[Federal Register Volume 80, Number 74 (Friday, April 17, 2015)]
[Rules and Regulations]
[Pages 21302-21501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00257]
[[Page 21301]]
Vol. 80
Friday,
No. 74
April 17, 2015
Part II
Environmental Protection Agency
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40 CFR Parts 257 and 261
Hazardous and Solid Waste Management System; Disposal of Coal
Combustion Residuals From Electric Utilities; Final Rule
Federal Register / Vol. 80 , No. 74 / Friday, April 17, 2015 / Rules
and Regulations
[[Page 21302]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 257 and 261
[EPA-HQ-RCRA-2009-0640; FRL-9919-44-OSWER]
RIN-2050-AE81
Hazardous and Solid Waste Management System; Disposal of Coal
Combustion Residuals From Electric Utilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
publishing a final rule to regulate the disposal of coal combustion
residuals (CCR) as solid waste under subtitle D of the Resource
Conservation and Recovery Act (RCRA). The available information
demonstrates that the risks posed to human health and the environment
by certain CCR management units warrant regulatory controls. EPA is
finalizing national minimum criteria for existing and new CCR landfills
and existing and new CCR surface impoundments and all lateral
expansions consisting of location restrictions, design and operating
criteria, groundwater monitoring and corrective action, closure
requirements and post closure care, and recordkeeping, notification,
and internet posting requirements. The rule requires any existing
unlined CCR surface impoundment that is contaminating groundwater above
a regulated constituent's groundwater protection standard to stop
receiving CCR and either retrofit or close, except in limited
circumstances. It also requires the closure of any CCR landfill or CCR
surface impoundment that cannot meet the applicable performance
criteria for location restrictions or structural integrity. Finally,
those CCR surface impoundments that do not receive CCR after the
effective date of the rule, but still contain water and CCR will be
subject to all applicable regulatory requirements, unless the owner or
operator of the facility dewaters and installs a final cover system on
these inactive units no later than three years from publication of the
rule. EPA is deferring its final decision on the Bevill Regulatory
Determination because of regulatory and technical uncertainties that
cannot be resolved at this time.
DATES: This final rule is effective on October 14, 2015.
ADDRESSES: EPA has established three dockets for this regulatory action
under Docket ID No. EPA-HQ-RCRA-2009-0640, Docket ID No. EPA-HQ-RCRA-
2011-0392, and Docket ID No. EPA-HQ-RCRA-2012-0028. All documents in
these dockets are available at http://www.regulations.gov. Although
listed in the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the OSWER Docket, EPA/DC, WJC
West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC
20460. 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, and the telephone number
for the OSWER Docket is 202-566-0276.
FOR FURTHER INFORMATION CONTACT: For questions on technical issues:
Alexander Livnat, Office of Resource Conservation and Recovery,
Environmental Protection Agency, 5304P; telephone number: (703) 308-
7251; fax number: (703) 605-0595; email address:
[email protected], or Steve Souders, Office of Resource
Conservation and Recovery, Environmental Protection Agency, 5304P;
telephone number: (703) 308-8431; fax number: (703) 605-0595; email
address: [email protected]. For questions on the regulatory impact
analysis: Richard Benware, Office of Resource Conservation and
Recovery, Environmental Protection Agency, 5305P; telephone number:
(703) 308-0436; fax number: (703) 308-7904; email address:
[email protected]. For questions on the risk assessment: Jason
Mills, Office of Resource Conservation and Recovery, Environmental
Protection Agency, 5305P; telephone number: (703) 305-9091; fax number:
(703) 308-7904; email address: [email protected].
For more information on this rulemaking please visit http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/index.htm.
SUPPLEMENTARY INFORMATION:
A. Does this action apply to me?
This rule applies to all coal combustion residuals (CCR) generated
by electric utilities and independent power producers that fall within
the North American Industry Classification System (NAICS) code 221112
and may affect the following entities: Electric utility facilities and
independent power producers that fall under the NAICS code 221112. The
industry sector(s) identified above may not be exhaustive; other types
of entities not listed could also be affected. The Agency's aim is to
provide a guide for readers regarding those entities that potentially
could be affected by this action. To determine whether your facility,
company, business, organization, etc., is affected by this action, you
should refer to the applicability criteria discussed in Unit VI.A. of
this document If you have any questions regarding the applicability of
this action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. What actions are not addressed in this rule?
This rule does not address the placement of CCR in coal mines. The
U.S. Department of Interior (DOI) and, as necessary, EPA will address
the management of CCR in minefills in separate regulatory action(s),
consistent with the approach recommended by the National Academy of
Sciences, recognizing the expertise of DOI's Office of Surface Mining
Reclamation and Enforcement in this area. See Unit VI of this document
for further details. This rule does not regulate practices that meet
the definition of a beneficial use of CCR. Beneficial uses that occur
after the effective date of the rule need to determine if they comply
with the criteria contained in the definition of ``beneficial use of
CCRs.'' This rule does not affect past beneficial uses (i.e., uses
completed before the effective date of the rule.) See Unit VI of this
document for further details on proposed clarifications of beneficial
use. Furthermore, CCR from non-utility boilers burning coal are also
not addressed in this final rule. EPA will decide on an appropriate
action for these wastes through a separate rulemaking effort. See Unit
IV of this document for further details. Finally, this rule does not
apply to municipal solid waste landfills (MSWLFs) that receive CCR for
disposal or use as daily cover.
C. The Contents of This Preamble Are Listed in the Following Outline
I. Executive Summary
II. Statutory Authority
III. Background
IV. Bevill Regulatory Determination Relating to CCR From Electric
Utilities and Independent Power Producers
V. Development of the Final Rule--RCRA Subtitle D Regulatory
Approach
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VI. Development of the Final Rule--Technical Requirements
VII. Summary of Major Differences Between the Proposed and Final
Rules
VIII. Implementation Timeframes for Minimum National Criteria and
Coordination With Steam Electric ELG Rule
IX. Implementation of the Minimum Federal Criteria and State Solid
Waste Management Plans
X. Risk Assessment
XI. Summary of Damage Cases
XII. Summary of Regulatory Impact Analysis
XIII. Uniquely Associated Wastes
XIV. Statutory and Executive Order Reviews
I. Executive Summary
This rule establishes nationally applicable minimum criteria for
the safe disposal of coal combustion residuals in landfills and surface
impoundments. This section summarizes these criteria. Detailed
discussions of the criteria and the Agency's rationale for finalizing
these requirements are provided in Unit VI of this document.
A. What are coal combustion residuals?
Coal combustion residuals (CCR) are generated from the combustion
of coal, including solid fuels classified as anthracite, bituminous,
subbituminous, and lignite, for the purpose of generating steam for the
purpose of powering a generator to produce electricity or electricity
and other thermal energy by electric utilities and independent power
producers. CCR includes fly ash, bottom ash, boiler slag, and flue gas
desulfurization materials. A description of the types of CCR can be
found in the proposed rule (see 75 FR 35137).
CCR is one of the largest industrial waste streams generated in the
U.S. In 2012, over 470 coal-fired electric utilities burned over 800
million tons of coal, generating approximately 110 million tons of CCR
in 47 states and Puerto Rico. CCR may be generated wet or dry; however,
this composition may change after generation. Some CCR is dewatered
while other CCR is mixed with water to facilitate transport (i.e.,
sluiced). CCR can be sent off-site for disposal or beneficial use or
disposed in on-site landfills or surface impoundments. In 2012,
approximately 40 percent of the CCR generated was beneficially used,
with the remaining 60 percent disposed in surface impoundments and
landfills. Of that 60 percent, approximately 80 percent was disposed in
on-site disposal units. CCR disposal currently occurs at over 310
active on-site landfills, averaging over 120 acres in size with an
average depth of over 40 feet, and at over 735 active on-site surface
impoundments, averaging over 50 acres in size with an average depth of
20 feet.
B. Background
The Agency first solicited comments on the regulation of CCR in a
proposed rule published in the Federal Register on June 21, 2010. This
proposal, under the Resource Conservation and Recovery Act (RCRA),
addressed the risks from disposal of CCR generated from the combustion
of coal at electric utilities and from independent power producers. Two
regulatory options were proposed. Under the first option, EPA proposed
to list CCR as special waste subject to regulation under subtitle C of
RCRA, when destined for disposal in landfills or surface impoundments.
Under this option, CCR would require ``cradle-to-grave'' management and
would be subject to requirements for, among other things, composite
liners, groundwater monitoring, structural stability requirements,
corrective action, closure/post closure care and financial assurance.
States would be required to adopt the rule before it went into effect
and a permitting program would be established with direct federal
oversight. The subtitle C option, as proposed, would also effectively
result in the closure of all CCR surface impoundments.
Under the second option, EPA proposed to regulate the disposal of
CCR under subtitle D of RCRA by issuing minimum national criteria.
Similar to the subtitle C option, this option would require composite
liners, groundwater monitoring, structural stability requirements,
corrective action, and closure/post closure care. However, consistent
with the available statutory authority under subtitle D, EPA proposed
this option to be a self-implementing rule with no direct federal
oversight, with an effective date six months after publication in the
Federal Register. This option required all unlined surface impoundments
to either retrofit to a composite liner or close within five years.
After reviewing all the comments and additional data received, EPA
is promulgating this final rule to regulate the disposal of CCR as
solid waste under subtitle D of RCRA. This rule addresses the risks
from structural failures of CCR surface impoundments, groundwater
contamination from the improper management of CCR in landfills and
surface impoundments and fugitive dust emissions. The rule has also
been designed to provide electric utilities and independent power
producers generating CCR with a practical approach for implementation
of the requirements and has established implementation timelines that
take into account, among other things, other upcoming regulatory
actions affecting electric utilities and site specific practical
realities. In order to ease implementation of the regulatory
requirements for CCR units with state programs, EPA is also providing
the opportunity for states to secure approval of its CCR program
through the State Solid Waste Management Plan (``SWMP''). EPA strongly
recommends that states take advantage of this process by revising their
SWMPs to address the issuance of the revised federal requirements in
this final rule, and to submit revisions of these plans to EPA for
review. EPA would then review and approve the revised SWMPs provided
they demonstrate that the minimum federal requirements in this final
rule will be met. In this way, EPA's approval of a revised SWMP signals
EPA's opinion that the state SWMP meets the minimum federal criteria.
C. What types of CCR units are covered by this rule?
The final rule applies to owners and operators of new and existing
landfills and new and existing surface impoundments, including all
lateral expansions of landfills and surface impoundments that dispose
or otherwise engage in solid waste management of CCR generated from the
combustion of coal at electric utilities and independent power
producers. The requirements of the rule also apply to CCR units located
off-site of the electric utilities' or independent power producers'
facilities that receive CCR for disposal. In addition, the rule applies
to certain inactive CCR surface impoundments (i.e., units not receiving
CCR after the effective date of the rule) at active electric utilities'
or independent power producers' facilities, regardless of the fuel
currently used at the facility to produce electricity (e.g. coal,
natural gas, oil), if the CCR unit still contains CCR and liquids.
The requirements do not apply to: (1) CCR landfills that ceased
receiving CCR prior to the effective date of the rule; (2) CCR units at
facilities that have ceased producing electricity (or electricity and
other thermal energy) prior to the effective date of the rule; (3) CCR
generated at facilities that are not part of an electric utility or
independent power producer, such as manufacturing facilities,
universities, and hospitals; (4) fly ash, bottom ash, boiler slag, and
flue gas desulfurization materials, generated primarily from the
combustion of fuels (including other fossil fuels) other than coal, for
the purpose of generating electricity unless the fuel burned
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consists of more than fifty percent coal on a total heat input or mass
input basis, whichever results in the greater mass feed rate of coal;
(5) CCR that is beneficially used; (6) CCR placement at active or
abandoned underground or surface coal mines; or (7) municipal solid
waste landfills (MSWLF) that receive CCR.
D. What minimum national criteria are being established for CCR
landfills and CCR surface impoundments?
This final rule establishes minimum national criteria for CCR
landfills, CCR surface impoundments, and all lateral expansions of CCR
units including location restrictions, liner design criteria,
structural integrity requirements, operating criteria, groundwater
monitoring and corrective action requirements, closure and post-closure
care requirements, and recordkeeping, notification, and internet
posting requirements.
1. Location Restrictions. To ensure there will be no reasonable
probability of adverse effects on health or the environment from the
disposal of CCR in CCR landfills, CCR surface impoundments, and all
lateral expansions of CCR landfills and CCR surface impoundments
(together ``CCR units''), this final rule establishes five location
restrictions. The location criteria include restrictions relating to
placement of CCR above the uppermost aquifer, in wetlands, within fault
areas, in seismic impact zones, and in unstable areas. All of these
location restrictions require the owner or operator of a CCR unit to
demonstrate that they meet the specific criteria. As discussed
elsewhere in this preamble, the five location restrictions apply to all
new CCR landfills, all new and existing CCR surface impoundments, and
all lateral expansions of CCR units; however, existing CCR landfills
are only subject to the location restriction for unstable areas. Units
that do not meet these restrictions can retrofit or make appropriate
engineering demonstrations to meet this criteria. This final rule
requires owner or operators of existing CCR units that cannot make the
required demonstrations to close, while owners or operators of new CCR
units and all lateral expansions who fail to make the required
demonstrations are prohibited from placing CCR in the CCR unit.
2. Liner Design Criteria. The final rule also establishes liner
design criteria to help prevent contaminants in CCR from leaching from
the CCR unit and contaminating groundwater. All new CCR landfills, new
CCR surface impoundments, and lateral expansions of CCR units must be
lined with composite liner, which is a liner system consisting of two
components--a geomembrane and a two-foot layer of compacted soil--
installed in direct and uniform contact with one another. The final
rule allows an owner or operator to construct a new CCR unit with an
alternative composite liner, provided the alternative composite liner
performs no less effectively than the composite liner. In addition, new
landfills are required to operate with a leachate collection and
removal system which is designed to remove excess leachate that may
accumulate on top of the composite (or alternative composite) liner.
Existing CCR landfills are not required to close or retrofit with a
composite (or alternative composite) liner and a leachate collection
and removal system. These existing CCR units can continue to receive
CCR after this rule is in effect; however, the CCR units must meet all
applicable groundwater monitoring and corrective action criteria to
address any groundwater releases promptly. Existing CCR surface
impoundments can also continue to operate as designed. However, if the
existing CCR surface impoundment was not constructed with a composite
(or alternative composite) liner or with at least two feet of compacted
soil with a specified hydraulic conductivity, the rule would require
the unit to retrofit or close if the CCR surface impoundment detects
concentrations of one or more constituents listed in appendix IV at
statistically significant levels above the groundwater protection
standard established by the rule.
3. Structural Integrity Requirements. To help prevent the damages
associated with structural failures of CCR surface impoundments, the
final rule establishes structural integrity criteria for new and
existing surface impoundments (and all lateral expansions) as part of
the design criteria. While the applicability of the structural
integrity requirements to individual CCR surface impoundments vary
depending on factors such as dike heights and the potential for loss of
life, environmental damage and economic loss if there is a dike
failure, the final rule establishes requirements for owner or operators
to conduct a number of structural integrity-related assessments
regularly. These include: (1) Conducting periodic hazard potential
classification assessments to assess the potential adverse incremental
consequences that would occur if there was a failure of the CCR surface
impoundment; (2) conducting periodic structural stability assessments
by a qualified professional engineer to document whether the design,
construction, operation and maintenance is consistent with recognized
and generally accepted good engineering practices; and (3) conducting
periodic safety factor assessments to document whether the CCR unit
achieves minimum factors of safety for slope stability. If a CCR unit
required to conduct a safety factor assessment fails to demonstrate
that the unit achieves the specified factors of safety, the owner or
operator must close the unit. In addition, certain CCR surface
impoundments are required to develop an emergency action plan which
defines the events and circumstances involving the CCR unit that
represent an emergency and identifies the actions that will be taken in
the event of a safety emergency.
4. Operating Criteria. The operating criteria include air criteria
for all CCR units, run-on and run-off controls for CCR landfills,
hydrologic and hydraulic capacity requirements for CCR surface
impoundments, and periodic inspection requirements for all CCR units.
These criteria address the day-to-day operations of CCR units and are
established to prevent health and environmental impacts from CCR units.
The air criteria address the pollution caused by windblown dust from
CCR units, and require owners and operators to minimize CCR from
becoming airborne at the facility. The run-on controls for CCR
landfills minimize the amount of surface water entering the unit that
will help prevent erosion, surface discharges of CCR in solution or
suspension, and will mitigate the generation of landfill leachate,
while run-off controls help prevent erosion, protect downstream surface
water from releases from the unit, and minimize storm water run-off
volume and velocity. CCR surface impoundments are subject to hydrologic
and hydraulic capacity requirements to ensure the unit can safely
handle flood flows, which will help prevent uncontrolled overtopping of
the unit or erosion of the materials used to construct the surface
impoundment. The final rule also requires periodic inspections of CCR
units to identify any appearance of structural weakness or other
conditions that are not consistent with recognized and generally
accepted good engineering standards.
5. Groundwater Monitoring and Corrective Action. The groundwater
monitoring and corrective action criteria require an owner or operator
of a CCR unit to install a system of monitoring wells and specify
procedures for sampling these wells, in addition to methods for
analyzing the groundwater data collected, to detect the presence of
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hazardous constituents (e.g., toxic metals) and other monitoring
parameters (e.g., pH, total dissolved solids) released from the units.
The final rule establishes a groundwater monitoring program consisting
of detection monitoring, assessment monitoring and corrective action.
Once a groundwater monitoring system and groundwater monitoring program
has been established for a CCR unit, the owner or operator must conduct
groundwater monitoring and, if the monitoring demonstrates an
exceedance of a groundwater protection standard for any of the
identified constituents in CCR, must initiate corrective action.
6. Closure and Post-Closure Requirements. The closure and post-
closure care criteria require all CCR units to close in accordance with
specified standards and to monitor and maintain the units for a period
of time after closure, including the groundwater monitoring and
corrective action programs. These criteria are essential to ensuring
the long-term safety of closed CCR units. Closure of a CCR unit must be
completed either by leaving the CCR in place and installing a final
cover system or through removal of the CCR and decontamination of the
CCR unit. The final rule establishes timeframes to initiate and
complete closure activities, and authorize owners or operators to
obtain time extensions due to circumstances beyond the facility's
control. As discussed elsewhere in this preamble, the rule also
establishes alternative closure procedures in situations where an owner
or operator is closing a CCR unit, but has no alternative CCR disposal
capacity or is permanently closing the coal-fired boiler unit in the
foreseeable future. Finally, owners and operators are required to
prepare closure and post-closure care plans describing these
activities.
7. Record Keeping, Notification, and Internet Posting Requirements.
The final rule requires owners or operators of CCR units to record
certain information in the facility's operating record. In addition,
owners and operators are required to provide notification to States
and/or appropriate Tribal authorities when the owner or operator places
information in the operating record, as well as to maintain a publicly
accessible internet site for this information.
8. Severability. EPA intends that the provisions of this rule be
severable. In the event that any individual provision or part of this
rule is invalidated, EPA intends that this would not render the entire
rule invalid, and that any individual provisions that can continue to
operate will be left in place. The following tables provide a summary
of the specific technical requirements applicable to existing and new
CCR landfills, existing and new CCR surface impoundments, and all
lateral expansions of CCR units.
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[GRAPHIC] [TIFF OMITTED] TR17AP15.000
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[GRAPHIC] [TIFF OMITTED] TR17AP15.001
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[GRAPHIC] [TIFF OMITTED] TR17AP15.002
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E. When must owners or operators of CCR landfills and CCR surface
impoundments meet the minimum national criteria?
The rule becomes effective six months after the publication date of
this rule. The final rule establishes timeframes for certain technical
criteria based on the amount of time determined to be necessary to
implement the requirements (e.g., installing the groundwater monitoring
wells and establishing the groundwater monitoring program). In
establishing these timeframes, EPA accounted for other Agency
rulemakings that are anticipated to also affect the owners or operators
of CCR units, namely the Effluent Limitations Guidelines and Standards
for the Steam Electric Power Generating Point Source Category (78 FR
34432; proposed rule issued June 7, 2013) and the Carbon Pollution
Emission Guidelines for Existing Stationary Sources: Electric Utility
Generating Units (79 FR 34830; proposed rule issued June 18, 2014).
Specifically, EPA developed implementation timeframes that would ensure
that owner or operators of CCR units would not be required to make
decisions about those CCR units without first understanding the
implications that such decisions would have for meeting the
requirements of all applicable EPA rules.
F. Deferral of Final Bevill Determination
This rule defers a final Bevill Regulatory Determination with
respect to CCR that is disposed in CCR landfills and CCR surface
impoundments until additional information is available on a number of
key technical and policy questions. This includes information needed to
quantify the risks of CCR disposal, and the potential impacts of recent
Agency regulations on the chemical composition of CCR. The Agency also
needs further information on adequacy of the state programs.
G. Beneficial Use
The final rule retains the Bevill exclusion for CCR that is
beneficially used, and provides a definition of beneficial use to
distinguish between beneficial use and disposal.
H. Implementation
Because the regulations have been promulgated under sections
1008(a), 4004(a), and 4005(a) of RCRA, the rule does not require
permits, does not require states to adopt or implement these
requirements, and EPA cannot enforce these requirements. Instead,
states or citizens can enforce the requirements of this rule under
RCRA's citizen suit authority; the states can also continue to enforce
any state regulation under their independent state enforcement
authority. (For a more detailed discussion of EPA authorities under
RCRA and its relationship to this rule, see 75 FR 35128, June 21,
2010). EPA recognizes the significant role states play in implementing
these requirements and EPA strongly encourages states to revise their
SWMPs to show how these new criteria will be implemented. EPA would
then review and approve the revised plan provided it demonstrates that
the minimum federal requirements in this final rule will be met. In
this way, EPA's approval of a revised plan signals EPA's opinion that
the State's SWMP meets the minimum federal criteria. For a more
detailed discussion on the role of the states in implementing this
rule, please refer to Unit IX of this document.
I. Characterization of Baseline Affected Entities and CCR Management
Practices
This action will affect CCR generated by coal-fired electric
utility plants in the NAICS industry code 221112 (i.e., the ``Fossil
Fuel Electric Power Generation'' industry within the NAICS 22
``Utilities'' sector code). Based on 2012 electricity generation data
published by the Energy Information Administration (EIA), the
Regulatory Impact Analysis (RIA) for this action estimated that a total
of 478 operational coal-fired electric utility plants in this NAICS
code could be affected by this action. These plants are owned by 242
entities consisting of 166 companies, 17 cooperative organizations, 58
state or local governments, and one federal agency. A sub-total of 81
of the 242 owner entities (i.e., 33 percent may be classified as small
businesses, small organizations, or small governments). The 478 coal-
fired electric utility plants operate a total of 1,045 CCR management
units (735 surface impoundments and 310 landfills). These 478 plants
generate 110 million tons of CCR, consisting of 201 plants (42 percent)
disposing in on-site landfills, 169 (35 percent) disposing in on-site
ponds, and 197 (41 percent) disposing in off-site landfills. Because
some plants use more than one CCR management method, these plant counts
exceed 478 total plants. In addition, 293 of the 478 plants supply CCR
for beneficial uses in at least 14 industries. Nineteen of the 293
plants solely supply CCR for beneficial uses. As of 2012, CCR
beneficial uses (i.e., industrial applications) involved about 52
million tons annually.
J. Summary of Estimated Regulatory Costs and Benefits
The EPA estimated future regulatory compliance costs and expected
future human health and environmental protection benefits can be found
in the RIA document which is available from the docket for this action.
The estimated costs and benefits for the CCR rule are incremental to
the baseline (current) practices by the electric utility industry to
manage CCR in accordance with (a) existing state government
environmental regulations and (b) utility company CCR management
methods.
The RIA estimates the cost of the rule over a 100 year period
because of: (1) CCR unit lifespans (40 years to 80 years of age); (2)
groundwater migration (estimated time to peak potential exposures of
CCR through groundwater migration to drinking water wells is 75 years);
and (3) latency periods for onset of illness after exposure to CCR,
which can average 20 years.
The table below summarizes the estimated incremental costs and
benefits of the rule. The RIA estimates costs to comply with the 12
pollution control requirements associated with the rule, as well as
estimated monetized values for 11 expected benefits, and discusses 11
other non-monetized benefits.
EPA Estimated Incremental Costs & Benefits of the CCR Rule
[millions 2013$ over 100-year period of analysis 2015-2114]
------------------------------------------------------------------------
3% Discount 7% Discount
rate rate
------------------------------------------------------------------------
A. Annualized Values
A1. Total Costs..................... $735 $509
A2. Total monetized benefits........ $294 $236
A3. Net Benefits (A2-A1)............ ($441) ($441)
A4. Benefit to Cost Ratio (A3/A1)... 0.40 0.46
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B. Present Value
B1. Total Costs..................... $23,200 $7,260
B2. Total monetized benefits........ $8,710 $3,360
B3. Net Benefits (B2-B1)............ ($14,490) ($3,900)
B4. Benefit to Cost Ratio (B2/B1)... 0.38 0.46
------------------------------------------------------------------------
II. Statutory Authority
These regulations are established under the authority of sections
1006(b), 1008(a), 2002(a), 3001, 4004, and 4005(a) of the Solid Waste
Disposal Act of 1970, as amended by the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6906(b), 6907(a), 6912(a),
6944 and 6945(a).
RCRA section 1006(b) directs EPA to integrate the provisions of
RCRA for purposes of administration and enforcement and to avoid
duplication, to the maximum extent practicable, with the appropriate
provisions of other EPA statutes. Section 1006(b) conditions EPA's
authority to reduce or eliminate RCRA requirements on the Agency's
ability to demonstrate that the integration meets RCRA's protectiveness
mandate (42 U.S.C. 6005(b)(1)). See Chemical Waste Management v. EPA,
976 F.2d 2, 23, 25 (D.C. Cir. 1992).
RCRA section 1008(a) authorizes EPA to publish ``suggested
guidelines for solid waste management.'' 42 U.S.C. 6907(a). RCRA
defines solid waste management as ``the systematic administration of
activities which provide for the collection, source separation,
storage, transportation, transfer, processing, treatment, and disposal
of solid waste.'' 42 U.S.C. 6903(28).
Pursuant to section 1008(a)(3), the guidelines are to include the
minimum criteria to be used by the states to define the solid waste
management practices that constitute the open dumping of solid waste or
hazardous waste and are prohibited as ``open dumping''under section
4005. Only those requirements promulgated under the authority of
section 1008(a)(3) are enforceable under section 7002 of RCRA.
RCRA section 4004 generally requires EPA to promulgate regulations
containing criteria for determining which facilities shall be
classified as sanitary landfills (and therefore not ``open dumps'').
The statute directs that, ``at a minimum, the criteria are to ensure
that units are classified as sanitary landfills only if there is no
reasonable probability of adverse effects on health or the environment
from disposal of solid wastes at such facility.'' 42 U.S.C. 6944(a).
RCRA section 4005(a), entitled ``Closing or upgrading of existing
open dumps'' generally establishes the key implementation and
enforcement provisions applicable to EPA regulations issued under
sections 1008(a) and 4004(a). Specifically, this section prohibits any
solid waste management practices or disposal of solid waste that does
not comply with EPA regulations issued under RCRA section 1008(a) and
4004(a). 42 U.S.C. 6944(a). See also 42 U.S.C. 6903(14) (definition of
``open dump''). This prohibition takes effect ``upon promulgation'' of
any rules issued under section 1008(a)(3) and is enforceable through a
citizen suit brought pursuant to section 7002. As a general matter,
this means that facilities must be in compliance with any EPA rules
issued under this section no later than the effective date of such
rules, or be subject to a citizen suit for ``open dumping'' 42 U.S.C.
6945. RCRA section 4005 also directs that open dumps, i.e., facilities
out of compliance with EPA's criteria, must be ``closed or upgraded.''
Section 7004 lays out specific requirements relating to public
participation in regulatory actions under RCRA. Subsection (b) provides
that ``[p]ublic participation in the . . . implementation, and
enforcement of any regulation under this chapter shall be provided for,
encouraged, and assisted by the Administrator.'' 42 U.S.C. 6974(b).
A. Regulation of Solid Wastes Under RCRA Subtitle D
Solid wastes that are neither a listed nor characteristic hazardous
waste are subject to the requirements of RCRA subtitle D. Subtitle D of
RCRA establishes a framework for federal, state, and local government
cooperation in controlling the management of non-hazardous solid waste.
The federal role is to establish the overall regulatory direction, by
providing minimum nationwide standards that will protect human health
and the environment, and to provide technical assistance to states for
planning and developing their own environmentally sound waste
management practices. The actual planning and any direct implementation
of solid waste programs under RCRA subtitle D, however, remains a state
and local function, and the Act envisions that states will devise
programs to deal with state-specific conditions and needs. EPA has no
role in the planning and direct implementation of the minimum national
criteria or solid waste programs under RCRA subtitle D, and has no
authority to enforce the criteria. However, states are not required to
adopt solid waste management programs, and thus, Congress developed a
statutory structure that creates incentives for states to implement and
enforce the federal criteria, but that does not necessarily rely on or
require a regulatory entity to oversee or implement them. While
Congress developed the statutory structure to create incentives for
states to implement and enforce the federal criteria, it does not
require them to do so. As a result, subtitle D is also structured to be
self-implementing.
RCRA sections 1008(a)(3) and 4004(a) delegate broad authority to
EPA to establish regulations governing the management of solid waste.
Under section 4004(a) EPA is charged with establishing requirements to
ensure that facilities will be classified as sanitary landfills ``only
if there is no reasonable probability of adverse effects on health or
the environment from the disposal of solid waste'' at the facility. Or
in other words, under section 4004(a) EPA is charged with issuing
regulations to address all ``reasonable probabilities of adverse
effects'' (i.e., all reasonably anticipated risks) to health and the
environment from the disposal of solid waste. Section 1008(a)(3)
expands EPA's authority to address the risks from any of the listed
activities. Specifically, EPA is authorized to establish requirements
applicable to ``storage, transportation, transfer, processing,
treatment, and disposal of solid waste.'' (42 U.S.C. 6907(a),
6903(28)).
[[Page 21311]]
EPA interprets the standard in section 4004(a) to apply equally to
criteria issued under sections 1008(a)(3) and 4004(a); namely that the
criteria must ensure that a facility is to be classified as a sanitary
landfill, and thus allowed to continue to operate, ``only if there is
no reasonable probability of adverse effects on health or the
environment'' from either the disposal or other solid waste management
practices at the facility. Thus, under the combined authority conferred
by sections 1008(a)(3) and 4004(a), a facility is an ``open dump'' if
it engages in any activity involving the management of solid waste that
does not meet the standard in section 4004(a); or in other words, any
activity involved with the management of solid waste that presents a
reasonable probability of causing adverse effects on health or the
environment. EPA also interprets these provisions to authorize the
establishment of criteria that define the manner in which facilities
upgrade or close, consistent with the standard in section 4004(a), to
ensure there will be no reasonable probability of adverse effects on
health or the environment.
As discussed previously, Congress created a regulatory structure
that limited EPA's role to the creation of national criteria that would
operate even in the absence of a regulatory entity to oversee or
implement the criteria. Under RCRA section 4005(a), upon promulgation
of criteria under section 1008(a)(3), any solid waste management
practice or disposal of solid waste that constitutes the ``open
dumping'' of solid waste is prohibited. The federal standards apply
directly to the facility (are self-implementing) and facilities are
directly responsible for ensuring that their operations comply with
these requirements. States are not required to incorporate or implement
these requirements under any state permitting program or other state
law requirement, and EPA is not authorized to impose such requirements,
directly or indirectly on the states. States and citizens may enforce
this prohibition (and therefore, the federal criteria) using the
authority under RCRA section 7002.\1\
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\1\ EPA also may act if the handling, storage, treatment,
transportation, or disposal of such wastes may present an imminent
and substantial endangerment to health or the environment, pursuant
to RCRA section 7003.
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The statute also creates incentives to states to implement the
criteria. Chief among the incentives is a greater role in
implementation and enforcement of the solid waste program, including to
a limited extent the ability to give facilities that are operating
within their state additional time to come into compliance with newly
promulgated EPA criteria. Specifically, if the facility is located in a
state with a plan that was approved under section 4003(b), the state
may grant the facility an extension of up to five years from the date
the final rule was published in the Federal Register to come into
compliance with EPA regulations, provided: (a) The facility is listed
in a state inventory of open dumps; and (b) the facility has
demonstrated that it has considered other public or private
alternatives for solid waste management to comply with the prohibition
on open dumping and is unable to utilize such alternative. For
facilities that meet these requirements, the state may establish a
``schedule for compliance'' which specifies a schedule of remedial
measures, including an enforceable sequence of actions or operations,
leading to compliance with the requirements ``within a reasonable time
(not to exceed five years from the date of publication of criteria
under section [1008] (a)(3) of this title).'' 42 U.S.C. 6945(a).
As a consequence of this statutory structure--the requirement to
establish national criteria and the absence of any requirement for
direct regulatory oversight--to establish the criteria EPA must
demonstrate, through factual evidence available in the rulemaking
record, that the final rule will achieve the statutory standard (``no
reasonable probability of adverse effects on health or the
environment'') at all sites subject to the standards based exclusively
on the final rule provisions. This means that the standards must
account for and be protective of all sites, including those that are
highly vulnerable.
III. Background
A. EPA's Proposed Rule
On June 21, 2010 (75 FR 35128), EPA proposed to regulate CCR under
RCRA to address the risks from the disposal of CCR generated from the
combustion of coal at electric utilities and independent power
producers. As described in the proposal, CCR are residuals generated
from the combustion of coal and include fly ash, bottom ash, boiler
slag (all composed predominantly of silica and aluminosilicates), and
flue gas desulfurization (FGD) materials (predominantly Ca-
SOX compounds) and can be managed in either wet (surface
impoundments) or dry (landfills) disposal systems. EPA noted in the
proposed rule that the constituents of most environmental concern in
CCR are metals, such as antimony, arsenic, barium, beryllium, cadmium,
chromium, lead, mercury, nickel, selenium, silver and thallium. EPA
also presented data showing numerous instances where these constituents
(especially arsenic) have leached at levels of concern from unlined and
inadequately clay-lined landfills and surface impoundments.
In the proposal, EPA revisited its August 1993 and May 2000 Bevill
Regulatory Determinations regarding CCR generated at electric utilities
and independent power producers. The results from this effort led the
Agency to consider two primary options for the management of CCR and
thus, propose two alternative regulatory strategies. Under the first
option, EPA proposed to reverse its August 1993 and May 2000 Bevill
Regulatory Determinations (58 FR 42466 and 65 FR 32214 respectively)
regarding CCR and to list these residuals as special wastes subject to
regulation under subtitle C of RCRA when they are destined for disposal
in landfills or surface impoundments. Under this proposed option, CCR
would be regulated from the point of generation to the point of final
disposition and would generally be subject to the existing subtitle C
regulations at 40 CFR parts 260 through 268, as well as the permitting
requirements in 40 CFR part 270, and the state authorization process in
40 CFR parts 271-272. Among other things, the regulatory requirements
included waste characterization, location restrictions, liner and, if
applicable, leachate collection requirements for land disposal units,
fugitive dust controls, groundwater monitoring and corrective action
requirements, closure and post-closure care requirements, financial
assurance, permitting requirements, and recordkeeping and reporting
requirements. This option also imposed requirements on generators and
transporters of CCR destined for disposal, including manifesting (if
the CCR destined for disposal is sent off-site). However, in light of
practical difficulties in implementing certain subtitle C regulatory
requirements, EPA also proposed to revise selected requirements under
the subtitle C option. Consequently, EPA proposed, pursuant to its
authority under section 3004(x) of RCRA, modifications to the CCR
landfill and surface impoundment liner and leak detection system
requirements, the effective dates for the land disposal restrictions,
and the surface impoundment retrofit requirements. EPA also proposed to
establish new land disposal prohibitions and treatment standards for
both wastewater and non-wastewater forms of CCR. In part, the proposed
[[Page 21312]]
modifications to the treatment standards would result in the closure of
existing surface impoundments and the prohibition of all new surface
impoundments. (See 75 FR 35128 for a complete discussion of this
proposed option).
Under the second option, EPA proposed to retain the August 1993 and
May 2000 Bevill Regulatory Determinations and to regulate CCR disposal
under subtitle D of RCRA by issuing national minimum criteria to ensure
the safe disposal of CCR in surface impoundments and landfills. Under
this option, CCR would remain classified as a non-hazardous RCRA solid
waste. EPA proposed to establish technical requirements, many of which
were nearly identical to the technical standards proposed under the
subtitle C option. The technical standards included, among other
things, locations standards, liner and leachate collection
requirements, groundwater monitoring and corrective action standards
for releases from the units, operating criteria, such as fugitive dust
control, closure and post-closure care requirements, and recordkeeping
and reporting requirements. Under this option, EPA did not propose to
establish regulatory requirements that would restrict the generation,
transportation, storage, or treatment of CCR prior to disposal, nor did
EPA propose to establish financial assurance requirements under
RCRA.\2\ Also, because of subtitle D's limitations, the proposed rule
did not require permits; nor could EPA enforce the national minimum
criteria. Rather, states or citizens could enforce the national minimum
criteria under RCRA's citizen suit authority, and states could continue
to enforce any state regulation that applies to CCR under their
independent state enforcement authority.
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\2\ In the proposal, the Agency stated that the RCRA subtitle D
alternative did not include proposed financial responsibility
requirements and that any such requirements would be proposed
separately. The Agency solicited comment on whether financial
responsibility requirements under CERCLA section 108(b) should be a
key Agency focus under a RCRA subtitle D approach. While the Agency
received numerous comments urging the Agency to establish financial
responsibility as part of the subtitle D option, the CERCLA 108(b)
option did not receive significant support. As discussed in the
proposal and reiterated here, EPA will not be requiring financial
assurance requirements as part of this rule. The Agency however will
continue to investigate the use of other statutory authorities
(e.g., CERCLA) to establish financial responsibility requirements
for owners or operators of CCR landfills, CCR surface impoundments
and any lateral expansion.
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The subtitle D proposed option was designed to be self-
implementing, meaning that the requirements were such that facilities
could comply with the regulatory requirements without the need to
interact with a regulatory authority. EPA sought to enhance the
protectiveness of the proposed option by requiring certified
demonstrations by an independent registered professional engineer to
provide verification that the regulatory requirements were being
adhered to. In addition, the option provided for state and public
notification of the certifications, as well as required posting of
certain information on a Web site maintained by the facility and in the
operating record. (See 75 FR 35128 for a complete discussion of this
proposed option).\3\
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\3\ While EPA cannot enforce the subtitle D proposed rules, EPA
can take action under section 7003 of RCRA to abate conditions that
``may present an imminent and substantial endangerment to health or
the environment.'' EPA can also use the imminent and substantial
endangerment authorities under the CERCLA, or under other federal
authorities to address those circumstances where a unit(s) may pose
a threat.
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The Agency also described other alternatives considered. For
example, one subtitle D option, called ``D-prime'' was structured so
that all existing CCR surface impoundments could continue to receive
CCR after the effective date of the rule for the remainder of the
unit's useful life, irrespective of their liner type, provided the
other provisions of the subtitle D option were met (e.g., groundwater
monitoring). (See 75 FR 35128 for a complete discussion of this and
other possible regulatory alternatives on which the Agency solicited
comment.)
Under both the subtitle C and subtitle D alternatives, EPA proposed
establishing dam safety requirements to address the structural
integrity of surface impoundments. EPA also proposed not to change the
May 2000 Regulatory Determination for beneficially used CCR, which are
currently exempt from the hazardous waste regulations under section
3001(b)(3)(A) of RCRA. EPA also did not propose to address the
placement of CCR in mines, or non-minefill uses of CCR at coal mine
sites.
In addition to proposing these two regulatory options for the
management of CCR, EPA identified many issues on which it solicited
comment, information, and data. Certain solicitations were very
general, such as comments on alternative options for regulating CCR,
while other requests for comment were very specific in nature, for
example, whether clay liners designed to meet a specified hydraulic
conductivity might perform differently in practices than modeled in the
risk assessment. (The Agency requested comment on issues throughout the
preamble; however specific issues for which EPA solicited comment can
be found at 75 FR 35221-34224.)
B. Comments Received on the Proposed Rule
The Agency received over 450,000 comments on the proposed rule. The
majority of the commenters focused on which regulatory path the Agency
should pursue for regulating CCR, i.e., RCRA's subtitle C or subtitle
D. A number of commenters, however, argued that no additional
regulation was necessary and that the states were adequately regulating
the management of CCR. Generally, environmental groups and individual
citizens favored a subtitle C rule arguing that state programs have
failed and damage cases are growing in number. State organizations,
individual states, and industry groups (electric utilities, recycling
firms, trade associations), largely favored a subtitle D rule with a
permitting program.
One area that received extensive comment was the re-evaluation of
the eight Bevill study factors.\4\ Numerous commenters provided
detailed analysis related to the study factors and provided their own
interpretations of the data (e.g., state programs and damage cases).
Other areas that received significant comment included beneficial use
and the risk assessment.
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\4\ In considering whether to retain or to reverse the August
1993 and May 2000 Regulatory Determinations regarding the Bevill
exemption of CCR destined for disposal, the Agency re-examined the
RCRA section 8002(n) study factors. These eight study factors are:
(1) Source and volumes of CCR generated per year; (2) present
disposal and utilization practices (which includes evaluation of
existing state regulatory oversight and beneficial use); (3)
potential danger, if any, to human health and the environment from
the disposal and reuse of CCR; (4) documented cases in which danger
to human health or the environment from surface runoff or leachate
has been proved; (5) alternatives to current disposal methods; (6)
the cost of such alternative disposal methods; (7) the impact of the
alternative disposal methods on the use of coal and other natural
resources; and (8) the current and potential utilization of CCR (see
75 FR 35128).
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Discussion of the specific comments germane to this rulemaking are
provided in the relevant sections of this document.
C. Other Actions During Which Comment Was Taken
1. Public Hearings
EPA conducted eight public hearings during the months of August,
September, and October in 2010. There were over 1300 individual
speakers at the eight public hearings that commented on the proposed
rule. Testimony at the public hearings focused generally on whether EPA
[[Page 21313]]
should adopt a subtitle C or subtitle D approach for regulating CCR.
Many commenters were also concerned with fugitive dust emissions and
the affect these emissions had on their health and overall well-being.
Other commenters were concerned that adopting a subtitle C rule for CCR
would negatively affect the beneficial use of the material. In addition
to their testimonies that were entered into the rulemaking record, over
1200 additional documents were submitted in hard copy and entered into
the docket (see EPA-HQ-RCRA-2009-0640).
2. Notices of Data Availability
Subsequent to the proposed rule, the Agency published several
Notices of Data Availability (NODAs), the first on October 21, 2010,
(75 FR 64974); the second on October 12, 2011 (76 FR 63252) and the
third on August 2, 2013 (78 FR 46940). Specifically:
The first NODA invited comment on the responses EPA
received on Information Collection Requests that were sent to electric
utilities on their CCR surface impoundments, as well as reports and
materials related to the site assessments EPA had conducted on a subset
of these impoundments.
The second NODA invited comment on a number of topics,
including (1) chemical constituent data from coal combustion residuals;
(2) facility and waste management unit data; (3) information on
additional alleged damage cases; (4) the adequacy of state programs;
and (5) beneficial use.
The third NODA invited comment on (1) supplemental data
for the risk assessment; (2) supplemental data for the RIA; (3)
information regarding large-scale fill; and (4) data on the CCR
Assessment Program. EPA also sought comment on two technical issues
associated with the requirements for CCR management units: closure
requirements and regulation of overfills (i.e., CCR management units
built directly over pre-existing CCR landfills or CCR surface
impoundments).
Specific comments received on each of the three NODAs are discussed
in the relevant sections of this rule.
3. Effluent Limitations Guidelines and Standards for the Steam Electric
Power Generating Point Source Category Proposed Rule
On June 7, 2013 (78 FR 34432), EPA proposed a regulation that would
strengthen the controls on discharges from certain steam electric power
plants by revising the technology-based effluent limitation guidelines
(ELG) and standards for the steam electric power generating point
source category. As part of this proposal, EPA discussed its current
thinking on how a final RCRA CCR rule might be aligned and structured
to account for any final requirements adopted under the ELG for the
Steam Electric Power Generating point source category. Two primary
means of integrating the two rules were discussed: (1) Coordinating the
design of any final substantive CCR regulatory requirements and (2)
coordinating the timing and implementation of the rules to allow
facilities to coordinate their compliance planning and implementation
and to protect electricity reliability for consumers. EPA stated that
consistent with RCRA section 1006(b), effective coordination of any
final RCRA requirements with the ELG requirements would be sought in
order to minimize the overall complexity of the two regulatory
structures, and facilitate implementation of engineering, financial,
and permitting activities. EPA solicited comments on how any final CCR
final rule might be aligned and structured to account for any final
requirements adopted under the ELG for the Steam Electric Power
Generation point source category.
D. EPA's CCR Assessment Program
In March 2009, the Agency's CCR Assessment Program (herein referred
to as the Assessment Program) was initiated. This effort was in
response to the December 22, 2008 dike failure of a coal ash
impoundment at the Tennessee Valley Authority (TVA) Kingston Fossil
Plant in Harriman, Tennessee where over one billion gallons of coal ash
slurry were released, affecting more than 300 acres, including
residences and infrastructure. The TVA Kingston impoundment failure
ignited a nation-wide concern over the safety of coal ash impoundments;
and EPA was tasked with determining whether the potential existed for
similar impoundment failures at other coal-fired power plants. In
response, EPA developed the Assessment Program to evaluate the
structural stability and safety of all coal ash impoundments throughout
the country.\5\ As of September 2014, 559 impoundments had been
assessed at over 230 coal-fired power plants.
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\5\ The focus of the Assessment Program was to assess the
structural integrity of CCR impoundments meeting specified criteria.
The Agency did not include, as part of its evaluation, the
assessment of other conditions/characteristics of the impoundment
that may present potential risks to human health or the environment,
i.e., groundwater contamination due to an insufficient liner design.
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The Assessment Program began as a separate effort from the
development of this final rule.\6\ However, the information and
experience developed in carrying out the site assessments during the
Assessment Program is directly relevant to many of the issues addressed
in this rulemaking, and provide further technical support for many of
the technical criteria. Consequently, many of the final technical
criteria were developed in direct response to findings from the site
assessments. For example, several of the technical criteria contained
in the proposed rule were modified to account for the widely accepted
engineering methodologies and practices used in conducting the site
assessments, as well as current facility practices documented during
the assessments. In a few instances, the criteria were supplemented to
better align the technical requirements with the Assessment Program.
Included among the final criteria that directly rely on the Assessment
Program are the provisions relating to structural integrity assessments
to address factors of safety, periodic reassessments, hazard potential
classifications, and the hydrologic and hydraulic capacity of CCR
surface impoundments. These requirements are further discussed in Unit
VI of this preamble.
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\6\ EPA issued two Notices of Data Availability (75 FR 35128
(October 21, 2010) and 78 FR 46940 (August 2, 2013)) specifically
soliciting comment on the information generated by the Assessment
Program and the materials posted on our Web site.
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The Assessment Program focused on impoundments meeting four general
criteria that were designed to identify the units most likely to
present the same risks as the collapsed TVA impoundment: (1) Above
ground or diked; (2) of sufficient height to be susceptible to
structural failure (i.e., six feet); (3) receiving CCR; and (4) located
at operating coal-fired power plants selling power to the electric
grid. Also included in the assessments were a number of inactive
impoundments, i.e., impoundments not receiving CCR but still containing
CCR and/or liquid. The Agency included these inactive units in the
assessment reasoning that these units would be as susceptible to
structural failure as units currently receiving CCR, given that they
still contained CCR and maintained an ability to impound liquid (i.e.,
the unit had not been breached). The Assessment Program did not
evaluate, however, incised (not having above ground berms or dikes)
impoundments or landfills (not containing liquid slurried CCR wastes).
EPA chose not to assess these units because they did not share the
characteristics of
[[Page 21314]]
impoundments likely to raise concern for catastrophic releases, and
because no known catastrophic structural failures were associated with
these types of units.
Prior to initiating the assessments, EPA consulted with two key dam
safety organizations, the Association of State Dam Safety Officials
(ASDSO) and the Mine Safety and Health Administration (MSHA) to better
understand how these federal and state dam inspection programs
operated, including how earthen dams and impoundments were assessed.\7\
These groups provided the Agency with critical insight and information
for inspecting and evaluating CCR impoundments. The Agency also
reviewed various technical documents relating to dam safety and
conducting impoundment inspections, many of which were recommended by
these organizations. They were: (1) U.S. Army Corp of Engineers (USACE)
2008 National Inventory of Dams (NIDS); (2) Federal Emergency
Management Agency's (FEMA) Federal Guidelines for Dam Safety--Hazard
Potential Classification System for Dams (April 2004); (3) FEMA's Risk
Prioritization Tool for Dams User Manual (March 2008); (4) MSHA's
Handbook (PH07-01); (5) MSHA's Coal Mine Impoundment Inspection and
Plan Review Handbook (October 2007); and (6) MSHA's Engineering and
Design Manual: Coal Refuse Disposal Facility (May 2009); (7) ASDSO's
``Summary of State Dam Safety Laws and Regulations,'' (2000); (8)
ASDSO's ``Owner Responsible Periodic Inspection Guidance,'' (2005); (9)
``Guidelines for Inspections of Existing Dams.'' New Jersey Department
of Environmental Protection--Dam Safety (January 2008).
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\7\ ASDSO identified for EPA key documents to review including
Federal Energy Regulatory Commission (FERC) and MSHA guidance.
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In developing the criteria that were used to conduct the
assessments, a standard rating system was developed to classify the
units' suitability for continued safe and reliable operation. EPA
modeled its impoundment condition rating criteria on those developed by
the State of New Jersey (see reference above).
1. Conducting the Site Assessments
In order to prioritize the assessments, a preliminary hazard
potential classification ranking was identified for each impoundment,
based on criteria developed by the FEMA and found generally in USACE's
NID. EPA elected to evaluate first those impoundments with a high
hazard potential classification, which signifies that a failure or mis-
operation of the unit would probably result in the loss of human life.
Upon initiation of the Assessment Program, every owner or operator
of a CCR impoundment was contacted by the Agency and supplied with
information on the objectives of the assessment and how the assessments
were to be conducted. Assessments were conducted in rounds, consisting
of groups of 12-26 facilities per round.\8\ Prior to each site
assessment, to ensure uniformity throughout the study, a statement of
work and an impoundment field checklist was developed and adhered to
during the assessment.
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\8\ The results of this effort are either presented on a
facility by facility basis or are summarized by round. All of these
data have been posted on the Agency Web site.
