600/R-09/151, U.S. Environmental Protection Agency, Air Pollution
Prevention and Control Division, December 2009.
    \28\ Thorneloe S.A., D.S. Kosson, F. Sanchez, A.C. Garrabrants
and G. Helms (2010) ``Evaluating the fate of metals in air pollution
control residues from coal-fired power plants,'' Environmental
Science and Technology, 44, 7351-7356.
---------------------------------------------------------------------------

    The 2014 risk assessment incorporates these new data, and accounts
for both the pH of the waste in field conditions, as well as the
liquid-to-solid ratio of the leachate and CCR, which effectively
addresses the concerns raised in the proposed rule that TCLP and SPLP
methods could underestimate leachate concentrations.
    A further area of uncertainty related to one of the primary inputs
into the risk assessment. As noted in the proposed rule, the Agency's
risk estimates were based on the existing cancer slope factor of 1.5
mg/kg/d-1 for arsenic in EPA's Integrated Risk Information
System (IRIS). However, EPA noted that was in the process of
revaluating the arsenic cancer slope factor in light of recent
recommendations from the National Research Council (NRC) of the
National Academy of Sciences (NAS) in ``Critical Aspects Arsenic in
Drinking Water, 2001 Update.'' In the proposal, EPA estimated that
using this NRC data analysis would increase the individual risk
estimates by approximately 17 times.
    EPA is currently evaluating the arsenic cancer slope factor in
light of more recent NRC recommendations, regarding the approach and
the science for estimating cancer and non-cancer risk in ``Critical
Aspects of EPA's IRIS Assessment of Inorganic Arsenic, (NRC 2013).''
EPA is in the process of implementing these recommendations, but to
date has been unable to finalize its IRIS reassessment. Nor did EPA
receive any other information during the development of this final rule
that would help to resolve this uncertainty.
    A final source of uncertainty in the risk assessment developed for
the proposed rule related to the potential impact from the interception
of contaminated groundwater plumes by surface water bodies that exist
between a waste management unit and a down-gradient drinking water
well. It is common for coal-fired utilities to be located near water
bodies, which are used as a source of cooling water and waste
conveyancing. Releases from surface impoundments located in close
proximity to water bodies can be intercepted, which can significantly
affect the contaminants that reach 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.
    Over the course of the rulemaking, EPA was able to obtain
sufficient data to model the impact from interception of contamination
by surface water bodies. The risk assessment developed for the final
rule accounts for the interception of the groundwater contamination
plume by surface water bodies, and the resulting decrease in
constituent mass to downstream drinking water sources. As a consequence
of this modeling, the median risks for surface impoundments and
landfills were substantially lower than both the high-end and median
risks modeled in the 2010 risk assessment, i.e., by approximately an
order of magnitude.
2. Adequacy of Existing State Regulatory Oversight
    The assessment of state regulatory programs in the proposed rule
was based largely on two reports: A joint U.S. Department of Energy
(DOE) and EPA study completed in 2006, ``Coal Combustion Waste
Management at Landfills and Surface Impoundments, 1994-2004,'' and a
2009 survey conducted by the Association of State and Territorial Solid
Waste Management Officials (ASTSWMO). EPA's preliminary conclusion was
that while states seem to be regulating landfills to a greater extent
than in 2000, significant gaps in state programs appeared to remain,
particularly with respect to the oversight of surface impoundments.
    In reaching this conclusion EPA noted the following findings from
the DOE/EPA study: only 19 percent (three out of 19) of the surveyed
surface impoundment permits included requirements addressing
groundwater protection standards (i.e., contaminant concentrations that
cannot be exceeded) or closure/post-closure care, and only 12 percent
(two 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 CCR generated was
potentially exempt from all state solid waste permitting requirements
(EPA/DOE Report at pp 45-46). For example, at the time of the report,
Alabama did not regulate CCR disposal under any state waste authority
and nor had a dam safety program. Texas (the largest coal ash producer)
did not require permits for waste managed on-site, which is defined as
waste managed at any site owned by the generator, up to 50 miles away
from the generating facility. Finally, the report found that a number
of states only regulated surface impoundments under CWA authorities,
and consequently primarily addressed the risks from effluent discharges
to navigable waters, but did not require liners or groundwater
monitoring.
    The more recent 2009 ASTSWMO survey reached similar conclusions.
With respect to liner requirements, 36 percent of surveyed states did
not have minimum liner requirements for CCR landfills, while 67 percent
did not have CCR liner requirements for surface impoundments.
Similarly, 19 percent of states surveyed did not have minimum
groundwater monitoring requirements for landfills and 61percent did not
have groundwater monitoring requirements for surface impoundments. The
2009 ASTSWMO survey also indicated that only 36 percent of states
regulated the structural stability of surface impoundments.
    In the proposal, EPA identified several issues that complicated its
preliminary assessment and prevented the Agency from reaching overall
conclusions as to the adequacy of state regulatory programs. First, EPA
raised concern about the absence of any real details in the two reports
regarding how states, in practice, oversee the disposal or other solid
waste management of CCR. For example, even though the disposal units
might not be regulated under the state solid waste provisions, some
states may use performance based standards or implement requirements to
control CCR landfills and surface impoundments under other state
programs. Second, EPA noted that most of the more recent data primarily
focused on the requirements applicable to new management units, which
only represented approximately 10 percent of currently operating units.
EPA had little, if any, information that described the extent to which
states and utilities had implemented requirements, such as groundwater
monitoring, on the many existing landfills and surface impoundments
that receive CCR. Moreover, the information in the record for the
proposal with respect to these older units was fifteen years old. EPA
assumed it to be unlikely that states would have required existing
units to install liners, but suggested states may have been more likely
to have imposed groundwater monitoring for such units over the last 15
years.

    EPA also identified several issues that would be relevant to the
Agency's evaluation of the overall adequacy of state regulatory
programs. Specifically, EPA explained that it would 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 CCR; (6) whether financial responsibility requirements are
in place for the management of CCR; (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.
    EPA received a substantial amount of information on state programs
from commenters. Extensive comments were submitted by a coalition of
environmental groups, outlining the alleged gaps in state regulatory
programs applicable to the management of CCR. These comments contained
a comprehensive analysis of 37 state programs based on the findings of
the DOE/EPA 2006 report as well as on an independent compilation of
state program requirements. According to these commenters' analysis,
only four states (representing approximately four percent of the CCR
generated in the U.S. in 2005) required groundwater monitoring in all
new and existing landfills, and only six states (representing
approximately 19 percent of the CCR generated in 2005) required
groundwater monitoring in all new and existing surface impoundments;
only five states (representing approximately seven percent of the CCR
generated in 2005) required composite liners for all new landfills; and
only four states (representing approximately 19 percent of the CCR
generated) required composite liners for all new surface impoundments.
The commenters' analysis discounted any state law that included any
provision that granted permit writers discretion to modify the
requirement on a case-by-case basis, and/or to grant waivers and
exemptions based on the waste's toxicity, onsite location, and
management practice.
    EPA also received comments from ASTSWMO, the Environmental Council
of the States (ECOS), and 36 individual states. In its comments,
ASTSWMO submitted a report with revisions of the aggregated statistics
in its 2009 report, which they claim demonstrated that state CCR
programs were more robust than described in the proposed rule. These
commenters generally agreed with EPA's conclusion that state
requirements for key CCR requirements are typically more robust for
landfills than for surface impoundments. ASTSWMO's comments included
the following examples: 71 percent of the surveyed states required a
liner for landfills, compared to 65 percent that required that surface
impoundments be lined; 87 percent of surveyed states required
groundwater monitoring at landfills, compared to 67 percent of states
that required groundwater monitoring at surface impoundments; and while
83 percent of surveyed states required structural stability monitoring
at landfills, only 64 percent of surveyed states required it at surface
impoundments. The sole exception related to permit requirements, where
the report claimed that 91 percent of the surveyed states required a
permit of some type for surface impoundments, as compared to 86 percent
of states that required a permit for landfills. In addition, ASTSWMO
claimed that all 42 surveyed states had the authority to require
remediation. The report also alleged that in 43 of 44 states, states
had the authority to require surface impoundments to implement repair
and maintenance efforts during operation. ASTSWMO also claimed that 43
out of 44 states required that steps be taken to protect human health
and the environment, and that 41 of 43 states also had authority to
require closure.
    According to this revised survey, state requirements also vary with
respect to whether they applied to all waste units, or only to new
units or lateral expansions. ASTSWMO stated that in 34 percent of the
surveyed states, liner requirements applied equally to new and existing
landfills, and to both existing and new surface impoundments in 46
percent of the surveyed states. Similarly, ASTSWMO stated that
groundwater monitoring was required for both existing and new landfills
in 82 percent of the surveyed states, and to both existing and new
surface impoundments in 74 percent of the surveyed states.
    Nineteen states and state organizations also directly responded to
the environmental groups' report by submitting comments on their
programs, although only four of these states were among the leading CCR
generators: Kentucky, North Dakota, Ohio, and Michigan. These states
identified specific instances where the assertions made by the
environmental groups were factually incorrect or omitted relevant
information. In response to both the proposed rule and the NODA (76 FR
63252, October 12, 2011) most states provided only summaries of their
regulatory programs rather than detailed descriptions.
    As EPA explained in the proposed rule, there are significant
limitations to the kind of aggregated survey statistics presented in
ASTSWMO's comments. Such statistics fail to provide the information
necessary to meaningfully address the question of how, in practice,
state programs regulate the relevant risks presented by the management
or disposal of CCR, which was the issue that EPA explained was
necessary to resolve. For example, even assuming that 91 percent of the
surveyed states actually do require a permit of some type for surface
impoundments, this provides no information on the nature or extent of
the specific requirements in the permit. As noted in the proposal, most
CCR surface impoundments are regulated under a NPDES permit, and while
the risks from effluent discharges to navigable waters are addressed,
these units are not subject to the provisions designed to protect
groundwater, such as liners or groundwater monitoring. Nor does it
address the extent of the requirement; for example, although Texas
generally requires landfills to be permitted and to monitor
groundwater, the majority of CCR units are exempt from these
requirements because all industrial wastes managed on-site (i.e., any
site owned by the generator, up to 50-miles away from the generator's
facility) are exempt. Finally, since the ASTSWMO survey does not
identify the individual surveyed states but merely presents aggregated
statistics, this information cannot be correlated with the amount of
CCR generated, which significantly limits its value; for example,
information demonstrating the strength of the regulatory program in a
state responsible for two percent of the net CCR generated nationally
is less significant than similar information on a state responsible for
25 percent of the net CCR generated.
    In addition to the information provided by commenters, EPA
independently reviewed state statutes and regulations, with a more
detailed focus on the 16 states responsible for approximately 74
percent of the CCR generated in 2009. It is clear from this

review, as well as from information submitted by the commenters, that
the degree of state regulatory oversight of these wastes and the
overall protectiveness of the particular state programs varies widely.
    Overall, the information from commenters and from EPA's own review
of state programs generally confirms EPA's original conclusion that
significant gaps remain in many state programs. Some programs provide
minimal or no regulatory oversight of CCR units. For example, Arizona,
New Mexico, and Utah have no regulations applicable to CCR units or
entirely exempt CCR from state regulations governing solid waste.
Similarly, Mississippi, Montana, and Texas (the largest coal-ash
producer) exempt the on-site disposal of CCR (as ``non-hazardous
industrial solid waste'') from some or all key requirements, such as
permits or groundwater monitoring.\29\ Such exemptions would cover most
of the disposal of CCR within the state, as the majority of utilities
dispose of their CCR on-site. Other states, such as Florida, Indiana,
Ohio and Pennsylvania, exempt CCR landfills or ``monofills'' from many
requirements. For example, Indiana regulations consider surface
impoundments that are dredged at least annually to be ``storage units''
that are exempt from solid waste regulations, including from corrective
action requirements. Many of these states are among the leading
generators of CCR wastes. In total, EPA estimates that approximately 20
percent of the net disposable CCR is entirely exempt from state
regulatory oversight.
---------------------------------------------------------------------------

