[Federal Register Volume 65, Number 99 (Monday, May 22, 2000)]
[Rules and Regulations]
[Pages 32214-32237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11138]



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Part III





Environmental Protection Agency





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40 CFR Part 261



Regulatory Determination on Wastes from the Combustion of Fossil Fuels; 
Final Rule

  Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and 
Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-6588-1]
RIN 2050-AD91


Notice of Regulatory Determination on Wastes From the Combustion 
of Fossil Fuels

AGENCY: Environmental Protection Agency.

ACTION: Regulatory determination.

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SUMMARY: This document explains EPA's determination of whether 
regulation of fossil fuel combustion wastes is warranted under subtitle 
C of the Resource Conservation and Recovery Act (RCRA). Today's action 
applies to all remaining fossil fuel combustion wastes other than high 
volume coal combustion wastes generated at electric utilities and 
independent power producing facilities and managed separately, which 
were addressed by a 1993 regulatory determination. These include: 
Large-volume coal combustion wastes generated at electric utility and 
independent power producing facilities that are co-managed together 
with certain other coal combustion wastes; coal combustion wastes 
generated by non-utilities; coal combustion wastes generated at 
facilities with fluidized bed combustion technology; petroleum coke 
combustion wastes; wastes from the combustion of mixtures of coal and 
other fuels (i.e., co-burning); wastes from the combustion of oil; and 
wastes from the combustion of natural gas.
    The Agency has concluded these wastes do not warrant regulation 
under subtitle C of RCRA and is retaining the hazardous waste exemption 
under RCRA section 3001(b)(3)(C). However, EPA has also determined 
national regulations under subtitle D of RCRA are warranted for coal 
combustion wastes when they are disposed in landfills or surface 
impoundments, and that regulations under subtitle D of RCRA (and/or 
possibly modifications to existing regulations established under 
authority of the Surface Mining Control and Reclamation Act (SMCRA)) 
are warranted when these wastes are used to fill surface or underground 
mines.
    So that coal combustion wastes are consistently regulated across 
all waste management scenarios, the Agency also intends to make these 
national regulations for disposal in surface impoundments and landfills 
and minefilling applicable to coal combustion wastes generated at 
electric utility and independent power producing facilities that are 
not co-managed with low volume wastes,.
    The Agency has concluded that no additional regulations are 
warranted for coal combustion wastes that are used beneficially (other 
than for minefilling) and for oil and gas combustion wastes. We do not 
wish to place any unnecessary barriers on the beneficial use of fossil 
fuel combustion wastes so that they can be used in applications that 
conserve natural resources and reduce disposal costs. Currently, about 
one-quarter of all coal combustion wastes are diverted to beneficial 
uses. We support increases in these beneficial uses, such as for 
additions to cement and concrete products, waste stabilization and use 
in construction products such as wallboard.

DATES: Comments in response to data and information requests in this 
document are due to EPA on September 19, 2000.

ADDRESSES: Public comments and supporting materials are available for 
viewing in the RCRA Information Center (RIC). In addition to the data 
and information that was included in the docket to support the RTC on 
FFC waste and the Technical Background Documents, the docket also 
includes the following document: Responses to Public Comments on the 
Report To Congress, Wastes from the Combustion of Fossil Fuels. The RIC 
is located at Crystal Gateway I, First Floor, 1235 Jefferson Davis 
Highway, Arlington, VA. The Docket Identification Number is F-2000-
FF2F-FFFFF. The RIC is open from 9 a.m. to 4 p.m., Monday through 
Friday, excluding federal holidays. To review docket materials, we 
recommend that the public make an appointment by calling 703 603-9230. 
The public may copy a maximum of 100 pages from any regulatory docket 
at no charge. Additional copies cost $0.15/page. The index and some 
supporting materials are available electronically. See the 
Supplementary Information section for information on accessing them.
    Commenters must send an original and two copies of their comments 
referencing docket number F-2000-FF2F-FFFFF to: (1) If using regular US 
Postal Service mail: RCRA Docket Information Center, Office of Solid 
Waste (5305G), U.S. Environmental Protection Agency Headquarters (EPA, 
HQ), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 
20460-0002; or (2) if using special delivery, such as overnight express 
service: RCRA Docket Information Center (RIC), Crystal Gateway One, 
1235 Jefferson Davis Highway, First Floor, Arlington, VA 22202. 
Comments may also be submitted electronically through the Internet to: 
[email protected]. Comments in electronic format should also be 
identified by the docket number F-2000-FF2F-FFFFF and must be submitted 
as an ASCII file avoiding the use of special characters and any form of 
encryption.
    Commenters should not submit electronically any confidential 
business information (CBI). An original and two copies of CBI must be 
submitted under separate cover to: RCRA CBI Document Control Officer, 
Office of Solid Waste (5305W), U.S. EPA, Ariel Rios Building, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460-0002.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In 
the Washington, DC, metropolitan area, call 703 412-9810 or TDD 703 
412-3323.
    For more detailed information on specific aspects of this 
regulatory determination, contact Dennis Ruddy, Office of Solid Waste 
(5306W), U.S. Environmental Protection Agency, Ariel Rios Building, 
1200 Pennsylvania Avenue, NW, Washington, DC 20460-0002, telephone 
(703) 308-8430, e-mail address [email protected].

SUPPLEMENTARY INFORMATION: The index and several of the primary 
supporting materials are available on the Internet. You can find these 
materials at http://www.epa.gov/epaoswer/other/fossil/index.htm.
    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record, which will also 
include all comments submitted directly in writing. The official record 
is the paper record maintained at the address in ADDRESSES at the 
beginning of this notice.
    EPA will not immediately reply to commenters electronically other 
than to seek clarification of electronic comments that may be garbled 
in transmission or during conversion to paper form, as discussed above.
    The contents of today's notice are listed in the following outline:

1. General Information

    A. What action is EPA taking today?
    B. What is the statutory authority for this action?
    C. What was the process EPA used in making today's decision?
    D. What is the significance of ``uniquely associated wastes'' 
and what wastes does EPA consider to be uniquely associated wastes?

[[Page 32215]]

    E. Who is affected by today's action and how are they affected?
    F. What additional actions will EPA take after this regulatory 
determination regarding coal, oil and natural gas combustion wastes?

2. What Is the Basis for EPA's Regulatory Determination for Coal 
Combustion Wastes?

    A. What is the Agency's decision regarding the regulatory status 
of coal combustion wastes and why did EPA make that decision?
    B. What were EPA's tentative decisions as presented in the 
Report to Congress?
    C. How did commenters react to EPA's tentative decisions and 
what was EPA's analysis of their comments?
    D. What is the basis for today's decisions?
    E. What approach will EPA take in developing national 
regulations?

3. What Is the Basis for EPA's Regulatory Determination for Oil 
Combustion Wastes?

    A. What is the Agency's decision regarding the regulatory status 
of oil combustion wastes and why did EPA make that decision?
    B. What were EPA's tentative decisions as presented in the 
Report to Congress?
    C. How did commenters react to EPA's tentative decisions and 
what was EPA's analysis of their comments?
    D. What is the basis for today's decisions?

4. What Is the Basis for EPA's Regulatory Determination for Natural Gas 
Combustion Wastes?

    A. What is the Agency's decision regarding the regulatory status 
of natural gas combustion wastes and why did EPA make that decision?
    B. What was EPA's tentative decision as presented in the Report 
to Congress?
    C. How did commenters react to EPA's tentative decisions?
    D. What is the basis for today's decisions?

5. What Is the History of EPA's Regulatory Determinations for Fossil 
Fuel Combustion Wastes?

    A. On what basis is EPA required to make regulatory decisions 
regarding the regulatory status of fossil fuel combustion wastes?
    B. What was EPA's general approach in making these regulatory 
determinations?
    C. What happened when EPA failed to issue its determination of 
the regulatory status of the large volume utility combustion wastes 
in a timely manner?
    D. When was the Part 1 regulatory decision made and what were 
EPA's findings?

6. Executive Orders and Laws Addressed in Today's Action

    A. Executive Order 12866--Determination of Significance.
    B. Regulatory Flexibility Act, as amended.
    C. Paperwork Reduction Act (Information Collection Requests).
    D. Unfunded Mandates Reform Act.
    E. Executive Order 13132: Federalism.
    F. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments.
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks.
    H. National Technology Transfer and Advancement Act of 1995.
    I. Executive Order 12898: Environmental Justice.
    J. Congressional Review Act.

7. How To Obtain more Information

1. General Information

A. What Action Is EPA Taking Today?

    In today's action, we are determining that regulation of fossil 
fuel combustion (FFC) wastes under subtitle C of the Resource 
Conservation and Recovery Act (RCRA) is not warranted. This 
determination covers the following wastes:
     Large-volume coal combustion wastes generated at electric 
utility and independent power producing facilities that are co-managed 
together with certain other coal combustion wastes;
     Coal combustion wastes generated at non-utilities;
     Coal combustion wastes generated at facilities with 
fluidized bed combustion technology;
     Petroleum coke combustion wastes;
     Wastes from the combustion of mixtures of coal and other 
fuels (i.e., co-burning of coal with other fuels where coal is at least 
50% of the total fuel);  Wastes from the combustion of oil; and
     Wastes from the combustion of natural gas.
    While these wastes remain exempt from subtitle C, we have further 
decided to establish national regulations under subtitle D of RCRA 
(RCRA sections 1008(a) and 4004(a)) for coal combustion wastes that are 
disposed in landfills or surface impoundments or used to fill surface 
or underground mines. For coal combustion wastes used as minefill, we 
will consult with the Office of Surface Mining in the Department of the 
Interior and thoroughly assess whether equivalent protectiveness could 
be achieved by using regulatory authorities available under the Surface 
Mining Control and Reclamation Act (SMCRA), as well as those afforded 
under the Resource Conservation and Recovery Act. We will consider 
whether RCRA subtitle D or SMCRA authorities or some combination of 
both are most appropriate to regulate the disposal of coal combustion 
wastes when used for minefill in surface and underground mines to 
ensure protection of human health and the environment. These standards 
will be developed through notice and comment rulemaking and in 
consultation with states and other stakeholders. These regulations 
will, in EPA's view, ensure that the trend towards improved management 
of coal combustion wastes over recent years will accelerate and will 
ensure a consistent level of protection of human health and the 
environment is put in place across the United States.
    If, as a result of comments in response to this notice; the 
forthcoming analyses identified in this notice; or additional 
information garnered in the course of developing these national 
regulations; we find that there is a need for regulation under the 
authority of RCRA subtitle C, the Agency will revise this determination 
accordingly.
    We recognize our decision to develop regulations under RCRA 
subtitle D (or, for minefilling, possibly under SMCRA) for the above-
listed coal combustion wastes was not specifically identified as an 
option in our March 31, 1999 Report to Congress. Our final 
determination reflects our consideration of public comments received on 
the Report to Congress and other analyses that we conducted.
    Today's decision was, in the Agency's view, a difficult one, given 
the many competing considerations discussed throughout today's notice. 
After considering all of the factors specified in RCRA section 8002(n), 
we have decided as discussed further below, that the decisive factors 
are the trends in present disposal and utilization practices (section 
8002 (n)(2)), the current and potential utilization of the wastes 
(Section 8002 (n)(8), and the admonition against duplication of efforts 
by other federal and state agencies.
    As described in the Report to Congress, the utility industry has 
made significant improvements in its waste management practices over 
recent years, and most state regulatory programs are similarly 
improving. For example, in the utility industry the use of liners and 
groundwater monitoring at landfills and surface impoundments has 
increased substantially over the past 15 years as indicated in the 
following table.

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                 Percent of Utility Coal Combustion Waste Management Units With Controls in 1995
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                                                                    Liners              Groundwater monitoring
                                                         -------------------------------------------------------
                  Waste management unit                    Percent of    Percent of    Percent of    Percent of
                                                            all units    new units *    all units    new units *
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Landfills...............................................           57            75            85            88
Surface Impoundments....................................           26            60            38           65
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* New units constructed between 1985-1995.
Source: USWAG, EPRI 1995.

    Public comments and other analyses, however, have convinced us that 
these wastes could pose risks to human health and the environment if 
not properly managed, and there is sufficient evidence that adequate 
controls may not be in place--for example, while most states can now 
require newer units to include liners and groundwater monitoring, 62% 
of existing utility surface impoundments do not have groundwater 
monitoring. This, in our view, justifies the development of national 
regulations. We note, however, that some waste management units may not 
warrant liners and/or groundwater monitoring, depending on site-
specific characteristics.
    New information we received in public comments includes additional 
documented damage cases, as well as cases indicating at least a 
potential for damage to human health and the environment. We did not 
independently investigate these damage cases; rather, we relied on 
information contained in state files. While the absolute number of 
documented damage cases is not large, we have considered the evidence 
of proven and potential damage in light of the proportion of facilities 
that lack basic environmental controls (e.g., groundwater monitoring). 
We acknowledge, moreover, that our inquiry into the existence of damage 
cases was focused primarily on a subset of states--albeit states that 
account for almost 20 percent of coal fired utility electricity 
generation capacity. Given the volume of coal combustion wastes 
generated nationwide (115 million tons) and the numbers of facilities 
that currently lack some basic environmental controls, especially 
groundwater monitoring, other cases of proven and potential damage are 
likely to exist. Because EPA did not use a statistical sampling 
methodology to evaluate the potential for damage, the Agency is unable 
to determine whether the identified cases are representative of the 
conditions at all facilities and, therefore, cannot quantify the extent 
and magnitude of damages at the national level.
    Since the Report to Congress, we have conducted additional analyses 
of the potential for the constituents of coal combustion wastes to 
leach in dangerous levels into ground water. Based on a comparison of 
drinking water and other appropriate standards to leach test data from 
coal combustion waste samples, we identified a potential for risks from 
arsenic that we cannot dismiss at this time. This conclusion is based 
on possible exceedences of a range of values that EPA is currently 
considering for a revised arsenic MCL. Once a new arsenic MCL is 
established, additional groundwater modeling may be required to 
evaluate the likelihood of exceeding that MCL.
    As discussed further below, in light of certain comments received 
on the Report to Congress, we are not relying on a quantitative 
groundwater risk assessment to assess potential risks to human health 
or the environment. In the absence of a more complete groundwater risk 
assessment, we are unable at this time to draw quantitative conclusions 
regarding the risks due to arsenic or other contaminants posed by 
improper waste management. Once we have completed a review of our 
groundwater model and made any necessary changes, we will reevaluate 
groundwater risks and take appropriate regulatory actions. We will 
specifically assess new modeling results as they relate to any 
promulgated changes in the arsenic MCL.
    We acknowledge that, even without federal regulatory action, many 
facilities in the utility industry have either voluntarily instituted 
adequate environmental controls or have done so at the direction of 
states that regulate these facilities. In addition, we found that for 
the proven damage cases, the states (and in two cases, EPA under the 
Superfund program) have taken action to mitigate risk and require 
corrective action. However, in light of the evidence of actual and 
potential environmental releases of metals from these wastes; the large 
volume of wastes generated from coal combustion; the proportion of 
existing and even newer units that do not currently have basic controls 
in place; and the presence of hazardous constituents in these wastes; 
we believe, on balance, that the best means of ensuring that adequate 
controls are imposed where needed is to develop national subtitle D 
regulations. As we develop and issue the national regulations, we will 
try to minimize disruptions to operation of existing waste management 
units.
    In taking today's action, we carefully considered whether to 
develop national regulations under RCRA subtitle D or subtitle C 
authorities. One approach we considered was to promulgate regulations 
pursuant to subtitle C authority, similar to recently proposed 
regulations applicable to cement kiln dust. Under this approach, EPA 
would have established national management standards for coal 
combustion wastes managed in landfills and surface impoundments and 
used for minefilling, as well as a set of tailored subtitle C 
requirements, promulgated pursuant to RCRA section 3004(x). If wastes 
were properly managed in accordance with subtitle D-like standards, 
they would not be classified as a hazardous waste. If wastes were not 
properly managed, they would become listed hazardous wastes subject to 
tailored subtitle C standards. This approach would give EPA enforcement 
authority in states following their adoption of the contingent 
management listing.
    We believe, however, for the reasons described below, the better 
approach at this time to ensuring adequate management of FFC wastes is 
to develop national regulations under subtitle D rather than subtitle 
C. EPA has reached this conclusion in large part based on consideration 
of ``present disposal and utilization practices.'' RCRA Sec. 8002(n). 
As noted above, present disposal practices in landfills and surface 
impoundments are significantly better than they have been in the past 
in terms of imposing basic environmental controls such as liners and 
groundwater monitoring. This trend is the result of increasing 
regulatory oversight by states of the management of these wastes as 
well as voluntary industry improvements. In the 1980's, only 11

