[Federal Register Volume 78, Number 149 (Friday, August 2, 2013)]
[Notices]
[Pages 46940-46947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18706]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-RCRA-2012-0028; FRL-9843-1]
RIN 2050-AE81


Hazardous and Solid Waste Management System: Identification and 
Listing of Special Wastes; Disposal of Coal Combustion Residuals From 
Electric Utilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of data availability (NODA) and request for comment.

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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency) 
invites comment on additional information obtained in conjunction with 
the proposed rule: Hazardous and Solid Waste Management System: 
Identification and Listing of Special Wastes; Disposal of Coal 
Combustion Residuals From Electric Utilities that was published in the 
Federal Register on June 21, 2010. This information is categorized as: 
additional data to supplement the Regulatory Impact Analysis and risk 
assessment, information on large scale fill, and data on the surface 
impoundment structural integrity assessments. EPA is also seeking 
comment on two issues associated with the requirements for coal 
combustion residual management units. The Agency is not reopening any 
other aspect of the proposal or underlying support documents, and will 
consider comments on any issues other than those raised in the NODA to 
be late comments and not part of the rulemaking record.

DATES: Submit comments on or before September 3, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2012-0028, by one of the following methods:
    (1) www.regulations.gov: Follow the online instructions for 
submitting comments.
    (2) Email: Comments may be sent by electronic mail (email) to [email protected], Attention Docket ID No. EPA-HQ-RCRA-2012-0028. In 
contrast to EPA's electronic public docket, EPA's email system is not 
an ``anonymous access'' system. If you send an email comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's email system automatically captures your email address. Email 
addresses that are automatically captured by EPA's email system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    (3) Fax: Comments may be faxed to 202-566-9744. Attention Docket ID 
No. EPA-HQ-RCRA-2012-0028.
    (4) Mail: Send two copies of your comments to Hazardous and Solid 
Waste Management System: Identification and Listing of Special Wastes; 
Disposal of Coal Combustion Residuals From Electric Utilities: Notice 
of Data Availability and Request for Comment, Environmental Protection 
Agency, Mailcode: 28221T, 1200 Pennsylvania Ave. NW., Washington,

[[Page 46941]]

DC 20460. Attention Docket ID No. EPA-HQ-RCRA-2012-0028.
    (5) Hand Delivery: Deliver two copies of your comments to the 
Hazardous and Solid Waste Management System: Identification and Listing 
of Special Wastes; Disposal of Coal Combustion Residuals From Electric 
Utilities: Notice of Data Availability and Request for Comment Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 
20460. Attention Docket ID No. EPA-HQ-RCRA-2012-0028. Such deliveries 
are only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2012-0028. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available on-line 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI), or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm. For additional 
instructions on submitting comments, go to the SUPPLEMENTARY 
INFORMATION section of this notice.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Hazardous and Solid Waste 
Management System: Identification and Listing of Special Wastes; 
Disposal of Coal Combustion Residuals From Electric Utilities: Notice 
of Data Availability and Request for Comment Docket, EPA/DC, EPA West, 
Room 3334, 1301 Constitution Ave. NW., Washington, DC. This Docket 
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The Docket telephone number is (202) 566-
0270. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Steve Souders, Office of Resource 
Conservation and Recovery (5304P), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460-0002, 
telephone (703) 308-8431, email address [email protected]. For more 
information on this rulemaking, please visit: www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ccr-rule/index.htm.

SUPPLEMENTARY INFORMATION:

I. How should I submit CBI to the agency?

    Do not submit information that you consider to be CBI 
electronically through www.regulations.gov or by email. Send or deliver 
information identified as CBI only to the following address: RCRA CBI 
Document Control Officer, Office of Resource Conservation and Recovery 
(5305P), U.S. EPA, 1200 Pennsylvania Avenue NW., Washington, DC 20460, 
Attention Docket ID No. EPA-HQ-RCRA-2012-0028. You may claim 
information that you submit to EPA as CBI by marking any part or all of 
that information as CBI (if you submit CBI on disk or CD ROM, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is CBI). 
Information so marked will not be disclosed, except in accordance with 
the procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please contact: 
LaShan Haynes, Office of Resource Conservation and Recovery (5305P), 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460-0002, telephone (703) 605-0516, email address 
[email protected].

II. What is the purpose of this NODA?

    With this NODA, EPA is reopening the comment period on the proposed 
rule: Hazardous and Solid Waste Management System: Identification and 
Listing of Special Wastes; Disposal of Coal Combustion Residuals From 
Electric Utilities (75 FR 35127, June 21, 2010), herein referred to as 
the ``proposed rule'' for two limited purposes. The first is to obtain 
public comment on additional information that may be relevant to the 
development of a final Coal Combustion Residuals (CCR) rule under the 
Resource Conservation and Recovery Act (RCRA), herein referred to as 
the ``final rule.'' \1\ This includes new information and data we have 
received that could be used in potential updates and enhancements to 
the Regulatory Impact Analysis (RIA) or risk assessment for the final 
rule.\2\ EPA is still in the process of evaluating this information and 
we cannot definitively state we have determined that it is appropriate 
to rely on this information in developing the final rule. In addition, 
it should not be assumed that the specific information identified in 
this NODA is the full sum of the information that will be considered or 
that will influence the Agency's decisions in this rulemaking. However, 
EPA is reopening the comment period only for the limited purpose of 
allowing the public to comment on the validity and propriety