    \29\ See 30 TX ADC 335.2(d);
---------------------------------------------------------------------------

    State programs that entirely exempt CCR management from regulatory
oversight, however, are the exception. Most states do regulate the
management of CCR to varying degrees, although the particular
requirements can vary significantly. Still, some general conclusions
can be drawn.
    Most CCR surface impoundments are permitted exclusively under NPDES
or other surface water pollution prevention programs. In these states,
requirements to protect groundwater, such as liners or groundwater
monitoring systems, are frequently less robust than the corresponding
requirements applicable to CCR landfills.
    Many state programs require that new disposal units be lined and
groundwater monitoring systems installed, although many exempt existing
waste units from the liner and groundwater monitoring requirements.
Consequently, for newer units, the facts are less alarming: 89 percent
of the 114 CCR surface impoundments constructed between 1994 and 2010
have liners, and 70 percent have composite liners. Similarly, 37 of 45
CCR surface impoundments EPA surveyed had installed groundwater
monitoring systems. By contrast, 79 percent of the landfills
constructed during this timeframe had installed liners, but only 58
percent were composite-lined. However the majority of the older (pre-
1994) waste units still lack liners; 63 percent of older landfills have
no liners and 63 percent and 24 percent of older surface impoundments
have either no liners or clay liners, respectively.
    Information on the extent of groundwater monitoring at older units
was either unavailable, or was too unreliable to support any
conclusions as to the overall number or percentage of older units with
groundwater monitoring systems in most states. ASTSWMO's comments in
response to the October 2011 NODA identified eight states \30\ that
required groundwater monitoring at existing facilities, but only a few
of these states addressed this issue in their comments. EPA has some
anecdotal evidence on the status of groundwater monitoring in six
states, including four states that are among the leading CCR
generators. In the wake of the Kingston TVA spill, groundwater
monitoring wells were installed at 12 of Illinois's existing surface
impoundments, almost doubling the number of monitored surface
impoundments in the state. However, 55 additional surface impoundments,
both active and inactive, still lack groundwater monitoring systems. In
Ohio, 44 CCR units, out of a total of 57 CCR units in the state (42
surface impoundments and 15 landfills) still lack groundwater
monitoring, even though all of the surface impoundments were permitted
decades ago under Ohio's NPDES program. Ohio acknowledged in their
comments that the extent of groundwater risks in the state is poorly
documented, as 40 out of 44 unlined CCR units do not have a groundwater
monitoring system. In sum, the available information is limited, but at
least some of that information indicates that significant gaps remain
with respect to the implementation of groundwater monitoring
requirements under some state regulatory programs.
---------------------------------------------------------------------------

    \30\ Georgia, Illinois, Indiana, Iowa, Montana, Ohio,
Pennsylvania, and South Carolina.
---------------------------------------------------------------------------

    Of the states that require groundwater monitoring, most appear to
require monitoring wells to be placed around the waste unit boundary,
although the distance from the unit boundary varies from 50 feet to 150
meters. However, some state programs also authorize a buffer zone or a
``zone of discharge,'' which allows the facility to defer remediation
of groundwater contamination for some period of time, usually until the
contaminant plume has migrated to the facility site boundary. Florida,
Illinois, North Dakota, and Tennessee are among that states with such a
regulatory provision. For example, under Florida regulations, primary
and secondary maximum contaminant levels (MCLs) do not apply even
beyond the ``zone of discharge,'' absent a specific order by state
regulatory authorities.
    Most state programs allow the state regulatory authority to grant
variances or exemptions for some or all of the requirements based on
site-specific factors. For example, all of the following states require
groundwater monitoring at CCR surface impoundments, but also authorize
the regulatory authority to exempt or waive those requirements:
Alabama, Florida, Georgia, Illinois, Indiana, Kentucky, North Carolina,
North Dakota, Pennsylvania, and West Virginia. Contrary to the analysis
presented by the environmental groups' comments, the mere fact that
state law grants a permit authority the discretion to tailor
requirements to account for a facility's site specific conditions does
not support a conclusion that the regulatory program is necessarily
inadequate. In fact, EPA noted in the proposal that one of the
strengths of the subtitle C program was that, as a result of the permit
process, requirements could be tailored to account for site specific
conditions. Nor does the existence of a waiver process provide any
evidence of actual practices; in their comments, a few states
acknowledged that state law allowed for variances, but asserted that
none had been requested.
    To complicate matters further, several states explained that while
state law does not mandate certain requirements, state regulatory
authorities have, in practice, begun to require them in more recent
permits. For example, several states, including Ohio, Texas, Michigan,
Florida, and Kentucky, noted that recent practice was to require older
disposal units to retrofit or close where they failed to meet relevant
standards. Similarly, it appears that in the 16 leading CCR-generating
states, 94 percent of new landfills have installed liners (either
composite or clay), although only 19 percent of these state programs
actually mandate CCR landfills to install a liner. And although only
six percent of these state programs require installation of a liner in
a new surface impoundment, 75 percent of

new CCR surface impoundments in these states are lined.
    All of this information suggests that, at least in some cases, the
concerns raised in the proposal regarding the protectiveness of state
programs remain warranted. But it also is clear it would be impossible
to accurately evaluate whether, in practice, state programs are
protective without reviewing individual permit decisions and permit
requirements. Such an evaluation would necessarily involve not only a
review of the specific permit requirements, but also the site
conditions and other factual bases supporting the decision to impose
the particular requirements. Unfortunately, this information was not
provided by commenters or found in any source currently available to
the Agency.
3. Documented Cases in Which Danger to Human Health or the Environment
From Surface Run-off or Leachate Has Been Proved
    In the proposed rule, EPA described the information it had compiled
on specific cases where CCR mismanagement had caused harm to human
health or the environment since the 2000 Regulatory Determination.
Specifically, EPA explained that it had 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 the unit was
lined. EPA also identified 40 potential damage cases to groundwater and
surface water. The Agency noted that these numbers likely
underestimated the number of damage cases and its expectation 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. EPA also
noted its concern that several of the new damage cases involved
activities that differ from prior damage cases, including the
catastrophic release of waste due to the structural failure of CCR
surface impoundments, such as the dam failures that occurred in Martins
Creek, Pennsylvania and Kingston, Tennessee, as well as the large-scale
placement, akin to disposal, of CCR, under the guise of ``beneficial
use.''
    EPA noted as well that it had received new reports from industry
and environmental and citizen groups regarding damage cases. Industry
provided information to demonstrate that many of EPA's listed proven
damage cases did not meet EPA's criteria for a damage case to be
considered ``a proven damage case,'' that had been developed for
purposes of the Bevill Regulatory Determinations. Environmental and
citizen groups, on the other hand, had submitted reports alleging the
existence of more recent damage cases beyond those EPA had previously
documented.
    EPA raised questions concerning the following areas associated with
the damage cases; first, whether the damage cases discovered to date
accurately reflected the true number of damage cases associated with
the mismanagement of CCR. Second, EPA highlighted concern regarding the
accuracy of the available information on damage cases, as in certain
instances, much of the information was largely anecdotal. EPA therefore
specifically solicited comments from state regulatory authorities and
the facilities involved with the incidents, in the hope of obtaining
direct evidence of the facts in each case and to obtain a better
understanding of the nature of the damage caused by past and current
management practices. For the same reason, on October 12, 2011, EPA
published a NODA, soliciting comment on the extensive reports received
during the original comment period on the proposed rule. (See 76 FR
63252.)
    As discussed in more detail in Unit XI of this document, EPA
received a significant number of comments on this topic, both during
the original comment period on the proposal, and in response to the
NODA. EPA received information on additional damage cases from a number
of citizen groups, including the report from Environmental Integrity
Project and Earthjustice titled, ``Out of Control: Mounting Damages
From Coal Ash Waste Sites,'' which presented information on 31 alleged
CCR damage cases that were not included or were not recognized as
damage cases in EPA's July 2007 report. EPA also received an August 26,
2010 report by the Environmental Integrity Project, Earthjustice, and
the Sierra Club titled ``In Harm's Way: Lack of Federal Coal Ash
Regulations Endangers Americans and Their Environment,'' which
presented an additional 39 alleged CCR damage cases.\31\ EPA also
received information on ten additional damage cases from state
officials in Michigan and Wisconsin.
---------------------------------------------------------------------------

    \31\ EPA also received several additional reports that contained
allegations of further damage cases. However, because these were
submitted after the close of the comment period, EPA did not
evaluate these damage cases for this rulemaking or otherwise
consider the information in those reports.
---------------------------------------------------------------------------

    EPRI submitted two draft reports titled ``Evaluation of Coal
Combustion Product Damage Cases: Volume 1: Data Summary and
Conclusions'' (finalized in July 2010), and ``Evaluation of Coal
Combustion Product Damage Cases: Volume 2: Case Summaries'' (finalized
in September 2010). In these reports, EPRI provided information that,
they claimed, showed that many of EPA's previously identified
``proven'' damage cases did not meet EPA's criteria for a damage case
to be considered ``proven.'' In response to the 2010 NODA, USWAG
submitted a report that reviewed the 70 additional damage cases
submitted by citizen groups as part of their comments on the proposed
rule. These reports focused primarily on the degree to which the
contamination had been contained ``on-site'' or had migrated off-site
of the facility.
    In Unit XI of this document, EPA discusses at length all of the
comments received and its subsequent analysis of the information
obtained throughout the rulemaking. In sum, after analyzing all of the
information submitted in response to this rulemaking, EPA has confirmed
a total of 157 cases, both proven and potential, in which CCR
mismanagement has caused damage to human health and the environment.
Although EPA expects that additional damage cases will be discovered in
response to the installation of the groundwater monitoring systems
required by the final rule, overall EPA has a significantly better
understanding of the extent and nature of the damage caused by CCR
mismanagement than when the proposed rule was issued. EPA has
sufficient confidence in the veracity of the information collected to
rely on it in making decisions in this rule.
4. Conclusions
    EPA explained in the proposed rule that the decision on whether to
retain the Bevill exemption is inherently discretionary, in that it
ultimately requires the Agency to make a policy judgment as to the
appropriate balance among the eight statutory factors. Chief among the
several principles that EPA stated would guide its decision was that
any action must protect human health and the environment. To this end,
EPA singled out three key areas of analyses that bear directly on that
guiding principle: the extent of the risks posed by mismanagement of
CCR; the adequacy of state programs to ensure proper management of CCR;
and the extent and nature of damage cases.
    The first of these largely related to the 2010 quantitative risk
assessment of the potential for contamination to