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states had authority to require facilities to install liners, and 28 
states had the authority to require facilities to conduct groundwater 
monitoring at landfills. As of 1995, these rates were significantly 
higher, with 43 states having the authority to require liners and 46 
states having the authority to require groundwater monitoring at 
landfills. When authority under state groundwater and drinking water 
regulations are considered, some commenters have suggested that nearly 
all states can address the management of these wastes. Thus, with the 
exception of relatively few states, the regulatory infrastructure is 
generally in place at the state level to ensure adequate management of 
these wastes.
    While the trend both in terms of state regulatory authorities and 
the imposition of controls at these facilities has been positive, 
between 40 and 70 percent of sites lacked controls such as liners and/
or groundwater monitoring as of 1995. This gap is of environmental 
concern given the potential for risks posed by mismanagement of coal 
combustion wastes in certain circumstances. Nonetheless, given most of 
the states' current regulatory capabilities and the evidence that basic 
controls are increasingly being put in place by the states and 
facilities (see RCRA section 8002(n), which directs EPA to consider 
actions of state and other federal agencies with a view to avoiding 
duplication of effort), EPA believes that subtitle D controls will 
provide sufficient clarity and incentive for states to close the 
remaining gaps in coverage, and for facilities to ensure that their 
wastes are managed properly.
    For minefilling, although we have considerable concern about 
certain current practices (e.g., placement directly into groundwater) 
we have not yet identified a case where placement of coal wastes can be 
determined to have actually caused increased damage to ground water. In 
addition, there is a federal regulatory program--SMCRA--expressly 
designed to address environmental risks associated with coal mines. 
Finally, given that states have been diligent in expanding and 
upgrading programs, as they have done for surface impoundments and 
landfills, we believe they will be similarly responsive in addressing 
environmental concerns arising from this emerging practice. In short, 
we arrive at the same conclusions, for substantially the same reasons, 
for this practice as we did for landfills and surface impoundments: 
that subtitle D controls, or upgraded SMCRA controls or a combination 
of the two, should provide sufficient clarity and incentive to ensure 
proper handling of this waste. Having determined that subtitle C 
regulation is not warranted for all other management practices, EPA 
does not see a basis in the record for carving this one practice out 
for separate regulatory treatment.
    Once these regulations are effective, facilities would be subject 
to citizen suits for any violation of the standards. If EPA were 
addressing wastes that had not been addressed by the states (or the 
federal government) in the past, or an industry with wide evidence of 
irresponsible solid waste management practices, EPA may well conclude 
that the additional incentives for improvement and compliance provided 
by the subtitle C scheme--the threat of federal enforcement and the 
stigma associated with improper management of RCRA subtitle C waste--
were necessary. But the record before us indicates that the structure 
and the sanctions associated with a subtitle D approach (or a SMCRA 
approach if EPA determines it is equivalent) should be sufficient.
    We also see a potential downside to pursuing a subtitle C approach. 
Section 8002(n)(8) directs us to consider, among other factors, ``the 
current and potential utilization of such materials.'' Industry 
commenters have indicated that they believe subjecting any coal 
combustion wastes to a subtitle C regime would place a significant 
stigma on these wastes, the most important effect being that it would 
adversely impact beneficial reuse. As we understand it, the concern is 
that, even though beneficially reused waste would not be hazardous 
under the contemplated subtitle C approach, the link to subtitle C 
would nonetheless tend to discourage purchase and re-use of the waste. 
We do not wish to place any unnecessary barriers on the beneficial uses 
of these wastes, because they conserve natural resources, reduce 
disposal costs and reduce the total amount of waste destined for 
disposal. States and industry have also expressed concern that 
regulation under subtitle C could cause a halt in the use of coal 
combustion wastes to reclaim abandoned and active mine sites. We 
recognize that when done properly, minefilling can lead to substantial 
environmental benefits. EPA believes the contingent management scheme 
we discussed should diminish any stigma that might be associated with 
the subtitle C link. Nonetheless, we acknowledge the possibility that 
the approach could have unintended consequences. We would be 
particularly concerned about any adverse effect on the beneficial re-
use market for these wastes because more than 23 percent (approximately 
28 million tons) of the total coal combustion waste generated each year 
is beneficially reused and an additional eight percent (nine million 
tons) is used for minefilling. EPA believes that such reuse when 
performed properly, is by far the environmentally preferable 
destination for these wastes, including when minefilled. Normally, 
concerns about stigma are not a deciding factor in EPA's decisions 
under RCRA, given the central concern under the statute for protection 
of human health and the environment. However, given our conclusion that 
the subtitle D approach here should be fully effective in protecting 
human health and the environment, and given the large and salutary role 
that beneficial reuse plays for this waste, concern over stigma is a 
factor supporting our decision today that subtitle C regulation is 
unwarranted in light of our decision to pursue a subtitle D approach.
    Additionally, in a 1993 regulatory determination, EPA previously 
addressed large volume coal combustion wastes generated at electric 
utility and independent power producing facilities that manage the 
wastes separately from certain other low volume and uniquely associated 
coal combustion wastes (see 58 FR 42466; August 9, 1993). Our 1993 
regulatory determination maintained the exemption of these large volume 
coal combustion wastes from being regulated as hazardous wastes when 
managed separately from other wastes (e.g., in monofills). We intend 
that the national subtitle D regulations we develop for the coal 
combustion wastes subject to today's regulatory determination will also 
be applicable to the wastes covered in the 1993 regulatory 
determination for the reasons listed below, so that all coal combustion 
wastes are consistently regulated for placement in landfills, surface 
impoundments, and minefills.
     The co-managed coal combustion wastes that we studied 
extensively in making today's regulatory determination derive their 
characteristics largely from these large-volume wastes and not from the 
other wastes that are co-managed with them.
     We believe that the risks posed by the co-managed coal 
combustion wastes result principally from the large-volume wastes.
     These large-volume coal combustion wastes, account for 
over 20% of coal combustion wastes.
    As we proceed with regulation development, we will also take 
enforcement action under RCRA section 7003 when we identify cases of 
imminent and substantial endangerment. We will also use Superfund 
remedial and emergency

[[Page 32218]]

response authorities under the Comprehensive Environmental Response 
Compensation and Liabilities Act (CERCLA), as appropriate, to address 
damages that result in risk to human health and the environment.
    However, as stated above, this decision was a difficult one and EPA 
believes that, absent our conclusions regarding the current trends in 
management of this waste, the waste might present sufficient potential 
threat to human health and the environment to justify subtitle C 
regulation. There are several factors that might cause us to rethink 
our current determination. First, and perhaps most importantly, if 
current trends toward protective management do not continue, EPA may 
well determine that subtitle C regulation is warranted for this waste. 
As we have stated, we do not believe the current gaps in the basic 
controls are acceptable, and our determination that subtitle C 
regulation is not warranted is premised to a large extent on our 
conclusion that subtitle D regulation will be sufficient to close these 
gaps. If this conclusion turns out not to be warranted, we would be 
inclined to re-examine our current decision.
    Second, EPA will continue to examine available information and, as 
a result of the ongoing review, may conclude over the next several 
months that this decision should be revised. Our ongoing review will 
include consideration of: (1) The extent to which fossil fuel 
combustion wastes have caused actual or potential damage to human 
health or the environment; (2) the environmental effects of filling 
underground and surface coal mines with fossil fuel combustion wastes; 
and (3) the adequacy of existing state and/or federal regulation of 
these wastes. Finally, the agency will consider the results of a report 
of the National Academy of Sciences regarding the adverse human health 
effects of mercury, one of the constituents in fossil fuel combustion 
wastes. EPA believes that this report will enhance our understanding of 
the risks due to exposure to mercury. All of these efforts may result 
in a subsequent revision of today's regulatory determination.
    Finally, relating to oil combustion wastes, we will work with 
relevant stakeholders so that any necessary measures are taken to 
ensure that oil combustion wastes currently managed in the two known 
remaining unlined surface impoundments are managed in a manner that 
protects human health and the environment.

B. What Is the Statutory Authority for This Action?

    We are issuing today's notice under the authority of RCRA section 
3001 (b) (3) (C), as amended. This section exempts certain wastes, 
including fossil fuel combustion wastes, from hazardous waste 
regulation until the Agency completes a Report to Congress mandated by 
RCRA section 8002 (n) and maintains the exemption, unless the EPA 
Administrator makes a determination that subtitle C (hazardous waste) 
regulation is warranted. RCRA section 3004 (x) provides the Agency with 
flexibility in developing subtitle C standards. If appropriate, these 
formerly exempted wastes may not be subjected to full subtitle C 
requirements in areas such as treatment standards, liner design 
requirements and corrective action.

C. What Was the Process EPA Used in Making Today's Decision?

1. What Approach Did EPA Take to Studying Fossil Fuel Combustion 
Wastes?
    We conducted our study of wastes generated by the combustion of 
fossil fuels in two phases. The first phase, called the Part 1 
determination, covered high volume coal combustion wastes (e.g., bottom 
ash and fly ash) generated at electric utility and independent power 
producing facilities (non-utility electric power producers that are not 
engaged in any other industrial activity) and managed separately from 
other fossil fuel combustion wastes. In 1993, EPA issued a regulatory 
determination that exempted Part 1 wastes from regulation as hazardous 
wastes (see 58 FR 42466; August 9, 1993). Today's regulatory 
determination is the second phase of our effort, or the Part 2 
determination. It covers all other fossil fuel combustion wastes not 
covered in Part 1. This includes high volume, utility-generated coal 
combustion wastes when co-managed with certain low volume wastes that 
are also generated by utility coal burners; coal combustion wastes 
generated by industrial, non-utility, facilities; and wastes from the 
combustion of oil and gas. Under court order, we are required to 
complete the Part 2 regulatory determination by April 25, 2000. \1\
---------------------------------------------------------------------------

    \1\ The consent decree entered into by EPA (Frank Gearhart, et 
al. v. Browner, et al., No. 91-2435 (D.D.C.) for completing the 
studies and regulatory determination for fossil fuel combustion 
wastes used the term ``remaining wastes'' to differentiate the 
wastes to be covered in today's decision from the large-volume 
utility coal combustion wastes that were covered in the August 1993 
regulatory determination (see 58 FR 42466).
---------------------------------------------------------------------------

2. What Statutory Requirements Does EPA Have To Meet in Making Today's 
Regulatory Determinations?
    RCRA section 8002(n) specifies eight study factors that we must 
take into account in our decision-making. These are:
    1. The source and volumes of such materials generated per year.
    2. Present disposal practices.
    3. Potential danger, if any, to human health and the environment 
from the disposal of such materials.
    4. Documented cases in which danger to human health or the 
environment has been proved.
    5. Alternatives to current disposal methods.
    6. The costs of such alternatives.
    7. The impact of those alternatives on the use of natural 
resources.
    8. The current and potential utilization of such materials.
    Additionally, in developing the Report to Congress, we are directed 
to consider studies and other actions of other federal and State 
agencies with a view toward avoiding duplication of effort (RCRA 
section 8002(n)). In addition to considering the information contained 
in the Report, EPA is required to base its regulatory determination on 
information received in public hearings and comments submitted on the 
Report to Congress (RCRA section 3001(b)(3)(C)).
3. What Were the Agency's Sources of Information and Data That Serve as 
the Basis for This Decision?
    We gathered publicly available information from a broad range of 
sources, including federal and state agencies, industry trade groups, 
environmental organizations, and open literature searches. We requested 
information from all stakeholder groups on each of the study factors 
Congress requires us to evaluate. For many of the study factors, very 
limited information existed prior to this study. We worked closely with 
the Edison Electric Institute (EEI), Utility Solid Waste Activities 
Group (USWAG), the Electric Power Research Institute (EPRI), and the 
Council of Industrial Boiler Owners (CIBO) as those organizations 
developed new information. Because other ongoing EPA projects currently 
focus on portions of the FFC waste generator universe, we also 
leveraged data collection efforts conducted for air, industrial waste, 
and hazardous waste programs. In addition, we obtained information from 
environmental organizations regarding beneficial uses of some FFC 
wastes and methods for characterizing the risks associated with FFC 
wastes.

[[Page 32219]]

    Specifically, we gathered and analyzed the following information 
from industry, states and environmental groups:
     Published and unpublished materials obtained from state 
and federal agencies, utilities and trade industry groups, and other 
knowledgeable parties on the volumes and characteristics of coal, oil, 
and natural gas combustion wastes and the corresponding low-volume and 
uniquely associated wastes (see the following section for a description 
of ``uniquely associated wastes'').
     Published and unpublished materials on waste management 
practices (including co-disposal and re-use) associated with FFC wastes 
and the corresponding low-volume and uniquely associated wastes.
     Published and unpublished materials on the potential 
environmental impacts associated with FFC wastes.
     Published and unpublished materials on trends in utility 
plant operations that may affect waste volumes and characteristics. We 
gathered specific information on innovations in scrubber use and the 
potential impacts of the 1990 Clean Air Act Amendments on waste volumes 
and characteristics.
     Energy Information Agency (EIA), Department of Energy, 
data on utility operations and waste generation obtained from EIA's 
Form 767 database. These data are submitted to EIA annually by electric 
utilities.
     Site visit reports and accompanying facility submittals 
for utility and non-utility plants we visited during the study.
     Materials obtained from public files maintained by State 
regulatory agencies. These materials focus on waste characterization, 
waste management, and environmental monitoring data, along with 
supporting background information.
    We visited five states to gather specific information about state 
regulatory programs, FFC waste generators, waste management practices 
and candidate damage cases related to fossil fuel combustion. The five 
states we examined in great detail were: Indiana, Pennsylvania, North 
Carolina, Wisconsin, and Virginia. These five states account for almost 
20 percent of coal-fired utility electrical generation capacity.
    We also performed a variety of analyses, including human health and 
ecological risk assessments, analyses of existing federal and state 
regulatory programs, and economic impact analyses. We discussed and 
shared these results with all of our stakeholders. We also conducted an 
external peer review of our risk analysis.
4. What Process Did EPA Follow To Obtain Comments on the Report to 
Congress?
    RCRA requires that we publish a Report to Congress (RTC) evaluating 
the above criteria. Further, within six months of submitting the 
report, we must, after public hearings and opportunity for comment, 
decide whether to retain the exemption from hazardous waste 
requirements or whether regulation as hazardous waste is warranted. On 
March 31, 1999, we issued the required RTC on those fossil fuel 
combustion wastes (coal, oil and gas) not covered in the Part 1 
regulatory determination, which are also known as the ``remaining 
wastes'' (see footnote 1).
    We asked the public to comment on the Report and the 
appropriateness of regulating fossil fuel wastes under subtitle C of 
RCRA. To ensure that all interested parties had an opportunity to 
present their views, we held a public meeting with stakeholders on May 
21, 1999. The April 28, 1999 Federal Register notice provided a 45-day 
public comment period, until June 14, 1999. We received over 150 
requests to extend the public comment period by up to six months. 
However, we were obligated by a court-ordered deadline to issue our 
official Regulatory Determination by October 1, 1999. (See 64 FR 31170; 
June 10, 1999.) In response to requests for an extension, we entered 
into discussions with the parties to consider an extension of the 
comment period to ensure that all interested members of the public had 
sufficient time to complete their review and submit comments. 
Subsequently, the plaintiffs in Gearhart v. Reilly moved to modify the 
consent decree to reopen the comment period and to allow EPA until 
March 10, 2000 to complete the Regulatory Determination. We supported 
the motion, and on September 2, 1999, the Court granted the motion. In 
compliance with the court order, on September 20, 1999, we announced 
that public comments would be accepted through September 24, 1999 (64 
FR 50788; Sept. 20, 1999). We have since received two extensions to the 
date for the final determination. Currently, EPA is directed to issue 
the Part 2 regulatory determination by April 25, 2000.
    We received about 220 comments on the RTC from the public hearing 
and our Federal Register requests for comments. The docket for this 
action (Docket No. F-99-FF2P-FFFFF) contains all individual comments 
presented in the public meetings and hearing, and a transcript from the 
public hearing, and all written comments. The docket is available for 
public inspection. Today's decision is based on the RTC, its underlying 
data and analyses, public comments, and EPA analyses of these comments.
    The comments covered a wide variety of topics discussed in the 
Report to Congress, such as fossil fuel combustion waste generation and 
characteristics; current and alternative practices for managing FFC 
waste; documented damage cases and potential danger to human health and 
the environment; existing regulatory controls on FFC waste management; 
cost and economic impacts of alternatives to current management 
practices; FFC beneficial use practices; and our review of applicable 
state and federal regulations.