[[Page 46942]]

of using these data and potential analyses in developing the final 
rule; this action will provide the public with a full and complete 
opportunity to comment on the information that EPA has identified to 
date as having the potential to weigh significantly in our decisions. 
If EPA determines that it is appropriate to rely on any of the 
information provided in today's notice to support decisions and/or 
provisions in the final rulemaking, EPA will take the necessary steps 
to ensure the data is of sufficient quality before relying on it in 
deliberations on the final rule.\3\ EPA will use its Information 
Quality Guidelines, as appropriate, to evaluate any information used to 
support a final regulatory decision.\4\ In addition, EPA will also rely 
on the EPA Science Policy Council Assessment Factors Guidance to 
evaluate the quality and relevance of the scientific and technical 
information.\5\
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    \1\ EPA issued a NODA on October 12, 2011 (76 FR 63252) that 
announced and invited comment on other additional information that 
may be relevant to the development of a final rule that was obtained 
by EPA after the close of the public comment period on the proposed 
rule.
    \2\ The cited risk assessment, ``Draft: Human and Ecological 
Risk Assessment of Coal Combustion Wastes,'' April 2010 (EPA-HQ-
RCRA-2009-0640-0002), and RIA, ``Regulatory Impact Analysis for 
EPA's Proposed RCRA Regulation Of Coal Combustion Residues (CCR) 
Generated by the Electric Utility Industry, ``April 2010 (EPA-HQ-
RCRA-2009-0640-0003) are available in the docket for the 2010 
proposed rule.
    \3\ The Agency's ``Guidelines for Ensuring and Maximizing the 
Quality, Objectivity, Utility, and Integrity of Information 
Disseminated by the Environmental Protection Agency ``contains EPA's 
policy and procedural guidance for ensuring and maximizing the 
quality of information that the Agency disseminates. They were 
developed in response to guidelines issued by the Office of 
Management and Budget (OMB) under Section 515(a) of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658). The EPA Information Quality Guidelines are 
available at: http://www.epa.gov/QUALITY/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf.
    \4\ Specific evaluation criteria are outlined in the Agency's 
document titled, ``Data Quality Assessment: A Reviewer's Guide 
``(EPA/240/B-06/002, February 2006) provided at http://www.epa.gov/quality/qs-docs/g9r-final.pdf.
    \5\ Available at: http://www.epa.gov/stpc/pdfs/assess2.pdf.
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    The second purpose of this NODA is to solicit additional comment on 
two aspects of the proposed rule. The proposed technical requirements 
generated a significant number of technical comments and have presented 
some very complex issues. Based on the issues raised in public 
comments, EPA has identified two areas that warrant additional public 
comment; EPA is seeking additional comments on (1) the feasibility of 
complying with the Agency's proposed time frames for closing surface 
impoundments in the subtitle D option; and (2) how the technical 
requirements (including the design and operating requirements for new 
CCR landfills) relate to CCR overfill units that have been constructed 
on top of closed surface impoundments or landfills, which commenters 
have claimed is a common (and expanding) practice.
    EPA is not reopening the comment period on any other issue 
associated with its original proposal. This is not an opportunity for 
the public to supplement their comments on the proposed rule, or to 
raise issues that could have been raised during the original comment 
period. The only issues on which the Agency is soliciting comment 
relate to the information in the docket supporting this NODA, EPA-HQ-
RCRA-2012-0028, or the Web sites listed below, the potential revisions 
to the risk assessment and RIA based on this information, or the other 
two issues specifically described in this NODA. Comments submitted on 
any issues other than those specifically identified in this NODA will 
be considered ``late comments'' on the proposed rule. EPA will not 
respond to such comments, and they will not be considered part of the 
rulemaking record.

III. Where can the additional information identified in this NODA be 
found?

    All the information EPA is noticing today in this NODA can be found 
in the docket, EPA-HQ-RCRA-2012-0028 or is available from Web sites at 
internet addresses provided in this notice. There are three data sets 
for which hardcopy versions of the material cited is not included in 
the docket and we are instead providing internet addresses. These are: 
(1) The Structural Integrity Surface Impoundment Assessments at: http://www.epa.gov/wastes/nonhaz/industrial.special/fossil/surveys2/indexhtm; 
(2) the Questionnaire for the Steam Electric Power Generating Effluent 
Guidelines at: http://water.epa.gov/scitech/wastetech/guide/steam-electric/questionnaire.cfm; and (3) the National Hydrography Dataset 
Plus (NHDPlus) at: http://www.horizon-systems.com/nhdplus/.