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To ensure objectivity, EPA contracted with professional engineers
(PEs) in the state where the impoundment was located who were experts
in the area of dam safety to perform the site assessments. Each
individual assessment was performed by PEs qualified in the areas of
geotechnical engineering, hydrology and hydraulics, and overall dam
safety. Upon evaluation of a robust set of technical documents
addressing dam safety and inspections as well as comprehensive
discussions with key dam safety organizations, the Assessment Program
developed a comprehensive set of factors that were to be used to
evaluate the overall safety of CCR surface impoundments, which
concluded that, among other important factors, the static and seismic
factors of safety, hydrologic and hydraulic capacity, liquefaction
potential analysis and a post-liquefaction stability analysis if the
soils of the embankment were identified to be susceptible to
liquefaction, and operation and maintenance protocols, e.g.
instrumentation monitoring, inspection program, emergency response
protocols were critical parameters for assessing the overall safety of
CCR surface impoundments.
The individual evaluations or assessments were conducted at each
impoundment at each facility using standard, accepted engineering
practices, including a visual assessment of the CCR surface
impoundment, interviews with site personnel, a review of the history of
the CCR surface impoundment, and a review of engineering documentation
related to the design, construction, operation, and maintenance of the
impoundments, including available technical analyses. At each site
visit, additional documentation was collected and reviewed as
available, including descriptions, along with supporting information,
of: (1) The impoundment, including location, size, age, design and/or
alterations to the design, and the amount of residuals currently in the
unit; (2) known, measured settlement of the impoundment embankment; (3)
known, measured movement of the impoundment embankment; (4) observed
erosion of the impoundment embankment; (5) seepage; (6) leakage; (7);
observed cracking of the impoundment embankment; (8) deterioration,
such as scarps, boils, or sloughs, of the -- embankment; (9);
seismicity; (10) internal stresses; (11) functioning of foundation
drains and relief wells; (12) stability of critical slopes adjacent to
the units; and (13) regional and site geological conditions. If
available, state and federal inspections reports were also reviewed.\9\
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\9\ It is important to note that during the assessment, no
physical drilling, coring or sampling was conducted, while on site;
however, studies were reviewed that often included such information.
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In addition, for each assessment, the following factors were
identified, to the extent feasible, for evaluation: (1) The presence
and adequacy of spillways; (2) hydrologic and hydraulic capacity of the
unit; (3) overall structural adequacy and stability of structures under
all credible loading conditions through a review of static, seismic,
and liquefaction analyses with determined factors of safety; (4) soil,
groundwater, surface water, geology, and geohydrology characteristics
associated with the unit, including hydrological data accumulated since
the impoundment was constructed or last inspected; (5) a history of the
performance of the management unit through analysis of data from
monitoring instruments, interviews with facility personnel, and review
of available operating records; (6) quality and adequacy of
maintenance, surveillance, and methods of unit operations for the
protection of public safety; (7) location of schools, hospitals, or
other critical infrastructures within five miles down gradient of the
impoundment; and (8) whether the impoundment is located within
federally designated flood plains. Finally, each impoundment and any
associated spillways were evaluated to determine whether the
impoundment and the spillways could withstand the loading or
overtopping from appropriate inflow design flood events.
Each CCR surface impoundment was classified with a hazard potential
classification following the New Jersey Department of Environmental
Protection
[[Page 21315]]
Bureau of Dam Safety and Flood Control's hazard potential ranking. Each
impoundment was classified with a hazard potential classification of
either; ``high,'' ``significant,'' ``low,'' or ``less-than-low.'' The
hazard potential classification was a qualitative assessment of the
potential adverse incremental consequences of a dam failure.
At the conclusion of each assessment, a report was generated and
the impoundment was given a condition rating of either; satisfactory,
fair, poor, or unsatisfactory. The condition ratings were based on the
availability of information on the unit and evaluation of the
previously mentioned factors, including the static, seismic, and
liquefaction factors of safety. No impoundments received an
``unsatisfactory'' rating. Numerous impoundments were, however, rated
as ``poor,'' often for lack of appropriate technical documentation in
the aforementioned areas. ``Poor'' or ``fair'' ratings were also an
indication that additional measures were needed to improve the
stability of the unit. Of 559 impoundments assessed, 241 received a
condition rating of ``satisfactory,'' 166 received a condition rating
of ``fair,'' and 152 received a ``poor'' condition rating.
It is important to note that the condition rating did not
necessarily imply that the unit had inadequate structural integrity. On
the contrary, in many instances a structurally sound impoundment may
have been given a condition rating or ``fair'' or ``poor'' based on
other factors such as a lack of documented information on the unit or
insufficient operations and maintenance protocols. For example, an
impoundment could be rated as ``poor'' if it lacked the appropriate
technical documentation and analyses regarding structural or hydrologic
and hydraulic analyses. EPA rated numerous units as ``poor'' based
primarily on unavailable technical analyses.
Once the assessment was performed, a draft report was prepared.
Draft reports were reviewed by the appropriate state agency, the
utility, and by EPA.\10\ Once comments were received and incorporated,
a final report was issued along with recommendations for additional
actions to be taken by the facility (if needed). Facilities then
developed action plans and schedules to implement the recommendations.
EPA also informed facility owners and operators that in addition to
implementing their action plans, they need to adopt an ongoing, routine
program to assess each surface impoundment and to take necessary
corrective measures to ensure the units' continued structural
integrity.
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\10\ As noted many times in this document, states play a
critical role in implementing and overseeing these units. To assist
states in this effort, EPA has, in the majority of cases directly
provided the states with all of the information from our
assessments. The Assessment Program reports may be accessed at:
http://www.epa.gov/wastes/nonhaz/industrial/special/fossil/surveys2/index.htm.
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2. Assessment Program Findings
Upon completion of the Assessment Program, a review was undertaken
to ascertain the key findings or lessons learned from the effort. These
key findings included: (1) The majority of CCR surface impoundments are
currently inspected on a periodic basis; (2) most utilities were
readily able to supplement outdated or missing information with new or
updated evaluations of their impoundments after the on-site portion of
EPA's assessment was conducted; (3) in response to the assessment
report recommendations, facilities typically willingly conducted
remedial actions; (4) interaction with the states and the utilities
assured accuracy in the final assessment reports; (5) placing site
assessment materials on an internet site assured that the public,
states, and utilities had full access to information about the design
and operation of CCR impoundments and did not present either homeland
security or other confidentiality concerns; (6) static, seismic, and
liquefaction analyses did not pose a significant technical or cost
burden on facilities since many already routinely conducted these types
of evaluations; (7) state regulatory bodies viewed the assessments as a
means to further support existing assessment programs; and (8) the use
of PEs to certify all final reports ensured that the assessments
reflected the PE's best judgments.
3. Assessment Program's Support for the Structural Integrity
Requirements of the Rule
As noted, the findings from EPA's Assessment Program provide
technical and factual support for many of the final requirements for
structural stability in this rule. A more detailed discussion of
several of the most significant of these is presented below. Additional
discussion of the relevance of these findings is included throughout
Unit VI of this document.
a. Periodic Inspections/Assessments
Consistent with the findings from the assessments and with EPA's
recommendations to facilities as part of the Assessment Program, this
rule requires that all CCR surface impoundments be inspected at
intervals not exceeding seven days for any appearances of actual or
potential structural weakness and other conditions that are disrupting
or have the potential to disrupt the operation or safety of the CCR
surface impoundment. Monitoring of instrumentation is also required to
be conducted at intervals not exceeding 30 days. The Assessment Program
found that virtually all utility companies conduct some sort of
periodic inspection or monitoring at CCR surface impoundments, although
practices varied among facilities and between states. The Assessment
Program also found that while many facilities were conducting regularly
scheduled inspections, some did not adequately document the results of
these inspections.
In the final rule, CCR surface impoundments exceeding a specified
size threshold, i.e., height of five feet or more and capacity of 20
acre-feet or more or a height of 20 feet or more, are required to
perform annual inspections as well as two assessments of structural
stability quinquennially, (i.e., every five years) that include a
structural stability assessment of specified parameters and a factor of
safety assessment. Annual inspections are broader in scope than weekly
inspections and are conducted to ensure that the design, construction,
operation and maintenance of the CCR unit is consistent with recognized
and generally accepted good engineering standards. Annual inspections
must include a review of available information regarding the status and
condition of the unit and a visual inspection to identify signs of
distress or malfunction of the unit and appurtenant structures. The
annual inspections must be conducted by a qualified professional
engineer.
The Assessment Program also reviewed how detailed structural
stability reviews and inspections were recommended to be conducted by
FEMA, MSHA, and the USACE guidelines and found that such inspections
were recommended to take place every three to five years. Review of
state dam safety programs demonstrated that similar detailed
inspections were also conducted on a three-to-five year cycle.
Therefore, in the final rule, EPA is requiring that structural
integrity assessments, including the calculation of factors of safety
under various loading conditions, be conducted within 18 months of
publication of the rule, and be repeated every five years. The five
year review timeframe is based on documentation showing that the
factual bases for such reviews are only sound for that time
[[Page 21316]]
period, and is consistent with federal dam safety guidance,
specifically FEMA. FEMA recommends in Federal Guidelines for Dam Safety
that dams be formally assessed at a frequency not to exceed five years
by a qualified professional engineer. EPA has adopted this timeframe to
maintain consistency with FEMA guidance. The inspection and assessment
requirements in this rule will ensure that there are consistent and
uniform inspection and assessment practices across states and
facilities and will ensure that problems related to their stability
will be promptly identified and remediated as necessary.
b. Static, Seismic, and Liquefaction Factors of Safety
(1) Static Factors of Safety.
Factor of safety (FOS) means the ratio of the forces tending to
resist the failure of a structure, as compared to the forces tending to
cause such failure as determined by accepted engineering practice. This
analysis is used to determine whether a CCR surface impoundment's dikes
are engineered to withstand the specific loading conditions that can be
reasonably anticipated to occur during the lifetime of the unit without
failure of the dike, if accepted good engineering practices are
employed. Static factors of safety refer to the factors of safety (FOS)
under static loading conditions that can reasonably be anticipated to
occur during the lifetime of the unit. Static loading conditions are
unique from other loading conditions (e.g., seismic, liquefaction) in
that static loading conditions are those which are in equilibrium,
meaning the load is at rest or is applied with constant velocity.
EPA reviewed a series of USACE guidance documents addressing how to
determine static FOS. These documents included, but were not limited
to, Engineer Manual EM 1110-2-1902 ``Slope Stability'' (October 2003),
and EM 1110-2-1902 ``Stability of Earth and Rock-Fill Dams.'' The
Agency also assessed the recommendations on how to conduct static
analysis contained in the Engineering and Design Manual for Coal Refuse
Disposal Facilities, originally published by the Mining Enforcement and
Safety Administration (MESA) in 1975 and updated for MSHA in May 2009,
and in particular Chapter 6, ``Geotechnical Exploration, Material
Testing, Engineering Analysis and Design.'' Based on recommendations
from ASDSO, among others, the Agency adopted the USACE guidance to
determine static FOS, both in the Assessment Program and in this
rulemaking, as these manuals are recognized throughout industry as the
standard routinely used in field assessment of structural integrity.
In EPA's Assessment Program all CCR units were assessed to
determine their static FOS. Each assessment classified a CCR unit as
having sufficient structural stability under static loading conditions
if analysis of critical sections of embankments demonstrated FOS that
met or exceeded the values defined by USACE for static specific loading
conditions. EPA found that most CCR surface impoundments exhibited
sufficient calculated factors of safety under static loading
conditions. EPA also found that in those CCR units which insufficient
factors of safety against failure due to static loading were
calculated, the owner or operator was able to implement actions which
increased the factors of safety under static loading conditions to
acceptable levels. Oftentimes, these implemented actions were of a
simple nature, such as installing riprap (rock armoring the slopes) or
buttressing the slopes.
Similarly, this rule adopts the static FOS from USACE Engineer
Manual EM 1110-2-1902 ``Slope Stability,'' with the exception of the
rapid drawdown loading condition,\11\ which was determined not to be
relevant to CCR surface impoundments. EPA found the factors of safety
identified by EM 1110-2-1902, specifically the Maximum Storage pool,
Maximum Surcharge pool, and End-Of-Construction loading conditions,
provided consistent, achievable levels of safety in CCR surface
impoundment dikes, comprehensively assessed static stability, and
provided sufficient consideration of compounding stresses on dikes
(e.g., factors of safety values greater than 1.00 to account for
unanticipated loadings acting in conjunction or misidentified strength
of materials).
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\11\ Rapid (or sudden) drawdown is a condition in earthen dikes
that may develop when the embankment becomes saturated through
seepage during a high pool elevation in the reservoir. Rapid
drawdown becomes a threat to the dike when the reservoir pool is
drawn down or lowered at a rate significantly higher than the excess
poor water pressure within the dike can dissipate. Typically, rapid
drawdown scenarios are considered for dikes with reservoirs used for
water supply and management or agricultural supply. In these
scenarios, a high pool elevation is maintained in the reservoir in
storage months. Subsequently, the water supply is drawn on in months
where there is a demand for the reservoirs contents. This drawing
down of the pool can present issues for the structural integrity of
the unit. However, the management of CCR surface impoundments
differs from that of conventional water supply reservoirs. CCR
surface impoundments are never used for water supply, and the only
instance in which EPA determined through its Assessment Program that
rapid drawdown loading conditions would be relevant to CCR surface
impoundments was in the event that the CCR surface impoundment had
already released the contents of the impoundment through a breach of
the dike or emergency discharge. Since the threat of release of CCR
and the reservoir has already been realized, any failure due to
rapid drawdown of the embankment is no longer critical to the
overall containment of the now-released contents of the CCR unit.
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(2) Seismic Factor of Safety.
Seismic FOS means the FOS determined using analysis under
earthquake conditions for a seismic loading event, based on the U.S.
Geological Survey (USGS) seismic hazard maps for seismic events with a
specified return period for the location where the CCR surface
impoundment is located. The seismic FOS analysis is used to determine
whether a dam would remain stable during an earthquake or other seismic
event. The Agency relied on guidance from USACE and MSHA to evaluate
the appropriate methods to determine if a dam would remain stable
during a seismic event. This includes the USACE guidance Engineer
Circular 1110-2-6061: Safety of Dams--Policy and Procedures 2204,
Engineer Circular 1110-2-6000: Selection of Design Earthquakes and
Associated Ground Motions 2008, and Engineer Circular 1110-2-6001:
Dynamic Stability of Embankment Dams 2004). EPA also reviewed MSHA's
2009 Engineering and Design Manual for Coal Refuse Disposal Facilities,
in particular Chapter 7, ``Seismic Design: Stability and Deformation
Analyses.'' These documents are viewed by ASDSO, FEMA and MSHA as
generally accepted guidance on how to conduct seismic stability
analyses.
As noted earlier, in performing the assessments, EPA directed its
engineering contractors to assess seismic stability of CCR impoundments
during and following a seismic event with a 2% probability of
exceedance in 50 years (i.e. probable earthquake within approximately
2,500 years) and a horizontal spectral response acceleration for 1.0-
second period (5% of Critical Damping). EPA selected this return period
for determining the maximum design earthquake (MDE) by first
considering the operating life anticipated for CCR surface
impoundments. EPA has identified the operating life of CCR surface
impoundments to range between 40-80 years. EPA then consulted the
United States Geological Survey (USGS) and ASDSO to determine a
conservative probability that should be used in the assessments.\12\ To
reduce the likelihood of a CCR unit failing during a seismic
[[Page 21317]]
event, the Agency assessed various return periods and chose a
conservative 2500 year return period. The use of this ``return'' period
was chosen because it is conservative, reflects the fact that many CCR
impoundments are located in active seismic zones, and the use of a
conservative ``return'' period ensures that if a unit meets the seismic
FOS it is unlikely to fail under most seismic events. By evaluating
seismic stability under a conservative return period and requiring the
unit to maintain structural stability under that design seismic event,
the likelihood of a seismic event occurring at the location of the CCR
surface impoundment in which the strength of the unit is exceeded and
the unit fails is considerably reduced. Additionally, the unit can
reasonably be anticipated to withstand seismic events of a more
frequent return period (i.e., smaller magnitude).
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\12\ Wieland, M., ``Seismic Design and Performance Criteria for
Large Storage Dams'', Proc. 15th World Conf. on Earthquake
Engineering, Lisbon, Portugal, Sep. 24-28, 2012.
---------------------------------------------------------------------------
The Agency assessed CCR impoundments and classified them as having
seismic stability if modeling results of critical failure surfaces were
calculated to have a FOS greater than 1.0 under the specified seismic
loading condition. The Assessment Program found that most CCR
impoundments did meet the required seismic FOS. This rule also adopts
this seismic stability FOS under the 2% probability of exceedance in 50
years event.
The Assessment Program found that many CCR impoundments had not
undergone static or seismic analyses in sufficient detail that an
independent professional engineer could assert that they were stable.
The assessments gave impoundments a condition rating of ``poor'' if the
utility was unable to provide static and seismic studies of their units
conducted in a fashion which represented acceptable professional
engineering practice. As the Assessment Program advanced, many
utilities independently conducted new or updated static and seismic
analyses of CCR surface impoundments in anticipation of their
facilities being assessed. By the end of the program, virtually all
facilities had conducted or were in the process of conducting static
and seismic analyses. While some utilities noted concern over the costs
of conducting additional static or seismic stability studies, none
found that completing these studies presented any significant
engineering challenges.
(3) Liquefaction Factors of Safety
Liquefaction FOS means the factor of safety determined using
analysis under liquefaction conditions. Liquefaction is a phenomenon
which typically occurs in loose, saturated or partially-saturated soils
in which the effective stress of the soils reduces to zero,
corresponding to a total loss of shear strength of the soil. The most
common occurrence of liquefaction is in loose soils, typically sands.
The liquefaction FOS determination in the final rule is used to
determine if a CCR unit would remain stable if the soils of the
embankment of the CCR unit were to experience liquefaction. EPA relied
primarily on one source to evaluate the appropriate methods to
determine if a dam would remain stable under liquefaction conditions.
This source was ``Soil Liquefaction during Earthquakes,'' Idriss and
Boulanger, Earthquake Engineering Research Institute, 2008.\13\ EPA
also reviewed several technical resources regarding soil liquefaction,
including ``Ground Motions and Soil Liquefaction During Earthquakes,''
Seed and Idriss, 1982,\14\ ``Liquefaction Resistance of Soils: Summary
report from the 1996 and 1998 NCEER/NSF Workshops on Evaluation of
Liquefaction Resistance of Soils,'' Youd and Idriss, 2001,\15\ and
Seismic Design Guidance for Municipal Solid Waste Landfill Facilities,
US EPA, Office of Research and Development, 1995.\16\ These documents
are viewed as generally accepted guidance on how to conduct
liquefaction potential analyses and residual strength analyses under
post-liquefaction conditions.
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\13\ https://www.eeri.org/products-page/monographs/soil-liquefaction-during-earthquakes-3/.
\14\ Seed, H. B., and Idriss, I. M., 1982, ``Ground Motions and
Soil Liquefaction During Earthquakes,'' Monograph No. 5, Earthquake
Engineering Research Institute, Berkeley, California, pp. 134.
\15\ Youd, T. L., Idriss, I. M., 2001, ``Liquefaction Resistance
of Soils: Summary report from the 1996 and 1998 NCEER/NSF Workshops
on Evaluation of Liquefaction Resistance of Soils.'' Journal of
Geotechnical and Geoenvironmental Engineering, ASCE.
\16\ United States EPA, Office of Research and Development,
1995, EPA/600/R-95/051, RCRA Subtitle D (258) Seismic Design
Guidance for Municipal Solid Waste Landfill Facilities. Available as
of the Writing of this policy at www.epa.gov/clhtml/pubtitle.html on
the U.S. EPA Web site.
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As noted earlier, in performing the assessments, EPA assessed the
liquefaction potential of soils that compose the embankments of the CCR
unit to determine if the soils present in the embankment were of the
soil classification and configuration that was susceptible to
liquefaction. This determination was based on evidence available
through interviews with facility personnel, construction documentation,
or representative soil sampling, such as information provided by
corings and borings. Identical to the requirements for seismic factor
of safety calculation, EPA selected a return period for a seismic event
for analysis of liquefaction potential, under a seismic loading which
may induce liquefaction in embankments, of a 2% probability of
exceedance in 50 years. The discussion of the selection of this return
period can be found in the ``Seismic Factor of Safety'' section above.
The Agency assessed CCR impoundments and classified them as having
stability under liquefaction conditions if representative soil
sampling, anecdotal evidence from interviews with facility personnel,
or construction documentation indicated that there was no
susceptibility to liquefaction of the embankment soils or if modeling
or analysis in critical failure planes in the embankment expected to be
susceptible to liquefaction were calculated to have a FOS greater than
1.00 under post-liquefaction conditions. The Assessment Program found
that most CCR surface impoundments did not contain soils in detrimental
volumes or configurations in the embankment that would indicate
susceptibility to liquefaction. However, the assessment effort found
that in embankments with a presence of soils susceptible to
liquefaction, most CCR surface impoundments did not meet the required
liquefaction FOS.
The Assessment Program found that many CCR surface impoundments had
not undergone liquefaction potential analyses or post-liquefaction
residual strength analyses in those instances in which liquefaction
potential was identified (i.e., soils subject to liquefaction were
present). The assessments gave impoundments a condition rating of
``poor'' if there was no information available to characterize the
soils of the embankment, and a condition rating of ``poor'' or ``fair''
if post-liquefaction residual strength analysis of soils previously
identified as being susceptible to liquefaction had not been available,
with the rating dependent on the determined severity of the
liquefaction potential in the embankment. Impoundments with calculated
liquefaction factors of safety which did not meet or exceed 1.00 were
given a condition rating of ``poor.''
As the Assessment Program advanced, many utilities independently
conducted new or updated liquefaction potential analyses or residual
strength analyses of CCR surface impoundments in anticipation of their
facilities being assessed. By the end of the program, virtually all
facilities had conducted or were in the process of conducting
liquefaction potential analyses or residual strength analyses. While
some utilities noted concern over the costs of
[[Page 21318]]
conducting additional liquefaction potential or residual strength
studies, none found that completing these studies presented any
significant engineering challenges.
Based on its experience in the Assessment Program and subsequent
review of numerous technical resources, EPA determined that a post-
liquefaction residual strength factor of safety in the embankment of
1.00 is not sufficient. Liquefaction potential analysis and post-
liquefaction residual strength analysis involves a larger degree of
uncertainties, e.g., liquefiable stratum configuration, in assumptions
and analysis which must be accounted for with a factor of safety above
1.00. The final rule therefore requires CCR surface impoundments which
are constructed of soils determined to be susceptible to liquefaction
to meet or exceed a liquefaction factor of safety of 1.20. EPA has
determined that 1.20 is an appropriate liquefaction factor of safety
based on several technical guidances and memos, including Federal
Guidelines for Dam Safety: Earthquake Analyses and Design of Dams,
Document 65, FEMA May 2005, which states that ``post-liquefaction
factors of safety are generally required to be a minimum of 1.2 to
1.3.'' 17 18 19 20 21
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\17\ US Bureau of Reclamation (USBR), ``Water Operation and
Maintenance Bulletin No. 222,'' Denver, Colorado, December 2007.
\18\ http://www.oregon.gov/odot/hwy/bridge/docs/bddm/pdfs/psha.pdf.
\19\ Canadian Dam Association. Canadian Dam Safety Guidelines,
2007, 88 pp.
\20\ Sonmez, H., 2003. Modification of the liquefaction
potential index and liquefaction susceptibility mapping for a
liquefaction-prone area (Inegol, Turkey), Env. Geology, (44): 862-
871.
\21\ Seed, R.B., Cetin, O.K., Moss, R.E.S., Kammerer, A.M., Wu,
J., Pestana, J.M., Riemer, M.F., Sancio, R.B., Bray, J.D., Kayen,
R.E., Faris, A., 2003. Recent advances in soil liquefaction
engineering: a unified and consistent framework, 26th annual ASCE
L.A. Geot. Spring Sem., Long Beach, California, April 30, 71 pp.
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c. Impoundment Height and Relationship to Regulatory Requirements
During the Assessment Program, the Agency reviewed the stability
issues related to various heights of impoundments. The Assessment
Program concluded that impoundments with heights less than five feet or
those retaining less than 20 acre feet were unlikely to cause
significant environmental or economic loss should they undergo a
catastrophic failure. The Agency's review of MSHA and FEMA guidance
also noted that ``small'' units were unlikely to cause significant
losses should they fail. Based on the Agency's experience and FEMA and
MSHA's guidance, the Agency has concluded that there is a substantial
benefit in having impoundments which exceed a specified size threshold,
i.e., height of five feet or more and capacity of 20 acre-feet or more
or a height of 20 feet or more determine their static, seismic, and
liquefaction FOS on a regular basis. The analyses and experience gained
in conducting the Assessment Program indicates that a catastrophic
failure of a CCR surface impoundment is unlikely to occur so long as
the factors of safety are maintained or exceeded throughout the unit's
operating life. This conclusion is also consistent with relevant
guidance and regulations which do not require such evaluations for
units below a certain size threshold.
d. Hazard Potential Ratings
Each impoundment assessed in the Assessment Program was given a
Hazard Potential Classification rating of either Less-than-Low, Low,
Significant, and High. Previous classifications were reviewed and
amended as necessary to reflect guidance developed for the Assessment
Program. The hazard potential ratings refer to the potential for loss
of life or damage if there is a dam failure. The ratings do not refer
to the condition or structural stability of the dam. Four hazard
potential classifications were used in assessing the impoundments in
the Assessment Program:
High Hazard Potential--Dams assigned the high hazard potential
classification are those where failure or mis-operation will probably
cause loss of human life.
Significant Hazard Potential--Dams assigned the significant hazard
potential classification are those dams where failure or mis-operation
results in no probable loss of human life, but can cause economic loss,
environment damage, disruption of lifeline facilities, or impact other
concerns. Significant hazard potential classification dams are often
located in predominantly rural or agricultural areas, but could be
located in areas with population and significant infrastructure.
Low Hazard Potential--Dams assigned the low hazard potential
classification are those where failure or mis-operation results in no
probable loss of human life and low economic and/or environmental
losses. Losses are principally limited to the owner's property.
Less Than Low Hazard Potential--Dams which do not pose high,
significant, or low hazard potential.
There is a substantial benefit in having owners or operators of all
CCR impoundments determine the hazard potential classification of their
units. The Assessment Program found that many CCR surface impoundments
had not been given a hazard potential classification and consequently,
their potential threat to human health and the environment if a failure
were to occur was not clearly identified, nor had response plans been
developed to respond to any catastrophic failure. Moreover, these
classifications should be updated over time, particularly to account
for changes such as population growth, construction of key
infrastructure, or changes to the impoundment's size or operation. The
Assessment Program also found that some states do not classify CCR
impoundments as ``dams'' and therefore those units may not be required
to determine their hazard potential classification or otherwise
evaluate the potential effects of a catastrophic failure. Consistent
with the guidance from ASDSO, FEMA, and the state of New Jersey, this
rule requires that all diked CCR impoundments determine their hazard
potential classification according to the definitions set out in this
regulation. For those units with a hazard potential classification of
significant or high, the owner or operator of such impoundments is also
required to develop an Emergency Action Plan to address the higher
potential impacts of a potential failure.
e. Condition Ratings
While the rule does require facilities to evaluate the same
engineering factors that went into developing these ratings, the rule
does not require that each impoundment be given a condition rating.
After evaluation of the use of these ratings, the Agency determined
that the rating may have relied too heavily on subjective factors. For
that reason, this rule requires that the qualified professional
engineer certify, based on quantitative determinations, that an
impoundment meets the requirements for FOS and hydraulic and hydrologic
capacity. This approach is less subjective and allows the professional
engineer to make quantifiable certifications.
IV. Bevill Regulatory Determination Relating to CCR From Electric
Utilities and Independent Power Producers
As discussed in the preceding sections, in the proposed rule EPA
reopened its August 1993 and May 2000 Regulatory Determinations
regarding CCR generated at electric utilities and independent power
producers, to re-evaluate whether regulation of CCR under RCRA subtitle
C is necessary in light of subsequent information. EPA explained that
this was based on several
[[Page 21319]]
relatively recent developments, such as a newly completed quantitative
risk assessment that concluded that the disposal of CCR in unlined
waste management units posed substantial risks, with upper end risk
estimates ranging from 10-2-10-4. Citing to the
recent structural failures of surface impoundments, the proposed rule
also noted that these wastes have caused greater damage to human health
and the environment than EPA originally estimated. Finally, EPA
explained that recently collected information regarding the existing
state regulatory programs had called into question whether those
programs, in the absence of national minimum standards specific to
these wastes, had sufficiently improved to address the gaps originally
identified in the May 2000 Regulatory Determination. EPA ultimately
concluded that federal regulation of this material was necessary, but
did not reach any conclusion as to whether regulation under subtitle D
would be sufficient or whether regulation under subtitle C would be
necessary to adequately address the risks.
Of the over 450,000 comments received on the proposed rule, the
vast majority focused on whether the Bevill exemption should be
retained, and the corresponding question of whether CCR regulations
should be established under RCRA subtitle C or subtitle D. In terms of
the sheer numbers, the majority of commenters supported a decision to
revoke the Bevill exemption and to regulate CCR under a subtitle C
rule. These commenters, largely individual members of the public and
environmental groups, generally argued that the Bevill exemption should
be revoked because state programs have failed to adequately regulate
the disposal of CCR and because the risks associated with the
management of these wastes are significant. In support of both points,
these commenters pointed to the fact that the number of damage cases
that have been discovered has increased substantially since the
original 2000 Regulatory Determination, and have continued to grow
since publication of the proposed rule in 2010.
By contrast, state organizations, individual states, and industry
groups (electric utilities, recycling firms, trade associations),
largely favored a subtitle D rule. Overall, these commenters raised
concern about the costs of the subtitle C regime, arguing that the
subtitle C requirements were more stringent than necessary to address
the risks from CCR disposal. Commenters also raised concern that
regulation of these wastes under subtitle C would negatively affect the
beneficial use of these materials, arguing that the stigma associated
with regulating the disposal of CCR as a hazardous waste would
``cripple'' the current beneficial reuse market. Many of these
commenters also argued that EPA lacks the legal authority to regulate
these wastes under subtitle C on a variety of grounds, including claims
that EPA entirely lacks the authority to revisit its Bevill Regulatory
Determination, and that EPA had failed to comply with statutory
procedures in doing so.
A. Deferral of a Final Decision on the Bevill Regulatory Determination
for CCR Destined for Disposal
In determining whether the Bevill exemption should be retained for
CCR, EPA must evaluate and weigh eight factors that were enumerated in
section 8002(n) of RCRA. 42 U.S.C. 6921(b)(3)(C). The eight factors
are: (1) The source and volumes of CCR generated per year; (2) present
disposal and utilization practices; (3) potential danger, if any, to
human health or the environment from the disposal and reuse of CCR; (4)
documented cases in which danger to human health or the environment
from surface run-off or leachate has been proved; (5) alternatives to
current disposal methods; (6) the cost of such alternative disposal
methods; (7) the impact of those alternatives on the use of coal and
other natural resources; and (8) the current and potential utilization
of CCR. 42 U.S.C. 6982(n).
EPA addressed each of these study factors in the 1988 and 1999
Reports to Congress, and in reaching our decisions in the August 1993
and the May 2000 Regulatory Determinations to maintain the Bevill
exemption for CCR. 58 FR 42466 (August 9, 1993); 65 FR 32214 (May 22,
2000). Consequently, in considering whether to reverse these Regulatory
Determinations for CCR destined for disposal, EPA reexamined the RCRA
section 8002(n) study factors against all of the available data, which
included both the data that formed the basis for the May 2000
Regulatory Determination and the most recent data available. (See 75 FR
35150-35156.)
As discussed at length in the proposed rule, three of these factors
weighed the most heavily in the Agency's decision to reconsider its
previous Regulatory Determinations. (See 75 FR 35133 and 35156-35158.)
The first of these related to the extent of the risks posed by the
current management of these wastes. Since the 2000 Regulatory
Determination, EPA had completed a quantitative risk assessment that
estimated significant risks to human health and the environment. EPA's
2010 CCR risk assessment estimated the cancer risk from arsenic that
leaches into groundwater from CCR managed in units without composite
liners to exceed EPA's typical risk thresholds of 10-4 to
10-6. For example, depending on various assumptions about
disposal practices (e.g., whether CCR is co-disposed with coal refuse),
groundwater interception and arsenic speciation, the 90th percentile
risks from unlined surface impoundments ranged from 2 x 10-3
to 1 x 10-4. The risks from clay lined surface impoundments
ranged from 7 x 10-2 to 4 x 10-5. Similarly,
estimated risks from unlined landfills ranged from 5 x 10-4
to 3 x 10-6, and from 2 x 10-4 to 5 x
10-9 for clay-lined landfills. EPA's risk assessment also
estimated Hazard Quotients (HQs) \22\ above 1 for other metals,
including selenium and lead in unlined and clay-lined units. However, a
number of technical questions were raised regarding this quantitative
risk assessment that called into question the accuracy of these risk
estimates.
---------------------------------------------------------------------------
\22\ For more information on HQs please see Unit X. Risk
Assessment of this preamble.
---------------------------------------------------------------------------
A second and equally significant consideration related to how
effectively state regulatory programs address the risks associated with
the improper management of these wastes. The existing reports on state
regulatory programs had called into question whether the trend in
improving state regulatory regimes that EPA identified in May 2000 had
materialized to the degree anticipated in the Regulatory Determination.
EPA noted concern about the lack of substantial details regarding the
full extent of state regulatory authority over the disposal of these
materials, and the manner in which states have, in practice,
implemented this oversight.
The final consideration, which is tightly related to the first two,
was the recent information documenting continued instances involving
the contamination of ground or surface water from the management of
these wastes. Since the 2000 Regulatory Determination EPA had gathered
or received information on 67 ``proven or potential'' cases involving
damage to (i.e., contamination of) ground and surface water, and to
human health and the environment from improper management of CCR in
landfills and surface impoundments. These also included cases involving
the structural failure of surface impoundments and the catastrophic
release of CCR.
[[Page 21320]]
For each of these key areas, EPA identified a number of issues on
which the absence of critical information prevented the Agency from
reaching an initial decision on whether to revise the Bevill
Determination. Some of these issues or uncertainties have been resolved
during the development of the final rule, either as a result of
information received from commenters or through additional information
and analyses EPA obtained or developed, which were held out for comment
in subsequent NODAs. See 75 FR 35128 (October 21, 2010) and 78 FR 46940
(August 2, 2013). However, as discussed in more detail below, critical
information necessary to make a final Regulatory Determination is still
lacking in two of these three areas. This information bears directly on
the extent and magnitude of the risks over the course of the next
several years, and the degree to which those risks can be managed
sufficiently under each of the two regulatory structures available to
the Agency. In the absence of this information, EPA is unable to reach
a conclusion on the issue that is central to a Bevill Determination:
Whether the risks presented by management of CCR waste streams can only
be adequately mitigated through regulation under RCRA subtitle C. As a
consequence, EPA is deferring a final Regulatory Determination for
these wastes.\23\
---------------------------------------------------------------------------
\23\ Because EPA is deferring its final Bevill Determination,
EPA has not responded to comments that pertain exclusively to that
issue. However EPA has responded to significant comments that relate
to topics that are otherwise relevant to the final subtitle D
regulation. For example, because EPA is relying on the damage cases
to support certain aspects of the technical requirements, EPA has
responded to comments relating to the accuracy of the facts involved
in the damage cases. EPA has not, however, responded to many
comments on state programs because the Agency has made no final
conclusions on the adequacy of those programs and is not relying on
state programs to support any of the final rule's provisions.
---------------------------------------------------------------------------
Nevertheless, the record is clear that current management of these
wastes can present, and in many cases has presented, significant risks
to human health and the environment. Although EPA cannot reach
conclusions as to the full extent or magnitude of those risks over the
long term, the current level of risk clearly warrants the issuance of
federal standards to ensure consistent management practices and a
national minimum level of safety.
In the following sections, EPA describes the information that was
obtained over the course of the rulemaking relating to each area of
concern, and the extent to which the new information addressed the
issue.
1. Risks Posed by Current Management of CCR and Potential Danger to
Human Health From the Disposal of CCR
In the proposed rule, EPA specifically noted that several
uncertainties remained in the Agency's quantitative risk analysis of
the current management of CCR. Chief among these uncertainties was the
evolving character and composition of CCR due to electric utility
upgrades and retrofits of multi-pollutant controls needed to comply
with the emerging Clean Air Act (CAA) requirements, which could present
new or otherwise unforeseen contaminant issues (e.g., addition of
calcium bromide to coal prior to combustion increasing mercury capture;
use of selective catalytic reduction for post-NOX controls
forming hexavalent chromium). As EPA explained, changes to fly ash and
other types of CCR is expected to occur as a result of increased use
and application of advanced air pollution control technologies in coal-
fired power plants. These technologies include flue gas desulfurization
(FGD) systems for SO2 control, selective catalytic reduction
(SCR) systems for NOX control, and activated carbon
injection (ACI) systems for mercury control. These technologies are
being installed or are expected to be installed in response to federal
regulations, state regulations, legal consent decrees, and voluntary
actions taken by industry to adopt more stringent air pollution
controls. Use of these more advanced air pollution control technologies
reduces air emissions of metals and other pollutants in the flue gas of
a coal-fired power plant by capturing and transferring the pollutants
to the fly ash and other air pollution control residues. Previous EPA
studies of whether increased pollutant content would increase the risks
correspondingly were inconclusive. For example, EPA evaluated the
environmental fate of metals that are captured in CCR through use of
enhanced air pollution controls, by characterizing the leaching
behavior of 73 air pollution control residues, using the Leaching
Environmental Assessment Framework (LEAF) methodology. Materials were
tested over the pH conditions and liquid/solid ratios expected during
management via land disposal or beneficial use. Leachate concentrations
for most metals were highly variable over a range of coal type,
facility configurations, and air pollution control residues. In
addition, the data showed significantly different leaching behavior for
similar residue types and facility configurations. Overall, the
variability in leaching of the metals in the CCR was greater than the
variability in totals concentrations by several orders of magnitude,
suggesting that total pollutant content may not be predictive of
leaching behavior, and consequently the risks.\24\
---------------------------------------------------------------------------
\24\ Thorneloe, S, Kosson, D., Sanchez, F., Garrabrants, A.C.,
and Helms, G., Evaluating the Fate of Metals in Air Pollution
Control Residues from Coal-Fired Power Plants, Environ. Sci.
Technol. 2010, 44, 7351-7356.
---------------------------------------------------------------------------
The Agency received no data from commenters that would aid in
resolving this uncertainty. To try to establish some parameters around
the uncertainty, EPA attempted to develop estimates of the extent to
which this issue could meaningfully affect the risks.
As an initial step, EPA focused on mercury pollution controls, as
mercury levels in these wastes was an issue of particular concern in
the public comments. It has been established that mercury pollution
controls can affect both the mercury content and the general leaching
behavior of ash (US EPA 2006, 2008, 2009). Using the limited data
available, EPA attempted to evaluate the extent to which mercury
controlled wastes could ultimately affect the overall risk associated
with disposal of CCR.
EPA conducted a sensitivity analysis that filtered the full 2014
risk assessment results for the subset of fly ash samples generated by
facilities that have currently installed ACI systems. The samples were
collected from five different facilities that were either installing or
evaluating an ACI system for increasing mercury capture. At each
facility, samples were collected both before and after the installation
of an ACI system. Ultimately the results were inconclusive, likely
because of the small sample size, and EPA can draw no conclusions about
the exact effects of ACI systems on the risks from CCR disposal.
Nevertheless, the analysis provided some useful information. Capturing
and transferring pollutants from air emission to the fly ash and other
air pollution control residues would normally be expected to increase
the risks associated with disposal of these wastes. EPA's analyses,
however, showed only a marginal difference in risks for ash generated
with or without the use of an ACI system, and in some instances the
risks decreased slightly with the addition of activated carbon. The
significance of these results should not be overstated--the observed
decreases were not consistent and were thought to be an artifact of the
relatively small number of model iterations. It is also important to
remember that these results provide no information about the potential
effects from the installation of
[[Page 21321]]
FGD systems for SO2 control, or SCR systems for
NOX control, any of which could also significantly affect
the characteristics of the wastes. But these results also suggest that
EPA should be cautious about assuming that the risks will necessarily
increase as a result of the imposition of additional air pollution
controls.
Other uncertainties in the risk assessment developed for the
proposal related to the extent to which some sampled data with high
concentrations of constituents used in the risk assessment accurately
reflect coal ash leaching from landfills or surface impoundments. For
example, as explained in the proposed rule, some data reflected pore
water taken in the upper section of a surface impoundment where coal
refuse was placed. There were acid generating conditions and high
concentrations of arsenic, but the data demonstrated that the
underlying coal ash neutralized the acid conditions and greatly reduced
the arsenic which leached from the bottom of the impoundment. EPA also
noted that much of the pore water samples and leachate data were
several years old, and questions had been raised whether these data
accurately reflected current management practices. Finally, EPA noted
that recent research indicated that traditional leach procedures (e.g.,
Toxicity Characteristic Leaching Procedure (TCLP) and Synthetic
Precipitation Leaching Procedure (SPLP)) may underestimate the actual
leach rates of toxic constituents from CCR under different field
conditions.
First, regarding the question of appropriate pH conditions in CCR
units, and the resulting leachate concentrations in impoundments where
coal refuse was placed, EPA obtained data during the development of
this rule directly relevant to this issue. A survey conducted by the
Electric Power Research Institute (EPRI) in 1995 had shown that 34
percent of unlined landfills and 68 percent of unlined surface
impoundments actively managed CCR with coal refuse. However, more
recent data collected by EPA as part of the Clean Water Act ELG
rulemaking in 2009-2010 indicates that this management practice has
declined significantly to approximately five percent of current units.
EPA also obtained sufficient data to resolve concerns about the
accuracy of the concentrations in pore water and leachate used in the
risk assessment. EPA received a substantial amount of data on CCR
chemical constituents from commenters, which included total
concentrations, pore water, and leaching test results for various types
of CCR, i.e., bottom ash, FGD gypsum, FGD sludge, fly ash cenospheres,
boiler slag, and combined waste streams. This included data from
several EPRI reports, which provided field leachate results for bottom
ash, fly ash, and FGD solids from a number of landfills and surface
impoundments. EPA also received leachate data from the Alaska
Department of Environmental Conservation, the Michigan Department of
Natural Resources and Environment (MI DNRE), and from the Maryland
Department of the Environment on total metals, TCLP, and SPLP results
for bottom ash and fly ash. Included among these data were TCLP results
for 102 CCR samples and 12 FGD gypsum samples, and two landfill
leachate samples, as well as several laboratory reports on CCR leachate
from 2008 through 2010. EPA also received several reports from the
University of North Dakota Energy & Environmental Research Center, with
leaching test results for 58 fly ash, five FGD, and four FGD gypsum
samples using various leaching methods other than TCLP, and TCLP
mercury results for 15 fly ash samples, as well as leaching test
results for five fly ash and two bottom ash samples using 18-hr, 30-
day, and 60-day leach methods, plus bulk and trace element data for
five fly ash samples, two bottom ash samples, and one slag sample. (See
76 FR 63252, October 12, 2011.)
In addition to the data submitted by commenters, EPA's Office of
Research and Development (ORD), in collaboration with Vanderbilt
University (VU), developed additional CCR leaching data using a revised
methodology, the Leaching Environmental Assessment Framework, or LEAF,
consisting of four methods that evaluate leaching potential for various
waste forms at different plausible pH values and liquid-solid ratios,
in order to more accurately simulate leaching potential over a variety
of field conditions. The LEAF methods went through validation working
with 20 different laboratories, different waste matrices, and
documented in two EPA reports finding good agreement between the labs
for the four methods.\25\ In addition, EPA compiled decades of data for
ten different case studies to compare field and laboratory leach
data.\26\ These data also showed LEAF methods to be a good predictor of
field leachate behavior using geochemical speciation modeling for
factors such as oxidation that are difficult to account for in the lab.
When considered along with the methods validation, the field-to-lab
leachate data comparison provides additional confidence that LEAF
methods can more accurately predict environmental release over a range
of materials, waste form, pH, liquid-solid ratio, and other parameters
influencing leaching behavior such as calcium depletion for a material.
---------------------------------------------------------------------------
\25\ Garrabrants A.C., D.S. Kosson, H.A. van der Sloot, F.
Sanchez and O. Hjelmar (2010) Background information for the
Leaching Environmental Assessment Framework (LEAF) Test Methods,
EPA-600/R-10/170, U.S. Environmental Protection Agency, Air
Pollution Prevention and Control Division, December 2010.
Garrabrants A.C., D.S. Kosson, L. Stefanski, R. DeLapp, P.F.A.B.
Seignette, H.A. van der Sloot, P. Kariher and M. Baldwin (2012a)
Interlaboratory Validation of the Leaching Environmental Assessment
Framework (LEAF) Method 1313 and Method 1316, EPA/600/R-12/623, U.S.
Environmental Protection Agency, Air Pollution Prevention and
Control Division, September 2012.
Garrabrants A.C., D.S. Kosson, R. DeLapp, P. Kariher, P.F.A.B.
Seignette, H.A. van der Sloot, L. Stefanski and M. Baldwin (2012b)
Interlaboratory Validation of the Leaching Environmental Assessment
Framework (LEAF) Method 1314 and Method 1315, EPA-600/R-12/624, U.S.
Environmental Protection Agency, Air Pollution Prevention and
Control Division, September 2012.
\26\ Kosson D.S., van der Sloot, H.A., Seignette, P.F.A.B. 2014.
Leaching Test Relationships, Laboratory-to-Field Comparisons and
Recommendations for Leaching Evaluation using the Leaching
Environmental Assessment Framework (LEAF), EPA-600/R-14/061. EPA
Office of Research and Development, National Risk Management
Research Laboratory, Research Triangle Park, NC, 27711. December.
---------------------------------------------------------------------------
In updating the risk assessment for the final rule, EPA relied on
surface impoundment pore water data and impoundment wastewater data,
including the data submitted by commenters. For landfills, EPA only
used LEAF data to characterize the leachate for the range of materials
resulting from various air pollution control technologies. The CCR data
documented in three EPA reports \27\ and summarized in Thorneloe et al,
2010 \28\
[[Page 21322]]
provides a robust characterization of air pollution control residues
from coal-fired power plants and indicates that leaching rates can vary
by several orders of magnitude, depending on pH levels and the amount
of liquid that comes into contact with the CCR solids (i.e., the liquid
to solid ratio).
---------------------------------------------------------------------------
\27\ Sanchez F., R. Keeney, D.S. Kosson and R. DeLapp (2006)
Characterization of Mercury-Enriched Coal Combustion Residues from
Electric Utilities using Enhanced Sorbents for Mercury Control, EPA-
600/R-06/008, U.S. Environmental Protection Agency, Air Pollution
Prevention and Control Division, February 2006.
Sanchez F., D.S. Kosson, R. Keeney, R. DeLapp, L. Turner and P.
Kariher (2008) Characterization of Coal Combustion Residues from
Electric Utilities using Wet Scrubbers for Multi-pollutant Control,
EPA-600/R-08/077, U.S. Environmental Protection Agency, Air
Pollution Prevention and Control Division, July 2008.
Kosson D.S., F. Sanchez, P. Kariher, L.H. Turner, R. DeLapp, and
P. Seignette (2009) Characterization of Coal Combustion Residues
from Electric Utilities--Leaching and Characterization Data, EPA-
600/R-09/151, U.S. Environmental Protection Agency, Air Pollution
Prevention and Control Division, December 2009.
\28\ Thorneloe S.A., D.S. Kosson, F. Sanchez, A.C. Garrabrants
and G. Helms (2010) ``Evaluating the fate of metals in air pollution
control residues from coal-fired power plants,'' Environmental
Science and Technology, 44, 7351-7356.
---------------------------------------------------------------------------
The 2014 risk assessment incorporates these new data, and accounts
for both the pH of the waste in field conditions, as well as the
liquid-to-solid ratio of the leachate and CCR, which effectively
addresses the concerns raised in the proposed rule that TCLP and SPLP
methods could underestimate leachate concentrations.
A further area of uncertainty related to one of the primary inputs
into the risk assessment. As noted in the proposed rule, the Agency's
risk estimates were based on the existing cancer slope factor of 1.5
mg/kg/d-1 for arsenic in EPA's Integrated Risk Information
System (IRIS). However, EPA noted that was in the process of
revaluating the arsenic cancer slope factor in light of recent
recommendations from the National Research Council (NRC) of the
National Academy of Sciences (NAS) in ``Critical Aspects Arsenic in
Drinking Water, 2001 Update.'' In the proposal, EPA estimated that
using this NRC data analysis would increase the individual risk
estimates by approximately 17 times.
EPA is currently evaluating the arsenic cancer slope factor in
light of more recent NRC recommendations, regarding the approach and
the science for estimating cancer and non-cancer risk in ``Critical
Aspects of EPA's IRIS Assessment of Inorganic Arsenic, (NRC 2013).''
EPA is in the process of implementing these recommendations, but to
date has been unable to finalize its IRIS reassessment. Nor did EPA
receive any other information during the development of this final rule
that would help to resolve this uncertainty.
A final source of uncertainty in the risk assessment developed for
the proposed rule related to the potential impact from the interception
of contaminated groundwater plumes by surface water bodies that exist
between a waste management unit and a down-gradient drinking water
well. It is common for coal-fired utilities to be located near water
bodies, which are used as a source of cooling water and waste
conveyancing. Releases from surface impoundments located in close
proximity to water bodies can be intercepted, which can significantly
affect the contaminants that reach drinking water wells. For example,
surface impoundments are commonly placed next to rivers, which can
intercept the leachate plume and prevent contamination of drinking
water wells on the other side of the river. Also, in such circumstances
the direction of groundwater flow on both sides of the river may be
towards the river; thus, the drinking water well on the opposite side
of a river may not be impacted.
Over the course of the rulemaking, EPA was able to obtain
sufficient data to model the impact from interception of contamination
by surface water bodies. The risk assessment developed for the final
rule accounts for the interception of the groundwater contamination
plume by surface water bodies, and the resulting decrease in
constituent mass to downstream drinking water sources. As a consequence
of this modeling, the median risks for surface impoundments and
landfills were substantially lower than both the high-end and median
risks modeled in the 2010 risk assessment, i.e., by approximately an
order of magnitude.
2. Adequacy of Existing State Regulatory Oversight
The assessment of state regulatory programs in the proposed rule
was based largely on two reports: A joint U.S. Department of Energy
(DOE) and EPA study completed in 2006, ``Coal Combustion Waste
Management at Landfills and Surface Impoundments, 1994-2004,'' and a
2009 survey conducted by the Association of State and Territorial Solid
Waste Management Officials (ASTSWMO). EPA's preliminary conclusion was
that while states seem to be regulating landfills to a greater extent
than in 2000, significant gaps in state programs appeared to remain,
particularly with respect to the oversight of surface impoundments.
