazardous waste
(K061), and yet it is a highly recycled material. Specifically, between
2001 and 2007, approximately 42% to 51% of K061 was recycled (according
to Biennial Reporting System (BRS) data). Both currently and
historically, it has been used as an ingredient in fertilizer and in
making steel, and in the production of zinc products, including
pharmaceutical materials. Slag from the smelting of K061 is in high
demand for use in road construction.\144\ In fact, there is little
doubt that without its regulation as a hazardous waste, a significantly
greater amount of electric arc further dust would be diverted from
recycling to disposal in non-hazardous waste landfills.
---------------------------------------------------------------------------

    \144\ According to the most recently available data, in 2008
Horsehead produced about 300,000 tons per year of an Iron-Rich
Material (IRM) as a by-product of its dust recycling process, and in
2009 Inmetco produced close to 20,000 tons per year. PADEP asserts
that these plants cannot meet the demands for use of the slag by
PennDOT.
---------------------------------------------------------------------------

     Electroplating wastewater sludge is a listed hazardous
waste (F006) that is recycled for its copper, zinc, and nickel content
for use in the commercial market. In 2007, approximately 35% of F006
material was recycled (according to BRS data). These materials do not
appear to be stigmatized in the marketplace.
     Chat, a Superfund mining cleanup waste with lead, cadmium
and zinc contamination, is used in road construction in Oklahoma and
the surrounding states.\145\ In this case, the very waste that has
triggered an expensive Superfund cleanup is successfully offered in the
marketplace as a raw material in road building. The alternative costs
of disposal in this case are a significant driver in the beneficial use
of this material, and the Superfund origin of the material has not
served as a barrier to its use.
---------------------------------------------------------------------------

    \145\ 40 CFR part 260, 39331-39353.
---------------------------------------------------------------------------

     Used oil is regulated under RCRA subtitle C standards.
While used oil that is recycled is subject to a separate set of
standards under subtitle C (and is not identified as a hazardous
waste), ``stigma'' does not prevent home do-it-yourselfers from
collecting used oil, or automotive shops from accepting it and sending
it on for recovery. Collected used oil may be re-refined, reused, or
used as fuel in boilers, often at the site

where it is collected. Safety Kleen reported that in 2008, the company
recycled 200 million gallons of used oil. (This example is almost
directly analogous to the situation with respect to CCRs, although for
CCRs, we are not proposing to subject them to any management standards
when used or recycled, but, as in the case of used oil, this
alternative would avoid labeling CCR's as ``hazardous waste,'' even
while relying on subtitle C authority.)
     Spent etchants are directly used as ingredients in the
production of a copper micronutrient for livestock; and
     Spent solvents that are generated from metals parts
washing and are generally hazardous wastes before reclamation are
directly used in the production of roofing shingles.
    Furthermore, common products and product ingredients routinely used
at home (e.g., motor oil; gasoline; many common drain cleaners and
household cleaners; and cathode ray tube monitors for TVs and
computers) are hazardous wastes in other contexts. This includes
fluorescent lamps (and CFLs) which are potentially hazardous because of
mercury. Consumers are generally comfortable with these products, and
their regulatory status does not discourage their use. Given this level
of acceptance, EPA questions whether CCR-based materials that might be
used in the home, like concrete or wallboard, would be likely to raise
concerns where they are safely incorporated into a product.
    Certain commenters have also expressed the concern that standards-
setting organizations might prohibit the use of CCRs in specific
products or materials in their voluntary standards. Recently,
chairpersons of the American Standards and Testing Materials (ASTM)
International Committee C09, and its subcommittee, C09.24, in a
December 23, 2009 letter indicated that ASTM would remove fly ash from
the project specifications in its concrete standard if EPA determined
that CCRs were a hazardous waste when disposed. However, it remains
unclear whether ASTM would ultimately adopt this position, in light of
EPA's decision not to revise the regulatory status of CCRs destined for
beneficial use. Further ASTM standards are developed through an open
consensus process, and they currently apply to the use of numerous
hazardous materials in construction and other activities. For example,
ASTM provides specifications for the reuse of solvents and, thus, by
implication, does not appear to take issue with the use of these
recycled secondary materials, despite their classification as hazardous
wastes.\146\
---------------------------------------------------------------------------

    \146\ See, for example, ASTM Volume 15.05, Engine Coolants,
Halogenated Organic Solvents and Fire Extinguishing Agents;
Industrial and Specialty Chemicals, at http://www.normas.com/ASTM/
BOS/volume1505.html. See also ASTM D5396--04 Standard Specification
for Reclaimed Perchloroethylene, at http://www.astm.org/Standards/
D5396.htm.
---------------------------------------------------------------------------

    Others take a different view on how standard-setting organizations
will react. Most notably, a U.S. Green Building Council representative
was referenced in the New York Times as saying that LEED incentives for
using fly ash in concrete would remain in place, even under an EPA
hazardous waste determination.\147\ If the Green Building Council
(along with EPA) continues to recognize fly ash as an environmentally
beneficial substitute for Portland cement, the use of this material is
unlikely to decrease solely because of ``stigma'' concerns.
Additionally, we believe it is unlikely that ASTM will prohibit the use
of fly ash in concrete under its standards solely because of a
determination that fly ash is regulated under subtitle C of RCRA when
it is discarded, especially given that this use of fly ash is widely
accepted throughout the world as a practice that improves the
performance of concrete, it is one of the most cost-effective near-term
strategies to reduce GHG emissions, and there is no evidence of
meaningful risk, nor any reason to think there might be, involved with
its use in cement or concrete.
---------------------------------------------------------------------------