IV. What data to supplement the RIA and risk assessment are being 
noticed?

    On June 7, 2013, EPA published a proposed rule revising technology-
based effluent limitation guidelines and standards for the steam 
electric power generating point source category (ELG rule) (78 FR 
34432). A principle source of information used in developing this 
proposal was the industry responses to a survey titled, The 
Questionnaire for the Steam Electric Power Generating Effluent 
Guidelines, distributed by EPA under the authority of section 308 of 
the Clean Water Act, 33 U.S.C. 1318.\6\ EPA designed the industry 
survey to obtain technical information related to wastewater generation 
and treatment, and economic information such as costs of wastewater 
treatment technologies and financial characteristics of potentially 
affected companies. In June 2010, EPA mailed the survey to 733 plants. 
In general, plants were required to provide responses for the 2009 
calendar year. (The reader is referred to the preamble discussion in 
the proposed ELG rule for additional information on the questionnaire 
and the data collected (78 FR 34442-34445.)) The Agency is considering 
whether to rely on all of the responding data in developing a revised 
RIA, risk assessment or other analyses. A Microsoft Access version of 
the data, a PDF of the original questions and mailing list, and an 
EXCEL version of the data element dictionary are all available at: 
http://water.epa.gov/scitech/wastetech/guide/steam-electric/questionnaire.cfm; this is the same information on which EPA solicited 
public comment in the proposed ELG rule. EPA also notes that the Agency 
will work to harmonize the use of these data, to the extent possible, 
in the development of this final rule.
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    \6\ U.S. EPA. Environmental Protection Agency: 2010 
Questionnaire for the Steam Electric Power Generating Effluent 
Guidelines. OMB Control No. 2040-0281. Approved May 20, 2010.
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V. What additional data for the risk assessment are being noticed?

    EPA is soliciting comment on whether to consider the following 
additional information sources in developing a revised risk assessment 
in support of the final rule. The risk assessment prepared in support 
of the proposed rule titled, ``Draft: Human and Ecological Risk 
Assessment of Coal Combustion Wastes,'' April 2010 (``2010 Risk 
Assessment'') is available in the docket to the proposed rule (EPA-HQ-
RCRA-2009-0640-0002). Although EPA is singling out the information and 
data specifically listed below and in the docket for further public 
comment, it should not be assumed that this information/data is the 
full sum of the information/data that will be considered or that will 
influence the Agency's decisions in this rulemaking.
    1. EPA is considering updating the surface water flow rates. The 
average annual flow rates provided in the National Hydrography Dataset 
Plus (NHDPlus) may be used to supplement or replace the Reach File 
Version 1.0 (RF1) low flow (7Q10) data previously used to model surface 
water flow rates. These data can be found at: http://www.horizon-systems.com/nhdplus/.
    2. Data from a report by the U.S. Census Bureau for the U.S. Fish 
and Wildlife Service titled, ``2006 National Survey of Fishing, 
Hunting, and Wildlife-Associated Recreation.'' This report 
characterizes the percentage of residents in urban and rural areas of 
each state who are fresh water fishers.

[[Page 46943]]

EPA is considering applying the U.S. Fish and Wildlife Service 
statistics for urban and rural areas from each state to current census 
population counts to estimate the total number of residents near each 
coal plant who are anglers.\7\ This document is available at: http://wsfrprograms.fws.gov/Subpages/NationalSurvey/nat_survey2006_final.pdf, as well as in the docket supporting this NODA.
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    \7\ The U.S. Census Bureau has defined urban and rural. EPA 
notes that according to this definition, ``urban fringe generally 
consists of contiguous territory having a density of at least 1,000 
persons per square mile.'' Thus, a population of 3,142 persons 
within a 1-mile radius means a population density of 1,000 per 
square mile.
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    3. The EPA is considering using a mathematical procedure to model 
the interception of groundwater plumes by surface water bodies that may 
exist between a waste management unit and a down-gradient drinking 
water well. EPA is requesting comment on the validity of this 
procedure. Theoretical details of the procedure are provided in the 
document titled, ``Plume Interception by a Stream and Contaminant 
Concentrations at Receptor Wells Located Downgradient from the Stream'' 
that can be found in the docket supporting this NODA.
    4. On October 12, 2011, EPA issued a NODA (76 FR 26086) seeking 
comments, among other things, on the CCR leaching data (Leaching 
Environmental Assessment Framework, or LEAF data) developed by EPA's 
Office of Research and Development and Vanderbilt University). Based on 
the comments received and additional review, the EPA is considering 
updating the LEAF data; new pre-processing algorithms were developed to 
make the best use of the LEAF data by EPA's Composite Model with 
Transformation Products (EPACMTP). EPA is providing further 
documentation related to the changes in the document titled, 
''Algorithms to Pre-Process Leaching Data to Generate Source Terms for 
Modeling Landfill Leachate Migration in Ground Water'' that can be 
found in the docket supporting this NODA.
    5. EPA obtained additional fish bio-concentration factors (BCFs) 
and other chemical-specific data from literature for hazardous 
constituents. The chemical-specific data to be used as inputs for 
modeling are available in a file titled, ``Chemical Specific Data'' 
that can be found in the docket supporting this NODA. EPA is only 
requesting comment on whether the revised BCFs should be considered in 
the final risk assessment in support of the final rule.
    6. EPA created a list linking the location of each coal plant with 
the closest receiving water body for evaluating surface water risks as 
well as human health risks. Each plant is identified by the 
corresponding Energy Information Administration (EIA) ID and each 
receiving water body is identified by the corresponding Common ID 
(COMID). These data are provided in the EXCEL spreadsheet titled, 
``List of Coal Plant and Closest Receiving Water'' that can be found in 
the docket supporting this NODA. We are soliciting comment regarding 
corrections or amendments to these data.