In reaching this conclusion EPA noted the following findings from
the DOE/EPA study: only 19 percent (three out of 19) of the surveyed
surface impoundment permits included requirements addressing
groundwater protection standards (i.e., contaminant concentrations that
cannot be exceeded) or closure/post-closure care, and only 12 percent
(two out of 12) of surveyed units were required to obtain bonding or
financial assurance. The EPA/DOE report also concluded that
approximately 30 percent of the net disposable CCR generated was
potentially exempt from all state solid waste permitting requirements
(EPA/DOE Report at pp 45-46). For example, at the time of the report,
Alabama did not regulate CCR disposal under any state waste authority
and nor had a dam safety program. Texas (the largest coal ash producer)
did not require permits for waste managed on-site, which is defined as
waste managed at any site owned by the generator, up to 50 miles away
from the generating facility. Finally, the report found that a number
of states only regulated surface impoundments under CWA authorities,
and consequently primarily addressed the risks from effluent discharges
to navigable waters, but did not require liners or groundwater
monitoring.
The more recent 2009 ASTSWMO survey reached similar conclusions.
With respect to liner requirements, 36 percent of surveyed states did
not have minimum liner requirements for CCR landfills, while 67 percent
did not have CCR liner requirements for surface impoundments.
Similarly, 19 percent of states surveyed did not have minimum
groundwater monitoring requirements for landfills and 61percent did not
have groundwater monitoring requirements for surface impoundments. The
2009 ASTSWMO survey also indicated that only 36 percent of states
regulated the structural stability of surface impoundments.
In the proposal, EPA identified several issues that complicated its
preliminary assessment and prevented the Agency from reaching overall
conclusions as to the adequacy of state regulatory programs. First, EPA
raised concern about the absence of any real details in the two reports
regarding how states, in practice, oversee the disposal or other solid
waste management of CCR. For example, even though the disposal units
might not be regulated under the state solid waste provisions, some
states may use performance based standards or implement requirements to
control CCR landfills and surface impoundments under other state
programs. Second, EPA noted that most of the more recent data primarily
focused on the requirements applicable to new management units, which
only represented approximately 10 percent of currently operating units.
EPA had little, if any, information that described the extent to which
states and utilities had implemented requirements, such as groundwater
monitoring, on the many existing landfills and surface impoundments
that receive CCR. Moreover, the information in the record for the
proposal with respect to these older units was fifteen years old. EPA
assumed it to be unlikely that states would have required existing
units to install liners, but suggested states may have been more likely
to have imposed groundwater monitoring for such units over the last 15
years.
[[Page 21323]]
EPA also identified several issues that would be relevant to the
Agency's evaluation of the overall adequacy of state regulatory
programs. Specifically, EPA explained that it would consider how state
regulatory programs have, in practice, evaluated and imposed
requirements to address: (1) Leachate collection; (2) groundwater
monitoring; (3) whether a unit must be lined and the type of liner
needed; (4) the effectiveness of existing management units as opposed
to new management units; (5) whether the state requires routine
analysis of CCR; (6) whether financial responsibility requirements are
in place for the management of CCR; (7) the extent of permit
requirements, including under what authorities these disposal units are
permitted, the types of controls that are included in permits, and the
extent of oversight provided by the states, (8) whether state programs
include criteria for siting new units; (9) the extent of requirements
for corrective action, post-closure monitoring and maintenance; (10)
the state's pattern of active enforcement and public involvement; and
(11) whether or not these facilities have insurance against
catastrophic failures.
EPA received a substantial amount of information on state programs
from commenters. Extensive comments were submitted by a coalition of
environmental groups, outlining the alleged gaps in state regulatory
programs applicable to the management of CCR. These comments contained
a comprehensive analysis of 37 state programs based on the findings of
the DOE/EPA 2006 report as well as on an independent compilation of
state program requirements. According to these commenters' analysis,
only four states (representing approximately four percent of the CCR
generated in the U.S. in 2005) required groundwater monitoring in all
new and existing landfills, and only six states (representing
approximately 19 percent of the CCR generated in 2005) required
groundwater monitoring in all new and existing surface impoundments;
only five states (representing approximately seven percent of the CCR
generated in 2005) required composite liners for all new landfills; and
only four states (representing approximately 19 percent of the CCR
generated) required composite liners for all new surface impoundments.
The commenters' analysis discounted any state law that included any
provision that granted permit writers discretion to modify the
requirement on a case-by-case basis, and/or to grant waivers and
exemptions based on the waste's toxicity, onsite location, and
management practice.
EPA also received comments from ASTSWMO, the Environmental Council
of the States (ECOS), and 36 individual states. In its comments,
ASTSWMO submitted a report with revisions of the aggregated statistics
in its 2009 report, which they claim demonstrated that state CCR
programs were more robust than described in the proposed rule. These
commenters generally agreed with EPA's conclusion that state
requirements for key CCR requirements are typically more robust for
landfills than for surface impoundments. ASTSWMO's comments included
the following examples: 71 percent of the surveyed states required a
liner for landfills, compared to 65 percent that required that surface
impoundments be lined; 87 percent of surveyed states required
groundwater monitoring at landfills, compared to 67 percent of states
that required groundwater monitoring at surface impoundments; and while
83 percent of surveyed states required structural stability monitoring
at landfills, only 64 percent of surveyed states required it at surface
impoundments. The sole exception related to permit requirements, where
the report claimed that 91 percent of the surveyed states required a
permit of some type for surface impoundments, as compared to 86 percent
of states that required a permit for landfills. In addition, ASTSWMO
claimed that all 42 surveyed states had the authority to require
remediation. The report also alleged that in 43 of 44 states, states
had the authority to require surface impoundments to implement repair
and maintenance efforts during operation. ASTSWMO also claimed that 43
out of 44 states required that steps be taken to protect human health
and the environment, and that 41 of 43 states also had authority to
require closure.
According to this revised survey, state requirements also vary with
respect to whether they applied to all waste units, or only to new
units or lateral expansions. ASTSWMO stated that in 34 percent of the
surveyed states, liner requirements applied equally to new and existing
landfills, and to both existing and new surface impoundments in 46
percent of the surveyed states. Similarly, ASTSWMO stated that
groundwater monitoring was required for both existing and new landfills
in 82 percent of the surveyed states, and to both existing and new
surface impoundments in 74 percent of the surveyed states.
Nineteen states and state organizations also directly responded to
the environmental groups' report by submitting comments on their
programs, although only four of these states were among the leading CCR
generators: Kentucky, North Dakota, Ohio, and Michigan. These states
identified specific instances where the assertions made by the
environmental groups were factually incorrect or omitted relevant
information. In response to both the proposed rule and the NODA (76 FR
63252, October 12, 2011) most states provided only summaries of their
regulatory programs rather than detailed descriptions.
As EPA explained in the proposed rule, there are significant
limitations to the kind of aggregated survey statistics presented in
ASTSWMO's comments. Such statistics fail to provide the information
necessary to meaningfully address the question of how, in practice,
state programs regulate the relevant risks presented by the management
or disposal of CCR, which was the issue that EPA explained was
necessary to resolve. For example, even assuming that 91 percent of the
surveyed states actually do require a permit of some type for surface
impoundments, this provides no information on the nature or extent of
the specific requirements in the permit. As noted in the proposal, most
CCR surface impoundments are regulated under a NPDES permit, and while
the risks from effluent discharges to navigable waters are addressed,
these units are not subject to the provisions designed to protect
groundwater, such as liners or groundwater monitoring. Nor does it
address the extent of the requirement; for example, although Texas
generally requires landfills to be permitted and to monitor
groundwater, the majority of CCR units are exempt from these
requirements because all industrial wastes managed on-site (i.e., any
site owned by the generator, up to 50-miles away from the generator's
facility) are exempt. Finally, since the ASTSWMO survey does not
identify the individual surveyed states but merely presents aggregated
statistics, this information cannot be correlated with the amount of
CCR generated, which significantly limits its value; for example,
information demonstrating the strength of the regulatory program in a
state responsible for two percent of the net CCR generated nationally
is less significant than similar information on a state responsible for
25 percent of the net CCR generated.
In addition to the information provided by commenters, EPA
independently reviewed state statutes and regulations, with a more
detailed focus on the 16 states responsible for approximately 74
percent of the CCR generated in 2009. It is clear from this
[[Page 21324]]
review, as well as from information submitted by the commenters, that
the degree of state regulatory oversight of these wastes and the
overall protectiveness of the particular state programs varies widely.
Overall, the information from commenters and from EPA's own review
of state programs generally confirms EPA's original conclusion that
significant gaps remain in many state programs. Some programs provide
minimal or no regulatory oversight of CCR units. For example, Arizona,
New Mexico, and Utah have no regulations applicable to CCR units or
entirely exempt CCR from state regulations governing solid waste.
Similarly, Mississippi, Montana, and Texas (the largest coal-ash
producer) exempt the on-site disposal of CCR (as ``non-hazardous
industrial solid waste'') from some or all key requirements, such as
permits or groundwater monitoring.\29\ Such exemptions would cover most
of the disposal of CCR within the state, as the majority of utilities
dispose of their CCR on-site. Other states, such as Florida, Indiana,
Ohio and Pennsylvania, exempt CCR landfills or ``monofills'' from many
requirements. For example, Indiana regulations consider surface
impoundments that are dredged at least annually to be ``storage units''
that are exempt from solid waste regulations, including from corrective
action requirements. Many of these states are among the leading
generators of CCR wastes. In total, EPA estimates that approximately 20
percent of the net disposable CCR is entirely exempt from state
regulatory oversight.
---------------------------------------------------------------------------
\29\ See 30 TX ADC 335.2(d);
---------------------------------------------------------------------------
State programs that entirely exempt CCR management from regulatory
oversight, however, are the exception. Most states do regulate the
management of CCR to varying degrees, although the particular
requirements can vary significantly. Still, some general conclusions
can be drawn.
Most CCR surface impoundments are permitted exclusively under NPDES
or other surface water pollution prevention programs. In these states,
requirements to protect groundwater, such as liners or groundwater
monitoring systems, are frequently less robust than the corresponding
requirements applicable to CCR landfills.
Many state programs require that new disposal units be lined and
groundwater monitoring systems installed, although many exempt existing
waste units from the liner and groundwater monitoring requirements.
Consequently, for newer units, the facts are less alarming: 89 percent
of the 114 CCR surface impoundments constructed between 1994 and 2010
have liners, and 70 percent have composite liners. Similarly, 37 of 45
CCR surface impoundments EPA surveyed had installed groundwater
monitoring systems. By contrast, 79 percent of the landfills
constructed during this timeframe had installed liners, but only 58
percent were composite-lined. However the majority of the older (pre-
1994) waste units still lack liners; 63 percent of older landfills have
no liners and 63 percent and 24 percent of older surface impoundments
have either no liners or clay liners, respectively.
Information on the extent of groundwater monitoring at older units
was either unavailable, or was too unreliable to support any
conclusions as to the overall number or percentage of older units with
groundwater monitoring systems in most states. ASTSWMO's comments in
response to the October 2011 NODA identified eight states \30\ that
required groundwater monitoring at existing facilities, but only a few
of these states addressed this issue in their comments. EPA has some
anecdotal evidence on the status of groundwater monitoring in six
states, including four states that are among the leading CCR
generators. In the wake of the Kingston TVA spill, groundwater
monitoring wells were installed at 12 of Illinois's existing surface
impoundments, almost doubling the number of monitored surface
impoundments in the state. However, 55 additional surface impoundments,
both active and inactive, still lack groundwater monitoring systems. In
Ohio, 44 CCR units, out of a total of 57 CCR units in the state (42
surface impoundments and 15 landfills) still lack groundwater
monitoring, even though all of the surface impoundments were permitted
decades ago under Ohio's NPDES program. Ohio acknowledged in their
comments that the extent of groundwater risks in the state is poorly
documented, as 40 out of 44 unlined CCR units do not have a groundwater
monitoring system. In sum, the available information is limited, but at
least some of that information indicates that significant gaps remain
with respect to the implementation of groundwater monitoring
requirements under some state regulatory programs.
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\30\ Georgia, Illinois, Indiana, Iowa, Montana, Ohio,
Pennsylvania, and South Carolina.
---------------------------------------------------------------------------
Of the states that require groundwater monitoring, most appear to
require monitoring wells to be placed around the waste unit boundary,
although the distance from the unit boundary varies from 50 feet to 150
meters. However, some state programs also authorize a buffer zone or a
``zone of discharge,'' which allows the facility to defer remediation
of groundwater contamination for some period of time, usually until the
contaminant plume has migrated to the facility site boundary. Florida,
Illinois, North Dakota, and Tennessee are among that states with such a
regulatory provision. For example, under Florida regulations, primary
and secondary maximum contaminant levels (MCLs) do not apply even
beyond the ``zone of discharge,'' absent a specific order by state
regulatory authorities.
Most state programs allow the state regulatory authority to grant
variances or exemptions for some or all of the requirements based on
site-specific factors. For example, all of the following states require
groundwater monitoring at CCR surface impoundments, but also authorize
the regulatory authority to exempt or waive those requirements:
Alabama, Florida, Georgia, Illinois, Indiana, Kentucky, North Carolina,
North Dakota, Pennsylvania, and West Virginia. Contrary to the analysis
presented by the environmental groups' comments, the mere fact that
state law grants a permit authority the discretion to tailor
requirements to account for a facility's site specific conditions does
not support a conclusion that the regulatory program is necessarily
inadequate. In fact, EPA noted in the proposal that one of the
strengths of the subtitle C program was that, as a result of the permit
process, requirements could be tailored to account for site specific
conditions. Nor does the existence of a waiver process provide any
evidence of actual practices; in their comments, a few states
acknowledged that state law allowed for variances, but asserted that
none had been requested.
To complicate matters further, several states explained that while
state law does not mandate certain requirements, state regulatory
authorities have, in practice, begun to require them in more recent
permits. For example, several states, including Ohio, Texas, Michigan,
Florida, and Kentucky, noted that recent practice was to require older
disposal units to retrofit or close where they failed to meet relevant
standards. Similarly, it appears that in the 16 leading CCR-generating
states, 94 percent of new landfills have installed liners (either
composite or clay), although only 19 percent of these state programs
actually mandate CCR landfills to install a liner. And although only
six percent of these state programs require installation of a liner in
a new surface impoundment, 75 percent of
[[Page 21325]]
new CCR surface impoundments in these states are lined.
All of this information suggests that, at least in some cases, the
concerns raised in the proposal regarding the protectiveness of state
programs remain warranted. But it also is clear it would be impossible
to accurately evaluate whether, in practice, state programs are
protective without reviewing individual permit decisions and permit
requirements. Such an evaluation would necessarily involve not only a
review of the specific permit requirements, but also the site
conditions and other factual bases supporting the decision to impose
the particular requirements. Unfortunately, this information was not
provided by commenters or found in any source currently available to
the Agency.
3. Documented Cases in Which Danger to Human Health or the Environment
From Surface Run-off or Leachate Has Been Proved
In the proposed rule, EPA described the information it had compiled
on specific cases where CCR mismanagement had caused harm to human
health or the environment since the 2000 Regulatory Determination.
Specifically, EPA explained that it had identified 27 proven damage
cases: 17 cases of damage to groundwater, and ten cases of damage to
surface water, seven of which are ecological damage cases. Sixteen of
the 17 proven damage cases to groundwater involved disposal in unlined
units; for the one additional unit, it is unknown whether the unit was
lined. EPA also identified 40 potential damage cases to groundwater and
surface water. The Agency noted that these numbers likely
underestimated the number of damage cases and its expectation that
additional cases of damage would be found if a more comprehensive
evaluation was conducted, particularly since much of this waste has
been (and continues to be) managed in unlined disposal units. EPA also
noted its concern that several of the new damage cases involved
activities that differ from prior damage cases, including the
catastrophic release of waste due to the structural failure of CCR
surface impoundments, such as the dam failures that occurred in Martins
Creek, Pennsylvania and Kingston, Tennessee, as well as the large-scale
placement, akin to disposal, of CCR, under the guise of ``beneficial
use.''
EPA noted as well that it had received new reports from industry
and environmental and citizen groups regarding damage cases. Industry
provided information to demonstrate that many of EPA's listed proven
damage cases did not meet EPA's criteria for a damage case to be
considered ``a proven damage case,'' that had been developed for
purposes of the Bevill Regulatory Determinations. Environmental and
citizen groups, on the other hand, had submitted reports alleging the
existence of more recent damage cases beyond those EPA had previously
documented.
EPA raised questions concerning the following areas associated with
the damage cases; first, whether the damage cases discovered to date
accurately reflected the true number of damage cases associated with
the mismanagement of CCR. Second, EPA highlighted concern regarding the
accuracy of the available information on damage cases, as in certain
instances, much of the information was largely anecdotal. EPA therefore
specifically solicited comments from state regulatory authorities and
the facilities involved with the incidents, in the hope of obtaining
direct evidence of the facts in each case and to obtain a better
understanding of the nature of the damage caused by past and current
management practices. For the same reason, on October 12, 2011, EPA
published a NODA, soliciting comment on the extensive reports received
during the original comment period on the proposed rule. (See 76 FR
63252.)
As discussed in more detail in Unit XI of this document, EPA
received a significant number of comments on this topic, both during
the original comment period on the proposal, and in response to the
NODA. EPA received information on additional damage cases from a number
of citizen groups, including the report from Environmental Integrity
Project and Earthjustice titled, ``Out of Control: Mounting Damages
From Coal Ash Waste Sites,'' which presented information on 31 alleged
CCR damage cases that were not included or were not recognized as
damage cases in EPA's July 2007 report. EPA also received an August 26,
2010 report by the Environmental Integrity Project, Earthjustice, and
the Sierra Club titled ``In Harm's Way: Lack of Federal Coal Ash
Regulations Endangers Americans and Their Environment,'' which
presented an additional 39 alleged CCR damage cases.\31\ EPA also
received information on ten additional damage cases from state
officials in Michigan and Wisconsin.
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\31\ EPA also received several additional reports that contained
allegations of further damage cases. However, because these were
submitted after the close of the comment period, EPA did not
evaluate these damage cases for this rulemaking or otherwise
consider the information in those reports.
---------------------------------------------------------------------------
EPRI submitted two draft reports titled ``Evaluation of Coal
Combustion Product Damage Cases: Volume 1: Data Summary and
Conclusions'' (finalized in July 2010), and ``Evaluation of Coal
Combustion Product Damage Cases: Volume 2: Case Summaries'' (finalized
in September 2010). In these reports, EPRI provided information that,
they claimed, showed that many of EPA's previously identified
``proven'' damage cases did not meet EPA's criteria for a damage case
to be considered ``proven.'' In response to the 2010 NODA, USWAG
submitted a report that reviewed the 70 additional damage cases
submitted by citizen groups as part of their comments on the proposed
rule. These reports focused primarily on the degree to which the
contamination had been contained ``on-site'' or had migrated off-site
of the facility.
In Unit XI of this document, EPA discusses at length all of the
comments received and its subsequent analysis of the information
obtained throughout the rulemaking. In sum, after analyzing all of the
information submitted in response to this rulemaking, EPA has confirmed
a total of 157 cases, both proven and potential, in which CCR
mismanagement has caused damage to human health and the environment.
Although EPA expects that additional damage cases will be discovered in
response to the installation of the groundwater monitoring systems
required by the final rule, overall EPA has a significantly better
understanding of the extent and nature of the damage caused by CCR
mismanagement than when the proposed rule was issued. EPA has
sufficient confidence in the veracity of the information collected to
rely on it in making decisions in this rule.
4. Conclusions
EPA explained in the proposed rule that the decision on whether to
retain the Bevill exemption is inherently discretionary, in that it
ultimately requires the Agency to make a policy judgment as to the
appropriate balance among the eight statutory factors. Chief among the
several principles that EPA stated would guide its decision was that
any action must protect human health and the environment. To this end,
EPA singled out three key areas of analyses that bear directly on that
guiding principle: the extent of the risks posed by mismanagement of
CCR; the adequacy of state programs to ensure proper management of CCR;
and the extent and nature of damage cases.
The first of these largely related to the 2010 quantitative risk
assessment of the potential for contamination to
[[Page 21326]]
groundwater. During the rulemaking, EPA received information that
allowed the Agency to resolve two of the four primary uncertainties
identified in the proposal. The risk assessment has been revised with
updated pore water concentration data and with LEAF leachate data, and
accounts for the potential reduction of contaminants reaching drinking
water sources due to interception of contamination by surface water
bodies. However, two sources of uncertainty remain: the potential
effect of pollution control technologies on the CCR characteristics,
and the appropriate IRIS value for arsenic.
EPA's risk assessment evaluated current management practices, and
generally did not attempt to account for or evaluate the potential for
future changes in the wastes. While EPA has great confidence in the
assessment, its ability to definitively resolve this question is
therefore limited, given the very real potential for significant
changes in CCR characteristics and constituents in the near future, due
to the required installation of pollution control technologies. Changes
in the CCR characteristics are particularly significant, as the risk
assessment concluded that one of the parameters most likely to affect
the agency's risk estimates was the characteristic of the wastes.
With respect to the second area, EPA is unable to reach any
definitive conclusions as to whether state regulatory programs are so
deficient that the level of federal oversight under subtitle C is
necessary. Specifically, EPA cannot determine from the available
information how states, in practice, have implemented regulatory
requirements. At this point, only limited conclusions are possible.
Clear deficiencies exist in some state regulatory programs, and
questions remain with respect to others. And many of these concerns
exist with respect to programs in states responsible for the majority
of CCR generation and disposal. However, most state programs, although
they vary considerably, are not clearly deficient on their face. But it
is equally clear that exclusive reliance on the regulatory programs as
written, without any examination of how states have implemented those
requirements in practice, would not support sweeping conclusions about
the overall adequacy of state programs. It is critical to ensure that
any decision accurately accounts for how the states have exercised
their judgment in implementing those requirements, before concluding
that state programs cannot adequately oversee the management of CCR
without the degree of federal involvement mandated by subtitle C.
Notwithstanding EPA's inability to draw conclusions on the overall
adequacy of state programs, the high degree of variation across state
programs strongly supports the need for federal requirements to
establish a consistent national standard of groundwater and human
health protection.
In contrast to the other two areas identified in the proposed rule,
while some uncertainty remains with respect to the damage cases--
namely, whether the 157 identified to date represent the total number
of damage cases caused by CCR mismanagement, and whether some of the
``potential'' damage cases should be classified as ``proven'' damage
cases--at this point, EPA has concluded that the available information
provides a sufficient evidentiary base on which decisions can be made.
In the absence of the necessary information on two of the three
critical areas, however, EPA cannot reach any final conclusions
regarding the appropriate balance among the eight statutory factors.
Consequently, EPA is also not reaching any final conclusions as to
whether a damage case is best categorized as ``proven'' or
``potential.'' Such a finding is relevant only to the Bevill Regulatory
Determination.
However, as discussed in more detail in Unit XI of this document,
the damage cases provide extremely valuable evidence that is directly
relevant to the question of whether and how to regulate CCR waste. For
example, the damage cases provide ``real world'' evidence against which
to compare EPA's risk modeling estimates, such as evidence regarding
the frequency with which particular constituents leach into
groundwater. They also provide direct evidence regarding specific waste
management practices at electric utilities, along with the potential
consequences of those practices. Finally, both the specifics of the
damage cases and the fact that they continue to occur provide strong
evidence of the need for this rule under subtitle D while EPA obtains
the information that will allow the Agency to make a final Regulatory
Determination for these wastes.
Thus, even though EPA is not able to reach a final conclusion on
the Regulatory Determination for these wastes, the totality of the
information in the rulemaking record clearly demonstrates that the
risks associated with the current management and disposal of CCR remain
substantial. EPA's risk assessment concluded that the cancer risks from
unlined surface impoundments ranged from 3 x 10-4 for
trivalent arsenic to 4 x 10-5 for pentavalent arsenic. Non-
cancer risks from these same units also significantly exceeded EPA's
level of concern, with estimates ranging from an HQ of 2 for thallium,
to HQs \32\ of 4 for molybdenum and 8 for trivalent arsenic. The risks
associated with unlined landfills were also estimated to be
significant, with cancer risks of 2 x 10-5 for trivalent
arsenic. It is important to note that these risk numbers are based on
national disposal practices. Risks at an individual site may be even
higher based on individual site conditions, waste characteristics, and
management practices. EPA's risk assessment identified the potential
for higher risks based on different waste pH values and management
practices. Multiple constituents presented higher risks when considered
in waste management units that co-dispose both ash and coal refuse at
more acidic pHs or FGD wastes at more basic pHs. For example, the
modeled cancer risks for the co-disposal of ash and coal refuse (pH
1.7-8.2) ranged between 10-3 for trivalent arsenic to 4 x
10-4 for pentavalent arsenic. Non-cancer risks were
similarly high, ranging between and an HQ of 13 for cobalt, and HQs of
14 for pentavalent arsenic to 26 for trivalent arsenic, based on the
ingestion of contaminated drinking water. Although this management
practice is declining, recent information indicates that approximately
five percent of facilities continue to co-dispose of ash and coal
refuse in surface impoundments.
---------------------------------------------------------------------------
\32\ For more information on HQs please see Unit X. Risk
Assessment of this preamble.
---------------------------------------------------------------------------
Moreover, EPA's risk estimates are consistent with the continued
damage cases compiled through this rulemaking. As further discussed in
Unit XI of this document, EPA has confirmed that 157 cases of proven or
potential contamination of groundwater have occurred in states across
the nation since the initial Regulatory Determination. These damage
cases were primarily associated with unlined units and were most
frequently associated with releases of arsenic. While new units are
typically constructed with composite liners, which under EPA's current
risk assessment adequately mitigate the risks, older units still
comprise the overwhelming majority of currently operating units. EPA's
data show that approximately 63 percent of currently operating surface
impoundments and landfills are unlined, and thus more prone to leach
contaminants into groundwater. Analysis of the information from the
damage cases also demonstrates that unlined surface
[[Page 21327]]
impoundments typically operate for 20 years before they begin to leak.
Most of the currently operating surface impoundments are between 20 and
40 years old.
The age of the units also has implications for their structural
stability and the potential for catastrophic releases. Of the
approximately 735 CCR surface impoundments currently operating in the
United States, a certain percentage have a great potential for loss of
human life and environmental damage in the event of catastrophic
failure. Based on the information collected from EPA's Assessment
Program, 318 surface impoundments have either a high or significant
hazard potential rating, at least 13 of which were not designed by a
professional engineer. Of the total universe of surface impoundments,
approximately 186 of these units were not designed by a professional
engineer. Surface impoundments are generally designed to last the
typical operating life of coal-fired boilers, on the order of 40 years.
However, many impoundments are aging; based on the subset of units for
which age data were available, approximately 195 active surface
impoundments exceed 40 years of age; 56 units are older than 50 years,
and 340 are between 26 and 40 years old. In recent years, problems have
continued to arise from these units, which appear to be related to the
aging infrastructure, and the fact that many units may be nearing the
end of their useful lives. For example, as a result of the
administrative consent order issued after the December 2008 spill, TVA
conducted testing which showed that another dike at TVA's Kingston,
Tennessee plant had significant safety deficiencies. Collectively,
these facts indicate a high likelihood that in the absence of any
regulatory action, such units will leak in the near future, or are
currently leaking, undetected, since groundwater monitoring is not
installed at many of these older units. Moreover, damage cases continue
to occur; in response to EPA's CERCLA 104(e) information request
letter, a total of 35 units at 25 facilities reported historical
releases. These range from minor spills to a spill of 0.5 million cubic
yards of water and fly ash. And as recently as February 2014, CCR
slurry was released into the Dan River from an inactive surface
impoundment in North Carolina.
All of which demonstrates a compelling need for a uniform system of
requirements to address these risks without waiting for the information
and analyses necessary to complete a final Regulatory Determination.
EPA will continue to monitor these critical areas, and will provide the
public with an additional opportunity to comment on any proposed
Regulatory Determination, prior to issuing a final Regulatory
Determination.
B. Final Regulatory Determination Regarding Beneficial Use
EPA generally proposed to retain the May 2000 Regulatory
Determination that beneficially used CCR did not warrant federal
regulation under subtitle C of RCRA. As EPA stated in the May 2000
Regulatory Determination, ``In the [Report to Congress], we were not
able to identify damage cases associated with these types of beneficial
uses, nor do we now believe that these uses of coal combustion wastes
present a significant risk to human health and the environment. While
some commenters disagreed with our findings, no data or other support
for the commenters' position was provided, nor was any information
provided to show risk or damage associated with agricultural use.
Therefore, we conclude that none of the beneficial uses of coal
combustion wastes listed above pose risks of concern.'' (See 65 FR
32230.) EPA noted that since the original Regulatory Determination, the
Agency had found no data or other information to indicate that existing
efforts of states, EPA, and other federal agencies had been inadequate
to address the environmental issues associated with the beneficial use
of CCR that were originally identified in the Regulatory Determination.
EPA explained that it had proposed this approach in recognition that
some uses of CCR, such as encapsulated uses in concrete, and use as an
ingredient in the manufacture of wallboard, provide benefits and raise
minimal health or environmental concerns. Consequently, EPA
preliminarily concluded that encapsulated uses of CCR, which are common
in many consumer products, did not merit regulation based on the
available information.
However, EPA noted that the issues were more difficult with respect
to unencapsulated uses of CCR and specifically solicited comment on
whether such uses should continue to be included as ``beneficial use''
under the Bevill exemption. EPA explained that unencapsulated uses have
raised concerns and therefore merited closer attention. For example,
the placement of unencapsulated CCR on the land, such as in road
embankments or in agricultural uses, presented a set of issues similar
to those that caused the Agency to propose to regulate CCR destined for
disposal. But the Agency also acknowledged that the amounts and, in
some cases, the manner in which CCR is used--i.e., subject to
engineering specifications and material requirements rather than
landfilling techniques--are potentially very different from land
disposal.
EPA is retaining the original 2000 Regulatory Determination for CCR
that is beneficially used. EPA has made this determination based on
consideration of the available information and the RCRA section 8002(n)
study factors. {{
1. Source and Volume of CCR Generated Each Year
The American Coal Ash Association (ACAA) conducts a voluntary,
annual survey of the coal-fired electric utility industry to track the
quantities of CCR generated and beneficially used. According to the
latest survey, the electric utility industry generated nearly 110
million tons of CCR in 2012. Approximately 39 million tons of these CCR
was identified by ACAA as beneficially used in either encapsulated or
unencapsulated products. An additional 12.8 million tons were placed in
mine-fill operations, while the remaining 57.8 million tons were
disposed of in landfills and surface impoundments (ACAA, 2013).\33\
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\33\ ACAA (American Coal Ash Association). 2013. 2012 Coal
Combustion Product (CCP) Production & Use Survey Report. Farmington
Hills, MI 48331. Available online at: http://www.acaa-usa.org/Portals/9/Files/PDFs/revisedFINAL2012CCPSurveyReport.pdf
---------------------------------------------------------------------------
2. Present Utilization Practices
Based on the beneficial use rates reported by ACAA, approximately
50 percent of the CCR beneficially used on an annual basis falls into
two categories: (1) Fly ash used as a direct substitute for Portland
cement during the production of concrete (referred to as ``fly ash
concrete''); and (2) FGD gypsum used as a replacement for mined gypsum
in wallboard (referred to as ``FGD gypsum wallboard''). Specifically,
the 2012 ACAA survey indicates that the largest encapsulated beneficial
uses of CCR, by more than a factor of two, are fly ash used in
``concrete/concrete products/grout'' (12.6 million tons) and FGD gypsum
used in ``gypsum panel products'' (7.6 million tons).
3. Potential Danger, if Any, to Human Health or the Environment From
the Reuse of CCR
The risks associated with the disposal of CCR stems from the
specific nature of that activity; that is, the disposal of CCR in
(often unlined) landfills or surface impoundments, with thousands, if
not millions, of tons placed in a single
[[Page 21328]]
concentrated location. And in the case of surface impoundments, the CCR
is managed with water, under a hydraulic head, which promotes rapid
leaching of contaminants into neighboring groundwater. The beneficial
uses identified as excluded under the Bevill exemption for the most
part present a significantly different risk profile.
a. Encapsulated Beneficial Uses
An encapsulated beneficial use is one that binds the CCR into a
solid matrix that minimizes mobilization into the surrounding
environment. Examples of encapsulated uses include, but are not limited
to: (1) Filler or lightweight aggregate in concrete; (2) a replacement
for, or raw material used in production of, cementitious components in
concrete or bricks; (3) filler in plastics, rubber, and similar
products; and (4) raw material in wallboard production.
Since publication of the proposal, EPA has developed a methodology
for evaluating encapsulated beneficial uses. A copy of the methodology
can be found at http://www2.epa.gov/coalash/methodology-evaluating-encapsulated-beneficial-uses-coal-combustion-residuals. EPA applied
this methodology to the two largest CCR uses--the use of fly ash as a
replacement for Portland cement in concrete, and the use of FGD gypsum
as a replacement for mined gypsum in wallboard. A complete copy of the
evaluation can be found at http://www.epa.gov/wastes/conserve/imr/ccps/pdfs/ccr_bu_eval.pdf.
The evaluation considered products that meet relevant physical and
performance standards, that conform to standard design specifications,
and that incorporate fly ash and FGD gypsum from pollution control
devices currently used in the United States. Based on the findings of
the evaluation, the Agency concluded that environmental releases of
constituents of potential concern from CCR fly ash concrete and FGD
gypsum wallboard during use by the consumer are comparable to or lower
than those from analogous non-CCR products, or are at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors.
b. Unencapsulated Uses
EPA acknowledged in the proposal that unencapsulated uses generally
presented more difficult issues than encapsulated uses. CCR can leach
toxic metals at levels of concern, so depending on the characteristics
of the CCR, the amount of material placed, how it is placed, and the
site conditions, there is a potential for environmental concern.
However, EPA cannot extrapolate from the risk assessments conducted to
evaluate the management practices associated with CCR landfills and CCR
surface impoundments, because the exposure patterns are too dissimilar:
The amounts and manner involved with beneficial use are very different
than the thousands, if not millions of tons of CCR that are mounded in
a single concentrated location in a landfill. And the potential
exposures are entirely unlike surface impoundments, where CCR is
managed with water under a hydraulic head, which promotes more rapid
leaching of contaminants. By contrast ``beneficial uses,'' even
unencapsulated uses, are typically subject to engineering
specifications, and for certain uses, federal oversight, and material
requirements. For example, fly ash used as a stabilized base course in
highway construction is subject to both regulatory standards under the
U.S. Department of Transportation (DOT) and the Federal Highway
Administration (FHWA), and engineering specifications, such as the ASTM
C 593 test for compaction, the ASTM D 560 freezing and thawing test,
and a seven day compressive strength above 2760 kPa (400 psi). (See 75
FR 35163-35165 for additional examples.)
In 1999, EPA conducted a risk assessment of certain agricultural
uses of CCR, since this practice was considered the most likely to
raise human health or environmental concerns.\34\ EPA estimated the
risks associated with such uses to be within the range of 1 x
10-6. These results as well as EPA's conclusion that the use
of CCR in agricultural settings was the most likely use to raise
concerns, caused EPA to conclude that none of the beneficial uses
identified in the 2000 Regulatory Determination warranted federal
regulation, because ``we were not able to identify damage cases
associated with these types of beneficial uses, nor do we now believe
that these uses of coal combustion wastes present a significant risk to
human health or the environment.'' (65 FR 32230, May 22, 2000.)
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\34\ For more information on this risk assessment see EPA's
Notice of Regulatory Determination on Wastes from the Combustion of
Fossil Fuels (65 FR 32214, May 22, 2000).
---------------------------------------------------------------------------
EPA also noted that beneficially using secondary materials
conserves natural resources, and can serve as an important alternative
to disposal.
4. Documented Cases in Which Damage to Human Health or the Environment
From Surface Run-off or Leachate Has Been Proved
To date, EPA has seen no evidence of damages from the encapsulated
beneficial uses of CCR that EPA identified in the proposal. For
example, there is wide acceptance of the use of CCR in encapsulated
uses, such as wallboard, concrete, and bricks because the CCR is bound
into products. However, as of the date of the proposed rule, seven
proven damage cases associated with unencapsulated uses have occurred,
in which large quantities of unencapsulated CCR were used
indiscriminately to re-grade the landscape or to fill old quarries or
gravel pits. The proposed rule discussed two of these cases. (See 75 FR
35147.) The first case was in Gambrills, Maryland and involved the
disposal of fly ash and bottom ash (beginning in 1995) in two sand and
gravel quarries. EPA considers this site a proven damage case, because
groundwater samples from residential drinking wells near the site
include heavy metals and sulfates at or above groundwater quality
standards, and the state of Maryland is overseeing remediation. The
second case is the Battlefield Golf Course in Chesapeake, Virginia
where 1.5 million yards of fly ash were used as fill and to contour a
golf course. Groundwater contamination above MCLs has been found at the
edges and corners of the golf course, but not in residential wells. An
EPA study in April 2010, established that residential wells near the
site were not impacted by the fly ash and, therefore, EPA does not
consider this site to be a proven damage case. However, due to the
onsite groundwater contamination, EPA considers this site to be a
potential damage case.
During the development of this final rule, EPA obtained information
on a comparable situation in which large quantities of unencapsulated
CCR were placed on the land in a manner that presented significant
concerns. The AES coal-fired power plant in Puerto Rico lacked capacity
to dispose of their CCR on-site, and off-site landfills in Puerto Rico
were prohibited from accepting CCR. In lieu of transporting their CCR
off of the island for disposal, AES created an aggregate (``AGREMAX'')
with the CCR generated at their facility, and used the aggregate as
fill in housing developments and in road projects. Over two million
tons of this material was used between 2004 and 2012.
Currently, there is insufficient information to determine whether
groundwater has been contaminated as
[[Page 21329]]
a result of this practice, and thus, EPA cannot classify this as either
a proven or potential ``damage case.'' Nevertheless, the available
facts illustrate several of the significant concerns associated with
unencapsulated uses. Specifically, the AGREMAX was applied without
appropriate engineering controls and in volumes that far exceeded the
amounts necessary for the engineering use of the materials. Inspections
of some of the sites where the material had been placed showed use in
residential areas, and to environmentally vulnerable areas, including
areas close to wetlands and surface waters and over shallow, sole-
source drinking water aquifers. In addition, some sites appeared to
have been abandoned.
Consistent with the proposed rule, EPA does not consider the
practices described in this section to be beneficial use, but rather
waste management that would be subject to the requirements of the final
rule.
5. Alternatives to Current Disposal Methods, the Costs of Such
Alternatives, and the Impact of Such Alternatives on the Use of Coal
and Other Natural Resources
The beneficial use of CCR is a primary alternative to current
disposal methods. And as EPA has repeatedly concluded, it is a method
that, when performed correctly, can offer significant environmental
benefits, including greenhouse gas (GHG) reduction, energy
conservation, reduction in land disposal (along with the corresponding
avoidance of potential CCR disposal impacts), and reduction in the need
to mine and process virgin materials and the associated environmental
impacts.
a. Greenhouse Gas and Energy Benefits
The beneficial use of CCR reduces energy consumption and GHG
emissions in a number of ways. Three of the most widely recognized
beneficial applications of CCR are the use of coal fly ash as a
substitute for Portland cement in the manufacture of concrete, the use
of FGD gypsum as a substitute for mined gypsum in the manufacture of
wallboard, and the use of CCR as a substitute for sand, gravel, and
other materials in structural fill. Reducing the amount of cement,
mined gypsum, and virgin fill produced by substituting CCR leads to
large supply chain-wide reductions in energy use and GHG emissions.
Specifically, the RIA estimates three-year rolling average of
53,054,246 million British thermal units (MMBtu) per year in energy
savings and 11,571,116 tons per year in GHG (i.e., carbon dioxide and
methane) emissions reductions in 2015. This estimate is likely to
underestimate the total benefits that can be achieved from all
beneficial uses. Furthermore, the use of fly ash generally makes
concrete stronger and more durable. This results in a longer lasting
material, thereby marginally reducing the need for future cement
manufacturing and corresponding avoided emissions and energy use.
b. Benefits From Reducing the Need To Mine and Process Virgin Materials
CCR can be substituted for many virgin materials that would
otherwise have to be mined and processed for use. These virgin
materials include limestone to make cement, and Portland cement to make
concrete; mined gypsum to make wallboard, and aggregate, such as stone
and gravel for uses in concrete and road bed. Using virgin materials
for these applications requires mining and processing, which can impair
wildlife habitats and disturb otherwise undeveloped land. It is
beneficial to use secondary materials--provided it is done in an
environmentally sound manner--that would otherwise be disposed of,
rather than to mine and process virgin materials, while simultaneously
reducing waste and environmental footprints. Reducing mining,
processing and transport of virgin materials also conserves energy,
avoids GHG emissions, and reduces impacts on communities.
c. Benefits From Reducing the Disposal of CCR
Beneficially using CCR instead of disposing of it in landfills and
surface impoundments also reduces the need for additional landfill
space and any risks associated with their disposal. In particular, the
United States disposed of over 57.8 million tons of CCR in landfills
and surface impoundments in 2012, which is equivalent to the space
required of 20,222 quarter-acre home sites under eight feet of CCR.
As discussed in the final rule RIA, the current beneficial use of
CCR as a replacement for industrial raw materials (e.g., Portland
cement, virgin stone aggregate, lime, gypsum) provides substantial
annual life cycle environmental benefits for these industrial
applications. Specifically, the three-year rolling average of
environmental benefits estimated for 2015 includes: (1) 53,054,246
MMBtu per year in energy savings; (2) 1,661,900 million gallons per
year in water savings; (3) 11,571,116 tons per year in GHG (i.e.,
carbon dioxide and methane) emissions reductions; (4) 45,770 tons of
criteria air pollutant (i.e., NOX, SOX,
particulate matter, and CO) emissions reductions; and (5) 3,207 pounds
of toxic air pollutant (i.e., mercury and lead) emissions reductions.
All together, the beneficial use of CCR in 2015 is estimated to provide
over $2.3 billion in annual national environmental benefits. In
addition, since EPA estimates annual baseline disposal costs of
approximately $2.4 billion for the just over 50 percent of tons
disposed each year, current beneficial use and minefilling also result
in annual material and disposal cost savings of approximately $2
billion annually.
6. Current and Potential Utilization of CCR
In 2012, nearly 36 percent (39 million tons) of CCR were
beneficially used (excluding minefill operations) and nearly 12 percent
(12.8 million tons) were placed in minefills. (This compares to 23
percent of CCR that were beneficially used, excluding minefilling, at
the time of the May 2000 Regulatory Determination, and represents a
significant increase.)
7. Conclusions
On balance, after considering all of the available information, EPA
has concluded that the most appropriate approach toward beneficial use
is to retain the May 2000 Regulatory Determination that regulation
under subtitle C of the beneficial use of CCR is not warranted. EPA has
also determined that regulation under subtitle D is generally not
necessary for these beneficial uses.
As discussed in the preceding section, the most important of the
section 8002(n) factors are those relating to the potential risks to
human health and the environment. See e.g., Horsehead Resource
Development Co. v. EPA, 16 F.3d 1246, 1258 (D.C. Cir, 1994) (Upholding
EPA's interpretation that wastes resulting from the combustion of
mixtures of Bevill-exempt and non-exempt wastes could only retain
Bevill-exempt status so long as the combustion waste remained of low
toxicity); EDF v. EPA, 852 F.2d 1316, 1328-1329 (D.C. Cir. 1988)
(Overturning EPA rule that included as Bevill exempt, wastes that were
not of low toxicity). EPA is adopting this Regulatory Determination in
recognition that many uses of CCR, such as encapsulated uses in
concrete, and use as an ingredient in the manufacture of wallboard,
provide environmental benefits and raise minimal health or
environmental concerns. To date, the information available does not
demonstrate the existence of any risks associated with encapsulated
uses of CCR that merit
[[Page 21330]]
regulation under either subtitle C or subtitle D of RCRA.
While there can be some risks associated with unencapsulated uses--
for example, the placement of unencapsulated CCR on the land, such as
in large scale fill operations or in agricultural uses, depending on
the specific site conditions--in general the amounts and, in some
cases, the manner in which they are used are very different than land
disposal. For example, agricultural uses involve the placement of
inches rather than tons of CCR, and placement of CCR in a thin layer
rather than mounded in a single concentrated location. In addition,
these uses are subject to engineering specifications and materials
requirements, which will limit the ultimate amount of material placed
on the land.
EPA recognizes that several proven damage cases involving the
large-scale placement, akin to disposal, of CCR have occurred under the
guise of ``beneficial use''-- the ``beneficial'' use being the filling
up of old quarries or gravel pits, or the re-grading of landscape with
large quantities of CCR. EPA did not consider this type of use as a
``beneficial'' use in its May 2000 Regulatory Determination, and still
does not consider this type of use to be covered by the exclusion.
Therefore, the final rule explicitly removes these types of uses from
the category of beneficial use, and from this Regulatory Determination.
As discussed in the next section of this preamble, EPA has adopted
criteria in the final rule to ensure that inappropriate uses that
effectively are disposal will be regulated as disposal. The final rule
expressly defines the placement of CCR in sand and gravel pits or
quarries as disposal in a landfill. In addition, the final rule
provides that the use of large volumes of CCR in restructuring
landscape that does not meet specific criteria will constitute
disposal.
While EPA has not definitively concluded that all unencapsulated
beneficial uses are ``safe,'' based on the current record for this
rulemaking, EPA is unable to point to evidence demonstrating that the
unencapsulated uses subject to this Determination warrant federal
regulation. While the absence of demonstrated harm in this instance is
not proof of safety, neither is the lack of information proof of
risk.\35\
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\35\ The Agency is currently developing a Framework to address
the risks associated with the beneficial use of unencapsulated
materials. This Framework is expected to be finalized in 2015. See
Unit VI of this document for more information.
---------------------------------------------------------------------------
In this regard, EPA notes that many states have developed
beneficial use programs that allow the use of CCR, provided they are
demonstrated to be non-hazardous materials; and many require a site
specific assessment before authorizing placement on the land of large
amounts of unencapsulated CCR. For example, Wisconsin's Department of
Natural Resources has developed a regulation (NR 538 Wis. Adm. Code),
which includes a five-category system to allow for the beneficial use
of industrial by-products, including coal ash, provided they meet the
specified criteria. In addition, the ASTSWMO 2006 Beneficial Use Survey
Report states that a total of 34 of the 40 reporting states, or 85
percent, indicated they had either formal or informal decision-making
processes or beneficial use programs relating to the use of solid
wastes. (http://www.astswmo.org/Files/Policies_and_Publications/Solid_Waste/2007BUSurveyReport11-30-07.pdf) \36\ Because EPA has not
identified significant risks associated with the beneficial uses
covered by this Regulatory Determination, the adequacy of these state
programs does not factor into EPA's Determination. Nevertheless, to the
extent that that these materials do have the potential to pose risk at
an individual site, the fact that many states exercise regulatory
oversight of these materials provides an additional level of assurance.
---------------------------------------------------------------------------
\36\ EPA has worked with the states to support the development
of a national database on state beneficial use determinations.
Information on the beneficial use determination database can be
found on the Northeast Waste Management Officials' Association
(NEWMOA) Web site at http://www.newmoa.org/solidwaste/bud.cfm. This
database helps states share information on beneficial use decisions
providing for more consistent and informed decisions.
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Finally, EPA does not wish to inhibit or eliminate the measurable
environmental and economic benefits derived from the use of this
valuable material given the current lack of evidence affirmatively
demonstrating an environmental or health risk. Consequently, EPA is
confident that the combination of the final rule, EPA guidance, current
industrial standards and practices, and in many cases, state regulatory
oversight is sufficient to address concerns associated with the
beneficial uses to which this Determination applies.
V. Development of the Final Rule--RCRA Subtitle D Regulatory Approach
As previously discussed in Unit II of this document, the authority
to develop and promulgate the national minimum criteria governing the
disposal of CCR in landfills and surface impoundments is found under
the provisions of sections 1008(a), 4004, and 4005(a) of RCRA (i.e.,
subtitle D of RCRA). These authorities, however, do not provide EPA
with the ability to issue permits, require states to issue permits,
approve state programs to operate in lieu of the federal program, or to
enforce any of the requirements addressing the disposal of CCR.
Consequently, EPA designed the proposed RCRA subtitle D option to
ensure that the requirements will effectively protect human health and
the environment within those limitations. The final rule establishes
self-implementing requirements--primarily performance standards--that
owners or operators of regulated units can implement without any
interaction with regulatory officials.
In developing the subtitle D option for the proposal, EPA
considered a number of existing programs as relevant models. EPA drew
most heavily on the existing 40 CFR part 258 program applicable to
MSWLFs. While this program does not address CCR disposal in surface
impoundments, it provided EPA with a general regulatory framework that
addressed all aspects of disposal in certain land-based units. Given
the Agency's expansive history and experience with these requirements,
EPA concluded that the part 258 criteria with certain modifications for
other land-based disposal units (i.e., surface impoundments)
represented a reasonable balance between ensuring the protection of
human health and the environment from the risk of CCR disposal and the
absence of any regulatory oversight. (See 75 FR 35192-35195.)
EPA also considered that many of the technical requirements
developed to specifically address the risks from the disposal of CCR as
part of the subtitle C alternative would be equally justified under a
RCRA subtitle D regulatory regime. The factual record--i.e., the risk
analysis and the damage cases--supporting such requirements was the
same, irrespective of the statutory authority under which the Agency
was operating. Thus, several of the provisions under RCRA subtitle D
either corresponded to the proposal under RCRA subtitle C, or were
modeled after the existing subtitle C requirements; for example, EPA
proposed the same MSHA-based structural stability standards for surface
impoundments under the subtitle C and subtitle D options. However,
because there is no corresponding guaranteed permit mechanism under the
RCRA subtitle D requirements, EPA also considered the 40 CFR part 265
interim status requirements for hazardous waste facilities, which were
designed to operate in the absence of a permit. These requirements were
particularly
[[Page 21331]]
relevant in developing the requirements for surface impoundments since
such units are not regulated under 40 CFR part 258. Beyond their self-
implementing design, these requirements provided a useful model
because, based on decades of experience in implementing these
requirements, EPA had assurance that these requirements were protective
for a variety of waste, under a wide variety of site conditions.
In an effort to ensure that the proposed RCRA subtitle D
requirements would achieve the statutory standard of ``no reasonable
probability of adverse effects on health and the environment'' in the
absence of guaranteed regulatory oversight, EPA also proposed to
require facilities to obtain third party certifications and to provide
enhanced state and public notifications of actions taken to comply with
the regulatory requirements. Specifically, EPA proposed that certain
technical demonstrations made by the owner or operator be certified by
an independent registered professional engineer or hydrologist, in
order to provide verification and otherwise ensure that the provisions
of the rule were properly applied. EPA also provided a regulatory
definition of the term, ``independent registered professional engineer
or hydrologist,'' to identify the minimum qualifications necessary to
make these certifications. While EPA acknowledged that relying upon a
third party certification was not the same as relying upon a state or
federal regulatory authority and was not expected to provide the same
level of independence as a state permit program, the availability of
meaningful third party (i.e., independent) verification provided
critical support that the rule would achieve the statutory standard, as
it would provide at least some degree of control over a facility's
discretion in implementing the rule.
