Shifting populations and ecological receptors;
     Additive risks from multiple constituents or multiple
pathways;
     Clean closure of surface impoundments;
     The speciation and bioavailability of constituents;
     The effect of compacting CCRs before disposal;
     The assumption that all disposal units are above the water
table;
     Full mixing of the groundwater plume;
     The choice of iron sorbent in the soil;
     The appropriateness of the leachate data used and the
treatment of nondetects;
     The distance to receptor wells and surface water bodies;
and
     The potential conservativeness of human health benchmarks.
    The Agency, however, does solicit comment on several specific
aspects of the underlying risk assessment. In particular, EPA requests
comment on whether clay liners designed to meet a 1x10-7 cm/
sec hydraulic conductivity might perform differently in practice than
modeled in the risk assessment. Thus, EPA solicits specific data on the
hydraulic conductivity of clay liners associated with CCR disposal
units. In addition to the effectiveness of various liner systems, the
hydraulic conductivity of coal ash can be reduced with the appropriate
addition of moisture followed by compaction to attain 95% of the
standard Proctor

maximum dry density value.\32\ This concept, it has been reported,
could potentially be taken further with the use of compaction coupled
with the addition of organosilanes. According to recent studies,
organosilanes could take the hydraulic conductivity to zero.\33\ EPA
solicits comments on the effectiveness of such additives, including any
analysis that would reflect long-term performance, as well as the
appropriateness of a performance standard that would allow such control
measures in lieu of composite liners. EPA has also observed that
surface impoundments are often placed right next to surface water
bodies which may present complex subsurface environments not considered
by the groundwater model, and therefore EPA seeks data on the distance
of surface impoundments to water bodies, site specific groundwater risk
analysis which accounts for the presence of a nearby surface water
body, and groundwater monitoring data associated with such sites.
---------------------------------------------------------------------------

    \32\ The standard and modified Proctor compaction tests (ASTM D
698 and D 1557 respectively) are used to determine the maximum
achievable density of soils and aggregates by compacting the soil or
aggregate in a standardized mould at a standardized compactive
force. The maximum dry density value (or maximum achievable dry
density value) is determined by dividing the mass of the compacted
material (weight divided by the gravitational force) by the volume
of the compacted material.
    \33\ ``Organo-silane Chemistry: A Water Repellant Technology for
Coal Ash and Soils,'' John L. Daniels, Mimi S. Hourani, and Larry S.
Harper, 2009 World of Coal Ash Conference. Available at http://
www.flyash.info/2009/025-daniels2009.pdf and in the docket to this
proposal.
---------------------------------------------------------------------------

    In characterizing CCRs and utilizing such data for the risk
analysis, EPA gathered a variety of data over a long period of time. As
a general matter, EPA finds these data to be an accurate
characterization, and that the values are in line with recent studies
EPA has conducted to characterize new air pollution controls. However,
with respect to a few of the highest surface impoundment porewater
concentrations (for arsenic in particular), questions have been raised
regarding the representativeness of these individual data points. In
one case, a facility with the highest arsenic pore water concentration
(86.0 mg/L) involved values that were measured in a section of a
surface impoundment where coal refuse (defined as coal waste from coal
handling, crushing, and sizing operations) was disposed of at the water
surface. Pore water samples taken in the coal ash sediment beneath the
coal refuse involved concentrations of arsenic as low as 0.003 mg/L.
Thus, there is the question of whether those pore water samples
measured in the coal refuse represent what leaches out of the bottom of
the surface impoundment.
    The next highest arsenic values (an average of 5.37 mg/L over 4
samples with the highest concentration being 15.5 mg/L) came from site
CASJ (known as SJA in the EPRI report). The concern is that arsenic in
the pore water was orders of magnitude higher than in the pond water.
That type of change doesn't appear to occur for other constituents in
these samples or for arsenic in samples from other surface
impoundments. EPA recently attempted to obtain further information that
could assist us to better characterize these specific data, but the
data are old, the impoundment is no longer in operation, and there are
apparently no additional records upon which to draw conclusions.
    Additional high concentration values, especially for lead, are
associated with ash data provided by Freeman United Mining, which
acquired ash for a minefilling project. None of this ash data is
associated with electric utilities, but rather with other coal
combusters such as John Deere, American Cyanamid, and Washington
University in St. Louis, Missouri. The Agency is uncertain whether the
high lead levels are associated with lead levels in the source coal,
the operations at these facilities, or whether other wastes were mixed
with the CCRs.
    While these concerns are associated with a small fraction of the
data, these data reflect the highest concentrations, and thus can be
important considerations in the risk analysis. Based on the above
concerns, EPA solicits comment on several questions.
     For the highest concentrations in EPA's database, such as
the examples mentioned above, are there values that do not
appropriately represent leaching to groundwater, and if so, why not?
     Are there any additional data that are representative of
CCR constituents in surface impoundment or landfill leachate (from
literature, state files, industry or other sources) that EPA has not
identified?
     EPA understands that the disposal practices associated
with coal refuse in surface impoundments may have improved based on the
development of an industry guide.\34\ EPA solicits information on the
degree to which coal refuse management practices have changed since the
issuance of the guide and the impacts of those changes (e.g., have
concentrations of arsenic been reduced in leach samples that have been
taken at facilities operating in concert with the industry guide).
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    \34\ Guidance for Comanagement of Mill Rejects at Coal-Fired
Power Plants, Electric Power Research Institute, 1999. Available in
the docket to this proposal.
---------------------------------------------------------------------------

     For CCR surface impoundments, are there any examples of
pore water concentrations for arsenic increasing orders of magnitude
over pond water concentrations?
    For more detailed discussions of the CCR risk assessment, see the
document titled: ``What Are the Environmental and Health Effects
Associated with Disposing of CCRs in Landfills and Surface
Impoundments?'' and the report titled ``Human and Ecological Risk
Assessment of Coal Combustion Wastes'' which are included in the docket
to this notice.

C. Damage Cases

    Under the Bevill Amendment for the ``special waste'' categories of
RCRA, EPA was statutorily required to examine ``documented cases in
which danger to human health or the environment from surface runoff or
leachate has been proved'' from the disposal of coal combustion wastes
(RCRA Section 8002(n)). The criteria used to determine whether danger
to human health and the environment has been proven are described in
detail in the May 2000 Regulatory Determination at 65 FR 32224.\35\
---------------------------------------------------------------------------

    \35\ For definition of ``proven damage case,'' see section C in
the Supplementary Information section.
---------------------------------------------------------------------------

    At the time of the May 2000 Regulatory Determination, the Agency
was aware of 11 documented cases of proven damage to ground water and
36 cases of potential damage to human health and the environment from
the improper management of CCRs in landfills and surface impoundments.
Additionally, the Agency determined that another four cases were
documented cases of ecological damages.\36\ However, for the May 2000
Regulatory Determination, EPA did not consider these ecological damage
cases because all involved some form of discharge from waste management
units to nearby lakes or creeks that would be subject to the Clean
Water Act regulations. Moreover, EPA concluded that the threats in
those cases were not substantial enough to cause large scale, system
level ecological disruptions. On review, EPA has concluded that the
ecological damage cases are appropriate for consideration because,
while they might involve CWA violations, they nevertheless reflect
damages from CCR disposal that might be handled under RCRA controls.
And, while they may or may not have involved ``systems-level''

disruption, they were significant enough to lead to state response
actions, e.g., fish advisories. EPA now believes that ecological
damages warranting state environmental response are generally
appropriate for inclusion as damage cases, and to fail to include them
would lead to an undercounting of real and recognized damages.
Accordingly, at the time of the May 2000 Regulatory Determination, in
total, 15 cases of proven damages had occurred. Subsequently, one of
the 15 proven damage cases has been reclassified as a potential damage
case, resulting in a total of 14 proven cases of damage, as of the May
2000 Regulatory Determination.
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    \36\ Ecological damages are damages to mammals, amphibians,
fish, benthic layer organisms and plants.
---------------------------------------------------------------------------

    Since the May 2000 Regulatory Determination, additional damage
cases, including ecological damage cases, have occurred, and were
discussed in the August 2007 NODA. Specifically, EPA has gathered or
received information on 135 alleged damage cases. Six of the alleged
damage cases have been excluded from this analysis because they
involved minefills, a management method which is outside the scope of
this proposal, while sixty-two of the damage cases have not been
further assessed because there was little or no information supporting
the concerns identified. Of the remaining 67 damage cases evaluated,
EPA determined that 24 were proven cases of damage (which includes the
14 proven damage cases from the May 2000 Regulatory Determination); of
the 24 damage cases, eight were determined to be proven damages to
surface water and sixteen were determined to be proven damages to
ground water, with four of the cases to groundwater being from unlined
landfills, five coming from unlined surface impoundments, one was from
a surface impoundment where it was unclear whether it was lined, and
the remaining six cases coming from unlined sand and gravel pits.
Another 43 cases (which includes the 36 potential damage cases from the
May 2000 Regulatory Determination) were determined to be potential
damages to groundwater or surface water; however, four of the potential
damage cases were attributable to oil combustion wastes and thus are
outside the scope of this proposal; therefore, resulting in 39 CCR
potential damage cases. The remaining 10 alleged damage cases were not
considered to be proven or potential damage cases due to a lack of
evidence that damages were uniquely associated with CCRs; therefore,
they were not considered to be CCR damage cases.
    Finally, within the last couple of years, EPA has learned of an
additional five cases of claimed damage. Two of the cases involve the
structural failure of the surface impoundment; i.e., dam safety and
structural integrity issues, a pathway which EPA did not consider at
the time of the May 2000 Regulatory Determination. These cases are (1)
a 0.5 million cubic yard release of water and fly ash to the Delaware
River at the Martin's Creek Power Plant in Pennsylvania in 2005,
leading to a response action costing $37 million, and (2) the
catastrophic failure of a dike at TVA's Kingston, Tennessee facility,
leading to the release of 5.4 million cubic yards of fly ash sludge
over an approximately 300 acre area and into a branch of the Emory
River, followed by a massive cleanup operation overseen by EPA and the
state of Tennessee. EPA classifies these as proven damage cases.
Another case involved the failure of a discharge pipe at the TVA Widows
Creek plant in Stevenson, Alabama, resulting in a 6.1 million gallon
release from an FGD pond, leading to $9.2 million in cleanup costs. EPA
did not classify this as a damage case, because samples at relevant
points of potential exposure did not exceed applicable standards. Two
other cases involved the placement of coal ash in large scale fill
operations. The first case, the BBBS Sand and Gravel Quarries in
Gambrills, Maryland, involved the disposal of fly ash and bottom ash
(beginning in 1995) in two sand and gravel quarries. EPA considers this
site a proven damage case, because groundwater samples from residential
drinking wells near the site include heavy metals and sulfates at or
above groundwater quality standards, and the state of Maryland is
overseeing remediation. The second case is the Battlefield Golf Course
in Chesapeake, Virginia where 1.5 million yards of fly ash were used as
fill and for contouring of a golf course. Groundwater contamination
above drinking water levels has been found at the edges and corners of
the golf course, but not in residential wells. An EPA study in April
2010 established that residential wells near the site were not impacted
by the fly ash and, therefore, EPA does not consider this site a proven
damage case. However, due to the onsite groundwater contamination, EPA
considers this site to be a potential damage case. Thus, the Agency has
classified three of the five new cases as proven damage cases, one as a
potential damage case, and the other as not being a damage case (i.e.,
not meeting the criteria to be considered either a proven or potential
damage case). This brings the total number of proven damage cases to 27
and 40 potential cases of damage from the mismanagement of CCRs being
disposed.
    The Martins Creek and TVA Kingston fly ash impoundment failures
underscore the need for surface impoundment integrity requirements. In
the case of the Martins Creek failure, 0.5 million cubic yards of fly
ash slurry was released into the Delaware River when a dike failed.
Fortunately, there are no homes in the path of the release and all the
damage was confined to power plant property and the Delaware River. On
the other hand, the 5.4 million cubic yards of fly ash sludge released
as a result of the TVA Kingston impoundment failure covered an area of
approximately 300 acres, flowed into a branch of the Emory River,
disrupted power, ruptured a gas line, knocked one home off its
foundation and damaged others. Fortunately, there were no injuries.
    While much of our risk modeling deals with ground water
contamination, based on historical facts, EPA recognizes that failures
of large CCR impoundments can lead to catastrophic environmental
releases and large cleanup costs. It is critical to understand as well,
however, that the structural integrity requirements and the
requirements for conversion or retrofitting of existing or new
impoundments are designed to avoid such releases and that the benefits
of avoiding such catastrophic failures are very significant. As
discussed in more detail in Section XII of today's proposal and as
fully explained in our Regulatory Impact Analysis (RIA), EPA estimated
the benefits of avoiding the future cleanup costs of or impoundment
failures. Depending on the regulatory option chosen, the annualized
benefits range from $29 million to $1,212 million per year, and the net
present value of these ranges from $405 million to $16,732 million. In
addition, the RIA did not quantify or monetize several other additional
benefits consisting of future avoided social costs associated with
ecological and socio-economic damages. These include avoided damages to
natural resources, damages to property and physical infrastructure,
avoided litigation costs associated with such events, and reduction of
toxic chemical-contaminated effluent discharges from impoundments to
surface waters.
    In December 2009, EPA received a new report from EPRI challenging
our conclusions on many of the proven damage cases often noting that
there was not significant off-site contamination.
    The report, ``Evaluation of Coal Combustion Product Damage Cases
(Volumes 1 and 2), Draft Report,