VI. What information on large scale fill is being noticed?

    In the proposed rule, the Agency proposed to define the placement 
of CCRs in sand and gravel pits, quarries, and other large scale fill 
operations as land disposal, rather than beneficial use. 75 FR 35163. 
The preamble to the proposal discussed situations where large 
quantities of CCRs had been used as encapsulated general fill and the 
Agency stated that it considered that practice to be waste management. 
The preamble further stated that, ``The amount of material placed can 
significantly impact whether placement of unencapsulated CCRs cause 
environmental risks. There are great differences between the amount of 
material disposed of in a landfill and in a beneficial use setting. For 
example, a stabilized fly ash base course for roadway construction may 
be on the order of 6 to 12 inches thick under the road where it is 
used--these features differ considerably from the landfill and sand and 
gravel pit situations where hundreds of thousands to millions of tons 
of CCRs are disposed of and for which damage cases are documented.'' Id 
at 35164. However, EPA did not propose a definition of the activities 
that would constitute large scale fill, nor propose a size criterion, 
but ``solicit[ed] comments on appropriate criteria to distinguish 
between legitimate beneficial uses and inappropriate operations.'' Id 
at 35163.
    In response, many commenters stated that EPA should have developed 
a size criterion to define large scale fill operations. The State of 
North Carolina suggested 5,000 cubic yards as a size criterion, but did 
not provide a basis for this. Other commenters did not suggest a 
specific definition or offer specific size limitations. In developing 
the CCR final rule and in defining large scale fill operations, EPA is 
considering whether to adopt an approach that relies on developing 
criteria or whether to develop a definition, either through guidance or 
an interpretive rule in the preamble, or through regulatory text that 
identifies the types of activities or factors the Agency will consider 
.
    In the proposed rule, the Agency recognized that the amount of 
waste alone did not result in situations that replicated landfills. For 
example: ``The amount of material placed can significantly impact 
whether placement of unencapsulated CCRs causes environmental risks. 
There are great differences between the amount of material disposed of 
in a landfill and in beneficial use settings. For example, a stabilized 
fly ash base course for roadway construction may be on the order of 6 
to 12 inches thick under the road where it is used--these features 
differ considerably from the landfill and sand and gravel pit 
situations where hundreds of thousands to millions of tons of CCRs are 
disposed of and for which damage cases are documented.'' Id at 35164. 
Thus, EPA may exclude roadway construction from the definition of ``CCR 
Landfill'' or set a minimum depth reflective of CCR landfills and the 
damage cases associated with fill operations.
    Whatever approach is chosen, EPA is aware of three different types 
of data sets that could provide information relevant to developing 
appropriate criteria or to otherwise defining what constitutes large 
scale fill. EPA is soliciting comment on the adequacy of these data, 
and whether EPA should consider them for the purpose of creating 
criteria or a definition. Specifically:
     The first data set involves the size of the structural 
fills that have resulted in damage cases.\8\ Size information on

[[Page 46944]]

all seven sites was not in the docket to the proposed rule, but has 
been added to the docket for this NODA (See the document titled, 
``Structural Fills That Have Resulted in Damage Cases'').
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    \8\ The Agency provided definitions for proven damage cases and 
potential damage cases in the 2010 proposal (see 75 FR 35131.) As 
stated in the proposal, damage cases can be either a potential 
damage case or a proven damage case.
    Potential damage case means those cases with documented MCL 
exceedances that were measured in ground water beneath or close to 
the waste source. In these cases, while the association with CCRs 
has been established, the documented exceedances 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.
    Proven damage case means those cases with (i) documented 
exceedances of primary maximum contaminant levels (MCLs) or other 
health-based standards measured in ground water at sufficient 
distance from the waste management unit to indicate that hazardous 
constituents have migrated to the extent that they could cause human 
health concerns, and/or (ii) where a scientific study provides 
documented evidence of another type of damage to human health or the 
environment (e.g., ecological damage), and/or (iii) where there has 
been an administrative ruling or court decision with an explicit 
finding of specific damage to human health or the environment. In 
cases of co-management of CCRs with other industrial waste types, 
CCRs must be clearly implicated in the reported damage.
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     The second possible source of information that could be 
used is the distribution of landfill sizes, derived either from EPA's 
Office of Water's questionnaire--which, as mentioned earlier, is part 
of the docket supporting this NODA--or from the landfill size 
distribution used in the proposed rule. The landfill size data set may 
provide relevant information that could be used to develop size 
criteria for distinguishing between large scale fill operations and 
sham disposal, as discussed in the proposed rule. See 75 FR 35155
     The third potential data set is the document titled, 
``North Carolina Documented Cases of Structural Fills Using Coal Ash as 
of January 2010''.This data set does not discuss damage cases but 
presents a size distribution for large scale fills that have been 
constructed in North Carolina.
    These data have been placed in the docket supporting this NODA.

VII. What data on surface impoundment structural integrity assessments 
are being noticed?

    On October 13, 2010, EPA described and solicited comment (See 76 FR 
63252) on information that had been obtained from EPA's effort to 
assess the structural integrity of surface impoundments. At that time, 
EPA had completed the assessments and the final reports for 53 units. 
Since that time, EPA has continued this assessment effort and has 
posted on its Web site (see: http://www.epa.gov/wastes/nonhaz/industrial.special/fossil/surveys2/indexhtm) draft and final reports 
for a total of 522 units and 209 facilities.
    The Agency solicits comments on all this information, including the 
assessments that were noticed on October 13, 2010, as to the extent to 
which both the CCR surface impoundment survey responses and assessment 
materials on the structural integrity of these impoundments should be 
factored into EPA's final rule.