    \147\ See http://www.nytimes.com/gwire/2020/01/13/13greenwire-
recycling-questions-complicate-epa-coal-ash-de-90614.html.
---------------------------------------------------------------------------

    Finally, many states commented that their statutes or regulations
prohibit the use of hazardous wastes in their state beneficial use
programs and, therefore, that if EPA lists CCRs as hazardous wastes
(even if only when intended for disposal), their use would be precluded
in those states. EPA reviewed the regulations of ten states with the
highest consumption of fly ash and concluded that, while these states
do not generally allow the use of hazardous waste in their beneficial
use programs, this general prohibition would not necessarily prohibit
the beneficial use of CCRs under the proposal that EPA outlines in this
rule. Beneficially used CCRs would remain Bevill-exempt solid wastes,
or in some cases, would not be considered wastes at all and thus, the
legal status of such CCRs may not be affected by EPA's proposed RCRA
subtitle C rule. As an example, the use of slag derived from electric
furnace dust (K061) is regulated under Pennsylvania's beneficial use
program, despite the fact that it is derived from a listed hazardous
waste. However, we are also aware that, in the case of Florida, its
state definition of hazardous waste would likely prohibit the
beneficial use of CCRs were the co-proposed RCRA subtitle C regulation
finalized and were there no change to Florida's definition of hazardous
waste.
    The primary concern raised by these commenters is the fact that
CCRs would be labeled a ``hazardous waste'' (even if only when
disposed) and will change the public perception of products made from
CCRs. To address this concern, EPA is proposing, as one alternative, to
codify the listing in a separate, unique section of the regulations.
Currently, hazardous wastes are listed in 40 CFR 261, Subpart D, which
identifies the currently regulated industrial wastes, and which is
labeled, ``Lists of Hazardous Wastes.'' EPA would create a new Subpart
F and label the section as ``List of Special Wastes Subject to Subtitle
C,'' to distinguish it from the industrial hazardous wastes. The
regulations would identify CCRs as a ``Special Waste'' rather than a K-
listed hazardous waste, so that CCRs would not automatically be
identified with all other hazardous wastes. See sections V through VII
for the full description of our regulatory proposal.
    EPA believes that this action could significantly reduce the
likelihood that products made from or containing CCRs would
automatically be perceived as universally ``hazardous.'' When taken in
combination with (1) the fact that beneficially used CCRs will remain
exempt and (2) EPA's continued promotion of the beneficial use of CCRs,
we believe this will go a long way to address any stigmatic impact that
might otherwise result from the regulation of CCRs under subtitle C of
RCRA. We are seeking comment on other suggestions on how EPA might
promote the beneficial use of CCRs, as well as suggestions that would
reduce any perceived impacts resulting from ``stigma'' due to the
identification of CCRs as ``special wastes regulated under subtitle C
authority.''
    In summary, based on our experiences, we expect that it will be
more likely that the increased costs of disposal of CCRs as a result of
regulation of CCR disposal under subtitle C would increase their usage
in non-regulated beneficial uses, simply as a result of the economics
of supply and demand. The economic driver--availability of a low-cost,
functionally equivalent or often superior substitute for other raw
materials--would continue to make CCRs an increasingly desirable
product.

VII. How would the proposed subtitle c requirements be implemented?

A. Effective Dates

    If EPA were to finalize the subtitle C regulatory alternative
proposed today, the rule, as is the case with all RCRA subtitle C
rules, would become effective six months after promulgation by the
appropriate regulatory authority--that is, six months after
promulgation of the federal rule in States and other jurisdictions
where EPA implements the hazardous waste program (Iowa, Alaska, Indian
Country, and the territories, except Guam) and in authorized States,
six months after the State promulgates its regulations that EPA has
approved via the authorization process (unless State laws specify an
alternative time). This means that facilities managing CCRs must be in
compliance with the provisions of these regulations on their effective
date, unless the compliance date is extended. For this proposed
regulatory alternative, the compliance dates for several of the
proposed requirements for existing units are being extended due to the
need for additional time for facilities to modify their existing units.
The precise dates that facilities will need to be in compliance with
the various requirements will depend on whether they are in a
jurisdiction where EPA administers the RCRA subtitle C program or
whether they are in a State authorized to administer the RCRA subtitle
C program.
    To summarize, (1) In States and jurisdictions where EPA administers
the RCRA program (Iowa, Alaska, the territories [except Guam], and
Indian Country), most of the subtitle C requirements go into effect and
are enforceable by EPA six months after promulgation of the final rule.
This includes the generator requirements, transporter requirements,
including the manifest requirements, permitting requirements for
facilities managing CCRs, interim status standards, surface impoundment
stability requirements, and the Land Disposal Restriction (LDR)
treatment standards for non-wastewaters in 40 CFR part 268. However, we
are proposing that existing CCR landfills and surface impoundments (as
defined in this regulation) will be given additional time to comply
with several of the proposed requirements as specified later in this
section. Any new CCR landfills, including lateral expansions (as
defined in the regulation), must be in compliance with all the
requirements of any final regulation before CCRs can be placed in the
unit.
    (2) In States that are authorized to administer the RCRA program,
the requirements that are part of the RCRA base program (i.e., those
promulgated under the authority of RCRA and not the HSWA amendments)
will not be effective until the State develops and promulgates its
regulations. Once those regulations are effective in the States, they
are enforceable as a matter of State law and facilities must comply
with those requirements under the schedule established by the State.
These RCRA base requirements will become part of the RCRA authorized
program and enforceable as a matter of federal law once the State
submits and EPA approves a modification to the State's authorized
program. (See the State Authorization section (section VIII) for a more
detailed discussion.) The requirements that are more stringent or
broader in scope than the existing regulations and are promulgated
pursuant to HSWA authority will become effective and federally
enforceable on the effective date of the approved state law designating
CCRs as a special waste subject to subtitle C--that is, they are
federally enforceable without waiting for authorization of the program
revision applicable to the HSWA provisions. On the other hand, any
requirements that are promulgated pursuant to HSWA authority, but are
less stringent than the existing subtitle C requirements (e.g.,
modifications promulgated pursuant to Section 3004(x)) will become
effective only when the State promulgates those regulations (and
federally enforceable when the State program revision is authorized),
as the State has the discretion to not adopt those less stringent
requirements.