As part of the notification requirements, EPA further proposed that
all owners and operators create and maintain an operating record and
publically accessible Web site, containing comprehensive documentation
of compliance with the rule. EPA also proposed that owners or operators
provide notification to the state and the public of third party
certifications as well as other information documenting actions taken
to comply with the technical criteria of the rule.
A. The Self-Implementing Approach
While the vast majority of state and industry commenters supported
regulating the management of CCR under subtitle D of RCRA, a very
limited number of commenters favored the proposed self-implementing
option. Most commenters argued that if the Agency were to adopt the
proposed subtitle D approach it would most certainly result in parallel
and redundant regulatory programs for CCR in many states, creating an
unworkable situation for industry, as well as the state. Some
commenters argued that under this dual regulatory approach, an owner or
operator of a CCR unit could conceivably be in non-compliance with both
a federal requirement and an independently administered state
regulatory requirement, subjecting the owner or operator to both a
citizen suit enforcement action in federal court for the alleged
violation and to a wholly separate enforcement action in state court
for violation of the parallel state requirement. Commenters argued that
this regulatory construct made no sense and would waste federal and
state judicial resources and company resources, as well as possibly
resulting in inconsistent federal and state court determinations with
respect to an identical regulatory requirement. It also could result in
duplicative federal and state penalties for essentially the same
regulatory infraction.
Commenters further argued that the prescriptive one-size-fits-all
approach was overly stringent and inflexible and had the potential to
greatly disrupt implementation of a state's regulatory programs, which
have been tailored to provide for site specific conditions and
situations. Moreover, commenters argued that because of the many state
regulatory programs addressing CCR disposal, there would be many
instances where state requirements could be in conflict with, in
addition to, or separate from the federal requirements and it was
unclear how these differences would be resolved.
Many commenters simply argued that a permitting program similar to
that for MSWLFs was the only viable approach for the regulation of CCR.
A significant number of commenters, however, proposed various
alternative approaches for regulating CCR disposal under subtitle D of
RCRA. One option would have EPA allow qualified state programs to
directly administer the subtitle D requirements for CCR when the state
regulatory program meets or exceeds the federal requirements, thereby
minimizing duplicative regulations and avoiding the self-implementing
``one size fits all'' approach contained in EPA's proposal. This
option, commenters reasoned, could be implemented utilizing a process
developed by the Agency for evaluating whether the state's CCR
regulations were equivalent to the federal minimum criteria (much like
EPA does now in the case of MSWLFs under 40 CFR part 258). Another
suggested approach involved EPA clarifying that a state can be more
restrictive than the federal rule, and that where a state has a
subtitle D regulatory program that is more restrictive, the state
program and permitting process would take precedence over any self-
implementation aspects of a final rule. (The proposed rule had simply
stated that an owner or operator must comply with any other applicable
federal, state, tribal or local laws or other requirements.) Commenters
also proposed a third option, similar to the 40 CFR part 258 program,
recognizing that EPA cannot approve state programs in this rule.
Specifically, 40 CFR part 258 provides a definition for ``Director of
an approved state'' that means they are the chief administrative
officer of a state agency responsible for implementing the state permit
program that is deemed to be adequate by EPA under regulations
published pursuant to sections 2002 and 4005 of RCRA. The commenters
suggested that the final rule adopt a similar approach by defining a
``state permit program'' and allowing a state permit program that met
the definition to approve compliance with a specified regulatory
requirement, e.g., landfill design. The commenter suggested the
following definition: ``state permit program means a permit program
implemented by a state agency that adopts and implements the minimum
requirements for the disposal of coal combustion residuals outlined in
this final rule.'' The commenter claimed that such an approach should
not affect enforcement through citizen suits under RCRA section 7002 or
by EPA under RCRA section 7003. Taking such an approach, commenters
reasoned, would allow states to utilize their own enforcement authority
and not rely upon the citizen suit authority under RCRA section 7002.
Furthermore, allowing states to consider alternative approaches to the
technical standards may give states an incentive to adopt the minimum
requirements of the final federal rule into their state permit
programs.
As noted, many commenters suggested that EPA rely on the same
combination of RCRA statutory authorities, i.e., RCRA sections 4010(c)
and 4005(c), to establish controls for CCR units that it employed in
promulgating federally enforceable subtitle D rules for MSWLFs and for
non-MSWLFs that receive household
[[Page 21332]]
hazardous waste and small quantity generator waste under 40 CFR parts
257 and 258. RCRA sections 4010(c) and 4005(c), the commenters
reasoned, provides EPA that authority because non-hazardous waste CCR
disposal facilities have the potential to receive household wastes or
conditionally exempt small quantity generator waste, whether or not
such waste is actually received at the CCR disposal facility.
Commenters contended that the combination of these two provisions could
enable EPA to promulgate non-hazardous waste rules for CCR that could
be directly administered through state permitting programs and backed
up by direct EPA enforcement powers in those states that fail to
adequately implement the federal rules. Such an approach, commenters
concluded provides the Agency with the enforcement authority it desires
under a subtitle D regulatory program, while enabling states to have a
prominent role in the administration of any subtitle D rules, and
preventing the duplication of potentially conflicting federal and state
controls.
Finally, some commenters encouraged EPA to request from Congress
the statutory authority necessary to propose non-hazardous regulations
under subtitle D that could be implemented by the states and provide
federal enforceability (similar to RCRA's part 258 requirements for
MSWLFs). Commenters argued that states should be allowed to enforce
compliance through a traditional permitting system, and that solid
waste operating permits are critical to ensuring coal ash disposal
facilities design, construct, operate and close their waste facilities
safely. Commenters argued that permits are important because they can
dictate the use of specific operating practices and control
technologies that may be essential for minimizing releases. Permits
also provide an important enforcement vehicle, as well as a process by
which the public can be informed and participate in the siting,
operation and closure of the waste disposal unit.
While the Agency appreciates commenters' attempts to craft
alternative approaches to address the limitations in the proposed self-
implementing subtitle D option, EPA has not ``chosen'' to design
standards under subtitle D that are self-implementing. The sections of
RCRA that are currently applicable to CCR--sections 1008(a), 4004(a),
and 4005(a)--only authorize the Agency to establish minimum national
criteria that apply to ``facilities.''
As previously discussed, these provisions do not authorize EPA to
require that facilities obtain a permit from EPA or a state. The fact
that section 4004(a) does not contain any provision that either
expressly requires a permit to manage waste, such as in section 3005,
or that requires states to adopt a permit program, such as in section
4004(c)(1), provides strong evidence that Congress did not authorize
EPA to impose such a requirement on facilities managing solid waste.
Compare 42 U.S.C. 6925(a), 6944(a), and 6945(c)(1). This is further
confirmed by the fact that Congress thought it necessary to expressly
add provisions to require state permit programs in 4010(c) and 4005(c).
And the fact that the HSWA provisions are limited to two specifically
enumerated types of units provides further evidence that Congress
intended to authorize EPA to require permits only for these units.
The restriction that the criteria apply only to ``facilities'' also
means that EPA cannot establish any requirements on states or state
programs, either directly or indirectly. This means, for example, that
EPA cannot adopt a regulation that restricts certain provisions to
those ``state permit programs'' that meet EPA requirements, as one
commenter suggested, since this would indirectly regulate state
programs--leaving aside that EPA never proposed anything of the sort.
This also means that EPA cannot require a facility to obtain state
approval, as this not only presupposes the existence of a state permit
program, but also that the state will approve the facility action on
the basis of EPA's criteria. EPA cannot condition a facility's
compliance on actions beyond its control.
However, these provisions restrict EPA's authority only. The
legislation is clear that these are minimum requirements only, and
without preemptive effect; states may therefore impose more stringent
requirements, including the requirement that CCR facilities obtain a
permit. This is also wholly consistent with longstanding EPA
interpretations. See 44 FR 53438, 53439 (September 13, 1979) (``the
standards established in the criteria constitute minimum requirements.
These criteria do not preempt other state and federal requirements.
Nothing in the Act precludes the imposition of additional obligations
under authority of other laws on parties engaged in solid waste
disposal.''); see also 44 FR 45066 (July 31, 1979) (``EPA establishes
only `minimum' requirements under this portion of the Act which should
not prevent States from developing broader programs or stricter
standards under authority of State law.''). States may also incorporate
the federal requirements into state law--whether through revisions to
existing legislation or regulation, or through incorporating them into
any permits issued to CCR facilities. Such an approach would also
resolve commenters' concerns about the potential for ``parallel and
redundant regulatory programs.''
While subtitle C and 4005(c) provide for state oversight on rule
implementation and allow approved state requirements to operate in lieu
of federal criteria, the Agency lacks the authority to do so under the
subsections of RCRA currently applicable to CCR. The provisions
applicable to solid waste--sections 1008(a)(3), 4003, 4004(a) and
4005(a)--establish a regulatory structure that differs in key respects
from those established under subtitle C and for MSWLFs under section
4005(c). Under subtitle C and section 4005(c), Congress required EPA to
establish federal criteria that will serve as national minimum
standards, which is comparable to the authority under section 4004(a).
But subtitle C and section 4005(c) also include detailed provisions
governing both the state implementation of those requirements and the
relationship between the federal requirements and the state programs
that implement them. No comparable provisions appear in either section
4004(a) or section 4003, which governs the approval of state SWMPs. And
the consequences of these omissions are significant.
Subtitle C of RCRA contains several provisions that establish the
relationship between the federal program and state requirements; these
include provisions authorizing EPA to approve state programs and to
retain a direct role in the implementation of the federal minimum
requirements, whether through continued oversight of state
implementation or direct implementation of the regulations. See, 42
U.S.C. 6926, 6928(a)(2), and 6929. For purposes of this issue, the most
critical of these is the explicit direction in section 3006 that
authorized state programs ``operate in lieu of the Federal program.''
42 U.S.C. 6926(b), (c)(1). See also 42 U.S.C. 6929 (prohibiting the
adoption of less stringent state requirements than those in EPA
regulations, and authorizing states to establish more stringent
requirements).
The provisions for MSWLFs under section 4005(c) are less detailed,
but establish a similar regulatory structure. Section 4005(c)(1)
expressly directs the states to ``adopt and implement a permit program
or other system of prior approval and conditions,'' for covered
[[Page 21333]]
facilities in order to implement federal requirements established for
such facilities. 42 U.S.C. 6945(c)(1). The statute directs EPA to
determine the adequacy of such programs, and directs EPA to enforce the
federal requirements in states that have not adopted an adequate
program. 42 U.S.C. 6945(c)(1)(C), (2). While less detailed than the
provisions under subtitle C, section 4005(c) establishes a system that
is equally predicated on mandated implementation by a state regulatory
authority of the federal requirements, rather than the potential
coexistence of two separate regulatory systems.
The absence of any similar provisions in the ``solid waste''
provisions of subtitle D demonstrates that Congress intended to create
a different regulatory structure. EPA's role under sections 1008(a)(3)
and 4004(a) is to establish minimum criteria to determine which
facilities ``shall be classified as sanitary landfills and which shall
be classified as open dumps,'' and to encourage states to use the
criteria as a part of their solid waste management planning. Under this
regulatory structure, Congress intended that the federal requirements
apply directly to facilities and operate independent of state
involvement, unless the state chooses to do otherwise. The ability to
approve state SWMPs under section 4003 does not alter this
relationship. Indeed, the fact that Congress thought it necessary to
revise section 4005 to include the specific provisions in subsection
(c) confirms that Congress did not believe such authority already
existed under sections 4003 and 4004.
Approval of a state's SWMP pursuant to section 4003 qualifies the
state to receive federal funds (no longer available) and authorizes the
state to issue compliance schedules; but unlike under section 3006 or
4005(c), an authorized plan does not affect the federal minimum
standards themselves, or authorize states to do so. Section 4003
contains nothing that explicitly or implicitly authorizes state
requirements to operate ``in lieu of'' the federal requirement as a
consequence of EPA approval of the state plan. The closest analogue is
that states with an approved plan may establish a ``timetable or
schedule'' to bring existing open dumps into compliance with the
federal requirements; but notably, Congress only authorized the state
to modify the timeframes by which such facilities must be in
compliance, not the substantive requirements themselves. 42 U.S.C.
6945(a).
The combination of this regulatory structure and the need to
demonstrate that the final rule achieves section 4004(a)'s
protectiveness standard based on the record at the time the rule is
promulgated also effectively limits EPA's ability to establish the kind
of regulatory provisions commenters have requested (i.e., establish an
alternative that allows a state permit program to approve a less
stringent technical requirement based on site specific conditions).
Because as discussed in Unit IV of this document, EPA is currently
unable to reach a conclusion regarding the adequacy of state programs,
EPA cannot demonstrate that such an alternative would meet the section
4004(a) standard. And in the absence of a mandatory mechanism for
subsequent public involvement and review, which would create decisions
with their own record, subject to judicial review in their own right,
the lack of such information is dispositive.
With respect to the proposal to rely on RCRA sections 4010(c) and
4005(c) authorities, EPA also disagrees that this is a viable option.
As the comment appears to acknowledge, construing sections 4010(c) and
4005(c) to apply to CCR units on the basis that they could potentially
receive conditionally-exempt small quantity generator waste is
inconsistent with EPA's longstanding interpretation of those sections.
EPA directly addressed this issue nearly 20 years ago in the preamble
for EPA's final rules at 40 CFR part 257, subpart B. In that discussion
which we summarize in the next several paragraphs, EPA explained that
the proposed rule was written to provide that only those non-municipal
non-hazardous waste disposal units which meet the requirements in
Sec. Sec. 257.5 through 257.30 ``may receive'' CESQG waste, as
required by RCRA section 4010(c). Any non-municipal non-hazardous waste
disposal unit that did not meet the proposed requirements may not
receive CESQG hazardous wastes. The proposal was written to apply to
non-municipal non-hazardous waste disposal units that receive CESQG
waste for storage, treatment, or disposal, including such units as
surface impoundments, landfills, land application units and waste
piles. The regulatory definition of the term ``disposal'' cover all
placement of wastes on the land. See 40 CFR 257.2.
EPA further noted that several commenters addressed the Agency's
interpretation of the statutory language ``may receive.'' One commenter
supported the Agency's decision to limit the proposed regulatory
requirements to only those non-municipal non-hazardous waste disposal
units that receive CESQG wastes. Another commenter, however, stated
that a closer reading of section 4010(c) reveals that Congress was not
only concerned about modifying the criteria for ``facilities that may
receive hazardous household wastes or hazardous wastes from small
quantity generators . . .'' but also for ``facilities potentially
receiving such wastes.'' According to the commenter, the ``may
receive'' clause of the first sentence in section 4010(c) merely refers
to whether a facility may legally receive CESQG waste for disposal. The
``potentially receiving such wastes'' clause of the third sentence of
Section 4010(c) refers to the actual potential for such facilities to
receive CESQG wastes. The potential for CESQG waste to be disposed of
at many types of industrial D landfills is high even with the proposed
prohibition under Sec. 261.5. It is the ``potentially receiving''
clause that specifically commands the Agency to promulgate provisions
for all industrial facilities that could potentially receive CESQG
wastes.
EPA disagreed with the commenter's interpretation of the statutory
language in RCRA section 4010(c). More specifically, for a number of
reasons, the Agency did not believe that the statutory language cited
by the commenter evidenced congressional intent that the revised
criteria promulgated in the rule should address disposal of solid waste
in all industrial disposal facilities. First, EPA believed that the
commenter erred by focusing only on the ``facilities potentially
receiving'' language in the last sentence of section 4010(c). If one
reviews this language together with the statutory language in RCRA
section 4010(a), it is clear that Congress did not intend for the
revised criteria being promulgated in this rule to apply to all
industrial landfills.
RCRA section 4010(a) required EPA to conduct a study of the then
existing guidelines and criteria issued under RCRA sections 1008 and
4004 which were applicable to ``solid waste management and disposal
facilities, including, but not limited to landfills and surface
impoundments.'' 42 U.S.C. 6949a(a). This statutory language does indeed
suggest that EPA was to study a wide range of solid waste disposal
facilities, including industrial landfills. (As the commenter stated,
because the information on industrial disposal facilities was quite
limited, EPA's report to Congress did focus on municipal landfills.)
However, the statutory language in section 4010(c) directing EPA to
promulgate a rule revising the criteria in 40 CFR part 257 limits the
rule's applicability only to those facilities which may receive
hazardous
[[Page 21334]]
household waste or small quantity generator waste. 42 U.S.C. 6949a(c).
If Congress had intended the revised criteria under section 4010(c) to
apply to all solid waste disposal facilities, including industrial
landfills and surface impoundments, it clearly could have done so by
enacting language similar to that already used in section 4010(a).
Secondly, the legislative history of RCRA section 4010 suggests
that Congress expressly rejected a provision that would have required
rules to be promulgated under section 4010(c) to apply to the entire
universe of RCRA subtitle D solid waste disposal facilities. Indeed,
the House version of section 4010 would have required EPA to promulgate
revised guidelines and criteria such that they would be applicable to
all ``solid waste management and disposal facilities, including, but
not limited to landfills and surface impoundments. . . .'' H.R. 2867,
section 30, 98th Cong., 1st Sess. (as introduced in the Senate on
November 9, 1983). However, the Conference Committee instead adopted a
Senate amendment which limited the scope of the revised criteria to
those facilities that may receive hazardous household waste or small
quantity generator waste. H. Rept. No. 98-1133, 98th Cong., 2d Sess.,
at 116-117.
Another indication that RCRA section 4010(c) was not intended to
cover the entire universe of solid waste disposal facilities is the
fact that subsequent to the enactment of section 4010(c) (as part of
the Hazardous and Solid Waste Amendments in 1984), a number of bills
were introduced in Congress which would have either authorized or
required EPA to issue additional regulations that would address all
disposal facilities receiving industrial waste as opposed to addressing
those which may receive CESQG waste as stated in section 4010(c). See,
e.g., H.R. 3735, ``Waste Materials Management Act of 1989,'' section
324 (would have required EPA to promulgate standards for the management
of industrial solid waste) (Luken Bill); S. 1113, ``Waste Minimization
and Control Act of 1989,'' section 204 (would have required EPA to
promulgate requirements for facilities that manage different types of
industrial waste) (Baucus Bill). Neither of these provisions (although
neither was enacted) would have been necessary if RCRA section 4010(c)
required EPA to promulgate revised criteria for all types of industrial
disposal facilities. (See 61 FR 34252, 34254-55 (July 1, 1996).)
The commenter on the proposed CCR rule makes essentially the same
argument based on the same language in 4010(c) that EPA rejected in the
1996 rule. The commenter provided no legal analysis that contravenes
the basis for EPA's interpretation of subtitle D. EPA thus declines to
reopen or reconsider this interpretative question. EPA also notes that
in any case, information in its record for this rulemaking indicates
that CCR landfills or surface impoundments do not actually or
potentially receive CESQG wastes.
Nevertheless, EPA recognizes that this regulatory structure gives
rise to legitimate concerns about the potential for duplicative or
conflicting state and federal regulatory systems. EPA has adopted
measures to address these concerns within the confines of the
regulatory structure that Congress established in subtitle D. First,
EPA has made every effort to ensure that the final rule does not
establish any requirements that truly conflict with existing state
programs. To clarify, this does not mean that the requirements are
necessarily the same, but rather that it is possible to comply with
both federal and state requirements simultaneously. Or in other words,
compliance with the more stringent standard--whether federal or state--
will ensure compliance with the less stringent. Based on the comments
received, EPA is aware of no example of a situation in which truly
conflicting requirements will exist. Second, as discussed, these
regulations do not constrain or direct state action. States can impose
more stringent or different requirements, such as requiring a permit.
Nor does the regulation require the state to enforce the federal
requirements; even with promulgation of the final rule, the decision to
bring an action under section 7002 remains entirely within the state's
discretion. Third, as discussed in greater detail in Unit IX of this
document, EPA has developed a number of measures to clarify the
relationship between an individual state program, or particular
requirements, and the federal criteria. Specifically, for those states
that choose to submit a revised SWMP that incorporates the federal
criteria, EPA intends to rely on the existing processes in 40 CFR part
256 relating to approval of SWMPs. EPA expects that approval of a state
SWMP, while it cannot prevent a citizen group from filing a lawsuit,
will carry substantial weight in any court proceeding charged with
determining whether compliance with state requirements constitutes
compliance with the federal criteria.
B. Enforceability of the Subtitle D Approach
Numerous commenters raised concern that reliance on a RCRA citizen
suit as the basic enforcement mechanism to address non-compliance with
the CCR requirements presents environmental justice concerns.
Commenters argued that as a practical matter, this self-implementing
approach would result in unenforced regulations affecting neighborhoods
where environmental, legal, and technical services are unavailable or
difficult to obtain. Commenters stated that it would be highly
unreasonable for EPA to place the burden of enforcement of the CCR
regulations on citizens, arguing that it is EPA's duty to make sure
federal regulations protecting human health and the environment are
enforced fairly and effectively, and that enforcement by citizen suits
puts an unacceptable burden on low income populations located near
these facilities. Commenters contended that environmental justice
communities were the least likely to mount a serious challenge to the
industry because low income people are often less well-educated, have
less access to computers and internet technology, are less
knowledgeable of how to access and interpret environmental data, and
are the least likely to have the resources for a time consuming legal
battle. Commenters argued that given the high number of damage cases in
this industry, it was clear that the industry cannot police itself and
neither can state governments. For these reasons, commenters asserted
that the regulations and the enforcement must come from the federal
level.
Conversely, other commenters were encouraged by the opportunity to
enforce the rule through citizen suits, stating that it would result in
very effective regulation since citizens have shown no reluctance to
challenge companies that they believe are not responsibly following
environmental regulations. Similarly, other commenters noted that other
incentives existed to comply with the regulations, including the
possibility of state and third party litigation (for both regulatory
compliance and actual damages), and the requirements of investors,
lenders, and insurers to demonstrate compliance with environmental
requirements, i.e., investors and lenders typically condition capital
investments and loans on environmental compliance. Commenters also
noted that incentives to comply were created by environmental insurance
policies, which ``invariably exclude damage claims arising from non-
compliance from covered events'' as well as typical corporate policies
that call for
[[Page 21335]]
environmental compliance as a standard operating procedure.
Other commenters focused on the role of the professional engineer
in the self-implementing framework, arguing that EPA is requiring the
certifying professional to inappropriately take on a quasi-regulatory
and enforcement role which places the certifying professional at great
risk of being subject to nuisance lawsuits from project opponents,
creating a scenario where some professionals may decline to be involved
in such reviews. Still other commenters argued with EPA's basic premise
that the RCRA subtitle D program lacks federal enforceability.
Commenters contended that EPA's concerns about the lack of direct
federal enforcement authority failed to recognize the significant
enforcement opportunities available under existing law, namely the
``imminent and substantial endangerment authority'' under RCRA section
7003 to take action against any CCR unit that posed a risk to human
health and the environment, as well as, the imminent and substantial
endangerment authorities under CERCLA, as well as other federal
authorities, including the federal Clean Water Act, to address
circumstances where a CCR unit posed a threat.
EPA acknowledges that the lack of federal enforcement under
Subtitle D presents challenges. However, as discussed above, issuing
minimum national standards under the authority that is currently
applicable to CCR (i.e., subtitle D) is significantly more protective
than the current federal standards in part 257 that apply to these
wastes. It is more consistent with EPA's obligations under RCRA to put
in place the additional protections that, based on the information
currently available, are needed to protect health and the environment.
As part of those requirements, EPA has developed a number of provisions
designed to facilitate citizens to enforce the rule pursuant to RCRA
section 7002. Chief among these is the requirement to publicly post
monitoring data, along with critical documentation of facility
operations, so that the public will have access to the information to
monitor activities at CCR disposal facilities. Moreover, as noted
elsewhere, a state seeking EPA's approval for a State SWMP would be
required to conduct a public comment process to avail itself of the
benefits of an EPA's approval.
EPA also agrees that the Agency retains the authority to bring an
action under RCRA section 7003, as well as other statutes, when the
facts support the necessary findings. However, an action under section
7003 does not enforce the requirements of this rule. Certainly, EPA
believes that the failure to comply with the requirements of the rule
increases the probability that an imminent and substantial endangerment
may arise, but the fact that a facility has not complied with one or
more of the requirements of this rule does not per se establish that a
section 7003 order is warranted.
The Agency also acknowledges that the self-implementing frameworks
could potentially place certifying professionals at risk for lawsuits;
several of the performance standards in the proposed rule were adopted
from part 258, which were designed to operate in the context of an
approved state program, under the oversight of a state regulatory
authority, rather than a purely private entity. In part due to this
concern, the Agency has re-evaluated the performance standards
throughout the final rule, and has revised them where necessary to
ensure that the requirements are sufficiently objective and technically
precise that a qualified professional engineer will be able to certify
that they have been met.
C. Reliance on Certification by Independent Qualified Professional
Engineers
As previously discussed, the majority of commenters were highly
skeptical of a regulatory approach that substituted state oversight
with an owner or operator hiring a consultant or professional, i.e., an
independent registered professional engineer or hydrologist, to certify
compliance with a federal regulatory requirement and posting that
information on an internet site. More specifically, commenters were
concerned that relying almost entirely on professional certifications
for ensuring regulatory compliance did not seem like a reliable way to
provide for protection of human health and or the environment.
As explained in Unit IV.A of this document, EPA is issuing national
minimum criteria under subtitle D to put in place the technical
requirements the Agency has determined are necessary to protect human
health and the environment from the disposal of CCR in surface
impoundments and landfills, while the Agency completes its Bevill
Determination. EPA is relying on the certification in this context to
partially compensate for one of the more significant limitations under
the authorities currently applicable to CCR: The lack of any guaranteed
regulatory oversight mechanism. However, EPA disagrees that the rules
rely ``almost entirely'' on professional engineers to protect human
health and the environment. The final rule relies on multiple
mechanisms to ensure that the regulated community properly implements
requirements in this rule. As one part of this multi-mechanism
approach, owners or operators must obtain certifications by qualified
individuals verifying that the technical provisions of the rule have
been properly applied and met. However, a more significant component
supporting EPA's determination that the technical requirements will
achieve the level of protection required under section 4004(a) is the
performance standards that the rules lay out. These standards impose
specific technical requirements, and, even where they provide
flexibility, will operate to significantly constrain the facility's
activities and discretion. The certifications required by the rule
supplement these technical requirements, and while they are important,
they are not the sole mechanism ensuring regulatory compliance.
The rule also contains a number of provisions requiring the owner
or operator to document their compliance with the rule's technical
requirements, and to post those documents on a publically available Web
site in a timely and transparent manner. The rule also requires owners
or operators to notify State Directors of numerous actions, including
that certified demonstrations have been completed. This transparency
will facilitate citizen and state oversight and overall enforcement of
the requirements. Finally, the rule establishes specific timeframes by
which these actions must occur, including timeframes by which
facilities must document compliance with the various technical
requirements in the rule. Timeframes have been established for: (1)
Technical compliance demonstrations made by the owner or operator; (2)
certifications made by a qualified professional engineer verifying the
technical accuracy and veracity of the compliance demonstration; (3)
notifications made to the State Director; (4) submittals (e.g., data,
reports and other documentation) to the operating record; and (5)
postings to the owner or operator's publicly accessible internet site.
Further details pertaining to all of these requirements can be found in
the Recordkeeping, Notification, and Posting of Information to the
Internet section of the regulations published in this rule.
1. Changes to the Definition of Independent Registered Professional
Engineer or Hydrologist
EPA proposed to define ``independent registered professional
engineer or
[[Page 21336]]
hydrologist'' to mean a scientist or engineer who is not an employee of
the owner or operator of a CCR landfill or CCR surface impoundment, who
has received a baccalaureate or post-graduate degree in the natural
sciences or engineering, and who has sufficient training and experience
in groundwater hydrology and related fields as may be demonstrated by
state registration, professional certifications, or completion of
accredited university programs that enable that individual to make
sound professional judgment regarding the technical information for
which a certification under this subpart is necessary.
Many comments were received on the definition. Some commenters
agreed with the proposed definition, but most commenters argued that
significant changes were needed. These changes included removing the
requirement that the engineer be ``independent,'' adding the word
``qualified,'' and limiting the ability to make certifications to
``licensed'' professional engineers. Still other commenters felt that
EPA should broaden the qualifications beyond a professional engineer or
hydrologist, to include geologists, hydrogeologists, groundwater
scientists or ``other qualified environmental professionals'' among the
individuals able to certify regulatory demonstrations.
By far the issue receiving the most comment was whether the Agency
should require a professional engineer to be ``independent.''
Commenters disagreed with EPA that the certification must be made by an
independent registered professional engineer (i.e., not an employee of
the owner or operator of the CCR unit). Commenters argued that most
utilities employ a number of professional engineers that typically
possess the most relevant experience and knowledge about the unit, and
that company-employed engineers and hydrologists were in a much better
technical position to certify technical provisions of the rule were
being met. Furthermore, commenters asserted that these professionals
would be subject to the same state registration and licensing
requirements as those not employed by the facility and would have an
equally strong incentive to maintain their licenses in good standing as
those that are independent of the utility. These commenters also
pointed to several EPA rulemakings in which EPA allowed ``qualified''
professional engineers to make the kind of certifications contemplated
by this rulemaking, without requiring that they be ``independent.''
Commenters also contended that state licensing and registration
programs help to ensure that all professionals exercise proper judgment
or ``independence'' regarding the operation of CCR landfills and CCR
surface impoundments. Similarly, commenters claimed that a professional
engineer without the required expertise would refuse to make any
certifications for which they were not qualified. Some commenters
suggested that EPA provide some criteria requiring demonstrated
experience and training. Commenters also took issue with the fact that
the definition focused entirely on groundwater hydrology and failed to
include training or experience in other areas that would also be
necessary to effectively certify specific technical criteria of the
rule (e.g., structural integrity, composite liner design).
The definition EPA proposed for ``independent registered
professional engineer or hydrologist,'' focused on three components
that were intended to define the minimum qualifications necessary to
independently verify that a specific technical standard was met and to
provide sufficient objectivity to reduce the opportunity for abuse.
These components were: (1) The individual was a scientist or engineer
by academic training or education; (2) the individual was not an
employee of the owner or operator of the CCR unit; and (3) the
individual had sufficient training in groundwater hydrology or related
fields. The proposed definition did not require the individual to be a
licensed professional engineer or hydrologist; instead the Agency
prohibited the individual providing the certification from being an
employee of the owner or operator of the CCR unit, reasoning that this
requirement would provide some degree of independent verification of
facility practices.\37\ The Agency stated that the availability of
meaningful independent verification was critical to EPA's ability to
conclude that the performance standards laid out in the proposed rule
would meet the RCRA section 4004 protectiveness standard.
---------------------------------------------------------------------------
\37\ While the definition did not require the independent
registered professional engineer or hydrologist to be licensed, the
preamble did state that EPA expects that professionals in the field
will have adequate incentive to provide an honest certification,
given that the regulations require that the engineer not be an
employee of the owner or operator of the CCR landfill or CCR surface
impoundment, and that they operate under penalty of losing their
license, implying that the professional was, in fact, licensed. This
narrative and the title of independent registered professional
engineer caused many commenters to assume that the certifiers indeed
had to be licensed professional engineers. (See 75 FR 35194, June
21, 2010.)
---------------------------------------------------------------------------
In the course of developing this final rule, the Agency concluded
that it needed to better define the connection between the technical
requirements of the rule and the technical qualifications an individual
must possess to certify the demonstrations being made by the owner or
operator of the CCR unit. In doing so, the Agency looked for direction
in the following rules, the ``Resource Conservation and Recovery Act
(RCRA) Burden Reduction Initiative'' (71 FR 16826, April 4, 2006) and
the ``Oil Pollution Prevention and Response; Non-Transportation-Related
Onshore and Offshore Facilities rule (67 FR 47042, July 17, 2002). In
both of these actions, the Agency had come to similar conclusions.
First, that professional engineers, whether independent or employees of
a facility, being professionals, will uphold the integrity of their
profession and only certify documents that meet the prescribed
regulatory requirements; and that the integrity of both the
professional engineer and the professional oversight of boards
licensing professional engineers are sufficient to prevent any abuses.
(For an example see: 67 FR 47084, July 17, 2002.) And second, that in-
house professional engineers may be the persons most familiar with the
design and operation of the facility and that a restriction on in-house
professional certifications might place an undue and unnecessary
financial burden on owners or operators of facilities by forcing them
to hire an outside engineer.
Reviewing these other regulatory actions and the Agency's rationale
for making its decisions, has led the Agency to a similar conclusion
with regard to this rule--that it is unnecessary to require the
individual making certifications under this rule to be ``independent.''
Thus the final rule does not prohibit an employee of the facility from
making the certification, provided they are a professional engineer
that is licensed by a state licensing board. The personal liability of
the professional engineer provides strong support for both the
requirement that certifications must be performed by licensed
professional engineers, and for removing the requirement that the
engineer be ``independent.''
While other commenters argued that the word ``independent'' should
be retained because an independent review and certification avoids any
potential of conflict of interest, the Agency is convinced that an
employee of a facility, who is a qualified professional engineer and
who has been licensed by a state licensing board would be no more
likely to be biased than a qualified professional engineer who is not
an employee of the owner or operator. Moreover, it is not clear that an
in-house engineer faces a greater economic temptation than an
independent
[[Page 21337]]
engineer seeking to cultivate an ongoing relationship with a client.
EPA has concluded that the programs established by state licensing
boards provide sufficient guarantees that a professional engineer,
regardless of whether he/she is ``independent'' of the facility, will
give a fair technical review.
As an additional protection, the Agency has re-evaluated the
performance standards throughout the final rule to ensure that the
requirements are sufficiently objective and technically precise that a
qualified professional engineer will be able to certify that they have
been met.
The Agency agrees with concerns that a professional engineer may
not be qualified to address all the varied aspects of CCR landfill and
CCR surface impoundment design, and has amended the definition to
clarify and strengthen the qualifications of the individual authorized
to certify the technical demonstrations under the rule. In the proposed
rule, the Agency did not require an independent registered professional
engineer to be licensed, only that they be an engineer or hydrologist
who had received a baccalaureate or post graduate degree in the natural
sciences with training and experience in groundwater hydrology or a
related field. While the term ``independent registered professional
engineer or hydrologist'' conveyed to some commenters that the
individual was in fact ``licensed,'' the definition in the proposal did
not require it. Furthermore, as noted by commenters, the proposed
definition focused primarily on hydrogeology expertise and did not
include training and experience qualifications necessary to accurately
certify some of the requirements being promulgated in the rule, e.g.,
landfill and surface impoundment design and construction, structural
stability assessments, analysis of unstable areas. In reviewing this
proposed requirement, the Agency has determined that specifying exact
qualifications and or experience for the professional engineer is
neither necessary nor practical, given the range of technical
specifications that will require certification. EPA has therefore
adopted a more succinct requirement focused on the professional
engineer's qualifications to perform the task or certification.
In making this change, the Agency was again strongly influenced by
the ``Resource Conservation and Recovery Act (RCRA) Burden Reduction
Initiative'' rule. (See 71 FR 16826, April 4, 2006.) In that rule, EPA
amended the majority of RCRA provisions requiring the certification of
an ``independent, qualified, registered, professional engineer'' to
substitute the phrase, a ``qualified professional engineer,'' reasoning
that a requirement for a qualified professional engineer maintains the
most important components of any certification requirement: (1) That
the engineer be qualified to perform the task based on training and
experience; and (2) that she or he be a professional engineer licensed
to practice engineering under the title Professional Engineer which
requires following a code of ethics with the potential of losing his/
her license for negligence (see 71 FR 16868.)
In the ``Burden Reduction Rule'' the Agency concluded that a
professional engineer is able to give fair and technical review because
of the oversight programs established by the state licensing boards
that will subject the professional engineer to penalties, including the
loss of license and potential fines if certifications are provided when
the facts do not warrant it. In fact, this personal liability of the
professional engineer is one of the primary reasons that commenters to
the ``Burden Reduction Rule'' supported the idea that RCRA
certifications should only be done by licensed professional engineers
(See 71 FR 16868.) Upon further analysis and reflection, the Agency
sees no reason to deviate from the position EPA held in that rule.
Despite some concerns raised by commenters that problems could occur if
an owner or operator hires an engineering firm that is small,
inexperienced, or operating outside of their past professional
practice, the Agency continues to believe that with the protections
afforded by the specific performance standards in this rule and the
standards and ethics to which a qualified professional engineer is
subject, situations in which an unqualified or un-licensed engineer
certifies a technical demonstration will be avoided. Furthermore, it is
important to reiterate that state licensing boards can investigate
complaints of negligence or incompetence on the part of professional
engineers, and may impose fines and other disciplinary actions, such as
cease-and-desist orders or license revocation. (See 71 FR 16868.) In
light of the third party oversight provided by the state licensing
boards in combination with the numerous recordkeeping and recording
requirements established in this rule, the Agency is confident that
abuses of the certification requirements will be minimal and that human
health and the environment will be protected.
The Agency wants to make it clear that qualified professional
engineers can utilize a qualified team of professionals in performing
the analyses that underlie these certifications. In most instances, EPA
expects that the basis for certification by a qualified professional
engineer will be the result of a team of professionals (e.g.,
geologists, hydrologists, scientists and engineers) who have
collectively worked together in order to provide the data and analyses
necessary for the professional engineer to certify the specific
demonstration.
The Agency is convinced that the change to the certification
requirements to allow the use of in-house expertise will not compromise
environmental safety. Professional engineers employed by a facility are
more familiar with the facility's particular situation and are in a
position to provide more on-site review and oversight of the activity
being certified. To this end, the Agency is also requiring that the
qualified professional engineer be licensed in the state in which the
CCR unit is located. The Agency has made this decision for a number of
reasons, but primarily because state licensing boards can provide the
necessary oversight on the actions of the professional engineer and
investigate complaints of negligence or incompetence as well as impose
fines and other disciplinary actions such as cease-and-desist orders or
license revocation. Oversight may not be as rigorous if the
professional engineer is operating under a license issued from another
state.
Finally, the Agency disagrees with comments that professional
geologists or geoscientists should be added to the list of those
professionals that have expertise and authority to certify compliance
with certain RCRA subtitle D regulatory requirements. In developing
this final rule, the Agency has re-considered the qualifications
necessary to certify compliance with the technical requirements of the
rule and is limiting compliance certifications to qualified
professional engineers only. While some environmental professionals,
e.g., hydrologists, geologists may be qualified to make certain
certifications, EPA is not convinced that hydrologists or geologists
licensed by a state are held to the same standards as a professional
engineer licensed by a state licensing board. For example, it is
unclear that hydrologists or geologists are subject to the rigorous
testing required by professional engineers or that state licensing
boards can investigate complaints of negligence or incompetence.
Further, professional engineers have licensing boards in all 50 states,
a standard not achieved by other
[[Page 21338]]
professional disciplines. Consequently, hydrologists, geologists, or
other professionals may only perform analyses that underlie the
certification, but it is the responsibility of a qualified professional
engineer to make the actual certification.
D. State and Public Notifications of Certifications
To address concerns about the absence of adequate regulatory
oversight under subtitle D, EPA proposed to require state and public
notifications of the third party certifications, as well as other
information documenting the decisions made or actions taken by the
owner or operator to comply with the technical criteria in the rule. As
stated in the proposal and reiterated here, the Agency cannot conclude
that the regulations promulgated in this rule will ensure there is no
reasonable probability of adverse effects on health or the environment
unless there is a mechanism for states and citizens, as the entities
responsible for enforcing the rule, to effectively monitor or oversee
its implementation. Mandated documentation and transparency of the
owner or operator's actions to comply with the rule provides this
mechanism, and will help to minimize the potential for abuse. The
proposal specified that the documentation of how the various technical
standards had been met were to be placed in the facility's operating
record, along with notification to the appropriate state authority.
Additionally, EPA proposed to require the owner or operator to maintain
a Web site available to the public that would also provide access to
this documentation. EPA proposed that owners or operators post notices
and relevant information on the internet site with a link clearly
identified as being a link to notifications, reports, and
demonstrations required under the regulations. While EPA recognized
that the internet is currently the most widely accessible means for
gathering and disseminating information, the Agency also solicited
comments regarding alternative methods to provide notifications to the
public and the states. The Agency also solicited comment on whether to
require the establishment of a publicly accessible internet site to
provide regulatory information to the public and the states, including
whether there could be homeland security implications associated with
internet posting of information, and whether the posting would
duplicate information that is already available to the public through
the state.
In response to most of these proposals, the Agency received little
comment. Significant comment, however, was received on the publicly
accessible internet site. Commenters argued that absent specific
statutory authorization, it was inappropriate for EPA to delegate a
regulatory oversight function to the regulated community by requiring
the creation of a Web site and posting of regulatory compliance
information. Commenters identified at least three substantial problems
associated with ``outsourcing information management responsibilities''
to CCR facilities. First, commenters argued that EPA lacked the
authority to impose such a requirement. Specifically, the commenters
alleged that no statute authorizes EPA to demand that private parties
act as an information clearinghouse for information pertaining to EPA's
regulatory functions, either generally or in the specific context of
CCR. To the contrary, the commenters argued, public information access
statutes, such as the Freedom of Information Act are predicated on an
assumption that information held by the government is presumptively
public, while information held by a private entity presumptively is
not.
Second, some commenters were concerned that facilities would not
post information the facility deems to be confidential (e.g., the
structural stability of ash pond impoundments) and by attempting to
outsource the information management role to industry, EPA effectively
allows industry to make the initial determination as to confidentiality
and places the burden on citizens and EPA to take action to compel
disclosure.
Third, commenters were concerned that citizen groups would not
accept an electric utility's self-reported information, regardless of
the amount of effort the facility exerts to ensure the accuracy of the
information, without a regulatory agency acting as the intermediary or
providing some degree of oversight (e.g., EPA's Toxic Release
Inventory, EPA's Biennial Report of hazardous waste facilities). By
requiring citizen groups to obtain their information from industry
instead of a regulator, the commenters argued that EPA is inviting
conflict as to the adequacy of data and the sufficiency of the
utilities' responses to citizen groups' requests for clarification or
additional information. The fact that the industry has provided
information to a federal agency, subject to criminal penalties for
providing false information, provides a useful public assurance of the
integrity of the information.
Other commenters stated that the proposed requirement to maintain a
Web site was excessive, and generated a regulatory burden upon
companies that serves no useful function. Commenters urged that the
same purpose could be served simply through making the certification of
the registered professional engineer available on the Web site. Other
commenters argued that internet posting of information on a surface
impoundment's construction raised homeland security issues. These
commenters alleged that the information ``can be extremely sensitive
and may contain information that could be used by certain individuals
with an intent to destroy a dam (e.g., engineering information on the
structure's foundation, detailed information on physical and
engineering properties, the basis for the structure hazard
classification, slope stability information, etc.).''
Finally, some commenters offered an alternative to the requirement
to establish and maintain a publicly accessible internet site. Under
this alternative the information would be included in the owner or
operator's operating record only, and persons with ``legitimate
interests in reviewing these data'' could make a written request to the
owner or operator or the permitting authority to obtain the
information. The commenters alleged that this would also allow the
owner, operator, and federal and state authorities to know the names
and identities of all organizations requesting information on the
facility, which would help protect against the misuse of these data.
EPA disagrees that RCRA section 4004(a) does not authorize EPA to
require facilities to disclose all of the information required under
these final rule provisions. Section 4004(a) delegates broad authority
to EPA to establish criteria governing facilities' management of solid
waste, requiring only that such criteria ensure that there will be no
reasonable probability of adverse effects on health or the environment
from the disposal of solid waste. The statute imposes no limits on the
actions EPA may require facilities to perform to achieve that level of
protection. Moreover, unlike other statutes, e.g., the Toxic Substances
Control Act, or the Federal Insecticide, Rodenticide and Fungicide Act,
RCRA contains neither provisions that grant facilities the right to
withhold regulatory compliance information from the public, nor
provisions that establish any reasonable expectation that such
information will be kept confidential. To the contrary, section 7004
explicitly provides that ``[p]ublic participation in
[[Page 21339]]
the . . . implementation, and enforcement of any regulation under this
chapter shall be provided for, encouraged, and assisted by the
Administrator.'' 42 U.S.C. 6974(b). And in fact, this kind of
information would routinely be publically available under the
permitting process for hazardous waste facilities. Accordingly, RCRA
provides more than ample authority to support these requirements.
As repeatedly discussed throughout this preamble, under section
4004(a) EPA must be able to demonstrate, based on the record available
at the time the rule is promulgated that the final rule provisions will
achieve the statutory standard. EPA explained in the proposal that a
key component of EPA's support for determining that the rule achieves
the statutory standard is the existence of a mechanism for states and
citizens to monitor the situation, such as when groundwater monitoring
shows evidence of potential contamination, so that they can determine
when intervention is appropriate. The existence of effective oversight
measures provides critical support for the statutory finding,
particularly with respect to some of the more flexible alternatives EPA
has adopted in certain of the technical standards in response to
commenters' requests for greater flexibility. These ``transparency''
requirements serve as a key component by ensuring that the entities
primarily responsible for enforcing the requirements have access to the
information necessary to determine whether enforcement is warranted.
Unlike a federal or state regulatory authority, private citizens cannot
access a private facility to conduct inspections. While EPA encourages
states to adopt and implement a CCR regulatory program, and seek EPA's
approval of it via a state SWMP, EPA cannot require it. The final rule
therefore must establish oversight mechanisms that will function
effectively even in the absence of a state regulatory authority.
Such notifications will also reduce the incentives for owners or
operators to abuse the rule's self-implementing requirements, and can
improve compliance. Indeed, the public disclosure of information is an
increasingly common and important regulatory tool, as evidenced by the
2010 guidance issued by the Office of Management and Budget (OMB), with
principles to assist agencies in using information disclosure to
achieve regulatory objectives.
Thus, even if the commenters were correct that there exists a
general ``presumption'' that information held by private entities need
not be made publically available, that presumption can be, and has
been, effectively rebutted by the facts at hand.
None of the alternatives offered by the commenters would fulfill
these same objectives. For example, simply making the certification of
the qualified professional engineer available on the Web site without
the underlying support information fails to provide the same incentives
because no one could evaluate the accuracy of that certification. This
alternative could also present the same concerns raised in comments on
other sections of the rule, i.e., that such a requirement could place
the engineer at great risk of being subject to lawsuits. Requiring
persons with ``legitimate interests in reviewing these data'' to
request the data from the owner or operator also fails to provide an
effective guarantee, as facilities that have failed to comply will have
a strong incentive to withhold information documenting their non-
compliance, however ``legitimate'' the request. And as noted, the
absence of a guaranteed state permitting program means that requiring
citizens to request information from such entities is also not a viable
alternative. Given the absence of a guaranteed regulatory authority,
EPA also disagrees that posting such information on a company internet
site is necessarily duplicative, particularly in those states that have
no regulatory program for controlling CCR. In addition, state
requirements, whether pursuant to permits or other regulatory
mechanisms, may not necessarily correspond to the requirements of this
rule.
EPA acknowledges that parties may be suspicious of information
self-reported by regulated entities. However, it is important to
remember that facilities that provide information in compliance with
these regulation remain subject to the penalties for providing false
information under 18 U.S.C. 1001, even though the information will not
be submitted to EPA. For example, the Tenth Circuit has held that
federal jurisdiction lies under 18 U.S.C. 1001 when a defendant has
submitted false information to a state delegated to enforce a federal
environmental statute. United States v. Wright, 988 F.2d 1036 (10th
Cir. 1993) (defendant submitted false monitoring reports required by
the Safe Drinking Water Act to Oklahoma officials). This is consistent
with rulings in other areas that the false statement need not be made
directly to the federal government. United States v. Uni Oil Co., 646
F.2d 946, 954-55 (9th Cir. 1981); see also United States v. Patullo,
709 F.2d 1178, 1180 (7th Cir. 1983); United States v. Ross, 77 F.3d
1525, 1544 (7th Cir. 1996) (``This court has repeatedly found the
submission of a fraudulent statement to a private (or non-federal
government) entity to be within the jurisdiction of a federal agency
where the agency has given funding to the entity and fraudulent
statements cause the entity to utilize the funds improperly.''). As
commenters recognized, the potential for criminal penalties under 18
U.S.C. 1001 provides a significant guarantee, as well as a strong
incentive for compliance.
EPA also disagrees with the comments raising concern about the
homeland security implications of posting information on a CCR surface
impoundment's construction, as it relates to structural stability. Much
of the information relevant to an impoundment's structural stability is
currently available through Google Earth or through EPA's Web site. For
example, EPA's Web site currently provides access to all of the
information from the responses to EPA's original 104(e) information
requires and the information obtained through the CCR Assessment
Program. This information can be accessed at the following pages:
http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm, http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm, and http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccrs-fs/index.htm. Moreover, the Department of Homeland
Security has cleared both the internet posting of all of the
information currently on EPA's Web site, as well as, in general,
information on the design, hydraulic parameters, volume of contained
liquids and solids, and hazard rating of all major CCR surface
impoundments across the U.S.
VI. Development of the Final Rule--Technical Requirements
A. Applicability
EPA proposed general provisions to identify those solid waste
disposal units subject to the proposed RCRA subpart D requirements
(i.e., CCR landfills and CCR surface impoundments as defined under
proposed Sec. 257.40(b)). The applicability section also identified
three of the existing subpart A criteria that would continue to apply
to these facilities: Sec. 257.3-1 Floodplains, Sec. 257.3-2
Endangered Species, and Sec. 257.3-3 Surface Water. Consistent with
RCRA section 4004(c), EPA specified an effective date of 180 days after
publication of the final rule.
The Agency received numerous comments on this part of the rule. In
[[Page 21340]]
general, commenters were concerned with three specific areas. First,
commenters requested additional clarification as to the specific
sources of CCR that would be subject to the requirements of the rule,
i.e., CCR generated by the electric utilities and independent power
producers. Second, commenters requested clarification on the
applicability of the proposed regulations to MSWLFs disposing of CCR
and third, the definition and status of ``uniquely associated wastes.''
Uniquely associated wastes are addressed in Unit XIII of this preamble.
EPA also received numerous comments regarding the proposal to apply the
rule to ``inactive'' CCR surface impoundments that had not completed
closure prior to the effective date of the rule.
EPA is finalizing minimum national criteria that apply to owners
and operators of new and existing CCR landfills and CCR surface
impoundments, including any lateral expansions of these units that
dispose, or otherwise conduct solid waste management of CCR generated
from the combustion of coal at electric utilities and independent power
producers. The rule applies only to CCR units at ``active'' electric
utilities and independent power producers, i.e., those that generate
electricity, regardless of the fuel currently used to produce
electricity. However, disposal units at facilities that are
``closed''--i.e., the entire facility has been permanently taken out of
service and no longer produces electricity--are outside of the scope of
this rule.