groundwater. During the rulemaking, EPA received information that
allowed the Agency to resolve two of the four primary uncertainties
identified in the proposal. The risk assessment has been revised with
updated pore water concentration data and with LEAF leachate data, and
accounts for the potential reduction of contaminants reaching drinking
water sources due to interception of contamination by surface water
bodies. However, two sources of uncertainty remain: the potential
effect of pollution control technologies on the CCR characteristics,
and the appropriate IRIS value for arsenic.
    EPA's risk assessment evaluated current management practices, and
generally did not attempt to account for or evaluate the potential for
future changes in the wastes. While EPA has great confidence in the
assessment, its ability to definitively resolve this question is
therefore limited, given the very real potential for significant
changes in CCR characteristics and constituents in the near future, due
to the required installation of pollution control technologies. Changes
in the CCR characteristics are particularly significant, as the risk
assessment concluded that one of the parameters most likely to affect
the agency's risk estimates was the characteristic of the wastes.
    With respect to the second area, EPA is unable to reach any
definitive conclusions as to whether state regulatory programs are so
deficient that the level of federal oversight under subtitle C is
necessary. Specifically, EPA cannot determine from the available
information how states, in practice, have implemented regulatory
requirements. At this point, only limited conclusions are possible.
    Clear deficiencies exist in some state regulatory programs, and
questions remain with respect to others. And many of these concerns
exist with respect to programs in states responsible for the majority
of CCR generation and disposal. However, most state programs, although
they vary considerably, are not clearly deficient on their face. But it
is equally clear that exclusive reliance on the regulatory programs as
written, without any examination of how states have implemented those
requirements in practice, would not support sweeping conclusions about
the overall adequacy of state programs. It is critical to ensure that
any decision accurately accounts for how the states have exercised
their judgment in implementing those requirements, before concluding
that state programs cannot adequately oversee the management of CCR
without the degree of federal involvement mandated by subtitle C.
Notwithstanding EPA's inability to draw conclusions on the overall
adequacy of state programs, the high degree of variation across state
programs strongly supports the need for federal requirements to
establish a consistent national standard of groundwater and human
health protection.
    In contrast to the other two areas identified in the proposed rule,
while some uncertainty remains with respect to the damage cases--
namely, whether the 157 identified to date represent the total number
of damage cases caused by CCR mismanagement, and whether some of the
``potential'' damage cases should be classified as ``proven'' damage
cases--at this point, EPA has concluded that the available information
provides a sufficient evidentiary base on which decisions can be made.
In the absence of the necessary information on two of the three
critical areas, however, EPA cannot reach any final conclusions
regarding the appropriate balance among the eight statutory factors.
Consequently, EPA is also not reaching any final conclusions as to
whether a damage case is best categorized as ``proven'' or
``potential.'' Such a finding is relevant only to the Bevill Regulatory
Determination.
    However, as discussed in more detail in Unit XI of this document,
the damage cases provide extremely valuable evidence that is directly
relevant to the question of whether and how to regulate CCR waste. For
example, the damage cases provide ``real world'' evidence against which
to compare EPA's risk modeling estimates, such as evidence regarding
the frequency with which particular constituents leach into
groundwater. They also provide direct evidence regarding specific waste
management practices at electric utilities, along with the potential
consequences of those practices. Finally, both the specifics of the
damage cases and the fact that they continue to occur provide strong
evidence of the need for this rule under subtitle D while EPA obtains
the information that will allow the Agency to make a final Regulatory
Determination for these wastes.
    Thus, even though EPA is not able to reach a final conclusion on
the Regulatory Determination for these wastes, the totality of the
information in the rulemaking record clearly demonstrates that the
risks associated with the current management and disposal of CCR remain
substantial. EPA's risk assessment concluded that the cancer risks from
unlined surface impoundments ranged from 3 x 10-4 for
trivalent arsenic to 4 x 10-5 for pentavalent arsenic. Non-
cancer risks from these same units also significantly exceeded EPA's
level of concern, with estimates ranging from an HQ of 2 for thallium,
to HQs \32\ of 4 for molybdenum and 8 for trivalent arsenic. The risks
associated with unlined landfills were also estimated to be
significant, with cancer risks of 2 x 10-5 for trivalent
arsenic. It is important to note that these risk numbers are based on
national disposal practices. Risks at an individual site may be even
higher based on individual site conditions, waste characteristics, and
management practices. EPA's risk assessment identified the potential
for higher risks based on different waste pH values and management
practices. Multiple constituents presented higher risks when considered
in waste management units that co-dispose both ash and coal refuse at
more acidic pHs or FGD wastes at more basic pHs. For example, the
modeled cancer risks for the co-disposal of ash and coal refuse (pH
1.7-8.2) ranged between 10-3 for trivalent arsenic to 4 x
10-4 for pentavalent arsenic. Non-cancer risks were
similarly high, ranging between and an HQ of 13 for cobalt, and HQs of
14 for pentavalent arsenic to 26 for trivalent arsenic, based on the
ingestion of contaminated drinking water. Although this management
practice is declining, recent information indicates that approximately
five percent of facilities continue to co-dispose of ash and coal
refuse in surface impoundments.
---------------------------------------------------------------------------

    \32\ For more information on HQs please see Unit X. Risk
Assessment of this preamble.
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    Moreover, EPA's risk estimates are consistent with the continued
damage cases compiled through this rulemaking. As further discussed in
Unit XI of this document, EPA has confirmed that 157 cases of proven or
potential contamination of groundwater have occurred in states across
the nation since the initial Regulatory Determination. These damage
cases were primarily associated with unlined units and were most
frequently associated with releases of arsenic. While new units are
typically constructed with composite liners, which under EPA's current
risk assessment adequately mitigate the risks, older units still
comprise the overwhelming majority of currently operating units. EPA's
data show that approximately 63 percent of currently operating surface
impoundments and landfills are unlined, and thus more prone to leach
contaminants into groundwater. Analysis of the information from the
damage cases also demonstrates that unlined surface

impoundments typically operate for 20 years before they begin to leak.
Most of the currently operating surface impoundments are between 20 and
40 years old.
    The age of the units also has implications for their structural
stability and the potential for catastrophic releases. Of the
approximately 735 CCR surface impoundments currently operating in the
United States, a certain percentage 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 Assessment
Program, 318 surface impoundments have either a high or significant
hazard potential rating, at least 13 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; based on the subset of units for
which age data were available, approximately 195 active surface
impoundments exceed 40 years of age; 56 units are older than 50 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. Collectively,
these facts indicate a high likelihood that in the absence of any
regulatory action, such units will leak in the near future, or are
currently leaking, undetected, since groundwater monitoring is not
installed at many of these older units. Moreover, damage cases continue
to occur; 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. And as recently as February 2014, CCR
slurry was released into the Dan River from an inactive surface
impoundment in North Carolina.
    All of which demonstrates a compelling need for a uniform system of
requirements to address these risks without waiting for the information
and analyses necessary to complete a final Regulatory Determination.
EPA will continue to monitor these critical areas, and will provide the
public with an additional opportunity to comment on any proposed
Regulatory Determination, prior to issuing a final Regulatory
Determination.

B. Final Regulatory Determination Regarding Beneficial Use

    EPA generally proposed to retain the May 2000 Regulatory
Determination that beneficially used CCR did not warrant federal
regulation under subtitle C of RCRA. As EPA stated in the May 2000
Regulatory Determination, ``In the [Report to Congress], 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 and the environment. While
some commenters disagreed with our findings, no data or other support
for the commenters' position was provided, nor was any information
provided to show risk or damage associated with agricultural use.
Therefore, we conclude that none of the beneficial uses of coal
combustion wastes listed above pose risks of concern.'' (See 65 FR
32230.) EPA noted that since the original Regulatory Determination, the
Agency had found no data or other information to indicate that existing
efforts of states, EPA, and other federal agencies had been inadequate
to address the environmental issues associated with the beneficial use
of CCR that were originally identified in the Regulatory Determination.
EPA explained that it had proposed this approach in recognition that
some uses of CCR, 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. Consequently, EPA
preliminarily concluded that encapsulated uses of CCR, which are common
in many consumer products, did not merit regulation based on the
available information.
    However, EPA noted that the issues were more difficult with respect
to unencapsulated uses of CCR and specifically solicited comment on
whether such uses should continue to be included as ``beneficial use''
under the Bevill exemption. EPA explained that unencapsulated uses have
raised concerns and therefore merited closer attention. For example,
the placement of unencapsulated CCR on the land, such as in road
embankments or in agricultural uses, presented a set of issues similar
to those that caused the Agency to propose to regulate CCR destined for
disposal. But the Agency also acknowledged that the amounts and, in
some cases, the manner in which CCR is used--i.e., subject to
engineering specifications and material requirements rather than
landfilling techniques--are potentially very different from land
disposal.
    EPA is retaining the original 2000 Regulatory Determination for CCR
that is beneficially used. EPA has made this determination based on
consideration of the available information and the RCRA section 8002(n)
study factors. {{
1. Source and Volume of CCR Generated Each Year
    The American Coal Ash Association (ACAA) conducts a voluntary,
annual survey of the coal-fired electric utility industry to track the
quantities of CCR generated and beneficially used. According to the
latest survey, the electric utility industry generated nearly 110
million tons of CCR in 2012. Approximately 39 million tons of these CCR
was identified by ACAA as beneficially used in either encapsulated or
unencapsulated products. An additional 12.8 million tons were placed in
mine-fill operations, while the remaining 57.8 million tons were
disposed of in landfills and surface impoundments (ACAA, 2013).\33\
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    \33\ ACAA (American Coal Ash Association). 2013. 2012 Coal
Combustion Product (CCP) Production & Use Survey Report. Farmington
Hills, MI 48331. Available online at: http://www.acaa-usa.org/Portals/9/Files/PDFs/revisedFINAL2012CCPSurveyReport.pdf
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2. Present Utilization Practices
    Based on the beneficial use rates reported by ACAA, approximately
50 percent of the CCR beneficially used on an annual basis falls into
two categories: (1) Fly ash used as a direct substitute for Portland
cement during the production of concrete (referred to as ``fly ash
concrete''); and (2) FGD gypsum used as a replacement for mined gypsum
in wallboard (referred to as ``FGD gypsum wallboard''). Specifically,
the 2012 ACAA survey indicates that the largest encapsulated beneficial
uses of CCR, by more than a factor of two, are fly ash used in
``concrete/concrete products/grout'' (12.6 million tons) and FGD gypsum
used in ``gypsum panel products'' (7.6 million tons).
3. Potential Danger, if Any, to Human Health or the Environment From
the Reuse of CCR
    The risks associated with the disposal of CCR stems from the
specific nature of that activity; that is, the disposal of CCR in
(often unlined) landfills or surface impoundments, with thousands, if
not millions, of tons placed in a single

concentrated location. And in the case of surface impoundments, the CCR
is managed with water, under a hydraulic head, which promotes rapid
leaching of contaminants into neighboring groundwater. The beneficial
uses identified as excluded under the Bevill exemption for the most
part present a significantly different risk profile.

a. Encapsulated Beneficial Uses

    An encapsulated beneficial use is one that binds the CCR into a
solid matrix that minimizes mobilization into the surrounding
environment. Examples of encapsulated uses include, but are not limited
to: (1) Filler or lightweight aggregate in concrete; (2) a replacement
for, or raw material used in production of, cementitious components in
concrete or bricks; (3) filler in plastics, rubber, and similar
products; and (4) raw material in wallboard production.
    Since publication of the proposal, EPA has developed a methodology
for evaluating encapsulated beneficial uses. A copy of the methodology
can be found at http://www2.epa.gov/coalash/methodology-evaluating-encapsulated-beneficial-uses-coal-combustion-residuals. EPA applied
this methodology to the two largest CCR uses--the use of fly ash as a
replacement for Portland cement in concrete, and the use of FGD gypsum
as a replacement for mined gypsum in wallboard. A complete copy of the
evaluation can be found at http://www.epa.gov/wastes/conserve/imr/ccps/pdfs/ccr_bu_eval.pdf.
    The evaluation considered products that meet relevant physical and
performance standards, that conform to standard design specifications,
and that incorporate fly ash and FGD gypsum from pollution control
devices currently used in the United States. Based on the findings of
the evaluation, the Agency concluded that environmental releases of
constituents of potential concern from CCR fly ash concrete and FGD
gypsum wallboard during use by the consumer are comparable to or lower
than those from analogous non-CCR products, or are at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors.