D. What Is the Significance of ``Uniquely Associated Wastes'' and What 
Wastes Does EPA Consider To Be ``Uniquely Associated Wastes?'

    Facilities that burn fossil fuels generate combustion wastes and 
also generate other wastes from processes that are related to the main 
fuel combustion processes. Often, as a general practice, facilities co-
dispose these wastes with the large volume wastes that are subject to 
the RCRA section 3001 (b) (3) (C) exemption. Examples of these related 
wastes are:
     Precipitation runoff from the coal storage piles at the 
facility.
     Waste coal or coal mill rejects that are not of sufficient 
quality to burn as fuel.
     Wastes from cleaning the boilers used to generate steam.
    There are numerous wastes like these, collectively known as ``low-
volume'' wastes. Further, when one of these low-volume wastes, during 
the course of generation or normal handling at the facility, comes into 
contact with either fossil fuel (e.g., coal, oil) or fossil fuel 
combustion waste (e.g., coal ash or oil ash) and it takes on at least 
some of the characteristics of the fuel or combustion waste, we call it 
a ``uniquely associated'' waste. When uniquely associated wastes are 
co-managed with fossil fuel combustion wastes, they fall within the 
coverage of today's regulatory determination. When managed separately, 
uniquely associated wastes are subject to regulation as hazardous waste 
if they are listed wastes or exhibit the characteristic of a hazardous 
waste (see 40 CFR 261.20 and 261.30, which specify when a solid waste 
is considered to be a hazardous waste).
    The Agency recognizes that determining whether a particular waste

[[Page 32220]]

is uniquely associated with fossil fuel combustion involves an 
evaluation of the specific facts of each case. In the Agency's view, 
the following qualitative criteria should be used to make such 
determinations on a case-by-case basis:
    (1) Wastes from ancillary operations are not ``uniquely 
associated'' because they are not properly viewed as being ``from'' 
fossil fuel combustion.
    (2) In evaluating a waste from non-ancillary operations, one must 
consider the extent to which the waste originates or derives from the 
fossil fuels, the combustion process, or combustion residuals, and the 
extent to which these operations impart chemical characteristics to the 
waste.
    The low-volume wastes that are not uniquely associated with fossil 
fuel combustion would not be subject to today's regulatory 
determination. That is, they would not be accorded an exemption from 
RCRA subtitle C, whether or not they were co-managed with any of the 
exempted fossil fuel combustion wastes. Instead, they would be subject 
to the RCRA characteristic standards and hazardous waste listings. The 
exemption applies to mixtures of an exempt waste with a non-hazardous 
waste, but when an exempt waste is mixed with a hazardous waste, the 
mixture is not exempt.
    Based on our identification and review of low volume wastes 
associated with the combustion of fossil fuels, we are considering 
offering the following guidance concerning which low volume wastes are 
uniquely associated with and which are not uniquely associated with 
fossil fuel combustion. Unless there are some unusual site-specific 
circumstances, we would generally consider that the following lists of 
low volume wastes are uniquely and non-uniquely associated wastes:
Uniquely Associated
 Coal Pile Runoff
 Coal Mill Rejects and Waste Coal
 Air Heater and Precipitator Washes
 Floor and Yard Drains and Sumps
 Wastewater Treatment Sludges
 Boiler Fireside Chemical Cleaning Wastes
Not Uniquely Associated
 Boiler Blowdown
 Cooling Tower Blowdown and Sludges
 Intake or Makeup Water Treatment and Regeneration Wastes
 Boiler Waterside Cleaning Wastes
 Laboratory Wastes
 General Construction and Demolition Debris
 General Maintenance Wastes

    Moreover, we do not generally consider spillage or leakage of 
materials used in the processes that generate these non-uniquely 
associated wastes, such as boiler water treatment chemicals, to be 
uniquely associated wastes, even if they occur in close proximity to 
the fossil fuel wastes covered by this regulatory determination.
    An understanding of whether a waste is uniquely associated can be 
important in one circumstance. If a waste is not uniquely associated 
and is a hazardous waste, co-managment with a Bevill waste will result 
in loss of the Bevill exemption. As a general matter, the wastes 
identified above as potentially not uniquely associated do not tend to 
be hazardous. This issue may therefore not be critical. The Agency, 
however, must still define appropriate boundaries for the Bevill 
exemption, because there is no authority to grant Bevill status to 
wastes that are not uniquely associated--the exemption was not intended 
as an umbrella for wastes that other industries must treat as 
hazardous.
    EPA solicits comment on this discussion of uniquely associated 
wastes in the context of fossil fuel combustion and will issue final 
guidance after reviewing and evaluating information we receive as a 
result of this request.

E. Who Is Affected by Today's Action and How Are They Affected?

    As explained above, fossil fuel combustion wastes generated from 
the combustion of coal, oil and natural gas will continue to remain 
exempt from being regulated as hazardous wastes under RCRA. No party is 
affected by today's determination to develop regulations applicable to 
coal combustion wastes when they are land disposed or used to fill 
surface or underground mines because today's action does not impose 
requirements. However, if such regulations are promulgated, they would 
affect coal combustion wastes subject to today's regulatory 
determination as well as wastes covered by the Part 1 regulatory 
determination when they are disposed in landfills and surface 
impoundments, or when used to fill surface or underground mines.
    While we do not intend that national subtitle D regulations would 
be applicable to oil combustion wastes, we intend to work with relevant 
stakeholders so that any necessary measures are taken to ensure that 
oil combustion wastes currently managed in the two known remaining 
unlined surface impoundments are managed in a manner that protects 
human health and the environment.

F. What Additional Actions Will EPA Take After this Regulatory 
Determination Regarding Coal, Oil and Natural Gas Combustion Wastes?

    To ensure that entities who generate and/or manage fossil fuel 
combustion wastes provide long-term protection of human health and the 
environment, we plan several actions:
     We will review comments submitted in response to today's 
notice on uniquely associated wastes and on the adequacy of the 
guidance developed by the utility industry on co-management of mill 
rejects (pyrites) with large volume coal combustion wastes.
     We will work with the State of Massachusetts and the 
owners and operators of the remaining two oil combustion facilities 
that currently manage their wastes in unlined surface impoundments to 
ensure that any necessary measures are taken so these wastes are 
managed in a manner that protects human health and the environment 
(described in section 3.D. of this document).
     We are evaluating the groundwater model and modeling 
methods that were used in the RTC to estimate risks for these wastes. 
This review may result in a re-evaluation of the potential groundwater 
risks posed by the management of fossil fuel combustion wastes and 
action to revise our Part 1 and Part 2 determinations if appropriate 
(see section 2.C. of this document).
     There are a number of ongoing and evolving efforts 
underway at EPA to improve our understanding of the human health 
impacts of wastes used in agricultural settings. We expect to receive 
substantial comments and new scientific information based on a risk 
assessment of the use of cement kiln dust as a substitute for 
agricultural lime (see 64 FR 45632; August 20, 1999) and other Agency 
efforts. As a result, we may refine our methodology for assessing risks 
related to the use of wastes in agricultural settings. If these efforts 
lead us to a different understanding of the risks posed by fossil fuel 
combustion wastes when used as a substitute for agricultural lime, we 
will take appropriate action to reevaluate today's regulatory 
determination (see section 2.C. of this document).
     We will review the findings and recommendations of the 
National Academy of Sciences upcoming report on mercury and assess its 
implications on risks due to exposure to mercury. We will ensure that 
the regulations we develop as a result of today's regulatory 
determination address any additional

[[Page 32221]]

risks posed by these wastes if hazardous constituent levels exceed 
acceptable levels
     We will reevaluate risk posed by managing coal combustion 
solid wastes if levels of mercury or other hazardous constituents 
change due to any future Clean Air Act air pollution control 
requirements for coal burning utilities (see section 2.C. of this 
document).
     We will continue EPA's partnership with the states to 
finalize voluntary industrial solid waste management guidance that 
identifies baseline protective practices for industrial waste 
management units, including fossil fuel combustion waste management 
units. We will use relevant information and knowledge that we obtain as 
a result of this effort to assist us in developing national regulations 
applicable to coal combustion wastes.

2. What Is the Basis for EPA's Regulatory Determination for Coal 
Combustion Wastes?

A. What Is the Agency's Decision Regarding the Regulatory Status of 
Coal Combustion Wastes and Why Did EPA Make That Decision?

    We have determined at this time that regulation of coal combustion 
wastes under subtitle C is not warranted. However, we have also decided 
that it is appropriate to establish national regulations under non-
hazardous waste authorities for coal combustion wastes that are 
disposed in landfills and surface impoundments. We believe that 
subtitle D regulations are the most appropriate mechanism for ensuring 
that these wastes disposed in landfills and surface impoundments are 
managed safely.
    EPA's conclusion that some form of national regulation is warranted 
to address these wastes is based on the following considerations: (a) 
The composition of these wastes could present danger to human health 
and the environment under certain conditions, and ``potential'' damage 
cases identified by EPA and commenters, while not definitively 
demonstrating damage from coal combustion wastes, may indicate that 
these wastes have the potential to pose such danger; (b) we have 
identified eleven documented cases of proven damages to human health 
and the environment by improper management of these wastes in landfills 
and surface impoundments; (c) present disposal practices are such that, 
in 1995, these wastes were being managed in 40 percent to 70 percent of 
landfills and surface impoundments without reasonable controls in 
place, particularly in the area of groundwater monitoring; and (d) 
while there have been substantive improvements in state regulatory 
programs, we have also identified gaps in state oversight.
    When we considered a tailored subtitle C approach, we estimated the 
potential costs of regulation of coal combustion wastes (including the 
utility coal combustion wastes addressed in the 1993 Part 1 
determination) to be $1 billion per year. While large in absolute 
terms, we estimate that these costs are less than 0.4 percent of 
industry sales. To improve our estimates we solicit public comment on 
the potential compliance costs to coal combustion waste generators as 
well as the indirect costs to users of these combustion by-products.
    We have also decided that it is appropriate to establish national 
regulations under RCRA non-hazardous waste authorities (and/or possibly 
modifications to exiting regulations established under authority of 
SMCRA) applicable to the placement of coal combustion wastes in surface 
or underground mines. We have reached this decision because (a) we find 
that these wastes when minefilled could present a danger to human 
health and the environment under certain circumstances, and (b) there 
are few states that currently operate comprehensive programs that 
specifically address the unique circumstances of minefilling, making it 
more likely that damage to human health or the environment could go 
unnoticed.
    With the exception of minefilling as described above, we have 
decided that national regulation under subtitle C or subtitle D is not 
warranted for any of the other beneficial uses of coal combustion 
wastes. We have reached this decision because: (a) We have not 
identified any other beneficial uses that are likely to present 
significant risks to human health or the environment; and (b) no 
documented cases of damage to human health or the environment have been 
identified. Additionally, we do not want to place any unnecessary 
barriers on the beneficial uses of coal combustion wastes so they can 
be used in applications that conserve natural resources and reduce 
disposal costs.

B. What Were EPA's Tentative Decisions as Presented in the Report to 
Congress?

    On March 31, 1999, EPA indicated a preliminary decision that 
disposal of coal combustion wastes should remain exempt from regulation 
under RCRA subtitle C. We also presented our tentative view that most 
beneficial uses of these wastes should remain exempt from regulation 
under RCRA subtitle C. However, in the RTC we identified three 
situations where we had particular concerns with the disposition or 
uses of these wastes.
    First, we indicated some concern with the co-management of mill 
rejects (``pyrites'') with coal combustion wastes which, under certain 
circumstances, could cause or contribute to ground water contamination 
or other localized environmental damage. We indicated that the utility 
industry responded to our concern by implementing a voluntary education 
and technical guidance program for the proper management of these 
wastes. We expressed satisfaction with the industry program and 
tentatively concluded that additional regulation in this area was not 
necessary. We explained that we were committed to overseeing industry's 
progress on properly managing pyritic wastes, and would revisit our 
regulatory determination relative to co-management of pyrites with 
large volume coal combustion wastes at a later date, if industry 
progress was insufficient in this area.
    Second, in the RTC we identified potential human health risks from 
arsenic when these wastes are used for agricultural purposes (e.g., as 
a lime substitute). To address this risk, we indicated our preliminary 
view that Subtitle C regulations may be appropriate for this management 
practice. We explained that an example of such controls could include 
regulation of the content of these materials such that, when used for 
agricultural purposes, the arsenic level could be no higher than that 
found in agricultural lime. As an alternative to subtitle C regulation, 
we indicated that EPA could engage the industry to implement a 
voluntary program to address the risk, for example, by limiting the 
level of arsenic in coal combustion wastes when using them for 
agricultural purposes. Moreover, we indicated that a decision to 
establish hazardous waste regulations applicable to agricultural uses 
of co-managed coal combustion wastes would likely affect the regulatory 
status of the Part 1 wastes (i.e., electric utility high volume coal 
combustion wastes managed separately from other coal combustion wastes) 
when used for agricultural purposes. This is because the source of the 
identified risk was the arsenic content of the high volume coal 
combustion wastes and not other materials that may be co-managed with 
them.
    Third, we expressed concern with potential impacts from the 
expanding practice of minefilling coal combustion wastes (i.e., 
backfilling the wastes into mined areas) and described the

[[Page 32222]]

difficulties we had with assessing the impacts and potential risks of 
this practice. We explained that these difficulties include:
     Determining if elevated contaminants in ground water are 
due to minefill practices or pre-existing conditions resulting from 
mining operations,
     Trying to model situations that may be more complex than 
our groundwater models can accommodate,
     The lack of long-term experience with the recent practice 
of minefilling, which limits the amount of environmental data for 
analysis, and
     The site-specific nature of these operations.
    Accordingly, we did not present a tentative decision in the RTC for 
this practice. We indicated that subtitle C regulation would remain an 
option for minefilling, but that we needed additional information prior 
to making a final decision. Rather, we solicited additional information 
from commenters on these and other aspects of minefilling practices and 
indicated we would carefully consider that information in the 
formulation of today's decision.