IX. Request for Additional Public Comment on Two Technical Issues 
Related to Surface Impoundment/Landfill Closure and Requirements for 
Overfills.

    EPA received comments in two general areas relating to its proposed 
rule for CCR management units: (1) The feasibility of complying with 
the Agency's proposed time frames for closing surface impoundments in 
the subtitle D option; and (2) how these requirements (as well as the 
construction and operation requirements) relate to the construction of 
new CCR overfill units on top of closed surface impoundments or 
landfills. These specific requirements present some of the most complex 
and difficult technical issues and are re-opening the comment period 
for these two issues only. EPA notes however that comments submitted on 
any other aspect of the proposed technical requirements for CCR 
management units other than those specifically discussed below will be 
considered late comments that are not part of the rulemaking record, 
and the Agency will not respond to them.

A. Closure Time Frames

    Under the subtitle D option, EPA proposed to establish time frames 
for closing waste disposal units. EPA proposed that closure activities 
must commence no later than 30 days following the known final receipt 
of CCRs. The proposed rule also provided that the 30-day deadline to 
commence closure activities could be extended to one year after the 
most recent receipt of CCRs if the CCR waste disposal unit had 
remaining capacity and there was a reasonable likelihood that the CCR 
waste disposal unit will receive additional CCRs. In addition, EPA 
proposed that an owner and operator complete closure activities within 
180 days following the start of closure activities. Thus, the maximum 
amount of time a facility would have to initiate and complete closure 
of a disposal unit was seven months.
    EPA received numerous comments from both states and individual 
electric utility facilities raising concerns that these time frames 
would essentially be ``impossible to meet'' for surface impoundments 
located in certain geographic and climatic conditions, as well as for 
the larger units. With respect to the time frames to complete closure, 
commenters raised concerns that dewatering of very large surface 
impoundments (e.g., 100 acres or more) can take several years under 
certain climatic and weather conditions. Concerns were also raised that 
the time frames for both initiating and completing closure failed to 
account for the time needed to obtain any state permits or regulatory 
approvals that might be needed to conduct certain closure activities, 
and that these time frames were incompatible in light of normal 
operating practices. EPA's original proposal was modeled on the closure 
requirements applicable to municipal solid waste landfills and the 
interim status requirements for hazardous waste surface impoundments. 
As discussed in more detail below, the commenters have convinced EPA 
that it did not adequately account for the complexities inherent in 
electric generating facility operations, and the different 
characteristics of CCR surface impoundments in its original proposal. 
Consequently, EPA is evaluating several different options to address 
these concerns.
1. Time Frame for Initiating Closure
    To address concerns about ``inactive'' or abandoned units, EPA 
proposed to require that facilities initiate closure within 30 days of 
either (1) the ``known final receipt'' of waste or (2) no later than 
one year after the most recent receipt of waste (i.e., if the unit has 
not received waste for a year, the owner or operator must initiate 
closure). EPA is aware of several examples of routine and legitimate 
circumstances in which disposal units would not receive CCRs for longer 
than one year, even though the facility intends to continue to use the 
unit. Although EPA is singling out the information specifically listed 
below and in the docket for further public comment, it should not be 
assumed that this information is the full sum of the information 
received in comments that will be considered or that will influence the 
Agency's decisions in this rulemaking. Specifically:
     The surface impoundment structural integrity assessment 
report titled ``Assessment of Dam Safety Coal Combustion Surface 
Impoundments (Task 3) Final Report, Allegheny Energy, R. Paul Smith 
Station, Williamsport, Maryland'' provides an example of a power plant 
that alternates the use of surface impoundments in order to make the 
most of existing capacity on-site (i.e., CCRs are removed and re-used/
disposed elsewhere). This facility alternates between two surface 
impoundments, only one of which is operational at a time. Once one 
impoundment has reached capacity, the facility dewaters the unit, and 
begins to send CCRs to the second impoundment. Once the unit is 
dewatered, the CCRs are excavated and disposed in an adjacent landfill. 
The time to fill these units has varied over the years as demand has 
fluctuated, but a typical time to fill a unit with CCRs is two years, 
perhaps longer, during which the other unit is ``idle,'' in that it 
does not

[[Page 46945]]