b. Unencapsulated Uses

    EPA acknowledged in the proposal that unencapsulated uses generally
presented more difficult issues than encapsulated uses. CCR can leach
toxic metals at levels of concern, so depending on the characteristics
of the CCR, the amount of material placed, how it is placed, and the
site conditions, there is a potential for environmental concern.
However, EPA cannot extrapolate from the risk assessments conducted to
evaluate the management practices associated with CCR landfills and CCR
surface impoundments, because the exposure patterns are too dissimilar:
The amounts and manner involved with beneficial use are very different
than the thousands, if not millions of tons of CCR that are mounded in
a single concentrated location in a landfill. And the potential
exposures are entirely unlike surface impoundments, where CCR is
managed with water under a hydraulic head, which promotes more rapid
leaching of contaminants. By contrast ``beneficial uses,'' even
unencapsulated uses, are typically subject to engineering
specifications, and for certain uses, federal oversight, and material
requirements. For example, fly ash used as a stabilized base course in
highway construction is subject to both regulatory standards under the
U.S. Department of Transportation (DOT) and the Federal Highway
Administration (FHWA), and engineering specifications, such as the ASTM
C 593 test for compaction, the ASTM D 560 freezing and thawing test,
and a seven day compressive strength above 2760 kPa (400 psi). (See 75
FR 35163-35165 for additional examples.)
    In 1999, EPA conducted a risk assessment of certain agricultural
uses of CCR, since this practice was considered the most likely to
raise human health or environmental concerns.\34\ EPA estimated the
risks associated with such uses to be within the range of 1 x
10-6. These results as well as EPA's conclusion that the use
of CCR in agricultural settings was the most likely use to raise
concerns, caused EPA to conclude that none of the beneficial uses
identified in the 2000 Regulatory Determination 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.)
---------------------------------------------------------------------------

    \34\ For more information on this risk assessment see EPA's
Notice of Regulatory Determination on Wastes from the Combustion of
Fossil Fuels (65 FR 32214, May 22, 2000).
---------------------------------------------------------------------------

    EPA also noted that beneficially using secondary materials
conserves natural resources, and can serve as an important alternative
to disposal.
4. Documented Cases in Which Damage to Human Health or the Environment
From Surface Run-off or Leachate Has Been Proved
    To date, EPA has seen no evidence of damages from the encapsulated
beneficial uses of CCR that EPA identified in the proposal. For
example, there is wide acceptance of the use of CCR in encapsulated
uses, such as wallboard, concrete, and bricks because the CCR is bound
into products. However, as of the date of the proposed rule, seven
proven damage cases associated with unencapsulated uses have occurred,
in which large quantities of unencapsulated CCR were used
indiscriminately to re-grade the landscape or to fill old quarries or
gravel pits. The proposed rule discussed two of these cases. (See 75 FR
35147.) The first case was in Gambrills, Maryland and 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 to contour a
golf course. Groundwater contamination above MCLs 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 to be a proven damage case. However, due to the
onsite groundwater contamination, EPA considers this site to be a
potential damage case.
    During the development of this final rule, EPA obtained information
on a comparable situation in which large quantities of unencapsulated
CCR were placed on the land in a manner that presented significant
concerns. The AES coal-fired power plant in Puerto Rico lacked capacity
to dispose of their CCR on-site, and off-site landfills in Puerto Rico
were prohibited from accepting CCR. In lieu of transporting their CCR
off of the island for disposal, AES created an aggregate (``AGREMAX'')
with the CCR generated at their facility, and used the aggregate as
fill in housing developments and in road projects. Over two million
tons of this material was used between 2004 and 2012.
    Currently, there is insufficient information to determine whether
groundwater has been contaminated as

a result of this practice, and thus, EPA cannot classify this as either
a proven or potential ``damage case.'' Nevertheless, the available
facts illustrate several of the significant concerns associated with
unencapsulated uses. Specifically, the AGREMAX was applied without
appropriate engineering controls and in volumes that far exceeded the
amounts necessary for the engineering use of the materials. Inspections
of some of the sites where the material had been placed showed use in
residential areas, and to environmentally vulnerable areas, including
areas close to wetlands and surface waters and over shallow, sole-
source drinking water aquifers. In addition, some sites appeared to
have been abandoned.
    Consistent with the proposed rule, EPA does not consider the
practices described in this section to be beneficial use, but rather
waste management that would be subject to the requirements of the final
rule.
5. Alternatives to Current Disposal Methods, the Costs of Such
Alternatives, and the Impact of Such Alternatives on the Use of Coal
and Other Natural Resources
    The beneficial use of CCR is a primary alternative to current
disposal methods. And as EPA has repeatedly concluded, it is a method
that, when performed correctly, can offer significant environmental
benefits, including greenhouse gas (GHG) reduction, energy
conservation, reduction in land disposal (along with the corresponding
avoidance of potential CCR disposal impacts), and reduction in the need
to mine and process virgin materials and the associated environmental
impacts.

a. Greenhouse Gas and Energy Benefits

    The beneficial use of CCR reduces energy consumption and GHG
emissions in a number of ways. Three of the most widely recognized
beneficial applications of CCR are the use of coal fly ash as a
substitute for Portland cement in the manufacture of concrete, the use
of FGD gypsum as a substitute for mined gypsum in the manufacture of
wallboard, and the use of CCR as a substitute for sand, gravel, and
other materials in structural fill. Reducing the amount of cement,
mined gypsum, and virgin fill produced by substituting CCR leads to
large supply chain-wide reductions in energy use and GHG emissions.
Specifically, the RIA estimates three-year rolling average of
53,054,246 million British thermal units (MMBtu) per year in energy
savings and 11,571,116 tons per year in GHG (i.e., carbon dioxide and
methane) emissions reductions in 2015. This estimate is likely to
underestimate the total benefits that can be achieved from all
beneficial uses. Furthermore, 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.

b. Benefits From Reducing the Need To Mine and Process Virgin Materials

    CCR 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, 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.

c. Benefits From Reducing the Disposal of CCR

    Beneficially using CCR instead of disposing of it in landfills and
surface impoundments also reduces the need for additional landfill
space and any risks associated with their disposal. In particular, the
United States disposed of over 57.8 million tons of CCR in landfills
and surface impoundments in 2012, which is equivalent to the space
required of 20,222 quarter-acre home sites under eight feet of CCR.
    As discussed in the final rule RIA, the current beneficial use of
CCR 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, the three-year rolling average of
environmental benefits estimated for 2015 includes: (1) 53,054,246
MMBtu per year in energy savings; (2) 1,661,900 million gallons per
year in water savings; (3) 11,571,116 tons per year in GHG (i.e.,
carbon dioxide and methane) emissions reductions; (4) 45,770 tons of
criteria air pollutant (i.e., NOX, SOX,
particulate matter, and CO) emissions reductions; and (5) 3,207 pounds
of toxic air pollutant (i.e., mercury and lead) emissions reductions.
All together, the beneficial use of CCR in 2015 is estimated to provide
over $2.3 billion in annual national environmental benefits. In
addition, since EPA estimates annual baseline disposal costs of
approximately $2.4 billion for the just over 50 percent of tons
disposed each year, current beneficial use and minefilling also result
in annual material and disposal cost savings of approximately $2
billion annually.
6. Current and Potential Utilization of CCR
    In 2012, nearly 36 percent (39 million tons) of CCR were
beneficially used (excluding minefill operations) and nearly 12 percent
(12.8 million tons) were placed in minefills. (This compares to 23
percent of CCR that were beneficially used, excluding minefilling, at
the time of the May 2000 Regulatory Determination, and represents a
significant increase.)
7. Conclusions
    On balance, after considering all of the available information, EPA
has concluded that the most appropriate approach toward beneficial use
is to retain the May 2000 Regulatory Determination that regulation
under subtitle C of the beneficial use of CCR is not warranted. EPA has
also determined that regulation under subtitle D is generally not
necessary for these beneficial uses.
    As discussed in the preceding section, the most important of the
section 8002(n) factors are those relating to the potential risks to
human health and the environment. See e.g., Horsehead Resource
Development Co. v. EPA, 16 F.3d 1246, 1258 (D.C. Cir, 1994) (Upholding
EPA's interpretation that wastes resulting from the combustion of
mixtures of Bevill-exempt and non-exempt wastes could only retain
Bevill-exempt status so long as the combustion waste remained of low
toxicity); EDF v. EPA, 852 F.2d 1316, 1328-1329 (D.C. Cir. 1988)
(Overturning EPA rule that included as Bevill exempt, wastes that were
not of low toxicity). EPA is adopting this Regulatory Determination in
recognition that many uses of CCR, such as encapsulated uses in
concrete, and use as an ingredient in the manufacture of wallboard,
provide environmental benefits and raise minimal health or
environmental concerns. To date, the information available does not
demonstrate the existence of any risks associated with encapsulated
uses of CCR that merit

regulation under either subtitle C or subtitle D of RCRA.
    While there can be some risks associated with unencapsulated uses--
for example, the placement of unencapsulated CCR on the land, such as
in large scale fill operations or in agricultural uses, depending on
the specific site conditions--in general the amounts and, in some
cases, the manner in which they are used are very different than land
disposal. For example, agricultural uses involve the placement of
inches rather than tons of CCR, and placement of CCR in a thin layer
rather than mounded in a single concentrated location. In addition,
these uses are subject to engineering specifications and materials
requirements, which will limit the ultimate amount of material placed
on the land.
    EPA recognizes that several proven damage cases involving the
large-scale placement, akin to disposal, of CCR have occurred under the
guise of ``beneficial use''-- the ``beneficial'' use being the filling
up of old quarries or gravel pits, or the re-grading of landscape with
large quantities of CCR. EPA did not consider this type of use as a
``beneficial'' use in its May 2000 Regulatory Determination, and still
does not consider this type of use to be covered by the exclusion.
Therefore, the final rule explicitly removes these types of uses from
the category of beneficial use, and from this Regulatory Determination.
As discussed in the next section of this preamble, EPA has adopted
criteria in the final rule to ensure that inappropriate uses that
effectively are disposal will be regulated as disposal. The final rule
expressly defines the placement of CCR in sand and gravel pits or
quarries as disposal in a landfill. In addition, the final rule
provides that the use of large volumes of CCR in restructuring
landscape that does not meet specific criteria will constitute
disposal.
    While EPA has not definitively concluded that all unencapsulated
beneficial uses are ``safe,'' based on the current record for this
rulemaking, EPA is unable to point to evidence demonstrating that the
unencapsulated uses subject to this Determination warrant federal
regulation. While the absence of demonstrated harm in this instance is
not proof of safety, neither is the lack of information proof of
risk.\35\
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    \35\ The Agency is currently developing a Framework to address
the risks associated with the beneficial use of unencapsulated
materials. This Framework is expected to be finalized in 2015. See
Unit VI of this document for more information.
---------------------------------------------------------------------------

    In this regard, EPA notes that many states have developed
beneficial use programs that allow the use of CCR, provided they are
demonstrated to be non-hazardous materials; and many require a site
specific assessment before authorizing placement on the land of large
amounts of unencapsulated CCR. For example, Wisconsin's Department of
Natural Resources has developed a regulation (NR 538 Wis. Adm. Code),
which includes a five-category system to allow for the beneficial use
of industrial by-products, including coal ash, provided they meet the
specified criteria. In addition, the ASTSWMO 2006 Beneficial Use Survey
Report states that a total of 34 of the 40 reporting states, or 85
percent, indicated they had either formal or informal decision-making
processes or beneficial use programs relating to the use of solid
wastes. (http://www.astswmo.org/Files/Policies_and_Publications/Solid_Waste/2007BUSurveyReport11-30-07.pdf) \36\ Because EPA has not
identified significant risks associated with the beneficial uses
covered by this Regulatory Determination, the adequacy of these state
programs does not factor into EPA's Determination. Nevertheless, to the
extent that that these materials do have the potential to pose risk at
an individual site, the fact that many states exercise regulatory
oversight of these materials provides an additional level of assurance.
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    \36\ EPA has worked with the states to support the development
of a national database on state beneficial use determinations.
Information on the beneficial use determination database can be
found on the Northeast Waste Management Officials' Association
(NEWMOA) Web site at http://www.newmoa.org/solidwaste/bud.cfm. This
database helps states share information on beneficial use decisions
providing for more consistent and informed decisions.
---------------------------------------------------------------------------

    Finally, EPA does not wish to inhibit or eliminate the measurable
environmental and economic benefits derived from the use of this
valuable material given the current lack of evidence affirmatively
demonstrating an environmental or health risk. Consequently, EPA is
confident that the combination of the final rule, EPA guidance, current
industrial standards and practices, and in many cases, state regulatory
oversight is sufficient to address concerns associated with the
beneficial uses to which this Determination applies.