C. How Did Commenters' React to EPA's Tentative Decisions and What Was 
EPA's Analysis of Their Comments?

    Commenter's provided substantial input and information on several 
aspects of our overall tentative decision to retain the exemption for 
these wastes from RCRA subtitle C regulation. These aspects are: 
modeling and risk assessment for the groundwater pathway, documented 
damage cases, the potential for coal combustion waste characteristics 
to change as a result of possible future Clean Air Act regulations, 
proper management of mill rejects (pyrites), agricultural use of coal 
combustion wastes, the practice of minefilling coal combustion wastes, 
and our assessment of existing State programs and industry waste 
management practices.
1. How Did Commenters React to the Groundwater Modeling and Risk 
Assessment Analyses Conducted by EPA To Support its Findings in the 
Report to Congress?
    Comments. Industry and public interest group commenters submitted 
detailed critiques of the groundwater model, EPACMTP, that we used for 
our risk analysis. Industry commenters believe that the model will 
overestimate the levels of contaminants that may migrate down-gradient 
from disposed wastes. Environmental groups expressed the opposite 
belief; that is, that the model underestimates down-gradient chemical 
concentrations and, therefore, underestimates the potential risk posed 
by coal combustion wastes.
    The breadth and potential implications of the numerous technical 
comments on the EPACMTP model are significant. Examples of the comments 
include issues relating to:
     The thermodynamic data that are the basis for certain 
model calculations,
     The model's ability to account for the effects of 
oxidation-reduction potential,
     The model's ability to account for competition between 
multiple contaminants for adsorption sites,
     The model's algorithm for selecting adsorption isotherms,
     The impact of leachate chemistry on adsorption and aquifer 
chemistry, and
     The model's inherent assumptions about the chemistry of 
the underlying aquifer.
    EPA's Analysis of the Comments. We have been carefully reviewing 
all of the comments on the model. We determined that the process of 
thoroughly investigating all of the comments will take substantially 
more time to complete than is available within the court deadline for 
issuing this regulatory determination. At this time, we are uncertain 
of the overall outcome of our analysis of the issues raised in the 
comments. Accordingly, we have decided not to use the results of our 
groundwater pathway risk analysis in support of today's regulatory 
determination on fossil fuel combustion wastes. As explained below, in 
making today's regulatory determination, we have relied in part on 
other information related to the potential danger that may result from 
the management of fossil fuel combustion wastes.
    Meanwhile, we will continue with our analysis of comments on the 
groundwater model and risk analysis. This may involve changing or re-
structuring various aspects of the model, if appropriate. It may also 
include additional analyses to determine whether any changes to the 
model or modeling methodology would materially affect the groundwater 
risk analysis results that were reported in the RTC. If our 
investigations reveal that a re-analysis of groundwater risks is 
appropriate, we will conduct the analysis and re-evaluate today's 
decisions as warranted by the re-analysis.
    In addition to our ongoing review of comments on the groundwater 
model, one element of the model--the metals partitioning component 
called ``MINTEQ''--has been proposed for additional peer review. When 
additional peer review is completed, we will take the findings and 
recommendations into account in any overall decision to re-evaluate 
today's regulatory determination.
    While not relying on the EPACMTP groundwater modeling as presented 
in the RTC, we have since conducted a general comparison of the metals 
levels in leachate from coal combustion wastes to their corresponding 
hazardous waste toxicity characteristic levels. Fossil fuel wastes 
infrequently exceed the hazardous waste characteristic. For co-managed 
wastes, 2% (1 of 51 samples) exceeded the characteristic level. For 
individual wastes streams, 0% of the coal bottom ash, 2% of the coal 
fly ash, 3% of the coal flue gas desulfurization, and 7% of the coal 
boiler slag samples that were tested exceeded the characteristic level. 
Nevertheless, once we have completed a review of our groundwater model 
and made any necessary changes, we will reevaluate groundwater risks 
and take appropriate regulatory actions. We will specifically assess 
new modeling results as they relate to any promulgated changes in the 
arsenic MCL.
    We also compared leach concentrations from fossil fuel wastes to 
the drinking water MCLs. In the case of arsenic, we examined a range of 
values because EPA expects to promulgate a new arsenic drinking water 
regulation by January 1, 2001. This range includes the existing arsenic 
MCL (50 ug/l), a lower health based number presented in the FFC Report 
to Congress (RTC) (0.29 ug/l), and two assumed values in between (10 
and 5 ug/l). We examined this range of values because of our desire to 
bracket the likely range of values that EPA will be considering in its 
effort to revise the current MCL for arsenic. The National Research 
Council's 1999 report on Arsenic in Drinking Water indicated that the 
current MCL is not sufficiently protective and should be revised 
downward as soon as possible. For this reason, we selected the current 
MCL of 50 ug/L for the high end of the range because EPA is now 
considering lowering the current MCL and does not anticipate that the 
current MCL would be revised to any higher value. We selected the 
health-based number presented in the Report to Congress for the low end 
of the range because we believe this represents the lowest 
concentration that would be considered in revising the current MCL. 
Because at this time we cannot project a particular value as the 
eventual MCL, we also examined values in between these low-end and 
high-end values, a value of 5

[[Page 32223]]

ug/L and a value of 10 ug/L, for our analyses supporting today's 
regulatory determination. The choice of these mid-range values for 
analyses does not predetermine the final MCL for arsenic.
    Those circumstances where the leach concentrations from the wastes 
exceed the drinking water criteria have the greatest potential to cause 
significant risks. This ``potential'' risk, however, may not occur at 
actual facilities. Pollutants in the leachate of the wastes undergo 
dilution and attenuation as they migrate through the ground. The 
primary purpose of models such as EPACMTP is to account for the degree 
of dilution and attenuation that is likely to occur, and to obtain a 
realistic estimate of the concentration of contaminants at a 
groundwater receptor. To provide a view of potential groundwater risk, 
we tabulated the number of occurrences where the waste leachate 
hazardous metals concentrations were: (a) Less than the criteria, (b) 
between 1 and 10 times the criteria, (c) between 10 and 100 times the 
criteria, and (d) greater than 100 times the criteria. Groundwater 
models that we currently use, when applied to large volume monofill 
sources of metals, frequently predict that dilution and attenuation 
will reduce leachate levels on the order of a factor of 10 under 
reasonable high end conditions. This multiple is commonly called a 
dilution and attenuation factor (DAF). For this reason and because 
lower dilution and attenuation factors (e.g., 10) are often associated 
with larger disposal units such as those typical at facilities where 
coal is burned, we assessed the frequency of occurrence of leach 
concentrations for various hazardous metals which were greater than 10 
times the drinking water criteria. Based on current MCLs, there was 
only one exceedence (for cadmium). However, when we considered the 
arsenic health based criterion from the RTC, we found that a 
significant percentage (86%) of available waste samples had leach 
concentrations for arsenic that were greater than ten times the health-
based criterion. Even considering intermediate values closer to the 
current MCL, a significant percentage of available waste samples had 
leach concentrations for arsenic that were greater than ten times the 
criteria (30% when the criterion was assumed to be 5 ug/l, and 14% when 
the criterion was assumed to be 10 ug/l). Similar concerns also 
occurred when comparing actual groundwater samples associated with FFC 
waste units and this range of criteria for arsenic. We believe this is 
an indication of potential risks from arsenic.
    For the above analysis, we used a value equal to half the detection 
level to deal with those situations where analyses resulted in ``less 
than detection'' values that exceeded the MCL criteria. The actual 
concentration may be as low as zero or up to the detection level. To 
illustrate the impact of this assumption, an analysis was performed 
setting the ``less than detection'' values to zero, and an arsenic 
criteria at 50 ug/l. While 30% of the values exceeded 10 times the 
criteria when using half the detection level, exceedences dropped to 
13% when ``less than detection'' values were set to zero.
    The comparison of the leachate levels to 10 times MCL criteria is a 
screening level analysis that supports our concerns, which are 
primarily based on damage cases and the lack of installed controls 
(liners and groundwater monitoring). We recognize, however, that prior 
to issuing a regulation the Agency expects to address the issues raised 
on the groundwater model and complete a comprehensive groundwater 
modeling effort. Furthermore, we anticipate that uncertainty regarding 
whether the arsenic MCL will be amended and to what level, will be more 
settled prior to regulation of these wastes. These factors could 
heighten or reduce concerns with regard to the need for Federal 
regulation of fossil fuel combustion wastes.
2. How Did Commenters React to EPA's Assessment of Documented Damage 
Cases Presented in the Report to Congress?
    Prior to issuing the RTC, we sought and reviewed potential damage 
cases related to these particular wastes. The activities included:
     A re-analysis of the potential damage cases identified 
during the Part 1 determination,
     A search of the CERCLA Information System for instances of 
these wastes being cited as causes or contributors to damages,
     Contacts and visits to regulatory agencies in five states 
with high rates of coal consumption to review file materials and 
discuss with state officials the existence of damage cases,
     A review of information provided by the Utility Solid 
Waste Act Group and the Electric Power Research Institute on 14 co-
management sites, and
     A review of information provided by the Council of 
Industrial Boiler Owners on eight fluidized bed combustion (FBC) 
facilities.
    These activities yielded three damage case sites in addition to the 
four cases initially identified in the Part 1 determination.\2\ Five of 
the damage cases involved surface impoundments and the two other cases 
involved landfills. The waste management units in these cases were all 
older, unlined units. The releases in these cases were confined to the 
vicinity of the facilities and did not affect human receptors. None of 
the damages impacted human health. We did not identify any damage cases 
that were associated with beneficial use practices.
---------------------------------------------------------------------------

    \2\ The Part 1 determination identified six cases of documented 
damages. Upon further reveiw, we determined that two of these cases 
involve utility coal ash monofills which are covered by the Part 1 
determination. However, the other four cases involved remaining 
wastes that are covered by today's determination.
---------------------------------------------------------------------------

    Comments. Public interest group commenters criticized our approach 
to identifying damage cases associated with the management of fossil 
fuel combustion (FFC) wastes, stating that EPA did not use the same 
procedure used to identify damage cases for the cement kiln dust (CKD) 
Report to Congress. These commenters believed that we were too 
conservative in our interpretation and determination of FFC damage 
cases and dismissed cases that commenters believe are relevant 
instances of damage. For example, these commenters indicated that EPA, 
in the RTC, did not consider cases where the only exceedences of ground 
water standards were for secondary MCLs (Maximum Contaminant Levels as 
established by EPA for drinking water standards). They further 
indicated that the states often require ground water monitoring only 
for secondary MCL constituents and that elevated levels of the 
secondary MCL constituents are an indication of future potential for 
more serious, health-based standards to be exceeded for other 
constituents in the wastes, such as toxic metals. Additionally, these 
commenters stated that the Agency's analysis for damage cases was 
incomplete and they provided information on 59 possible damage cases 
involving these wastes, mostly at utilities. Additionally, commenters 
submitted seven cases of ecological damage that allege damage to 
mammals, amphibians, fish, benthic layer organisms and plants from co-
management of coal combustion wastes in surface impoundments.
    Industry commenters cited EPA's finding of so few damage cases as 
important support for our tentative conclusion to exempt these wastes 
from hazardous waste regulation. Further, some of the industry 
commenters indicated that the few damage cases that EPA identified do 
not represent current

[[Page 32224]]

utility industry management practices, but rather reflect less 
environmentally protective management practices at older facilities 
that pre-date the numerous state and federal requirements that are now 
in effect for managing these wastes.
    EPA's Analysis of the Comments. Regarding ecological damage, while 
we did not identify any ecological damage cases in the RTC associated 
with management of coal combustion wastes, we reviewed the information 
on ecological damage submitted by commenters and agree that four of the 
seven submitted are documented damage cases that involve FFC wastes. 
All of these involve some form of discharge from waste management units 
to nearby lakes or creeks. These confirm our risk modeling conclusions 
as presented in the RTC that there could be adverse impacts on 
amphibians, birds, or mammals if they were subject to the elevated 
concentrations of selected chemicals that had been measured in some 
impoundments. However, no information was submitted in comments that 
would lead us to alter our conclusion that these threats are not 
substantial enough to cause large scale, system level ecological 
disruptions. These damage cases, attributable to runoff or overflow 
that is already subject to Clean Water Act discharge or stormwater 
regulations, are more appropriately addressed under the existing Clean 
Water Act requirements.
    Regarding our assessment of damage to ground water, we believe our 
approach to FFC damage cases in the RTC was consistent with the 
approach we used for identifying CKD damage cases. For CKD, we 
established two categories of damage cases--``proven'' damage cases and 
``potential'' damage cases. Proven damage cases were those with 
documented MCL exceedences that were measured in ground water at a 
sufficient distance from the waste management unit to indicate that 
hazardous constituents had migrated to the extent that they could cause 
human health concerns. Potential damage cases were those with 
documented MCL exceedences that were measured in ground water beneath 
or close to the waste source. In these cases, the documented 
exceedences had not been demonstrated at a sufficient distance from the 
waste management unit to indicate that waste constituents had migrated 
to the extent that they could cause human health concerns. We do not 
believe that it would be appropriate to consider an exceedence directly 
beneath a waste management unit or very close to the waste boundary to 
be a documented, proven damage case. State regulations typically use a 
compliance procedure that relies on measurement at a receptor site or 
in ground water at a point beyond the waste boundary (e.g., 150 
meters). While our CKD analysis did not distinguish between primary and 
secondary MCL exceedences, most CKD damage cases involved a primary MCL 
constituent. Our principal basis for determining that CKD when managed 
in land-based units would no longer remain exempt from being regulated 
as a hazardous waste was our concern about generally poor management 
practices characteristic of that industry. Our conclusion was further 
supported by the extremely high percentage of proven damage cases 
occurring at active CKD sites for which groundwater monitoring data 
were available.
    For FFC, we used the same test of proof to identify possible damage 
cases. Our FFC analysis drew a distinction between primary and 
secondary MCL exceedences because we believe this factor is appropriate 
in weighing the seriousness of FFC damage in terms of indicating risk 
to human health and the environment. For FFC, in the RTC, we reported 
only the ``proven'' damage (i.e., exceedence of a health-based standard 
such as a primary MCL and measurement in ground water or surface 
water). As was done in the CKD analysis, we also identified a number of 
potential FFC damage cases (eleven) which were included in the 
background documents that support the RTC.
    Unlike the primary MCLs, secondary MCLs are not based on human 
health considerations. (Examples are dissolved solids, sulfate, iron, 
and chloride for which groundwater standards have been established 
because of their effect on taste, odor, and color.) While some 
commenters believe that elevated levels of some secondary MCL 
parameters such as soluble salts are likely precursors or indicators of 
future hazardous constituent exceedences that could occur at coal 
combustion facilities, we are not yet able and will not be able to test 
their hypothesis until we complete our analysis of all comments 
received on our groundwater model and risk analysis, which will not be 
concluded until next year.
    Of the 59 damage cases reported by commenters, 11 cases appear to 
involve exceedences of primary MCLs or other health-based standards as 
measured either in off-site ground water or in nearby surface waters, 
the criteria we used in the RTC to identify proven damage cases. Of 
these eleven cases, two are coal ash monofills which were included in 
the set of damage cases described by EPA in its record supporting the 
Part 1 regulatory determination. The remaining nine cases involve the 
co-management of large volume coal combustion wastes with other low 
volume and uniquely associated coal combustion wastes. We had already 
identified five of these nine cases in the RTC. Thus, only four of 
these eleven damage cases are newly identified to us. Briefly, the four 
new cases involve:
     Exceedence of a state standard for lead in downgradient 
ground water at a coal fly ash landfill in New York. There were also 
secondary MCL exceedences for sulfate, dissolved solids, and iron.
     Primary MCL exceedences for arsenic and selenium in 
downgradient monitoring wells for a coal ash impoundment at a power 
plant in North Dakota. There were also secondary MCL exceedences for 
sulfate and chloride.
     Primary MCL exceedences for fluoride and exceedence of a 
state standard for boron in downgradient monitoring wells at a utility 
coal combustion waste impoundment in Wisconsin. There was also a 
secondary MCL exceedence for sulfate.
     Exceedence of a state standard for boron and the secondary 
MCL for sulfate and manganese in downgradient monitoring wells at a 
utility coal combustion landfill in Wisconsin.
    We found that in nine of the 11 proven damage cases (including one 
Superfund site), states took appropriate action to require or conduct 
remedial activities to reduce or eliminate the cause of contamination. 
EPA took action in the remaining two cases under the Superfund program
    Nineteen of the candidate damage cases submitted by commenters 
involve either on-site or off-site exceedences of secondary MCLs, but 
not primary MCLs or other health-based standards. Consistent with our 
CKD analysis, we consider these cases to be indicative of a potential 
for damage to occur at these sites because they demonstrate that there 
has been a release to ground water from the waste management unit.
    Regarding the remaining 29 cases submitted by commenters:
     Six involve primary MCL exceedences, but measurements were 
in ground water either directly beneath the waste or very close to the 
waste boundary, i.e., no off-site ground water or receptor measurements 
indicated that ground water standards had been exceeded. Consistent 
with our analysis of damage cases for cement kiln dust, we consider 
these six cases to be indicative of a potential for damage to occur at 
these sites because they demonstrate that there has been a