B. What are the requirements with which facilities must comply?

    It is EPA's intention that this proposed alternative, if finalized,
will be implemented in the same manner as previous regulations under
RCRA subtitle C have been. The following paragraphs describe generally
how this proposal will be implemented. While this notice provides some
details on specific requirements, it is EPA's intention that, unless
otherwise noted, all current Subtitle C requirements become applicable
to the facilities generating, transporting, or treating, storing or
disposing of CCRs listed as special wastes. While in this notice EPA
has described the major subtitle C requirements, EPA has not undertaken
a comprehensive description of all of the subtitle C regulatory
requirements which may be applicable; therefore, we encourage
commenters to refer to the regulations at 40 CFR parts 260 to 268, 270
to 279, and 124 for details.
1. Generators and Transporters
i. Requirements
    Under this proposed regulation, regulated CCRs destined for
disposal become a newly listed special waste subject to the subtitle C
requirements. Persons that generate this newly identified waste is
required to notify EPA within 90 days after the wastes are identified
or listed \148\ (by EPA or the state) and obtain an EPA identification
number if they do not already have one in accordance with 40 CFR
262.12. (If the person who generates regulated CCRs already has an EPA
identification number, EPA is proposing not to require that they re-
notify EPA; however, EPA is seeking comment on this issue.) Moreover,
on the effective date of this rule in the relevant state, generators of
CCRs must be in compliance with the generator requirements set forth in
40 CFR part 262. These requirements include standards for waste
determination (40 CFR 262.11), compliance with the manifest (40 CFR
262.20 to 262.23), pre-transport procedures (40 CFR 262.30 to 262.34),
generator accumulation (40 CFR 262.34), record keeping and reporting
(40 CFR 262.40 to 262.44), and the import/export procedures (40 CFR
262.50 to 262.60). It should be noted that the current generator
accumulation provisions of 40 CFR 262.34 allow generators to accumulate
hazardous wastes without obtaining interim status or a permit only in
units that are container accumulation units, tank systems or
containment buildings; the regulations also place a limit on the
maximum amount of time that wastes can be accumulated in these units.
If these wastes are managed in landfills, surface impoundments or other
units that are not tank systems, containers, or containment buildings,
these units are subject to the permitting requirements of 40 CFR parts
264, 265, and 267 and the generator is required to obtain interim
status and seek a permit (or modify interim status or a permit, as
appropriate). These requirements would be applied to special wastes as
well. Permit requirements are described in Section VII.D below.
---------------------------------------------------------------------------

    \148\ See section 3010 of RCRA.
---------------------------------------------------------------------------

    Transporters of CCRs destined for disposal will be transporting a
special waste subject to subtitle C on the effective date of this
regulation. Persons who transport these newly identified wastes will be
required to obtain an EPA identification number as described

above and must comply with the transporter requirements set forth in 40
CFR part 263 on the effective date of the final rule. In addition,
generators and transporters of CCRs destined for disposal should be
aware that an EPA identified waste subject to the EPA waste manifest
requirements under 40 CFR part 262 meets the definition for a hazardous
material under the Department of Transportation's Hazardous Materials
Regulations (HMR; 49 CFR parts 171-180) and must be offered and
transported in accordance with all applicable HMR requirements,
including materials classification, packaging, and hazard
communication.\149\
---------------------------------------------------------------------------

    \149\ See the definition for ``hazardous waste'' in 49 CFR
171.8.
---------------------------------------------------------------------------

ii. Effective Dates and Compliance Deadlines
    Generators must notify EPA within 90 days after the date that CCRs
are identified or listed as special wastes (by EPA or the state). The
other requirements for generators and transporters (in 40 CFR parts 262
and 263) are effective and generators and transporters must be in
compliance with these requirements on the effective date of the final
rules. The effective date of these rules is six months after
promulgation of the federal rule in non-authorized States and in
authorized States generally six months after promulgation of the State
regulations. (See previous section for a more detailed discussion of
effective dates.)
2. Treatment, Storage, and Disposal Facilities (TSDs)
i. Requirements
    Facilities treating, storing, or disposing of the newly listed CCRs
are subject to the RCRA 3010 notification requirements, the permit
requirements in 40 CFR part 270, and regulations in 40 CFR part 264 or
267 for permitted facilities or part 265 for interim status facilities,
including the general facility requirements in subpart B, the
preparedness and prevention requirements in subpart C, the contingency
plan and emergency procedure requirement in subpart D, the manifest,
recordkeeping and reporting requirements in subpart E, the closure and
post-closure requirements in subpart G, the corrective action
requirements, including facility-wide corrective action in subpart F,
and the financial assurance requirements in subpart H.