V. Development of the Final Rule--RCRA Subtitle D Regulatory Approach

    As previously discussed in Unit II of this document, the authority
to develop and promulgate the national minimum criteria governing the
disposal of CCR in landfills and surface impoundments is found under
the provisions of sections 1008(a), 4004, and 4005(a) of RCRA (i.e.,
subtitle D of RCRA). These authorities, however, do not provide EPA
with the ability to issue permits, require states to issue permits,
approve state programs to operate in lieu of the federal program, or to
enforce any of the requirements addressing the disposal of CCR.
Consequently, EPA designed the proposed RCRA subtitle D option to
ensure that the requirements will effectively protect human health and
the environment within those limitations. The final rule establishes
self-implementing requirements--primarily performance standards--that
owners or operators of regulated units can implement without any
interaction with regulatory officials.
    In developing the subtitle D option for the proposal, EPA
considered a number of existing programs as relevant models. EPA drew
most heavily on the existing 40 CFR part 258 program applicable to
MSWLFs. While this program does not address CCR disposal in surface
impoundments, it provided EPA with a general regulatory framework that
addressed all aspects of disposal in certain land-based units. Given
the Agency's expansive history and experience with these requirements,
EPA concluded that the part 258 criteria with certain modifications for
other land-based disposal units (i.e., surface impoundments)
represented a reasonable balance between ensuring the protection of
human health and the environment from the risk of CCR disposal and the
absence of any regulatory oversight. (See 75 FR 35192-35195.)
    EPA also considered that many of the technical requirements
developed to specifically address the risks from the disposal of CCR as
part of the subtitle C alternative would be equally justified under a
RCRA subtitle D regulatory regime. The factual record--i.e., the risk
analysis and the damage cases--supporting such requirements was the
same, irrespective of the statutory authority under which the Agency
was operating. Thus, several of the provisions under RCRA subtitle D
either corresponded to the proposal under RCRA subtitle C, or were
modeled after the existing subtitle C requirements; for example, EPA
proposed the same MSHA-based structural stability standards for surface
impoundments under the subtitle C and subtitle D options. However,
because there is no corresponding guaranteed permit mechanism under the
RCRA subtitle D requirements, EPA also considered the 40 CFR part 265
interim status requirements for hazardous waste facilities, which were
designed to operate in the absence of a permit. These requirements were
particularly

relevant in developing the requirements for surface impoundments since
such units are not regulated under 40 CFR part 258. Beyond their self-
implementing design, these requirements provided a useful model
because, based on decades of experience in implementing these
requirements, EPA had assurance that these requirements were protective
for a variety of waste, under a wide variety of site conditions.
    In an effort to ensure that the proposed RCRA subtitle D
requirements would achieve the statutory standard of ``no reasonable
probability of adverse effects on health and the environment'' in the
absence of guaranteed regulatory oversight, EPA also proposed to
require facilities to obtain third party certifications and to provide
enhanced state and public notifications of actions taken to comply with
the regulatory requirements. Specifically, EPA proposed that certain
technical demonstrations made by the owner or operator be certified by
an independent registered professional engineer or hydrologist, in
order to provide verification and otherwise ensure that the provisions
of the rule were properly applied. EPA also provided a regulatory
definition of the term, ``independent registered professional engineer
or hydrologist,'' to identify the minimum qualifications necessary to
make these certifications. While EPA acknowledged that relying upon a
third party certification was not the same as relying upon a state or
federal regulatory authority and was not expected to provide the same
level of independence as a state permit program, the availability of
meaningful third party (i.e., independent) verification provided
critical support that the rule would achieve the statutory standard, as
it would provide at least some degree of control over a facility's
discretion in implementing the rule.
    As part of the notification requirements, EPA further proposed that
all owners and operators create and maintain an operating record and
publically accessible Web site, containing comprehensive documentation
of compliance with the rule. EPA also proposed that owners or operators
provide notification to the state and the public of third party
certifications as well as other information documenting actions taken
to comply with the technical criteria of the rule.

A. The Self-Implementing Approach

    While the vast majority of state and industry commenters supported
regulating the management of CCR under subtitle D of RCRA, a very
limited number of commenters favored the proposed self-implementing
option. Most commenters argued that if the Agency were to adopt the
proposed subtitle D approach it would most certainly result in parallel
and redundant regulatory programs for CCR in many states, creating an
unworkable situation for industry, as well as the state. Some
commenters argued that under this dual regulatory approach, an owner or
operator of a CCR unit could conceivably be in non-compliance with both
a federal requirement and an independently administered state
regulatory requirement, subjecting the owner or operator to both a
citizen suit enforcement action in federal court for the alleged
violation and to a wholly separate enforcement action in state court
for violation of the parallel state requirement. Commenters argued that
this regulatory construct made no sense and would waste federal and
state judicial resources and company resources, as well as possibly
resulting in inconsistent federal and state court determinations with
respect to an identical regulatory requirement. It also could result in
duplicative federal and state penalties for essentially the same
regulatory infraction.
    Commenters further argued that the prescriptive one-size-fits-all
approach was overly stringent and inflexible and had the potential to
greatly disrupt implementation of a state's regulatory programs, which
have been tailored to provide for site specific conditions and
situations. Moreover, commenters argued that because of the many state
regulatory programs addressing CCR disposal, there would be many
instances where state requirements could be in conflict with, in
addition to, or separate from the federal requirements and it was
unclear how these differences would be resolved.
    Many commenters simply argued that a permitting program similar to
that for MSWLFs was the only viable approach for the regulation of CCR.
A significant number of commenters, however, proposed various
alternative approaches for regulating CCR disposal under subtitle D of
RCRA. One option would have EPA allow qualified state programs to
directly administer the subtitle D requirements for CCR when the state
regulatory program meets or exceeds the federal requirements, thereby
minimizing duplicative regulations and avoiding the self-implementing
``one size fits all'' approach contained in EPA's proposal. This
option, commenters reasoned, could be implemented utilizing a process
developed by the Agency for evaluating whether the state's CCR
regulations were equivalent to the federal minimum criteria (much like
EPA does now in the case of MSWLFs under 40 CFR part 258). Another
suggested approach involved EPA clarifying that a state can be more
restrictive than the federal rule, and that where a state has a
subtitle D regulatory program that is more restrictive, the state
program and permitting process would take precedence over any self-
implementation aspects of a final rule. (The proposed rule had simply
stated that an owner or operator must comply with any other applicable
federal, state, tribal or local laws or other requirements.) Commenters
also proposed a third option, similar to the 40 CFR part 258 program,
recognizing that EPA cannot approve state programs in this rule.
Specifically, 40 CFR part 258 provides a definition for ``Director of
an approved state'' that means they are the chief administrative
officer of a state agency responsible for implementing the state permit
program that is deemed to be adequate by EPA under regulations
published pursuant to sections 2002 and 4005 of RCRA. The commenters
suggested that the final rule adopt a similar approach by defining a
``state permit program'' and allowing a state permit program that met
the definition to approve compliance with a specified regulatory
requirement, e.g., landfill design. The commenter suggested the
following definition: ``state permit program means a permit program
implemented by a state agency that adopts and implements the minimum
requirements for the disposal of coal combustion residuals outlined in
this final rule.'' The commenter claimed that such an approach should
not affect enforcement through citizen suits under RCRA section 7002 or
by EPA under RCRA section 7003. Taking such an approach, commenters
reasoned, would allow states to utilize their own enforcement authority
and not rely upon the citizen suit authority under RCRA section 7002.
Furthermore, allowing states to consider alternative approaches to the
technical standards may give states an incentive to adopt the minimum
requirements of the final federal rule into their state permit
programs.
    As noted, many commenters suggested that EPA rely on the same
combination of RCRA statutory authorities, i.e., RCRA sections 4010(c)
and 4005(c), to establish controls for CCR units that it employed in
promulgating federally enforceable subtitle D rules for MSWLFs and for
non-MSWLFs that receive household