[[Page 32225]]

release to ground water from the waste management unit..
     Eighteen case summary submissions contained insufficient 
documentation and data for us to verify and draw a conclusion about 
whether we should consider these to be potential or proven damage 
cases. Of these 18 cases, commenters claimed that 11 cases involve 
primary MCL exceedences, and another two involve secondary MCLs, but 
not primary MCLs. The other five cases lacked sufficient information 
and documentation to determine whether primary or secondary MCLs are 
involved. Examples of information critical to assessing and verifying 
candidate damage cases that was not available for these particular 
cases include: Identification of the pollutants causing the 
contamination; identification of where or how the damage case 
information was obtained (e.g., facility monitoring data, state 
monitoring or investigation, third party study or analysis); monitoring 
data used to identify levels of contaminants; and/or sufficient 
information to determine whether the damages were actually attributable 
to fossil fuel combustion wastes; and/or location of the identified 
contamination (i.e., directly beneath the unit or very close to the 
waste boundary or at a point some distant (e.g., 150 meters) from the 
unit boundary).
     Three case submissions are cases we identified in the Part 
1 determination and involve monofilled utility coal ash wastes. 
However, as explained in the Report to Congress for the Part 1 
determination, EPA determined that there was insufficient evidence to 
consider them to be documented damage cases.
     One case did not involve fossil fuel combustion wastes.
     One case involved coal combustion wastes and other 
unrelated wastes in an illegal, unpermitted dump site. This site was 
handled by the state as a hazardous waste cleanup site.
    Our detailed analysis of the damage cases submitted by commenters 
is available in the public docket for this regulatory determination.
    In summary, based on damage case information presented in the RTC 
and our review of comments, we conclude that there are 11 proven damage 
cases associated with wastes covered by today's regulatory 
determination. We identified seven of these damage cases in the RTC, so 
there are four new proven damage cases that were identified by 
commenters. All of the sites were at older, unlined units, with 
disposal occurring prior to 1993. For all 11 of the proven damage 
cases, either the state or EPA provided adequate follow-up to require 
or else undertake corrective action. Although these damage cases 
indicate that coal combustion wastes can present risks to human health 
and the environment, they also show the effectiveness of states' 
responses when damages were identified. None of these cases involved 
actual human exposure.
    Additionally, we determined that another 25 of the commenter 
submitted cases are potential damage cases for the reasons described 
above. Thus, including the 11 potential damage cases that we identified 
in the background documents that support the RTC, we are aware of 36 
potential damage cases. While we do not believe the latter 36 cases 
satisfy the statutory criteria of documented, proven damage cases 
because damage to human health or the environment has not been proven, 
we believe that these cases may indicate that these wastes pose a 
``potential'' danger to human health and the environment in some 
circumstances.
    In conclusion, while the absolute number of documented, proven 
damage cases is not large, we believe that the evidence of proven and 
potential damage should be considered in light of the proportion of new 
and existing facilities, particularly surface impoundments, that today 
lack basic environmental controls such as liners and groundwater 
monitoring. Approximately one-third of coal combustion wastes are 
managed in surface impoundments. We note that controls such as liners 
may not be warranted at some facilities, due to site-specific 
conditions. We acknowledge, however, that our inquiry into the 
existence of damage cases was focused primarily on a subset of states. 
Given the volume of coal combustion wastes generated nationwide and the 
number of facilities that lacked groundwater monitoring as of 1995, 
there is at least a substantial likelihood other cases of actual and 
potential damage likely exist. Because we did not use a statistical 
sampling methodology to evaluate the potential for damage, we are 
unable to determine whether the identified cases are representative of 
the conditions at all facilities and, therefore, cannot quantify the 
extent and magnitude of damages at the national level.
3. What Concerns Did Commenters Express About the Impact of Potential 
Future Regulation of Hazardous Air Pollutants Under the Clean Air Act 
on Today's Regulatory Determination?
    Comments. In both public hearing testimony and written comments, 
public interest groups expressed concern about potential changes in the 
characteristics of these wastes when new air pollution controls are 
established under the Clean Air Act. The commenters referred to the 
possible future requirement for hazardous air pollutant controls at 
coal burning electric utility power plants, which could result in an 
increased level of metals and possibly other hazardous constituents in 
coal combustion wastes. The commenters indicated that these increased 
levels, in turn, could have serious implications for cross-media 
environmental impacts such as leaching to groundwater and 
volatilization to the air. The commenters argued that the Agency should 
include these factors in its current decision making on the regulatory 
status of coal combustion under the Resource Conservation and Recovery 
Act.
    EPA's Analysis of the Comments. We have carefully considered the 
issue of cross-media impacts and the commenters' specific concerns that 
future air regulations could have an adverse impact on the 
characteristics of coal combustion wastes. We have concluded that it is 
premature to consider the possible future impact of such new air 
pollution controls on the wastes that are subject to today's regulatory 
determination. The Agency plans to issue a regulatory determination in 
the latter part of 2000 regarding hazardous air pollutant (HAP) 
controls at coal-burning, power generating facilities. If EPA decides 
to initiate a rulemaking process, final rulemaking under the Clean Air 
Act is projected to occur in 2004. Thus, no final decision has been 
made on what, if any, constituents will be regulated by future air 
pollution control requirements. Additionally, the regulatory levels of 
the those specific pollutants that might be controlled and the control 
technologies needed to attain any regulatory requirements have not yet 
been identified. Therefore, we believe there is insufficient 
information at this time for evaluating the characteristics and 
potential environmental impacts of solid wastes that would be generated 
as a result of new Clean Air Act requirements.
    When any rulemaking under the Clean Air Act proceeds to a point 
where we can complete an assessment of the likely changes to the 
character of coal combustion wastes, we will evaluate the implications 
of these changes relative to today's regulatory determination and take 
appropriate action.
4. How Did Commenters React to the Findings Presented in the Report to 
Congress Related to Proper Management of Mill Rejects (Pyrites)?
    The RTC explained that we identified situations where pyrite-
bearing

[[Page 32226]]

materials such as mill rejects (a low volume and uniquely associated 
waste) that are co-managed with coal combustion wastes may cause or 
contribute to risks or environmental damage if not managed properly. 
These materials when managed improperly with exposure to air and water 
can generate acid. The acid, in turn, can mobilize metals contained in 
the co-managed combustion wastes. The RTC also explained that the 
Agency engaged the utility industry in a voluntary program to ensure 
appropriate management of these wastes. The industry responded by 
developing technical guidance and a voluntary industry education 
program on proper management of these wastes.
    Comments. Utility industry commenters supported our tentative 
decision to continue the exemption for coal combustion wastes co-
managed with mill rejects from regulation as a hazardous waste. Their 
position is based primarily on the industry's voluntary implementation 
of an education program and technical guidance on the proper management 
of these wastes, as described in the RTC.
    Public interest groups and other commenters disagreed with our 
tentative decision, explaining their belief that such voluntary 
controls or programs are inadequate. They indicated that coal 
combustion wastes should be subject to hazardous waste regulations.
    EPA's Analysis of the Comments. We remain encouraged by the utility 
industry program to educate and inform its members by implementing 
guidance on the proper management of coal mill rejects. However, as 
pointed out by commenters, there is no assurance that facilities where 
coal combustion wastes co-managed with pyritic wastes will follow the 
guidance developed by industry. In light of the number of demonstrated 
and potential damage cases identified to date, we are concerned that 
simply relying on voluntary institution of necessary controls would not 
adequately ensure the protection of human health and the environment. 
At this time, to ensure that we are aware of all stakeholders views on 
the adequacy of the control approaches described in the guidance to 
protect human health and the environment, we are soliciting public 
comment on the final version of the industry coal mill rejects 
guidance. This guidance is available in the docket supporting today's 
decisions.
5. How Did Commenters React to the Findings Presented in the Report to 
Congress Related to Agricultural Use of Coal Combustion Wastes?
    In the RTC, we presented findings on the human health risks 
associated with agricultural use of coal wastes as an agricultural lime 
substitute. The pathway examined embodies risks from ingestion of soil 
and inhalation, and from ingestion of contaminated dairy, beef, fruit 
and vegetable products. The resultant ``high end'' cancer risk reported 
in the RTC was 1  x  10-5 (one in one hundred thousand 
exposed population), for the child of a farmer. The variables held at 
high end for this calculation were contaminant concentration and 
children's soil ingestion. With all variables set to central tendency 
values, the risk was calculated to be 1  x  10-7 (one in ten 
million exposed population). We did not identify the presence of any 
non-cancer hazard of concern. Based on the high end risk, the Agency 
raised the possibility in the RTC of developing Subtitle C controls or 
seeking commitments from industry to a voluntary program.
    Comments. A number of industry, academic, and federal agency 
commenters disagreed with our tentative conclusion that some level of 
regulation may be appropriate for coal combustion wastes when used as 
an agricultural soil supplement. They indicated that EPA used 
unrealistically conservative levels for four key inputs used in our 
risk analysis and that use of a realistic level for any one of these 
inputs would result in a risk level less than 1  x  10-6. 
The four inputs identified by the commenters are: application rate of 
the wastes to the land, the rate of soil ingestion by children, the 
bioavailability of arsenic and the phytoavailability of arsenic.
    These commenters further recommended that EPA not regulate, but 
rather encourage voluntary restrictions because:
     Agricultural use of coal combustion wastes creates no 
adverse environmental impacts and EPA identified no damage cases 
associated with this practice;
     Agricultural use of these wastes has significant technical 
and economic benefits;
     Federal controls would be unnecessarily costly and would 
create a barrier for research and development on the practice;
     Existing regulatory programs are sufficient to control any 
risks from this practice; and
     The limits suggested in the RTC for arsenic levels in coal 
combustion wastes are inconsistent with limits applied to other 
materials used in agriculture.
    Public interest groups stated their belief that a voluntary 
approach would not be sufficiently protective of human health and the 
environment. They believe the Agency should apply restrictions on the 
use of these wastes in agriculture because the Agency's analyses of the 
risks and benefits of this practice were inadequate. They further 
recommended that EPA should prohibit the land application of coal 
combustion wastes generated by conventional boilers, and make the 
arsenic limitation of EPA's sewage sludge land application regulations 
applicable to the land application of coal combustion wastes generated 
by fluidized bed combustors, which add lime as part of the combustion 
process.
    EPA's Analysis of Comments. After reviewing these comments and 
supporting information provided by the commenters, we concluded that a 
revised input into the model for children's soil ingestion rate is 
appropriate. Based on further review of the Agency's Exposure Factors 
Handbook (EFH), we decided to model a children's soil ingestion rate of 
0.4 grams per day instead of the 1.4 grams per day that underlay the 
results given in the RTC.
    Many studies have been conducted to estimate soil ingestion by 
children. Early studies focused on dirt present on children's hands. 
More recently, studies have focused on measuring trace elements in soil 
and then in feces as a function of internal absorption. These 
measurements are used to estimate amounts of soil ingested over a 
specified time period. The EFH findings for children's soil ingestion 
are based on seven key studies and nine other relevant studies that the 
Agency reviewed on this subject. These studies showed that mean values 
for soil ingestion ranged from 39 mg/day to 271 mg/day with an average 
of 146 mg/day. These results are characterized for studies that were 
for short periods with little information reported for pica behavior. 
To account for longer periods of time, the EFH reviewed the upper 
percentile ranges of the data studied and found ingestion rates that 
ranged from 106 mg/day to 1,432 mg/day with an average of 383 mg/day 
for soil ingestion. Rounding to one significant figure, the EFH 
recommended an upper percentile children's soil ingestion rate of 400 
mg/day. The Agency believes that this recommendation is the best 
available information to address children's exposure through the soil 
ingestion route. Reducing the ingestion rate to the EFH handbook 
recommended level of

[[Page 32227]]

400 mg/day reduced the calculated risk to 3.4  x  10-6 for this one 
child risk situation and suggests that agricultural use of FFC wastes 
does not cause a risk of concern.
    EPA believes its inputs for phytoavailability are accurate, 
although there are studies that suggest phytoavailability will decrease 
over time. Arsenic bioavailability is a function of all sources of 
arsenic and EPA believes it has characterized this accurately. However, 
as noted elsewhere, arsenic toxicity is now being studied by the Agency 
in conjunction with a proposed new arsenic MCL and may necessitate re-
visiting today's judgement on agricultural use.
    Our technical analysis that resulted in revised risk is explained 
in a document titled Reevaluation of Non-groundwater Pathway Risks from 
Agricultural Use of Coal Combustion Wastes, which is available in the 
docket for this action.
    The comment on inappropriateness of application frequency was 
caused by a misunderstanding of the language in the RTC. The rate used 
was actually every two or three years, not two or three times per year.
    Two ongoing studies of wastes of potential use as agricultural soil 
supplements relate to the use of FFC wastes for this purpose. Although 
these did not play a direct role in EPA's decision regarding FFC 
wastes, they are summarized below and may play a role in any future 
review of today's decision.
    (1) On August 20, 1999, the agency proposed risk-based standards 
for cement kiln dust when used as a liming agent (see 64 FR 45632; 
August 20, 1999). This analysis was completed in 1998 just prior to our 
completion of the analysis of FFC wastes when used as agricultural 
supplements. The CKD analysis underwent a special peer review by a 
standing committee that is used by the Department of Agriculture. We 
were not able to respond to the peer review comments in either the CKD 
proposal or in our assessment for fossil fuel combustion wastes prior 
to publication of today's regulatory determination. The comment period 
for the CKD proposal closed on February 17, 2000, and we will soon 
begin our review and analyses of the public and peer review comments.
    (2) In December 1999, EPA proposed new risk based standards for the 
use of municipal sewage sludge under section 503 of the Clean Water Act 
(the ``503 standards''). It is important to note that municipal sludge 
has unique properties, application rates, and uses. This makes it 
inappropriate to transfer the 503 standards directly. Even though the 
standards cannot be used directly, there may be interest in the risk 
assessment methodologies used to support the development of these 
standards. We disagree that it is appropriate to establish an arsenic 
limitation for coal combustion ash when used for agricultural purposes 
equivalent to that contained in the EPA sewage sludge land application 
regulations. The organic nature of sewage sludge makes it behave very 
differently from inorganic wastes such as coal combustion wastes.
    We conclude at this time that arsenic levels in coal combustion 
wastes do not pose a significant risk to human health when used for 
agricultural purposes. We expect to continue to review and refine the 
related risk assessments noted above, and will consider comments on the 
Agency's CKD and municipal sludge proposals, as well as new scientific 
developments related to this issue such as additional peer review of 
the EPA MINTEQ model that was used as a component of our risk analysis. 
If these efforts lead us to a different understanding of the risks 
posed by coal combustion wastes when used as a substitute for 
agricultural lime, we will take appropriate action to reevaluate 
today's regulatory determination.
6. How Did Commenters React to the Findings Presented in the Report to 
Congress Related to Minefilling of Coal Combustion Wastes?
    In the RTC, we explained that we had insufficient information to 
adequately assess the risks associated with the use of coal combustion 
wastes to fill surface and underground mines, whether the mines are 
active or abandoned. Accordingly, we did not present a tentative 
conclusion in the RTC with respect to the use of coal combustion wastes 
for disposal in active mines or for reclamation of mines. However, we 
did indicate that regulation of minefilling under hazardous waste 
rulemaking authority would remain an option for minefilling, but that 
we needed additional information prior to making a final decision. 
Thus, we solicited additional information on specific minefilling 
techniques, problems that may be inherent in this management practice, 
risks posed by this practice, existing state regulatory requirements, 
and environmental monitoring data. We indicated that we would consider 
any comments and new information on minefilling received in comments 
and would address this management practice in today's regulatory 
determination.
    Comments. A number of commenters responded to our request by 
providing reports on individual case studies, including minefilling in 
underground as well as in surface mines, descriptions of current state 
regulatory requirements that address this practice, monitoring data, 
and information about risk analysis techniques.
    Industry commenters and one federal agency supported our decision 
to study the issue further and not attempt to estimate the risks posed 
by this practice using existing methods. Further, numerous industry, 
academic, state agency, and federal agency commenters encouraged EPA 
not to adopt national regulations or voluntary restrictions on 
minefilling because: (a) Nationwide standards would not be conducive to 
the site-specific evaluations needed to appropriately control these 
operations; (b) minefilling creates no adverse environmental impacts 
and EPA identified no damage cases associated with this practice; (c) 
existing state and federal regulatory programs and industry practices 
are sufficient to control any risks from this practice, and (d) federal 
standards would be an unreasonable interference with states' 
authorities.
    Additionally, several industry representatives, legislators, and 
state mining and environmental agencies mentioned that this practice, 
when used to remediate abandoned mine lands, will produce considerably 
greater environmental benefits than risks. Further, they maintained 
that minefilling is a relatively inexpensive means to stop or even 
reverse the environmental damage caused by old mining practices. They 
indicated that through remediation by minefilling, these lands 
frequently can be returned to productive use. These commenters 
recommended no additional regulation of this practice.
    Public interest groups and others believe we should regulate 
minefilling under RCRA subtitle C or prohibit it for several reasons 
including weaknesses in existing state and federal regulatory programs, 
the poor practices and performance at existing minefilling operations, 
and potential impacts on potable water sources. Commenters stated that 
state programs effectively allow open dumps without any design or 
construction standards. For minefilling, one commenter urged EPA to 
defer to state regulations only if the Agency specifically found 
existing state regulations to be adequate.
    EPA's Analysis of Comments. We agree with commenters that it is 
inappropriate to estimate the risks posed by minefilling using the 
existing methods that we employed to conduct risk analyses for disposal 
of coal combustion wastes in landfills and impoundments. We found that 
the