C. RCRA Section 3010 Notification

    Pursuant to RCRA section 3010 and 40 CFR 270.1(b), facilities
managing these special wastes subject to subtitle C must notify EPA of
their waste management activities within 90 days after the wastes are
identified or listed as a special waste. (As noted above, for
facilities in States where EPA administers the program, this will be 90
days from the date of promulgation of the final federal regulation; in
authorized States, it will be 90 days from the date of promulgation of
listing CCRs as a special waste by the state, unless the state provides
an alternative timeframe.) This requirement may be applied even to
those TSDs that have previously notified EPA with respect to the
management of hazardous wastes. The Agency is proposing to waive this
notification requirement for persons who handle CCRs and have already:
(1) Notified EPA that they manage hazardous wastes, and (2) received an
EPA identification number because requiring persons who have notified
EPA and received an EPA identification number would be duplicative and
unnecessary, although the Agency requests comment on whether it should
require such persons to re-notify the Agency that they generate,
transport, treat, store or dispose of CCRs. However, any person who
treats, stores, or disposes of CCRs and has not previously received an
EPA identification number for other waste must obtain an identification
number pursuant to 40 CFR 262.12 to generate, transport, treat, store,
or dispose of CCRs within 90 days after the wastes are identified or
listed as special wastes subject to subtitle C, as described above.

D. Permit Requirements

    As specified in 40 CFR 270.1(b), six months after promulgation of a
new regulation, the treatment, storage or disposal of hazardous waste
or special waste subject to subtitle C by any person who has not
applied for and received a RCRA permit is prohibited from managing such
wastes. Existing facilities, however, may satisfy the permit
requirement by submitting Part A of the permit application. Timely
submission of Part A and the notification qualifies a facility for
interim status under section 3005 of RCRA and facilities with interim
status are treated as having been issued a permit until a final
decision is made on a permit application.
    The following paragraphs provide addition details on how the
permitting requirements would apply to various categories of
facilities:
1. Facilities Newly Subject to RCRA Permit Requirements
    Facilities that treat, store, or dispose of regulated CCRs at the
time the rule becomes effective would generally be eligible for interim
status pursuant to section 3005 of RCRA. (See section 3005(e)(1)(A)(ii)
of RCRA).\150\ EPA believes most, if not all utilities generating CCRs
and most if not all off-site disposal sites will be in this situation.
In order to obtain interim status based on treatment, storage, or
disposal of such newly listed CCRs, eligible facilities are required to
comply with 40 CFR 270.70(a) and 270.10(e) (or more likely with
analogous state regulations) by providing notice under RCRA section
3010 (if they do not have an EPA identification number) and submitting
a Part A permit application no later than six months after date of
publication of the regulations which first require them to comply with
the standards. (In most cases, these would be the state regulations
implementing the federal program; however, in those States and
jurisdictions where EPA implements the program, the deadline will be
six months after promulgation of the final federal rule.) Such
facilities are subject to regulation under 40 CFR part 265 until EPA or
the state issues a RCRA permit. In addition, under section 3005(e)(3)
and 40 CFR 270.73(d), not later than 12 months after the effective date
of the regulations that render the facility subject to the requirement
to have a RCRA permit and which is granted interim status, land
disposal facilities newly qualifying for interim status under section
3005(e)(1)(A)(ii) also must submit a Part B permit application and
certify that the facility is in compliance with all applicable ground
water monitoring and financial responsibility requirements. If the
facility fails to submit these certifications and the Part B permit
application, interim status will terminate on that date.
---------------------------------------------------------------------------

    \150\ Section 3005(e) of RCRA states, in part, that ``Any person
who * * * is in existence on the effective date of statutory or
regulatory changes under this Act that render the facility subject
to the requirement to have a permit under this section * * * shall
be treated as having been issued such permit until such time as
final administrative disposition of such application is made, unless
the Administrator or other plaintiff proves that final
administrative disposition of such application has not been made
because of the failure of the applicant to furnish information
reasonably required or requested in order to process the
application.
---------------------------------------------------------------------------

2. Existing Interim Status Facilities
    EPA is not aware of any utilities or CCR treatment or disposal
sites in RCRA interim status currently, and therefore

EPA does not believe the standard federal rules on changes in interim
status will apply. However, in case such a situation exists, EPA
describes below the relevant provisions. Again, EPA is describing the
federal requirements, but because the proposed requirements that
subject these facilities to permitting requirements are part of the
RCRA base program, authorized state regulations will govern the
process, and the date those regulations become effective in the
relevant state will trigger the process.
    Pursuant to 40 CFR 270.72(a)(1), all existing hazardous waste
management facilities (as defined in 40 CFR 270.2) that treat, store,
or dispose of newly identified hazardous wastes and are currently
operating pursuant to interim status under section 3005(e) of RCRA,
must file an amended Part A permit application with EPA no later than
the effective date of the final rule in the State where the facility is
located. By doing this, the facility may continue managing the newly
listed wastes. If the facility fails to file an amended Part A
application by such date, the facility will not receive interim status
for management of the newly listed wastes (in this case CCRs) and may
not manage those wastes until the facility receives either a permit or
a change in interim status allowing such activity (40 CFR 270.10(g)).
This requirement, if applicable to any electric utilities, will be
applied to those facilities managing CCRs destined for disposal since
these facilities will now be managing CCRs subject to the subtitle C
requirements.
3. Permitted Facilities
    EPA also believes that no electric utilities treating, storing, or
disposing of CCRs currently has a RCRA permit for its CCR management
unit(s), nor is EPA aware of any on-going disposal of CCRs at permitted
hazardous waste TSDs, although the latter situation is a possibility.
Federal procedures for how permitted hazardous waste facilities manage
newly listed hazardous wastes are described below, but again in
practice (with the exception of those jurisdictions in which EPA
administers the hazardous waste program), the authorized state
regulations will govern the process.
    Under 40 CFR 270.42(g), facilities that already have RCRA permits
must request permit modifications if they want to continue managing the
newly listed wastes (see 40 CFR 270.42(g) for details). This provision
states that a permittee may continue managing the newly listed wastes
by following certain requirements, including submitting a Class 1
permit modification request on or before the date on which the waste or
unit becomes subject to the new regulatory requirements (i.e., the
effective date of the final federal rule in those jurisdictions where
EPA administers the program or the effective date of the State rule in
authorized States), complying with the applicable standards of 40 CFR
parts 265 and 266 and submitting a Class 2 or 3 permit modification
request within 180 days of the effective date of the final rule. Again,
these requirements, if applicable to any electric utilities, will be
applied to those facilities managing CCRs destined for disposal since
they are now subject to the subtitle C requirements.