hazardous waste and small quantity generator waste under 40 CFR parts
257 and 258. RCRA sections 4010(c) and 4005(c), the commenters
reasoned, provides EPA that authority because non-hazardous waste CCR
disposal facilities have the potential to receive household wastes or
conditionally exempt small quantity generator waste, whether or not
such waste is actually received at the CCR disposal facility.
Commenters contended that the combination of these two provisions could
enable EPA to promulgate non-hazardous waste rules for CCR that could
be directly administered through state permitting programs and backed
up by direct EPA enforcement powers in those states that fail to
adequately implement the federal rules. Such an approach, commenters
concluded provides the Agency with the enforcement authority it desires
under a subtitle D regulatory program, while enabling states to have a
prominent role in the administration of any subtitle D rules, and
preventing the duplication of potentially conflicting federal and state
controls.
    Finally, some commenters encouraged EPA to request from Congress
the statutory authority necessary to propose non-hazardous regulations
under subtitle D that could be implemented by the states and provide
federal enforceability (similar to RCRA's part 258 requirements for
MSWLFs). Commenters argued that states should be allowed to enforce
compliance through a traditional permitting system, and that solid
waste operating permits are critical to ensuring coal ash disposal
facilities design, construct, operate and close their waste facilities
safely. Commenters argued that permits are important because they can
dictate the use of specific operating practices and control
technologies that may be essential for minimizing releases. Permits
also provide an important enforcement vehicle, as well as a process by
which the public can be informed and participate in the siting,
operation and closure of the waste disposal unit.
    While the Agency appreciates commenters' attempts to craft
alternative approaches to address the limitations in the proposed self-
implementing subtitle D option, EPA has not ``chosen'' to design
standards under subtitle D that are self-implementing. The sections of
RCRA that are currently applicable to CCR--sections 1008(a), 4004(a),
and 4005(a)--only authorize the Agency to establish minimum national
criteria that apply to ``facilities.''
    As previously discussed, these provisions do not authorize EPA to
require that facilities obtain a permit from EPA or a state. The fact
that section 4004(a) does not contain any provision that either
expressly requires a permit to manage waste, such as in section 3005,
or that requires states to adopt a permit program, such as in section
4004(c)(1), provides strong evidence that Congress did not authorize
EPA to impose such a requirement on facilities managing solid waste.
Compare 42 U.S.C. 6925(a), 6944(a), and 6945(c)(1). This is further
confirmed by the fact that Congress thought it necessary to expressly
add provisions to require state permit programs in 4010(c) and 4005(c).
And the fact that the HSWA provisions are limited to two specifically
enumerated types of units provides further evidence that Congress
intended to authorize EPA to require permits only for these units.
    The restriction that the criteria apply only to ``facilities'' also
means that EPA cannot establish any requirements on states or state
programs, either directly or indirectly. This means, for example, that
EPA cannot adopt a regulation that restricts certain provisions to
those ``state permit programs'' that meet EPA requirements, as one
commenter suggested, since this would indirectly regulate state
programs--leaving aside that EPA never proposed anything of the sort.
This also means that EPA cannot require a facility to obtain state
approval, as this not only presupposes the existence of a state permit
program, but also that the state will approve the facility action on
the basis of EPA's criteria. EPA cannot condition a facility's
compliance on actions beyond its control.
    However, these provisions restrict EPA's authority only. The
legislation is clear that these are minimum requirements only, and
without preemptive effect; states may therefore impose more stringent
requirements, including the requirement that CCR facilities obtain a
permit. This is also wholly consistent with longstanding EPA
interpretations. See 44 FR 53438, 53439 (September 13, 1979) (``the
standards established in the criteria constitute minimum requirements.
These criteria do not preempt other state and federal requirements.
Nothing in the Act precludes the imposition of additional obligations
under authority of other laws on parties engaged in solid waste
disposal.''); see also 44 FR 45066 (July 31, 1979) (``EPA establishes
only `minimum' requirements under this portion of the Act which should
not prevent States from developing broader programs or stricter
standards under authority of State law.''). States may also incorporate
the federal requirements into state law--whether through revisions to
existing legislation or regulation, or through incorporating them into
any permits issued to CCR facilities. Such an approach would also
resolve commenters' concerns about the potential for ``parallel and
redundant regulatory programs.''
    While subtitle C and 4005(c) provide for state oversight on rule
implementation and allow approved state requirements to operate in lieu
of federal criteria, the Agency lacks the authority to do so under the
subsections of RCRA currently applicable to CCR. The provisions
applicable to solid waste--sections 1008(a)(3), 4003, 4004(a) and
4005(a)--establish a regulatory structure that differs in key respects
from those established under subtitle C and for MSWLFs under section
4005(c). Under subtitle C and section 4005(c), Congress required EPA to
establish federal criteria that will serve as national minimum
standards, which is comparable to the authority under section 4004(a).
But subtitle C and section 4005(c) also include detailed provisions
governing both the state implementation of those requirements and the
relationship between the federal requirements and the state programs
that implement them. No comparable provisions appear in either section
4004(a) or section 4003, which governs the approval of state SWMPs. And
the consequences of these omissions are significant.
    Subtitle C of RCRA contains several provisions that establish the
relationship between the federal program and state requirements; these
include provisions authorizing EPA to approve state programs and to
retain a direct role in the implementation of the federal minimum
requirements, whether through continued oversight of state
implementation or direct implementation of the regulations. See, 42
U.S.C. 6926, 6928(a)(2), and 6929. For purposes of this issue, the most
critical of these is the explicit direction in section 3006 that
authorized state programs ``operate in lieu of the Federal program.''
42 U.S.C. 6926(b), (c)(1). See also 42 U.S.C. 6929 (prohibiting the
adoption of less stringent state requirements than those in EPA
regulations, and authorizing states to establish more stringent
requirements).
    The provisions for MSWLFs under section 4005(c) are less detailed,
but establish a similar regulatory structure. Section 4005(c)(1)
expressly directs the states to ``adopt and implement a permit program
or other system of prior approval and conditions,'' for covered

facilities in order to implement federal requirements established for
such facilities. 42 U.S.C. 6945(c)(1). The statute directs EPA to
determine the adequacy of such programs, and directs EPA to enforce the
federal requirements in states that have not adopted an adequate
program. 42 U.S.C. 6945(c)(1)(C), (2). While less detailed than the
provisions under subtitle C, section 4005(c) establishes a system that
is equally predicated on mandated implementation by a state regulatory
authority of the federal requirements, rather than the potential
coexistence of two separate regulatory systems.
    The absence of any similar provisions in the ``solid waste''
provisions of subtitle D demonstrates that Congress intended to create
a different regulatory structure. EPA's role under sections 1008(a)(3)
and 4004(a) is to establish minimum criteria to determine which
facilities ``shall be classified as sanitary landfills and which shall
be classified as open dumps,'' and to encourage states to use the
criteria as a part of their solid waste management planning. Under this
regulatory structure, Congress intended that the federal requirements
apply directly to facilities and operate independent of state
involvement, unless the state chooses to do otherwise. The ability to
approve state SWMPs under section 4003 does not alter this
relationship. Indeed, the fact that Congress thought it necessary to
revise section 4005 to include the specific provisions in subsection
(c) confirms that Congress did not believe such authority already
existed under sections 4003 and 4004.
    Approval of a state's SWMP pursuant to section 4003 qualifies the
state to receive federal funds (no longer available) and authorizes the
state to issue compliance schedules; but unlike under section 3006 or
4005(c), an authorized plan does not affect the federal minimum
standards themselves, or authorize states to do so. Section 4003
contains nothing that explicitly or implicitly authorizes state
requirements to operate ``in lieu of'' the federal requirement as a
consequence of EPA approval of the state plan. The closest analogue is
that states with an approved plan may establish a ``timetable or
schedule'' to bring existing open dumps into compliance with the
federal requirements; but notably, Congress only authorized the state
to modify the timeframes by which such facilities must be in
compliance, not the substantive requirements themselves. 42 U.S.C.
6945(a).
    The combination of this regulatory structure and the need to
demonstrate that the final rule achieves section 4004(a)'s
protectiveness standard based on the record at the time the rule is
promulgated also effectively limits EPA's ability to establish the kind
of regulatory provisions commenters have requested (i.e., establish an
alternative that allows a state permit program to approve a less
stringent technical requirement based on site specific conditions).
Because as discussed in Unit IV of this document, EPA is currently
unable to reach a conclusion regarding the adequacy of state programs,
EPA cannot demonstrate that such an alternative would meet the section
4004(a) standard. And in the absence of a mandatory mechanism for
subsequent public involvement and review, which would create decisions
with their own record, subject to judicial review in their own right,
the lack of such information is dispositive.
    With respect to the proposal to rely on RCRA sections 4010(c) and
4005(c) authorities, EPA also disagrees that this is a viable option.
As the comment appears to acknowledge, construing sections 4010(c) and
4005(c) to apply to CCR units on the basis that they could potentially
receive conditionally-exempt small quantity generator waste is
inconsistent with EPA's longstanding interpretation of those sections.
EPA directly addressed this issue nearly 20 years ago in the preamble
for EPA's final rules at 40 CFR part 257, subpart B. In that discussion
which we summarize in the next several paragraphs, EPA explained that
the proposed rule was written to provide that only those non-municipal
non-hazardous waste disposal units which meet the requirements in
Sec. Sec.  257.5 through 257.30 ``may receive'' CESQG waste, as
required by RCRA section 4010(c). Any non-municipal non-hazardous waste
disposal unit that did not meet the proposed requirements may not
receive CESQG hazardous wastes. The proposal was written to apply to
non-municipal non-hazardous waste disposal units that receive CESQG
waste for storage, treatment, or disposal, including such units as
surface impoundments, landfills, land application units and waste
piles. The regulatory definition of the term ``disposal'' cover all
placement of wastes on the land. See 40 CFR 257.2.
    EPA further noted that several commenters addressed the Agency's
interpretation of the statutory language ``may receive.'' One commenter
supported the Agency's decision to limit the proposed regulatory
requirements to only those non-municipal non-hazardous waste disposal
units that receive CESQG wastes. Another commenter, however, stated
that a closer reading of section 4010(c) reveals that Congress was not
only concerned about modifying the criteria for ``facilities that may
receive hazardous household wastes or hazardous wastes from small
quantity generators . . .'' but also for ``facilities potentially
receiving such wastes.'' According to the commenter, the ``may
receive'' clause of the first sentence in section 4010(c) merely refers
to whether a facility may legally receive CESQG waste for disposal. The
``potentially receiving such wastes'' clause of the third sentence of
Section 4010(c) refers to the actual potential for such facilities to
receive CESQG wastes. The potential for CESQG waste to be disposed of
at many types of industrial D landfills is high even with the proposed
prohibition under Sec.  261.5. It is the ``potentially receiving''
clause that specifically commands the Agency to promulgate provisions
for all industrial facilities that could potentially receive CESQG
wastes.
    EPA disagreed with the commenter's interpretation of the statutory
language in RCRA section 4010(c). More specifically, for a number of
reasons, the Agency did not believe that the statutory language cited
by the commenter evidenced congressional intent that the revised
criteria promulgated in the rule should address disposal of solid waste
in all industrial disposal facilities. First, EPA believed that the
commenter erred by focusing only on the ``facilities potentially
receiving'' language in the last sentence of section 4010(c). If one
reviews this language together with the statutory language in RCRA
section 4010(a), it is clear that Congress did not intend for the
revised criteria being promulgated in this rule to apply to all
industrial landfills.
    RCRA section 4010(a) required EPA to conduct a study of the then
existing guidelines and criteria issued under RCRA sections 1008 and
4004 which were applicable to ``solid waste management and disposal
facilities, including, but not limited to landfills and surface
impoundments.'' 42 U.S.C. 6949a(a). This statutory language does indeed
suggest that EPA was to study a wide range of solid waste disposal
facilities, including industrial landfills. (As the commenter stated,
because the information on industrial disposal facilities was quite
limited, EPA's report to Congress did focus on municipal landfills.)
    However, the statutory language in section 4010(c) directing EPA to
promulgate a rule revising the criteria in 40 CFR part 257 limits the
rule's applicability only to those facilities which may receive
hazardous

household waste or small quantity generator waste. 42 U.S.C. 6949a(c).
If Congress had intended the revised criteria under section 4010(c) to
apply to all solid waste disposal facilities, including industrial
landfills and surface impoundments, it clearly could have done so by
enacting language similar to that already used in section 4010(a).
    Secondly, the legislative history of RCRA section 4010 suggests
that Congress expressly rejected a provision that would have required
rules to be promulgated under section 4010(c) to apply to the entire
universe of RCRA subtitle D solid waste disposal facilities. Indeed,
the House version of section 4010 would have required EPA to promulgate
revised guidelines and criteria such that they would be applicable to
all ``solid waste management and disposal facilities, including, but
not limited to landfills and surface impoundments. . . .'' H.R. 2867,
section 30, 98th Cong., 1st Sess. (as introduced in the Senate on
November 9, 1983). However, the Conference Committee instead adopted a
Senate amendment which limited the scope of the revised criteria to
those facilities that may receive hazardous household waste or small
quantity generator waste. H. Rept. No. 98-1133, 98th Cong., 2d Sess.,
at 116-117.
    Another indication that RCRA section 4010(c) was not intended to
cover the entire universe of solid waste disposal facilities is the
fact that subsequent to the enactment of section 4010(c) (as part of
the Hazardous and Solid Waste Amendments in 1984), a number of bills
were introduced in Congress which would have either authorized or
required EPA to issue additional regulations that would address all
disposal facilities receiving industrial waste as opposed to addressing
those which may receive CESQG waste as stated in section 4010(c). See,
e.g., H.R. 3735, ``Waste Materials Management Act of 1989,'' section
324 (would have required EPA to promulgate standards for the management
of industrial solid waste) (Luken Bill); S. 1113, ``Waste Minimization
and Control Act of 1989,'' section 204 (would have required EPA to
promulgate requirements for facilities that manage different types of
industrial waste) (Baucus Bill). Neither of these provisions (although
neither was enacted) would have been necessary if RCRA section 4010(c)
required EPA to promulgate revised criteria for all types of industrial
disposal facilities. (See 61 FR 34252, 34254-55 (July 1, 1996).)
    The commenter on the proposed CCR rule makes essentially the same
argument based on the same language in 4010(c) that EPA rejected in the
1996 rule. The commenter provided no legal analysis that contravenes
the basis for EPA's interpretation of subtitle D. EPA thus declines to
reopen or reconsider this interpretative question. EPA also notes that
in any case, information in its record for this rulemaking indicates
that CCR landfills or surface impoundments do not actually or
potentially receive CESQG wastes.
    Nevertheless, EPA recognizes that this regulatory structure gives
rise to legitimate concerns about the potential for duplicative or
conflicting state and federal regulatory systems. EPA has adopted
measures to address these concerns within the confines of the
regulatory structure that Congress established in subtitle D. First,
EPA has made every effort to ensure that the final rule does not
establish any requirements that truly conflict with existing state
programs. To clarify, this does not mean that the requirements are
necessarily the same, but rather that it is possible to comply with
both federal and state requirements simultaneously. Or in other words,
compliance with the more stringent standard--whether federal or state--
will ensure compliance with the less stringent. Based on the comments
received, EPA is aware of no example of a situation in which truly
conflicting requirements will exist. Second, as discussed, these
regulations do not constrain or direct state action. States can impose
more stringent or different requirements, such as requiring a permit.
Nor does the regulation require the state to enforce the federal
requirements; even with promulgation of the final rule, the decision to
bring an action under section 7002 remains entirely within the state's
discretion. Third, as discussed in greater detail in Unit IX of this
document, EPA has developed a number of measures to clarify the
relationship between an individual state program, or particular
requirements, and the federal criteria. Specifically, for those states
that choose to submit a revised SWMP that incorporates the federal
criteria, EPA intends to rely on the existing processes in 40 CFR part
256 relating to approval of SWMPs. EPA expects that approval of a state
SWMP, while it cannot prevent a citizen group from filing a lawsuit,
will carry substantial weight in any court proceeding charged with
determining whether compliance with state requirements constitutes
compliance with the federal criteria.