Unless otherwise provided, the rule applies to CCR units located
both on-site and off-site of the electric utility or independent power
producer.
1. CCR Generated by Non-Utility Boilers
The requirements of this rule do not apply to wastes, including fly
ash, bottom ash, boiler slag, and FGD materials generated at facilities
that are not part of the electric power sector or an independent power
producer and that use coal as the fuel in non-utility boilers, such as
manufacturing facilities, universities, and hospitals. Industries that
primarily burn coal to generate power for their own purposes (i.e.,
non-utilities), also known as combined heat and power (CHP) plants, are
primarily engaged in business activities, such as agriculture, mining,
manufacturing, transportation, and education. The electricity that they
generate is mainly for their own use, but any excess may be sold in the
wholesale market. According to the Energy Information Administration
(EIA), CHPs produced less than one percent of the total electricity
generated from coal combustion in 2013 and, similarly, burned less than
one percent of the total coal consumed for electricity generation or
less than 5 million tons (http://www.eia.gov/electricity/data.cfm).
EPA never proposed to include these wastes in the rule because EPA
lacked critical data from these facilities that would allow us to
address key Bevill criteria (see 75 FR 35165). These other industries,
and the manufacturing industries in particular, generate other types of
wastes which are likely to be mixed or co-managed with the CCR at least
at some facilities. As a result, the chemical compositions of the co-
managed wastes are likely to be fundamentally different from the
chemical composition of CCR generated by electric utilities or
independent power producers. In addition, EPA noted that insufficient
information was available on non-utility boilers burning coal to
determine whether a regulatory flexibility analysis would be required
under the Regulatory Flexibility Act, and to conduct one if it is
necessary. Without such data, we were unable to fully assess CCR wastes
from non-utility operations and indicated that we would decide on an
appropriate course of action for these wastes after completing this
rulemaking (see 75 FR 35129).
Several commenters stated that EPA's decision to propose limiting
the scope of the rule only to CCR generated by the electric power
sector (electric utilities and independent power producers) was
arbitrary. These commenters claimed that CCR generated by the electric
power sector and CCR generated by non-utilities are generally
comparable in physical and chemical composition and are typically
managed similarly. As a result, these commenters suggested that EPA
amend the applicability of the rule to subject all facilities that
generate CCR to the same disposal requirements. EPA also received
comments maintaining that important differences exist between CCR
generated by electric power sector facilities and non-utility
facilities, and that supported EPA's proposed decision to exclude CCR
generated by non-utilities from the rule. Differences identified by the
commenters included waste management issues (e.g., mixing and
subsequent co-management of non-utility CCR and other industrial wastes
generated by non-utilities), CCR generation rates, CCR management unit
design, and CCR management unit operation. In response to our request
for additional information, a few commenters provided either waste
characterization data for non-utility CCR or information on alleged
damage cases involving non-utility CCR.
Based on the proposed rule, EPA cannot include these facilities in
this final rule, even if the Agency had concluded that it had received
the necessary information from commenters. EPA specifically stated its
intention to exclude them, and clearly stated that it had not assessed
the operations. (See 75 FR 35166.) The Agency provided no indication of
any intention to include such facilities, and did not solicit comment
on such an option. Moreover, under the Administrative Procedure Act,
the public must be given the opportunity to comment on not only the
information that would support such an action, but also EPA's
evaluation of that information, and the reasoning behind the Agency's
decision. And with respect to this subset of facilities, no such
opportunity has been presented. EPA will consider the information
provided by commenters at a future point, and will determine whether
the information is sufficient to address key Bevill criteria and to
decide on the appropriate regulatory scheme for disposal of CCR
generated by non-utilities. Accordingly, this rule does not apply to
owners and operators of landfills and surface impoundments in which CCR
are disposed that were generated by non-utility boilers burning coal.
2. CCR Generated Primarily From the Combustion of Fuels Other Than Coal
These requirements also do not apply to fly ash, bottom ash, boiler
slag, and flue gas desulfurization materials, generated primarily from
the combustion of fuels (including other fossil fuels) other than coal,
for the purpose of generating electricity unless the coal comprises
more than fifty percent (50%) of the fuel burned on a total heat input
or mass input basis, whichever results in the greater mass feed rate of
coal (see Sec. 266.112). Fuel mixtures that contain less than 50% coal
are not considered to be CCR, but other fossil fuel wastes. Other
fossil fuels that are typically co-combusted with coal are oil and
natural gas. In the May 22, 2000 Regulatory Determination, EPA
determined that it is not appropriate to establish national regulations
applicable to oil combustion wastes (OCW) because: (1) We found in most
cases that OCW, whether managed alone or co-managed, are rarely
characteristically hazardous; (2) we have not identified any beneficial
uses that are likely to present significant risks to human health or
the environment; (3) we identified no significant ecological risks
posed by
[[Page 21341]]
land disposal of OCW; (4) we identified only one documented damage case
involving OCW in combination with coal combustion wastes, and it did
not affect human receptors; and (5) except for two unlined surface
impoundments, we have not identified any significant risks to human
health and the environment associated with any waste management
practices. Similarly, EPA determined that regulating natural gas
combustion wastes is not warranted because the burning of natural gas
produces virtually no solid waste. Therefore, the Agency has determined
that regulations for wastes generated primarily from the combustion of
fuels (including other fossil fuels) other than coal are not warranted
unless the fuel mixture consists primarily of coal.
3. Placement of CCR in Minefilling Operations
Consistent with the approach in the proposed rule, this rule does
not apply to CCR placed in active or abandoned underground or surface
coal mines. The U. S. Department of Interior (DOI) and EPA will address
the management of CCR in minefills in a separate regulatory action(s).
EPA will work with the OSM to develop effective federal regulations to
ensure that the placement of coal combustion residuals in minefill
operations is adequately controlled. In doing so, EPA and OSM will
consider the recommendations of the National Research Council (NRC),
which, at the direction of Congress, studied the health, safety, and
environmental risks associated with the placement of CCR in active and
abandoned coal mines in all major U.S. coal basins. The NRC published
its findings on March 1, 2006, in a report entitled ``Managing Coal
Combustion Residues (CCR) in Mines,'' which is available at http://books.nap.edu/openbook.php?isbn=0309100496.
The report concluded that the ``placement of CCR in mines as part
of coal mine reclamation may be an appropriate option for the disposal
of this material. In such situations, however, an integrated process of
CCR characterization, site characterization, management and engineering
design of placement activities, and design and implementation of
monitoring is required to reduce the risk of contamination moving from
the mine site to the ambient environment.'' The NRC report recommended
that enforceable federal standards be established for the disposal of
CCR in minefills to ensure that states have specific authority and that
states implement adequate safeguards. The NRC Committee on Mine
Placement of Coal Combustion Wastes also stated that OSM and its SMCRA
state partners should take the lead in developing new national
standards for CCR use in mines because the framework is in place to
deal with mine-related issues. Consistent with the recommendations of
the National Academy of Sciences, EPA anticipates that the U.S.
Department of the Interior (DOI) will take the lead in developing these
regulations. EPA will work closely with DOI throughout that process.
4. Municipal Solid Waste Landfills
The issue receiving the majority of comment in this section focused
on the applicability of the rule to MSWLFs accepting CCR. The vast
majority of commenters on this issue requested that EPA clarify that
permitted MSWLFs, receiving CCR as daily cover or for disposal were not
covered by the rule.
While most CCR is currently disposed of at electric utility owned
CCR landfills or surface impoundments, there is no prohibition against
disposing of CCR in state-permitted MSWLFs. However, many commenters
interpreted the proposed CCR subtitle D regulations to apply to a state
permitted MSWLF disposing of CCR, which as a consequence would be
subject to the additional burden of posting documentation to a Web
site, having a professional engineer review certification, etc. (See 75
FR 35210, where the preamble states that under a subtitle D regulation,
regulated CCR wastes shipped off-site for disposal would have to be
sent to facilities that meet the standards above.) Commenters argued
that since MSWLFs were never mentioned in the proposed rule, that it
should be made clear that the rule did not apply to these facilities.
Commenters further contended that since the requirements for CCR
landfills were directly modeled from the MSWLF requirements found at 40
CFR part 258, disposal in MSWLFs would be protective of human health
and the environment. Commenters also contended that a benefit of MSWLFs
would be their ability to provide additional capacity for the disposal
of CCR as utilities seek to close, upgrade, or develop their own
compliant CCR disposal sites.
EPA recognizes that there are MSWLFs that either accept CCR for
disposal, use CCR for as daily cover, or both. Since the proposed and
final RCRA subtitle D standards for CCR landfills are modeled after the
standards for MSWLFs found at 40 CFR part 258, EPA has concluded that
disposal of CCR in MSWLFs is as protective as disposal in a CCR
landfill and that permitted MSWLFs are not subject to the requirements
of this rule. Like the MSWLF requirements, the CCR technical criteria
require new units to have composite liners or their equivalent, and all
units are subject to location restrictions, run-on and run-off
controls, fugitive dust controls, groundwater monitoring and corrective
action, closure and post-closure care requirements.\38\
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\38\ One significant difference however is that MSWLFs are
required to have financial assurance, a requirement not applicable
to CCR under the subtitle D requirements.
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While the MSWLF fugitive dust criteria (air criteria) are not as
specific as those in this rule, Sec. 258.4(a) states that owners or
operators of all MSWLFs must ensure that the units not violate any
applicable requirements developed under a State Implementation Plan
(SIP) approved or promulgated by the Administrator pursuant to section
110 of the Clean Air Act, as amended. It is expected that states will
impose additional requirements to address fugitive dusts, of the sort
codified in Illinois' 415 ILCS 5/9(a)(2012) \39\ and enforced by the
state (see People of the State of Illinois v. KCBX Terminals Company,
Injunction no. 2013CH24788 in the Circuit Court of Cook County,
Illinois. Moreover, if used as a daily cover, Sec. 258.21 requires
that the alternative cover (i.e., CCR) control disease, vectors, odors,
blowing litter, and scavenging without presenting a threat to human
health and the environment.
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\39\ ``No person shall (a) Cause or threaten or allow the
discharge or emission of any contaminant into the environment in any
state so as to cause or tend to cause air pollution in Illinois,
either alone or in combination with contaminants from other sources,
or so as to violate regulations or standards adopted by the Board
under this Act; (b) Construct, install or operate any equipment,
facility, vehicle, vessel, or aircraft capable of causing or
contributing to air pollution or designed to prevent air pollution,
of any typed designated by Board regulations, (1) without a permit
granted by the Agency unless otherwise exempt by this Act or Board
regulations; or (2) in violation of any conditions imposed by such
permit.''
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The Agency is not requiring MSWLFs that receive CCR for disposal or
for use as daily cover to modify their groundwater monitoring programs
to comply with the rule; however the Agency expects that State
Directors will require MSWLFs to modify their MSWLF permits to address
the addition of CCR to the unit as it relates to groundwater monitoring
and corrective action. Section 258.54(a)(2) allows for the Director of
an approved state to establish an alternative list of inorganic
indicator parameters for a MSWLF unit if the alternative parameters
provide a reliable indication of inorganic releases
[[Page 21342]]
from the MSWLF unit to the groundwater (i.e., as would be the case if
CCR was disposed in the MSWLF unit). In determining alternative
parameters, the Director shall consider, among other things: (1) The
types, quantities, and concentrations in wastes managed at the MSWLF
unit; (2) the mobility, stability, and persistence of waste
constituents or their reaction products in the unsaturated zone beneath
the MSWLF unit; and (3) the detectability of indicator parameters,
waste constituents, and reaction products in the groundwater. In
situations where the MSWLF unit is receiving CCR for disposal and/or
daily cover, EPA expects the controlled management of CCR in these
units. Specifically, EPA expects State Directors to utilize the
provisions in Sec. 258.54(a)(2) to revise the detection monitoring
constituents to include those constituents being promulgated in this
rule under Sec. 257.90. These detection monitoring constituents or
inorganic indicator parameters are: boron, calcium, chloride, fluoride,
pH, sulfate and total dissolved solids (TDS). These inorganic indicator
parameters are known to be leading indicators of releases of
contaminants associated with CCR and the Agency strongly recommends
that State Directors add these constituents to the list of indicator
parameters to be monitored during detection monitoring of groundwater
if and when a MSWLF decides to accept CCR.
The Agency has concluded that CCR can readily be handled in
permitted MSWLFs provided that they are evaluated for waste
compatibility and placement as required under the part 258
requirements. Furthermore, consistent with the recordkeeping
requirements in Sec. 258.29, the Agency further expects State
Directors to encourage MSWLF units receiving CCR after the effective
date of this rule to do so pursuant to a ``CCR acceptance plan'' that
is maintained in the facility operating record. This plan would assure
that the MSWLF facility is aware of the physical and chemical
characteristics of the waste received (i.e., CCR) and handles it with
the additional precautions necessary to avoid dust, maintain structural
integrity, and avoid compromising the gas and leachate collection
systems of the landfill so that human health and the environment are
protected. While the Agency sees no need to impose duplicative
requirements for MSWLFs that receive CCR for disposal or daily cover;
development of these acceptance plans as well as a revised list of
groundwater detection monitoring constituents will help ensure that CCR
is being managed in the most protective manner consistent with the Part
258 requirements.
5. Inactive CCR Surface Impoundments
The final rule also applies to ``inactive'' CCR surface
impoundments at any active electric utilities or independent power
producers, regardless of the fuel currently being used to produce
electricity; i.e., surface impoundments at any active electric utility
or independent power producer that have ceased receiving CCR or
otherwise actively managing CCR. While it is true that EPA exempted
inactive units from the part 258 requirements in 1990, the original
subtitle D regulations at 40 CFR part 257 (which are currently
applicable to CCR wastes) applied to ``all solid waste disposal
facilities and practices'' except for eleven specifically enumerated
exemptions (none of which are relevant). 40 CFR 257.1(c). See also, 40
CFR 257.1(a)(1)-(2). And as discussed in greater detail below, subtitle
D of RCRA does not limit EPA's authority to active units--that is,
units that receive or otherwise manage wastes after the effective date
of the regulations. EPA has documented several damage cases that have
occurred due to inactive CCR surface impoundments, including the
release of CCR and wastewater from an inactive CCR surface impoundment
into the Dan River which occurred since publication of the CCR proposed
rule. As discussed in the proposal, the risks associated with inactive
CCR surface impoundments do not differ significantly from the risks
associated with active CCR surface impoundments; much of the risk from
these units is driven by the hydraulic head imposed by impounded units.
These conditions remain present in both active and inactive units,
which continue to impound liquid along with CCR. For all these reasons,
the Agency has concluded that inactive CCR surface impoundments require
regulatory oversight.
The sole exception is for ``inactive'' CCR surface impoundments
that have completed dewatering and capping operations (in accordance
with the capping requirements finalized in this rule) within three
years of the publication of this rule. EPA considers these units to be
analogous to inactive CCR landfills, which are not subject to the final
rule. As noted, EPA's risk assessment shows that the highest risks are
associated with CCR surface impoundments due to the hydraulic head
imposed by impounded water. Dewatered CCR surface impoundments will no
longer be subjected to hydraulic head so the risk of releases,
including the risk that the unit will leach into the groundwater, would
be no greater than those from CCR landfills. Similarly, the
requirements of this rule do not apply to inactive CCR landfills--which
are CCR landfills that do not accept waste after the effective date of
the regulations. The Agency is not aware of any damage cases associated
with inactive CCR landfills, and as noted, the risks of release from
such units are significantly lower than CCR surface impoundments or
active CCR landfills. In the absence of this type of evidence, and
consistent with the proposal, the Agency has decided not to cover these
units in this final rule.
Under both the subtitle C and subtitle D options, EPA proposed to
regulate ``inactive'' CCR surface impoundments that had not completed
closure prior to the effective date of the rule. EPA proposed that if
any inactive CCR surface impoundment had not met the interim status
closure requirements (i.e., dewatered and capped) by the effective date
of the rule, the unit would be subject to all of the requirements
applicable to CCR surface impoundments. Under the subtitle C option,
those requirements would have included compliance with the interim
status and permitting regulations. Under subtitle D, such units would
have been required to comply with all of the criteria applicable to CCR
surface impoundments that continued to receive wastes, including
groundwater monitoring, corrective action, and closure.
EPA acknowledged that this represented a departure from the
Agency's long-standing implementation of the regulatory program under
subtitle C. While the statutory definition of ``disposal'' has been
broadly interpreted to include passive leaking, historically EPA has
construed the definition of ``disposal'' more narrowly for the purposes
of implementing the subtitle C regulatory requirements. For examples
see 43 FR 58984 (Dec. 18, 1978); and 45 FR 33074 (May 1980). Although
in some situations, post-placement management has been considered to be
disposal triggering RCRA subtitle C regulatory requirements, e.g.,
dredging of impoundments or management of leachate, EPA has generally
interpreted the statute to require a permit only if a facility treats,
stores, or actively disposes of the waste after the effective date of
its designation as a hazardous waste. EPA explained that relying on a
broader interpretation was appropriate in this instance given that the
[[Page 21343]]
substantial risks associated with currently operating CCR surface
impoundments, i.e., the potential for leachate and other releases to
contaminate groundwater and the potential for catastrophic releases
from structural failures, were not measurably different than the risks
associated with ``inactive'' CCR surface impoundments that continued to
impound liquid, even though the facility had ceased to place additional
wastes in the unit. EPA noted as well that the risks are primarily
driven by the older existing units, which are generally unlined.
In the section of the preamble discussing the subtitle D option,
EPA did not expressly highlight the application of the rule to inactive
CCR surface impoundments, but generally explained that EPA's approach
to developing the proposed subtitle D requirements for surface
impoundments (which are not addressed by the part 258 regulations that
served as the model for the proposed landfill requirements) was to seek
to be consistent with the technical requirements developed under the
subtitle C option. (See 75 FR 35193.) (``In addition, EPA considered
that many of the technical requirements that EPA developed to
specifically address the risks from the disposal of CCR as part of the
subtitle C alternative would be equally justified under a RCRA subtitle
D regime . . . The factual record--i.e., the risk analysis and the
damage cases--supporting such requirements is the same, irrespective of
the statutory authority under which the Agency is operating . . . Thus
several of the provisions EPA is proposing under RCRA subtitle D either
correspond to the provisions EPA is proposing to establish for RCRA
subtitle C requirement. These provisions include the following
regulatory provisions specific to CCR that EPA is proposing to
establish: Scope and applicability (i.e., who will be subject to the
rule criteria/requirements) . . .'') (emphasis added).
EPA received numerous comments on this aspect of the proposal. On
the whole, the comments were focused on EPA's legal authority under
subtitle C to regulate inactive and closed units, as well as inactive
and closed facilities. One group of commenters, however, specifically
criticized the proposed subtitle D regulation on the grounds that it
failed to address the risks from inactive CCR surface impoundments. The
majority of commenters, however, argued that RCRA does not authorize
EPA to regulate inactive or closed surface impoundments. These
commenters focused on two primary arguments: first, that RCRA's
definition of ``disposal'' cannot be interpreted to include ``passive
migration'' based on the plain language of the statute, and second,
that such an interpretation conflicted with court decisions in several
circuits, holding that under CERCLA ``disposal'' does not include
passive leaking or the migration of contaminants.
In support of their first argument, commenters argued that the
plain language of RCRA demonstrates that the requirements are
``prospective in nature'' and thus cannot be interpreted to apply to
past activities, i.e., the past disposals in inactive CCR units. They
also argued that the absence of the word ``leaching'' from the
definition of ``disposal'' clearly indicates that Congress did not
intend to cover passive leaking or migration from CCR units. The
commenters also selectively quoted portions of past EPA statements,
claiming that these demonstrated that EPA had conclusively interpreted
RCRA to preclude jurisdiction over inactive units and facilities. In
particular, they pointed to EPA's decision in 1980 not to require
permits for closed or inactive facilities.
Commenters cited several cases to support their second claim. These
include Carson Harbor Vill. v. Unocal Corp., 270 F.3d 863 (9th Cir.
2001); United States v. 150 Acres of Land, 204 F.3d 698, 706 (2000);
ABB Industrial Systems v. Prime Technology, 120 F.3d 351, 358 (2d Cir.
1997); United States v. CMDG Realty Co., 96 F.3d 706, 711 (3rd Cir.
1996); Joslyn Mfg. Co. v. Koppers Co., 40 F.3d 750, 762 (5th Cir.
1994); Delaney v. Town of Carmel, 55 F. Supp. 2d 237, 256 (S.D.N.Y.
1999); see also Interfaith Cmty. Org. v. Honey-Well Intl Inc., 263 F.
Supp. 2d 796, 846 n.10 (D.N.J. 2003). The commenters acknowledged that
these cases were all decided under CERCLA, but claim that the cases are
all equally dispositive with respect to RCRA's definition of disposal
because CERCLA specifically incorporates by reference RCRA`s statutory
definition of disposal.
As an initial matter, it is important to correct certain
misunderstandings contained throughout a number of the comments. First,
EPA did propose to include inactive units under the subtitle D
alternative. EPA clearly signaled its intent to cover the same universe
of units and facilities covered under the subtitle C proposal. EPA did
not include a corresponding discussion in its explanation of the
subtitle D alternative because application of the criteria to inactive
units did not represent such a significant departure from EPA's past
practice or interpretation. As discussed in more detail below, the
original subtitle D regulations applied to all existing disposal units.
See 40 CFR 257.1(a)(1)-(2), (c) and 43 FR 4942-4943, 4944.
Second, several commenters criticized EPA's purported proposal to
cover both ``closed'' and ``inactive'' surface impoundments, using the
terms interchangeably. These same commenters also refer to both
``inactive facilities'' and ``inactive units.'' These are all different
concepts, and EPA clearly distinguished between them.
EPA proposed to regulate only ``inactive'' surface impoundments
that had not completed closure of the surface impoundment before the
effective date. ``Inactive'' surface impoundments are those that
contain both CCR and water, but no longer receive additional wastes. By
contrast, a ``closed'' surface impoundment would no longer contain
water, although it may continue to contain CCR (or other wastes), and
would be capped or otherwise maintained. There is little difference
between the potential risks of an active and inactive surface
impoundment; both can leak into groundwater, and both are subject to
structural failures that release the wastes into the environment,
including catastrophic failures leading to massive releases that
threaten both human health and the environment. This is clearly
demonstrated by the recent spill in the Dan River in North Carolina,
which occurred as the result of a structural failure at an inactive
surface impoundment. Similarly, as demonstrated by the discovery of
additional damage cases upon the recent installation of groundwater
monitoring systems at existing CCR surface impoundments in Michigan and
Illinois, many existing CCR surface impoundments are currently leaking,
albeit currently undetected. These are the risks the disposal rule
specifically seeks to address, and there is no logical basis for
distinguishing between units that present the same risks.
EPA did not propose to require ``closed'' surface impoundments to
``reclose.'' Nor did EPA intend, as the same commenters claim, that
``literally hundreds of previously closed . . . surface impoundments--
many of which were properly closed decades ago under state solid waste
programs, have changed owners, and now have structures built on top of
them--would be considered active CCR units.'' Accordingly, the final
rule does not impose any requirements on any CCR surface impoundments
that have in fact ``closed'' before the rule's effective date--i.e.,
those that no longer contain water and can no longer impound liquid.
[[Page 21344]]
Further, EPA never proposed that the rule would apply to inactive
facilities. The proposal was clear that the regulations would apply to
active facilities--i.e., those that continue to generate electricity
for distribution to the public, and those that continue to manage CCR.
Consistent with that proposal, the final rule applies only to inactive
surface impoundments at active electric utilities, i.e., facilities
that are actively generating electricity irrespective of the fuel used.
Finally, some comments focused on issues that were specific to the
plain language of subtitle C provisions. While most of the issues the
commenters raised relate equally to EPA's authority under both
subtitles C and D, because the final rule establishes standards under
subtitle D of RCRA, EPA has not addressed comments that are purely
relevant or applicable to the extent of EPA's authority under subtitle
C.
a. Plain Language of RCRA and EPA's Past Interpretations
Under both subtitle C and subtitle D, EPA's authority to regulate
``inactive'' units primarily stems from the agency's authority to
regulate ``disposal.'' The term is defined once in RCRA and applies to
both subtitles C and D. Moreover, the definition explicitly includes
``leaking'' and ``placing of any solid waste . . . into or on any land
so that such [waste] or any constituent thereof may enter the
environment . . . or be discharged into any waters, including
groundwaters.'' 42 U.S.C. 6903(3).
Commenters focused on the past statements that EPA cited in the
proposal in acknowledging that the Agency was proposing to revise its
interpretation for this rulemaking. In general, the comments
misconstrue the significance of these past statements. The cited
passages merely explain that the permitting requirements in subtitle C
were written to be ``prospective in nature'' and as a consequence, EPA
has chosen to interpret ``disposal'' more narrowly in that context.
Thus EPA's historic interpretation under subtitle C was not based on an
interpretation that the plain language of RCRA's definition of
``disposal'' precluded reaching inactive units, but on a determination
that a narrower interpretation would be reasonable in light of specific
language in sections 3004 and 3005, and the practical consequences of
applying these requirements to inactive facilities.\40\
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\40\ It is also clear that certain subtitle C requirements in
fact do apply to inactive units, for example, section 3004(u)
requires facilities to clean up releases from inactive units located
on the facility site.
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None of EPA's past statements included any interpretation that
``leaking'' does not include leaking from an inactive disposal unit, or
that the statutory definition of ``disposal'' cannot be interpreted to
apply to the current consequences of past disposals. To the contrary,
EPA was clear in the original 1978 proposed hazardous waste regulations
that leaking from inactive disposal units constitutes ``disposal''
under RCRA.
Neither RCRA nor its legislative history discusses whether section
3004 standards for owners and operators of hazardous waste treatment,
storage, or disposal facilities apply or were intended to apply to
inactive facilities, i.e., those facilities which have ceased
receiving, treating, storing, and disposing of wastes prior to the
effective date of the subtitle C regulations. ``This is an important
issue, however, because some, and perhaps most, inactive facilities may
still be ``disposing of waste'' within the meaning of that term in
Section 1004(3) of RCRA. `Disposal' includes: the discharge, dumping,
spilling, leaking, . . . of any solid waste or hazardous waste into or
on any land or water so that such solid waste or hazardous waste or any
constituent thereof may enter the environment or be emitted into the
air or discharged into any waters, including groundwaters. Many
inactive facilities may well be leaking solid or hazardous waste into
groundwater and thus be ``disposing'' under RCRA.'' 43 FR 58984
(emphasis added).
Note as well that EPA declined to impose requirements on ``inactive
facilities'' not ``inactive units at active facilities,'' which are the
entities covered in this final CCR rule. Further, the complications
discussed in 1978 were specific to inactive or closed facilities: the
concern that the present owner of the land on which an inactive site
was located might have no connection (other than present ownership of
the land) with the prior disposal activities. Id. These considerations
are not relevant to inactive CCR surface impoundments at active
electric utilities.
EPA further clarified this position in the 1980 final hazardous
waste rule, explaining that, while the Agency did not generally intend
to regulate those portions of facilities that had closed before the
effective date, there were exceptions to this, and that in individual
cases, inactive portions of a facility--or in other words, inactive
units, might be regulated.
[O]wners and operators which continue to operate after the
effective date of the regulations must ensure that portions of
facilities closed before the effective date of these rules do not
interfere with the monitoring or control of active portions. This
requirement regulates the facility which operates under the RCRA
regulations, although it may require the owner or operator before he
receives a permit, or, as a permit condition, to take certain
measures on portions of his facility closed before the effective
date of these regulations.
45 FR 33068. (See also 45 FR 33170.)
In other words, EPA was clear that its jurisdiction under RCRA
extended to these portions of the facility but that the Agency had made
a policy choice not to exert its regulatory jurisdiction as a general
matter over inactive facilities, choosing instead to rely on section
7003 and CERCLA to address the risks and require clean-up of these
sites. EPA has adopted a substantially similar approach here, requiring
the current owner or operator of an active facility to address the
risks associated with an inactive portion of the facility that could
potentially interfere with the monitoring or control of the actively
operating portion of the facility through leaking contaminants or other
releases.
Similarly, in the 1980 final rules, EPA expressly declined to
revise the regulatory definition of disposal to exclude accidental or
unintentional releases. EPA noted that ``[r]egardless of whether a
discharge of hazardous waste is intentional or not, the human health
and environmental effects are the same. Thus intentional and
unintentional discharges are included in the definition of `disposal.'
'' (See 45 FR 33068.) While EPA revised other provisions to clarify
that a permit would not be required for accidental discharges, EPA was
clear that such activities are properly considered to be ``disposal.''
By contrast, EPA's past implementation of subtitle D, following
from the legislative history and the statutory language, consistently
applied regulatory requirements equally to all facilities, without
distinguishing between active and inactive or new and existing
facilities.
Congress was clear that subtitle D was intended to specifically
address the problem of abandoned leaking ``open dumps'' scattered
across the country, ``where frequently the use of the site for waste
disposal is neither authorized nor supervised.'' H. Rep. No. 94-1491, p
37, 94th Cong., 2d Sess (1976). For example, the report described the
consequences when ``the City of Texarcana Arkansas/Texas, abandoned its
six open dumps, in 1968'' to support the need to require open dumps to
upgrade or close.
[[Page 21345]]
Similarly, in describing the need for the legislation, the House report
stated:
Disposal of solid wastes, including hazardous wastes, can have
adverse environmental impacts in several ways. The following
paragraphs discuss five different types of such impacts.
(i) Perhaps the most pernicious effect is the contamination of
groundwater by leachate from land disposal of waste. About half of
the U.S. domestic water supply is from underground water, and thus
is potentially subject to contamination. Such contamination is
particularly vexing because often it is discovered after the damage
is done and because the contamination is very long lasting. Thus
leachate from a landfill or dump may not show up for years, maybe
not even until after the landfill is closed.
Id. at 89 (emphasis added).
Consequently, subtitle D of RCRA provides clear authority to
address inactive or abandoned disposal sites. The relevant provisions
of RCRA subtitle D do not distinguish between ``active'' and
``inactive'' disposal units. Nor do any of the relevant provisions tie
jurisdiction to the receipt or disposal of waste after a specific date.
RCRA section 1004(14) defines an ``open dump'' as ``any facility or
site where solid waste is disposed of which is not a sanitary landfill
which meets the criteria promulgated under section [4004] of this
chapter and which is not a facility for disposal of hazardous waste.''
42 U.S.C. 6903(14) (emphasis added). Section 4004(a) delegates broad
authority to EPA to determine the facilities that will be considered
``open dumps,'' without any requirement that the units or facilities be
in operation. ``[T]he Administrator shall promulgate regulations
containing criteria for determining which facilities shall be
classified as sanitary landfills and which shall be classified open
dumps within the meaning of this chapter.'' 42 U.S.C. 6944(a). Section
4005(a), which is titled, ``Closing or upgrading of existing open
dumps,'' is also not limited in scope: ``Upon promulgation of criteria
under [1008(a)(3)] of this title, any solid waste management practice
of disposal of solid waste or hazardous waste which constitutes the
open dumping of solid or hazardous waste is prohibited, . . .'' 42
U.S.C. 6945(a) (emphasis added). See also, section 4003(a)(3),
requiring state plans to provide for the closing or upgrading of ``all
existing open dumps''). 42 U.S.C. 6943(a)(3) (emphasis added).
Consistent with the statutory provisions, EPA's current subtitle D
regulations at 40 CFR part 257 apply to ``all solid waste disposal
facilities and practices'' whether active or inactive, and did not
differentiate between new and existing facilities.\41\ 40 CFR 257.1(c).
See also, 40 CFR 257.1(a)(1)-(2). EPA was clear in both the proposed
and final rules that the rules applied to all existing facilities:
``These criteria for the classification of disposal facilities apply to
all ``solid waste'' and ``disposal'' facilities, which are defined in
the Act [in] (section 1004).'' 43 FR 4942-4943, 4944. The final rule
was equally clear: ``These criteria apply to the full range of
facilities and practices for ``disposal'' of ``solid waste,'' as those
terms are defined in the Act.'' 44 FR 53440. (See also 44 FR 53438.)
The final rule describes eight categories of materials or activities
that are excluded; inactive facilities or units are not among them.
This stands in stark contrast to the hazardous waste regulations,
which, as discussed, specifically exempted inactive facilities from the
permitting and associated regulatory requirements.
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\41\ The regulations establish eleven specifically enumerated
exemptions, none of which are relevant to the units at issue.
---------------------------------------------------------------------------
b. Case Law on the Definition of Disposal
EPA also disagrees with the commenters' second claim that
regulating inactive surface impoundments would be inconsistent with
case law in six circuits. The commenters are correct that some courts
have held that the subsequent passive migration of contamination left
on-site is insufficient to support liability against a third party that
merely owned the property under CERCLA. But the commenters misconstrue
this case law and fundamentally overstate its significance to the issue
at hand. Of greater significance, however, is that federal courts have
almost universally reached different conclusions under RCRA, holding
that the statutory definition of disposal does include the passive
migration of contamination from previously disposed of wastes.
As an initial matter, the issue decided by the courts in the cited
CERCLA cases was narrower than the commenters allege; these cases
generally focused on whether current or past owners of land
contaminated by the activities of other owners were liable for passive
migration that occurred during their ownership of the land. This is
very different than the situation at hand, in which regulatory
requirements are being imposed to address the existing and future
contamination caused by the past and current activities of the current
owner.
In addition, these decisions were largely predicated on language
that is unique to CERCLA, rather than on a definitive reading of RCRA's
definition of disposal. See, e.g., United States v. CMDG Realty Co.,
supra at 712-717. For example, in CMDG Realty, the court found that
passive migration was not disposal because Congress had clearly
distinguished between ``releases,'' and ``disposal,'' defining the two
terms differently and imposing liability on different parties for the
two activities. Id. Accord, Carson Harbor Village, supra, at 880-885;
ABB Industrial Systems v. Prime Technology, supra at 358.
Moreover, even under CERCLA courts have not universally reached the
same conclusions on whether ``passive migration'' can be considered
``disposal.'' See, e.g., Nurad, Inc. v. William E. Hooper & Sons Co.,
966 F.2d 837, 844-46 (4th Cir. 1992) (concluding that because the
definition of disposal includes ``leaking,'' prior owners are liable if
they acquired a site with leaking barrels or underground storage tanks
even though the prior owner's actions are purely passive); ABB
Industrial Systems, Id., n.3 (expressly declining to decide whether
passive migration could ever be considered ``disposal'').
But in any event, courts have consistently interpreted RCRA to
apply to passive migration. Two cases under RCRA are the most directly
analogous to the current situation as they address the extent of EPA's
authority to regulate based on the statutory definition of
``disposal'': In re Consolidated Land Disposal Regulation Litigation,
938 F.2d 1386 (D.C. Cir. 1991), and United States v. Power Engineering
Co., 10 F. Supp. 2d 1145 (D. Colo. 1998), aff'd 191 F.3d 1224 (10th
Cir. 1999). In both cases, the court considered whether EPA could
impose or enforce regulatory requirements to address passive migration
under the interpretation that this constituted ``disposal'' under RCRA.
And in both cases the court agreed that RCRA's definition encompassed
such activities.
The issue in Consolidated Land Disposal was whether EPA could
require closed hazardous waste facilities to obtain a ``post-closure''
permit. 938 F.2d at 1388-1389. EPA had relied on the definition of
disposal to support the regulation, concluding that a facility ``at
which hazardous wastes have been disposed by placement in or on the
land'' remains subject to both permitting and regulation because ``such
hazardous wastes or constituents may continue `leaking' or `may enter
the environment or be emitted . . . or discharged . . .' '' into the
environment.'' Id. Similar to the commenters' current arguments, the
petitioners argued that under Sec. 3005, a permit can only be required
for ``on-
[[Page 21346]]
going activities''--the treatment, storage, or disposal of waste at
such facilities--not for the facility itself post-closure. The
petitioners argued that linguistically, ``disposal . . . is not a
continuing activity but occurs anew each time waste is placed into or
on land.'' The D.C. Circuit summarily rejected the petitioners'
interpretation, holding that this ``may be one way in which the word is
used in ordinary language, but is not necessarily how it is used in the
statute; the equation of ``disposal'' with ``leaking,'' which is a
continuous phenomenon rather than a discrete event, is enough to blunt
the sting of the petitioners' point.'' Id. This case is essentially
dispositive of the issue, given the similarities between the
requirement for a post-closure permit and the final requirements
applicable to inactive CCR surface impoundments. Electric utilities
retain ownership and control over these existing CCR units, just as
hazardous waste facilities retain ownership and control over the closed
units subject to post-closure permitting. In both situations, EPA
requirements are designed to address both the existing and future risks
of further ``releases'' or ``leaking'' from these units--i.e., further
disposal, as that term is defined in section 1004.
Similarly, in Power Engineering the court considered whether under
section 3008 of RCRA, EPA could bring an action to compel the operator
of a metal refinishing plant to comply with the state's RCRA
regulations relating to financial assurance.\42\ 10 F. Supp.2d at 1159.
The defendants argued that since they were not currently disposing of
waste, they were operating in compliance with state regulations and
were exempt from financial assurance requirements. The court disagreed.
It held that the use of the word ``leaking'' in the definition of
``disposal'' indicated that the leaching of hazardous waste into the
groundwater constitutes the continuing disposal of hazardous waste. Id.
at 1159-60 (``Because the definition of ``disposal'' includes the word
``leaking,'' disposal occurs not only when a solid waste or a hazardous
waste is first deposited onto ground or into water, but also when such
wastes migrate from their initial disposal location.'').
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\42\ Under RCRA's financial assurance regulations, owners and
operators of hazardous waste facilities must document that they have
sufficient resources to close their facilities and pay third-party
claims that may arise.
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Courts in several circuits have also considered whether the passive
migration of previously dumped waste constitutes a current or ongoing
violation of RCRA, i.e., illegal ``disposal,'' under the citizen suit
provisions of section 7002(a)(1)(A). Most have concluded that it does.
See, Scarlett & Associates v. Briarcliff Center Partners, 2009 WL
3151089 (N.D. Ga 2009) (deciding to ``follow the majority rule'' and
holding that ``the continued presence of migrating waste constitutes a
continuing violation under the RCRA''); Marrero Hernandez v. Esso
Standard Oil Co., 597 F. Supp. 2d 272, 283 (D.P.R. 2009) (holding that
unremedied, migrating contamination is not a wholly past violation);
Cameron v. Peach County, GA, No. 5:02-CV-41-1 (CAR), 2004 WL 5520003
(M.D. Ga. 2004) (holding that the continued presence of illegal
contamination that remains remedial constitutes a continuing violation,
even though the acts of unlawful disposal occurred in the past);
California v. M&P Investments, 308 F. Supp. 2d 1137, 1146-1147 (E.D. CA
2003) (Allowing RCRA 7002 claim of continuing violation to proceed on
evidence that wastes ``continue to exist unremediated'' as a result of
improper discharge that had ceased over 20 years prior to filing of
suit); Aurora National Bank v. TriStar Marketing, 990 F. Supp. 1020,
1025 (N.D. Ill. 1998) (``Although subsection (a)(1)(A) does not permit
a citizen suit for wholly past violations of the statute, the continued
presence of illegally dumped materials generally constitutes a
`continuing violation' of the RCRA, which is cognizable under Sec.
6972(a)(1)(A).'') (internal citation omitted); City of Toledo v. Beazer
Materials & Servs., Inc., 833 F. Supp. 646, 656 (N.D. Ohio 1993)
(``[T]he disposal of wastes can constitute a continuing violation so
long as no proper disposal procedures are put into effect or as long as
the waste has not been cleaned up and the environmental effects remain
remediable.''); Gache v. Town of Harrison, 813 F. Supp. 1037, 1041-42
(S.D.N.Y. 1993) (``The environmental harms do not stem from the act of
dumping when waste materials slide off the dump truck but rather after
they land and begin to seep into the ground, contaminating soil and
water. So long as wastes remain in the landfill threatening to leach
into the surrounding soil and water, a continuing violation sure may
exist.''); Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498,
1512 (E.D. Wisc. 1992) (``RCRA includes in its broad definition of
`disposal' the continuous leaking of hazardous substances. . . .
Accordingly, leaking of hazardous substances may constitute a
continuous or intermittent violation of RCRA.''); Fallowfield Dev.
Corp. v. Strunk, No. 89-8644, 1990 WL 52745 (E.D. Pa. 1990) (``If a
person disposes of hazardous waste on a parcel of property, the
hazardous waste remains in that property insidiously infecting the soil
and groundwater aquifers. In other words, the violation continues until
the proper disposal procedures are put into effect or the hazardous
waste is cleaned up.''). It is particularly notable that these cases
were all decided under subsection (A); in contrast to subsection (B),
section 7002(a)(1)(A) does not include any reference to liability for
past actions or for prior owners. Compare, 42 U.S.C. 6972(a)(1)(A) and
(B). In reaching their holdings, therefore, the courts necessarily
relied [solely] on the reach of the statutory definition of
``disposal,'' which is at the heart of EPA's authority to regulate
inactive CCR surface impoundments.
Courts have also addressed the limits of RCRA's definition of
``disposal'' is in the context of an EPA action under RCRA section
7003. Section 7003 authorizes EPA to obtain injunctive relief for
actions, including disposal that ``may present an imminent and
substantial endangerment to health or the environment.'' 42 U.S.C.
6973(a). Several courts have evaluated whether an inactive disposal
site, where no affirmative acts of disposal are occurring, constitute
an ``imminent and substantial endangerment'' under this provision. Once
again, most courts accept a definition of disposal that encompasses
leaking or contaminant migration from previously discarded wastes. See
United States v. Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981), aff'd
United States v. Price, 688 F.2d 204 (3rd Cir. 1982) (``There is no
doubt, however, that [section 70003] authorizes the cleanup of a site,
even a dormant one, if that action is necessary to abate a present
threat to the public health or the environment.'') citing S. Rep. No.
96-848, 96th Cong., 2d Sess., at 11 (1980); H. R. Rep. 96-1016 (Part
I), 96th Cong., 2nd Sess., at 21 reprinted in [1980] U.S. Code Cong. &
Ad. News, 6119, 6124; United States v. Waste Indus., 734 F.2d 159 (4th
Cir. 1984) (Rejecting district court interpretation that disposal only
includes ``active human conduct'' based on the inclusion of ``leaking''
in the definition of disposal, and interpreting the ``movement of the
waste after it has been placed in a state of repose [to be] encompassed
in the broad definition of disposal''); United States v. Diamond
Shamrock Corp., 12 Envtl. L. Rep. 20819, 20821 (N.D. Ohio May 29, 1981)
(noting that ``a disposal clearly requires no active human conduct'');
United States v. Conservation Chemical Co.,
[[Page 21347]]
619 F. Supp. 162, 200 (D. Mo. 1985) (`` `disposal' occurs. . .when
[wastes] migrate from their initial location''). See also S. Rep. 98-
284, p 58 (98th Cong. 1st Sess.) (``The Environmental Protection Agency
and the Department of Justice have used the equitable authority and
[sic] granted in section 7003 to seek court orders directing those
persons whose past or present acts have contributed to or are
contributing to the existence of an imminent and substantial
endangerment to abate such conditions. This has been an intended use of
the section 7003 since 1976. . . . An [sic] evidenced by the definition
of `disposal' in section 1004(3), which includes the leaking of
hazardous wastes, section 7003 has always provided the authority to
require the abatement of present conditions of endangerment resulting
from past disposal practices, whether intentional or unintentional.'').
While EPA continues to maintain that the statutory definition of
disposal does in fact authorize regulation of inactive CCR surface
impoundments, this is not the sole basis for that authority. Under
section 1008(a)(3), EPA is authorized to establish criteria governing
solid waste management, which includes the ``storage'' of solid waste.
42 U.S.C. 6904(28) and 6908(a)(3). RCRA's definition of ``storage'' is
limited to hazardous waste; under subtitle D, therefore, the definition
Congress intended was the dictionary definition, which incontrovertibly
covers the activities associated with continuing to maintain CCR in
inactive surface impoundments. For example, Merriam Webster defines
``storage'' as ``the state of being kept in a place when not being
used'' and ``the act of putting something that is not being used in a
place where it is available, where it can be kept safely, etc.''
Finally, consistent with the proposed rule and the final Regulatory
Determination in Unit IV.B of this document, the final rule does not
apply to CCR that is beneficially used.
6. Beneficial Use
The proposed rule generally distinguished between the disposal of
CCR and the beneficial use of CCR. Disposal activities would be subject
to regulation under one of two alternative regulatory schemes. But
under either alternative, beneficial use would remain Bevill exempt and
would not be subject to regulation. The proposal identified specific
criteria that would be used to distinguish between legitimate
beneficial uses of CCR and the disposal of CCR. These criteria were
largely drawn from the approach contained in the May 2000 Bevill
Regulatory Determination. The criteria were:
--The material used must provide a functional benefit. For example,
CCR in concrete increases the durability of concrete--and is more
effective in combating degradation from salt water; synthetic gypsum
serves exactly the same function in wallboard as mined gypsum, and
meets all commercial specifications; CCR as a soil amendment adjusts
the pH of soil to promote plant growth.
--The material substitutes for the use of a virgin material,
conserving natural resources that would otherwise need to be obtained
through practices, such as extraction. For example, the use of FGD
gypsum in the manufacture of wallboard (drywall) decreases the need to
mine natural gypsum, thereby conserving the natural resource and
conserving energy that otherwise would be needed to mine natural
gypsum; the use of fly ash in lieu of Portland cement reduces the need
for cement. CCR used in road bed replace quarried aggregate or other
industrial materials.
--Where relevant product specifications or regulatory standards are
available, the materials meet those specifications, and where such
specifications or standards have not been established, they are not
being used in excess quantities. For example, when CCR is used as a
commercial product, the amount of CCR used is controlled by product
specifications, or the demands of the user. Fly ash used as a
stabilized base course in highway construction is part of many
engineering considerations, such as the ASTM C 593 test for compaction,
the ASTM D 560 freezing and thawing test, and a seven day compressive
strength above 2760 kPa (400 psi). If excessive volumes of CCR are
used--i.e., greater than were necessary for a specific project,--that
could be grounds for a determination that the use is not beneficial,
but rather is being disposed of. 75 FR 35162-35163.
EPA explained that in the case of agricultural uses, CCR would be
expected to meet appropriate standards, constituent levels, prescribed
total loads, application rates, etc. EPA has developed specific
standards governing agricultural application of biosolids. While the
management scenarios differ between biosludge application and the use
of CCR as soil amendments, EPA stated that the Agency would consider
application of CCR for agriculture uses not to be a legitimate
beneficial use if they occurred at constituent levels or loading rates
greater than EPA's biosolids regulations allow. (75 FR 35162-35163,
June 21, 2010)
EPA proposed to codify these criteria in the term, ``beneficial use
of coal combustion products (CCPs).'' This definition stated that the
beneficial use of CCPs was the use of CCPs that provides a functional
benefit; replaces the use of an alternative material, conserving
natural resources that would otherwise need to be obtained through
practices such as extraction; and meets relevant product specifications
and regulatory standards (where these are available). CCPs that are
used in excess quantities (e.g., the field-applications of FGD gypsum
in amounts that exceed scientifically-supported quantities required for
enhancing soil properties and/or crop yields), placed as fill in sand
and gravel pits, or used in large scale fill projects, such as
restructuring the landscape, are excluded from this definition. (75 FR
35129-35130, June 21, 2010).
Commenters generally supported the criteria in the proposal but
raised concern that the criteria lacked specificity; some commenters
stated that the criteria were those that states already considered in
doing their beneficial use determination. Commenters also suggested the
use of a ``no toxics'' provision and others suggested that the criteria
include a requirement that ``environmental benefits'' be achieved. A
more general comment raised by several commenters was that the proposed
criteria failed to establish any standard that ensured protection of
human health and the environment. Finally, one commenter raised concern
that EPA's approach to beneficial use, and particularly to large scale
fill operations, inappropriately assumed that these operations
constituted the disposal of solid waste, which, the commenter claimed
was inconsistent with a series of judicial decisions.
There are generally three critical issues in determining whether a
material is regulated under RCRA subtitle D: whether the material is a
``solid waste,'' whether the activity constitutes ``disposal,'' and
whether regulation of the disposal is warranted. Although there can be
some overlap between these issues in that the same facts may be
relevant to each of them, understanding the distinction between them is
critical to understanding the final approach to the beneficial use of
CCR adopted in this rulemaking.
In order to be subject to RCRA, the material must be a solid waste.
The statute defines a solid waste as ``any garbage, refuse . . . and
other discarded material. . . .'' 42 U.S.C. 6903(27). As EPA noted in
the proposed rule, for some beneficial uses, CCR is a raw
[[Page 21348]]
material used as an ingredient in a manufacturing process that have
never been ``discarded,'' and thus, would not be considered solid
wastes under the existing RCRA regulations. For example, synthetic
gypsum is a product of the FGD process at coal-fired power plants. In
this case, the utility designs and operates its air pollution control
devices to produce an optimal product, including the oxidation of the
FGD to produce synthetic gypsum. In this example, after its production,
the utility treats FGD as a valuable input into a production process,
i.e., as a product, rather than as something that is intended to be
discarded. Wallboard plants are sited in close proximity to power
plants for access to raw material, with a considerable investment
involved. Thus, FGD gypsum used for wallboard manufacture is a product
rather than a waste or discarded material. This use and similar uses of
CCR that meet product specifications would not be regulated under the
final rule.
However, this does not describe the majority of CCR, which are
unambiguously wastes; after generation in the boiler, they are placed
into landfills or surface impoundments. While they may subsequently be
dredged from these units and reused, placement in a landfill or surface
impoundment presents prima facie evidence of discard. At the time the
material is placed into the unit, the utility is not treating the
material as a valuable product or otherwise seeking to protect the
material for use. Although the material may subsequently be reused if a
buyer is found, the material is originally placed in the unit with the
intent to let it remain in place if no buyer is found. The waste
designation does not change merely because a material in a surface
impoundment or landfill may in the future be beneficially reused.
For those materials that are ``wastes'' the second issue becomes
relevant: whether the activities involved with the material constitutes
``disposal'' or ``solid waste management.'' The statute distinguishes
between these activities and ``use;'' several activities are listed in
the definitions of ``disposal'' and ``solid waste management'' and
``use'' is not among them. See 42 U.S.C. 6903(3) and (28). In general,
commenters agreed that the three criteria in the proposal, and
discussed above, would identify those activities that were properly
considered to be legitimate beneficial uses rather than disposal. As
several commenters noted, many state beneficial use programs rely on
similar (or identical) criteria. And for encapsulated uses, EPA agrees
that these three criteria are sufficient to distinguish between the
activities that will be regulated as disposal under this final rule and
those that will be considered beneficial use. Accordingly, EPA has
adopted them in the final definition of ``beneficial use.''