E. Requirements in 40 CFR Parts 264 and 265

    The requirements of 40 CFR part 264 and 267 for permitted
facilities or part 265 for interim status facilities, including the
general facility standards in subpart B, the preparedness and
prevention requirements in subpart C, the contingency plan and
emergency procedure requirements in subpart D, the manifest,
recordkeeping and reporting requirements in subpart E, the corrective
action requirements, including facility-wide corrective action in
subpart F, and the financial assurance requirements in Subpart H, are
applicable to TSDs and TSDs must be in compliance with those
requirements on the effective date of the final (usually state)
regulation, except as noted below. These requirements will apply to
those facilities managing CCRs destined for disposal.
    Moreover, all units in which newly identified hazardous wastes are
treated, stored, or disposed of after the effective date of the final
(usually state) rule that are not excluded from the requirements of 40
CFR parts 264, 265 and 267 will be subject to both the general closure
and post-closure requirements of subpart G of 40 CFR parts 264 and 265
and the unit-specific closure requirements set forth in the applicable
unit technical standards in subparts 40 CFR parts 264 or 265 (e.g.,
subpart N for landfill units). In addition, EPA promulgated a final
rule that allows, under limited circumstances, regulated landfills or
surface impoundments, (or land treatment units which is not used for
the management of CCR waste) to cease managing hazardous waste, but to
delay subtitle C closure to allow the unit to continue to manage non-
hazardous waste for a period of time prior to closure of the unit (see
54 FR 33376, August 14, 1989). Units for which closure is delayed
continue to be subject to all applicable 40 CFR parts 264 and 265
requirements. Dates and procedures for submittal of necessary
demonstrations, permit applications, and revised applications are
detailed in 40 CFR 264.113(c) through (e) and 265.113(c) through (e).
As stated earlier, these requirements will be applicable to those
facilities managing CCRs destined for disposal, since they will be
managing a newly listed waste subject to subtitle C requirements.
    Except as noted below, existing facilities are required to be in
compliance with the surface impoundment stability requirements, the LDR
treatment standards for non-wastewaters, and the fugitive dust controls
on the effective date of the final rule.
    For certain of the other requirements, existing facilities will
have:
    (a) 60 days from the effective date of the final rule to install a
permanent identification marker on each surface impoundment as required
by 40 CFR 264.1304(d) and 40 CFR 265.1304(d).
    (b) 1 year from the effective date of the final rule:
    To submit plans for each surface impoundments as required by
264.1304(b) and 265.1304(b).
    To adopt and submit to the Regional Administrator a plan for
carrying out the inspection requirements for each surface impoundment
in 40 CFR 264.1305 and 40 CFR 265.1305.
    To comply with the groundwater monitoring requirements for each
landfill and surface impoundment in 40 CFR 264, Subpart F and 265,
Subpart F.
    (c) 2 years from the effective date of the final rule:
    To install, operate, and maintain run-on and run-off controls as
required by 264.1304(g) and 265.1304(g) for surface impoundments and by
264.1307(d) and 265.1307(d) for landfills.
    (d) 5 years from the effective date of the final rule:
    To comply with the LDR wastewater treatment standard.
    To stop receiving CCR waste in surface impoundments.
    (e) 7 years from the effective date of the final rule to close
surface impoundments handling CCRs.
    Any new CCR landfills, including lateral expansions of existing
landfills (as defined in the regulation), must be in compliance with
all the requirements of the final regulation before CCRs can be placed
in the unit.
    The table below (Table 9) provides a summary of the effective dates
for the various requirements:

                     Table 9--CCR Rule Requirements
------------------------------------------------------------------------
                               Compliance date non     Compliance date
                                authorized state      authorized state
------------------------------------------------------------------------
Remove Bevill Exclusion.....  6 months after        6 months after State
                               promulgation of       adopts regulations
                               final rule.           (under State law);
                                                     federally
                                                     enforceable when
                                                     state program
                                                     revision is
                                                     authorized.
Listing CCRs as a Special     Same................  Same.
 Waste Subject to subtitle C.
Notification (generators and  90 days after rule    90 days after State
 TSDs).                        promulgation (that    rule promulgation
                               is, the date the      (that is, the date
                               CCRs are listed as    the CCRs are listed
                               a Special Waste       as a Special Waste
                               subject to subtitle   subject to subtitle
                               C.                    C.
Generator requirements (40    6 months after        On the effective
 CFR part 262).                promulgation.         date of the State
                                                     regulations.
Transporter Requirements (40  6 months after        On the effective
 CFR part 263).                promulgation.         date of State
                                                     regulations.
Permit Requirement/Interim    File Part A of the    File Part A of the
 Status.                       permit application    permit application
                               within six months     within six months
                               of effective date     of effective date
                               of final rule.        of State final
                                                     rule.
Facility Standards in Part    On effective date     On effective date of
 264/265.                      unless specifically   state regulation
                               noted.                unless specifically
                                                     noted.
Install a permanent           60 days from the      60 days from the
 identification marker on      effective date of     effective date of
 each surface impoundment as   the final rule.       the State
 required by 40 CFR                                  regulation.
 264.1304(d) and 40 CFR
 265.1304(d).
Submit plans required by      1 year from the       1 year from the
 264.1304(b) and 265.1304(b).  effective date of     effective date of
                               the final rule.       the State
                                                     regulation.
Adopt and submit to the       1 year from the       1 year from the
 Regional Administrator a      effective date of     effective date of
 plan for carrying out the     the final rule.       the State
 inspection requirements in                          regulation.
 40 CFR 264.1305 and 40 CFR
 265.1305.
Comply with ground water      1 year from the       1 year from the
 monitoring requirements in    effective date of     effective date of
 40 CFR 264 Subpart F and 40   the final rule.       the State
 CFR 265 Subpart F.                                  regulation.
Install, operate, and         2 years from the      2 years from the
 maintain run-on and run-off   effective date of     effective date of
 controls as required by       the final rule.       the State
 264.1304 (g) and 265.1304                           regulation.
 (g) for surface
 impoundments and by
 264.1307 (d) and 265.1307
 (d) for landfills.
Comply with the LDR           5 years from the      5 years from the
 wastewater treatment          effective date of     effective date of
 standard.                     the final rule.       the State
                                                     regulation.
Close surface impoundments    7 years from the      7 years from the
 receiving CCR waste.          effective date of     effective date of
                               the final rule.       the State
                                                     regulation.
------------------------------------------------------------------------

VIII. Impacts of a Subtitle C Rule on State Authorization

A. Applicability of the Rule in Authorized States

    Under section 3006 of RCRA, EPA authorizes qualified states to
administer their own hazardous waste programs in lieu of the federal
program within the state. Following authorization, EPA retains
enforcement authority under sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. The
standards and requirements for state authorization are found at 40 CFR
part 271.
    Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a state with final RCRA authorization administered its
subtitle C hazardous waste program in lieu of EPA administering the
federal program in that state. The federal requirements no longer apply
in the authorized state, and EPA could not issue permits for any
facilities in that state, since only the state was authorized to issue
RCRA permits. When new, more stringent federal requirements are
promulgated, the state was obligated to enact equivalent authorities
within specified time frames (one to two years). The new more stringent
federal requirements did not take effect in the authorized state until
the state adopted the federal requirements as state law, and the state
requirements are not federally enforceable until EPA authorized the
state program. This remains true for all of the requirements issued
pursuant to statutory provisions that existed prior to HSWA.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by the statute to
implement these requirements and prohibitions in authorized states,
until the state is granted authorization to do so. While states must
still adopt new more stringent HSWA related provisions as state law to
retain final authorization, EPA implements the HSWA provisions in
authorized states until the states do so.
    Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than the existing federal requirements. RCRA section 3009 allows
the states to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.
    This alternative of the co-proposal is considered more stringent
and broader in scope than current federal regulations and therefore
States would be required to adopt regulations and modify their programs
if this alternative is finalized.

B. Effect on State Authorization

    If finalized, a subtitle C rule for CCRs would affect state
authorization in the same manner as any new RCRA subtitle C
requirement; i.e., (1) this alternative of the co-proposal would be
considered broader in scope and more stringent than the current federal
program, so authorized states must adopt regulations so that their
program remains at least as stringent as the federal program; and (2)
they must receive authorization from