B. Enforceability of the Subtitle D Approach

    Numerous commenters raised concern that reliance on a RCRA citizen
suit as the basic enforcement mechanism to address non-compliance with
the CCR requirements presents environmental justice concerns.
Commenters argued that as a practical matter, this self-implementing
approach would result in unenforced regulations affecting neighborhoods
where environmental, legal, and technical services are unavailable or
difficult to obtain. Commenters stated that it would be highly
unreasonable for EPA to place the burden of enforcement of the CCR
regulations on citizens, arguing that it is EPA's duty to make sure
federal regulations protecting human health and the environment are
enforced fairly and effectively, and that enforcement by citizen suits
puts an unacceptable burden on low income populations located near
these facilities. Commenters contended that environmental justice
communities were the least likely to mount a serious challenge to the
industry because low income people are often less well-educated, have
less access to computers and internet technology, are less
knowledgeable of how to access and interpret environmental data, and
are the least likely to have the resources for a time consuming legal
battle. Commenters argued that given the high number of damage cases in
this industry, it was clear that the industry cannot police itself and
neither can state governments. For these reasons, commenters asserted
that the regulations and the enforcement must come from the federal
level.
    Conversely, other commenters were encouraged by the opportunity to
enforce the rule through citizen suits, stating that it would result in
very effective regulation since citizens have shown no reluctance to
challenge companies that they believe are not responsibly following
environmental regulations. Similarly, other commenters noted that other
incentives existed to comply with the regulations, including the
possibility of state and third party litigation (for both regulatory
compliance and actual damages), and the requirements of investors,
lenders, and insurers to demonstrate compliance with environmental
requirements, i.e., investors and lenders typically condition capital
investments and loans on environmental compliance. Commenters also
noted that incentives to comply were created by environmental insurance
policies, which ``invariably exclude damage claims arising from non-
compliance from covered events'' as well as typical corporate policies
that call for

environmental compliance as a standard operating procedure.
    Other commenters focused on the role of the professional engineer
in the self-implementing framework, arguing that EPA is requiring the
certifying professional to inappropriately take on a quasi-regulatory
and enforcement role which places the certifying professional at great
risk of being subject to nuisance lawsuits from project opponents,
creating a scenario where some professionals may decline to be involved
in such reviews. Still other commenters argued with EPA's basic premise
that the RCRA subtitle D program lacks federal enforceability.
Commenters contended that EPA's concerns about the lack of direct
federal enforcement authority failed to recognize the significant
enforcement opportunities available under existing law, namely the
``imminent and substantial endangerment authority'' under RCRA section
7003 to take action against any CCR unit that posed a risk to human
health and the environment, as well as, the imminent and substantial
endangerment authorities under CERCLA, as well as other federal
authorities, including the federal Clean Water Act, to address
circumstances where a CCR unit posed a threat.
    EPA acknowledges that the lack of federal enforcement under
Subtitle D presents challenges. However, as discussed above, issuing
minimum national standards under the authority that is currently
applicable to CCR (i.e., subtitle D) is significantly more protective
than the current federal standards in part 257 that apply to these
wastes. It is more consistent with EPA's obligations under RCRA to put
in place the additional protections that, based on the information
currently available, are needed to protect health and the environment.
As part of those requirements, EPA has developed a number of provisions
designed to facilitate citizens to enforce the rule pursuant to RCRA
section 7002. Chief among these is the requirement to publicly post
monitoring data, along with critical documentation of facility
operations, so that the public will have access to the information to
monitor activities at CCR disposal facilities. Moreover, as noted
elsewhere, a state seeking EPA's approval for a State SWMP would be
required to conduct a public comment process to avail itself of the
benefits of an EPA's approval.
    EPA also agrees that the Agency retains the authority to bring an
action under RCRA section 7003, as well as other statutes, when the
facts support the necessary findings. However, an action under section
7003 does not enforce the requirements of this rule. Certainly, EPA
believes that the failure to comply with the requirements of the rule
increases the probability that an imminent and substantial endangerment
may arise, but the fact that a facility has not complied with one or
more of the requirements of this rule does not per se establish that a
section 7003 order is warranted.
    The Agency also acknowledges that the self-implementing frameworks
could potentially place certifying professionals at risk for lawsuits;
several of the performance standards in the proposed rule were adopted
from part 258, which were designed to operate in the context of an
approved state program, under the oversight of a state regulatory
authority, rather than a purely private entity. In part due to this
concern, the Agency has re-evaluated the performance standards
throughout the final rule, and has revised them where necessary to
ensure that the requirements are sufficiently objective and technically
precise that a qualified professional engineer will be able to certify
that they have been met.

C. Reliance on Certification by Independent Qualified Professional
Engineers

    As previously discussed, the majority of commenters were highly
skeptical of a regulatory approach that substituted state oversight
with an owner or operator hiring a consultant or professional, i.e., an
independent registered professional engineer or hydrologist, to certify
compliance with a federal regulatory requirement and posting that
information on an internet site. More specifically, commenters were
concerned that relying almost entirely on professional certifications
for ensuring regulatory compliance did not seem like a reliable way to
provide for protection of human health and or the environment.
    As explained in Unit IV.A of this document, EPA is issuing national
minimum criteria under subtitle D to put in place the technical
requirements the Agency has determined are necessary to protect human
health and the environment from the disposal of CCR in surface
impoundments and landfills, while the Agency completes its Bevill
Determination. EPA is relying on the certification in this context to
partially compensate for one of the more significant limitations under
the authorities currently applicable to CCR: The lack of any guaranteed
regulatory oversight mechanism. However, EPA disagrees that the rules
rely ``almost entirely'' on professional engineers to protect human
health and the environment. The final rule relies on multiple
mechanisms to ensure that the regulated community properly implements
requirements in this rule. As one part of this multi-mechanism
approach, owners or operators must obtain certifications by qualified
individuals verifying that the technical provisions of the rule have
been properly applied and met. However, a more significant component
supporting EPA's determination that the technical requirements will
achieve the level of protection required under section 4004(a) is the
performance standards that the rules lay out. These standards impose
specific technical requirements, and, even where they provide
flexibility, will operate to significantly constrain the facility's
activities and discretion. The certifications required by the rule
supplement these technical requirements, and while they are important,
they are not the sole mechanism ensuring regulatory compliance.
    The rule also contains a number of provisions requiring the owner
or operator to document their compliance with the rule's technical
requirements, and to post those documents on a publically available Web
site in a timely and transparent manner. The rule also requires owners
or operators to notify State Directors of numerous actions, including
that certified demonstrations have been completed. This transparency
will facilitate citizen and state oversight and overall enforcement of
the requirements. Finally, the rule establishes specific timeframes by
which these actions must occur, including timeframes by which
facilities must document compliance with the various technical
requirements in the rule. Timeframes have been established for: (1)
Technical compliance demonstrations made by the owner or operator; (2)
certifications made by a qualified professional engineer verifying the
technical accuracy and veracity of the compliance demonstration; (3)
notifications made to the State Director; (4) submittals (e.g., data,
reports and other documentation) to the operating record; and (5)
postings to the owner or operator's publicly accessible internet site.
Further details pertaining to all of these requirements can be found in
the Recordkeeping, Notification, and Posting of Information to the
Internet section of the regulations published in this rule.
1. Changes to the Definition of Independent Registered Professional
Engineer or Hydrologist
    EPA proposed to define ``independent registered professional
engineer or