But as EPA acknowledged in the proposal, the issues are more
difficult with regard to unencapsulated uses. Because these uses
involve the direct placement of CCR on the land, they are clearly more
analogous to activities that have consistently been considered to be
``disposal.'' RCRA defines disposal to specifically include the
``placing of any solid waste or hazardous waste into or on any land or
water so that such solid waste or hazardous waste or any constituent
thereof may enter the environment . . .'' 42 U.S.C. 6903(3). The issue
is further complicated by the fact that there can be risks associated
with placement of unencapsulated CCR on the land. As described in the
proposal, CCR can leach toxic metals at levels of concern. The major
risks associated with the placement of unencapsulated CCR on the land
for beneficial use involved using large volumes of CCR to restructure
the landscape, such as occurred at the Battlefield golf course, and
placement in quarries and sand and gravel pits, such as occurred at the
Gambrills, Maryland site. EPA acknowledged in the proposal that these
types of operations would be subject to regulation as disposal, and so
were not directly on point. However, because these damage cases
involved the placement of unencapsulated CCR on the land, they raised
questions regarding the safety of other uses of unencapsulated CCR that
involved direct placement on the land. In addition, previous risk
analyses do not address many of the use applications currently being
implemented, and have not addressed the improved leachate
characterization methods. EPA also noted that some scientific
literature indicates that the uncontrolled (i.e., excessive)
application of CCR can lead to the potentially toxic accumulation of
metals.\43\
---------------------------------------------------------------------------
\43\ See, for example, ``Effects of coal fly ash amended soils
on trace element uptake in plant,'' S.S. Brake, R.R. Jensen, and
J.M. Mattox, Environmental Geology, November 7, 2003 available at
http://www.springerlink.com/content/3c5gaq2qrkr5unvp/fulltext.pdf;
See information regarding the Town of Pines Groundwater Plume at
http://www.epa.gov/region5superfund/npl/sas_sites/INN000508071.htm.
Also see additional information for this site at http://www.epa.gov/region5/sites/pines/#updates.
---------------------------------------------------------------------------
As noted, several commenters raised concern that EPA's beneficial
use criteria did not include any standard that ensured protection of
human health and the environment. EPA agrees that a criterion that
accounted for the potential risks of the land placement of
unencapsulated CCR would be an appropriate element to include in
differentiating between disposal and beneficial use. RCRA's definition
of disposal includes some elements related to risk: specifically, the
definition includes as a relevant concept that the waste or any
constituent of concern ``may enter the environment.'' In this regard it
is also relevant that not all disposal activities are regulated by EPA
under subtitle D; rather, EPA only regulates those that present risks
that exceed the Agency's acceptable risk levels.
Building off of these concepts, the Agency has developed an
additional criterion to address both the question of whether the
activity is appropriately considered to be ``disposal,'' and the
question of whether that ``disposal'' warrants regulation. Because uses
that fail to meet the beneficial use criteria will be considered
disposal and would therefore be considered disposal subject to the
final regulation, this fourth criterion was designed to exclude uses
likely to present the same risks as the management practices regulated
under other sections of the final rule. Thus, the final criterion
directly correlates to the practices and the risks that the disposal
regulations are designed to address: the risks associated with the
placement of large quantities of CCR in a single concentrated location,
such as a CCR landfill, as documented in the 2014 risk assessment and
the damage cases.
As discussed in more detail below, to be considered a ``beneficial
use,'' prior to initiating an activity that involves placing
unencapsulated CCR on the land in amounts greater than 12,400 tons, in
non-roadway applications, the user must demonstrate that environmental
releases to groundwater, surface water, soil and air are comparable to
or lower than those from analogous products made without CCR, or that
environmental releases to groundwater, surface water, soil and air will
be at or below relevant regulatory and health-based benchmarks for
human and ecological receptors during use.
EPA acknowledges that there may be risks associated with uses that
are below this threshold, depending on the characteristics of the CCR,
the amount of material and the manner in which it is placed, and
(perhaps most important) the site conditions. Consequently, all
unencapsulated uses, including use in road construction and
agriculture, should be conducted with care, according to appropriate
management
[[Page 21349]]
practices, and with appropriate characterization of the material and
the site where the material will be placed. However, as discussed in
the previous section, because the amounts and, in some cases, the
manner in which the CCR are used are very different from the land
disposal modeled in the risk assessment, EPA cannot extrapolate from
the risk assessment to reach conclusions regarding the risks these uses
may pose. And in the absence of such information, EPA cannot establish
criteria to regulate these uses.
a. Final Definition of the Term ``Beneficial Use of CCR''
The final beneficial use criteria are as follows: (1) The CCR must
provide a functional benefit; (2) The CCR must substitute for the use
of a virgin material, conserving natural resources that would otherwise
need to be obtained through practices such as extraction; (3) the use
of CCR must meet relevant product specifications, regulatory standards,
or design standards when available, and when such standards are not
available, CCR are not used in excess quantities; and (4) when
unencapsulated use of CCR involves placement on the land of 12,400 tons
or more in non-roadway applications, the user must demonstrate and keep
records, and provide such documentation upon request, that
environmental releases to groundwater, surface water, soil and air are
comparable to or lower than those from analogous products made without
CCR, or that environmental releases to groundwater, surface water, soil
and air will be at or below relevant regulatory and health-based
benchmarks for human and ecological receptors during use. Any use that
fails to comply with all of the relevant criteria will be considered to
be disposal of CCR, subject to all of the requirements in the disposal
regulations, and the user will be considered to be the owner or
operator of a CCR disposal unit. Encapsulated uses need only comply
with the first three criteria. Unencapsulated uses involving placement
on the land of 12,400 tons or more in non-roadway applications that
fail to meet all of the beneficial use criteria are considered a CCR
unit. As previously noted, the first three criteria were discussed in
the proposal and commenters generally supported these criteria, which
establish flexible performance standards. As discussed above, the
Agency has developed an additional criterion in response to comments,
which generally reflects the issues discussed in the proposal. This
additional criterion is designed to address the environmental and human
health concerns associated with large-scale, unencapsulated uses that
have features similar to landfills. These four criteria are discussed
in greater detail in the sections below. Any user of CCR that, at a
later time, believes that there could be a health or environmental
issue associated with their beneficial use should work with their state
agency to address any potential issue.
As noted above, encapsulated uses of CCR must only comply with the
first three criteria. Encapsulated beneficial uses are those that bind
the CCR into a solid matrix that minimizes their mobilization into the
surrounding environment. Examples of encapsulated uses include, but are
not limited to: (1) Filler or lightweight aggregate in concrete; (2) a
replacement for, or raw material used in production of, cementitious
components in concrete or bricks; (3) filler in plastics, rubber, and
similar products; and (4) raw material in wallboard production.
Compliance with the first three criteria suffices because, as
discussed in Unit IV of this document, the available information
demonstrates that encapsulated uses of CCR raise minimal health or
environmental concerns. The Agency did not receive any data to
contradict this assessment during any of the comment periods. In
addition, since publication of the proposal, the Agency conducted a
study of FGD gypsum in wallboard and fly ash concrete, which further
supports this conclusion. This study ``Coal Combustion Residual
Beneficial Use Evaluation: Fly Ash Concrete and FGD Gypsum Wallboard''
(February 2014) concluded that ``environmental releases of constituents
of potential concern (COPCs) from CCR fly ash concrete and FGD gypsum
wallboard during use by the consumer are comparable to or lower than
those from analogous non-CCR products, or are at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors.''
Criteria 1: CCR must provide a functional benefit. This criterion
is designed to ensure that the material performs a genuine function in
the product or use; while it need not improve product performance when
compared to the material for which it is substituting, CCR must
genuinely be a necessary component of the product. In other words,
there must be a legitimate reason for using CCR in the product other
than the fact that it is an alternative to disposal of the material,
e.g., the material fulfils material specifications. For example, CCR
provides a functional benefit when used as a replacement for cement in
concrete because the CCR increases the durability of the concrete and
is also more effective against degradation from salt water. FGD gypsum
serves the same function in the production of wallboard as mined
gypsum, and meets all product specification. Additionally, CCR can be
used to adjust the pH of soils thereby increasing and promoting plant
growth.
One commenter noted that many states already consider whether the
material provides a functional benefit when making beneficial use
determinations under their regulatory programs. The Agency agrees that
this is an important criterion in determining whether a use is a
``beneficial use.'' To the extent that a state regulatory program has
determined that a particular use provides a functional benefit, this
may serve as evidence that this criterion has been met.
Criteria 2: CCR must substitute for the use of a virgin material,
conserving natural resources that would otherwise need to be obtained
through practices, such as extraction. This criterion is intended to
ensure that the use is truly ``beneficial'' from an environmental
perspective. Examples of CCR used as a substitute for a virgin material
include FGD gypsum for mined gypsum and the use of fly ash in lieu of
Portland cement thereby reducing the need for cement. The use of FGD
gypsum in the manufacture of wallboard reduces the need to use virgin
gypsum, thereby conserving natural resources (virgin gypsum) while
conserving valuable energy that would be needed to mine the virgin
gypsum. Similarly, the use of CCR fly ash in lieu of Portland cement
reduces the overall need for cement. CCR used in a road bed application
substitutes for the use of quarried natural materials that provide
structural support for the road surface.
One commenter again highlighted that many states consider this
criterion in their current state beneficial use programs. The Agency
agrees that this second criterion is appropriate, and that conserving
natural resources is an important function that should be encouraged.
Here as well, potential users of CCR materials may choose to rely on a
state determination to provide evidence that this criterion has been
met.
Criteria 3: The use of CCR must meet relevant product
specifications, regulatory standards, or design standards, when
available, and where such specifications or standards have not been
established, CCR may not be used in excess quantities. This criterion
was intended to address both the legitimacy of the use and the
potential environmental and human health
[[Page 21350]]
consequences associated with the use of excess quantities of CCR,
particularly unencapsulated CCR. If excessive volumes of CCR are used--
i.e., greater than necessary for a specific project--that calls into
question whether the purpose of the application was in fact a sham to
avoid compliance with the disposal regulations. In addition, the record
demonstrates that the risks from use of CCR are more likely to be
associated with large volumes, particularly for unencapsulated uses.
The Agency has modified this criterion slightly from the proposed
rule. The proposed rule merely referenced ``relevant product
specifications or regulatory standards'' and EPA was concerned that
this was too narrow, and might not incorporate all of the relevant
technical information currently available that provides guidance on
what constitutes an excess amount. Consequently, in the final
definition the Agency has added the phrase ``design standards.'' Design
standards are different from product specifications, because they
include things other than ``products.'' An example of a ``design
standard'' would be technical guidance specifying that six inches of
CCR is to be used in constructing a road.
EPA received several comments on this provision, several of which
criticized the sole reliance on engineering performance standards. For
example, one commenter questioned how the Agency would quantify
acceptable amounts for each use if no specifications or standards were
in place. One commenter stated that the Agency needs to rely on more
than the existence of engineering performance standards or comparisons
to typical application rates of mined materials as coal combustion
wastes are unique materials and comparisons to typical rates of
application of natural gypsum or other soil amendments are
inappropriate. Another commenter suggested a provision that would
require users to follow a plan to only use what is necessary to reach
the desired effect, in lieu of product specifications.
EPA purposely did not attempt to establish product specifications
for each potential beneficial use application. The potential products
are too varied, and in many instances EPA lacks the necessary expertise
(e.g., to develop manufacturing specifications for individual
products.). Nor is such an approach necessary. When CCR substitutes for
other materials, the amount used is typically controlled by product
specifications, particularly for encapsulated uses. Product
specifications currently exist for many, if not most, of the
significant uses of CCR and can be found in a variety of sources. For
example, as previously described, fly ash used as a stabilized base
course in highway construction is subject to both regulatory standards
under DOT/FHWA, and engineering specifications, such as the ASTM C 593
test for compaction, the ASTM D 560 freezing and thawing test, and a
seven-day compressive strength above 2760 kPa (400 psi).
Similarly, in an agricultural setting, EPA expects all appropriate
standards, constituent levels, prescribed total loads, and application
rates to be met. For example, EPA has developed specific standards
governing the agricultural application of biosolids. While the
management scenarios differ between biosludge application and the use
of CCR as soil amendments, EPA would consider application of CCR for
agriculture uses not to be a legitimate beneficial use if they occurred
at constituent levels or loading rates greater than EPA's biosolids
regulations. Several commenters also noted that agronomic rates
currently exist for certain items such as peanuts, cotton, tomatoes,
corn and soybeans.\44\ EPA would generally consider application of CCR
above these rates, or any other rate that has been scientifically
justified, to constitute disposal rather than beneficial use.
---------------------------------------------------------------------------
\44\ Commenters argued that, at least in agronomic settings,
there is no incentive to use excess amounts because it simply
increases the grower's cost.
---------------------------------------------------------------------------
Many other sources of technical reports and documents exist for
other uses. ASTM Standard E2277-03 provides standard guidance and a
methodology for using CCR in a structural fill and includes a
consideration of engineering properties and behaviors, testing
procedures, and design considerations relevant to constructing a
structural fill project using CCR. Industry guidance, such as USWAG's
``Engineering and Environmental Guidance on the Beneficial Use of Coal
Combustion Products in Engineered Structural Fill Projects'' may also
provide information relevant to this issue. Further, some states, such
as Wisconsin and Virginia, have developed environmental guidance for
evaluating the suitability of a site prior to construction of a CCR
structural fill.
While many of these documents do not establish binding
requirements, nor is EPA seeking to make them binding on users, they
provide evidence of the design and construction practices, including
the amounts that are typically used throughout the industry, and
provide a basis on which to evaluate whether excessive quantities have
been used in a particular application. These types of documents are
also relevant in making judgments on the larger question--whether the
activity is legitimate reuse or merely sham disposal. In essence,
product specifications serve the same function as the requirement
suggested by a commenter for a plan to only use what is necessary to
reach the desired effect.
Commenters were also concerned that the proposed standards, and
particularly this criterion, did not include any provision that would
ensure that CCR reuse was protective of human health and the
environment. One commenter stated that product specifications and
engineering standards do not speak to environmental risk or consumer
exposure. This same commenter was concerned that the proposed criteria
used circular logic by stating that excess materials were not to be
used in cases where specifications or standards have not been
established. Another commenter criticized this criterion because it did
not include threshold levels that protect public health from the range
of toxicants routinely found in coal ash.
EPA generally disagrees that the requirement to ensure that
excessive volumes have not been used is unrelated to environmental and
safety concerns. Minimizing the amount of material used in a product or
released to the environment decreases potential exposures to the
material. EPA agrees, however, that an additional criterion that more
directly addresses the potential health and environmental risks is
appropriate for unencapsulated uses, which present the greater
potential for exposures of concern. As discussed in more detail below,
the Agency has added a criterion to specifically require users of
unencapsulated CCR to demonstrate that environmental and health related
standards have been met. The criterion is a general performance
standard that is equally applicable to all sites and uses and will
account for a wide variety of potential exposures. By contrast, in
order to establish toxicant ``threshold levels,'' EPA would need to
develop risk assessments that account for the wide variety of potential
uses and exposures. This is neither practical nor feasible, given the
site specific nature of the potential risks and the myriad of potential
uses. In addition, EPA disagrees that this is necessary, as the
performance standard laid out in the fourth criterion will
appropriately address the risks documented in the current record for
these uses.
[[Page 21351]]
Furthermore, as the Agency has previously stated in the May 2000
Regulatory Determination and the 2010 proposal, leaving the Bevill
determination in place for beneficial use does not conflict with EPA's
view that certain beneficial uses, e.g., use in road construction and
agriculture, should be conducted with care, according to appropriate
management practices, and with appropriate characterization of the
material and the site where the materials will be placed. EPA has
concluded that the potential risks of these uses do not warrant federal
regulation, but can be addressed, if necessary, in other ways.
State programs exist and have the expertise to address beneficial
use applications. In addition, the Agency is currently developing a
framework to address the risks associated with the beneficial use of
unencapsulated materials. This framework is expected to be finalized in
2015; the framework will be available to assist in the implementation
of issues associated with the unencapsulated uses of CCR. The Agency
has also been working with the U.S. Department of Agriculture to
address the risks associated with the agricultural use of CCR. In
conclusion, the Agency believes that sufficient tools are available (or
will soon be available) to address the site-specific risks associated
with the beneficial use of CCR.
Criteria 4: When unencapsulated use of CCR involving placement on
the land of 12,400 tons or more in non-roadway applications, the user
must demonstrate and keep records, and provide such documentation upon
request, that environmental releases to groundwater, surface water,
soil and air are comparable to or lower than those from analogous
products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use. The Agency has established an environmental
criterion to protect human health and the environment in response to
numerous comments received on the proposal raising concern that
additional provisions were necessary to ensure that unencapsulated uses
of CCR needed to be conducted in an environmentally protective manner.
The Agency discussed in the proposed rule the ways in which the use of
CCR in an unencapsulated manner could affect groundwater, surface
water, air and be associated with dust emissions. This fourth
``environmental'' criterion requires potential users to addresses
potential risks from all of these pathways in order to avoid compliance
with the final disposal requirements. Existing sources of guidance and
standards (e.g., ASTM E2277-03 and USWAG's ``Engineering and
Environmental Guidance on the Beneficial Use of Coal Combustion
Products in Engineered Structural Fill Projects,'' to name just two
that are currently available), are available and may provide useful
assistance for determining if the use of CCR are comparable to or lower
than those from analogous products made without CCR, or that
environmental releases to groundwater, surface water, soil and air will
be at or below relevant regulatory and health-based benchmarks for
human and ecological receptors during use. Information (e.g., modeling
results, proposed designs, risk assessments, etc.) that have been
proposed or developed to comply with state standards that explicitly
address the environmental impacts of unencapsulated uses may also be
relevant to this determination.
i. Source of the 12,400 Ton Threshold and Fill Operations.
As discussed earlier in this section, the fourth criterion was
designed to address whether the activity is appropriately considered to
be ``disposal'' and whether that ``disposal'' warrants regulation.
Thus, the final criterion correlates to the practices and the risks at
issue: The placement of large quantities of CCR in a single
concentrated location, as documented by the 2014 risk assessment and
the damage cases.
In the proposed rule, EPA explained that the risks of greatest
concern from unencapsulated beneficial uses were associated with the
placement of CCR in quarries and sand and gravel pits, and with large
scale fill operations used to re-grade the landscape. EPA generally
proposed to define these operations as ``disposal'' rather than
``beneficial use.'' As discussed below, EPA has retained that approach
with respect to the placement in sand and gravel pits and quarries;
consequently the fourth criterion need not account for these uses. By
contrast, EPA has not definitively concluded that ``large scale fill
operations,'' per se, constitute the disposal of CCR. This is because
EPA agrees with commenters that, if constructed correctly, large scale
fill operations can meet all of the criteria for a beneficial use. But
EPA also agrees that these applications can present risks to human
health and the environment, and therefore has drafted the fourth
criterion to specifically address the risks presented by these
operations. The fourth criterion is thus tied to the Agency's general
approach to large scale fill.
The Agency acknowledged in the proposal that additional guidance
was warranted on what would constitute a large scale fill operation,
and received numerous comments on this issue in response to the
proposal. EPA requested comments again on the topic of large scale
fills in a Notice of Data Availability (NODA). 78 FR 46940 (August 2,
2013). The NODA discussed the fact that many commenters on the proposed
CCR rule stated that EPA should have developed a size criterion to
define large scale fill operations. One commenter suggested 5,000 cubic
yards as a size criterion for a CCR landfill, but did not provide a
basis for this. Other commenters suggested size criteria but for
different reasons than defining disposal criteria; for example,
Wisconsin has a standard where all CCR used for unconfined and confined
``fill projects exceeding 5,000 cubic yards require concurrence by the
State prior to commencement of the project.'' Similarly, West Virginia
stated that ``unencapsulated use of CCR as structural fills not
exceeding 10,000 cubic yards are approvable on a case-by-case basis.''
In the NODA, EPA identified three different types of data sets that
could provide information relevant to developing appropriate criteria
or to otherwise defining what constitutes a ``large scale'' fill
operation. EPA solicited comment on the adequacy of the data sets and
whether EPA should consider them for the purpose of creating criteria
or a definition. The three data sets were: (1) The size of the
structural fills that have resulted in damage cases; (2) the
distribution of landfill sizes, derived either from an EPA Office of
Water's questionnaire or from the landfill size distribution used in
the proposed rule; and (3) the size distribution for large scale fills
that have been constructed in North Carolina. Many commenters argued
that it was entirely inappropriate for EPA to specify in the rule when
a project constitutes beneficial use simply by volume or amount of
structural fill necessary to construct a stable base for a building.
Commenters argued that a large scale fill operation, if designed
appropriately, constituted a legitimate beneficial use. In fact,
industry commenters universally claimed that they were not aware of any
damage cases or adverse environmental impacts associated with
structural fills that had adhered to industry guidance (e.g., ASTM
standard E2277-03 for structural fills and the USWAG Engineering and
Environmental Guidance on the Beneficial Use of CCPs
[[Page 21352]]
in Engineered Structural Fill Projects), and argued that the history of
well-designed and implemented engineered structural fills demonstrate
that CCR can serve as a valuable resource in avoiding disturbing native
ground to secure borrow soils where fill materials are needed to
establish a final grade for a project site that meets the need of the
proposed final use. To this end, the commenters also acknowledged that
site characterization and characterization of the CCR are fundamental
to the construction of fills across the U.S. Similarly, other
commenters stated that size should not be the only criterion used to
define large scale fill operations and highlighted that the site
conditions, including such features as the hydraulic conductivity of
the area, should also be an important criterion to consider. Still
other commenters stated that CCR landfills cannot include large scale
fill CCR beneficial use projects because such operations do not involve
disposal of a solid waste. Rather, industry commenters argue that the
determination as to what is disposal as opposed to beneficial use
should be a determination that rests solely with state agencies. These
commenters suggested that the determination as to whether a particular
fill project constituted disposal, rather than beneficial use should be
based on a series of factors, and not simply a size-cut-off. Finally,
other commenters argued that the Agency incorrectly presumed that only
large scale fill operations could cause environmental damage, and
suggested that rather than regulating large scale fill operations
solely on the basis of the volume or the amount of CCR involved, the
information available to EPA from damage cases and monitoring data
suggests that an additional, if not primary criteria for regulating
fill operations, including those involved in highway construction,
should include the prevention of CCR coming into contact with water.
Focusing on the risks of concern--that large scale fills were
effectively operating as landfills--the Agency reviewed the database of
landfills used in the 2014 risk assessment and has established a
threshold limit that corresponds to the smallest size landfill in the
risk assessment database. EPA selected this threshold as the trigger
for requiring an affirmative demonstration by the user that there will
be no releases of concern as a consequence of the land application,
because the available evidence in the record (i.e., the 2014 risk
assessment) demonstrates that at these volumes the potential risks are
of such significance to warrant regulation. Based on this evidence, the
burden then shifts to the potential user to demonstrate that these
potential risks do not exist at the particular site or have been
adequately mitigated. Under this approach, unencapsulated beneficial
use applications greater than or equal to 12,400 tons can still be
conducted without becoming subject to the disposal regulations by using
engineering principles, such as a liner system, and demonstrating that
environmental releases to groundwater, surface water, soil and air are
comparable to or lower than those from analogous products made without
CCR, or that environmental releases to groundwater, surface water, soil
and air will be at or below relevant regulatory and health-based
benchmarks for human and ecological receptors. EPA agrees that the
volume of CCR involved should not be the sole basis for determining
whether an operation constitutes disposal. As such, the Agency is
requiring the use of the fourth criterion in order to address any
potential risks associated with unencapsulated uses of CCR that are in
excess of 12,400 tons. Users will be required to make an affirmative
demonstration relating to the potential environmental releases and the
potential risks of the application (in addition to requiring compliance
with the other three criteria). Specifically, users will be required to
demonstrate that environmental releases to groundwater, surface water,
soil and air are comparable to or lower than those from analogous
products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use. EPA expects such determinations to take into
account a wide variety of factors, including the hydraulic conductivity
of the area, proximity of the material to water, and the likelihood of
contact with water. EPA also expects that such determinations would
take into account, as many commenters acknowledged to be appropriate
and necessary, the need for site characterization and characterization
of the CCR. The fourth criterion was adopted in part, to address
commenters' concern that the EPA should include a criterion that
prevents the placement of CCR in water sources. These are legitimate
concerns; existing damage cases show that the placement of CCR in sand
and gravel pits was almost always associated with CCR being placed in
contact with water. The fourth criterion will require the user to
demonstrate that environmental releases to groundwater, surface water,
soil and air are comparable to or lower than those from analogous
products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use. As a consequence of this requirement, EPA expects
that significant changes may need to be made in order to proceed with a
proposed use; for example, conducting the required assessment, may
demonstrate that the only way to achieve the performance standard is to
install engineering features, such a liner, as part of the proposed
project.
Application of unencapsulated CCR to the land in volumes less than
the 12,400 tons will not require an affirmative demonstration to be
considered a beneficial use. While the Agency has sufficient
information to document that unencapsulated uses can present a hazard,
based on the current rulemaking record, EPA lacks the information
necessary to demonstrate that unencapsulated uses in smaller amounts
are likely to present a risk.\45\ In other words, the evidence relating
to these uses is not sufficient to shift the burden to the potential
user to affirmatively demonstrate the safety of the proposed use.
Nevertheless, the Agency expects potential users of unencapsulated CCR
below this threshold to work with the states to determine the potential
risks of the proposed use at the site and to adopt the appropriate
controls necessary to address the risks. In this regard, EPA notes that
the composition and leaching behavior of CCR being beneficially used
may change over time due to upgrades in air pollution controls devices
at coal-fired power plants. Further, initial determinations for
existing beneficial use (BU) applications may have relied on single-
point pH test methods (e.g., TCLP, SPLP) that, depending on actual
field conditions in which the applications are occurring, can under- or
over-estimate leachate concentrations. Scientific advancements
[[Page 21353]]
in leach test protocols have found that the degree of leaching can vary
by several orders of magnitude. Accordingly, states overseeing CCR BU
programs are encouraged to closely evaluate existing BU applications in
light of ongoing scientific advances in tools and technologies to
ensure these applications remain protective of human health and the
environment. In addition, the Agency is working to provide assistance
to states and potential users; this includes the release of the
Agency's Industrial Waste Evaluation Model (IWEM), and the development
of a framework for systematically assessing unencapsulated BU
applications to aid in assessing whether there are environmental risks
associated with site specific structural fills.
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\45\ In November 2014, EPA received reports alleging that
extensive groundwater monitoring data collected by the Wisconsin
Department of Natural Resources demonstrated a correlation between
beneficial uses of unencapsulated CCR below these thresholds and
contaminated drinking water wells in southeastern Wisconsin.
Insufficient time was available to allow EPA to evaluate these
reports as part of this rulemaking. However, EPA will continue to
evaluate the issues associated with unencapsulated uses of CCR, and
to the extent available data demonstrate the need for revisions to
these criteria, EPA will initiate the necessary rulemaking
procedures.
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ii. Exclusion of Roadway Applications from the 4th Criterion. In
the 2010 proposal, the Agency stated that the placement of
unencapsulated CCR on the land, such as in road embankments, presented
concerns, but that the amount and the manner in which they are used--
subject to engineering specifications and material requirements rather
than landfilling techniques--are very different from land disposal. The
Agency highlighted the 2005 guidance that was developed by EPA, FHWA,
DOE, ACAA, and USWAG, addressing the appropriate methodologies and
engineering requirements for the use of coal ash in highway
construction. Lastly, the Agency noted the difference in terms of
volume; the difference between the amounts of CCR that could be
disposed of in a landfill vs. the amount of CCR used in the
construction of a roadbase (typically on the order of six to twelve
inches thick).
EPA received a number of comments requesting that the definition of
a CCR landfill exclude CCR used in highway and road construction
projects and similar beneficial use projects authorized by an
appropriate state agency. These commenters reasoned that the
``arbitrary cutoff' discussed in the NODA would inappropriately capture
such uses.
The Agency has excluded roadways and associated embankments from
the fourth criterion because the methods of application are
sufficiently different from CCR landfills that EPA cannot extrapolate
from the available risk information to determine whether these
activities present similar risks. Roadways are subject to engineering
specifications that generally specify CCR to be placed in a thin layer
(e.g., six to 12 inches) under a road. The placement under the surface
of the road limits the degree to which rainwater can influence the
leaching of the CCR.
There are also significant differences between the manner in which
roadways and landfills can potentially impact groundwater. These
include the nature of mixing in the media, the leaching patterns, and
how input infiltration rates are generated. First, CCR landfills are
typically a homogenously mixed system, and as a result, there are no
spatial variations of the chemical and physical properties of the media
(for example, bulk density, hydraulic conductivity and contaminant
concentration). By contrast, roadways are generally constructed of
several layers with different material properties (heterogeneity). This
difference affects the hydraulic conductivity of a mass of CCR in a
landfill, as compared to CCR placed in an embankment. Any potential
leaching will tend to spread over the length of the embankment, as
opposed to the leaching in a downward motion that would occur in a
homogenously filled landfill.
Finally, (and perhaps most critically) the construction of roads
and associated embankments are supervised and approved by State and/or
Federal Department of Transportation (DOT) engineers who ensure
compliance with engineering specifications
While EPA is exempting roadbed applications of 12,400 tons or
larger from the fourth criterion, EPA is mindful of situations where
large quantities of CCR have been used without appropriate engineering
controls or where placement on the land has apparently far exceeded
those necessary for the engineering use of the materials. One such
situation occurred in Puerto Rico with CCR generated by the AES Coal
Fired Power Plant in Guayama. As discussed in Unit IV.B of this
document, CCR and an aggregate created from them (``AGREMAX'') were
being used as fill in housing developments and in road projects. Over
two million tons of this material was used between 2004 and 2012. When
made aware of the situation, EPA raised concerns over the use of CCR
and AGREMAX based on the fact that the Environmental Quality Board had
not imposed engineering controls, specified appropriate uses, or
otherwise limited the use of AGREMAX by the end users. Inspections of
some of the sites where the material had been placed showed use in
residential areas, areas close to wetlands and surface waters and/or
over shallow sole source drinking water aquifers. In addition, in some
cases the volumes appeared to be in excess of what was necessary for
engineering uses and some sites appeared to be abandoned. This kind of
situation will be directly addressed by the new beneficial use criteria
promulgated in the final rule. To qualify as a beneficial use, the use
of AGREMAX would need to meet all four of the criteria--that is, it
must provide a functional benefit, substitute for a virgin material,
meet product specifications, and in this case, the user would be
required to make the environmental demonstration for the non-roadbed
applications.
iii. Kinds of unencapsulated uses of CCR required to comply with
the fourth criterion.
Unencapsulated uses of CCR are numerous and range, in total use,
from hundreds of thousands of tons to millions of tons per year. These
applications include, as examples, the following: (1) Flowable fill;
(2) structural fills; (3) soil modification/stabilization; (4) waste
stabilization/solidification; (5) use in agriculture as a soil
amendment; and (6) aggregate.
Many of these unencapsulated uses, other than structural fills, are
not generally expected to be used in amounts that would require an
environmental demonstration under the fourth criterion. And for several
of these applications, which can be structurally very different from
landfills, EPA expects that even if these applications are used in
amounts greater than 12,400 tons, potential users will be easily able
to meet the performance standard. For example, the use of CCR for soil
modification or stabilization, agriculture, waste stabilization/
solidification, aggregate or flowable fill applications, is generally
not similar to the mounding that occurs in a landfill situation. These
differences can have a tremendous bearing on the leaching potential of
the CCR materials.
Structural fills, however, can be larger applications and so may be
required to demonstrate compliance with the environmental standards in
the fourth criterion more frequently. In addition, because structural
fills can be similar to the landfills regulated in the final disposal
rule, some proposed applications may need to install engineering
features to meet the performance standard.
iv. Demonstration that ``environmental releases to groundwater,
surface water, soil and air are comparable to or lower than those from
analogous products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use.''
[[Page 21354]]
The environmental fourth criterion requires a potential use of CCR
to compare analogous products or to perform an environmental assessment
evaluating whether releases to the environment are at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use. A demonstration should consider the development
of a conceptual model to assist in the determination of whether the
environmental criteria contained in the definition of the term
``beneficial use of CCR'' can be demonstrated. Numerous potential
pathways exist and these should be evaluated as necessary depending on
the potential application of the CCR. Potential exposure pathways
include exposure to groundwater, surface water, air, and soils.
Generation of dust, leaching to groundwater and surface water,
inhalation of mercury, and plant uptake are areas that need to be
evaluated. A complete evaluation of the types of releases, the types of
exposure and the receptors that may be potentially affected by a
potential application will need to be conducted. A screening comparison
will need to be performed comparing the concentrations of individual
constituents of potential concern to the following benchmarks: human
soil ingestion, ecological soil, tap water ingestion, fish ingestion,
surface water, sediment, and inhalation. As an example, a user could
compare a mercury concentration to a human health screening benchmark
with an inhalation value of 300 ng/m\3\. Existing documents that can be
used to gain an understanding of conceptual models, pathways and
regulatory limits include: Risk Assessment Guidance for Superfund,
Exposure Factors Handbook, Volumes I, II and III, Risk Assessment
Guidance for Superfund Volume I: Human Health Evaluation Manual Part A,
Industrial Waste Management Model (IWEM) Technical Backgrounds
Document, Exposure Factors Handbook, Human and Ecological Risk
Assessment of Coal Combustion Wastes. In addition, although it is not
directly applicable, a potential user of unencapsulated CCR may find it
useful to consult the previously mentioned ``Coal Combustion Residual
Beneficial Use Evaluation: Fly Ash Concrete and FGD Gypsum Wallboard''
and the ``Methodology for Evaluating Encapsulated Beneficial Uses of
Coal Combustion Residuals'' to assist in the determination of whether
the unencapsulated CCR is comparable to or lower than those from
analogous products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use.
After the effective date of the final rule, any potential user of
CCR that makes the demonstration in the fourth criterion must keep
records and provide such documentation upon request.
b. Placement in Sand and Gravel Pits and Quarries
EPA proposed that, without exception, unencapsulated CCR placed in
sand and gravel pits, and quarries should not constitute beneficial
use, but disposal. The Agency highlighted a number of damage cases that
involved the filling of old, unlined quarries or gravel pits with large
quantities of unencapsulated CCR, under the guise of ``beneficial
use.'' Because of the damage cases and the concern that in such
instances, sand and gravel pits and quarries were essentially operating
as landfills, EPA proposed to define the placement of CCR in sand and
gravel pits or quarries as land disposal that would be subject to
regulation under either of the proposed regulatory options. The
proposal specifically defined a CCR landfill as a disposal facility or
part of a facility where CCR are placed in or on land and which is not
a land treatment facility, a surface impoundment, an underground
injection well, a salt dome formation, a salt bed formation, an
underground mine, a cave, or a corrective action management unit. For
purposes of this part, landfills also include piles, sand and gravel
pits, quarries, and/or large scale fill operations. Sites that are
excavated so that more coal ash can be used as fill are also considered
CCR landfills.
Commenters stated that there were numerous examples of harm caused
by the unencapsulated ``reuse'' in sand and gravel pits and quarries,
which demonstrate that these unencapsulated uses were merely disposal
in disguise, and must be regulated stringently under Subtitle C of RCRA
to prevent the risks they pose of contaminating groundwater, surface
water, and ecological systems with heavy metals and other harmful
pollutants. In particular, they argue that ``There have already been at
least 13 damage cases caused by the disposal of coal ash in sand and
gravel pits or former quarries that led to contamination of water
sources and/or ecological damages.'' Some commenters also agreed that
placement in sand and gravel pits and quarries should not be considered
beneficial use. For example, one commenter agreed that CCR placement in
sand and gravel pits and quarries is ``disposal'' and not beneficial
use while another commenter wrote that it concurs that large-scale
fills in quarries in poorly engineered applications can cause negative
impacts. Other commenters highlighted that damage cases related to sand
and gravel pits and quarries were old practices that no longer take
place. These commenters argued that while sand and gravel quarries have
been used to dispose of CCR, it is not correct to assume that with
proper engineering and environmental standards that CCR cannot be used
beneficially to reclaim quarries for uses such as recreational areas,
commercial or industrial uses, or to aesthetically improve the
characteristics of the land.
EPA is finalizing its proposal that placement of CCR in sand and
gravel pits constitutes disposal, rather than beneficial use. The final
definition of a CCR landfill explicitly includes placement of CCR in
sand and gravel pits and quarries. EPA has adopted this approach
because the practice has resulted in numerous damage cases as a result
of the highly permeable strata typically present at such sites.
Moreover, while the commenters may be correct that ``with proper
engineering measures, placement in sand and gravel pits and quarries
can be conducted safely'', they submitted no data to support this
contention. The only engineering features the available information
demonstrate would be protective are those that have been determined to
be necessary for CCR landfills--i.e., composite liners and groundwater
monitoring. And in the absence of these features, any future placement
in sand and gravel pits and quarries could not meet the performance
standard in the fourth criterion: i.e., that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use.
B. Definitions
EPA proposed definitions for a number of key terms used in the
proposed subtitle D rule that the Agency determined were necessary for
the proper interpretation of the proposed requirements, e.g., coal
combustion residuals, existing CCR landfill. (See 75 FR 35196-97, June
21, 2010.) In addition, EPA also proposed definitions for terms that
were specific to certain regulatory requirements, e.g., seismic impact
zone.
[[Page 21355]]
EPA is finalizing many of the regulatory definitions that were
proposed, some with modifications. Several definitions that were
proposed have been removed because they are no longer relevant to this
rulemaking and a number of new definitions have been added.
Specifically, definitions that have been removed from the final rule
include: natural water table, probable maximum precipitation, surface
water, systemic toxicants and upstream toe. New definitions are
discussed in the technical section of the rule for which they apply.
The majority of the regulatory definitions contained in the proposed
rule have been retained in the final rule, as proposed or with minor
clarifying changes. These definitions are codified in Sec. 257.53 and
include the following: acre foot, active life, aquifer, area capacity
curves, areas susceptible to mass movement, coal combustion residuals
(CCR), displacement, facility, factor of safety, fault, freeboard,
groundwater, hazard potential classification, high hazard potential
surface impoundment, significant hazard potential surface impoundment,
low hazard potential surface impoundment, holocene, hydraulic
conductivity, karst terrain, lithified earth material, maximum
horizontal acceleration in lithified earth material, new CCR landfill,
new CCR surface impoundment, operator, owner, poor foundation
conditions, recognized and generally accepted good engineering
practices, representative sample, run-off, run-on, sand and gravel pit
or quarry, seismic impact zone, state, structural components, unstable
area, uppermost aquifer, and waste boundary.
Several definitions received a significant number of comments and
upon further evaluation by EPA have been modified to better explain
their meaning or intent. This includes the definitions for the
following terms: CCR landfill or landfill, CCR surface impoundment or
impoundment, existing CCR landfill and existing CCR surface
impoundment. These comments, along with the revisions made in response
are discussed in more detail below. In addition, EPA has revised a
number of definitions, or added new definitions, to be consistent with
revisions made in the corresponding technical requirements. These are
discussed in the various sections of the preamble that address the
specific technical requirement. For example, as discussed in Unit V of
this document, EPA has revised the definition of ``independent
registered professional engineer or hydrologist'' to ``qualified
professional engineer'' to address the concerns raised in comments.
1. Definition of CCR Landfill
EPA proposed to define a CCR landfill as a disposal facility or
part of a facility where CCR is placed in or on land and which is not a
land treatment facility, a surface impoundment, an underground
injection well, a salt dome formation, a salt bed formation, an
underground mine, a cave, or a corrective action management unit. For
purposes of this subpart, landfills also include piles, sand and gravel
pits, quarries, and/or large scale fill operations. Sites that are
excavated so that more coal ash can be used as fill are also considered
CCR landfills. (See 75 FR 35239.) The Agency received a significant
number of comments on the proposed definition. These comments focused
almost exclusively on the inclusion of ``large-scale fill operations''
and ``piles'' within the definition of CCR landfill. Regarding large-
scale fills, commenters argued that one of the fundamental problems
with the proposed definition was that it assumed all CCR placed in
large scale fill operations constituted ``disposal'' of CCR (and that
these operations therefore constitute CCR landfills) rather than
beneficial use. Commenters further argued that CCR is often used in
engineered fills, such as road base and road embankments and that these
legitimate beneficial use operations should not be subject to the CCR
landfill regulations.
Commenters also argued that ``piles'' should be omitted from the
definition of a CCR landfill for a variety of reasons. Several
commenters argued that including the word ``pile'' was overly broad and
insufficiently prescriptive and would inappropriately capture on-going
or short-term CCR management activities that did not constitute
disposal, such as storage for beneficial use. These commenters also
raised concern that including ``piles'' in the definition of CCR
landfill without further clarification or specificity, i.e., when used
as part of a beneficial use operation, would negatively affect
beneficial use activities. Other commenters raised concern that the
term ``piles'' was too vague, and suggested that whether piles were
treated as CCR landfills should be determined by the size of the piles,
or the intent for which such piles exist. These commenters suggested
the Agency should exclude small piles of CCR that are staged and/or
consolidated prior to transport or placement for disposal. These
commenters argued that subjecting all CCR piles to all of the landfill
requirements was ``illogical and inappropriate.''
Certain commenters argued that piles should not be regulated under
this rule because they do not present a significant risk to the
environment, as evidenced by a lack of damage cases. Alternately, other
commenters suggested that if EPA were to regulate piles, the Agency
should consider a regulatory strategy other than regulation as a CCR
landfill. One alternative regulatory strategy suggested was to include
an option establishing a limit (e.g., 180 days) on the amount of time
that the CCR could be allowed to be maintained in a pile without
regulation as a CCR landfill. Another option suggested was to develop a
set of reasonable design and operating standards consistent with the
uses and risks posed by piles. Such design standards could include the
requirement for a low permeability underlayment or base such as
asphalt, concrete or a high density polyethylene (HDPE) liner.
Operating standards could include such provisions as labeling, and the
requirement to remove at least 90 percent of the contents every 90
days, with a full cleanout annually.
EPA believes the suggested option to establish a time limit would
be difficult to oversee and verify. States and citizens would have no
way to determine when CCR is placed in a pile and when the CCR was
subsequently removed. Therefore, EPA is rejecting this suggested
option. The suggested option to develop appropriate design and
operating standards is essentially the approach EPA has adopted, as
discussed in more detail below. However, the final design and operating
standards differ according to the management practices, and include
measures to control fugitive dust, and for certain practices, require
the installation of a composite liner and leachate collection system.
EPA discussed its final approach to large-scale fill operations in
Unit V of this document; the definition of a CCR landfill has been
revised to be consistent with the approach described in that section.
As explained at length, EPA has adopted a final approach that
distinguishes between beneficial use and the ``disposal'' of CCR.
Activities that meet the definition of beneficial use are not subject
to these regulations. Activities that do not meet all of the criteria
in the definition of a beneficial use--and in particular, such
activities that involve the placement of unencapsulated CCR on the
land--are considered disposal and are subject to the requirements of
this final rule. Consistent with this approach the final definition of
a CCR landfill has been revised to clarify that it includes ``the
[[Page 21356]]
use of CCR that does not meet the definition of a beneficial use of
CCR.'' Waste piles, including those used to temporarily store or manage
CCR on-site prior to disposal in a CCR landfill or subsequent
beneficial use, have been retained within the definition of a CCR
landfill. In making this determination the Agency was strongly
influenced by the similarities in the potential risks posed by both
waste piles and CCR landfills to human health, groundwater resources,
or the air if improperly managed. Both CCR piles and CCR landfills are
subject to external factors such as rain and wind, which can adversely
affect human health and the environment. For example, uncontrolled run-
on and run-off can result in ponding of water in and around the unit
resulting in increased leachate which has the potential to affect
groundwater. Similarly, absent dust control measures, such as the
conditioning of CCR, both CCR landfills and CCR piles have the
potential to generate significant amount of fugitive dust. Indeed, CCR
piles are generally more susceptible to the creation of fugitive dusts.
And contrary to the commenters' contention about the absence of damage
cases, the single most frequent issue presented during the public
hearings was the allegation by individual citizens of damage caused by
fugitive dusts from neighboring CCR facilities. Moreover, the same
pollution control measures, such as liners, leachate collection
systems, and groundwater monitoring, will address the potential adverse
effects from both of these units. As such, the Agency sees no reason to
treat piles and landfills differently.
EPA also disagrees that the inclusion of CCR piles would capture
on-going or short-term CCR management activities that do not constitute
disposal. Irrespective of whether the facility is using the pile as
``temporary storage'' or ultimately intends to direct the CCR to
beneficial use, by placing the CCR on the land with no containment or
other method of preventing environmental exposures, the facility is
engaging in an activity that clearly falls within the statutory
definition of disposal. See 42 U.S.C. 6903(3)(``placing of solid waste
. . . on any land, so that such solid waste . . . or any constituent
thereof may enter the environment.'') Moreover, even where the facility
intends the pile to be ``temporary,'' some amount of CCR inevitably
remains in place. And if this was not the case, under section
1008(a)(3), EPA is authorized to establish criteria governing all
aspects of solid waste management--which explicitly is defined to
include ``storage'' as well as all of the other activities identified
by the commenters--to ensure the protection of human health and the
environment. See 42 U.S.C. 6903(28).
Nevertheless, EPA agrees that not every activity that involves the
management of CCR must occur in a unit that meets all of the technical
requirements of a CCR landfill (e.g., groundwater monitoring). The key
concern EPA is seeking to address with the inclusion of piles is the
uncontrolled exposure from the extended, repeated, or indefinite
placement of large amounts of unconsolidated CCR directly on the land.
To the extent those exposures are controlled, whether through the use
of tanks or some other kind of containment measures, the practice is
neither considered to be a ``pile'' nor disposal in a landfill.
To clarify this, and in response to the concern that the term
``piles'' was too vague, EPA has adopted a definition of the term ``CCR
pile'' to identify those ``piles'' that are subject to the disposal
requirements in this regulation. The final regulation specifies that a
CCR pile means any non-containerized accumulation of solid, non-flowing
CCR that is placed on the land. This definition mirrors the existing
definition of ``waste pile or pile'' from the part 257 regulations,
(i.e., the regulations that currently apply to CCR facilities), as well
as the definition in part 260. The use of the phrase ``non-
containerized'' is not intended to require that all activities occur
within tanks or containment structures, but merely that specific
measures have been adopted to control exposures to human health and the
environment. This could include placement of the CCR on an impervious
base such as asphalt, concrete, or a geomembrane; leachate and run-off
collection; and walls or wind barriers. CCR managed in such a fashion
would not be CCR piles and, therefore, not CCR landfills subject to
this regulation. To further clarify how this relates to EPA's overall
approach to beneficial use it is important to distinguish between CCR
that is actually being used beneficially and CCR that may someday be
used beneficially. CCR that is currently being used beneficially--for
example, fly ash that has been transferred to a cement manufacturer and
that is stored off-site in a ``temporary pile,'' and that complies with
all of the criteria in the definition to be considered a beneficial use
including the fourth criterion relating to the placement of large
quantities of unconsolidated CCR on the land--would not be subject to
the regulations applicable to CCR disposal. Accordingly, the final
regulation specifies that practices that meet the definition of
beneficial use of CCR are not subject to the `disposal'' requirements
of the rule.
By contrast, CCR located on-site that may someday be used
beneficially but is not yet beneficially used remains subject to the
disposal rule. Given that landfills and surface impoundments can be
periodically dredged to provide material for beneficial use, any other
approach would be impracticable, and would exclude from regulation many
of the greatest sources of risk. An example of a ``pile'' that is not
yet beneficially used is unconsolidated CCR placed on the land, that
have been designated by the CCR facility to be transferred to another
location for subsequent beneficial use (e.g., use as road bed) in the
near future.
Several commenters also suggested that the definition of a CCR
landfill should explicitly exclude the use of CCR at surface coal
mining and reclamation operations, to reflect the Agency's intention
not to cover such activities. The Agency agrees and has revised the
definition to explicitly provide that the term CCR landfill does not
include the use of CCR at coal mining and reclamation operations.
Consequently, the Agency is finalizing a definition of ``CCR
landfill or landfill'' that can be found in Sec. 257.73. On a related
matter, the definition of CCR landfill or landfill contains the terms
``sand and gravel pits or quarries.'' EPA proposed a ``sand and gravel
pit and/or quarry'' to mean an excavation for the commercial extraction
of aggregate for use in construction projects. The Agency received
comments on the definition of sand and gravel pit and/or quarry
suggesting that the term ``commercial extraction'' was too narrow.
Specifically commenters were concerned it would exclude non-commercial
extraction, such as gravel pits operated by municipalities, and exclude
metallic mineral mines, nonmetallic mining for other than sand and
gravel, and coal mines. EPA agrees that the use of the term
``commercial extraction'' renders the proposed definition too narrow,
as there is no basis for distinguishing between commercial and non-
commercial extraction, either because of the risks these activities
pose, or any other consideration relevant to this rulemaking. EPA is,
therefore, revising ``sand and gravel pit and/or quarry'' to mean an
excavation for the extraction of aggregate, minerals, or metals. The
term sand and gravel pit and/or quarry does not include subsurface or
surface coal mines.
[[Page 21357]]
2. Definition of CCR Surface Impoundment
EPA proposed to define a CCR surface impoundment to mean a facility
or part of a facility which is a natural topographic depression, man-
made excavation, or diked area formed primarily of earthen materials
(although it may be lined with man-made materials) which is designed to
hold an accumulation of CCR containing free liquids, and which is not
an injection well. Examples of CCR surface impoundments are holding,
storage, settling, and aeration pits, ponds and lagoons. CCR surface
impoundments are used to receive CCR that have been sluiced (flushed or
mixed with water to facilitate movement), or wastes from wet air
pollution control devices, often in addition to other solid wastes.
The Agency received many comments on the proposed definition of CCR
surface impoundment. The majority of commenters argued that the
definition was overly broad and would inappropriately capture surface
impoundments that are not designed to hold an accumulation of CCR.
Commenters were concerned that the proposed definition could be
interpreted to include downstream secondary and tertiary surface
impoundments, such as polishing, cooling, wastewater and holding ponds
that receive only de minimis amounts of CCR. Commenters reasoned that
these types of units in no practical or technical sense could be
described as units ``used to receive CCR that has been sluiced.''
Other commenters raised concern that the definition did not
differentiate between temporary and permanent surface impoundments.
Commenters stated that many facilities rely on short-term processing
and storage before moving CCR off-site for beneficial use or permanent
disposal and that these units should not be required to comply with all
of the technical criteria required for more permanent disposal
impoundments.
Upon further evaluation of the comments, the Agency has amended the
definition of CCR surface impoundment to clarify the types of units
that are covered by the rule. After reviewing the comments, EPA
reviewed the risk assessment and the damage cases to determine the
characteristics of the surface impoundments that are the source of the
risks the rule seeks to address. Specifically, these are units that
contain a large amount of CCR managed with water, under a hydraulic
head that promotes the rapid leaching of contaminants. These risks do
not differ materially according to the management activity (i.e.,
whether it was ``treatment,'' ``storage'' or ``disposal'') that
occurred in the unit, or whether the facility someday intended to
divert the CCR to beneficial use. However, EPA agrees with commenters
that units containing only truly ``de minimis'' levels of CCR are
unlikely to present the significant risks this rule is intended to
address.