EPA for these program modifications. The process and requirements for
modification of state programs at 40 CFR 271, specifically 271.21, will
be used.
    However, this process is made more complex due to the nature of
this particular rulemaking and the fact that some of the provisions of
this alternative, if finalized, would be finalized pursuant to the RCRA
base program authority and some pursuant to HSWA authority. For RCRA
base program or non-HSWA requirements, the general rule, as explained
previously, is that the new requirements do not become enforceable as a
matter of federal law in authorized states until states adopt the
regulations, modify their programs, and receive authorization from EPA.
For HSWA requirements, the general rule is that HSWA requirements are
enforceable on the effective date of the final federal rule. If an
authorized State has not promulgated regulations, modified their
programs, and received authorization from EPA, then EPA implements the
requirements until the State receives program authorization.
    In accord with 271.2(e)(2), authorized states must modify their
programs by July 1 of each year to reflect changes to the federal
program occurring during the ``12 months preceding the previous July
1.'' Therefore, for example, if the federal rule is promulgated in
December 2011, the states would have until July 1, 2013 to modify their
programs. States may have an additional year to modify their programs
if an amendment to a state statute is needed. See 40 CFR
271.21(e)(2)(v).
    As noted above, this alternative to the co-proposal is proposed
pursuant in part to HSWA authority and in part to non-HSWA or RCRA base
program authority. The majority of this alternative is proposed
pursuant to non-HSWA authority. This includes, for example, the listing
of CCRs destined for disposal as a special waste subject to subtitle C
and the impoundment stability requirements. These requirements will be
applicable on the effective date of the final federal rule only in
those states that do not have final authorization for the RCRA program.
These requirements will be effective in authorized states once a state
promulgates the regulations and they will become a part of the
authorized RCRA program and thus federally enforceable, once the state
has submitted a program modification and received authorization for
this program modification.
    The prohibition on land disposal unless CCRs meet the treatment
standards and modification of the treatment standards in 40 CFR part
268 are proposed pursuant to HSWA authority and would normally be
effective and federally enforceable in all States on the effective date
of the final federal rule. However, because the land disposal
restrictions apply to those CCRs that are regulated under subtitle C,
until authorized states revise their programs and become authorized to
regulate CCRs as a special waste subject to RCRA subtitle C, the land
disposal restriction requirements would apply only in those States that
currently do not exclude CCRs from subtitle C regulation (that is, CCRs
are regulated under subtitle C if they exhibit one or more of the
characteristics) and the CCRs in fact exhibit one or more of the RCRA
subtitle C characteristics. However, once the state has the authority
to regulate CCRs as a special waste, the LDR requirements become
federally enforceable in all States.
    In addition, the tailored management standards promulgated pursuant
to section 3004(x) of RCRA are also proposed pursuant to HSWA
authority. However, as these tailored standards are less stringent than
the existing RCRA subtitle C requirements, States would not be required
to promulgate regulations for these less stringent standards--should a
State decide not to promulgate such regulations, the facilities in that
state would be required to comply with the full subtitle C standards.
Therefore, the tailored management standards will be effective in
authorized States only when States promulgate such regulations.
    Therefore, the Agency would add this rule to Table 1 in 40 CFR
271.1(j), if this alternative to the co-proposal is finalized, which
identifies the federal program requirements that are promulgated
pursuant to HSWA and take effect in all states, regardless of their
authorization status. Table 2 in 40 CFR 271.1(j) would be modified to
indicate that these requirements are self-implementing. Until the
states receive authorization for the more stringent HSWA provisions,
EPA would implement them, as described above. In implementing the HSWA
requirements, EPA will work closely with the states to avoid
duplication of effort. Once authorized, states adopt an equivalent rule
and receive authorization for such rule from EPA, the authorized state
rule will apply in that state as the RCRA subtitle C requirement in
lieu of the equivalent federal requirement.

IX. Summary of the Co-Proposal Regulating CCRs Under Subtitle D
Regulations

A. Overview and General Issues

    EPA is co-proposing and is soliciting comment on an approach under
which the May 2000 Regulatory Determination would remain in place, and
EPA would issue regulations governing the disposal of CCRs under
sections 1008(a), 2002, 4004 and 4005(a) of RCRA (i.e., ``Subtitle D''
of RCRA). Under this approach, the CCRs would remain classified as a
non-hazardous RCRA solid waste, and EPA would develop national minimum
criteria governing facilities for their disposal. EPA's co-proposed
subtitle D minimum criteria are discussed below.
    Statutory standards for Subtitle D approach. Under RCRA 4005(a),
upon promulgation of criteria under 1008(a)(3), any solid waste
management practice or disposal of solid waste which constitutes the
``open dumping'' of solid waste is prohibited. The criteria under RCRA
1008(a)(3) are those that define the act of open dumping, and are
prohibited under 4005(a), and the criteria under 4004(a) are those to
be used by states in their planning processes to determine which
facilities are ``open dumps'' and which are ``sanitary landfills.'' EPA
has in practice defined the two sets of criteria identically. See,
e.g., Criteria for Classification of Solid Waste Disposal Facilities
and Practices, 44 FR 53438, 53438-39 (Sept. 13, 1979). EPA has designed
today's co-proposed subtitle D criteria to integrate with the existing
open dumping criteria in this respect, as reflected in the proposed
changes to 257.1.
    Section 4004(a) of RCRA provides that EPA shall promulgate
regulations containing criteria distinguishing which facilities are to
be classified as sanitary landfills and which are open dumps. This
section provides a standard that varies from that under RCRA subtitle
C. Specifically, subtitle C provides that management standards for
hazardous waste treatment, storage, and disposal facilities are those
``necessary to protect human health or the environment.'' See, e.g.,
RCRA 3004(a). By contrast, Section 4004(a) provides that

    [a]t a minimum, the such criteria shall provide that a facility
may be classified as a sanitary landfill and not an open dump only
if there is no reasonable probability of adverse effects on health
or the environment from disposal of solid waste at such facility.
Such regulations may provide for the classification of the types of
sanitary landfills.