``receive CCRs,'' but it remains operational.
     The surface impoundment structural integrity assessment 
report titled ``Coal Combustion Waste Impoundment Task 3--Dam 
Assessment Report, John E. Amos Plant (Site 26), Bottom Ash Dam, 
American Electric Power, St. Albans, West Virginia'' provides another 
example of a facility that alternates between two surface impoundments, 
only one of which is operational at a time. According to this report, 
the active and inactive status alters between the two impoundments 
every one or two years.
     The information request response from Xcel Energy titled 
``Response to Request for Information Relating to Surface Impoundments 
Under 104(e) of the Comprehensive Environmental Response, Compensation, 
and Liability Act, 42 U.S.C. 9604(e)'' contains another example of a 
facility that alternates use of two surface impoundments, only one of 
these impoundments is typically active and used at any one time. Xcel 
Energy's Valmont Station in Boulder, Colorado practice is to clean out 
and switch the active pond every year. This report, and the two reports 
discussed above, can be found in the docket supporting this NODA.
    Similarly, some electric generating units may be placed into long-
term reserve status or temporarily idled in response to low demand. As 
a result, associated surface impoundments may not be used for extended 
periods, but need to be available when the electric generating units 
are restarted. In addition, facilities that use other fuels than coal 
may not use the associated coal ash disposal units for extended 
periods.
    EPA agrees that there can be legitimate operational reasons for 
facilities to maintain waste disposal units even though there may be 
extended periods where CCRs are not placed in the unit. Consequently, 
EPA is soliciting comment on possible approaches to address these 
issues, including all aspects of the alternatives discussed below.
    One approach under consideration could be to establish a rebuttable 
presumption that if the unit has not received waste within a particular 
time frame, the disposal unit would be considered inactive and unit 
closure must begin within a specified time. For example, the rule could 
establish a presumption that facilities must initiate closure within 18 
months to two years from the last receipt of waste, unless the facility 
could document certain findings. These findings could include, but are 
not limited to, any of the following situations: (1) A written 
demonstration by the owner or operator documenting that a CCR waste 
disposal unit is dedicated to a temporarily idled electric generating 
unit and that there is a reasonable likelihood that CCRs will be 
disposed in the waste disposal unit after the electric generating unit 
resumes operation; (2) a written demonstration by the owner or operator 
documenting that a CCR waste disposal unit is dedicated to an electric 
generating unit designed to burn coal and another fuel(s) (e.g., 
natural gas) and the reason that the waste disposal unit has not 
received CCRs within a particular time frame is that a non-coal fuel is 
being burned by the electric generating unit and showing that there is 
a reasonable likelihood that CCRs will be disposed in the waste 
disposal unit after the electric generating unit resumes burning coal; 
or (3) a written demonstration by the owner or operator documenting 
that normal plant operations include periods during which the CCR waste 
disposal unit does not receive CCRs and that there is a reasonable 
likelihood that CCR waste disposal operations will resume in the 
future. The facility would need to substantiate those findings, which 
would include the reason why the owner or operator believes ``that 
there is a reasonable likelihood that CCRs will be disposed in the 
waste disposal unit'' (which would also need to be certified by an 
independent registered professional engineer and/or the waste disposal 
unit owner or operator), and would be required to notify the state 
regulatory authority that those findings have been placed in the 
operating record and publicly posted to the internet.
    The approach discussed above does not include a time limit on how 
long a CCR waste disposal unit could remain idle from the perspective 
of the unit receiving CCRs. That is, an owner or operator could 
maintain a waste disposal unit for many years with the expectation of 
one day resuming CCR disposal operations in the unit. EPA does have 
concerns about extending the deadline to initiate closure activities 
using such an approach because, due to the self-implementing nature of 
the regulations, it is possible that the owner or operator could 
unilaterally decide to extend closure activities longer than necessary 
or that would be protective.
    Another approach that EPA is considering is to put a limit on how 
long an owner or operator can maintain a waste disposal unit without 
placing CCRs in the unit. For example, the rule could establish the 
rebuttable presumption approach discussed above, but also include a 
limit on how much time can pass without CCRs being placed in the waste 
disposal unit before the CCR waste disposal unit must begin closure 
(e.g., five years). EPA solicits comment on the feasibility and 
propriety of this approach. Commenters who believe the flexibility 
provided by the rebuttable presumption approach is appropriate are 
encouraged to include examples documenting the need for such 
flexibility.
2. Time Frames to Complete Closure
    Information that the Agency has received or independently collected 
since the close of the comment period confirms the commenters' claims 
that the time frames originally proposed to complete closure of surface 
impoundments will be practicably infeasible for the largest 
impoundments.\9\ EPA acknowledges that it will need to establish 
different deadlines, at least for these larger units. However, any 
ultimate time frame that EPA provides that would be practicable for the 
largest units will be far too long to justify the time frames for 
closure of smaller impoundments. EPA is examining available closure-
related information for CCR surface impoundments to determine whether 
there are consistent time frames or other factors that EPA could adopt 
as part of the regulations. Although EPA is singling out the 
information specifically listed below and in the docket for further 
public comment, it should not be assumed that this information is the 
full sum of the information received in comments that will be 
considered or that will influence the Agency's decisions in this 
rulemaking. Specifically:
---------------------------------------------------------------------------

    \9\ The information available to the Agency indicates that this 
issue is unique to surface impoundments. EPA is therefore not 
reopening for public comment the closure time frames for CCR 
landfills.
---------------------------------------------------------------------------

     The surface impoundment structural integrity assessment 
report titled ``Coal Combustion Waste Impoundment Dam Assessment 
Report, Martins Creek Steam Electric Station, PPL Generation, Bangor, 
Pennsylvania'' contains closure-related information for the facility's 
Ash Basin No. 4. This 37-acre surface impoundment no longer receives 
CCRs and is being formally closed. The closure plan indicates that the 
dewatering and cap installation process will take approximately three 
years to complete.
     The proposed plan to close the two surface impoundments at 
Santee Cooper's Grainger Generating Station as provided in a letter 
(with attachments) from Santee Cooper to the South

[[Page 46946]]