November 2009,'' is available in the docket to this proposal. EPA
solicits comments on EPRI's report and welcomes additional data
regarding the proven damage cases identified by EPA, especially the
degree to which there was off-site contamination.
    EPA notes that several stakeholders have very recently identified
additional claimed damage cases, and the agency has not had the time to
review them closely.\37\ Similarly, other stakeholders have recently
provided valuable information on CCR risks, costs of different possible
options, and characterization data, which EPA has also not had time to
review in detail or to respond to. Generally, these reports include
information that is relevant to today's proposal. EPA will review this
information carefully as we proceed to a final rule, and we encourage
commenters on the proposal to consider this material, which EPA has
placed in the rulemaking docket, as they prepare comments.
---------------------------------------------------------------------------

    \37\ On February 24, the Environmental Integrity Project and
EarthJustice issued a report on 31 'new' alleged CCRs damage cases
which is available at: http://www.environmentalintegrity.org/news_
reports/documents/OutofControl-
MountingDamagesFromCoalAshWasteSites.pdf.
---------------------------------------------------------------------------

    For a more detailed discussion of the damage cases, see the
Appendix to this notice, the table ``Summary of Proven Cases with
Damages to Groundwater and to Surface Water'' at the end of the
Appendix, and the document ``Coal Combustion Wastes Damage Case
Assessments'' available at http://www.regulations.gov/fdmspublic/
component/main?main=DocumentDetail&d=EPA-HQ-RCRA-2006-0796-0015.

III. Overview and Summary of the Bevill Regulatory Determination and
the Proposed Subtitle C and Subtitle D Regulatory Options

    In today's notice, EPA is reevaluating its August 1993 and May 2000
Bevill Regulatory Determinations regarding CCRs generated at electric
utilities and independent power producers. In the May 2000
determination, EPA concluded that disposal of CCRs did not warrant
regulation under RCRA subtitle C as a hazardous waste, but did warrant
federal regulation as a solid waste under subtitle D of RCRA. However,
EPA never issued federal regulations under subtitle D of RCRA for CCRs.
(As noted previously, today's proposal could result in the development
of subtitle D standards consistent with the May 2000 Regulatory
Determination, or with a revision of the determination, or the issuance
of subtitle C standards under RCRA.) Today, EPA is reconsidering this
determination, and is soliciting comments on two alternative options:
(1) to reverse the Bevill determination (with respect to disposal of
CCRs in surface impoundments and landfills), and regulate such CCRs as
special wastes under RCRA subtitle C, and (2) to leave the Bevill
determination in place and regulate CCRs going to disposal under
federal RCRA subtitle D standards. Today's co-proposal provides
regulatory text for both options.
    In determining whether or not to exclude a Bevill waste from
regulation under RCRA subtitle C, EPA must evaluate and weigh eight
factors. In section IV. B. of this preamble, EPA discusses CCRs from
electric utilities in light of these factors, and we highlight the
considerations that might lead us to reversing the August 1993 and May
2000 Regulatory Determinations (and therefore regulate CCR disposal
under RCRA subtitle C), or to leave the determination in place (and
regulate CCR disposal under RCRA subtitle D).
    At the same time, EPA continues to believe the Bevill exclusion
should remain in place for CCRs going to certain beneficial uses,
because of the important benefits to the environment and the economy
from these uses, and because the management scenarios for these
products are very different from the risk case being considered for CCR
disposal in surface impoundments and landfills. EPA makes it clear that
CCRs in sand and gravel pits, quarries, and other large fill operations
is not beneficial use, but disposal. As such, it would be regulated
under whichever option is finalized. EPA solicits comments, however, on
whether unencapsulated uses of CCRs warrant tighter federal control.

A. Summary of Subtitle C Proposal

    In combination with its proposal to reverse the Bevill
determination for CCRs destined for disposal, EPA is proposing to list
as a special waste, CCRs from electric utilities and independent power
producers when destined for disposal in a landfill or surface
impoundment. These CCRs would be regulated under the RCRA subtitle C
rules (as proposed to be amended here) from the point of their
generation to the point of their final disposition, which includes both
during and after closure of any disposal unit. In addition, EPA is
proposing that all existing units that have not closed in accordance
with the criteria outlined in this proposal, by the effective date of
the final rule, would be subject to all of the requirements of subtitle
C, including the permitting requirements at 40 CFR parts 124 and 270.
As such, persons who generate, transport and treat, store or dispose of
CCRs would be subject to the existing cradle-to-grave subtitle C waste
management requirements at 40 CFR parts 260 through 268, parts 270 to
279, and part 124 including the generator and transporter requirements
and the requirements for facilities managing CCRs, such as siting,
liners (with modification), run-on and run-off controls, groundwater
monitoring, fugitive dust controls, financial assurance, corrective
action, including facility-wide corrective action, closure of units,
and post-closure care (with certain modifications). In addition,
facilities that dispose of, treat, or, in many cases, store, CCRs also
would be required to obtain permits for the units in which such
materials are disposed, treated, and stored. EPA is also considering
and seeking comment on a modification, which would not require the
closure or installation of composite liners in existing surface
impoundments; rather, these surface impoundments could continue to
operate for the remainder of their useful life. The rule would also
regulate the disposal of CCRs in sand and gravel pits, quarries, and
other large fill operations as a landfill.
    To address the potential for catastrophic releases from surface
impoundments, we also are proposing requirements for dam safety and
stability for impoundments that, by the effective date of the final
rule, have not closed consistent with the requirements. Finally, we are
proposing land disposal restrictions and treatment standards for CCRs,
as well as a prohibition on the disposal of treated CCRs below the
natural water table.

B. Summary of Subtitle D Proposal

    In combination with its proposal to leave the Bevill determination
in place, EPA is proposing to regulate CCRs disposed of in surface
impoundments or landfills under the RCRA subtitle D requirements, which
would establish national criteria to ensure the safe disposal of CCRs
in these units. The units would be subject to, among other things,
location standards, composite liner requirements (new landfills and
surface impoundments would require composite liners; existing surface
impoundments without liners would have to retrofit within five years,
or cease receiving CCRs and close); groundwater monitoring and
corrective action for releases from the unit standards; closure and
post-closure care requirements; and requirements to address the
stability of surface impoundments. We solicit comments on requiring
financial assurance and on

how the requirements apply to surface impoundments that continue to
receive CCRs after the effective date of the rule; specifically, EPA is
requesting comment on an alternative under which existing surface
impoundments would be allowed to continue to operate without requiring
the facility to retrofit the unit to install a composite liner. The
rule would also regulate the disposal of CCRs in sand and gravel pits,
quarries, and other large fill operations as a landfill. The rule would
not regulate the generation, storage or treatment of CCRs prior to
disposal. Because of the scope of subtitle D authority, the rule would
not require permits, nor could EPA enforce the requirements. Instead,
states or citizens could enforce the requirements under RCRA citizen
suit authority; the states could also enforce any state regulation
under their independent state enforcement authority.
    EPA is also considering, and is seeking comment on, a potential
modification to the subtitle D option, called ``D prime.'' Under the
``D prime'' option, existing surface impoundments would not have to
close or install composite liners but could continue to operate for
their useful life. In the ``D prime'' option, the other elements of the
subtitle D option would remain the same.

IV. Bevill Regulatory Determination Relating to CCRs From Electric
Utilities

    As discussed in the preceding sections, EPA originally conditioned
its May 2000 Regulatory Determination on continued review of, among
other factors, ``the extent to which [the wastes] have caused damage to
human health or the environment; and the adequacy of existing
regulation of the wastes.'' (See 65 FR 32218.) Review of the
information developed over the past ten years has confirmed EPA's
original risk concerns, and has raised significant questions regarding
the accuracy of the Agency's predictions regarding anticipated
improvements in management and state regulatory oversight of these
wastes. Consequently, the Agency has determined that reconsideration of
its May 2000 Regulatory Determination is appropriate, and is
revaluating whether regulation of CCRs under RCRA subtitle C is
necessary in light of the most recent information. The scientific
analyses, however, are complex and present legitimate questions for
comment and further consideration. Thus, while EPA has concluded that
federal regulation of this material is necessary, the Agency has yet
not reached a conclusion as to whether the Bevill determination should
be revised, or whether regulation under RCRA subtitle C or D is
appropriate, but is soliciting comments on the two options described in
the previous section.
    As stated earlier, EPA's application of its discretion in weighing
the eight Bevill factors--and consequently our ultimate decision--will
be guided by the following principles. The first is that EPA's actions
must be protective of human health and the environment. Second, any
decision must be based on sound science. Finally, in conducting this
rulemaking, EPA will ensure that its decision processes are
transparent, and encourage the greatest degree of public participation.
Consequently, to further the public's understanding and ability to
comment on the issues facing the Agency, EPA provides an extensive
discussion of the technical issues associated with the available
information, as well as the policy considerations and the key factors
that will weigh in the Agency's ultimate decision.

A. Basis for Reconsideration of May 2000 Regulatory Determination

    EPA decided in May 2000 that regulation under RCRA subtitle C was
not warranted in light of the trends in present disposal and
utilization practices, the current and potential utilization of the
wastes, and the concerns expressed against duplication of efforts by
other federal and state agencies. In addition, EPA noted that the
utility industry has made significant improvements in its waste
management practices with respect to new management units over recent
years, and most state regulatory programs are similarly improving. In
particular, EPA noted that, of the new units constructed between 1985
and 1995, 60% of the new surface impoundments were lined and 65% had
groundwater monitoring. Further, the risk information available was
limited, although we also noted that we expected that the limited
number of damage cases identified in the Regulatory Determination was
an underestimate. However, EPA did not conclude that the available
information regarding the extent or nature of the risks were equivocal.
However, the Agency noted that ``* * * we identified a potential for
risks from arsenic that we cannot dismiss * * *.'' \38\ EPA further
noted that ``[i]n the absence of a more complete groundwater risk
assessment, we are unable at this time to draw quantitative conclusions
regarding the risks due to arsenic or other contaminants posed by
improper waste management.'' Existing older units that lacked liners
and groundwater monitoring (for surface impoundments, only 26% of all
units had liners and only 38% of all units had groundwater monitoring)
were the major risk drivers in the study.
---------------------------------------------------------------------------

    \38\ See 65 FR 32216 at http://www.epa.gov/epawaste/nonhaz/
industrial/special/fossil/ff2f-fr.pdf.
---------------------------------------------------------------------------