hydrologist'' to mean a scientist or engineer who is not an employee of
the owner or operator of a CCR landfill or CCR surface impoundment, who
has received a baccalaureate or post-graduate degree in the natural
sciences or engineering, and who has sufficient training and experience
in groundwater hydrology and related fields as may be demonstrated by
state registration, professional certifications, or completion of
accredited university programs that enable that individual to make
sound professional judgment regarding the technical information for
which a certification under this subpart is necessary.
    Many comments were received on the definition. Some commenters
agreed with the proposed definition, but most commenters argued that
significant changes were needed. These changes included removing the
requirement that the engineer be ``independent,'' adding the word
``qualified,'' and limiting the ability to make certifications to
``licensed'' professional engineers. Still other commenters felt that
EPA should broaden the qualifications beyond a professional engineer or
hydrologist, to include geologists, hydrogeologists, groundwater
scientists or ``other qualified environmental professionals'' among the
individuals able to certify regulatory demonstrations.
    By far the issue receiving the most comment was whether the Agency
should require a professional engineer to be ``independent.''
Commenters disagreed with EPA that the certification must be made by an
independent registered professional engineer (i.e., not an employee of
the owner or operator of the CCR unit). Commenters argued that most
utilities employ a number of professional engineers that typically
possess the most relevant experience and knowledge about the unit, and
that company-employed engineers and hydrologists were in a much better
technical position to certify technical provisions of the rule were
being met. Furthermore, commenters asserted that these professionals
would be subject to the same state registration and licensing
requirements as those not employed by the facility and would have an
equally strong incentive to maintain their licenses in good standing as
those that are independent of the utility. These commenters also
pointed to several EPA rulemakings in which EPA allowed ``qualified''
professional engineers to make the kind of certifications contemplated
by this rulemaking, without requiring that they be ``independent.''
Commenters also contended that state licensing and registration
programs help to ensure that all professionals exercise proper judgment
or ``independence'' regarding the operation of CCR landfills and CCR
surface impoundments. Similarly, commenters claimed that a professional
engineer without the required expertise would refuse to make any
certifications for which they were not qualified. Some commenters
suggested that EPA provide some criteria requiring demonstrated
experience and training. Commenters also took issue with the fact that
the definition focused entirely on groundwater hydrology and failed to
include training or experience in other areas that would also be
necessary to effectively certify specific technical criteria of the
rule (e.g., structural integrity, composite liner design).
    The definition EPA proposed for ``independent registered
professional engineer or hydrologist,'' focused on three components
that were intended to define the minimum qualifications necessary to
independently verify that a specific technical standard was met and to
provide sufficient objectivity to reduce the opportunity for abuse.
These components were: (1) The individual was a scientist or engineer
by academic training or education; (2) the individual was not an
employee of the owner or operator of the CCR unit; and (3) the
individual had sufficient training in groundwater hydrology or related
fields. The proposed definition did not require the individual to be a
licensed professional engineer or hydrologist; instead the Agency
prohibited the individual providing the certification from being an
employee of the owner or operator of the CCR unit, reasoning that this
requirement would provide some degree of independent verification of
facility practices.\37\ The Agency stated that the availability of
meaningful independent verification was critical to EPA's ability to
conclude that the performance standards laid out in the proposed rule
would meet the RCRA section 4004 protectiveness standard.
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    \37\ While the definition did not require the independent
registered professional engineer or hydrologist to be licensed, the
preamble did state that EPA expects that professionals in the field
will have adequate incentive to provide an honest certification,
given that the regulations require that the engineer not be an
employee of the owner or operator of the CCR landfill or CCR surface
impoundment, and that they operate under penalty of losing their
license, implying that the professional was, in fact, licensed. This
narrative and the title of independent registered professional
engineer caused many commenters to assume that the certifiers indeed
had to be licensed professional engineers. (See 75 FR 35194, June
21, 2010.)
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    In the course of developing this final rule, the Agency concluded
that it needed to better define the connection between the technical
requirements of the rule and the technical qualifications an individual
must possess to certify the demonstrations being made by the owner or
operator of the CCR unit. In doing so, the Agency looked for direction
in the following rules, the ``Resource Conservation and Recovery Act
(RCRA) Burden Reduction Initiative'' (71 FR 16826, April 4, 2006) and
the ``Oil Pollution Prevention and Response; Non-Transportation-Related
Onshore and Offshore Facilities rule (67 FR 47042, July 17, 2002). In
both of these actions, the Agency had come to similar conclusions.
First, that professional engineers, whether independent or employees of
a facility, being professionals, will uphold the integrity of their
profession and only certify documents that meet the prescribed
regulatory requirements; and that the integrity of both the
professional engineer and the professional oversight of boards
licensing professional engineers are sufficient to prevent any abuses.
(For an example see: 67 FR 47084, July 17, 2002.) And second, that in-
house professional engineers may be the persons most familiar with the
design and operation of the facility and that a restriction on in-house
professional certifications might place an undue and unnecessary
financial burden on owners or operators of facilities by forcing them
to hire an outside engineer.
    Reviewing these other regulatory actions and the Agency's rationale
for making its decisions, has led the Agency to a similar conclusion
with regard to this rule--that it is unnecessary to require the
individual making certifications under this rule to be ``independent.''
Thus the final rule does not prohibit an employee of the facility from
making the certification, provided they are a professional engineer
that is licensed by a state licensing board. The personal liability of
the professional engineer provides strong support for both the
requirement that certifications must be performed by licensed
professional engineers, and for removing the requirement that the
engineer be ``independent.''
    While other commenters argued that the word ``independent'' should
be retained because an independent review and certification avoids any
potential of conflict of interest, the Agency is convinced that an
employee of a facility, who is a qualified professional engineer and
who has been licensed by a state licensing board would be no more
likely to be biased than a qualified professional engineer who is not
an employee of the owner or operator. Moreover, it is not clear that an
in-house engineer faces a greater economic temptation than an
independent

engineer seeking to cultivate an ongoing relationship with a client.
EPA has concluded that the programs established by state licensing
boards provide sufficient guarantees that a professional engineer,
regardless of whether he/she is ``independent'' of the facility, will
give a fair technical review.
    As an additional protection, the Agency has re-evaluated the
performance standards throughout the final rule to ensure that the
requirements are sufficiently objective and technically precise that a
qualified professional engineer will be able to certify that they have
been met.
    The Agency agrees with concerns that a professional engineer may
not be qualified to address all the varied aspects of CCR landfill and
CCR surface impoundment design, and has amended the definition to
clarify and strengthen the qualifications of the individual authorized
to certify the technical demonstrations under the rule. In the proposed
rule, the Agency did not require an independent registered professional
engineer to be licensed, only that they be an engineer or hydrologist
who had received a baccalaureate or post graduate degree in the natural
sciences with training and experience in groundwater hydrology or a
related field. While the term ``independent registered professional
engineer or hydrologist'' conveyed to some commenters that the
individual was in fact ``licensed,'' the definition in the proposal did
not require it. Furthermore, as noted by commenters, the proposed
definition focused primarily on hydrogeology expertise and did not
include training and experience qualifications necessary to accurately
certify some of the requirements being promulgated in the rule, e.g.,
landfill and surface impoundment design and construction, structural
stability assessments, analysis of unstable areas. In reviewing this
proposed requirement, the Agency has determined that specifying exact
qualifications and or experience for the professional engineer is
neither necessary nor practical, given the range of technical
specifications that will require certification. EPA has therefore
adopted a more succinct requirement focused on the professional
engineer's qualifications to perform the task or certification.
    In making this change, the Agency was again strongly influenced by
the ``Resource Conservation and Recovery Act (RCRA) Burden Reduction
Initiative'' rule. (See 71 FR 16826, April 4, 2006.) In that rule, EPA
amended the majority of RCRA provisions requiring the certification of
an ``independent, qualified, registered, professional engineer'' to
substitute the phrase, a ``qualified professional engineer,'' reasoning
that a requirement for a qualified professional engineer maintains the
most important components of any certification requirement: (1) That
the engineer be qualified to perform the task based on training and
experience; and (2) that she or he be a professional engineer licensed
to practice engineering under the title Professional Engineer which
requires following a code of ethics with the potential of losing his/
her license for negligence (see 71 FR 16868.)
    In the ``Burden Reduction Rule'' the Agency concluded that a
professional engineer is able to give fair and technical review because
of the oversight programs established by the state licensing boards
that will subject the professional engineer to penalties, including the
loss of license and potential fines if certifications are provided when
the facts do not warrant it. In fact, this personal liability of the
professional engineer is one of the primary reasons that commenters to
the ``Burden Reduction Rule'' supported the idea that RCRA
certifications should only be done by licensed professional engineers
(See 71 FR 16868.) Upon further analysis and reflection, the Agency
sees no reason to deviate from the position EPA held in that rule.
Despite some concerns raised by commenters that problems could occur if
an owner or operator hires an engineering firm that is small,
inexperienced, or operating outside of their past professional
practice, the Agency continues to believe that with the protections
afforded by the specific performance standards in this rule and the
standards and ethics to which a qualified professional engineer is
subject, situations in which an unqualified or un-licensed engineer
certifies a technical demonstration will be avoided. Furthermore, it is
important to reiterate that state licensing boards can investigate
complaints of negligence or incompetence on the part of professional
engineers, and may impose fines and other disciplinary actions, such as
cease-and-desist orders or license revocation. (See 71 FR 16868.) In
light of the third party oversight provided by the state licensing
boards in combination with the numerous recordkeeping and recording
requirements established in this rule, the Agency is confident that
abuses of the certification requirements will be minimal and that human
health and the environment will be protected.
    The Agency wants to make it clear that qualified professional
engineers can utilize a qualified team of professionals in performing
the analyses that underlie these certifications. In most instances, EPA
expects that the basis for certification by a qualified professional
engineer will be the result of a team of professionals (e.g.,
geologists, hydrologists, scientists and engineers) who have
collectively worked together in order to provide the data and analyses
necessary for the professional engineer to certify the specific
demonstration.
    The Agency is convinced that the change to the certification
requirements to allow the use of in-house expertise will not compromise
environmental safety. Professional engineers employed by a facility are
more familiar with the facility's particular situation and are in a
position to provide more on-site review and oversight of the activity
being certified. To this end, the Agency is also requiring that the
qualified professional engineer be licensed in the state in which the
CCR unit is located. The Agency has made this decision for a number of
reasons, but primarily because state licensing boards can provide the
necessary oversight on the actions of the professional engineer and
investigate complaints of negligence or incompetence as well as impose
fines and other disciplinary actions such as cease-and-desist orders or
license revocation. Oversight may not be as rigorous if the
professional engineer is operating under a license issued from another
state.
    Finally, the Agency disagrees with comments that professional
geologists or geoscientists should be added to the list of those
professionals that have expertise and authority to certify compliance
with certain RCRA subtitle D regulatory requirements. In developing
this final rule, the Agency has re-considered the qualifications
necessary to certify compliance with the technical requirements of the
rule and is limiting compliance certifications to qualified
professional engineers only. While some environmental professionals,
e.g., hydrologists, geologists may be qualified to make certain
certifications, EPA is not convinced that hydrologists or geologists
licensed by a state are held to the same standards as a professional
engineer licensed by a state licensing board. For example, it is
unclear that hydrologists or geologists are subject to the rigorous
testing required by professional engineers or that state licensing
boards can investigate complaints of negligence or incompetence.
Further, professional engineers have licensing boards in all 50 states,
a standard not achieved by other

professional disciplines. Consequently, hydrologists, geologists, or
other professionals may only perform analyses that underlie the
certification, but it is the responsibility of a qualified professional
engineer to make the actual certification.

D. State and Public Notifications of Certifications

    To address concerns about the absence of adequate regulatory
oversight under subtitle D, EPA proposed to require state and public
notifications of the third party certifications, as well as other
information documenting the decisions made or actions taken by the
owner or operator to comply with the technical criteria in the rule. As
stated in the proposal and reiterated here, the Agency cannot conclude
that the regulations promulgated in this rule will ensure there is no
reasonable probability of adverse effects on health or the environment
unless there is a mechanism for states and citizens, as the entities
responsible for enforcing the rule, to effectively monitor or oversee
its implementation. Mandated documentation and transparency of the
owner or operator's actions to comply with the rule provides this
mechanism, and will help to minimize the potential for abuse. The
proposal specified that the documentation of how the various technical
standards had been met were to be placed in the facility's operating
record, along with notification to the appropriate state authority.
Additionally, EPA proposed to require the owner or operator to maintain
a Web site available to the public that would also provide access to
this documentation. EPA proposed that owners or operators post notices
and relevant information on the internet site with a link clearly
identified as being a link to notifications, reports, and
demonstrations required under the regulations. While EPA recognized
that the internet is currently the most widely accessible means for
gathering and disseminating information, the Agency also solicited
comments regarding alternative methods to provide notifications to the
public and the states. The Agency also solicited comment on whether to
require the establishment of a publicly accessible internet site to
provide regulatory information to the public and the states, including
whether there could be homeland security implications associated with
internet posting of information, and whether the posting would
duplicate information that is already available to the public through
the state.
    In response to most of these proposals, the Agency received little
comment. Significant comment, however, was received on the publicly
accessible internet site. Commenters argued that absent specific
statutory authorization, it was inappropriate for EPA to delegate a
regulatory oversight function to the regulated community by requiring
the creation of a Web site and posting of regulatory compliance
information. Commenters identified at least three substantial problems
associated with ``outsourcing information management responsibilities''
to CCR facilities. First, commenters argued that EPA lacked the
authority to impose such a requirement. Specifically, the commenters
alleged that no statute authorizes EPA to demand that private parties
act as an information clearinghouse for information pertaining to EPA's
regulatory functions, either generally or in the specific context of
CCR. To the contrary, the commenters argued, public information access
statutes, such as the Freedom of Information Act are predicated on an
assumption that information held by the government is presumptively
public, while information held by a private entity presumptively is
not.
    Second, some commenters were concerned that facilities would not
post information the facility deems to be confidential (e.g., the
structural stability of ash pond impoundments) and by attempting to
outsource the information management role to industry, EPA effectively
allows industry to make the initial determination as to confidentiality
and places the burden on citizens and EPA to take action to compel
disclosure.
    Third, commenters were concerned that citizen groups would not
accept an electric utility's self-reported information, regardless of
the amount of effort the facility exerts to ensure the accuracy of the
information, without a regulatory agency acting as the intermediary or
providing some degree of oversight (e.g., EPA's Toxic Release