EPA has therefore revised the definition to provide that a CCR
surface impoundment as defined in this rule must meet three criteria:
(1) The unit is a natural topographic depression, man-made excavation
or diked area; (2) the unit is designed to hold an accumulation of CCR
and liquid; and (3) the unit treats, stores or disposes of CCR. These
criteria correspond to the units that are the source of the significant
risks covered by this rule, and are consistent with the proposed rule.
EPA agrees with commenters that relying solely on the criterion from
the proposed rule that the unit be designed to accumulate CCR could
inadvertently capture units that present significantly lower risks,
such as process water or cooling water ponds, because, although they
will accumulate any trace amounts of CCR that are present, they will
not contain the significant quantities that give rise to the risks
modeled in EPA's assessment. By contrast, units that are designed to
hold an accumulation of CCR and in which treatment, storage, or
disposal occurs will contain substantial amounts of CCR and
consequently are a potentially significant source of contaminants.
However, EPA disagrees that impoundments used for ``short-term
processing and storage'' should not be required to comply with all of
the technical criteria applicable to CCR surface impoundments. By
``short-term,'' the commenters mean that some portion of the CCR is
removed from the unit; however, in EPA's experience these units are
never completely dredged free of CCR. But however much is present at
any given time, over the lifetime of these ``temporary'' units, large
quantities of CCR impounded with water under a hydraulic head will be
managed for extended periods of time. This gives rise to the conditions
that both promote the leaching of contaminants from the CCR and are
responsible for the static and dynamic loadings that create the
potential for structural instability. These units therefore pose the
same risks of releases due to structural instability and of leachate
contaminating ground or surface water as the units in which CCR are
``permanently'' disposed.
The final definition makes extremely clear the impoundments that
are covered by the rule, so an owner or operator will be able to easily
discern whether a particular unit is a CCR surface impoundment. CCR
surface impoundments do not include units generally referred to as
cooling water ponds, process water ponds, wastewater treatment ponds,
storm water holding ponds, or aeration ponds. These units are not
designed to hold an accumulation of CCR, and in fact, do not generally
contain significant amounts of CCR. Treatment, storage, or disposal of
accumulated CCR also does not occur in these units. Conversely, a
constructed primary settling pond that receives sluiced CCR directly
from the electric utility would meet the definition of a CCR surface
impoundment because it meets all three criteria of the definition: It
is a man-made excavation and it is designed to hold an accumulation of
CCR (i.e., directly sluiced CCR). It also engages in the treatment of
CCR through its settling operation. The CCR may be subsequently dredged
for disposal or beneficial use elsewhere, or it may be permanently
disposed within the unit. Similarly, secondary or tertiary impoundments
that receive wet CCR or liquid with significant amounts of CCR from a
preceding impoundment (i.e., from a primary impoundment in the case of
a secondary impoundment, or from a secondary impoundment in the case of
a tertiary impoundment), even if they are ultimately dredged for land
disposal elsewhere are also considered CCR surface impoundments and are
covered by the rule. To illustrate further, consider a diked area in
which wet CCR is accumulated for future transport to a CCR landfill or
beneficial use. The unit is accumulating CCR, while allowing for the
evaporation or removal of liquid (no free liquids) to facilitate
transport to a CCR landfill or for beneficial use. In this instance,
the unit again meets all three definition criteria, it is a diked area
(i.e., there is an embankment), it is accumulating CCR for ultimate
disposal or beneficial use; and it is removing any free liquids, (i.e.,
treatment). As such, this unit would meet the definition of CCR surface
impoundment. In all of these examples significant quantities of CCR are
impounded with water under a hydraulic head that will be managed for
extended periods of time. This gives rise to the conditions that both
promote the leaching of contaminants from the CCR and are responsible
for the static and dynamic loadings that create the potential for
structural instability. These units therefore all pose the same risks
of
[[Page 21358]]
releases due to structural instability and of leachate contaminating
ground or surface water.
3. Definition of Existing CCR Landfill
EPA proposed to define an existing CCR landfill to mean a CCR
landfill which was in operation on, or for which construction commenced
prior to the effective date of the final rule. The proposed definition
specified that a CCR landfill has commenced construction if the owner
or operator has obtained the federal, state, and local approvals or
permits necessary to begin physical construction; and either: (1) A
continuous on-site, physical construction program has begun; or (2) the
owner or operator has entered into contractual obligations--which
cannot be cancelled or modified without substantial loss--for physical
construction of the CCR landfill to be completed within a reasonable
time.
In response to the proposed definition, the Agency received several
comments arguing that the use of the phrase ``was in operation on, or
for which construction commenced prior to'' would lead to confusion.
Commenters contended that most units defined as CCR landfills at some
point in time ``were in operation'' and had ``commenced construction''
prior to the effective date of the regulation. Commenters claimed that
this definition would unnecessarily capture thousands of closed
structural fill projects, including residential properties, commercial
properties used by small businesses, and many recreational facilities.
Furthermore, commenters doubted that EPA intended for the rule to cover
all of these units and urged the Agency to clarify that closed units
are excluded from the definition of existing CCR landfill.
Other commenters argued that the proposed definition of existing
CCR landfill should be modified to include lateral expansions of
operation units where such an expansion is within the site footprint of
an area already approved and permitted by the state for the landfill.
Commenters contended that while the proposed definition included
undeveloped areas within the footprint of an approved permitted site,
it also required that the construction be initiated at the site or that
some type of binding contractual obligation be present. Commenters
contended that the existence of a contractual obligation unfairly
subjects undeveloped, yet approved permitted areas to design and
operating standards for new CCR landfills based merely on the existence
of a contract to commence construction. Commenters argued that such a
distinction was arbitrary and capricious and provided no practical
benefit. Other commenters questioned the usefulness of requiring a
contractual obligation at all. As written, the commenters argued, that
the definition was vague, unenforceable, and thus, not protective of
human health and the environment. Commenters reasoned that there was no
definitive or generally accepted meaning for the term ``substantial
loss'' or the term ``reasonable time'' and an owner or operator,
sensing that these proposed rules may be passed, could sign a contract
now with minimum predetermined cancellation or modification penalties
and a contract term of say five years or even longer to avoid the new
unit requirements, i.e., a composite liner.
The commenters are correct that EPA did not intend to cover
inactive landfills under this rule. The Agency agrees that, as drafted,
the proposed definition could cause confusion. EPA therefore deleted
the phrase ``was in operation on the effective date of the rule'' and
has substituted the phrase ``that receives CCR both before and after
[the effective date of the rule].'' EPA also agrees that the phrase
``commenced construction prior to the effective date of the rule''
could similarly cause confusion. Therefore, the Agency has made a
similar revision, by adding the phrase ``and receives CCR on or after
[the effective date of the rule]'' after the phrase ``for which
construction commenced prior to [the effective date of the rule].''
These revisions will clarify which units are covered by the technical
requirement of the rule and alleviate any confusion. EPA is also making
conforming modifications to the definition of existing CCR surface
impoundment.
EPA disagrees that lateral expansions should be considered to be
``existing'' based solely on the fact that such an expansion is within
the site footprint of an area already approved and permitted by the
state. EPA has frequently distinguished between the types of
requirements applicable to new and existing units, reasoning that in
many instances, risk mitigation measures would be adequate such that
existing units need not wholly retrofit to meet the new ``state of the
art.'' For new units, however, the balance is generally struck in favor
of requiring a greater degree of risk prevention, rather than relying
solely on risk mitigation measures. In determining whether a unit is
``new'' or ``existing,'' EPA has historically considered that the
equities lie in favor of considering a unit to be ``existing'' when
there has been an irretrievable commitment of resources on the part of
the facility. That has not occurred merely because permits have been
obtained. While admittedly resources have been committed, at this stage
modifications to the design and construction of the unit are still
feasible. Specifically, the critical differences between the
requirements applicable to new and existing CCR landfills are the type
of liner that must be installed and the location restrictions that
apply. Compliance with these requirements can be addressed through
modifications to the design and construction of the unit, and are
therefore readily feasible until construction has begun.
EPA agrees with those commenters who were concerned that the
phrase, ``the owner or operator has entered into contractual
obligations--which cannot be cancelled or modified without substantial
loss--for physical construction of the CCR landfill to be completed
within a reasonable time,'' is vague and potentially subject to abuse.
While this phrase has been included in other EPA regulations, those
regulations operate within a regulatory program overseen by a
regulatory authority. No similar guarantee exists under these
regulations. EPA could not discover a definitive or generally accepted
meaning for the terms ``substantial loss'' or ``reasonable time,'' or
develop sufficiently objective and determinate criteria for these
concepts. Consequently, the Agency has decided to remove this provision
from the definition of existing CCR landfill. EPA is retaining the two
most important elements of the definition that will effectively
determine whether the facility has irretrievably committed resources
such that it would not reasonable to require compliance with all of the
requirements applicable to new units. Accordingly, a unit will be
considered to be existing if, first, the owner or operator has obtained
the federal, state, and local approvals or permits necessary to begin
physical construction; and second, that a continuous on-site, physical
construction program has begun (i.e., groundbreaking has occurred).
Therefore, EPA is finalizing the definition of existing CCR landfill
that can be found in Sec. 257.53.
4. Definition of Existing CCR Surface Impoundment
EPA proposed to define an existing CCR surface impoundment to mean
a surface impoundment which was in operation on, or for which
construction commenced prior to the effective date of the final rule.
The proposal also specified that a CCR surface impoundment has
commenced
[[Page 21359]]
construction if the owner or operator has obtained the federal, state,
and local approvals or permits necessary to begin physical
construction; and either: (1) A continuous on-site, physical
construction program has begun; or (2) the owner or operator has
entered into contractual obligations--which cannot be cancelled or
modified without substantial loss--for physical construction of the CCR
landfill to be completed within a reasonable time.
EPA received many of the same comments on the definition of an
existing CCR surface impoundment that were received on an existing CCR
landfill. This included comments requesting clarification that the term
did not include impoundments that had ceased receiving CCR before the
effective date of the rule. Commenters also suggested that EPA modify
the definition to include the phrase that the surface impoundment ``was
in operation and had not yet ceased receiving CCR prior to the
effective date of the rule'' to make clear that the definition did not
encompass units that are no longer receiving CCR on the effective date
of the rule, even though the unit may not have completed final closure
prior to the rule's effective date. Commenters reasoned that units no
longer receiving CCR on the effective date of the rule are not ``in
operation'' and therefore should not be subject to the standards
applicable to active units. Commenters also requested that EPA clarify
that the definition of ``existing CCR surface impoundment'' include
units that were in operation on the effective date of the rule and that
periodically dredged out during the operating life of the impoundment.
Commenters contended that while this may seem self-evident, EPA needed
to clarify that these impoundments would not be characterized as ``new
CCR surface impoundments.''
The Agency is generally conforming the definition of an existing
CCR surface impoundment to the revised definition of an existing CCR
landfill. Although inactive CCR surface impoundments are covered by the
final rule (unlike inactive CCR landfills), EPA decided it would
provide greater clarity to establish a section specific to inactive CCR
surface impoundments rather than merely including such units within the
definition of an existing CCR surface impoundment. As discussed in
greater detail in Unit VI.A of this document, under Sec. 257.100, any
CCR surface impoundment that continues to impound CCR and water after
the effective date of the rule, must either (1) breach, dewater, and
place a cover on the unit within three years or (2) must comply with
all of the requirements applicable to existing CCR surface
impoundments. Without the need to account for inactive CCR surface
impoundments within the definition, the definitions of ``existing''
landfills and surface impoundments should be the same.
Thus, the Agency has removed the term ``in operation'' from the
definition and has instead focused on when the surface impoundment
received or will receive CCR. EPA has also deleted the provision that
would have allowed a unit to be considered to be ``existing'' based on
the existence of a contract. Accordingly, for purposes of this rule, a
CCR surface impoundment will be considered to be ``existing'' if the
unit received CCR both before and after the effective date of the rule.
For example, if a CCR surface impoundment received CCR prior to the
effective date and was in the process of dredging on the effective date
with the intent of receiving additional CCR after the effective date,
the unit would still be considered to be an ``existing'' rather than a
new unit. Conversely, if a unit received CCR prior to the effective
date and was no longer receiving CCR, this unit would be considered
``inactive,'' and would only be subject to the technical criteria
applicable to ``existing'' CCR surface impoundments if they had not
completed closure within three years. Similarly, if a CCR surface
impoundment had commenced construction prior to the effective date with
the intention of receiving CCR on or after the effective date of the
rule, the unit would be considered an ``existing'' unit only if the
physical construction program had begun (e.g., groundbreaking had
occurred) with the appropriate federal, state and local approvals or
permits in place. But if prior to the effective date of the rule, the
permits had been obtained but the physical construction of the unit had
not begun (e.g., groundbreaking had not occurred), the unit would be
considered ``new'' and would be subject to all the applicable technical
criteria for new CCR surface impoundments. Therefore, the Agency is
finalizing the definition of existing CCR surface impoundment that can
be found in Sec. 257.53.
C. Location Restrictions and Individual Location Requirements
In the proposed rule, EPA stated that any RCRA subtitle D
regulation would need to ensure that CCR landfills, CCR surface
impoundments and all lateral expansions were appropriately sited to
ensure that no reasonable probability of adverse effects on health or
the environment from the disposal of CCR would occur. Under the
subtitle D option, EPA proposed location restrictions for CCR units
which included requirements relating to the placement of CCR in five
general locations: (1) Above the natural water table; (2) wetlands; (3)
fault areas; (4) seismic impact zones; and (5) unstable areas. The
proposed requirements relied in large measure, on the record EPA
developed to support the 40 CFR part 258 requirements for MSWLFs and on
EPA's Guide for Industrial Waste Management (EPA530-R-03-001, February
2003). EPA also chose to add one additional location restriction that
would ban the placement of CCR units within two feet of the upper limit
of the natural water table. This proposed requirement was originally
included in the proposed rule, Standards for the Management of Cement
Kiln Dust (64 FR 45631, August 20, 1999) because of the potential
damage to groundwater caused by the management of cement kiln dust at
sites located below the natural water table. While the proposed cement
kiln dust rule has not yet been finalized, EPA extended this reasoning
to CCR by applying the same location restriction to CCR units. The
proposed applicability of these location requirements varied depending
on whether the unit was an existing or new CCR landfill, an existing or
new CCR surface impoundment, or a lateral expansion of such units. For
example, for existing CCR landfills, the Agency proposed that only the
location requirement for unstable areas would apply. By contrast, the
proposed rule applied all of the location restrictions to new CCR
landfills and all CCR surface impoundments, both existing and new--an
approach consistent with RCRA subtitle C and Congressional distinctions
between the risks presented by landfills and surface impoundments. (See
75 FR 35198-35199.) This meant that owners or operators would need to
close existing CCR surface impoundments located less than two feet
above the natural water table, or for existing CCR units in sensitive
but not prohibited locations, make a technical demonstration that the
unit met the requirements of a performance standard that serves as the
alternative to the location restriction, retrofit the unit so that it
could meet the performance standard, or close. For those CCR units that
need to close (i.e., owners or operators that could not make the
necessary technical demonstrations), EPA proposed that the unit must
close within five years of the effective date of the rule. If closure
could not occur within the five year timeframe, the
[[Page 21360]]
Agency proposed allowing for a case-by-case extension for up to two
more years if the facility demonstrated that there was no alternative
disposal capacity and no immediate threat to health or the environment.
EPA proposed not to impose all of the location requirements on
existing CCR landfills based on the conclusion that CCR landfills pose
less risk and are structurally less vulnerable than existing CCR
surface impoundments. EPA also raised concern that a significant number
of these CCR landfills could be located in areas subject to these
requirements, (particularly wetlands), which could cause disposal
capacity shortfalls in certain regions of the U.S., if existing CCR
landfills in these locations were required to close. Disposal capacity
shortfalls can pose significant environmental and public health
concerns based on the potential for significant disruption of solid
waste management state-wide from the closure of these units. EPA
concluded that these risks would be greater than the potential risks
from allowing existing CCR landfills to remain in these locations,
given that these units would be subject to all of the design and
operating requirements of the rule. To ensure the accuracy of its
preliminary conclusions, the Agency requested commenters to provide any
available information regarding the number of existing CCR landfills
located in these sensitive areas. The Agency also sought information
regarding the extent to which CCR landfill capacity would be affected
by applying all of the location restrictions to existing CCR landfills,
the extent to which facilities could comply with the proposed
performance standards, and the costs that would be incurred to retrofit
existing CCR landfills to meet these standards.
The Agency received numerous comments in response to the Agency's
request for additional information regarding the extent to which
landfill capacity would be affected by applying all the proposed
subtitle D location restrictions to existing CCR landfills. Commenters
generally agreed with the Agency that applying the other location
restrictions to existing CCR landfills would cause a significant
decrease in disposal capacity across the country, although they did not
provide any data or information which would support this concern.
Commenters noted, however, that if existing CCR landfills located in
these areas were to close, it would greatly complicate operations at
many utilities. Affected facilities would need to find additional
disposal capacity, which would require utilities to procure new real
estate on which to site a new CCR landfill (which may be a significant
distance from a power plant), obtain a new disposal permit for the CCR
landfill (which can take an extended period of time), and potentially
transport significant volumes of CCR great distances to newly-permitted
facilities. Commenters argued that there was simply no environmental
basis for causing this level of disruption to utility CCR disposal
practices.
EPA received no data or information in response to the Agency's
request for the costs associated with retrofitting a CCR surface
impoundment or CCR landfill to meet the demonstrations for existing
units. Similarly, the Agency received little to no information in
response to EPA's request for additional information on the location of
these facilities. Some commenters acknowledged that specific states
were located in some of these restricted areas but did not provide
specific information on specific units.
Overwhelmingly, the issue receiving the most comment was EPA's
intention to subject existing CCR surface impoundments to all of the
new location criteria. Commenters contended that subjecting existing
units to all of the location criteria was a radical departure from the
location restriction provisions of the existing MSWLF rules on which
the subtitle D option is based (i.e., existing MSWLFs are only subject
to the floodplains and unstable areas restrictions) without any
justification for regulating CCR surface impoundments more stringently
than existing CCR landfills. Commenters argued that EPA must
demonstrate that there are increased risks posed by each CCR surface
impoundments based on its location; otherwise, they claimed, there was
no justification for EPA to subject CCR surface impoundments to more
stringent location restrictions. Some commenters suggested that a more
reasonable approach would be to limit the restrictions for existing CCR
surface impoundments to unstable areas, consistent with the approach
proposed for existing CCR landfills. Finally, commenters raised concern
about the inconsistency between the preamble language and the
corresponding regulatory text. Specifically, the preamble stated EPA's
intention to apply all of the location criteria to all CCR surface
impoundments (existing and new) while the proposed regulatory language
applied all location criteria only to new CCR surface impoundments and
lateral expansions.
1. Applicability of the Location Criteria to Existing CCR Surface
Impoundments
EPA acknowledges the discrepancies between the preamble language
and the regulatory text regarding the proposed regulatory language for
the location restrictions as it applies to existing CCR surface
impoundments. In the proposed rule, the regulatory language should have
included, ``all surface impoundments'' as opposed to only ``new surface
impoundments.''
EPA disagrees that in order to justify national minimum standards
applicable to existing CCR surface impoundments, the Agency must
demonstrate an adverse impact to human health and the environment from
each individual unit, based on the specific risks posed at each
location. As an initial matter, it is well established that an agency
may regulate a class of similarly situated entities through rulemaking,
rather than on the basis of an individualized assessment of every
entity that will be subject to the rule. And indeed, Congress
specifically directed EPA to proceed by rulemaking to establish minimum
national standards under RCRA sections 1008(a) and 4004(a). Moreover,
section 4004(a) does not require a demonstration of actual impacts,
merely that these units present an unacceptable risk of harm. Thus, it
is sufficient for EPA to establish a factual record demonstrating that
the specific location restrictions in the final rule are necessary for
CCR units (landfills and surface impoundments), as a class, to ensure
that there will be no reasonable probability of adverse effects on
health or the environment. As discussed in greater detail in the next
section and in Unit X of the preamble, the factual record supports the
need for all of the location standards for existing CCR surface
impoundments imposed by this rule.
The Agency also rejects the suggestion that EPA establish the same
location restrictions for both existing CCR landfills and CCR surface
impoundments. As laid out in the proposal and elsewhere in this final
rule in greater detail, the risks associated with CCR surface
impoundments are substantially higher than the risks associated with
CCR landfills, by approximately an order of magnitude. Surface
impoundments are utilized by 45 percent of coal-fired power plants and
in 2000 accounted for disposal of one-third of all CCR generated.\46\
Unlike landfills, CCR surface impoundments
[[Page 21361]]
contain slurried residuals that remain in contact with ponded waters
until closure. In a statewide investigation of impacts to groundwater
quality from CCR disposal sites, the Wisconsin Department of Natural
Resources reported that closed sites which originally contained sluiced
coal-combustion residuals displayed extremely elevated mean arsenic
levels (as high as 364 [micro]g/l).\47\ The highest contaminant
concentrations in the study were associated with sluiced CCR residuals.
In addition, releases of toxic contaminants to surface water and
groundwater from mostly unlined CCR surface impoundments and ponds are
a relevant factor in 34 of 40 cases of proven damage to the environment
(as well as in several cases of ``potential'' damage to the
environment) from mismanagement of CCR.\48\ In many of these cases,
effluent discharges from the surface impoundments caused significant
ecological damage to aquatic life in nearby streams and wetlands. In
one case, in 2002, the structural stability of a CCR surface
impoundment was directly compromised by sinkhole development, leading
to the release of 2.25 million gallons of CCR slurry. In another, an
unusually weak foundation of ash and silt beneath a CCR surface
impoundment (i.e., man-made unstable ground) was identified as one of
several likely factors contributing to the dike failure that in 2008
resulted in the largest CCR spill in United States history.
---------------------------------------------------------------------------
\46\ Rowe, C.L., Hopkins, W.A., Congdon, J.D., 2002.
Ecotoxicological Implications of Aquatic Disposal of Coal Combustion
Residues in the United States: A Review. Environmental Monitoring
and Assessment, Vol. 80, pp. 207-276.
\47\ Zillmer, M. and Fauble, P., 2004. Groundwater Impacts from
Coal Combustion Ash Disposal Sites in Wisconsin. Waste & Materials
Management, Wisconsin Department of Natural Resources, PUB-WA 1174
2004.
\48\ Cases of damage attributable to disposal of coal combustion
residuals are summarized in the appendix to the preamble of the
proposed rule, 75 FR 35230-35239, June 21, 2010, and can be found in
the RCRA Docket.
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Unlike RCRA subtitle C, subtitle D does not explicitly authorize
EPA to establish different standards for existing and new units, and
Congress specifically intended subtitle D to address the risks from
existing, abandoned ``open dumps.'' In the proposed rule preamble, EPA
explained the rationale for applying these provisions to existing CCR
surface impoundments, and the commenters have submitted nothing to
rebut that rationale. Thus, EPA maintains its determination that
application of the location standards to existing CCR surface
impoundments is necessary to achieve the standard in section 4004(a).
Absent these location restrictions, the risk of impacts to human health
and the environment from releases from CCR units, including from the
rapid and catastrophic destruction of CCR surface impoundments, sited
in these sensitive areas would exceed acceptable levels. Given that the
risks associated with CCR surface impoundments are substantially higher
than the risks posed by CCR landfills, this is the appropriate
regulatory course for existing CCR surface impoundments.
In this rule, EPA is finalizing location restrictions that will
ensure that CCR units are appropriately sited, that the structure of
the CCR unit will not be adversely impacted by conditions at the site,
and that overall there will be ``no reasonable probability of harm to
human health or the environment'' due to the location of the CCR unit.
EPA is finalizing different sets of location restrictions depending on
whether the unit is a CCR landfill or CCR surface impoundment and
whether it is an existing or new unit. Lateral expansions fall within
the definitions of new units and are treated accordingly. These
standards provide minimum national siting and performance criteria for
all CCR units. The location restrictions under Sec. 257.60 through
Sec. 257.64 include: (1) Placement above the uppermost aquifer; (2)
wetlands; (3) fault areas; (4) seismic impact zones; and (5) unstable
areas. Each of these locations is generally recognized as having the
potential to impact the structure of any disposal unit negatively and
as such, increase the risks to human health or the environment through
structural failures or leaching of contaminants into the groundwater.
Under the final rule and as proposed, new CCR landfills, existing and
new CCR surface impoundments, and all lateral expansions will be
required to comply with all of the location restrictions. Existing CCR
landfills however, will be subject to only two of the location
restrictions--floodplains, and unstable areas. As noted in the proposed
rule, and restated here, existing landfills and surface impoundments
are already subject to the location standards in subpart A of 40 CFR
part 257 for floodplains, endangered species and surface waters. The
final rule does not change this requirement, and so facilities should
already be in compliance. The Agency is finalizing, as proposed, the
unstable area location restriction for existing CCR landfills because
the record clearly shows that failure of CCR units in these areas
(e.g., due to instabilities in Karst terrains) have and in all
likelihood would continue, in the absence of the restrictions in the
final rule, to result in damage caused by the release of CCR
constituents, affecting both groundwater and surface waters. As the
Agency stated in the proposed rule, the impacts resulting from the
failure of CCR units from location instability are of far more concern
than any disposal capacity concerns resulting from the closure of
existing CCR units in unstable areas.
Conversely, and also consistent with the proposed rule, EPA is not
applying the following location restrictions to existing CCR landfills:
The requirement to construct a unit with a base located no less than
1.52 meters (five feet) above the upper limit of the uppermost aquifer,
as well as the siting restrictions applicable to wetlands, fault areas,
and seismic impact areas. Existing CCR landfills pose lower risks and
are structurally less vulnerable than existing CCR surface
impoundments. In addition, disposal capacity shortfalls, which could
result if existing CCR landfills in these locations were required to
close, raise greater environmental and public health concerns than the
potential failure of the CCR landfills in these locales.
2. Placement Above the Uppermost Aquifer
Under Sec. 257.60(a) EPA is requiring new CCR landfills, existing
and new CCR surface impoundments and all lateral expansions to be
constructed with a base that is located no less than 1.52 meters (five
feet) above the uppermost aquifer, or to demonstrate that there will
not be an intermittent, recurring, or sustained hydraulic connection
between any portion of the base of the CCR unit and the uppermost
aquifer due to normal fluctuations in groundwater elevations (including
groundwater elevations during the wet season). Existing surface
impoundments that fail to achieve this standard must close. New CCR
landfills, new CCR surface impoundments and all lateral expansions of
existing and new CCR landfills and CCR surface impoundments cannot be
constructed unless they meet one of these two standards. In response to
comment, the Agency has modified the criteria in two ways. First, EPA
has replaced ``a base that is located a minimum of two feet above the
upper limit of the natural water table'' with ``a base no less than
1.52 meters (five feet) above the uppermost aquifer.'' EPA received
comment explaining that fluctuations in groundwater levels in many
geological settings can exceed ten feet over the course of the year,
and alleging that the proposed two foot minimum buffer between the base
of the unit and the top of the water table would therefore be
insufficiently protective. The
[[Page 21362]]
commenter recommended that the minimum vertical separation be at least
three to five feet from the base of the liner components. After
additional research, EPA is finalizing a minimum buffer of five feet
instead of two feet. EPA's research confirmed the commenter's claims.
In addition, EPA determined that several states consider five feet
between the base of the surface impoundment and the top of the
uppermost aquifer to be the minimum distance that is protective of
human health and the environment. These are California, Michigan,
Nebraska, New York, West Virginia, and Wisconsin. The Agency has
concluded from geographic and climatic spacing of these states that the
hydrogeologic conditions within them encompass the range of conditions
found in the United States. Therefore, EPA is finalizing a minimum
buffer of five feet instead of two feet.
EPA is also clarifying the definition of the natural water table.
As some commenters noted, there are many factors (hydrologic and
geologic settings, nearby pumping, etc.) that influence the location of
the groundwater table making it difficult to determine the ``natural''
level. In addition, as noted, local site-specific hydrogeologic
conditions within the aquifer may cause the natural groundwater table
to exceed five feet and vary as much as ten feet. To account for the
possibility of such large seasonal fluctuations, EPA is revising the
definition of ``uppermost aquifer'' to specify that the measurement of
the upper limit of the aquifer must be made at a point nearest to the
natural ground surface to which the aquifer rises during the wet
season. This definition of ``uppermost aquifer'' will encompass large
seasonal variations, and is a more appropriate parameter than
``seasonal high groundwater table'' as suggested by several commenters
and the proposed ``natural water table'' because it is more clearly
defined.
In Sec. 257.60(a) the term uppermost aquifer has the same
definition as under the general provisions of Sec. 257.40: The
geologic formation nearest the natural ground surface that is an
aquifer, as well as lower aquifers that are hydraulically
interconnected with this aquifer within the facility's property
boundary. This definition includes a shallow, deep, perched, confined
or unconfined aquifer, provided it yields usable water. Although EPA
originally proposed that all CCR surface impoundments be located ``. .
. . above the upper limit of the natural water table'', the Agency is
amending this requirement and replacing ``water table'' with
``uppermost aquifer'' to make it consistent with the way natural
underground water sources are described elsewhere in the rule. EPA made
a second revision to the criteria that were originally proposed. As an
alternative to requiring that the CCR units described in this section
be constructed with a base that is located no less than five feet above
the uppermost aquifer, owners and operators may instead demonstrate
that there will not be an intermittent, recurring, or sustained
hydraulic connection between any portion of the base of the CCR unit
and the uppermost aquifer due to normal fluctuations in groundwater
elevations (including groundwater elevations during the wet season).
This alternative standard was developed in response to concerns
from commenters that a single depth to the aquifer failed to account
for the wide variations in the level of water table fluctuations in
different regions of the country. For example, arid regions of the
country, such as Arizona, under normal conditions generally do not
experience the same degree of fluctuations in groundwater elevations as
more temperate regions, such as Minnesota. Accordingly, EPA developed
an alternative performance standard focused on the conditions
identified in the damage cases and the risk assessment that this
location criterion was designed to prevent: Specifically, where the
groundwater elevation is high enough to intersect the base of the waste
management unit. In such situations, this hydraulic connection can
enhance the transport of contaminants of concern from the CCR unit into
groundwater. By requiring owners and operators to ensure that these
conditions do not occur, the alternative standard to allow owners and
operators to account for situations where there are relatively small
variations in groundwater levels and a buffer of five feet is not
necessary. This will also ensure that a CCR unit need not address
situations where an infrequent, unexpected event (e.g., hurricane)
could cause a brief, temporary condition where the uppermost aquifer
rises to less than the prescribed five feet but which would not in and
of itself constitute a long-term threat to the aquifer. However, where
normal fluctuations in groundwater elevation (including, but not
limited to, seasonal or temporal variations, groundwater withdrawal,
mounding effects,\49\ etc.) will result in the failure of the unit to
meet the performance standard (i.e., no intermittent, recurring, or
sustained hydraulic connection between the base of the CCR unit and the
uppermost aquifer), the unit must close.
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\49\ A phenomenon usually created by the recharge of groundwater
from a manmade structure, such as a surface impoundment, into a
permeable geologic material, resulting in outward and upward
expansion of the free water table. Mounding can alter groundwater
flow rates and direction; however, the effects are usually localized
and may be temporary, depending upon the frequency and duration of
the surface recharge events.
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In some recent damage cases, placement of large volumes of CCR into
highly permeable strata in the disposal area promoted CCR-water
interactions. For example, from 1995 to 2006 in Anne Arundel County,
Maryland 4.6 million tons of CCR were placed directly in two sand and
gravel quarries without a geomembrane liner or leachate collection
system. Rainwater infiltration into exposed CCR coupled with
groundwater-CCR interactions and the transmissivity characteristics of
local strata contributed to rapid migration of heavy metals, including
antimony, arsenic, cadmium, nickel, and thallium to residential
drinking water wells located near the mine pits and significant
deterioration of water quality as a result of placement of CCR.
Similarly, from 1980 to 1997 in Lansing, Michigan, around 0.5 million
tons of coal ash was dumped for disposal into a gravel pit with an
elevated water table. A remedial investigation has established that
groundwater mounding has immersed the CCR into the upper aquifer
resulting in on-site exceedances of groundwater quality protection
standards for sulfate, manganese, lead, selenium, lithium, and boron.
Placement of CCR into un-engineered, unlined units in permeable strata
has plainly led to adverse impacts to groundwater. The phrase ``normal
fluctuations'' has been used to clarify that EPA does not intend for
the facility to account for extraordinary or highly aberrant conditions
(e.g., one-in-a million or ``freak'' events). Normal fluctuation can
include those resulting from natural as well as anthropogenic sources.
Natural sources that could affect groundwater levels include, but are
not limited to precipitation, run-off, and high river levels.
Anthropogenic sources that could affect groundwater levels include
groundwater withdrawal, pumping, well(s) abandonment, and groundwater
mounding. In satisfying this location restriction, it may be necessary
for a professional engineer to model these effects before he can make
the necessary certifications.\50\ EPA also
[[Page 21363]]
notes that this modeling may include the same considerations already
evaluated under some state programs.\51\ EPA expects that owners and
operators will have sufficient information to determine whether their
CCR unit meets either performance standard. Most, if not all, of this
information would be information a facility would typically have as
part of normal operations (e.g., the depth of the CCR unit itself), or
that will be developed as part of implementing other rule requirements.
For example, through the groundwater monitoring system required under
Sec. Sec. 257.90-257.98, the facility can obtain water level
measurements in a sufficient number of locations (e.g., monitoring
wells, piezometers) to use in determining whether they satisfy either
performance standard. Similarly, under Sec. 257.91 a thorough
characterization of the geology and hydrogeology of the site must be
conducted. Finally, EPA notes that available technology and guidance
are available for using existing groundwater monitoring wells, like
those required under this final rule, to measure groundwater
levels.\52\
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\50\ For example, evaluations can be done to estimate
groundwater mounding such as pubs.usgs.gov/sir/2010/5102/,
www.groundwatersoftware.com/calculator_9_hantush_mounding.htm, and
www.ndwrcdp.org/documents/wu-ht-02-45/wuht0245_electronic.pdf.
\51\ See, e.g., dnr.wi.gov/topic/stormwater/standards/gw_mounding.html.
\52\ See, e.g., U.S. EPA (Environmental Protection Agency).
2013. Groundwater Level and Well Depth Measurement. SESDPROC-105-R2.
Region 4. Athens, GA. Available online at: www.epa.gov/region4/sesd/fbqstp/Groundwater-Level-Measurement.pdf.
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3. Wetlands
In Sec. 257.61 of this rule, EPA is finalizing the regulatory text
essentially as proposed. Specifically, EPA is adopting a prohibition on
locating all CCR surface impoundments and new CCR landfills, as well as
lateral expansions of existing CCR units, in wetlands as defined in 40
CFR 232.2, absent specific demonstrations made by the owner or operator
that ensure the CCR unit will not degrade sensitive wetland ecosystems.
These provisions place the burden of proof for these demonstrations
directly on the owner or operator (the discharger). The owner or
operator must make the results of these demonstrations available in the
facility record. Failure to make any of the demonstrations will bar
siting of the CCR unit in a wetland.
In 2003, disposal of CCR in natural or man-made aquatic basins
accounted for nearly one-third of all CCR land disposal. Historically,
aquatic disposal of CCR has been attractive economically to facilities
because of its lower overall cost relative to dry management and the
ease of handling of residuals. During aquatic disposal, CCR is commonly
piped as a slurried mixture to surface impoundments designed to retain
the solids in contact with water for the life of the unit. Particulate
solids from the waste stream gravitationally settle while clarified
waters ultimately discharge into nearby streams and wetlands.
The term `wetlands' refers to those areas inundated or saturated by
surface or groundwater at a frequency and over a duration sufficient to
support a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands include marshes, swamps, bogs and
similar areas that are commonly located between open water and dry
land. Under the CWA, wetlands are considered 'special aquatic sites'
deserving of special protection because of their ecologic significance.
Wetlands are very important, fragile ecosystems that must be protected,
and EPA has long identified wetlands protection as a high priority.
Undisturbed, natural wetlands provide many benefits to society by
improving water quality, providing essential breeding, rearing, and
feeding grounds for fish and wildlife, reducing shoreline erosion, and
absorbing flooding waters and pollution. Wetlands are also commercial
source areas of products for human use such as timber, fish, and
shellfish. Recreational hunters harvest wetland-dependent waterfowl.
Wetland environments, however, may be adversely impacted by releases of
wastes from co-located industrial facilities. Wetland ecosystems can be
degraded by accidental discharges that can change the habitat value for
fish and wildlife by obstructing surface water circulation patterns,
altering substrate elevation, dewatering, or permanent flooding.
In support of the provisions finalized in this rule, EPA is citing
several damage cases, including 30 cases of ``proven'' damage to the
environment that involve aquatic disposal of CCR, 14 of which involve
impacts to wetlands from release of CCR. For example, at the Hyco
Reservoir in Roxboro, North Carolina from 1966 to 1990 the lake
received contaminated effluent from coal ash disposal basins that were
authorized by National Pollutant Discharge Elimination System (NPDES)
permits under the CWA. High levels of the trace element selenium
bioaccumulated in aquatic food chains (phytoplankton), poisoning
invertebrates and fish in the lake, particularly species of sport fish
(bluegill, largemouth bass), causing reproductive failure and severe
declines in fish populations in the late 1970's and early 1980's.
Consequently, from 1988-2001 the North Carolina Department of Health
and Human Services (NCDHHS) issued a consumption restriction advisory
for selenium contamination in fish from the reservoir. In 1990, a dry
ash handling system was implemented resulting in lower selenium
discharge and reduced mean selenium concentration in reservoir waters.
As of 2005, concentrations of selenium in fish tissues remained above a
toxic threshold even with reduced influx of selenium, due to migration
of the element from contaminated sediments to benthic food chains. The
total monetized value of damage can be divided among ecologic factors
(e.g., major impacts on fish), recreational factors (e.g., fishing
trips not taken), depreciated real estate values, aesthetic factors,
and human health damages (e.g., losses due to stress and anxiety from
knowing ecosystem is poisoned) and is estimated at $877 million.\53\
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\53\ Lemly, A.D. 2010. Op.cit.
---------------------------------------------------------------------------
Although this consideration is not relevant for purposes of
establishing the minimum national criteria under RCRA sections 1008(a)
and 4004(a), the rulemaking record demonstrates that the monetary cost
of environmental damage from releases of CCR at surface impoundments
could be considerable. A report on the environmental damage caused by
releases of CCR at 22 sites estimates the total cost of poisoned fish
and wildlife at the surface impoundment sites at $2.32 billion. At
twelve of these sites the releases were legally permitted under the
CWA. Five of the 22 cases were caused by structural failures, two
resulted from an unpermitted discharge, and one was from a
landfill.\54\ Effluent contaminated with coal combustion residues is
directly linked with high loadings of toxic metals in the discharge
areas of aquatic basins, where some metals (primarily arsenic, cadmium,
chromium, copper, lead, and selenium) have accumulated in aquatic food
chains.\55\ In a research overview (literature synthesis) on the
environmental effects of disposal of CCR, Rowe et al. (2002) listed
adverse biological responses, including histopathological, behavioral,
and physiological (reproductive, energetic, and endocrinological)
effects, that have been observed in some vertebrates and invertebrates
following exposure to and bioaccumulation of CCR-related contaminants.
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\54\ Lemly, A.D.2010. Op. cit.
\55\ Rowe, C.L. et. al. 2002. Op. cit.
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Under the criteria finalized in this rule, in order to locate a CCR
unit or
[[Page 21364]]
lateral expansion in a wetland, the owner or operator must: (1)
Successfully rebut the presumption that an alternative site (i.e., one
that does not involve a wetland) is reasonably available for the CCR
unit or lateral expansion; (2) show that the construction or operation
of the unit will not cause or contribute to violations of any
applicable state water quality standard, violate any applicable toxic
effluent standard or prohibition, jeopardize the continued existence of
endangered or threatened species or critical habitats, or violate any
requirement for protection of a marine sanctuary; (3) show that the CCR
unit or lateral expansion will not cause or contribute to significant
degradation of wetlands; and (4) demonstrate that steps have been taken
to attempt to achieve no net loss of wetlands.
In addition to these requirements, other federal laws may be
applicable in siting a CCR unit in a wetland. These include: Sections
401, 402, and 404 of the CWA; the Rivers and Harbors Act of 1989; the
National Environmental Policy Act; the Migratory Bird Conservation Act;
the Fish and Wildlife Coordination Act; the Coastal Zone Management
Act; the Wild and Scenic Rivers Act; and the National Historic
Preservation Act. In addition, the use of a wetlands location for a CCR
unit may require a permit from the U.S. Army Corps of Engineers. To the
extent these are applicable, compliance with these RCRA criteria does
not alleviate the need to comply with these other federal requirements,
and the owner or operator of the facility remains responsible for
ensuring compliance with all applicable federal and state requirements.
The rule adopts a regulatory presumption that a less damaging
alternative to locating a disposal unit in a wetland exists, unless the
owner or operator can demonstrate otherwise. Thus, when proposing to
locate a new facility or lateral expansion in a wetland, owners and
operators must be able to demonstrate that alternative sites are not
available and that the impact to wetlands is unavoidable. If this
presumption is not clearly rebutted, then the CCR unit may not be sited
in a wetland location. Such an analysis necessarily includes a review
of reasonable alternatives to locating or laterally expanding CCR units
in wetlands. As part of the evaluation of reasonable (that is,
available and feasible) alternatives the owner or operator must show,
and a qualified professional engineer must verify, that operation or
construction of the CCR unit will not: (1) Violate any applicable state
water quality standards; (2) cause or contribute to the violation of
any applicable toxic effluent standard or prohibition; (3) cause or
contribute to violation of any requirement for the protection of a
marine sanctuary; and jeopardize the continued existence of endangered
or threatened species or critical habitats.
When evaluating the impacts of a CCR unit on a wetland, the owner
or operator must ensure that the unit cannot cause or contribute to
significant wetland degradation. Therefore, the owner or operator and
the qualified professional engineer must: (1) Verify the integrity of
the CCR unit, and its ability to protect ecological resources by
addressing the erosion, stability, and migration potential of native
wetland soils, and dredged and fill materials used to support the unit;
(2) verify that the design and operation of the CCR unit minimizes
impacts on fish, wildlife, and other aquatic resources and their
habitat(s) from any release of coal combustion residuals; (3) evaluate
the effects of catastrophic release of CCR to the wetland and the
resulting impacts on the environment; and (4) verify that ecological
resources in the wetland are sufficiently protected, including
consideration of the volume and chemistry of the CCR managed in the
unit; and any additional factors, as necessary.
When a wetland functions properly, it provides water quality
protection, fish and wildlife habitat, natural floodwater storage, and
reduction in the erosive potential of surface water. A degraded wetland
is less able to effectively perform these functions. For this reason,
wetland degradation is as big a problem as outright wetland loss,
though often more difficult to identify and quantify. Any change in
hydrology can significantly alter the soil chemistry and plant and
animal communities. The common hydrologic alterations that can lead to
significant degradation in wetland areas include: (1) Deposition of
fill material, including CCR; (2) drainage for development; (3)
dredging and stream channelization for development; (4) diking and
damming to form ponds or impoundments; (5) diversion of CCR-bearing
waters or other flows to or from wetlands; (6) addition of impervious
surfaces in the watershed, thereby increasing water and CCR-bearing
run-off into wetlands. These activities can mobilize CCR-bearing
sediment; and once the sediment is discharged into the environment,
toxic metals in CCR can become available to organisms within the
wetland. Consequently, while the mere presence of one or more of these
activities does not necessarily demonstrate that the CCR unit causes or
contributes to significant degradation, the fact that they may do so
means these activities need to be carefully evaluated.
In determining what constitutes ``significant'' degradation, it is
important to understand that although wetlands are capable of absorbing
pollutants from the surface water, there is a limit to their capacity
to do so. For the purposes of this rule, the primary pollutants of
concern are CCR-bearing sediment and toxic metals. Although the risk
assessment did not assess the exposure and hazard to wetlands, these
can originate from uncontrolled run-off from the facility, fugitive
dust from uncovered CCR landfills and piles, and uncontrolled discharge
from CCR units (landfills, waste piles, surface impoundments). A clear
example of biologically significant degradation in wetlands is when
these toxic metals accumulate in benthic and aquatic food chains as a
result of uncontrolled runoff. Another is obrution (smothering) of
benthic organisms from discharge(s) of CCR to surface water, thereby
jeopardizing the continued existence of organisms or critical habitats
within the wetland. EPA notes that there are other requirements
established under this rule that can also be relevant in this context,
as they have the potential to reduce the likelihood that facility
operations will cause or contribute to significant wetland degradation.
EPA anticipates that as the facility begins to implement all of the
requirements under this rule, the facility will consider how
modifications to facility operations to address one requirement can
affect compliance with other requirements.
After consideration of these factors, if an existing CCR unit
cannot meet all of the requirements in paragraphs (1)-(3) (i.e., if it
causes or contributes to significant degradation, or if no reasonable
alternative to locating a new CCR unit in wetlands is available), the
facility can comply with the location criterion by compensatory steps
that must be taken to achieve no net loss of wetlands (as defined by
acreage and function). Owners or operators must first take measures to
avoid impacts to wetlands. If potential impacts cannot be avoided, all
reasonable steps are to be taken to minimize such impacts to the extent
feasible. Appropriate measures (for example, engineered containment
systems to control discharge of leachate or surface water run-off to
wetlands) will likely be site-specific and should be incorporated into
the design and operation of the CCR unit. Any remaining unavoidable
impacts must be offset, or compensated for through all appropriate and
feasible compensatory mitigation actions. This compensatory
[[Page 21365]]
mitigation may take the form of restoration (re-establishment or
rehabilitation of a wetland), establishment (creation of a man-made
wetland where one did not previously exist), enhancement (improving one
or more wetland functions), and preservation (permanent protection of
important wetlands through implementation of appropriate legal and
physical mechanisms). The functions and values of a wetland will vary
based on any number of site specific characteristics, including
location, wetland type, hydrology, degradation, and whether it is
natural or constructed to treat waste. Strictly limited to the
application of the wetlands location requirements under this rule, any
assessment of the nature and extent of mitigation required under the
CCR rule shall consider these kinds of characteristics, including
wetlands designed for the treatment of CCR. The Agency recognizes that
the function and value of a particular man-made wetland constructed to
perform a wastewater treatment function may present a unique situation
that may affect both the determination of whether the wetland is
significantly degraded, and the nature and extent of any required
compensatory mitigation. This discussion refers only to the wetlands-
related requirements of this rule and does not affect any requirements
or obligations under the Federal Water Pollution Control Act (33 U.S.C.
1251, et seq.) and its implementing regulations.
Although EPA is not finalizing an outright ban on siting of
existing or new CCR units in wetlands, the Agency continues to believe
that discharges to wetlands of pollutants that can be reasonably
avoided should be avoided. Therefore, the amount and quality of
compensatory mitigation may not substitute for avoiding and minimizing
impacts. For purposes of this rule, EPA assumes CCR units that are
designed to avoid discharge of CCR into wetlands have less adverse
impact to the aquatic environment than CCR units that ultimately
discharge such residuals in wetlands.
4. Fault Areas
In Sec. 257.62 of this rule, EPA is banning the location of new
CCR landfills, existing and new CCR surface impoundments, and all new
lateral expansions within 60 meters (200 feet) of a fault that has had
displacement in Holocene time, unless the owner or operator
demonstrates that an alternative setback distance of less than 60
meters (200 feet) will prevent damage to the structural integrity of
the unit. For existing surface impoundments, the demonstration is
required only if the unit is located closer than 60 meters (200 feet)
to an active Holocene fault. If a demonstration cannot be made, the
existing surface impoundment must close. These requirements have been
adopted with only minor changes from the proposal, and will minimize
the risks associated with CCR units located in fault areas.
Stresses produced during earthquake motion can cause serious damage
to landfill integrity via seismically induced ground failure and
associated rupture of liner systems and subsequent damage to leachate
collection systems. Or if the unit is unlined, seismic motion could
disrupt landfill caps and foundation soils that impede migration of
percolating water. Potential damage to CCR units resulting from
structures located across a fault include surface breakage, cracks and
fissures between fill and confining slopes, slope failure via
landslides, liquefaction-induced lateral spreading and settlement of
the pile, disruption of surface water and drainage control systems, and
rupture of leachate collection systems. In impoundments, for example,
interior dike failure and leakage, and rupture of multilayer liner
systems would also be of concern. Failure of the leachate collection
system may prevent removal of generated leachate, allowing it to pond
on the liner. If the liner system is ruptured, this may create a
pathway for leachate to migrate into and contaminate the uppermost
aquifer. In addition to the potential damage to leachate collection and
liner systems, the integrity of the landfill slopes could also be
impaired by fault rupture, potentially exposing coal combustion
residuals to surface run-off.
The best protection is to avoid locating new CCR landfills and all
CCR surface impoundments across faults and fault zones subject to
displacement. For new units or lateral expansions there is no need to
construct units in these areas. For existing surface impoundments, the
Agency has been unable to find any way to retrofit or engineer the unit
to be protective. A setback distance of 60 meters (200 feet) from the
outermost damage zone of a Holocene fault will provide an adequate
margin of safety to protect the facility from displacements due to
surface faulting and any associated damage because 60 meters typically
covers the zone of deformation where the ground may be bent or warped
as a consequence of fault movement. By including this as a siting
requirement for new units the risk of rupture of the unit, including
any liner and leachate collection systems, due to surface faulting will
be minimized.
Observations of engineered landfill response during earthquake
motion come primarily from California where field data have been
reported from MSWLFs (including some meeting the current part 258
standards) affected by strong shaking from six major nearby
earthquakes. In these large magnitude events (M >= 6.7), bedrock peak
horizontal ground accelerations, an index of the intensity of
earthquake motion, endured by the landfills were in excess of 0.3g.
Engineered dry MSWLFs in California are reported to have performed well
after strong earthquake motion (no documented incidence of an
earthquake-induced release of contaminants harmful to human health or
to the environment). Minor cracking of cover soils and breaking of
vertical wells and headers were among the most common types of damage
reported at MSWLFs subject to strong ground shaking. In the 1994
Northridge earthquake, only one landfill compliant with RCRA Part 258
standards experienced tears in a liner (a geomembrane liquid barrier):
One tear 23 meters in length. However, there is little data on seismic
stability and performance from industrial solid waste landfills with
geosynthetic liners or units with water-saturated CCR waste. The
Agency, therefore, remains concerned over the potential instability of
engineered disposal units, and particularly CCR surface impoundments,
under seismic loadings. Accordingly, EPA is prohibiting new CCR
landfills, CCR surface impoundments, and any new extensions from sites
located within an active fault zone, unless the owner or operator makes
a demonstration, certified by a qualified professional engineer, that
an alternative setback distance of less than 60 meters will prevent
damage to the structural integrity of the unit.