    As discussed in greater detail in section II.B, EPA has revised the
draft quantitative risk assessment made available when it solicited
public comment on the 1999 Report to Congress to account for the
concerns raised by the public during the public comment period. The
results of these risk analyses show that certain management practices--
the disposal of both wet and dry CCRs in unlined waste management
units, but particularly in unlined surface impoundments, and the
prevalence of wet handling, can pose significant risks to human health
and the environment from releases of CCR toxic constituents to ground
water and surface water. The Agency has estimated that there are
approximately 300 CCR landfills and 584 CCR surface impoundments or
similar management units in use at roughly 495 coal-fired power plants.
(Data also indicate that a small number of utilities dispose of CCRs
off-site, typically near the generating utility.) Many of these units--
particularly surface impoundments--lack liners and groundwater
monitoring systems. EPA's revised CCR risk assessment \39\ estimated
the cancer risk from arsenic \40\ that leaches into groundwater from
CCRs managed in units without composite liners to exceed EPA's typical
risk thresholds of 10-4 to 10-6. For example,
depending on various assumptions about disposal practices (e.g.,
whether CCRs are co-disposed with coal refuse), groundwater
interception and arsenic speciation, the 90th percentile risks from
unlined surface impoundments ranged from 2x10-2 to
1x10-4. The risks from clay-lined surface impoundments
ranged from 7x103 to 4x10-5. Similarly, estimated
risks from unlined landfills ranged between 5x10-4 to
3x10-6, and

from 2x10-4 to 5x10-9 for clay-lined landfills.
EPA's risk assessment also estimated HQs above 1 for other metals,
including selenium and lead in unlined and clay-lined units. EPA also
notes in this regard that recent research indicates that traditional
leach procedures (e.g., TCLP and SPLP) may underestimate the actual
leach rates of toxic constituents from CCRs under different field
conditions.
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    \39\ ``Human and Ecological Risk Assessment of Coal Combustion
Wastes,'' (April 2010).
    \40\ The risk estimates for arsenic presented in the revised
risk assessment are based on the existing cancer slope factor of 1.5
mg/kg/d-1 in EPA's Integrated Risk Information System
(IRIS). However, EPA is currently evaluating the arsenic cancer
slope factor and it is likely to increase. In addition, the National
Resources Council (NRC) of the National Academy of Sciences (NAS)
made new recommendations regarding new toxicity information in the
NRC document, ``Arsenic in Drinking Water, 2001 Update.'' Using this
NRC data analysis, EPA calculated a new cancer slope factor of 26
mg/kg/d-1 which would increase the individual risk
estimates by about 17 times.
---------------------------------------------------------------------------

    Recent events also have demonstrated that, if not properly
controlled, these wastes have caused greater damage to human health and
the environment than EPA originally estimated in its risk assessments.
On December 22, 2008, a failure of the northeastern dike used to
contain fly ash occurred at the dewatering area of the TVA's Kingston
Fossil Plant in Harriman, Tennessee. Subsequently, approximately 5.4
million cubic yards of fly ash sludge was released over an
approximately 300 acre area. The ash slide disrupted power, ruptured a
gas line, knocked one home off its foundation and damaged others. A
root-cause analysis report developed for TVA, accessible at http://
www.tva.gov/kingston/rca/index.htm, established that the dike failed
because it was expanded by successive vertical additions, to a point
where a thin, weak layer of fly ash (`slime') on which it had been
founded, failed by sliding. The direct costs to clean up the damage
from the TVA Kingston incident are well into the billions, and is
currently estimated to exceed $1.2 billion.\41\
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    \41\ $3.0 billion is EPA's ``social cost'' estimate assigned in
the April 2010 RIA to the December 2008 TVA Kingston, TN impoundment
release event. Social cost represents the opportunity costs incurred
by society, not just the monetary costs for cleanup. OMB's 2003
``Circular A-4: Regulatory Analysis'' (page 18) instructs Federal
agencies to estimate ``opportunity costs'' for purpose of valuing
benefits and costs in RIAs. This $3.0 billion social cost estimate
is larger than TVA's $933 million to $1.2 billion cleanup cost
estimate (i.e., TVA's estimate as of 03 Feb 2010), because EPA's
social cost estimate consists of three other social cost elements in
addition to TVA's cleanup cost estimate: (a) TVA cleanup cost, (b)
response, oversight and ancillary costs associated with local,
state, and other Federal agencies, (c) ecological damages, and (d)
local (community) socio-economic damages. Appendix Q to the April
2010 RIA provides EPA's documentation and calculation of these four
cost elements, which total $3.0 billion in social cost.
---------------------------------------------------------------------------

    Although the TVA spill was the largest, it was not the only damage
case to involve impoundment stability. A smaller, but still significant
incident occurred in August 2005, when a gate in a dam confining a 40-
acre CCR surface impoundment in eastern Pennsylvania failed. The dam
failure, a violation of the facility's state-issued solid waste
disposal permit and Section 402 of the Clean Water Act, resulted in the
discharge of 0.5 million cubic yards of coal-ash and contaminated water
into the Oughoughton Creek and the Delaware River.
    Moreover, documented cases of the type of damage that EPA
originally identified to result from improper management of CCR have
continued to occur, leading EPA to question whether the risks that EPA
originally identified have been sufficiently mitigated since our May
2000 Regulatory Determination. As discussed in more detail below, and
in materials contained in the docket, there is a growing record of
proven damage cases to groundwater and surface water, as well as a
large number of potential damage cases. Since the May 2000 Regulatory
Determination, EPA has documented an additional 13 proven damage cases
and 4 potential damage cases.
    Further, recently collected information regarding the existing
state regulatory programs \42\ calls into question whether those
programs, in the absence of national minimum standards, have
sufficiently improved to address the gaps that EPA had identified in
its May 2000 Regulatory Determination such that EPA can continue to
conclude that in the absence of federal oversight, the management of
these wastes will be adequate to protect human health and the
environment. Many state regulatory programs for the management of CCRs,
including requirements for liners and groundwater monitoring, are
lacking, and while industry practices may be improving, EPA continues
to see cases of inappropriate management or cases in which key
protections (e.g., groundwater monitoring at existing units) are
absent. Although the joint DOE and EPA study entitled, Coal Combustion
Waste Management at Landfills and Surface Impoundments, 1994-2004,
indicates that most new units appear to be better designed, in that
they are lined and have installed groundwater monitoring systems, and
therefore the total percentages of unprotected units have decreased, it
appears that a large amount of waste is still being disposed into units
that lack the necessary protections of liners, and groundwater
monitoring. Furthermore, while corrective action has generally been
taken at the proven damage cases, the RCRA regulatory program is
designed to prevent contamination in the first place, if at all
practicable, rather than one in which contamination is simply remedied
after discovery.\43\ This information also highlights that EPA still
lacks details regarding the manner and degree to which states are
regulating the management of this material. All of these factors
emphasize the need for prompt federal rulemaking and have led EPA to
reconsider its May 2000 Regulatory Determination.
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    \42\ ASTSWMO Survey Conducted Feb.--Mar. 2009 (Excel
spreadsheet) available in the docket for this proposal.
    \43\ As noted in Appendix I on Damage Cases, of the 16 proven
cases of damages to groundwater, the Agency has been able to confirm
that corrective actions have been completed in seven cases and are
ongoing in the remaining nine cases. Corrective action measures at
these CCR management units vary depending on site specific
circumstances and include formal closure of the unit, capping, re-
grading of ash and the installation of liners over the ash,
groundwater treatment, ground-water monitoring, installation of a
barrier wall, and combinations of these measures.
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    In sum, as a result of the significant new information accumulated
on two of the four considerations specifically identified in the May
2000 Regulatory Determination (65 FR 32218), the Agency has determined
that reevaluation of its original conclusions in light of all of the
RCRA Section 8002(n) study factors is necessary. Based on its
consideration of these statutory factors, EPA has not yet reached a
decision on whether to revise the Bevill Regulatory Determination.
Rather, EPA has summarized the information available for each of the
factors, and identifies those considerations on which EPA believes that
critical information is lacking. Accordingly, EPA is soliciting further
information and public input on each of these considerations that will
factor into the Agency's determination as to whether regulation under
RCRA subtitle C or D is warranted.
    As stated previously and as fully explained in Section XII of
today's proposal and in our Regulatory Impact Analysis, our proposed
requirements for surface impoundment structural stability and
conversion or retrofitting of units, will have substantial benefits in
avoided future clean up costs.

B. RCRA Section 8002(n) Study Factors

    Section 8002(n) of RCRA requires the Administrator to conduct a
detailed and comprehensive study and submit a report on the adverse
effects on human health and the environment, if any, of the disposal
and utilization of fly ash waste, bottom ash waste, slag waste, flue
gas emission control waste, and other by-product materials generated
primarily from the combustion of coal or other fossil fuels. The study
was to include an analysis of the eight factors required under section
8002(n) of RCRA. EPA addressed these study factors in the 1988 and 1999
Reports to

Congress. The findings of these two Reports to Congress were the basis
for our decisions in the August 1993 and the May 2000 Regulatory
Determinations to maintain the Bevill exemption for CCRs. In
considering whether to retain or to reverse the August 1993 and May
2000 Regulatory Determinations regarding the Bevill exemption of CCRs
destined for disposal, we have reexamined the RCRA section 8002(n)
study factors against the data on which we made the May 2000 Regulatory
Determination, as well as the most recent data we have available.
    1. Source and volumes of CCR generated per year: In the mid-1990s,
according to various sources, between 62 and 71 million tons of CCRs
were generated by coal-fired electric power plants.\44\ In comparison,
much larger volumes are being generated now (primarily due to the
increase in coal-fired power plants), with 136 million tons of CCRs
generated by coal-fired electric power plants in 2008.\45\
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    \44\ Cited in ``Technical Background Document for the Report to
Congress on Remaining Wastes from Fossil Fuel Combustion: Industry
Statistics and Waste Management Practices,'' March 1999.
    \45\ ACAA (American Coal Ash Association). 2009. 2008 Coal
Combustion Product (CCP) Production & Use Survey Report. http://
acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_
Survey_Report_FINAL_100509.
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    2. Present disposal and utilization practices: In 2008, 34% (46
million tons) of CCRs were landfilled, 22% (29.4 million tons) were
disposed into surface impoundments,\46\ nearly 37% (50.1 million tons)
were beneficially used (excluding minefill operations), and nearly 8%
(10.5 million tons) were placed in mines. This compares to
approximately 23% (26.2 million tons) landfilled, 46% (53.2 million
tons) disposed of into surface impoundments, 23% beneficially used
(excluding minefill operations), and 8% (9 million tons) placed in
mines in 1995. Thus, while the overall volume of CCRs going to disposal
in surface impoundments and landfills has remained relatively constant,
the total volume going to surface impoundments has decreased, and the
total volume going to landfills has increased.
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    \46\ Estimated from the 2009 ACAA survey and Energy Information
Administration 2005 F767 Power Plant database.
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    The Agency has estimated that there are approximately 300 CCR
landfills and 584 CCR surface impoundments or similar management units
in use at roughly 495 coal-fired power plants. The age of the disposal
units varies considerably. For example, while there are new surface
impoundments, 75% are greater than 25 years old, with 10% being greater
than 50 years old. Similarly, information from an EPRI survey used in
the 1999 Report to Congress indicates that the average planned life
expectancy of a landfill is approximately 31 years, with about 12%
having planned life expectancy over 50 years (with one planning for
over 100 years). Many of these units--particularly surface
impoundments, lack liners and ground water monitoring systems. EPA has
estimated that in 2004, 31% of the CCR landfills and 62% of the CCR
surface impoundments lacked liners, and 10% of the CCR landfills and
58% of the CCR surface impoundments lacked groundwater monitoring.\47\
In the mid-1990s, there were approximately 275 CCR landfills and 286
CCR surface impoundments in use.\48\ EPA does not believe the increased
number of surface impoundments identified in today's rule reflects an
actual change of practice, but rather more stringent definitions, as
well as possibly, the greater availability of more accurate
information. For example, much of the increase in surface impoundments
likely results from counting units that receive wastewater that has
been in contact with even small amounts of coal ash, and thus includes
many units which were not included in EPA's mid-1990 estimates.
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    \47\ Estimated from the 1995 data reported in the May 2000
Regulatory Determination and the data for new units from 1994 to
2004 reported in the 2006 DOE/EPA report ``Coal Combustion Waste
Management at Landfills and Surface Impoundments, 1994-2004.''
    \48\ Technical Background Document, Ibid.
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    a. Existing State Regulatory Oversight. The results of the joint
DOE and EPA study entitled, Coal Combustion Waste Management at
Landfills and Surface Impoundments, 1994-2004 indicates that of the
states evaluated in this report, state regulations have generally
improved since 2000. In addition, it would appear that the industry
itself is changing and improving its management practices. For example,
all new surface impoundments and nearly all new landfills (97%)
identified in the survey that were constructed between 1994 and 2004
were constructed with liners. Regarding the prevalence of groundwater
monitoring at new units, the joint DOE/EPA study suggests that nearly
all new landfills (98%) and most new surface impoundments (81%)
constructed between 1994 and 2004 were constructed with groundwater
monitoring systems. Moreover, the frequency of dry handling in
landfills appears to have increased; approximately two-thirds of the
new units are landfills, while the remaining one-third are surface
impoundments. The number of new units from 1994 to 2004 was 56.
Assuming that replacement continued at a rate of 5.6 per year since
2004, we would have an additional 34 new units, but it would still be
decades at this rate to replace the large collection of older units.
    The DOE/EPA study also identifies significant gaps that remain
under existing state regulation. For example, only 19% (3 out of 19) of
the surveyed surface impoundment unit permits included requirements
addressing groundwater protection standards (i.e., contaminant
concentrations that cannot be exceeded) or closure/post-closure care,
and only 12% (2 out of 12) of surveyed units were required to obtain
bonding or financial assurance. The EPA/DOE report also concluded that
approximately 30 percent of the net disposable CCRs generated is
potentially entirely exempt from the state solid waste permitting
requirements \49\ (EPA/DOE Report at pages 45-46). For example, Alabama
does not currently regulate CCR disposal under any state waste
authority and does not currently have a dam safety program (although
the state has an initiative to develop one). Texas (the largest coal
ash producer) does not require permits for waste managed on-site.\50\
Tennessee currently does not regulate surface impoundments under its
waste authority, but is now reconsidering this, in light of the TVA
spill. Finally, a number of states only regulate surface impoundments
under Clean Water Act authorities, and consequently primarily address
the risks from effluent discharges to navigable waters, but do not
require liners or groundwater monitoring.
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    \49\ 38.7 million tons of out of 129 million tons generated CCRs
(Based on DOE/EIA 2004 data).
    \50\ In Texas, on-site means the same or geographically
contiguous property which may be divided by public or private
rights-of-way, provided the entrance and exit between the properties
is at a cross-roads intersection, and access is by crossing, as
opposed to going along, the right-of-way. Noncontiguous properties
owned by the same person but connected by a right-of-way which he
controls and to which the public does not have access, is also
considered on-site property. (Title 30 TAC 335.1)
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    The Agency recognizes that these statistics may be difficult to
interpret due to the limitations of the study. The study focused on
only eleven states, which account for approximately half the CCRs
generated in the U.S., and it may not address all of the existing
regulatory requirements that states may or could impose through other
authorities to control these units. As one example, the DOE/EPA report
notes that four of the six states that do not require solid waste
permits rely on other state authorities to regulate these units: ``In

