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