[[Page 32228]]

groundwater models available to us are unsuitable for estimating risks 
from minefills because, for example, they are not able to account for 
conditions such as fractured flow that are typical of the hydrogeology 
associated with mining operations. In addition, as explained above, 
EPA's primary groundwater model, EPACMTP, is now undergoing careful 
review on the basis of comments received on the Report to Congress.
    We are aware that the use of coal combustion wastes to conduct 
remediation of mine lands can improve conditions caused by mining 
activities. We also recognize that this often is the lowest cost option 
for conducting these remediation activities. We generally encourage the 
practice of remediating mine lands with coal combustion wastes when 
minefilling is conducted properly and when there is adequate oversight 
of the remediation activities. We are also aware that relatively few 
states currently operate regulatory or other programs that specifically 
address minefilling, and that many states where this practice is 
occurring do not have programs in place. Based on our review of 
information on existing state minefill programs, we find serious gaps 
such as a lack of adequate controls and restrictions on unsound 
practices, e.g., no requirement for groundwater monitoring and no 
control or prohibitions on waste placement in the aquifer.
    At this time, we cannot reach definitive conclusions about the 
adequacy of minefilling practices employed currently in the United 
States and the ability of government oversight agencies to ensure that 
human health and the environment are being adequately protected. For 
example, it is often impossible to determine if existing groundwater 
quality has been impacted by previous mining operations or as a result 
of releases of hazardous constituents from the coal combustion wastes 
used in the minefilling applications. Additionally, data and 
information submitted during the public comment period indicate that if 
the chemistry of the mine relative to the chemistry of the coal 
combustion wastes is not properly taken into account, the addition of 
coal combustion wastes to certain environmental settings can lead to an 
increase in hazardous metals released into the environment. This 
phenomena has been substantiated by data available to the Agency that 
show when pyrites, which can cause acid generation, have been 
improperly co-managed with coal combustion wastes, high levels of 
metals, especially arsenic, have leached from the wastes.
    Finally, we concluded in our recent study of disposal of cement 
kiln dust that placement of cement kiln dust directly in contact with 
ground water led to a substantially greater release of hazardous metal 
constituents than we predicted would occur when such placement in 
ground water did not occur. We are aware of situations where coal 
combustion wastes are being placed in direct contact with ground water 
in both underground and surface mines. This could lead to increased 
releases of hazardous metal constituents as a result of minefilling. 
Thus, if the complexities related to site-specific geology, hydrology, 
and waste chemistry are not properly taken into account when 
minefilling coal combustion wastes, we believe that certain minefilling 
practices have the potential to degrade, rather than improve, existing 
groundwater quality and can pose a potential danger to human health and 
the environment. Subsequent impacts on human health would depend in 
part on the proximity of drinking water wells, if any, to elevated 
levels of metals in the water. To date we are unaware of any proven 
damage cases resulting from minefilling operations.
7. How Did Commenters React to EPA's Tentative Reliance on State 
Programs and Voluntary Industry Implementation of Improved Management 
Practices To Mitigate Potential Risks From Coal Combustion Waste 
Management?
    In the RTC, EPA considered retaining the exemption for coal 
combustion wastes disposed in surface impoundments and landfills and 
for mill rejects (pyrites) that are managed with those wastes. The 
Agency cited a reliance on state programs that have improved 
substantially over the past 10 to 15 years and continue to improve, 
combined with voluntary industry implementation of guidance for 
improved management practices to mitigate risk. In addition, we stated 
that we would continue to work with industries and states to promote 
and monitor improvements.
    To assess the adequacy of state programs and the potential for 
voluntary implementation of improved practices, we looked at the 
current number of facilities with liners and groundwater monitoring 
(which may reflect voluntary industry upgrading as well as state 
requirements), and the number of state programs that currently have 
authority to require a broad range of environmental controls. For units 
operating as of 1995, we found that among utilities, slightly more than 
half of the disposal units were surface impoundments. Of these 
impoundments, 38 percent had groundwater monitoring and 26 percent had 
liners. Eighty-five percent of the utility landfills had groundwater 
monitoring and 57 percent had liners. For non-utility landfills, 94 
percent had groundwater monitoring, and between 16 percent and 52 
percent had liners. Between 1985 and 1995, 75 percent of new landfills 
and 60 percent of new surface impoundments within the utility sector 
had been lined. We have no information regarding the percentage of 
units built since 1995 (the date when the study we have relied on 
ended) that have liners or groundwater monitoring programs.
    In looking at state programs, we found that for landfills, more 
than 40 states have the authority to require permits, siting 
restrictions, liners, leachate collection, groundwater monitoring, 
closure controls, and cover/dust controls. Forty-three states can 
require liners and 46 can require groundwater monitoring compared to 11 
and 28 states, respectively, in the 1980's. For surface impoundments, 
more than 40 states have authority to require permits, siting 
restrictions, liners, groundwater monitoring, and closure control; 33 
can require leachate collection (there is no earlier comparison data 
for surface impoundments). Forty-five states can require liners and 44 
can require groundwater monitoring for impoundments.
    Comments. Industry and state agency commenters generally stated 
that the Agency presented an accurate and comprehensive analysis of 
state programs and that existing state regulations are adequate. Public 
interest commenters raised many concerns about the adequacy of state 
programs: Either they do not have provisions to cover all elements of a 
protective program; they do not consistently impose the requirements 
for which they have authority; and/or enforcement is lax. Evidence 
commenters cited for the inadequacy of state programs included 
grandfathering for older management units and an apparent lack of 
controls for surface impoundments. For these reasons, some found EPA's 
review of state programs inaccurate or incomplete.
    Public interest commenters were also skeptical of programs or 
efforts that rely on voluntary industry implementation because 
adherence to guidance is not guaranteed. Several commenters, primarily 
from industry, urged the Agency not to regulate pyrite co-management 
because of the voluntary, industry-developed guidance.
    EPA's Analysis of Comments. We believe that state programs have, in 
fact, substantially improved over the last 15

[[Page 32229]]

years or so. A high percentage of states have authority to impose 
protective management standards on surface impoundments and landfills, 
especially for groundwater monitoring, liners, and leachate collection, 
which mitigate potential risks posed by these units. Over 40 states 
today have these authorities (33 states have authority to require 
leachate collection in surface impoundments). When authority under 
state groundwater and drinking water regulations are considered, some 
commenters have suggested that nearly all states can address the 
management of these wastes. In addition, we believe that the trend to 
line and install groundwater monitoring for new surface impoundments 
and landfills is positive. However, as some commenters noted, we 
acknowledge that our state program review looked at the authorities 
available to states and their overall regulatory requirements, not the 
specific requirements applied to given facilities, which could be more 
or less stringent. In addition, we recognize that individual state 
programs may have some gaps in coverage, as indicated below, so that 
some controls may not now be required at coal combustion waste 
impoundments and landfills. We would expect to see some differences in 
the application of requirements, depending on site-specific conditions.
    One consistent trend that raises concern for the Agency is that 
controls are much less common at surface impoundment than at landfills. 
Even for newer units at utilities (constructed between 1985 and 1995), 
liners are used at 75 percent of landfills and only 60 percent of 
surface impoundments. Also at newer units, groundwater monitoring is 
implemented at 88 percent of landfills and at only 65 percent of 
surface impoundments. Approximately one-third of coal combustion wastes 
were managed in surface impoundments in 1995. Hydraulic pressure in a 
surface impoundment increases the likelihood of releases. We believe 
that groundwater monitoring, at a minimum, in existing as well as new 
impoundments, is a reasonable approach to monitor performance of the 
unit and a critical first step to addressing groundwater damage that 
may be caused by the unit. As of 1995, 38 percent of currently 
operating utility surface impoundments had groundwater monitoring and 
only 26 percent had liners.
    While liners and groundwater monitoring are applied more frequently 
at landfills, there are still many utility and non-utility landfills 
that do not have liners. In addition, 15 percent of utility landfills 
do not have groundwater monitoring, and some six percent of non-utility 
landfills do not have groundwater monitoring, based on a limited 
survey.
    The utility industry through its trade associations has 
demonstrated a willingness to work with EPA to develop protective 
management practices, and individual companies have committed to 
upgrading their own practices. However, the Agency recognizes that 
participation in voluntary programs is not assured. Also, individual 
facilities and companies may not implement protective management 
practices and controls, for a variety of reasons, in spite of their 
endorsement by industry-wide groups.
    We see a trend toward significantly improving state programs and 
voluntary industry investment in liners and groundwater monitoring that 
we believe can mitigate potential risks over time. However, we 
identified significant gaps in controls already in place and, in 
particular, requirements that may be lacking in some states, either in 
authority to impose the requirements or potentially in exercising that 
authority. In response to comments, we further analyzed risks posed by 
coal combustion wastes taking into account waste characteristics and 
potential and actual damage cases. Based on these analyses, we 
concluded that coal combustion wastes, in certain circumstances, could 
unnecessarily increase risks to human health and the environment, and 
that a number of proven damages have been documented, and that more are 
likely if we had been able to conduct a more thorough search of 
available state records and if groundwater monitoring data were 
available for all units. We recognize there will probably continue to 
be some gaps in practices and controls and are concerned at the 
possibility that these will go unaddressed. We also believe the time 
frame for improvement of current practices is likely to be longer in 
the absence of federal regulations.

D. What Is the Basis for Today's Decisions?

    Based on our collection and analysis of information reflecting the 
criteria in section 8002(n) of RCRA that EPA must consider in making 
today's regulatory determination, materials developed in preparing the 
RTC and supportive background materials, existing state and federal 
regulations and programs that affect the management of coal combustion 
wastes, and comments received from the public on the findings we 
presented in the RTC, we have concluded the following:
1. Beneficial Uses
    To the extent coal combustion wastes are used for beneficial 
purposes, we believe they should continue to remain exempt from being 
regulated as hazardous wastes under RCRA. Beneficial purposes include 
waste stabilization, beneficial construction applications (e.g., 
cement, concrete, brick and concrete products, road bed, structural 
fill, blasting grit, wall board, insulation, roofing materials), 
agricultural applications (e.g., as a substitute for lime) and other 
applications (absorbents, filter media, paints, plastics and metals 
manufacture, snow and ice control, waste stabilization). For the 
reasons presented in section 3 below, we are separately addressing the 
use of coal combustion wastes to fill surface or underground mines.
    For beneficial uses other than minefilling, we have reached this 
decision because: (a) We have not identified any beneficial uses that 
are likely to present significant risks to human health or the 
environment; and (b) no documented cases of damage to human health or 
the environment have been identified. Additionally, we do not want to 
place any unnecessary barriers on the beneficial use of coal combustion 
wastes so that they can be used in applications that conserve natural 
resources and reduce disposal costs.
    Disposal can be burdensome and fails to take advantage of 
beneficial characteristics of fossil fuel combustion wastes. About one-
quarter of the coal combustion wastes now generated are diverted to 
beneficial uses. Currently, the major beneficial uses of coal 
combustion wastes include: Construction (including building products, 
road base and sub-base, blasting grit and roofing materials) accounting 
for approximately 21%; sludge and waste stabilization and acid 
neutralization accounting for approximately 3%; and agricultural use 
accounting for 0.1%. Based on our conclusion that these beneficial uses 
of coal combustion wastes are not likely to pose significant risks to 
human health and the environment, we support increases in these 
beneficial uses of coal combustion wastes.
    Off-site uses in construction, including wallboard, present low 
risk due to the coal combustion wastes being bound or encapsulated in 
the construction materials or because there is low potential for 
exposure. Use in waste and sludge stabilization and in acid 
neutralization are either regulated (under RCRA for hazardous waste 
stabilization or when placed in

[[Page 32230]]

municipal solid waste landfills, or under the Clean Water Act in the 
case of municipal sewage sludge or wastewater neutralization), or 
appear to present low risk due to low exposure potential. While in the 
RTC, we expressed concern over risks presented by agricultural use, we 
now believe our previous analysis assumed unrealistically high-end 
conditions, and that the risk, which we now believe to be on the order 
of 10-6, does not warrant national regulation of coal 
combustion wastes that are used in agricultural applications.
    In the RTC, 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. 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.
2. Disposal in Landfills and Surface Impoundments
    In this section, we discuss available information regarding the 
potential risks to human health and the environment from the disposal 
of coal combustion wastes into landfills and impoundments. In sum, our 
conclusion is these wastes can pose significant risks when mismanaged 
and, while significant improvements are being made in waste management 
practices due to increasing state oversight, gaps in the current 
regulatory regime remain.
    We have determined that the establishment of national regulations 
is warranted for coal combustion wastes when they are disposed in 
landfills and surface impoundments, because: (a) The composition of 
these wastes has the potential to present danger to human health and 
the environment under some circumstances and ``potential'' damage cases 
identified by EPA and commenters, while not definitively demonstrating 
damage from coal combustion wastes, lend support to our conclusion that 
these wastes have the potential to pose such danger; (b) we have 
identified eleven cases of proven damage to human health and the 
environment by improper management of these wastes when land disposed; 
(c) while industry management practices have improved measurably in 
recent years, there is sufficient evidence these wastes are currently 
being managed in a significant number of landfills and surface 
impoundments without proper controls in place, particularly in the area 
of groundwater monitoring; and (d) while there have been substantive 
improvements in state regulatory programs, we have also identified 
significant gaps either in states' regulatory authorities or in their 
exercise of existing authorities. Moreover, we believe that the costs 
of complying with regulations that specifically address these problems, 
while large in absolute terms, are only a small percentage of industry 
revenues.
    When we considered a tailored subtitle C regulatory approach, we 
estimated the potential costs of regulation of coal combustion wastes 
(including the utility coal combustion wastes addressed in the 1993 
Part 1 determination) to be $1 billion per year. While large in 
absolute terms, we estimate that these costs are less than 0.4 percent 
of industry sales. Our preliminary estimate of impact on profitability 
is a function of facility size, among other factors. For the larger 
facilities, we estimate that reported pre-tax profit margins of about 
13 percent may be reduced to about 11 percent. For smaller facilities, 
margins may be reduced from about nine percent to about seven percent.
    We identified that the constituents of concern in these wastes are 
metals, particularly hazardous metals. We further identified that 
leachate from various large volume wastes generated at coal combustion 
facilities infrequently exceed the hazardous waste toxicity 
characteristic, for one or more of the following metals: arsenic, 
cadmium, chromium, lead, and mercury. Additionally, when we compared 
waste leachate concentrations for hazardous metals to their 
corresponding MCLs (or potential MCLs in the case of arsenic), we found 
that there was a potential for risk as a result of arsenic leaching 
from these wastes. The criteria we examined included the existing 
arsenic MCL, a lower health based number presented in the RTC, and two 
assumed values in between. We examined this range of values because, as 
explained earlier in this notice, EPA is in the process of revising the 
current MCL for arsenic to a lower value as a result of a detailed 
study of arsenic in drinking water and we wanted to assess the likely 
range of values that would be under consideration by EPA. Once we have 
completed a review of our groundwater model and made necessary changes, 
we will reevaluate the potential risks from metals in coal combustion 
wastes and compare any projected groundwater contamination to the MCLs 
that exist at that time.
    We also identified situations where the improper management of mill 
rejects, a low volume and uniquely associated waste, with high volume 
coal combustion wastes has the potential to cause releases of higher 
quantities of hazardous metals. When these wastes are improperly 
managed, the mill rejects can create an acidic environment which 
enhances leachability and can lead to the release of hazardous metals 
in high concentrations from the co-managed wastes to ground water or 
surface waters. Thus, our analysis of the characteristics of coal 
combustion wastes leads us to conclude that these wastes have the 
potential to pose risk to human health and the environment. We also 
plan to address such waste management practices in our subsequent 
rulemaking.
    Additionally, we identified 11 proven damage cases that documented 
disposal of coal combustion wastes in unlined landfills or surface 
impoundments that involved exceedences of primary MCLs or other health-
based standards in ground water or drinking water wells. Three of the 
proven damage cases were on the EPA Superfund National Priorities List. 
Although these damage cases indicate that coal combustion wastes can 
present risks to human health and the environment, they also show the 
effectiveness of states' responses when damages were identified. All of 
the sites were at older, unlined units, with disposal occurring prior 
to 1993. None of these cases involved actual human exposure. Given the 
large number of facilities that do not now conduct groundwater 
monitoring, we have a concern that additional cases of damage may be 
undetected.
    As detailed in the RTC and explained earlier in this notice, we 
identified that the states and affected industry have made considerable 
progress in recent years toward more effective management of coal 
combustion wastes. We also identified that the ability for most states 
to impose specific regulatory controls for coal combustion wastes has 
increased almost three-fold over the past 15 years. Forty-three states 
can now impose a liner requirements at landfills whereas 15 years ago, 
11 had the same authority. In addition to regulatory permits, the 
majority of states now have authority to require siting controls, 
liners, leachate collection, groundwater monitoring, closure controls, 
and other controls and requirements for surface impoundments and 
landfills.
    Nonetheless, we have concluded that there are still gaps in the 
actual application of these controls and