Florida, if CCWs are disposed in an on-site landfill at a coal-fired
electric generating plant authorized under the Florida Power Plant
Siting Act (PPSA), no separate permits, including solid waste
construction and operation permits, are required. Instead, the entire
facility is covered under the PPSA certification, which will contain
the same substantive requirements as would otherwise have been imposed
by other permits.'' (EPA/DOE Report at page 46). The DOE/EPA report
identified whether states tightened, relaxed, or were neutral with
regard to program changes. From the time of the 1999 Report to Congress
to 2005, most all programs were neutral, with a couple of programs
tightening requirements and none relaxing requirements. Going back to
the period of the 1988 Report to Congress to 2005, two states (Alabama
and Florida) are reported to have relaxed portions of their standards,
while not tightening any other portions of their program. Part of the
difficulty in interpreting this information stems from the fact that
the survey responses contained little or no details of the state
requirements; rather, the responses merely indicated (by checking a
box) whether states imposed some sort of requirement relating to the
issue. Consequently, the Agency lacks detailed information on the
content of the requirements, and whether, for example, performance
based requirements or other state programs are used to address the
risks from these units. EPA also received detailed comments on this
report authored by several environmental groups, who criticized several
of the general conclusions. These comments are included in the rule
docket (see comment attachment submitted by Marty Rustan on behalf of
Lisa Evans, Attorney, Earthjustice; EPA-HQ-RCRA-2006-0796-0446.5).
    A more recent survey conducted by the Association of State and
Territorial Solid Waste Management Officials (ASTSWMO) seems to support
the view that the states still have not yet adequately implemented
regulatory programs over CCR management units, although like the DOE/
EPA study, it lacks details on the substance of the state requirements.
According to a 2009 ASTSWMO survey of states with coal ash generation
\51\ (available in the docket), of the 42 states with coal fired
utilities, at least 36 have permit programs for landfills used to
manage CCRs, and of the 36 states that have CCR surface impoundments,
25 have permit programs. Permitting is particularly important to
provide oversight and to approve implementation plans such as the
placement of groundwater monitoring wells. Without a state permit
program, regulatory flexibility is limited, and certification by an
independent registered professional engineer is necessary. With regard
to liner requirements, 36% (15 of the 42 states that responded to this
question) do not have minimum \52\ liner requirements for CCR
landfills, while 67% (24 of the 36 states that responded to this
question) do not have CCR liner requirements for surface impoundments.
Similarly, 19% (8 of the 42 states that responded to this question) do
not have minimum groundwater monitoring requirements for landfills and
61% (22 of the 36 states that responded to this question) do not have
groundwater monitoring requirements for surface impoundments.\53\ These
findings are particularly significant as groundwater monitoring for
these kinds of units is a minimum for any credible regulatory regime.
The 2009 ASTSWMO survey also indicates that only 36 percent of the
states regulate the structural stability of surface impoundments, and
only 31 percent of the states require financial assurance for surface
impoundments. Because structural stability of surface impoundments is
largely regulated by state dam safety programs which are separate from
state solid waste programs, EPA recognizes that information from the
dam safety programs would be a much more meaningful measure of state
regulation of the structural stability of surface impoundments, and
solicits such information.
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    \51\ ASTSWMO Survey Conducted Feb.-Mar. 2009 (Excel
spreadsheet).
    \52\ For both landfills and surface impoundments, most of the
states that responded to questions addressing their liner and
groundwater monitoring program provisions had less stringent
requirements, e.g., allowing variance, exemption, or a case-by-case
evaluation. In the absence of state-specific information, we are
unable to translate these statistics into a concrete number of
affected waste units.
    \53\ Additionally, the July 2009 Petition pointed out
deficiencies in state regulatory programs.
---------------------------------------------------------------------------

    Thus, while the states seem to be regulating landfills to a greater
extent, given the significant risks associated with surface
impoundments, these results suggest that there continue to be
significant gaps in state regulatory programs for the disposal of CCRs.
(See Letter from ASTSWMO to Matt Hale dated April 1, 2009, a copy of
which is in the docket to today's proposed rule for complete results of
the survey.)
    EPA is also aware of some additional information from ASTSWMO.
There are 15 states (Colorado, Florida, Indiana, Iowa, Kansas,
Kentucky, Maryland, Minnesota, Mississippi, Montana, New York, North
Carolina, Ohio, Pennsylvania, and Virginia) that were considering
changes to their CCR regulations at the time of the ASTSWMO survey
(February 2009). In late November 2009, ASTSWMO also identified 15
states (Arizona, Delaware, Georgia, Idaho, Iowa, Kansas, Louisiana,
Maryland, Mississippi, North Dakota, South Carolina, Tennessee,
Washington, Wisconsin, and West Virginia) that had revised their CCR
requirements since 2000. Finally, ASTSWMO identified 8 states (Georgia,
Illinois, Indiana, Iowa, Montana, Ohio, Pennsylvania, and South
Carolina) which are requiring groundwater monitoring at existing
facilities that previously did not have groundwater monitoring.
    Several issues complicate this assessment, however. As noted
previously, EPA lacks any real details regarding how states, in
practice, oversee the management of these materials when treated as
wastes. For example, some states may use performance based standards or
implement requirements to control CCR landfills and surface
impoundments under other state programs. Also, most of the new data
primarily focuses on the requirements applicable to new management
units, which represent approximately 10% of the disposal units. EPA has
little, if any information, that describes the extent to which states
and utilities have implemented requirements--such as groundwater
monitoring, for existing units, for the many landfills and surface
impoundments that receive CCRs. The information currently in the record
with respect to existing units is fifteen years old. EPA expects that
it would be unlikely that states would have required existing units to
install liners, states would have been more likely to have imposed
groundwater monitoring for such units over the last 15 years. Finally,
as discussed in the next section, the fact that many of the surface
impoundments are located adjacent to water bodies--which is not
accounted for in EPA's groundwater risk assessment--may affect our
assessment of the extent of the liner and groundwater monitoring
requirements that would be necessary. Therefore, EPA solicits detailed
comments specifically on the current management practices of state
programs, not only under state waste authorities, but under other
authorities as well. The adequacy of state regulation is one of the key
issues before the Agency, as it will address some of the more
significant questions remaining regarding the extent of the

risks presented by the disposal of CCRs. Accordingly, the Agency
specifically solicits information, whether from state regulatory
authorities or from members of the public, regarding details on the
entire state regulatory structure, including the specific requirements
that states have in place to regulate CCRs, and to provide oversight of
these units. EPA would also welcome more detailed information regarding
the states' historic practice in implementing its existing
requirements, including for example, the states' record of enforcement
and its practice in providing for public participation in the
development and implementation of any existing permitting requirements.
EPA is particularly interested in information on the extent to which
states have implemented requirements applicable to the older, existing
units, which represent the majority of the units into which CCRs are
currently disposed (approximately 90%). EPA also requests information
on the extent to which EPA's current information adequately reflects
changes in industry practices, adopted independent of state
requirements.
    b. Beneficial Use. In the May 2000 Regulatory Determination, EPA
stated: ``The Agency has concluded that no additional regulations are
warranted for coal combustion wastes that are used beneficially (other
than for minefilling) and for oil and gas combustion wastes. We do not
wish to place any unnecessary barriers on the beneficial use of fossil
fuel combustion wastes so that they can be used in applications that
conserve natural resources and reduce disposal costs.'' (65 FR 32214)
(See separate discussion regarding minefilling in section IV. E of this
preamble.) EPA identified specific beneficial uses as covered by the
May 2000 determination. In particular, EPA stated that: ``Beneficial
purposes include waste stabilization, beneficial construction
applications (e.g., cement, concrete, brick and concrete products, road
bed, structural fill, blasting grit, wall board, insulation, roofing
materials), agricultural applications (e.g., as a substitute for lime)
and other applications (absorbents, filter media, paints, plastics and
metals manufacture, snow and ice control, waste stabilization).'' (See
65 FR 32229) These beneficial uses are described in more detail in
EPA's Report to Congress on Wastes from the Combustion of Fossil Fuels
in March 1999 (see Volume 2, Section 3.3.5).
    Since EPA's Regulatory Determination in May 2000, there has been a
significant increase in the use of CCRs and the development of
established commercial sectors that utilize and depend on the
beneficial use of CCRs. Additional uses have been identified; for
example, the use of CCRs as ingredients in specific products, such as
resin-bound products or mineral filler in asphalt. New applications of
CCRs have been developed, which may hold great green house gas (GHG)
benefits (for example, fly ash bricks and a process to use CO2
emissions to produce cement). Further, EPA expects that uses could
shift in the future because the composition and characteristics of CCRs
are likely to change due to the addition of new air pollution controls
at coal-fired utilities. (See section IV. D. below for a more detailed
discussion on the beneficial use of CCRs.)
    3. Potential danger, if any, to human health and the environment
from the disposal and reuse of CCRs:
    a. From Disposal. The contaminants of concern in CCRs include
antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury,
nickel, selenium, silver and thallium. Potential human exposure
pathways for these contaminants from the disposal of CCRs are ground
water ingestion, inhalation, and the consumption of fish exposed to
contaminants. Ecological impacts include surface water contamination,
contamination of wetlands, and aquatic life exposure to contaminants of
concern. As discussed in section II. B, V., and the Regulatory Impact
Analysis, the risks modeled for the 2010 risk assessment often exceeded
EPA's typical regulatory levels of concern. With very few exceptions,
the risks modeled for the 2010 risk assessment correspond with ground
water exceedances of constituents observed in EPA's damage case
assessments (e.g., arsenic, boron, cadmium, lead, molybdenum, and
selenium were modeled and found to exceed the risk criteria in at least
some instances, and were also found in at least some of the damage
cases). Additionally, as discussed in section I.F.2, the potential
exists for the chemical characteristics of certain CCRs (e.g., fly ash
and FGD) to increase, which could result in increases in releases from
management units, particularly if such wastes are placed in old unlined
units, as a result of the increased use and application of advanced air
pollution control technologies in coal-fired power plants. Further
details on the results of EPA's quantitative groundwater risk
assessment, and the technical issues that remain to be addressed, and
on the unquantified human and ecological risks can be found in section
II and in the Regulatory Impact Analysis for today's proposal.
    EPA also conducted a population risk assessment for the
groundwater-arsenic pathway, as a complement to the individual risk
analysis. While the RCRA program necessarily focuses on individual
risks, and individual risks have been the basis of previous Bevill and
hazardous waste determinations, the population risk estimate provides
perspective, and was used to develop the Agency's cost benefit analyses
of different regulatory approaches (discussed in section XII.A of this
preamble). In this analysis, EPA calculated a best estimate that
current risks from arsenic via the groundwater used as drinking water
pathway are 2,509 total excess cancers, over a 75-year period.\54\ (A
75-year period was used in this analysis to capture peak risk while the
RIA generally covers 50 years.) These estimates are based on a cancer
slope factor which represents the most recent science derived from a
2001 National Resources Council review of arsenic toxicity. It should
be noted that the analysis did not include risks from other pathways or
constituents, as explained in section 5A of the Regulatory Impact
Analysis for this proposal.
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    \54\ Chapter 5, Page 121 of the Regulatory Impact Analysis for
this proposal.
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    Of the approximately 584 surface impoundments currently operating
in the United States, a certain percentage of these have a great
potential for loss of human life and environmental damage in the event
of catastrophic failure. Based on the information collected from EPA's
recent CERCLA 104(e) information request letters 109 impoundments have
either a high or significant hazard potential rating,\55\ thirteen of
which were not designed by a professional engineer. Of the total
universe of surface impoundments, approximately 186 of these units were
not designed by a professional engineer. Surface impoundments are
generally designed to last the typical operating life of coal-fired
boilers, on the order of 40 years. However, many impoundments are
aging: 56 units are older than 50 years, 96 are older than 40 years,
and 340 are between 26 and 40 years old. In recent years, problems have
continued to arise from these units, which appear to be related to the
aging infrastructure, and the fact that many units may be nearing the
end of