Carolina Department of Health and Environmental Control dated March 18, 
2013. Under the proposed option, it is estimated that closure of the 
impoundments (one unit has a surface area of 42 acres and the second 
unit has a surface area of 39 acres) could be accomplished during a 
three-year period.
     A paper presented at the 2013 World of Coal Ash Conference 
titled ``Challenges of Closing Large Fly Ash Ponds,'' which discusses 
the engineering, regulatory and constructability challenges of closing 
a 300 acre surface impoundment over a projected four-year period. This 
report, and the two reports discussed above, can be found in the docket 
supporting this NODA.
    EPA is also considering a variety of approaches for revising its 
overall regulatory structure. One approach could be to establish 
categories of time frames that distinguish between impoundments based 
on a variety of factors. At a minimum, this could include the size of 
the impoundment, as well as the final volume of material (both CCR and 
liquid) contained in the unit at the time of closure. For example, some 
commenters proposed a tiered approach for landfills and surface 
impoundments that grouped units into four categories: (1) Units smaller 
than 20 acres, would be subject to a one year deadline to complete 
closure; (2) units between 20 and 50 acres would be subject to a two 
year deadline to complete closure; (3) units between 50 and 75 acres 
would be subject to a three year deadline to complete closure; and (4) 
units greater than 75 acres would be subject to a ``site specific'' 
deadline to complete closure.\10\
---------------------------------------------------------------------------

    \10\ This tiered approach is presented in docket items EPA-HQ-
RCRA-2009-0640-6424 and EPA-HQ-RCRA-2009-0640-6832.
---------------------------------------------------------------------------

    While the commenters' tiered approach has appeal, the precise basis 
for the commenters' distinctions and the time frames is not clear; at a 
minimum, factors other than size, such as climate, geography, and waste 
disposal unit configuration would also appear to be relevant, and any 
time frames should account for those other factors. EPA solicits 
comment on ways to establish categories of time frames that take into 
consideration the various factors affecting the amount of time needed 
to properly close a surface impoundment, and encourages commenters who 
are interested in supporting such a tiered approach, to provide the 
rationale and data to support any suggested categories of time frames. 
In addition, the Agency believes that the concept of having a ``site-
specific'' deadline may not be practicable, unless EPA were to 
establish a ``variance'' process as part of the rule. Under such a 
variance approach, the rule would establish a specific deadline (e.g., 
closure must be completed no later than five years from the date 
closure activities are initiated), but would also allow facilities to 
petition EPA for a site-specific rule to establish an alternate 
deadline. This is because, as discussed at length in the proposal, 
under any subtitle D approach, EPA cannot rely on the existence of a 
state permitting authority to implement the RCRA subtitle D 
requirements (since EPA cannot require that states regulate, including 
issuing permits under RCRA 4004(a)). (75 FR 35193-94)
    Another approach, similar to the approach EPA is considering with 
respect to the time frames for initiating closure, would be to 
establish time frames with a rebuttable presumption. For example, the 
rule could establish a presumption that facilities must complete 
closure within a specified time frame, such as, five years, unless the 
facility could document certain findings, such as the owner or 
operating providing a written demonstration that closure activities 
(e.g., eliminating free liquids from the surface impoundment, 
stabilizing the remaining CCR wastes to support the final cover, 
constructing the final cover system) are not feasible to complete 
within the specified time frame. The facility would need to document 
those findings (which, consistent with the proposal, would also need to 
be certified by an independent registered professional engineer), and 
would be required to notify the state regulatory authority that the 
plan has been placed in the operating record and publicly posted to the 
Internet.
    EPA is soliciting comments on whether any of these potential 
approaches, a combination of them, or other approaches would 
effectively address the practical concerns raised by the commenters, in 
a way that could assure that the closure of CCR waste disposal units 
will protect human health and the environment. EPA is primarily 
interested in comments that include data or other documentation (e.g., 
specific closure plans).

B. New CCR Overfills Constructed Over Closed CCR Surface Impoundments 
or Landfills

    One issue presented in public comments addressed how the Agency 
intends to regulate CCR landfills, also known as overfills, that are 
constructed over a closed CCR surface impoundment or landfill. An 
overfill is additional CCR disposal capacity located partially or 
entirely above a surface impoundment or landfill previously used for 
the disposal or storage of CCRs. Overfills can be defined as new, self-
contained units that are distinct and separate from the unit upon which 
it is located.
    EPA is aware of only one state, North Carolina, that has specific 
regulatory requirements for the design and construction of overfills. 
In 2007, North Carolina enacted design requirements for CCR landfills, 
i.e., overfills constructed partially or entirely within areas that 
have been formerly used for the storage or disposal of CCRs. These 
management units are required to be constructed to ensure that the 
upper unit (i.e., overfill) does not leach into the lower unit (i.e., 
closed surface impoundment or landfill). By reducing infiltration, 
contaminants will not spread through to the lower unit and to the 
groundwater. North Carolina requires the installation of a double-liner 
leak detection system consisting of three components. The upper two 
components consist of two separate flexible membrane liners with leak 
detection between the two liners. The third component consists of a 
minimum of two feet of soil underneath the bottom of the liners, with a 
maximum permeability of 1 x10-7 centimeters per second. Additionally, 
North Carolina requires the development of a response plan that 
describes the circumstances under which corrective action measure is to 
be taken at the overfill in the event of the detection of leaks in the 
leak detection system.
    In developing the proposed rule, EPA was not aware that CCRs were 
managed in this fashion (i.e., in overfills), and so we did not either 
evaluate this specific management scenario or propose technical 
requirements specifically tailored to this type of management unit. 
Under the proposed rule, these types of units would need to comply with 
both the requirements applicable to the closure of surface impoundments 
or landfills, and with all of the technical requirements applicable to 
new landfills. For example, this would include the location and design 
requirements applicable to new landfills (e.g., composite liners) as 
well as the operating requirements (e.g., groundwater monitoring).
    Since the close of the comment period, the Agency has learned that 
the practice of constructing overfills for the disposal of CCRs is 
conducted with some regularity. EPA has also obtained additional 
technical information, which is included in the docket supporting 
today's NODA on how these units are typically designed and operated, 
which