[[Page 32231]]

requirements, particularly for surface impoundments. While most states 
now have the appropriate authorities and regulations to require liners 
and groundwater monitoring that would reduce or minimize the risks that 
we have identified, we have also identified numerous situations where 
these controls are not being applied. For example, only 26 percent of 
utility surface impoundments and 57 percent of utility landfills have 
liner systems in place. We have insufficient information to determine 
whether the use of these controls is significantly different for non-
utility disposal units, due to a small sample size.
    While many of these unlined units may be subject to grandfathering 
provisions that allow them to continue to operate without being lined, 
or may not need to be lined due to site-specific conditions, we are 
especially concerned that a substantial number of units do not employ 
groundwater monitoring to ensure that if significant releases occur 
from these unlined units, they will be detected and controlled. In 
1995, groundwater was monitored at only 38 percent of utility surface 
impoundments. While monitoring is more frequent at landfills, there are 
still many units at which releases of hazardous metals could go 
undetected. For example, of the approximately 300 utility landfills, 45 
newer landfills (15%) do not monitor ground water. We are concerned 
that undetected releases could cause exceedences of drinking water or 
other health-based standards that may threaten public health or 
groundwater and surface water resources. Thus, we conclude that 
national regulations would lead to substantial improvements in the 
management of coal combustion wastes.
3. Minefilling
    We have determined that the establishment of national regulations 
is warranted for coal combustion wastes when they are placed in surface 
or underground mines because: (a) We wind that these wastes when 
minefilled have the potential to present a danger to human health and 
the environment, (b) minefilling of these wastes has been an expanding 
practice and there are few states that currently operate comprehensive 
programs that specifically address the unique circumstances of 
minefilling, making it more likely that any damage to human health or 
the environment would go unnoticed or unaddressed, and (c) we believe 
that the cost of complying with regulations that address these 
potential dangers may not have a substantial impact on this practice 
because minefilling continues to grow in those few states that already 
have comprehensive programs.
    We recognize that at this time, we cannot quantify the nature of 
damage that may be occurring or may occur in the future as a result of 
using coal combustion wastes as minefill. It is often impossible to 
determine if existing groundwater quality has been impacted by previous 
mining operations or as a result of releases of hazardous constituents 
from the coal combustion wastes used in minefilling applications. We 
have not as yet identified proven damage cases resulting from the use 
of coal combustion wastes for minefilling.
    We also acknowledge that when the complexities related to site-
specific geology, hydrology, waste chemistry and interactions with the 
surrounding matrix, and other relevant factors are properly taken into 
account, coal combustion wastes used as minefill can provide 
significant benefits. However, when not done properly, minefilling has 
the potential to contaminate ground water to levels that could damage 
human health and the environment. Based on materials submitted during 
the public comment period, coal combustion wastes used as minefill can 
lead to increases in hazardous metals released into ground water if the 
acidity within the mine overwhelms the capacity of the coal combustion 
wastes to neutralize the acidic conditions. This is due to the 
increased leaching of hazardous metals from the wastes. The potential 
for this to occur is further supported by data showing that management 
of coal combustion wastes in the presence of acid-generating pyritic 
wastes has caused metals to leach from the combustion wastes at much 
higher levels than are predicted by leach test data for coal combustion 
wastes when strongly acidic conditions are not present. Such strongly 
acidic conditions often exist at mining sites.
    Although we have identified no damage cases involving minefilling, 
we are also aware of situations where coal combustion wastes are being 
placed in direct contact with ground water in both surface and 
underground mines. We concluded in our recent study of cement kiln dust 
management practices that placement of cement kiln dust in direct 
contact with ground water led to a substantially greater release of 
hazardous metals than we predicted would occur when the waste was 
placed above the water table. For this reason, we find that there is a 
potential for increased releases of hazardous metals as a result of 
placing coal combustion wastes in direct contact with groundwater. 
Also, there are damage cases associated with coal combustion wastes in 
landfills. The Agency believes it is reasonable to be concerned when 
similar quantities of coal combustion wastes are placed in mines, which 
often are not engineered disposal units and in some cases involve 
direct placement of wastes into direct contact with ground water.
    We are concerned that government oversight is necessary to ensure 
that minefilling is done appropriately to protect human health and the 
environment, particularly since minefilling is a recent, but rapidly 
expanding use of coal combustion wastes. Government oversight has not 
yet ``caught up'' with the practice consistently across the country. 
There are some states that have programs that specifically address 
minefilling practices. We are likely to find that their programs or 
certain elements of their programs could serve as the basis for a 
comprehensive, flexible set of national management standards that 
ensure protection of human health and the environment. We also believe 
that these state programs will provide valuable experience in 
coordinating with SMCRA program requirements. However, at this time, 
few of the programs are comprehensive. Commenters pointed out, and we 
agree, there are significant gaps in other states. We believe that 
additional requirements for long-term groundwater monitoring, and 
controls on wastes placed directly into groundwater might be prudent.

E. What Approach Will EPA Take in Developing National Regulations?

    We will not promulgate any regulations for beneficial uses other 
than minefilling. We do not wish to place any unnecessary barriers on 
the beneficial use of fossil fuel combustion wastes so that they can be 
used in applications that conserve natural resources and reduce 
disposal costs.
    Once we concluded there is a need for some form of national 
regulation of coal combustion wastes disposed in landfills and surface 
impoundments and used as minefill, we considered two approaches. One 
approach would involve promulgating subtitle D regulations, pursuant to 
sections 1008 and 4004(a) of RCRA, that would contain criteria defining 
landfills and impoundments that would constitute ``sanitary 
landfills.'' Any facility that failed to meet the standards would 
constitute an open dump, which is prohibited by section 4005(a) of 
RCRA. Such standards would set a consistent baseline for protective 
management throughout the country. We would also work with the 
Department of Interior,

[[Page 32232]]

Office of Surface Mining to evaluate whether equivalent protectiveness 
for minefilling could be afforded by relying on revision of existing 
SMCRA regulations or by relying on a combination of RCRA and SMCRA 
authorities.
    The second approach was to promulgate regulations pursuant to 
Subtitle C of RCRA, that would have been similar to our recent proposed 
regulation of cement kiln dust. Following this approach, EPA would 
develop national management standards based on the Subtitle D open dump 
criteria as discussed above, as well as a set of tailored Subtitle C 
requirements promulgated pursuant to RCRA section 3004(x). If the 
wastes were properly managed in accordance with the subtitle D-like 
standards, they would not be classified as hazardous wastes. When they 
were not properly managed, they would become listed hazardous wastes 
subject to tailored subtitle C standards. This scheme would be 
effective in each state authorized for the hazardous waste program when 
that state modified its hazardous waste program to incorporate the 
listing.
    Under this approach, after states have adopted the contingent 
listing, facilities that have egregious or repeated violations of the 
management standards would be moved into the subtitle C program 
(subject to the tailored RCRA 3004 (x) requirements, rather than to the 
full set of subtitle C requirements). Thus, EPA would have authority to 
enforce the management standards.
    The decision whether to establish regulations under subtitle C or D 
of RCRA for disposal of coal combustion wastes in landfills and surface 
impoundments and when minefilled was a difficult one. EPA believes 
that, in this case, either approach would ensure adequate protection of 
public health and the environment. Either subtitle C or D provides EPA 
with the authority to prescribe protective standards for the management 
of these wastes. Moreover, as described above, the standards that EPA 
would adopt under either regime, because of the flexibility provided by 
section 3004 (x), would be substantively the same. Also, under either 
approach, a facility that fails to comply with the standards is in 
violation of RCRA--in the case of subtitle C, the facility would be in 
violation of the tailored standards promulgated under section 3004(x). 
In the case of subtitle D, the facility would be in violation of the 
prohibition in section 4005(a) of RCRA against ``open dumping.'' The 
prohibition against open dumping is, however, enforceable only by 
private citizens and states, not EPA. Management standards established 
under the authority of subtitle C (including tailored section 3004(x) 
standards) are also enforceable by EPA. It appears that more than 40 
states already have sufficient authority to implement most, if not all 
of the national standards we contemplate would be appropriate for 
surface impoundments and landfills. One difference between the two 
regimes may be that states could cite revised subtitle D standards as a 
basis for exercising their existing authorities more vigorously, 
potentially promoting swifter adoption of appropriate controls for 
surface impoundments and landfills. In addition, subtitle D standards 
would be applicable and enforceable by citizens as soon as the federal 
rule becomes effective. subtitle C standards in contrast, would not 
apply until incorporated into state subtitle C programs. For 
minefilling, we would also explore SMCRA as a possible mechanism to 
speed implementation, even if we relied on subtitle D to establish 
protective standards, because minefilling operations already are 
subject to SMCRA permitting authority.
    Taking into account the common and distinct features of these 
alternative approaches, EPA believes at this time, based on the current 
record, that subtitle D regulations are the more appropriate mechanism 
for a number of reasons. In view of the very substantial progress that 
states have made in regulating disposal of fossil fuel combustion 
wastes in surface impoundments and landfills in recent years, as well 
as the active role that this industry has played recently in 
facilitating responsible waste disposal practices, EPA believes that 
subtitle D controls will provide sufficient clarity and incentive for 
states to close the remaining gaps in coverage, and for facilities to 
ensure that their wastes are managed properly.
    For minefilling, although we have considerable concern about 
certain current practices (e.g., placement directly into groundwater), 
we have not yet identified a case where placement of coal wastes can be 
determined to have actually caused increased damage to ground water. In 
addition, there is a federal regulatory program--SMCRA--expressly 
designed to address environmental risks associated with coal mines. 
Finally, given that states have been diligent in expanding and 
upgrading programs for surface impoundments and landfills, we believe 
they will be similarly responsive in addressing environmental concerns 
arising from this emerging practice. In short, we arrive at the same 
conclusions, for substantially the same reasons, for this practice as 
we did for landfills and surface impoundments: that subtitle D 
controls, or upgraded SMCRA controls or a combination of the two, 
should provide sufficient clarity and incentive to ensure proper 
handling of this waste when minefilled. Having determined that subtitle 
C regulation is not warranted for all other management practices, EPA 
does not see a basis in the record for carving this one practice out 
for separate regulatory treatment.
    Once these subtitle D regulations are effective, facilities would 
be subject to citizen suits for any violation of the standards. If EPA 
were addressing wastes that had not been addressed by the states (or 
the federal government) in the past, or an industry with wide evidence 
of irresponsible solid waste management practices, EPA may well 
conclude that the additional incentives for improvement and compliance 
provided by the subtitle C scheme--the threat of federal enforcement 
and the stigma associated with improper management of RCRA subtitle C 
waste--were necessary. But the record before us indicates that the 
structure and the sanctions associated with a subtitle D approach (or a 
SMCRA approach if EPA determines it is equivalent) should be 
sufficient.
    We also see a potential downside to pursuing a subtitle C approach. 
Section 8002(n)(8) directs us to consider, among other factors, ``the 
current and potential utilization of such materials.'' Industry 
commenters have indicated that they believe subjecting any coal 
combustion wastes to a subtitle C regime would place a significant 
stigma on these wastes, the most important effect being that it would 
adversely impact beneficial reuse. As we understand it, the concern is 
that, even though beneficially reused waste would not be hazardous 
under the contemplated subtitle C approach, the link to subtitle C 
would nonetheless tend to discourage purchase and re-use of the wastes 
or products made from the wastes. We do not wish to place any 
unnecessary barriers on the beneficial uses of these wastes, because 
they conserve natural resources, reduce disposal costs and reduce the 
total amount of waste destined for disposal. States and industry have 
also expressed concern that regulation under subtitle C could cause a 
halt in the use of coal combustion wastes to reclaim abandoned and 
active mine sites. If this were to occur, it would be unfortunate in 
that when done properly, we recognize this practice can lead to 
substantial environmental benefits. EPA believes the contingent 
management scheme we discussed should diminish

[[Page 32233]]

any stigma that might be associated with the subtitle C link. 
Nonetheless, we acknowledge the possibility that the approach could 
have unintended consequences. We would be particularly concerned about 
any adverse effect on the beneficial re-use market for these wastes 
because more than 23 percent (approximately 28 million tons) of the 
total coal combustion waste generated each year is beneficially reused 
and an additional eight percent (nine million tons) is used for 
minefilling. EPA believes that such reuse when performed properly, is 
by far the environmentally preferable destination for these wastes, 
including when minefilled. Normally, concerns about stigma are not a 
deciding factor in EPA's decisions under RCRA, given the central 
concern under the statute for protection of human health and the 
environment. However, given our conclusion that the subtitle D approach 
here should be fully effective in protecting human health and the 
environment, and given the large and salutary role that beneficial 
reuse plays for this waste, concern over stigma is a factor supporting 
our decision today that subtitle C regulation is unwarranted in light 
of our decision to pursue a subtitle D approach.
    As we proceed with regulation development, we will also take 
enforcement action under RCRA section 7003 when we identify cases of 
imminent and substantial endangerment. We will also use Superfund 
remedial and emergency response authorities under the Comprehensive 
Environmental Response Compensation and Liabilities Act (CERCLA), as 
appropriate, to address damages that result in risk to human health and 
the environment. We will also take into account new information as it 
becomes available. We are awaiting a National Academy of Sciences 
report scheduled to be released in June 2000. This report will present 
a comprehensive review of mercury and recommendations on appropriate 
adverse health effects levels for this constituent. We believe that 
this report will enhance our understanding of the risks due to exposure 
to mercury, and we will review and assess its implications for today's 
decision on fossil fuel combustion wastes. These efforts may result in 
a re-evaluation of the risks posed by managing coal combustion wastes.

3. What Is the Basis for EPA's Regulatory Determination for Oil 
Combustion Wastes?

A. What Is the Agency's Decision Regarding the Regulatory Status of Oil 
Combustion Wastes and Why Did EPA Make This Decision?

    We have determined that it is not appropriate to issue regulations 
under subtitle C of RCRA applicable to oil combustion wastes because: 
(a) We have not identified any beneficial uses that are likely to 
present significant risks to human health or the environment; and (b) 
except for a limited number of unlined surface impoundments, we have 
not identified any significant risks to human health and the 
environment associated with any waste management practices.
    We intend to work with the State of Massachusetts and the owners 
and operators of the remaining two oil combustion facilities that 
currently manage their wastes in unlined surface impoundments to ensure 
that their wastes are managed in a manner that protects human health 
and the environment.

B. What Were EPA's Tentative Decisions as Presented in the Report to 
Congress and Why Did EPA Make That Decision?

    In the Report to Congress, we stated that the only management 
scenario for which we found risks posed by management of oil combustion 
wastes was when oil combustion wastes are managed in unlined surface 
impoundments. The Report to Congress further explained that we were 
considering two approaches to address these identified risks. One 
approach was to regulate using RCRA subtitle C authority. The other 
approach was to encourage voluntary changes so that no oil combustion 
wastes are managed in unlined surface impoundments. This voluntary 
approach is based on recent industry and state regulatory trends to 
line oil combustion waste disposal units and implement groundwater 
monitoring.
    We also tentatively decided that the existing beneficial uses of 
oil combustion wastes should remain exempt from RCRA subtitle C. There 
are few existing beneficial uses of these wastes, which include use in 
concrete products, structural fill, roadbed fill, and vanadium 
recovery. We determined that no significant risks to human health exist 
for the beneficial uses of these wastes. For the case of facilities 
that accept these wastes to recover vanadium from them, we explained 
that if the wastes resulting from the metal recovery processes are 
hazardous, they will be subject to existing hazardous waste 
requirements.
    We found in most cases that OCW, whether managed alone or co-
managed, are rarely characteristically hazardous. Additionally, we 
identified no significant ecological risks posed by land disposal of 
OCW. We identified only one documented damage case involving OCW in 
combination with coal combustion wastes, and it did not affect human 
receptors.
    Although most of the disposed oil combustion wastes are managed in 
lined surface impoundments, we did identify six utility sites where 
wastes are managed in unlined units. We expressed particular concern 
with management of these wastes in unlined settling basins and 
impoundments that are designed and operated to discharge the aqueous 
portion of the wastes to ground water. Our risk analysis indicated 
that, in these situations, three metals--arsenic, nickel, and 
vanadium--may pose potential risk by the groundwater pathway.