their useful lives. For example, as a result of the administrative
consent order issued after the December 2008 spill, TVA conducted
testing which showed that another dike at TVA's Kingston, Tennessee
plant had significant safety deficiencies. Further, in response to
EPA's CERCLA 104(e) information request letter, a total of 35 units at
25 facilities reported historical releases. These range from minor
spills to a spill of 0.5 million cubic yards of water and fly ash.
Additional details regarding these releases can be found in the docket
for this rulemaking. EPA continues its assessments of CCR surface
impoundments. The most recent information on these can be found on
EPA's internet site at http://www.epa.gov/epawaste/nonhaz/industrial/
special/fossil/surveys2/index.htm#surveyresults.
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    \55\ 429 of these impoundments currently have no rating. Thus,
the Agency expects the number of surface impoundments with a high or
significant hazard rating may increase as additional impoundments
are assigned ratings. See the definitions in the Summary section of
this notice for the definitions of high and significant hazard
potential.
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    b. From Beneficial Use. The risks associated with the disposal of
CCRs stem from the specific nature of that activity and the specific
risks it involves; that is, the disposal of CCRs in (often unlined)
landfills or surface impoundments, with hundreds of thousands, if not
millions, of tons placed in a single concentrated location. And in the
case of surface impoundments, the CCRs are managed with water, under a
hydraulic head, which promotes more rapid leaching of contaminants into
neighboring groundwater than do landfills. The beneficial uses
identified as excluded under the Bevill amendment for the most part
present a significantly different picture, and a significantly
different risk profile.
    In 1999 EPA conducted a risk assessment of certain agricultural
uses of CCRs,\56\ since the use of CCRs in this manner was considered
the most likely to raise concerns from a human health and environmental
point of view. EPA's risk assessment estimated the risks associated
with such uses to be within the range of 1x10-6. The results
of the risk assessment, as well as EPA's belief that the use of CCRs in
agricultural settings was the most likely use to raise concerns,
resulted in EPA concluding that none of the identified beneficial uses
warranted federal regulation, because ``we were not able to identify
damage cases associated with these types of beneficial uses, nor do we
now believe that these uses of coal combustion wastes present a
significant risk to human health or the environment.'' (65 FR 32230,
May 22, 2000.) EPA also cited the importance of beneficially using
secondary materials and of resource conservation, as an alternative to
disposal.
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    \56\ 1998 Draft Final Report; Non-groundwater Pathways, Human
Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase
2 (FFC2) and its appendices (A through J); available at http://
www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm.
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    To date, EPA has still seen no evidence of damages from the
beneficial uses of CCRs that EPA identified in its original Regulatory
Determination. For example, there is wide acceptance of the use of CCRs
in encapsulated uses, such as wallboard, concrete, and bricks because
the CCRs are bound into products. The Agency believes that such
beneficial uses of CCRs offer significant environmental benefits.
    As we discuss in other sections of this preamble, there are
situations where large quantities of CCRs have been used
indiscriminately as unencapsulated, general fill. The Agency does not
consider this a beneficial use under today's proposal, but rather
considers it waste management.

Environmental Benefits

    The beneficial use of CCRs offers significant environmental
benefits, including greenhouse gas (GHG) reduction, energy
conservation, reduction in land disposal (i.e., avoidance of potential
CCR disposal impacts), and reduction in the need to mine and process
virgin materials and the associated environmental impacts.
Specifically:
    Greenhouse Gas and Energy Benefits. The beneficial use of CCRs
reduces energy consumption and GHG emissions in a number of ways. One
of the most widely recognized beneficial applications of CCRs is the
use of coal fly ash as a substitute for Portland cement in the
manufacture of concrete. Reducing the amount of cement produced by
beneficially using fly ash as a substitute for cement leads to large
supply chain-wide reductions in energy use and GHG emissions.\57\ For
example, fly ash typically replaces between 15 and 30 percent of the
cement in concrete, although the percentages can and have been higher.
However, assuming a 15 to 30 percent fly ash to cement replacement
rate, and considering the approximate amount of cement that is produced
each year, would result in a reduction of GHG emissions by
approximately 12.5 to 25 million tons of CO2 equivalent and
a reduction in oil consumption by 26.8 to 53.6 million barrels of
oil.\58\ This estimate is likely to underestimate the total benefits
that can be achieved. As an added benefit, the use of fly ash generally
makes concrete stronger and more durable. This results in a longer
lasting material, thereby marginally reducing the need for future
cement manufacturing and corresponding avoided emissions and energy
use.
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    \57\ Waste and Materials-Flow Benchmark Sector Report:
Beneficial Use of Secondary Materials--Coal Combustion Products,
February 12, 2008.
    \58\ Avoided GHG and energy saving estimates based on energy and
environmental benefits estimates in the EPA report entitled, ``Study
on Increasing the Usage of Recovered Mineral Components in Federally
Funded Projects Involving Procurement of Cement or Concrete''
available at http://www.epa.gov/osw/conserve/tools/epg/pdf/rtc/
report4-08.pdf.
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    Benefits From Reducing the Need To Mine and Process Virgin
Materials. CCRs can be substituted for many virgin materials that would
otherwise have to be mined and processed for use. These virgin
materials include limestone to make cement, and Portland cement to make
concrete; mined gypsum to make wallboard, and aggregate, such as stone
and gravel for uses in concrete and road bed. Using virgin materials
for these applications requires mining and processing them, which can
impair wildlife habitats and disturb otherwise undeveloped land. It is
beneficial to use secondary materials--provided it is done in an
environmentally sound manner--that would otherwise be disposed of,
rather than to mine and process virgin materials, while simultaneously
reducing waste and environmental footprints. Reducing mining,
processing and transport of virgin materials also conserves energy,
avoids GHG emissions, and reduces impacts on communities.
    Benefits From Reducing the Disposal of CCRs. Beneficially using
CCRs instead of disposing of them in landfills and surface impoundments
also reduces the need for additional landfill space and any risks
associated with their disposal. In particular, the U.S. disposed of
over 75 million tons of CCRs in landfills and surface impoundments in
2008, which is equivalent to the space required of 26,240 quarter-acre
home sites under 8 feet of CCRs.
    While the Agency recognizes the need for regulations for the
management of CCRs in landfills and surface impoundments, we strongly
support the beneficial use of CCRs in an environmentally sound manner
because of the significant environmental benefits that accrue both
locally and globally. As discussed below in section XII.A, the current
beneficial use of CCRs as a replacement for industrial raw materials
(e.g., Portland cement, virgin stone aggregate, lime, gypsum) provides
substantial annual life cycle environmental benefits for these
industrial applications. Specifically,

beneficially using CCRs as a substitute for industrial raw materials
contributes (a) $4.89 billion per year in energy savings, (b) $0.081
billion per year in water savings, (c) $0.239 billion per year in GHG
\59\ (i.e., carbon dioxide and methane) emissions reduction, and (d)
$17.8 billion per year in other air pollution reduction. In addition,
these applications also result in annual material and disposal cost
savings of approximately $2.93 billion. All together, the beneficial
use of CCRs provides $25.9 billion in annual national economic and
environmental benefits (relative to 2005 tonnage).\60\
---------------------------------------------------------------------------

    \59\ The RIA monetizes the annual tonnage of greenhouse gas
effects associated with the CCR beneficial use life cycle analysis,
based on the 2009 interim social cost of carbon (i.e., interim SCC)
of Table III.H.6-3, page 29617 of the joint EPA and DOT-NHTSA
``Proposed Rulemaking to Establish Light-Duty Vehicle Greenhouse Gas
Emission Standards and Corporate Average Fuel Economy Standards,''
Federal Register, Volume 74, No. 186, 28 Sept 2009. The value
applied in the RIA is the $19.50 per ton median value from the $5 to
$56 per ton range displayed in the 2007 column in that source.
Furthermore, the RIA updated the 2007$ median value from 2007 to
2009 dollars using the NASA Gross Domestic Product Deflator
Inflation Calculator at http://cost.jsc.nasa.gov/inflateGDP.html.
EPA is aware that final SCC values were published on March 9, 2010
in conjunction with a Department of Energy final rule. EPA intends
to use the final SCC values for the CCR final rule RIA. The final
SCC values are published in the Department of Energy, Energy
Efficiency & Renewable Energy Building Technologies Program, ``Small
Electric Motors Final Rule Technical Support Document: Chapter 16--
Regulatory Impact Analysis,'' March 9, 2010 at http://
www1.eere.energy.gov/buildings/appliance_standards/commercial/sem_
finalrule_tsd.html).
    \60\ These benefits estimates are further discussed in Chapter
5C of the RIA which is available in the docket for this proposal.
---------------------------------------------------------------------------

    However, as discussed in the next section, there are cases where
large quantities of CCRs have been ``used'' indiscriminately as
unencapsulated ``fill,'' e.g., to fill sand and gravel pits or
quarries, or as general fill (e.g., Pines, Indiana and the Battlefield
Golf Course in Chesapeake, Virginia \61\). Although EPA does not
consider these practices to be legitimate beneficial uses, others
classify them as such. In any case, EPA has concluded that these
practices raise significant environmental concerns.
---------------------------------------------------------------------------

    \61\ These instances are associated with 7 proven damage cases
and 1 potential damage case.
---------------------------------------------------------------------------