[[Page 46947]]

has raised questions as to whether these types of units would be 
effectively regulated under our proposed technical requirements.\11\
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    \11\ Seymour, J. and Houlihan, M. F. (2011) Advances in Design 
of Landfills Over CCR Ponds and CCR Landfills, Proceedings of the e 
2011 World of Coal Ash (WOCA) Conference--May 9-12, 2011,Denver, 
Colorado, http://www.flyash.info/.
    Schmitt, N. and Cole, M. (2013) Use of Bottom Ash in the 
Reinforced Zone of a Mechanically Stabilized Earth Wall for the 
Vertical Expansion of a Sluiced CCR Pond at the Trimble County 
Generating Station. Proceedings of the 2013 World of Coal Ash (WOCA) 
Conference--April 22-25, 2013, Lexington, KY http://www.flyash.info/.
    Houlihan, M.,Advances in Design of Landfills Over CCB Ponds and 
Landfills. 16 January 2013.
    North Carolina statute allowing landfills on top of surface 
impoundments. http://law.onecle.com/north-carolina/130a-public-health/130a-295.4.html
    Docket item EPA-HQ-RCRA-2009-0640-6877. Comment to the proposed 
rule from The Detroit Edison Company.
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    All of the information collected to date leads the Agency to 
believe that technical issues unique to these units may warrant some 
modifications to the technical standards. At a minimum, this could 
include changes to the technical requirements to clarify how they apply 
to overfills (e.g., revisions to the definition of a ``new unit;'' 
clarifications as to how the liner requirements for the new landfill 
relate to the capping requirements for closed units). This could, 
however, also include substantive modifications to the technical 
standards and the development of a tailored set of requirements 
specific to this kind of disposal unit. Specifically, this could 
include substantive modifications to the location restrictions, design 
criteria, inspection requirements, groundwater monitoring, and closure.
    To aid in the development of final requirements, EPA is soliciting 
data or information that directly addresses existing engineering 
guidelines or practices, as well as any regulatory requirements (other 
than North Carolina's) governing the siting, design, construction and 
long-term protectiveness of these units. In addition, the Agency is 
specifically requesting information or data that would allow EPA to 
address the following set of questions as they relate to CCR overfill 
units.
     Are the location restrictions included in the proposed 
rule adequate to ensure protection of human health and the environment 
or should they be adjusted? For example, should the Agency consider 
prohibiting the construction of such overfills in certain locations or 
situations, such as over surface impoundments and landfills that were 
not closed in accordance with the closure criteria in the June 2010 
proposed rule?
     Should the Agency allow for a CCR overfill unit to be 
constructed over a partially closed surface impoundment or landfill? If 
so, would the proposed technical requirements for new units (e.g., 
composite liners) be adequately protective? Are the ground water 
monitoring requirements that were proposed in the CCR proposal adequate 
or are there situations where they could they be inadequate?
     Are there situations where implementing the proposed 
ground water monitoring requirements would create the potential to 
damage the integrity of the closed surface impoundment or landfill? In 
situations where an overfill is constructed partially over a closed 
landfill or surface impoundment, the proposed rule would require the 
placement of the groundwater monitoring wells at the waste boundary 
(i.e., at the boundary of the overfill). This placement, within the 
parameter of the closed unit, could possibly jeopardize the integrity 
of the closed unit (e.g., cause damage to the liner). Would this 
problem be adequately resolved by allowing the groundwater monitoring 
wells installed to monitor the ``closed'' landfill or surface 
impoundment to operate in lieu of separate groundwater monitoring wells 
at the overfill waste boundary? Should ground water monitoring be 
required for a longer period, since contamination could be released 
from the closed surface impoundment or landfill, as well as the 
overfill unit?
     Should the Agency allow for a CCR overfill unit to not 
meet the liner and leachate collection requirements if the closed 
surface impoundment or landfill was equipped and continued to maintain 
a composite liner and leachate collection system as well as groundwater 
monitoring? Conversely, should the Agency require an overfill to have a 
double-liner leak detection system installed and forego groundwater 
monitoring until such time as a leak of the primary liner is detected?
     Should overfills be subject to the same inspection 
requirements that EPA originally proposed for surface impoundments (see 
proposed section 257.83, requiring weekly inspections by qualified 
personnel and annual inspections by an independent registered 
professional engineer). Would this adequately address any issues 
relating to the long-term structural integrity of these units and 
whether their inherent stability will be maintained through the active 
life of the unit as well as during post closure care. As an 
alternative, would it suffice to only require annual inspections of the 
overfill? Would it matter if the inspection requirement was paired with 
a revised certification in the locations restrictions section of the 
rule? How long should any inspection requirement continue under post-
closure care?

    Dated: July 26, 2013.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 2013-18706 Filed 8-1-13; 8:45 am]
BILLING CODE 6560-50-P