    Thus, under the RCRA subtitle D regulatory standard in 4004, EPA is
to

develop requirements based on the adverse effects on health or the
environment from disposal of solid waste at a facility, and
accordingly, EPA looked at such effects in developing today's co-
proposed Subtitle D rule.
    At the same time, EPA believes that the differing standards, in
particular the reference to the criteria as those which are needed to
assure that there is ``no reasonable probability'' of adverse effects,
allows the Agency the ability to adopt standards different from those
required under the subtitle C proposal where appropriate. EPA notes
that the 4004(a) standard refers to the ``probability'' of adverse
effect on health or the environment. In EPA's view, this provides it
the discretion to establish requirements that are less certain to
eliminate a risk to health or the environment than otherwise might be
required under Subtitle C, and allows additional flexibility in how
those criteria may be applied to facilities. At the same time, however,
EPA notes that the requirements meeting the ``no reasonable
probability'' standard are those ``at a minimum''--thus, EPA is not
constrained to limit itself to that standard should it determine that
additional protections are appropriate.
    Statements in the legislative history of 4004(a) are also
consistent with EPA's interpretation of the statutory language. While
it provides little in the way of guidance on the meaning of the
``reasonable probability'' standard, the legislative history does
indicate that Congress was aware of effects from solid waste disposal
facilities that included surface runoff, leachate contamination of
surface- and groundwaters, and also identified concerns over the
location and operations of landfills. See H. Rep. 94-1491, at 37-8. In
addition, the legislative history confirms that the standard in 4004(a)
was intended to set a minimum for the criteria. See H. Rep. 94-1491, at
40 (``This legislation requires that the Administrator define sanitary
landfill as disposal site at which there is no reasonable chance of
adverse effects on health and the environment from the disposal of
discarded material at the site. This is a minimum requirement of this
legislation and does not preclude additional requirements.'' Emphasis
added.)
1. Regulatory Approach
    In developing the proposed RCRA subtitle D option for CCRs, EPA
considered a number of existing requirements as relevant models for
minimum national standards for the safe disposal of CCRs. The primary
source was the existing requirements under 40 CFR part 258, applicable
to municipal solid waste landfills, which provide a comprehensive
framework for all aspects of disposal in land-based units, such as CCR
landfills. Based on the Agency's substantial experience with these
requirements, EPA believes that the part 258 criteria represent a
reasonable balance between ensuring the protection of human health and
the environment from the risks of these wastes and the practical
realities of facilities' ability to implement the criteria. The
engineered structures regulated under part 258 are very similar to
those found at CCR disposal facilities, and the regulations applicable
to such units would be expected to address the risks presented by the
constituents in CCR wastes. Moreover, CCR wastes do not contain the
constituents that are likely to require modification of the existing
part 258 requirements, such as organics; for example, no adjustments
would be needed to ensure that groundwater monitoring would be
protective, as the CCR constituents are all readily distinguishable by
standard analytical chemistry. As discussed throughout this preamble,
each of the provisions adopted for today's subtitle D co-proposal
relies, in large measure, on the record EPA developed to support the 40
CFR part 258 municipal solid waste landfill criteria, along with the
other record evidence specific to CCRs, discussed throughout the co-
proposed subtitle C alternative. EPA also relied on the Agency's Guide
for Industrial Waste Management (EPA530-R-03-001, February 2003), to
provide information on existing best management practices that
facilities have likely adopted.
    The Guide was developed by EPA and state and tribal
representatives, as well as a focus group of industry and public
interest stakeholders chartered under the Federal Advisory Committee
Act, and reflects a consensus view of best practices for industrial
waste management. It also contains recommendations based on more recent
scientific developments, and state-of-the art disposal practices for
solid wastes.
    In addition, EPA considered that many of the technical requirements
that EPA developed to specifically address the risks from the disposal
of CCRs as part of the subtitle C alternative, would be equally
justified under a RCRA subtitle D regime. Thus, for example, EPA is
proposing the same MSHA-based standards for surface impoundments that
are discussed as part of the subtitle C alternative. The factual
record--i.e., the risk analysis and the damage cases--supporting such
requirements is the same, irrespective of the statutory authority under
which the Agency is operating. Although the statutory standards under
subsections C and D differ, EPA has historically interpreted both
statutory provisions to establish a comparable level of protection,
corresponding to an acceptable risk level ranging between 1 x 10-4 to 1
x 10-6. In addition, EPA does not interpret section 4004 to preclude
the Agency from establishing more stringent requirements where EPA
deems such more stringent requirements appropriate. Thus, several of
the provisions EPA is proposing under RCRA subtitle D either correspond
to the provisions EPA is proposing to establish for RCRA subtitle C, or
are modeled after the existing subtitle C requirements. These
provisions include the following regulatory provisions specific to CCRs
that EPA is proposing to establish: Scope, and applicability (i.e., who
will be subject to the rule criteria/requirements), the Design Criteria
and Operating Criteria (including provisions for surface impoundment
integrity), and several of the provisions specifying appropriate
pollution control technologies. Additional support for EPA's decision
to specify appropriate monitoring, corrective action, closure, and
post-closure care requirements (since the specific requirements
correlate closely with the existing 40 CFR 258 requirements) is found
in the risk analysis and damage case information. Finally, many of the
definitions are the same in each section.
    However, both the RCRA subtitle C proposals and the existing 40 CFR
part 258 requirements were developed to be implemented in the context
of a permitting program, where an overseeing authority evaluates the
requirements, and can adjust them, as appropriate to account for site
specific conditions. Because there is no corresponding guaranteed
permit mechanism under the RCRA subtitle D regulations proposed today,
EPA also considered the 40 CFR part 265 interim status requirements for
hazardous waste facilities, which were designed to operate in the
absence of a permit. The interim status requirements were particularly
relevant in developing the proposed requirements for surface
impoundments, since such units are not regulated under 40 CFR part 258.
Beyond their self-implementing design, these requirements provided a
useful model because, based on decades of experience in implementing
these requirements, EPA has assurance that they provide national
requirements that have proven to be protective for a variety of wastes,
under a wide variety

of site conditions. Past experience also demonstrates that facilities
can feasibly implement these requirements.
    Taking all of these considerations into account, EPA has generally
designed the proposed RCRA subtitle D criteria to create self-
implementing requirements. These self-implementing requirements
typically consist of a technical design standard (e.g., the composite
liner requirement for new CCR landfills and surface impoundments). In
addition, for many of these requirements, the Agency also has
established performance criteria that the owner or operator can meet,
in place of the technical design standard, which provides the facility
with flexibility in complying with the minimum national criteria. EPA
generally has chosen to propose an alternate performance standard for a
number of reasons. In several cases, the alternative standard is
intended to address the circumstances where the appropriate requirement
is highly dependent on site-specific conditions (such as the spacing
and location of ground-water wells); consequently, uniform, national
standards that assure the requisite level of protection are extremely