    4. Documented cases in which danger to human health or the
environment from surface runoff or leachate has been proved: As
described previously, EPA has identified 27 proven damage cases: 17
cases of damage to groundwater, and ten cases of damage to surface
water, seven of which are ecological damage cases. Sixteen of the 17
proven damage cases to groundwater involved disposal in unlined units--
for the one additional unit, it is unknown whether there was a liner.
We have also identified 40 potential damage cases to groundwater and
surface water. These numbers compare to 14 proven damage cases and 36
potential cases of damage when the Agency announced its Regulatory
Determination in May 2000. The Agency believes that these numbers
likely underestimate the number of proven and potential damage cases
and that it is likely that additional cases of damage would be found if
a more comprehensive evaluation was conducted, particularly since much
of this waste has been (and continues to be) managed in unlined
disposal units.
    Several of the new damage cases involve activities that differ from
prior damage cases, which were focused on groundwater contamination
from landfills and surface impoundments. These new cases present
additional risk concerns that EPA did not evaluate in the May 2000
Regulatory Determination. Specifically, some of the recent proven
damage cases involved the catastrophic release due to the structural
failure of CCR surface impoundments, such as the dam failures that
occurred in Martins Creek, Pennsylvania and Kingston, Tennessee.
    In addition, a number of proven damage cases involve the large-
scale placement, akin to disposal, of CCRs, under the guise of
``beneficial use.'' The ``beneficial use'' in these cases involved the
filling of old, unlined quarries or gravel pits, or the regrading of
landscape with large quantities of CCRs. For example, the 216-acre
Battlefield Golf Course was contoured with 1.5 million yards of fly ash
to develop the golf course. In late 2008, groundwater and surface water
sampling was conducted. There were exceedances of primary drinking
water standards in on-site groundwater for contaminants typically found
in fly ash. In addition, there were exceedances of secondary drinking
water standards in both on-site and off-site groundwater (in nine
residential wells); however, the natural levels of both manganese and
iron in the area's shallow aquifer are very high (0.14 mg/L to 0.24.mg/
L and 5.0 mg/L to 13.0 mg/L, respectively), and, thus, it could not be
ruled out that the elevated levels of manganese and iron are a result
of the natural background levels of these two contaminants. Surface
water samples showed elevated levels of aluminum, chromium, iron, lead,
manganese, and thallium in one or more on-site samples. The lone off-
site surface water sample had elevated levels of aluminum, iron, and
manganese. In April 2010 EPA issued a Final Site Inspection Report \62\
which concluded that (i) metals contaminants were below MCLs and Safe
Drinking Water Act action levels in all residential wells that EPA
tested; (2) the residential well data indicate that metals are not
migrating from the fly ash to residential wells; and (iii) there are no
adverse health effects expected from human exposure to surface water or
sediments on the Battlefield Golf Course site as the metal
concentrations were below the ATSDR standards for drinking water and
soil. Additionally, the sediments samples in the ponds were below EPA
Biological Technical Assistance Group screening levels and are not
expected to pose a threat to ecological receptors. Similarly, beginning
in 1995, the BBBS sand and gravel quarries in Gambrills, Maryland, used
fly ash and bottom ash from two Maryland power plants to fill excavated
portions of two sand and gravel quarries. Groundwater samples collected
in 2006 and 2007 from residential drinking water wells near the site
indicated that, in certain locations, contaminants, including heavy
metals and sulfates, were present at or above groundwater quality
standards. Private wells in 83 homes and businesses in areas around the
disposal site were tested. MCLs were exceeded in 34 wells [arsenic (1),
beryllium (1), cadmium (6), lead (20),\63\ and thallium (6)]. SMCLs
were exceeded in 63 wells [aluminum (44), manganese (14), and sulfate
(5)]. The state concluded that leachate from the placement of CCRs at
the site resulted in the discharge of pollutants to waters of the
state.
---------------------------------------------------------------------------

    \62\ http://www.epa.gov/reg3hwmd/CurrentIssues/finalr-
battlefield_golf_club_site/redacted_DTN_0978_Final_
Battlefield_SI_Report.pdf.
    \63\ It is uncertain whether lead exceedances were due to CCRs
or lead in the plumbing and water holding tanks.
---------------------------------------------------------------------------

    Further details on these additional damage cases are provided in
section II. C (above), and in the Appendix to this notice.
    As mentioned in section II.C, during the development of this
proposal, EPA received new reports from industry and citizen groups
regarding damage cases. Industry provided information that, they
suggested, shows that many of EPA's listed proven damage cases do not
meet EPA's criteria for a damage case to be proven. On the other hand,
citizen groups recently identified additional alleged damage cases. The
Agency has not yet had an opportunity to evaluate this additional
information. EPA's analysis, as well as the additional information from
industry and citizen groups, all of which is available in the docket to
this proposed rule, would

benefit from public input and further review, in the interest of
reaching a more complete understanding of the nature and number of
damage cases. EPA encourages commenters to consider all of these
analyses in developing their comments.
    5. Alternatives to current disposal methods: There are no
meaningful disposal alternatives other than land disposal. Improved
disposal management practices are practical (e.g., liners, groundwater
monitoring, dust control), although EPA has not identified meaningful
or practical treatment options prior to disposal, other than
dewatering. (There are, however, available technologies, or
technologies under development, to process CCRs now likely destined for
disposal so that they can effectively be converted to appropriate
beneficial uses.) The beneficial use of these materials as products
continues to be an important alternative to disposal.
    6. The cost of such alternative disposal methods: The Agency has
estimated the nationwide costs to the electric utility industry (or to
electric rate payers) for each alternative considered for this
proposal. These estimates are discussed in the regulatory impact
analysis presented within section XII.A of this preamble.
    7. The impact of the alternative disposal methods on the use of
coal and other natural resources: The alternative disposal methods
mentioned above are not expected to impact the use of coal or other
natural resources. However, we would note that some surface
impoundments at coal-fired utilities are also used as wastewater
treatment systems for other non-CCR wastewaters. Therefore, if
facilities switch from wet to dry handling of CCRs, construction of
alternative wastewater treatment systems could become necessary for
other non-CCR wastewaters, especially if they involved acidic wastes
that are currently neutralized by the coal ash. (Note that the issue of
beneficial uses of CCRs is discussed below; if the effect of a subtitle
C approach is to increase beneficial uses, it could lead to a decrease
in the use of virgin materials like ingredients in cement making,
aggregate, mined gypsum, etc. On the other hand, if the effect of that
approach were to decrease beneficial uses, as some commenters
suggested, it would have the opposite effect on the use of natural
resources.)
    8. The current and potential utilization of CCRs: In 2008, nearly
37% (50.1 million tons) of CCRs were beneficially used (excluding
minefill operations) and nearly 8% (10.5 million tons) were placed in
minefills. (This compares to 23% of CCRs that were beneficially used,
excluding minefilling, at the time of the May 2000 Regulatory
Determination, and represents a significant increase.)
    Parties have commented that any regulation of CCRs under RCRA
subtitle C will impose a crippling stigma on their beneficial use, and
eliminate or significantly curtail these uses, even if EPA were to
regulate only CCRs destined for disposal, without modifying the
regulatory status of beneficial reuse. On the other hand, other parties
have commented that increasing the cost of disposal of CCRs through
regulation under subtitle C will actually increase their usage in non-
regulated beneficial uses, simply as a result of the economics of
supply and demand. States, at the same time, have commented that, by
operation of state law, the beneficial use of CCRs would be prohibited
under the states' beneficial use programs, if EPA designated CCRs as
hazardous waste when disposed of in landfills or surface impoundments.
At the time of the May 2000 Regulatory Determination, commenters had
raised this similar concern, and without agreeing that regulation under
RCRA subtitle C would necessarily affect the beneficial reuse of this
material, EPA nevertheless strongly expressed concern that beneficial
use not be adversely affected.
    EPA is interested in additional information supporting the claims
that ``stigma'' will drive people away from the use of valuable
products, or that states will prohibit the reuse of CCRs under their
beneficial use programs if EPA regulates any aspect of CCR management
under subtitle C. Specifically, the Agency requests that commenters
provide analyses and other data and information that demonstrate this
to be the case. To date, we have received statements and declarations
that regulation under subtitle C will have devastating effects on
beneficial uses of CCRs. In addition, for those commenters who suggest
that regulating CCRs under subtitle C of RCRA would raise liability
issues, EPA requests that commenters describe the types of liability
and the basis, data, and information on which these claims are based.
The issue of beneficial use and stigma are more fully discussed in
section VI, where we discuss the alternative of regulating CCRs under
subtitle C of RCRA. EPA would also be interested in suggestions on
methods by which the Agency could reduce any stigmatic impact that
might indirectly arise as a result of regulation of CCRs destined for
disposal as a ``special'' waste under RCRA subtitle C.

C. Preliminary Bevill Conclusions and Impact of Reconsideration

    The Agency is proposing two different approaches to regulating
CCRs: Regulation as a ``special'' waste listed under RCRA subtitle C if
EPA decides to lift the Bevill exemption with respect to disposal; and
regulation as a solid waste under RCRA subtitle D, if the Bevill
exemption is retained for disposal. Under both of these approaches,
requirements for liners and groundwater monitoring would be
established, although there are differences with respect to the other
types of requirements that can be promulgated by EPA under RCRA
subtitle C and D. In addition, as discussed in greater detail below,
one of the primary differences between the various approaches relates
to the degree and extent of federal oversight, as this varies
considerably between the alternatives. As noted previously, EPA has not
yet reached a decision on whether to regulate CCRs under RCRA subtitle
D or C, but continues to evaluate each of these options in light of the
8002(n) factors.
    In determining the level of regulation appropriate for the
management of CCRs, several considerations weigh heavily with the
Agency; information on these issues will therefore be important for
commenters to consider as they prepare their comments. One particularly
critical question relates to the extent of the risks posed by the
current management of this material, along with the corresponding
degree of Federal oversight and control necessary to protect human
health and the environment. As discussed in the preceding sections,
since EPA's Regulatory Determination in May 2000, new information has
called into question EPA's original assessment of the risks posed by
the current management of CCRs that are disposed of. In summary, this
includes (1) The results of EPA's 2010 risk assessment, which indicates
that certain management practices--particularly units without composite
liners and the prevalence of wet handling can pose significant risks;
(2) the growing record of proven damage cases to ground water and
surface water, as well as a large number of potential damage cases; (3)
recent events, which have demonstrated that these wastes have caused
greater damage to human health and the environment than originally
estimated (i.e., catastrophic environmental impacts from surface
impoundment breaches, and damage resulting from ``sham beneficial
uses''); and (4) questions regarding the adequacy of

state regulatory programs for the management of CCRs, as many states
appear to lack key protective requirements for liners and groundwater
monitoring and a permitting program to ensure that such provisions are
being properly implemented, even though overall industry practices
appear to be improving. All of these considerations illustrate that in
many cases CCRs have not been properly managed. The question is whether
federal regulation is more appropriate under subtitle C or subtitle D
of RCRA.
    Several significant uncertainties remain with respect to all of the
identified considerations. For example, as discussed previously, the
data and analyses associated with this proposal are complex, and
several uncertainties remain in EPA's quantitative risk analysis. One
of these uncertainties is the evolving character/composition of CCRs
due to electric utility upgrades and retrofits needed to comply with
the emerging CAA requirements, which could present new or otherwise
unforeseen contaminant issues (e.g., hexavalent chromium from post-
NOX controls). Other uncertainties relate to the extent to
which some sampled data with high concentrations used in the risk
assessment accurately reflect coal ash leaching from landfills or
surface impoundments, and the extent to which releases from surface
impoundments located in close proximity to water bodies intercept
drinking water wells. For example, as explained earlier in the
preamble, some data reflected pore water taken in the upper section of
a surface impoundment where coal refuse was placed. There were acid
generating conditions and high concentrations of arsenic, but the data
demonstrated that the underlying coal ash neutralized the acid
conditions and greatly reduced the arsenic which leached from the
bottom of the impoundment. There are also technical issues associated
with releases from surface impoundments located in close proximity to
water bodies which intercept drinking water wells. For example, surface
impoundments are commonly placed next to rivers, which can intercept
the leachate plume and prevent contamination of drinking water wells on
the other side of the river. Also, in such circumstances the direction
of groundwater flow on both sides of the river may be towards the
river; thus, the drinking water well on the opposite side of a river
may not be impacted.
    As mentioned previously, EPA has received additional reports on
damage cases, one from industry and one from citizen groups. Closer
analyses of these reports could have the potential to significantly
affect the Agency's conclusions.
    An equally significant component of the overall picture, if not
more so, relates to how effectively state regulatory programs address
the risks associated with improper management of this material. As
discussed earlier in this preamble, the continued damage cases and the
reports on state regulatory programs call into question whether the
trend in improving state regulatory regimes that EPA identified in May
2000 has materialized to the degree anticipated in the Regulatory
Determination. Although recent information indicates that significant
gaps remain, EPA continues to lack substantial details regarding the
full extent of state regulatory authority over these materials, and the
manner in which states have in practice, implemented this oversight.
Nevertheless, based on the information made available on state
programs, the Agency is reticent to establish a regulatory program
without any federal oversight. Thus, EPA seeks additional details on
regulation of CCRs by states to ensure that EPA's understanding of
state programs is as complete as possible. While EPA recognizes that
the extent of regulation of CCRs varies between states, EPA is not yet
prepared to draw overall conclusions on the adequacy of state programs,
as a general matter. EPA is, therefore, requesting that commenters, and
particularly state regulatory authorities, provide detailed information
regarding the extent of available state regulatory authorities, and the
manner in which these have been, and are currently implemented. In this
regard, EPA notes that ``survey'' type information that does not
provide these details is unlikely to be able to resolve the concerns
arising from the recent information developed since the May 2000
Regulatory Determination. EPA is also soliciting comments on the extent
to which the information currently available to the Agency reflects
current industry practices at both older and new units. For example,
EPA would be particularly interested in information that indicates how
many facilities currently have groundwater monitoring systems in place,
how those systems are designed and monitored, and what, if anything,
they have detected.
    EPA has identified several issues that will be relevant as it
continues to evaluate the overall adequacy of state regulatory
programs. Specifically, EPA intends to consider how state regulatory
programs have, in practice, evaluated and imposed requirements to
address: (1) Leachate collection; (2) groundwater monitoring; (3)
whether a unit must be lined, and the type of liner needed; (4) the
effectiveness of existing management units as opposed to new management
units; (5) whether the state requires routine analysis of CCRs; (6)
whether financial responsibility requirements are in place for the
management of CCRs; (7) the extent of permit requirements, including
under what authorities these disposal units are permitted, the types of
controls that are included in permits, and the extent of oversight
provided by the states, (8) whether state programs include criteria for
siting new units; (9) the extent of requirements for corrective action,
post-closure monitoring and maintenance; (10) the state's pattern of
active enforcement and public involvement; and (11) whether or not
these facilities have insurance against catastrophic failures.
    Directly related to the level of risk presented by improper
management of CCRs, EPA is also weighing the differing levels of
Federal oversight and control, and the practical implementation
challenges, associated with the level and type of regulation under RCRA
subtitles C and D. In the interest of furthering the public
understanding of this topic, EPA presents an extensive discussion of
the differences and concerns raised between regulation under subtitles
C and D of RCRA, including a comparison of the advantages and
disadvantages of each.
    The subtitle C approach proposed today would provide full national
cradle-to-grave control over CCRs destined for disposal, consistently
managed under federally enforceable standards and through federal
permits, or permits issued by the states that EPA has authorized to
regulate CCRs in lieu of EPA. Permits can be a particularly important
mechanism, because they allow the regulatory Agency to scrutinize the
design of disposal units and the management practices of the permit
applicant. They also allow the regulator to tailor the permit
conditions to the facility site conditions, including the ability to
impose additional specific conditions where it deems current or
proposed facility practices to be inadequate to protect human health or
the environment, pursuant to the omnibus authority in RCRA section
3005(c). Additionally, permitting processes provide the public and the
local community the opportunity to participate in regulatory decisions.
The combined requirements under subtitle C would effectively phase-out
all wet handling of CCRs and prohibit the disposal of CCRs in surface
impoundments. Moreover, the subtitle C approach is the only approach
that