C. How Did Commenters React to EPA's Tentative Decisions and What Was 
EPA's Analysis of Their Comments?

    Because we were able to identify so few unlined surface 
impoundments, the only management scenario for which we found risks, 
the primary focus of the comments regarding oil combustion wastes was 
on the six unlined surface impoundments that we identified. In 
addition, there were extensive comments on our modeling and risk 
assessment methodology for the groundwater pathway that are applicable 
to our assessment of risks posed by oil combustion wastes.
1. How Did Commenters React to the Six Unlined Oil Combustion Waste 
Surface Impoundments That We Identified?
    Comments. Industry commenters supported the approach to encourage 
voluntary changes in industry practices on a site-specific basis, and 
explained why they believed hazardous waste regulations are 
unnecessary. The environmental community supported the development of 
hazardous waste regulations.
    EPA's Analysis of Comments. In the RTC, we identified that our only 
concern about oil combustion wastes was based on the potential for 
migration of arsenic, nickel, and vanadium from unlined surface 
impoundments. We requested information on this issue and did not 
receive any additional data and/or information to refute our tentative 
finding stated in the RTC that these

[[Page 32234]]

unlined surface impoundments could pose a significant risk.
    As stated in the RTC, there are only six sites involving two 
companies that have unlined surface impoundments. Four of the sites are 
in Florida and are operated by one company. The company operating the 
four unlined impoundments in Florida is undertaking projects to 
mitigate potential risks posed by their unlined management units. At a 
May 21, 1999 public hearing, the company announced its plans to remove 
all the oil ash and basin material from its unlined impoundments and to 
line or close the units. The company informed us in January 2000 that 
it had completed the lining of all the units. Based on this 
information, we do not believe that these units pose a significant risk 
to human health and the environment.
    The other two sites with unlined impoundments are operated by one 
utility in Massachusetts. Both sites are permitted under Massachusetts' 
ground water discharge permit program and have monitoring wells around 
the unlined basins. Arsenic is monitored for compliance with state 
regulations. Although the company expressed no plans to line their 
impoundments, they are preparing to implement monitoring for nickel and 
vanadium in ground water around the waste management units. We have 
been working with the State and the company to obtain additional 
information to evaluate these two management units. We will continue 
this effort and will work with the company and the State to ensure that 
any necessary measures are taken so that these wastes are managed in a 
manner that protects human health and the environment.
2. How Did Commenters React to the Groundwater Modeling and Risk 
Assessment Analyses Conducted by EPA to Support Its Findings in the 
Report to Congress?
    Comments. Industry and public interest group commenters submitted 
detailed critiques of the ground water model, EPACMTP, that we used for 
our risk analysis. Industry commenters believe that the model will 
overestimate the levels of contaminants that may migrate down-gradient 
from disposed wastes. Environmental groups expressed the opposite 
belief; that is, that the model underestimates down-gradient chemical 
concentrations and, therefore, underestimates the potential risk posed 
by oil combustion wastes.
    EPA's Analysis of the Comments. We are carefully reviewing all of 
the comments on the model and have determined that the process of 
thoroughly investigating all of the comments will take substantially 
more time to complete than is available within the court deadline for 
issuing this regulatory determination. At this time, we are uncertain 
of the overall outcome of our analysis of the issues raised in the 
comments. Accordingly, we have decided not to use the results of our 
ground water pathway risk analysis in support of today's regulatory 
determination on fossil fuel combustion wastes. As explained above, we 
believe that actions have been taken or are under way by specific 
companies and/or the State of Massachusetts to address potential risks 
at the six impoundments that we have been able to identify. Therefore 
we believe that further groundwater analysis is unnecessary at this 
time.
    Meanwhile, we will continue with our analysis of comments on the 
groundwater model and risk analysis. This may involve changing or 
restructuring various aspects of the model, if appropriate. It may also 
include additional analyses to determine whether any changes to the 
model or modeling methodology would materially affect the groundwater 
risk analysis results that were reported in the RTC. If our 
investigations reveal that a reanalysis of groundwater risks is 
appropriate, we will conduct the analysis and reevaluate today's 
decisions as appropriate.
    In addition to our ongoing review of comments on the groundwater 
model, one element of the model--the metals partitioning component 
called ``MINTEQ''--has been proposed for additional peer review. When 
this additional peer review is completed, we will take the findings and 
recommendations into account in any overall decision to re-evaluate 
today's regulatory determination.

D. What Is the Basis for Today's Decisions?

    We have determined that it is not appropriate to establish national 
regulations applicable to oil combustion wastes because: (a) We have 
not identified any beneficial uses that are likely to present 
significant risks to human health or the environment; and (b) except 
for two remaining unlined surface impoundments, we have not identified 
any significant risks to human health and the environment associated 
with any waste management practices. As explained in the previous 
section, we intend to work with the State of Massachusetts and the 
owners and operators of the remaining two oil combustion facilities 
that currently manage their wastes in unlined surface impoundments to 
ensure that any necessary measures are taken so that their wastes are 
managed in a manner that protects human health and the environment. 
Given the limited number of sites at issue and our ability to 
adequately address risks from these waste management units through 
site-specific response measures, we see no need for issuing regulations 
under subtitle C or D of RCRA.

4. What Is the Basis for EPA's Regulatory Determination for Natural 
Gas Combustion Wastes?

A. What Is the Decision Regarding the Regulatory Status of Natural Gas 
Combustion Wastes?

    For the reasons described in the Report to Congress (pages 7-1 to 
7-3), EPA has decided that regulation of natural gas combustion wastes 
as hazardous wastes under RCRA subtitle C or D is not warranted. The 
burning of natural gas generates virtually no solid waste.

B. What Was EPA's Tentative Decision as Presented in the Report to 
Congress?

    The Agency's tentative decision was to retain the subtitle C 
exemption for natural gas combustion because virtually no solid waste 
is generated.

C. How Did Commenters React to EPA's Tentative Decision?

    No commenters on the RTC disagreed with EPA's findings or its 
tentative decision to continue the exemption for natural gas combustion 
wastes.
    Specific comments on this issue supported our tentative decision to 
retain the exemption for natural gas combustion waste. One industry 
association encouraged us to foster the use of natural gas as a 
substitute for other fossil fuels. While some public interest group 
commenters disagreed broadly with our tentative conclusions to retain 
the exemption for fossil fuel combustion wastes, they did not 
specifically address natural gas combustion wastes.

D. What Is the Basis for Today's Decision?

    The burning of natural gas generates virtually no solid waste. We, 
therefore, believe that there is no basis for EPA developing subtitle C 
or D regulations applicable to natural gas combustion wastes.

[[Page 32235]]

5. What Is the History of EPA's Regulatory Determinations for 
Fossil Fuel Combustion Wastes?

A. On What Basis Is EPA Required To Make Regulatory Determinations 
Regarding the Regulatory Status of Fossil Fuel Combustion Wastes?

    Section 3001(b)(3)(C) of the Resource Conservation and Recovery Act 
(RCRA) as amended requires that, after completing a Report to Congress 
mandated by section 8002(n) of RCRA, the EPA Administrator must 
determine whether Subtitle C (hazardous waste) regulation of fossil 
fuel combustion wastes is warranted.

B. What Was EPA's General Approach in Making These Regulatory 
Determinations?

    We began our effort to make our determination of the regulatory 
status of fossil fuel combustion wastes by studying high volume coal 
combustion wastes managed separately from other fossil fuel combustion 
wastes that are generated by electric utilities. In February 1988, EPA 
published the Report to Congress on Wastes from the Combustion of Coal 
by Electric Utility Power Plants. The report addressed four large-
volume coal combustion wastes generated by electric utilities and 
independent power producers when managed alone. The four wastes are fly 
ash, bottom ash, boiler slag, and flue gas desulfurization (FGD) 
wastes. The report did not address co-managed utility coal combustion 
wastes (UCCWs), other fossil fuel wastes generated by utilities, or 
wastes from non-utility boilers burning any type of fossil fuel. 
Because of other priorities at the time, we did not immediately 
complete a determination of the regulatory status of these large-volume 
coal combustion wastes.

C. What Happened When EPA Failed To Issue Its Determination of the 
Regulatory Status of the Large Volume Utility Combustion Wastes in a 
Timely Manner?

    In 1991, a suit was filed against EPA for not completing a 
regulatory determination on fossil fuel combustion wastes (Gearhart v. 
Reilly, Civil No. 91-2345 (D.D.C.)). On June 30, 1992, the Agency 
entered into a Consent Decree that established a schedule for us to 
complete the regulatory determination for all fossil fuel combustion 
wastes in two phases:
     The first phase covers fly ash, bottom ash, boiler slag, 
and flue gas emission control wastes from the combustion of coal by 
electric utilities and independent commercial power producers. These 
are the four large volume wastes that were the subject of the 1988 
Report to Congress described above. We refer to this as the Part 1 
regulatory determination.
     The second phase covers all of the ``remaining'' fossil 
fuel combustion wastes not covered in the Part 1 regulatory 
determination. We refer to this as the Part 2 regulatory determination, 
which is the subject of today's action. Under the current court-order, 
EPA was directed to issue the Part 2 regulatory determination by April 
25, 2000.

D. When Was the Part 1 Regulatory Decision Made and What Were EPA's 
Findings?

    In 1993, EPA issued the Part 1 regulatory determination, in which 
we retained the exemption for Part 1 wastes (see 58 FR 42466; August 9, 
1993). The four Part 1 large-volume utility coal combustion wastes 
(UCCWs) are also addressed in the Part 2 regulatory determination when 
they are co-managed with low-volume fossil fuel combustion wastes not 
covered in the Part 1 determination.

6. Executive Orders and Laws Addressed in Today's Action

A. Executive Order 12866--Determination of Significance

    Under Executive Order 12866, (58 FR 51735, Oct. 4, 1993) we must 
determine whether the regulatory action is ``significant'' and 
therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
     Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
     Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
     Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
     Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles in the 
Executive Order.''
    Under Executive Order 12866, this is a ``significant regulatory 
action.'' Thus, we have submitted this action to OMB for review. 
Changes made in response to OMB suggestions or recommendations are 
documented in the public record.

B. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    Today's action is not subject to the RFA, which generally requires 
an agency to prepare a regulatory flexibility analysis for any rule 
that will have a significant economic impact on a substantial number of 
small entities. The RFA applies only to rules subject to notice-and-
comment rulemaking requirements under the Administrative Procedure Act 
(APA) or any other statute. This action is not subject to notice and 
comment requirements under the APA or any other statute. Today's action 
is being taken pursuant to section 3001(b)(3)(C) of the Resource 
Conservation and Recovery Act. This provision requires EPA to make a 
determination whether to regulate fossil fuel combustion wastes after 
submission of its Report to Congress and public hearings and an 
opportunity for comment. This provision does not require the 
publication of a notice of proposed rulemaking and today's action is 
not a regulation. See American Portland Cement Alliance v. E.P.A., 101 
F.3d 772 (D.C.Cir. 1996).

C. Paperwork Reduction Act Information Collection Requests

    Today's final action contains no information collection 
requirements.

D. Unfunded Mandates Reform Act

    Today's action is not subject to the requirements of sections 202 
and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 
104-4. Title II of UMRA establishes requirements for federal agencies 
to assess the effects of their regulatory actions on state, local, and 
tribal governments and the private sector. Under section 202 of the 
UMRA, EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``federal 
mandates'' that may result in expenditures to state, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year.
    Before we issue a rule for which a written statement is needed, 
section 205 of the UMRA generally requires us to identify and consider 
a reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the rule's objectives. Section 205 doesn't apply when it is 
inconsistent with applicable law. Moreover, section 205 allows us to 
adopt an alternative other than the least costly, most cost-effective, 
or least

[[Page 32236]]

burdensome alternative if the final rule explains why that alternative 
was not adopted. Before we establish any regulatory requirements that 
may significantly affect small governments, including tribal 
governments, we must have developed under section 203 of the UMRA a 
small-government-agency plan. The plan must provide for notifying 
potentially affected small governments, enabling them to have 
meaningful and timely input in the developing EPA regulatory proposals 
with significant federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    Today's final action contains no federal mandates (under the 
regulatory provisions of Title II of the UMRA) for state, local, or 
tribal governments or the private sector. Today's final action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector.
    In addition, we have determined this action contains no federal 
mandate that may result in expenditures of $100 million or more for 
state, local, and tribal governments, in the aggregate, or the private 
sector in any one year.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) requires us to develop an accountable process to ensure 
meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications. 
The executive order defines policies that have federalism implications 
to include regulations that have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government.
    Under section 6 of Executive Order 13132, we may issue a regulation 
that has federalism implications, that imposes substantial direct 
compliance costs, and that isn't required by statute, only if the 
federal government provides funds the direct compliance costs incurred 
by state and local governments, or if EPA consults with state and local 
officials early in the development of the proposed regulation. Also, 
EPA may issue a regulation that has federalism implications and that 
preempts state law, only if we consult with state and local officials 
early in the development of the proposed regulation.
    If EPA complies by consulting, Executive Order 13132 requires us to 
provide OMB, in a separately identified section of the rule's preamble, 
a federalism summary impact statement (FSIS). The FSIS must describe 
the extent of our prior consultation with state and local officials, 
summarizing the nature of their concerns and our position supporting 
the need for the regulation, and state the extent to which the concerns 
of state and local officials have been met. Also, when we transmit a 
draft final rule with federalism implications to OMB for review under 
Executive Order 12866, our federalism official must include a 
certification that EPA has met the requirements of Executive Order 
13132 in a meaningful and timely manner.
    Today's final action does not have federalism implications. It will 
not have a substantial direct affect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This is because no requirements 
are imposed by today's action, and EPA is not otherwise mandating any 
state or local government actions. Thus, the requirements of section 6 
of the Executive Order do not apply to this final action.

F. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may take an action that isn't 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, only if the federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires us to describe in a separately identified section of the 
preamble to the rule the extent of our prior consultation with 
representatives of affected tribal governments, summarizing of the 
nature of their concerns, and state the need for the regulation. Also, 
Executive Order 13084 requires EPA to develop an effective process 
permitting elected officials and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.''
    Today's final action does not significantly or uniquely affect the 
communities of Indian tribal governments. This is because today's 
action by EPA involves no regulations or other requirements that 
significantly or uniquely affect Indian tribal governments. So, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
``economically significant'' as defined under Executive Order 12866, 
and (2) concerns an environmental health or safety risk that EPA has 
reason to believe may have a disproportionate effect on children. If 
the regulatory action meets both criteria, we must evaluate the 
environmental health or safety effects of the planned rule on children 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    Today's final action isn't subject to the Executive Order because 
it is not economically significant as defined in Executive Order 12866, 
and because we have no reason to believe the environmental health or 
safety risks addressed by this action present a disproportionate risk 
to children. Risks were thoroughly evaluated during the course of 
developing today's decision and were determined not to 
disproportionately affect children.

H. National Technology Transfer and Advancement Act of 1995

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public 
Law. No. 104-113, section12(d) (15 U.S.C. 272 note) directs EPA to use 
voluntary-consensus standards in its regulatory activities unless doing 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary-consensus standards are technical standards (such as 
materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by voluntary-
consensus standards bodies. The NTTAA directs us to explain to 
Congress, through OMB, when we decide not to use available and 
applicable voluntary-consensus standards.
    Today's final action involves no technical standards. So, EPA 
didn't consider using any voluntary-consensus standards.

[[Page 32237]]

I. Executive Order 12898: Environmental Justice

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all populations in the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health or environmental 
impacts as a result of EPA's policies, programs, and activities, and 
that all people live in safe and healthful environments. In response to 
Executive Order 12898 and to concerns voiced by many groups outside the 
Agency, EPA's Office of Solid Waste and Emergency Response formed an 
Environmental Justice Task Force to analyze the array of environmental 
justice issues specific to waste programs and to develop an overall 
strategy to identify and address these issues (OSWER Directive No. 
9200.317).

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, does not 
apply because this action is not a rule for purposes of 5 U.S.C. 
804(3). Rather, this action is an order as defined by 5 U.S.C. 551(6).

7. How To Obtain More Information

    Documents related to this regulatory determination, including EPA's 
response to the public comments, are available for inspection in the 
docket. The relevant docket numbers are: F-99-FF2D-FFFFF for the 
regulatory determination, and F-99-FF2P-FFFFF for the RTC. The RCRA 
Docket Information Center (RIC), is located at Crystal Gateway I, First 
Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is open 
from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal 
holidays. To review docket materials, it is recommended that the public 
make an appointment by calling 703-603-9230. The public may copy a 
maximum of 100 pages from any regulatory docket at no charge. 
Additional copies cost $0.15/page. The index and some supporting 
materials are available electronically. See the Supplementary 
Information section for information on accessing them.

List of Subjects in 40 CFR Part 261

    Fossil fuel combustion waste, Coal combustion, Gas combustion, Oil 
combustion, Special wastes, Bevill exemption

    Dated: April 25, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-11138 Filed 5-19-00; 8:45 am]
BILLING CODE 6560-50-U