allows direct federal enforcement of the rule's requirements. The many
damage cases, including more recent damage cases, suggest the value of
control and oversight at the federal level.
    At the same time, EPA acknowledges concerns with a subtitle C
approach on the part of states, the utilities, and users of CCR-derived
products. The states have expressed concern that any federal approach,
including a subtitle D approach, has the potential to cause disruption
to the states' implementation of CCR regulatory programs under their
own authority. For example, the state of Maryland has recently upgraded
its disposal standards for CCRs under its state solid waste authority,
and the new state regulations address the major points in today's
proposal (except the stability requirement for impoundments and the
prohibition against surface impoundments). The state has expressed
concern about having to revise its regulations again, and re-permit
disposal units under subtitle C of RCRA. A subtitle D approach, as
described in today's proposal, would eliminate or significantly reduce
these concerns. EPA acknowledges these concerns, and certainly does not
wish to force the states to go through unnecessary process steps. EPA
nevertheless solicits comment on this issue, including more specifics
on the potential for procedural difficulties for state programs, and
measures that EPA might adopt to try to mitigate these effects.
    Two additional substantive concerns with regulation of CCRs under
subtitle C have been raised by commenters: the effect of listing CCRs
as hazardous waste under RCRA on beneficial uses, and the availability
of existing subtitle C landfill capacity to manage CCRs. As explained
previously, EPA shares the concern that beneficial uses not be
inadvertently adversely affected by the regulation of CCRs destined for
disposal. EPA continues to believe that certain beneficial use, when
performed properly, is the environmentally preferable destination for
these materials and, therefore, wants to address any potential stigma
that might arise from designating CCRs as hazardous wastes. Thus, EPA
is seeking data and information, including detailed analyses, of why
the subtitle C regulation outlined in today's proposal will have the
impact that some commenters have identified. As explained at length in
section VI of this preamble, EPA believes it can generally address the
concerns that have been raised regarding the effect of subtitle C
regulation on legitimate beneficial uses in today's proposal through
several of the actions outlined in today's proposal. The most important
of these is that EPA is not proposing to revise its May 2000 Regulatory
Determination that beneficial uses retain the Bevill exemption and do
not warrant federal regulation. Nevertheless, EPA agrees that
``stigma'' is an important consideration in the Agency's decision, and
solicits information and data that will help the Agency quantify the
potential effects of any stigma arising from association with CCR
disposal regulated under subtitle C.
    On the question of hazardous waste disposal capacity, EPA believes
that management patterns of CCRs will continue: That landfills and
surface impoundments currently receiving CCRs will obtain interim
status and convert to RCRA subtitle C status, and that the proposal
will not shift disposal patterns in a way that substantially increases
the disposal of CCRs off-site from generating utilities to commercial
hazardous waste landfills. Therefore, EPA's regulatory analysis assumes
disposal patterns will remain generally the same. As commenters have
pointed out, CCRs do, in theory, have the potential to overwhelm the
current hazardous waste capacity in the United States. EPA's Biennial
Report indicates that approximately two million tons of hazardous waste
are disposed of annually in hazardous waste landfills, and EPA
estimates that the current total national commercial hazardous waste
landfill disposal capacity is between 23.5 and 30.3 million tons, while
the annual amount of CCRs currently going to land disposal is 46
million tons (with an additional 29.4 million tons going to surface
impoundments).\64\ These figures illustrate the very large volume of
CCR material involved, and how it could overwhelm existing subtitle C
disposal capacity. While a DOE survey reports that 70% of disposal
involves ``company on-site'' disposal units and 30% involves ``off-
site'' disposal units, DOE indicated that off-site disposal capacity
can be company owned or commercial disposal units. In communications
with USWAG, they indicated, in some cases smaller facilities may send
ash to a commercial operation, but believed that is in no way
representative of the industry as a whole. In some cases, the disposal
facility may be operated by a contractor for the utility, and the
landfill is a captive facility that does not receive other industrial
wastes. At the same time, EPA points out that, to the extent that new
capacity is needed, the implementation of today's rule, if the subtitle
C alternative is selected, will take place over a number of years,
providing time for industry and state permitting authorities to address
the issue. However, this is an issue on which EPA would find further
information to be helpful. Therefore, EPA solicits detailed information
on this topic, to aid in further quantifying the extent to which
existing capacity may be insufficient. For example, EPA is interested
in detailed information on the volume of CCRs now going off-site for
disposal; the nature of off-site disposal sites (e.g., commercial
subtitle D landfills versus dedicated CCR landfills owned by the
utility); and the amount of available land on utility sites for added
disposal capacity.
---------------------------------------------------------------------------

    \64\ These figures reflect the total current capacity, not
annual capacity. The annual capacity is significantly less:
modifications to annual capacity would require modifications to
existing permits.
---------------------------------------------------------------------------

    Finally, the states have expressed concern that the RCRA subtitle C
requirements will be considerably more expensive for them to implement
than a RCRA subtitle D regulation, without providing commensurate
benefits. For example, the states have reported that regulation under
RCRA subtitle C, versus subtitle D, would cost them an additional $17
million per year to implement. EPA acknowledges the concern that the
RCRA subtitle C requirements can be costly to implement, and could put
more pressure on diminishing state budgets. However, were states to
utilize the subtitle D requirements of today's proposal, the cost of
implementing a RCRA subtitle D program will also be expensive. Thus,
EPA is aware of the pressures on state budgets and will consider
potential impacts when making a final determination for this
rulemaking. Nevertheless, in the event that EPA determines that RCRA
subtitle C regulation is warranted, it will be because EPA has
determined that there are serious environmental and human health risks
that can only be remedied by regulation under subtitle C. Further,
under the subtitle C scenario, we believe that most states should be
able to address any shortfalls through hazardous waste generator or
disposal fees. EPA specifically solicits comments from states as to the
extent to which such fees would be able to offset the costs of
administering permit, inspection, and enforcement programs.
    EPA notes that its estimates of costs of compliance with the
subtitle C requirements have increased since its estimates in the 1999
Report to Congress; as explained later in this preamble, EPA believes
these costs are commensurate with the benefits to be derived from the
controls, and that the costs of regulation under RCRA subtitle D are
substantial as well. For example,

one of the major potential costs under either the subtitle C or
subtitle D option is associated with the required closure of all
existing surface impoundments that do not meet the rule's technical
requirements, which EPA is proposing under both the subtitle C and
subtitle D co-proposals. Further, the technical unit design and
groundwater monitoring requirements that will effectively protect human
health and the environment under either option are quite similar.
Finally, EPA is proposing to modify certain aspects of the RCRA
subtitle C framework to address some of the practical implementation
challenges associated with applying the existing regulatory framework
to these wastes. However, commenters have suggested that EPA has
underestimated the costs of compliance under the subtitle C
requirements upstream of surface impoundments and landfills (e.g., for
storage). Commenters, however, have not provided specific cost
estimates associated with storage of CCRs. EPA specifically solicits
substantiating detail from commenters.
    One disadvantage of a RCRA subtitle C approach, compared to a RCRA
subtitle D approach, is that the subtitle C approach, in most states,
will not go into effect as quickly as subtitle D. That is, the subtitle
C regulations require an administrative process before they become
effective and federally enforceable (except in the two states that are
not authorized to manage the RCRA program). The RCRA hazardous waste
implementation and authorization process is described in detail in
sections VII and VIII of this preamble. But to summarize, federal
regulations under subtitle C would not go into effect and become
federally enforceable until RCRA-authorized states \65\ have adopted
the requirements under their own state laws, and EPA has authorized the
state revisions. Under the RCRA subtitle C regulations, when EPA
promulgates more stringent regulations, states are required to adopt
those rules within one year, if they can do so by regulation, and two
years if required by legislative action. If a state does not adopt new
regulations promptly, EPA's only recourse is to withdraw the entire
state hazardous waste program. If EPA determines that a subtitle C rule
is warranted, the Agency will place a high priority on ensuring that
states promptly pick up the new rules and become authorized, and EPA
will work aggressively toward this end. Three decades of history in the
RCRA program, however, suggest that this process will take two to five
years (if not longer) for rules to become federally enforceable.\66\
---------------------------------------------------------------------------

    \65\ Currently, all but two states are authorized for the base
RCRA program.
    \66\ In addition, existing facilities would generally operate
under self-implementing interim status provisions until the state
issued a RCRA permit, which is a several year process, although
presumably the facility might remain under state solid waste
permits, depending on state law.
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    At the same time, EPA believes there may be benefits in a RCRA
subtitle D approach that establishes specific self-implementing
requirements that utilities and others managing regulated CCRs would
have to comply with, even in the absence of permitting or direct
regulatory oversight. EPA recognizes that many of the states have
regulatory programs in place, albeit with varying requirements, for the
disposal of CCRs, and that industry practices have been improving. The
RCRA subtitle D approach would complement existing state programs and
practices by filling in gaps, and set forth criteria for disposing of
CCRs to meet the national minimum standards that are designed to
address key risks identified in damage cases and the risk assessment--
including the risk of surface impoundment failure, which has been
identified as a concern appropriate for control.
    The co-proposed RCRA subtitle D option is less costly than the co-
proposed RCRA subtitle C option, according to EPA's Regulatory Impact
Assessment. The main differences in the costs are based on the
assumption that there will be less compliance, or slower compliance,
under a RCRA subtitle D option. In addition, the industry and state
commenters suggested that a RCRA subtitle D approach would eliminate
two of their concerns: (1) That a RCRA subtitle C approach would
inappropriately stigmatize uses of CCRs that provide significant
environmental or economic benefits, or that (according to those
commenters) hold significant potential promise, and (2) that the volume
of CCR wastes generated--particularly if requirements of a RCRA
subtitle C regulation led to more off-site disposal--would overwhelm
existing subtitle C capacity based on the large volumes of CCRs that
are generated and would need to be disposed of. It would also reduce or
eliminate expressed industry concerns about the effect of RCRA subtitle
C requirements on plant operations, and state concerns related to the
burden of the RCRA subtitle C permitting process. Related to the
capacity issue, these same commenters have also suggested that, under
the RCRA subtitle C regulations, future cleanup of poorly sited or
leaking disposal sites (including historical or legacy sites) would be
considerably more expensive, especially where off-site disposal was
chosen as the option. (EPA's RIA does not quantify this last issue, but
the RIA does discuss two recent cases as examples; EPA solicits more
detailed comment on this issue, preferably with specific examples.) As
stated earlier, EPA does not have sufficient information to conclude
that regulation under RCRA subtitle C will stigmatize CCRs destined for
beneficial use, for the reasons discussed elsewhere in today's
preamble, and the Agency does not at this point have reason to assume
that use of off-site commercial disposal of CCRs will increase
significantly.
    EPA also notes that many of the requirements discussed above would
go into effect more quickly under RCRA subtitle D. Under subtitle D of
RCRA, EPA would set a specific nationwide compliance date and industry
would be subject to the requirements on that date, although as
discussed elsewhere in today's preamble, EPA's ability to enforce those
requirements is limited. (Of course, certain requirements, such as
closure of existing surface impoundments, would have a delayed
compliance date set to reflect practical compliance realities, but
other requirements, for example, groundwater monitoring or the
requirement that new surface impoundments be constructed with composite
liners could be imposed substantially sooner than under a RCRA subtitle
C rule.) The possible exception would be if EPA decided to establish
financial assurance requirements through a regulatory process currently
underway that would establish financial assurance requirements for
several industries pursuant to CERCLA 108(b), including the Electric
Power Generation, Transmission and Distribution Industry. For a more
detailed discussion of these issues see section IX.
    However, there are also disadvantages to any approach under RCRA
subtitle D. Subtitle D provides no Federal oversight of state programs
as it relates to CCRs. It establishes a framework for Federal, state,
and local government cooperation in controlling the management of
nonhazardous solid waste. The Federal role in this arrangement is to
establish the overall regulatory direction, by providing minimum
nationwide standards for protecting human health and the environment,
and to provide technical assistance to states for planning and
developing their own environmentally sound waste management practices.
The co-proposed subtitle D alternative in this proposal would establish
national minimum

standards specifically for CCRs for the first time. The actual planning
and direct implementation of solid waste programs under RCRA subtitle
D, however, remain state and local functions, and the act authorizes
states to devise programs to deal with state-specific conditions and
needs.
    In further contrast to subtitle C, RCRA subtitle D requirements
would regulate only the disposal of solid waste, and EPA does not have
the authority to establish requirements governing the transportation,
storage, or treatment of such wastes prior to disposal. Under RCRA
sections 4004 and 4005(a), EPA cannot require that facilities obtain a
permit for these units. EPA also does not have the authority to
determine whether any state permitting program for CCR facilities is
adequate. This complicates the Agency's ability to develop regulations
that can be effectively implemented and tailored to individual site
conditions. Moreover, EPA does not have the authority to enforce the
regulations, although, the ``open dumping'' prohibition may be enforced
by states and citizens under section 7002 of RCRA.

D. EPA Is Not Reconsidering the Regulatory Determination Regarding
Beneficial Use

    As noted previously, in the May 2000 Regulatory Determination, EPA
concluded that federal regulation was not warranted for the beneficial
uses identified in the notice, because: ``(a) We have not identified
any other beneficial uses that are likely to present significant risks
to human health or the environment; and (b) no documented cases of
damage to human health or the environment have been identified.
Additionally, we do not want to place any unnecessary barriers on the
beneficial uses of coal combustion wastes so they can be used in
applications that conserve natural resources and reduce disposal
costs.'' (See 65 FR 32221) EPA did not conduct specific risk
assessments for the beneficial use of these materials, except as noted
below and elsewhere in this preamble. Instead, it generally described
the uses and benefits of CCRs, and cited the importance of beneficially
using secondary materials and of resource conservation, as an
alternative to disposal. However, EPA did conduct a detailed risk
assessment of certain agricultural uses of CCRs,\67\ since the use of
CCRs in this manner is most likely to raise concerns from an
environmental point of view. Overall, EPA concluded at the time that
the identified uses of CCRs provided significant benefits
(environmental and economic), that we did not want to impose an
unnecessary stigma on these uses and therefore, we did not see a
justification for regulating these uses at the federal level.
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    \67\ Draft Final Report; Non-groundwater Pathways, Human Health
and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2
(FFC2) and its appendices (A through J); available at http://
www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm.
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    Since EPA's Regulatory Determination in May 2000, the Agency has
gathered additional information. In addition to the evolving character/
composition of CCRs due to electric utility upgrades and retrofits
needed to comply with the emerging CAA requirements, which could
present new or otherwise unforeseen contaminant issues (e.g.,
hexavalent chromium from post-NOX controls), changes
include: (1) A significant increase in the use of CCRs, and the
development of established commercial sectors that utilize and depend
on the beneficial use of CCRs, (2) the recognition that the beneficial
use of CCRs (and, in particular, specific beneficial uses of CCRs, such
as using fly ash as a substitute for Portland cement in the production
of concrete) provide significant environmental benefits, including the
reduction of GHG emissions, (3) the development of new applications of
CCRs, which may hold even greater GHG benefits (for example, fly ash
bricks and a process to use CO2 emissions to produce cement), (4) new
research by EPA and others indicating that the standard leach tests--
e.g., the Toxicity Characteristic Leaching Procedure (TCLP) that have
generally been used may not accurately represent the performance of
varying types of CCRs under variable field conditions, (5) new studies
and research by academia and federal agencies on the use of CCRs,
including studies on the performance of CCR-derived materials in
concrete, road construction,\68\ and agriculture,\69\ and studies of
the risks that may or may not be associated with the different uses of
CCRs, including uses of unencapsulated CCRs, and (6) the continuing
development of state ``beneficial use'' regulatory programs under state
solid waste authorities.
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    \68\ See http://www.epa.gov/osw/partnerships/c2p2/cases/
index.htm.
    \69\ See http://www.epa.gov/osw/partnerships/c2p2/pubs/fgd-
fs.pdf.
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    Some of these changes confirm or strengthen EPA's Regulatory
Determination in May 2000 (e.g., the growth and maturation of state
beneficial use programs and the growing recognition that the beneficial
use of CCRs is a critical component in strategies to reduce GHG
emissions); other developments raise critical questions regarding this
determination (e.g., the potentially changing composition of CCRs as a
result of improved air pollution control and the new science on metals
leaching). EPA solicits information and data on these developments and
how the beneficial use of CCRs will be affected (e.g., increased use of
fly ash in cement and concrete).
    However, on balance, after considering all of these issues and the
information available to us at this time, EPA believes that the most
appropriate approach toward beneficial use is to leave the May 2000
Regulatory Determination in place, as the Agency, other federal
agencies, academia, and society more broadly investigate these critical
questions and clarify the appropriate beneficial use of these
materials. This section provides EPA's basis for leaving the Bevill
exemption in place for these beneficial uses, although as discussed
throughout this section, EPA is also soliciting comment on
unencapsulated uses of CCRs and whether they should continue to be
exempted as a beneficial use under the Bevill exemption.
    EPA is proposing this approach in recognition that some uses of
CCRs, such as encapsulated uses in concrete, and use as an ingredient
in the manufacture of wallboard, provide benefits and raise minimal
health or environmental concerns. That is, from information available
to date, EPA believes that encapsulated uses of CCR, as is common in
many consumer products, does not merit regulation. On the other hand,
unencapsulated uses have raised concerns and merit closer attention.
For example, the placement of unencapsulated CCRs on the land, such as
in road embankments or in agricultural uses, presents a set of issues,
which may pose similar concerns as those that are causing the Agency to
propose to regulate CCRs destined for disposal. Still, the amounts and,
in some cases, the manner in which they are used--i.e., subject to
engineering specifications and material requirements rather than
landfilling techniques--are very different from land disposal. EPA also
notes that stakeholders, such as Earthjustice have petitioned EPA to
ban particular uses of CCR; for example, the placement of CCRs in
direct contact with water bodies.
    Due to such issues as the changing characteristics of CCRs, as a
result of more widespread use of air pollution control technologies and
the new information becoming available on the

leaching of metals from CCRs, we are considering approaches such as,
better defining beneficial use or developing detailed guidance on the
beneficial use of CCRs to supplement the regulations. The Agency
solicits information and data on these and other approaches that EPA
could take in identifying when uses of CCRs constitute a ``beneficial
use,'' and consequently will remain exempt.
    Other alternative approaches--for example, to regulate the
beneficial use of CCRs under the regulations that apply to ``use
constituting disposal,'' to prohibit unencapsulated uses outright,
including CCRs used in direct contact with water matrices, including
the seasonal high groundwater table, or to require front-end CCR and
site characterization through the use of leach tests adapted for
specific uses of CCR, prior to CCR management decisions--could address
concerns that have been expressed over the land placement of CCRs.
However, EPA is trying to balance concerns that proposing one or more
of these alternatives might have the effect of stifling economic
activities and innovation in areas that have potential for
environmental benefits, while also providing adequate protection of
human health and the environment.
    At the same time, EPA recognizes that seven proven damage cases
involving the large-scale placement, akin to disposal, of CCRs has
occurred under the guise of ``beneficial use''--the ``beneficial'' use
being the filling up of old quarries or gravel pits, or the regrading
of landscape with large quantities of CCRs. EPA did not consider this
type of use as a ``beneficial'' use in its May 2000 Regulatory
Determination, and does not consider this type of use to be covered by
the exclusion. Therefore, today's proposed rule explicitly removes
these types of uses from the category of beneficial use, such that they
would be subject to the management standards that EPA finally
promulgates. EPA also seeks information and data on whether it should
take a similar approach in today's proposal to unencapsulated uses of
CCRs, such as the placement of unencapsulated CCRs on the land--e.g.,
agricultural uses. Alternatively, EPA is also soliciting comment on
whether the Agency should promulgate standards allowing such uses, on a
site-specific basis, based on a site specific risk assessment, taking
into consideration, inter alia, the CCRs character and composition,
their leaching potential under the range of conditions under which CCRs
will be managed, and the context in which the CCRs will be applied,
such as location, volume, rate of application, and proximity to water.
    Before getting into a detailed discussion of the materials in
question, EPA would reiterate that CCRs, when beneficially used will
conserve resources, provide improved material properties, reduce GHG
emissions, lessen the need for waste disposal units, and provide
significant domestic economic benefits (as noted above in section XII).
At the same time, EPA recognizes that there are important issues and
uncertainties associated with specific uses of specific CCRs, that
there has been considerable recent and ongoing research on these uses,
and that the composition of CCRs are likely changing as a result of
more aggressive air pollution controls. EPA is particularly concerned
that we avoid the possibility of cross-media transfers stemming from
CAA regulations requiring the removal of hazardous air pollutants
(e.g., arsenic, mercury, selenium) from utility stacks being released
back into the soil and groundwater media through inappropriate
``beneficial'' uses.
    EPA has received numerous comments on specific uses of CCRs, and we
have been working with states to help them develop effective beneficial
use programs (which apply to a wide range of secondary materials, not
just CCRs). EPA, other federal agencies, and academia have conducted
research on specific uses, and have provided guidance and best
management practices on using CCRs in an environmentally sound manner
in a range of applications. For example, EPA, working with the Federal
Highway Administration (FHWA), DOE, the American Coal Ash Association
(ACAA), and USWAG issued guidance in April 2005 on the appropriate use
of coal ash in highway construction. EPA understands that the
composition of CCRs, the nature of different CCR uses, and the specific
environment in which CCRs are used, can affect the effectiveness and
the environmentally sound use of particular projects. In today's
proposal, EPA is suggesting that an appropriate balance can be met by
(1) determining that the placement of CCRs in sand and gravel pits, as
well as the use of large volumes of CCRs in restructuring landscapes to
constitute disposal, rather than the beneficial use of CCRs, and at the
same time (2) leaving in place its determination that the beneficial
uses of CCRs--e.g., those identified in the May 2000 Regulatory
Determination as clarified in this notice--should not be prohibited
from continuing. As described later in this section of today's notice,
EPA solicits comment on whether an alternative approach is appropriate,
particularly for unencapsulated uses of CCRs on the land.
1. Why is EPA not proposing to change the determination that CCRs that
are beneficially used do not warrant federal regulation?
    As an initial matter, we would note that for some of the beneficial
uses, CCRs are a raw material used as an ingredient in a manufacturing
process that have never been ``discarded,\70\'' and thus, would not be
solid wastes under the existing hazardous waste rules. For example,
synthetic gypsum is a product of the FGD process at coal-fired power