EPA is clarifying its definition of fault to incorporate updated
technical information.\56\ Although a fault can be thought of as a
simple planar surface across which there has been measurable
displacement of one side relative to the other, field-based
observations show fault architecture to often be complex. In the
geologic literature faults developed in the upper crust are
characterized as zones of brittle deformation composed of linked fault
segments, with each segment composed of one or more subparallel,
curved, or anastomosing fault cores nested within
[[Page 21366]]
a damage zone. Some fault zones may contain broad deformational
features such as pressure ridges and sags rather than clearly defined
fault scarps or shear zones.\57\ Fault cores are regions of high strain
slip that have accommodated most of the displacement and are marked by
mylonites, cataclastites, and gouge, whereas the damage zone is
characterized by low strain structures mechanically related to the
growth of the fault zone such as small faults, fractures, veins and
folds. To avoid displacement that would damage unit integrity, it is
best to restrict new CCR landfills and surface impoundments, and all
new extensions, to locations no less than 60 meters from the outermost
damage zone created by an active fault. Fault zones can range from one
meter to several kilometers in width.
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\56\ Sibson, R.H. 2003. Thickness of the Seismic Slip Zone.
Bulletin of the Seismological Society of America, Vol. 93, No. 3,
pp. 1169-1178.
\57\ Bryant, W.A. and Hart, E.W., 2007. Fault-Rupture Zones in
California. Special Publication 42 (Interim Revision), California
Division of Mines and Geology, Sacramento, California.
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For purposes of this section, a fault is considered active if it
has moved during Holocene time. Holocene time is defined as the
geological epoch which began at the end of the Pleistocene, at 11,700
years BP (before present), and continues to the present. In the field,
evidence for Holocene activity may be hard to obtain. Therefore, the
Agency cautions that faults which show no evidence for Holocene
activity may not necessarily be inactive.
To investigate active faults, EPA expects owners and operators of
CCR units to follow standard engineering and geologic practices.
Technical considerations include: (1) A geologic reconnaissance of the
site to determine the location of active faults. Such a reconnaissance
would include utilizing the seismic analysis maps and tools (Quaternary
fault maps, earthquake probability maps) of the United States
Geological Survey (USGS) Earthquake Hazards Program (http://earthquake.usgs.gov/hazards/apps/); and (2) a site fault
characterization within 1000 meters of a site to determine whether it
is within 60 meters of an active fault. Such characterizations would
include subsurface exploration, including drilling or trenching, to
locate any fault zones and evidence of faulting, trenching
perpendicular to any faults or lineaments found within 60 meters of the
site, and determination of the age of any displacements. Based on this
information, the qualified professional engineer would prepare a report
that delineates the location of any active (Holocene) fault, including
any damage zones, and the associated 60 meter setback. To take
advantage of an alternative setback distance of less than 60 meters,
the owner or operator must make a demonstration, certified by a
qualified professional engineer, that the CCR landfill, surface
impoundment, or lateral expansion has a foundation or base capable of
providing support for the structure, and capable of withstanding
hydraulic pressure gradients to prevent failure due to settlement,
compression, or uplift, and all effects of ground motions resulting
from at least the maximum surface acceleration expected from a probable
earthquake.
5. Seismic Impact Zones
In Sec. 257.63, EPA is adopting the provisions applicable to
seismic impact zones, as proposed. The rule prohibits new CCR
landfills, existing and new CCR surface impoundments and all lateral
extensions from being located in seismic impact zones unless the owner
or operator makes a demonstration, certified by a qualified
professional engineer, that all containment structures, including
liners, leachate collection systems, and surface water control systems,
are designed to resist the maximum horizontal acceleration in lithified
earth material from a probable earthquake. A Seismic impact zone means
an area having a 2% or greater probability that the maximum expected
horizontal acceleration, expressed as a percentage of the earth's
gravitational pull (g), will exceed 0.10 g in 50 years. Seismic zones,
which represent areas of the United States with the greatest seismic
risk, are mapped by the U.S. Geological Survey and readily available
for all the U.S. (http://earthquake.usgs.gov/hazards/apps/).
Maximum Horizontal Acceleration in lithified earth material means
the maximum expected horizontal acceleration at the ground surface as
depicted on a seismic hazard map, with a 98% or greater probability
that the acceleration will not be exceeded in 50 years, or the maximum
expected horizontal acceleration based on a site-specific seismic risk
assessment. This requirement translates to a 10% probability of
exceeding the maximum horizontal acceleration in 250 years.
For units located in seismic impact zones, as part of any
demonstration, owners and operators should include: (1) A determination
of the expected peak ground acceleration from a maximum strength
earthquake that could occur in the area; (2) a determination of the
site-specific seismic hazards such as soil settlement; and (3) a
facility design that is capable of withstanding the peak ground
acceleration. Seismic designs broadly should include a response
analysis to quantify the demands of earthquake motion on facility
structures (i.e., landfills, surface impoundments, liners, covers,
leachate collection systems, surface water handling systems),
liquefaction analyses of both waste and foundation soils to evaluate
stability under seismic loading, and a slope stability and deformation
analyses. Design modifications to accommodate seismic risks should
include use of conservative design factors, use of ductile materials,
built-in redundancy for critical system components, and other measures
capable of mitigating the potential for seismic upset.\58\
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\58\ The seismic location standard requires a demonstration that
a CCR disposal unit can withstand the stresses imposed by peak
ground acceleration during earthquake motion. The seismic factor of
safety is a unitless measure of strength calculated for fill
material assuming earthquake conditions. It is the ratio of material
shear strength relative to the magnitude of shear forces acting on
the material. For a CCR disposal unit, the seismic location
demonstration could be composed of numerous factor of safety
calculations showing that the structural components of the unit have
factors of safety greater than or equal to 1.00.
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Following trends in earthquake engineering, seismic design criteria
for new CCR landfills, new CCR surface impoundment and all lateral
expansions should be based on a ``withstand without discharge''
standard.\59\ EPA interprets the performance standard in this criterion
(``designed to resist the maximum horizontal acceleration in lithified
earth material from a probable earthquake'') to require any new CCR
unit located in a seismic impact zone to be designed to withstand
seismic motion from a credible earthquake without damage to the
foundation or to the structures that control leachate, surface
drainage, or erosion. In other words, the CCR unit must be able to
withstand an expected earthquake without discharging waste or
contaminants. The owner or operator must make a demonstration,
certified by a qualified professional engineer, that the CCR unit has a
foundation or base capable of providing support for the structure, and
capable of withstanding hydraulic pressure gradients to prevent failure
due to settlement, compression, or uplift and all effects of ground
motions resulting from at least the maximum surface acceleration
expected from a probable earthquake. In practice, the Agency recognizes
that the CCR unit may sustain some limited damage during an earthquake,
but ultimately, the CCR unit design must remain
[[Page 21367]]
capable of preventing harmful release of CCR, leachate, and
contaminants both during and after the seismic event.
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\59\ Kavazanjian, E., 1999. Seismic Design of Solid Waste
Containment Facilities. Proceedings of the Eight Canadian Conference
on Earthquake Engineering Vancouver, BC, pp. 51-89.
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6. Unstable Areas
EPA laid out its rationale for these requirements in the proposal
at 75 FR 35201. No significant comments were received on either this
rationale or the specific regulatory provisions. Consequently, EPA is
adopting the regulatory text as proposed. Specifically, under Sec.
257.64(a) new and existing CCR landfills, new and existing CCR surface
impoundments and all lateral expansions are prohibited from sites
classified as unstable areas unless the owner or operator makes a
demonstration, certified by a qualified professional engineer, that
engineering measures have been incorporated into the CCR unit's design
to ensure that the structural components will not be disrupted. EPA
considers a structural component to include any component used in the
construction and operation of CCR landfill or CCR surface impoundment
that is necessary to ensure the integrity of the unit and to ensure
that the contents will not be released to the environment, including
liners, leachate collection system, embankments, spillways, outlets,
final covers, inflow design flood controls systems. Liners and leachate
collection systems require a firm, secure foundation to maintain their
integrity, and may be disrupted as a result of uneven settlement
induced by hydrocompaction. Similarly, sudden differential movement
resulting from CCR placement and the consequent exceedance of the
weight-bearing strength of subsurface materials in unstable areas can
destroy liners and damage the unit's structural integrity, resulting in
catastrophic release of CCR. It is essential for the owner or operator
of any CCR unit to extensively evaluate the adequacy of the subsurface
foundation support for the structural components of the unit.
Therefore, the Agency is making this demonstration mandatory for all
CCR units; existing CCR units for which a demonstration cannot be made
must be closed.
EPA has adopted the following definitions without material change
from the proposal: Unstable area means a location that is susceptible
to natural or human-induced events or forces capable of impairing the
integrity of some or all of the structural components responsible for
preventing releases from a CCR unit. Natural unstable areas include
those areas that have poor soils for foundations, areas susceptible to
mass movements, and karst terrains. Structural components mean liners,
leachate collection systems, final covers, run-on/run-off systems, and
any other component used in the construction and operation of a CCR
unit. Poor foundation conditions means those areas where features exist
which may result in inadequate foundation support for the structural
components of a CCR unit. Areas susceptible to mass movement means
those areas of influence (i.e., areas characterized as having an active
or substantial possibility of mass movement) where the movement of
earth material at, beneath, or adjacent to the CCR unit, because of
natural or man-induced events, results in the downslope transport of
soil and rock material by means of gravitational influence. Areas of
mass movement include, but are not limited to, landslides, avalanches,
debris slides and flows, solifluction, block sliding, and rock fall.
Karst terrain means an area where karst topography, with its
characteristic erosional surface and subterranean features, is
developed as the result of dissolution of limestone, dolomite, or other
soluble rock. Characteristic physiographic features present in karst
terrains include, but are not limited to, dolines (sinkholes), vertical
shafts, sinking streams, caves, seeps, large springs, and blind
valleys.
The owner or operator must consider at a minimum, the following
factors when determining whether an area is unstable: (1) On-site or
local soil conditions that may result in significant differential
settling; (2) on-site or local geologic or geomorphologic features; and
(3) on-site or local human-made features or events (both surface and
subsurface). To evaluate subsurface conditions for purposes of Sec.
257.64(c)(3), EPA considers it essential that the owner or operator
conduct a geotechnical site investigation, certified by a qualified
professional engineer, to identify any potential thick layers of soil
that are soft and compressible (e.g., loess, unconsolidated clays,
wetland soils), which could cause a significant amount of post-
construction differential settlement of foundation soils, adjacent
embankments, and slopes unless improved. In addition, it is essential
that the investigation identify on-site or local soil conditions that
are conducive to downslope movement of soil, rock, and/or debris (alone
or mixed with water) under the influence of gravity. Local topography,
surface and subsurface soils, surface slope angles, surface drainage
and run-off patterns, seepage patterns, rock mass orientations, joint
patterns, fissures, and any other landscape factors that could
influence downslope movement should be identified. Anthropogenic
activities that could induce instability include mining, cut and fill
activities during construction, excessive drawdown of groundwater,
which may cause excessive settlement or bearing capacity failure of
foundation soils, and use of an old landfill as the foundation for a
new landfill without verification of complete settlement of the
underlying wastes.
In designing a new CCR unit located in an unstable area, recognized
and generally accepted good engineering practices dictate that a
stability assessment should be conducted to prevent a destabilizing
event from damaging the structural integrity of the component systems.
For CCR units this involves three components: (1) An evaluation of
subsurface conditions, (2) an analysis of slope stability, and (3) an
examination of related design needs. In addition to explaining site
constraints, identifying any soft soils, and recommending any
appropriate ground improvement techniques, the assessment report should
include a description of: The site, site geology; and investigative
methodology; the results from all site investigations including
subsurface exploration, field and laboratory tests, and test results;
the subsurface profile, recommended foundation types, depths, and
bearing capacities; the water content, grain-size distribution, shear
strength, plasticity, and liquefaction potential of foundation soils
and subsoils; and other foundation consolidation and settlement issues
relevant to site development.
In addition to assessing the ability of soils and rocks to serve as
a foundation, it is essential that the report also include a stability
assessment of excavated sideslopes, aboveground embankments or dikes,
and retaining structures. The slope stability analyses are performed as
part of an evaluation of the design configuration under all potential
hydraulic and loading conditions, including conditions that may exist
during construction of a lateral or vertical expansion. As part of any
demonstration, owners and operators should make an assessment,
certified by a qualified professional engineer, that finalized site
embankments and slopes are able to maintain a stable condition. In
addition to evaluating the potential for post-construction differential
settlement, the stability assessment should also consider seepage-
induced saturation and softening of soils, particularly at CCR surface
impoundments and CCR landfill sites that manage effluent.
Engineering considerations for CCR landfills and lateral expansions
located in unstable areas are expected to be
[[Page 21368]]
similar to those for MSWLFs, which can be found in EPA's 1993 Technical
Manual on Solid Waste Disposal Facility Criteria (EPA530-R-93-017). For
surface impoundments the relevant design criteria are found in the
Agency's 1991 Technical Resource Document on Design, Construction and
Operation of Hazardous and Non-Hazardous Waste Surface Impoundments
(EPA/530/SW-91/054). Any stability assessment should consider the
following: (1) The adequacy of the subsurface exploration program; (2)
the liquefaction potential of the embankment, slopes and foundation
soils; (3) the expected behavior of the embankment slopes, and
foundation soils when they are subjected to seismic activity; (4) the
potential for seepage-induced failure; and (5) the potential for
differential settlement.
For facilities in areas of karst, to support the demonstration
required under the regulations, the owner or operator would need to
evaluate the subsurface conditions to ensure that the unit is located
away from the influence of potential sinkholes. For areas where the
solution-weathered limestone is close to the surface (e.g., Florida)
recognized and generally accepted good engineering practices dictate
that there must be no conduits beneath the CCR unit that allow piping
of groundwater into the karst aquifer, or shallow caves that could
cause sudden collapse of the unit foundation. Where unconsolidated
sediments cover underlying limestone, piping is commonly marked by
paleosinks where sands and clays from the overburden have filled
solution cavities in the underlying limestone.\60\ Local hydraulic
gradients in paleosinks typically point downward. EPA generally expects
the potential for sinkhole development to be minimal at locations in
karst areas where there are no paleosinks, or historical record of
sinkhole development, and where there are no local hydraulic gradients
that point downward.
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\60\ For examples, see Garlanger, J.E., Foundation Design in
Florida Karst. Online presentation by Ardaman & Associates. http://www.ardaman.com/foundation_design.htm.
---------------------------------------------------------------------------
In making a demonstration, it is important for owners and operators
of CCR landfills and surface impoundments in karst areas to adequately
characterize subsurface conditions. Karst hydrogeology is complex,
since contaminant flows can occur along paths and networks that are
discreet and tortuous, and groundwater monitoring wells must be capable
of detecting any contaminants released from the CCR unit into the karst
aquifer. Therefore, the owner or operator will need to ensure, with
verification by a qualified professional engineer, that monitoring
wells installed in accordance with Sec. 257.91 will intercept these
pathways. Verification will usually necessitate the use of tracers to
track groundwater flow towards offsite seeps or springs from the
uppermost aquifer beneath the facility.
Any engineered solution employed to mitigate weak ground strength
in karst areas must be able to prevent the kind of foundation collapse
and settlement that could lead to sudden release to the environment of
CCR with its toxic constituents and associated leachate. Solution
cavities present at the site should be filled with grout or other
suitable stiff material to avoid further crumbling and erosion. Where
necessary, CCR unit foundations could be reinforced with engineered
ground supports such as concrete footings that bridge voids. Larger
caverns could be filled with concrete to underpin the CCR unit
foundation by transferring load to the cavern floor. However, such
engineered solutions are complex and costly, and the best protection is
not to site CCR landfills and surface impoundments in karst areas.
Nevertheless, this rule does not ban the location of CCR landfills,
surface impoundments, or lateral extensions in karst areas.
7. Closure of Existing CCR Landfills and Existing CCR Surface
Impoundments
The final provisions of Sec. 257.60 require owners or operators of
an existing CCR surface impoundment to demonstrate that the unit meets
the minimum requirements for placement above the uppermost aquifer
(i.e., constructed with a base located no less than 1.52 meters (five
feet) above the upper limit of the uppermost aquifer) no later than 42
months after the date of publication of this rule in the Federal
Register.
Owners and operators of existing CCR surface impoundments subject
to Sec. Sec. 257.61-257.64 of this rule and existing CCR landfills
subject to Sec. 257.64, must complete demonstrations by the date
corresponding to 42 months from publication of this rule. The Agency is
setting the compliance deadline at 42 months to allow owners and
operators time to complete the requisite studies (e.g., to adequately
characterize seasonal variations in the elevation of the top of the
uppermost aquifer) and to complete any engineering measures necessary
to allow the CCR unit to meet the performance standards. If closure is
warranted, it must be initiated no later than 48 months from
publication of this rule. Closure and post-closure care must be done in
accordance with Sec. Sec. 257.100-103; which allow certain regulatory
flexibilities provided specific conditions are met.
D. Design Criteria--Liner Design
EPA proposed that existing CCR landfills without a composite liner
could continue to operate and receive CCR without violating the open
dumping prohibition. Conversely, EPA proposed that existing CCR surface
impoundments would be required to retrofit with a composite liner
system, as defined in the proposed rule, within five years of the
effective date of the rule or to close. EPA also proposed that all new
CCR units must be constructed with a composite liner and leachate
collection and removal system.
In the proposal, EPA defined a composite liner to mean a liner
system consisting of two components; the upper component consisting of
a minimum 30-mil flexible membrane liner (FML), and the lower component
consisting of at least a two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1 x 10-7 cm/sec.\61\
FML components consisting of high density polyethylene (HDPE) were
required to be at least 60-mil thick; and the FML component was
required to be installed in direct and uniform contact with the
compacted soil component.
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\61\ The definition of hydraulic conductivity is being
promulgated as proposed, and will mean the rate at which water can
move through a permeable medium (i.e., the coefficient of
permeability).
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EPA solicited comment on a number of issues, including: (1) Whether
EPA should allow facilities to use an alternative design for new CCR
units; (2) whether clay liners designed to meet a 1 x 10-7
cm/sec hydraulic conductivity might perform differently in practice
than modeled in the risk assessment, including a request for specific
data on the hydraulic conductivity of clay liners associated with CCR
units; and (3) whether the effectiveness of such additives as
organosilanes, would allow the use of these additives in lieu of
composite liners. (See 75 FR 35203 and 35222.) \62\ With respect to the
last two issues, the Agency received little comment. However, in
response to the use of alternative liner designs in lieu of a composite
liner (as defined in the rule), significant comment was received.
Commenters advocated for a number of alternative composite liner
designs, with a majority recommending that a
[[Page 21369]]
geosynthetic clay liner (GCL) be allowed as an alternative to the lower
component of the composite liner. Other commenters stated that GCLs
alone should be allowed as an alternative to the proposed composite
liner. Still others argued that alternative liner designs, such as an
FML/FML \63\ provided a level of performance similar to the proposed
composite liner system and should be allowed. Conversely, there were
also comments opposing the use of any alternative liners, claiming that
alternatives have not been proven to be effective.
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\62\ The terms compacted soil and compacted clay are used
interchangeably, i.e., when referring to a compacted soil liner this
is the same as referring to a compacted clay liner (CCL).
\63\ Current terminology favors the use of geomembrane liner or
GM when referring to flexible membrane liners or FMLs. Hereafter in
the preamble, except when referring to specific comments or the
proposed rule, and in the final rule, the Agency will use the term
geomembrane liner or GM in place of flexible membrane liner or FML.
---------------------------------------------------------------------------
EPA also received significant comment on the actual design of the
composite liner system proposed by the Agency as it pertained to CCR
surface impoundments (see 75 FR 35202-35203).\64\ Commenters argued
that the proposed requirement for a leachate collection and removal
system in a CCR surface impoundment was illogical since it would have
to be constructed between the lower component (two feet of compacted
soil) and upper component (flexible membrane liner) and the proposed
rule specifically states that the flexible membrane liner component
must be installed in direct and uniform contact with the compacted soil
component. Commenters reasoned that the inclusion of a leachate
collection and removal system between the upper and lower components
precluded direct and uniform contact between the two components and
that placing a leachate collection and removal system between the lower
and upper components of a composite liner would compromise the
integrity of the composite liner. With regard to this last point, the
Agency has reviewed the requirements for a proposed composite liner
system as it would pertain to CCR surface impoundments and agrees that
the leachate collection and removal system requirements proposed for
CCR surface impoundments would be counterproductive; EPA proposed this
requirement in error. The integrity of the composite liner system is
indeed dependent upon the direct and uniform contact of the upper GM
component with the lower soil component. The proposed requirement for
CCR surface impoundments to construct a leachate collection system
between the FML and soil components would prevent the direct and
uniform contact of the upper and lower components and, therefore,
compromise the integrity of the composite liner. For this reason, EPA
is not requiring a leachate collection and removal system for new
surface impoundments or any lateral expansion of a CCR surface
impoundment.
---------------------------------------------------------------------------
\64\ See proposed Sec. 257.71 which states that an existing CCR
surface impoundment shall be constructed with a composite liner and
a leachate collection system between the upper and lower components
of the composite liner; where a composite liner means a system
consisting of two components; the upper component consisting of a
minimum 30-mil flexible membrane liner (FML) and a lower component
consisting of at least a two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1 x 10-7 cm/sec.
The FML component would be required to be installed in direct and
uniform contact with the compacted soil component (see 75 FR 35243).
---------------------------------------------------------------------------
While EPA agrees with those commenters arguing that new CCR units
should only be installed with a composite liner system of some kind,
the Agency has concluded that not all alternative designs for a
composite liner system should necessarily be rejected as insufficiently
protective. Many commenters provided strong and compelling evidence
that the specific composite liner system described in the proposed rule
was not always feasible or necessary to protect groundwater resources
and that alternate composite liner designs could be equally protective,
and may be a necessity in many areas of the country where soil with the
appropriate hydraulic conductivity may not be available (e.g.,
Alaska).\65\
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\65\ See for example comments from the states of Alaska (EPA-HQ-
RCRA-2009-0640-06409); Florida (EPA-HQ-RCRA-2009-0640-06846); and
North Carolina (EPA-HQ-RCRA-2009-0640-09282) available at
www.regulations.gov.
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In re-evaluating the proposed requirement for a composite liner
system, EPA was influenced by a number of factors.\66\ First, the data
provided by commenters showing the performance of a GM/GCL design.
Second, EPA's own studies showing that a GM/GCL liner can be
constructed to achieve hydraulic efficiencies in the range of 99 to
99.9% which meets or exceeds the hydraulic performance of a GM/
compacted clay liner (CCL) design.\67\ In addition, these high
efficiencies demonstrate that the GCL component of a GM/GCL composite
liner is at least as effective in impeding leakage through holes in the
GM component of the composite liner system as a CCL with a hydraulic
conductivity no more than 1 x 10-7 cm/sec.\68\ In fact, EPA
has developed guidance for the selection and installation of various
types of liners including a GM/GCL.\69\ And third, EPA was influenced
by the many comments arguing that a ``one-size-fits all'' approach to
liner design stifles design innovation and regulatory flexibility in
addressing site specific factors such as geologic or climatic
conditions. These commenters reasoned that if EPA established some type
of performance standard for composite liners, it would mitigate the
negative impacts of a ``one-size fits all'' regulatory framework.
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\66\ Geomembranes (GMs), which are flexible membrane liners
(FMLs), are thin materials manufactured from polymers and reinforced
with woven fabric or fibers which are used as hydraulic barriers.
Resins used to manufacture geomembrane liners typically include high
density polyethylene (HDPE), linear low density polyethylene
(LLDPE), low density linear polyethlene (LDLPE), very low density
polyethylene (VLDPE) and polyvinyl chloride (PVC). Geomembranes
manufactured using HDPE are the least flexible of the geomembranes.
\67\ USEPA, ``Assessment and Recommendations for Improving the
Performance of Waste Containment Systems,'' EPA 600/R-02/029,
December 2002. http://nepis.epa.gov/Adobe/PDF/P1001O83.pdf.
\68\ USEPA, ``Assessment and Recommendations for Improving the
Performance of Waste Containment Systems,'' EPA 600/R-02/029,
December 2002.
\69\ USEPA, ``Guide for Industrial Waste Management,'' Chapter 7
(http://www.epa.gov/osw/nonhaz/industrial/guide/pdf/chap7b.pdf).
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1. Development of Composite Liner Design Criteria
In this final rule EPA is requiring all new CCR units to be
designed and constructed with a composite liner as specified in Sec.
257.70. EPA is also providing the owner or operator with an option to
install an alternative composite liner provided it meets the required
performance standard and it is certified by a qualified professional
engineer. EPA has concluded, consistent with many of the comments
received and its own analysis, that an alternative composite liner for
new CCR units is warranted if it can be shown to be equivalent to the
performance of a composite liner and affords the same protections to
groundwater resources as a composite liner. The Agency is promulgating
this alternative option to provide flexibility in designing and
constructing a protective composite liner system that addresses site
specific conditions and situations. The Agency acknowledges that it was
overly prescriptive by requiring one particular type of liner rather
than relying on a performance standard to define the lower component of
the composite liner. The overwhelming amount of data supporting the
effectiveness of a GC/GCL liner has convinced the Agency that the final
rule should allow for some flexibility in composite liner designs. As
such, the Agency is allowing new CCR units to be designed and
constructed
[[Page 21370]]
with an alternative composite liner, as described below, provided the
lower component of the composite liner meets a specified performance
standard that ensures it functions in a manner equivalent to the
composite liner system defined in the rule.
Composite liner systems installed in either a CCR landfill or CCR
surface impoundment provide an effective hydraulic barrier by combining
the complementary properties of the two different liner components. The
geomembrane provides a highly impermeable layer that can maximize
leachate collection and removal in a CCR landfill or minimize
infiltration of leachate in a CCR surface impoundment, while the soil
component (e.g., CCL) serves as a backup in the event of any leakage/
infiltration from the geomembrane occurs. Data indicate that
alternatives to the lower component of the composite liner system
(e.g., GCLs) are available and can perform at a level equivalent to a
compacted soil liner, based on a comparison of their flow rates with
two feet of compacted soil with a hydraulic conductivity of no more
than 1 x 10-7 cm/sec.
2. Liner Designs That Would Not Meet the Requirements of a Composite
Liner or Alternative Liner
Contrary to the arguments made by several commenters, EPA has
concluded that a composite liner consisting of two 30-mil GMs (GM/GM)
will not provide an equivalent degree of protection as a composite
liner consisting of a GM and two feet of compacted soil, or an
alternative composite liner such as a GM/GCL. While GMs have the
advantages of extremely low rates of water permeation, the
disadvantages of a composite liner consisting of two GMs include
leakage through occasional GM imperfections and punctures, potential
for slippage along the interface between the GMs, and GM embrittlement
over time. Furthermore, a critical component of a composite liner is
the compacted soil or GCL component beneath the GM layer that will
impede the flow of liquid that may leak through a hole or defect in the
GM. This added protection cannot be achieved using two GMs for the
composite liner. Additionally, the potential exists for liquid
transport through the GMs through holes caused by punctures, tears,
flawed seams, etc. If a puncture occurs, the puncture could compromise
both GMs and create a conduit for liquid flow to underlying permeable
soil. Moreover, a liner system consisting of two GMs in contact with
each other poses the risk of creating a slip plane that may compromise
the stability of the disposal unit (although EPA acknowledges that
using textured GMs would reduce or eliminate this particular risk).
These data are documented in EPA research.\70\
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\70\ ``Assessment and Recommendations for Improving the
Performance of Waste Containment Systems.''
---------------------------------------------------------------------------
Consistent with the previous determination, EPA has also determined
that the double liner system set forth in Florida regulations (see
Florida Rules 62-701.400(3)(c), F.A.C) also does not meet the level of
performance achieved by EPA's composite liner system or the alternative
liner system. While this double liner system provides the advantage of
a leak detection system between the two GMLs, the lower composite
liner, consisting of a 60-mil HDPE over six inches of soil with a
saturated hydraulic conductivity of less than or equal to 1 x
10-5 cm/sec, is not equivalent to a GM over two feet of
compacted soil with a hydraulic conductivity of less than or equal to 1
x 10-7 cm/sec. To be hydraulically equivalent, soil with a
hydraulic conductivity of 1 x 10-5 cm/sec would need to be
on the order of 100 times thicker than soil with a hydraulic
conductivity of less than or equal to 1 x 10-7 cm/sec.
Similarly, a lower composite liner consisting of a 60-mil HDPE over a
GCL with a hydraulic conductivity not greater than 1 x 10-7
cm/sec would require a GCL thickness of 24 inches to be equivalent to a
GM over two feet of compacted soil with a hydraulic conductivity of
less than or equal to 1 x 10-7 cm/sec.
EPA has also examined the performance of GCLs approved for use as
alternatives to composite liners in MSWLFs.\71\ The EPA report titled
``Assessment and Recommendations for Improving the Performance of Waste
Containment Systems,'' \72\ concluded that if a CCL or GCL is used
alone, liquid migration can occur over the entire area of the liner
that is subject to a hydraulic head. The report also concluded that in
a composite liner, leakage will only occur at the location of the
geomembrane penetration (e.g., hole, tear), and will be much slower
than flow through an orifice due to the hydraulic impedance provided by
the CCL or GCL alone. The report also evaluated, among other
characteristics, the hydraulic efficiencies of a GM/GCL composite liner
system for 28 cells at seven landfills. Liner hydraulic efficiencies
were reported between 97% and 100%. However, potential stability
problems were reported with GCLs constructed on slopes greater than 10
H:1 V (5.7[deg]), and GCLs may not be appropriate for the disposal of
liquid wastes or sludges. The Agency is also concerned that GCLs, being
much thinner than the two feet of compacted soil required for composite
liners, may allow for the flow of liquids through the GCL at a faster
rate than through two feet of compacted soil. Taking all of this
information into account, the Agency remains unconvinced that a GCL
alone is a viable alternative to a composite liner.
---------------------------------------------------------------------------
\71\ ``Geosynthetic Clay Liners Used in Municipal Solid Waste
Landfills,'' http://www.epa.gov/wastes/nonhaz/municipal/landfill/geosyn.pdf; ``Geosynthetic Clay Liners in Waste Containment,''
http://www.epa.gov/superfund/remedytech/tsp/download/2001_meet/prez/carson.pdf; and ``Assessment and Recommendations for Improving the
Performance of Waste Containment Systems,'' http://nepis.epa.gov/Adobe/PDF/P1001O83.pdf.
\72\ ``Assessment and Recommendations for Improving the
Performance of Waste Containment Systems.''
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3. Design Requirements
a. Existing CCR Landfills
As proposed, the final rule allows existing CCR landfills as
defined in Sec. 257.54, to continue to operate without retrofitting
with a composite liner and leachate collection and removal system. As
previously discussed, given the volume of the material currently
managed in CCR landfills, the potential for disruption in CCR disposal
capacity if existing CCR landfills were required to retrofit would be
significant. Significant disruptions in the state-wide solid waste
management (and possibly power generation) are associated with
significant risks to public health and the environment in their own
right. EPA has concluded that these risks are greater than the risks
associated with allowing unlined CCR landfills to continue to operate.
Further, existing CCR landfills will be required to comply with the
extensive groundwater monitoring and corrective action requirements,
among others, to ensure that any groundwater releases from the CCR unit
are identified and promptly remediated, which will significantly
mitigate the risks from these existing units. By themselves, the risk
assessment results and the risk migration from the other regulatory
requirements in this rule would not support a decision to allow these
CCR units to continue to operate on a national basis. But when the
risks associated with the level of disruption EPA estimates to be
possible from requiring existing CCR landfills to retrofit are also
included, the totality of the evidence supports a determination that
allowing these units to continue operating meets the section 4004(a)
standard.
[[Page 21371]]
b. Existing CCR Surface Impoundments
In a departure from the proposed rule and after considerable
evaluation and analysis, the Agency is finalizing a provision to allow
all existing CCR surface impoundments to remain in operation provided
certain conditions are met.\73\ Owners or operators of existing CCR
surface impoundments are required, within one year of the effective
date of the rule, to document, certified by a qualified professional
engineer, whether the unit is constructed with any one of the three
liner types: (1) A liner consisting of a minimum of two feet of
compacted soil with a hydraulic conductivity of no more than 1 x
10-7 cm/sec; (2) a composite liner that meets the
requirements of Sec. 257.70(b); or (3) an alternative liner that meets
the requirements of Sec. 257.70(c). In some instances, owners or
operators may have information readily available to determine if an
existing CCR surface impoundment is constructed with one of the three
liner types listed above. On the other hand, this information may not
be readily available and may require an owner or operator to conduct an
engineering evaluation to determine if the unit was constructed with
any of the three liner type. Factors such as the availability of
engineering personnel and weather may impede the engineering
evaluation. Therefore, EPA believes that 12 months from the effective
date, or 18 months from publication of the rule, is a reasonable amount
of time to make the determination of whether the existing CCR surface
impoundment was constructed with one of the three liner types described
above. Existing surface impoundments with liners that meet the criteria
established for any of the three specified liner types are considered
to be an ``existing lined CCR surface impoundments.'' These existing
lined surface impoundments can continue to operate until the owner or
operator decides to initiate closure, provided the unit does not meet
other requirements of the rule that independently mandate closure of
the unit (e.g., location criteria (Sec. Sec. 257.60-257.64) or
structural integrity factors of safety (Sec. 257.73)). Existing
unlined CCR surface impoundments must also cease receiving CCR and
initiate closure if an owner or operator determines, at any point in
time, as part of its groundwater monitoring program that the
concentrations of one or more constituents listed in appendix IV to
part 257 are detected at a statistically significant level above the
groundwater protection standard established for that unit. EPA agrees
with the many commenters who argued that existing unlined CCR surface
impoundments should not be required to close prematurely if they are
operating as designed and are complying with all of the requirements of
the rule, including all groundwater protection standards. Taking into
account the additional protections required under this rule (e.g.,
location restrictions, groundwater monitoring, corrective action,
structural integrity criteria, inspections and fugitive dust controls),
the Agency has concluded that the risks posed by unlined CCR surface
impoundments that are not ``leaking'' (i.e., exceeding any groundwater
protection standard) are not sufficient to warrant requiring these
units to close. However, once a groundwater protection standard is
exceeded (i.e., the unit is leaking), without any type of liner system
in place, leachate will flow through the unit and into the environment
unrestrained and the only corrective action strategy that EPA can
determine will be effective at all sites nation-wide requires as its
foundation the closure of the unit.
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\73\ Existing CCR surface impoundments will not be required, as
was proposed, to retrofit to a composite liner or close within five
years of the effective date of the rule (see 57 FR 35202).
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EPA acknowledges that it may be possible at certain sites to
engineer an alternative to closure of the unit that would adequately
control the source of the contamination and would otherwise protect
human health and the environment. However, the efficacy of those
engineering solutions will necessarily be determined by individual site
conditions. As previously discussed, the regulatory structure under
which this rule is issued effectively limits the Agency's ability to
develop the type of requirements that can be individually tailored to
accommodate particular site conditions. Under sections 1008(a) and
4004(a), EPA must establish national criteria that will operate
effectively in the absence of any guaranteed regulatory oversight
(i.e., a permitting program), to achieve the statutory standard of ``no
reasonable probability of adverse effects on health or the
environment'' at all sites subject to the standards. EPA was unable to
develop a performance standard that would allow for alternatives to
closure, but would also be sufficiently objective and precise to
minimize the potential for abuse. There are too many factors that
determine whether a particular engineering solution will meet the
section 4004(a) standard at a particular site. And the risks of these
units are simply too high.
Conversely, existing lined surface impoundments that exceed their
groundwater protection standard are in a better position to manage the
leak because it is usually caused by some localized or specific defect
in the liner system that can more readily be identified and corrected.
Consequently, this rule is not requiring existing lined CCR surface
impoundment to close if an exceedance of a groundwater protection
standard is detected; rather the Agency is affording the owner or
operator with the opportunity to rely on corrective action measures to
bring the risks back to acceptable levels (i.e., control the source of
the release and remediate the contamination), without mandating closure
of the unit.
c. New CCR Landfills and New CCR Surface Impoundments and All Lateral
Expansions
Both the CCR damage case history and the risk assessment clearly
show the need for and the effectiveness of appropriate liners in
reducing the potential for groundwater contamination at CCR landfills
and CCR surface impoundments. Accordingly, EPA is finalizing liner and
leachate collection and removal system requirements for new CCR
landfills and all lateral expansions of these units. Similarly, EPA is
finalizing liner requirements for new CCR surface impoundments and all
lateral expansions of these units.
Specifically, EPA is requiring new CCR landfills, new CCR surface
impoundments, and all lateral expansions be constructed with a
composite liner (see Sec. 257.70). The composite liner must consist of
two components; an upper component consisting of a minimum 30-mil
geomembrane liner (GM), and a lower component consisting of at least a
two-foot layer of compacted soil with a hydraulic conductivity of no
more than 1 x 10-7 centimeters per second (cm/sec). GM
components consisting of high density polyethylene (HDPE) must be at
least 60-mil thick and the GM or upper liner component must be
installed in direct and uniform contact with the compacted soil or
lower liner component
New CCR landfills or lateral expansions of these units are also
required to be constructed with a leachate collection and removal
system designed to maintain less than a 30-centimeter depth of leachate
over the composite liner. A leachate collection and removal system is
not required for new CCR surface impoundments
[[Page 21372]]
because, as previously discussed, a leachate collection system
installed between a single composite liner system is not practicable
and would compromise the integrity of the composite liner system.
In addition, in response to comments on the proposed rule, EPA is
allowing alternatives to the lower component of the composite liner
system provided the flow rate through the lower component is no greater
than the flow rate through two feet of compacted soil with a hydraulic
conductivity of 1 x 10-7 cm/sec. The lower component must
also be a recognized liner material; e.g., soil, clay, or GCL.
Alternative composite liners using compacted soil or clay as the lower
component must be constructed with the upper component in intimate
contact with the lower component; i.e., the geomembrane must be
installed to ensure good and uniform contact with the lower component.
The hydraulic conductivity for the two feet of compacted soil used in
the flow rate comparison must be no greater than 1 x 10-7
cm/sec. The hydraulic conductivity of the lower component must be
determined using recognized and generally accepted engineering methods,
for example, ASTM D5084-10, ``Standard Test Methods for Measurement of
Hydraulic Conductivity of Saturated Porous Materials Using a Flexible
Wall Permeameter,'' ASTM International, West Conshohocken, PA, 2012,
DOI: 10.1520/D5084-10, www.astm.org for compacted soils or clays, or
ASTM Standard D6766-12, ``Standard Test Method for Evaluation of
Hydraulic Properties of Geosynthetic Clay Liners Permeated with
Potentially Incompatible Aqueous Solutions,'' ASTM International, West
Conshohocken, PA, 2012, DOI: 10.1520/D6766-12, www.astm.org for GCLs.
The flow rate comparison for the lower component must be made using
Darcy's Law for gravity flow through porous media, which is an
empirical law which states that the velocity of flow through porous
media is directly proportional to the hydraulic gradient. The use of
Darcy's Law to calculate fluid flow through porous media is a well-
established and generally accepted engineering methodology, and is the
foundation for EPA's Composite Model for Leachate Migration with
Transformation Products (EPACMTP) and is generally recognized to
evaluate steady state flow of liquids through soils and GCLs.\74\
EPACMTP is a subsurface fate and transport model EPA uses to simulate
the impact of the release of constituents present in waste that is
managed in land disposal units. Accordingly, the flow rate comparison
for the lower component of alternative composite liner must be made
using the following equation which is derived from Darcy's Law.
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\74\ See for example EPA's Composite Model for Leachate
Migration with Transformation Products (EPACMTP) at http://www.epa.gov/epawaste/nonhaz/industrial/tools/cmtp/, ``Assessment and
Recommendations for Improving the Performance of Waste Containment
Systems.'' Giroud, J.P., Badu-Tweneboah, K. and Soderman, K.L.,
1997, ``Comparison of Leachate Flow Through Compacted Clay Liners
and Geosynthetic Clay Liners in Landfill Liner Systems,''
Geosynthetics International, Vol. 4, Nos. 3-4, pp. 391-431 (http://www.geosyntheticssociety.org/Resources/Archive/GI/src/V4I34/GI-V4-N3&4-Paper7.pdf), and ``Design Considerations for Geosynthetic Clay
Liners (GCLs) in Various Applications,'' Geosynthetic Research
Institute, January 9, 2013 (http://www.geosynthetic-institute.org/grispecs/gcl5.pdf).
[GRAPHIC] [TIFF OMITTED] TR17AP15.003
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where:
Q = flow rate,
A = surface area of the liner,
q = flow rate per unit area,
k = hydraulic conductivity of the liner,
h = hydraulic head above the liner, and
t = thickness of the liner.
A qualified professional engineer must certify that the design and
construction of either the composite liner or the alternative composite
liner meets the requirements of Sec. Sec. 257.70(b) or (c).
EPA has also supplemented the composite liner criteria for
landfills with performance standards that provide more precise
direction to the professional engineer regarding the ``recognized and
generally accepted good engineering practices'' that need to be used in
the design and construction of composite liner systems to ensure that
the liner system will continue to perform as designed. These criteria,
which have been codified at Sec. Sec. 257.70(b) and 257.70(c), have
been adopted in response to comments requesting that EPA provide the
professional engineers that will be required to certify that CCR units
meet the requirements of the rule, with more precise and objective
criteria. These criteria reflect the engineering specifications
necessary to prevent liner failures resulting from improper design and
construction and to ensure that the liner will continue to perform
correctly. These provisions will ensure not only that the liner is
properly designed and constructed, but also that the system will
continue to safely perform throughout the landfill's active life and
through post closure care. The criteria have been adopted from the
technical provisions proposed under the subtitle C provisions for CCR
landfills, and are consistent with design requirements set forth for
hazardous waste landfills regulated under part 265 of RCRA, as well as
existing guidance and recognized good engineering practices for the
design and construction of MSWLFs.\75\
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\75\ ``Technical Guidance Document: Quality Assurance and
Quality Control for Waste Containment Systems.'' U.S. Environmental
Protection Agency. Risk Reduction Engineering Laboratory, Office of
Research and Development, Cincinnati, OH 45268. EPA/600/R-93/182.
September 1993.
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Specifically, the Agency is modifying the composite and alternative
liner design requirements by requiring the composite or alternative
liner to be chemically compatible with the CCR and of adequate strength
and thickness to prevent failure. The liner system must also provide
appropriate shear strength between the two components to prevent
sliding of the upper component. In addition, the Agency is requiring
that liners be placed on an adequate foundation and installed to cover
all areas that might come into contact with the CCR.
For new CCR landfills, which are required to have a leachate
collection and removal system designed and operated to maintain less
than a 30 centimeter depth of leachate, the Agency is also requiring,
that the leachate collection and removal system be constructed of
sufficient strength and thickness to prevent collapse from the pressure
of the CCR and to minimize clogging during the active life and post
closure care period.\76\
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\76\ Hardin, PE, Christopher D, and Perotta, PE Nick L.
``Operations and Maintenance Guidelines for Coal Ash Landfills--Coal
Ash Landfill are NOT the Same as Subtitle D Solid Waste Landfills''.
Presented at the 2011 World of Coal Ash Conference; May 9-12, 2011
in Denver, Colorado. http://www.flyash.info/2011/127-Hardin-2011.pdf.
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4. Vertical Expansions of New and Existing CCR Landfills and All
Lateral Expansions
In the proposed rule, EPA stated that CCR landfills could
vertically expand without retrofitting, in order to alleviate concerns
with regard to CCR disposal capacity in the short term. In the few
comments to the proposed rule which mentioned vertical expansions of
landfills, commenters requested that the Agency clarify the design
standards that vertical expansions would have to meet. Information
collected to date, which is included in the docket supporting the final
rule, leads the Agency to conclude there are no issues unique to
vertical expansions of CCR landfills that warrant modifications to the
technical standards
[[Page 21373]]
being promulgated in this rule. Therefore, vertical expansions of
existing CCR landfills are not subject to the provisions governing new
units, but are subject to all applicable requirements for existing CCR
landfills. To be clear however, while the location requirements
relating to the placement above the water table, wetlands, fault areas,
and seismic impact zones do not apply to existing CCR landfills, all of
these restrictions apply to lateral expansions of existing CCR units,
as well as new CCR units. Consequently, under this rule, owners or
operators of existing CCR landfills can continue to vertically expand
their existing facilities in these locations, but must comply with the
provisions governing new units if they wish to laterally expand.
5. Construction of New CCR Landfills or Any Lateral Expansion Over an
Existing CCR Unit
On August 2, 2013, EPA published a NODA that among other things,
solicited comment regarding a particular type of CCR management unit
described by some commenters in the proposed rule as ``overfills'' (see
78 FR 46940). Overfills are CCR landfills constructed over a closed CCR
surface impoundment. As discussed in the NODA, in developing the
proposed rule, EPA was not aware that CCR was managed in this fashion
and so did not either evaluate this specific management scenario or
propose technical requirements specifically tailored to this type of
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. Information collected since the proposal
confirmed that the practice of constructing overfills for the disposal
of CCR is conducted with some regularity, and raised questions as to
whether overfills would be effectively regulated under the proposed
technical requirements of the rule. In the NODA, to aid in the
development of final technical requirements, EPA solicited data and
information that directly addressed existing engineering guidelines or
practices applicable to this units, as well as any regulatory
requirements governing the siting, design, construction, and long-term
protectiveness of these units for the disposal of CCR.
The Agency received numerous comments on the NODA. The majority of
commenters agreed that overfills are commonly employed to allow
continuing use of CCR disposal sites and to avoid the need to develop
CCR management units at other sites. Some commenters added that: (1)
The engineering design of an overfill can increase the stability of the
underlying surface impoundment or landfill; (2) the use of an overfill
facility reduces the need for new infrastructure construction; and (3)
an overfill avoids having to transport CCR significant distances for
off-site disposal.
Other commenters mentioned that several states had experience with
overfills and have applied requirements such as liner systems,
monitoring wells, and stormwater modeling on a case-by-case basis using
best engineering practices. They added that overfills pose unique
construction and operational issues depending on the site and the
characteristics of the underlying unit, and that the construction of
these units will therefore vary to account for these conditions.
Commenters identified several issues requiring additional attention
during design and construction of overfills including seismic and
static liquefaction, settlement, foundation improvement, partial
overfills, groundwater upwelling, groundwater monitoring, and
wastewater infrastructure.
Upon review of these comments and further evaluation, the Agency
has concluded that while there may be technical issues relating to the
design, construction, and maintenance of overfills, the technical
standards for CCR landfills are sufficiently flexible that no
modifications are necessary to accommodate such units. For example,
while the design and construction of groundwater monitoring systems may
be technically more challenging, the final standards already allow for
the construction of a multi-unit system. The performance standards and
technical specifications laid out in the technical criteria developed
for this rule are equally as applicable to overfills (and as
protective) as to other new units. In essence, EPA is retaining the
approach from the proposal that overfills will 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. Thus, overfills cannot be constructed unless the underlying
foundation--i.e., the existing CCR surface impoundment has first been
dewatered, capped, and completely closed. And because overfills are
considered to be ``new CCR landfills,'' the design and construction of
such units must comply with the technical requirements that address
foundation settlement, overall and side slope stability, side slope and
subgrade reinforcement, and leachate collection and groundwater
monitoring system requirements, which will all need to be evaluated
independent of the underlying CCR unit to ensure that the overfill
design is environmentally protective. This evaluation must also be
certified by a qualified professional engineer.
Under the location standards applicable to new CCR units, subgrade
soils must be capable of providing stable structural support to the new
liner system. A foundation composed of unconsolidated materials, such
as CCR that is susceptible to slip-plane failure, is an unstable area
(man-made) and, under provisions of this rule, is therefore a
prohibited location for new CCR units. The TVA Kingston ash fill
failure was at least partly attributable to slip-plane failure of
saturated CCR that made up the subgrade and foundation beneath the
unit.
Similarly, prudent and standard engineering practice for new CCR
landfills requires that the base and side slopes of the overlying CCR
landfill be able to maintain the structural integrity of the unit. If
necessary, the subgrade should be reinforced with a geotextile fabric,
or otherwise improved, to stabilize existing CCR in the underlying unit
and to minimize tensile strain in the liner system. Slopes should be
reinforced to prevent downhill sliding and to protect the leachate
drainage system.
EPA is aware from comments that at least one facility is
consolidating wet CCR in an active CCR surface impoundment through
placement of dry ash over the wet CCR, and thereby converting the
impoundment to a dry landfill, without stabilizing the CCR in the unit
or capping the unit. This practice will no longer be permitted under
the final rule criteria. Although no modifications were determined to
be necessary to the individual technical criteria, EPA has added
specific provisions that clarify the status of overfills, and clearly
prohibit construction of a CCR landfill over a CCR surface impoundment
unless the CCR in the underlying unit has first been dewatered and the
unit is capped and completely closed. Dewatering, capping and closure
of the underlying CCR unit prior to construction of the overlying CCR
landfill renders the CCR overfill less susceptible to slip-plane
failure. Conversion of an impoundment to a landfill without these
measures involves a complex construction process that is highly site
specific; EPA was unable to develop sufficiently objective performance
standards that could be
[[Page 21374]]
independently verified outside of a supervised permit program. Because
this rule is self-implementing EPA is, therefore, prohibiting
construction of new CCR landfills over operational CCR surface
impoundments to prevent the creation of structurally unstable units
that could lead to catastrophic failures.
E. Design Criteria--Structural Integrity
Under the design criteria requirements, EPA proposed to establish
structural stability standards for existing and new CCR surface
impoundments and lateral expansions of these units based on a
combination of existing federal programs and requirements applicable to
dam safety. The proposed rule was largely based on the requirements
promulgated for coal slurry impoundments regulated by the MSHA at 30
CFR 77.216. (See 75 FR 35176.) EPA also developed aspects of the
proposal based on the USACE and FEMA's dam safety programs. Consistent
with the MSHA requirements, EPA proposed that existing and new CCR
surface impoundments that could impound CCR to an elevation of five
feet or more above the upstream toe of the structure and have a storage
volume of 20 acre feet or more, or that impound CCR to an elevation of
20 feet or more above the upstream toe of the structure would be
required to provide detailed information on the history of construction
of the existing CCR surface impoundment and to meet certain performance
standards. Specifically, facilities would need to (1) develop plans for
the design, construction, and maintenance of existing impoundments, (2)
conduct periodic inspections by trained personnel knowledgeable in
impoundment design and safety, and (3) provide an annual certification
by an independent registered professional engineer that all
construction, operation, and maintenance of impoundments is in
accordance with the approved plan.
EPA also proposed to require the facility to obtain certification
from a professional engineer that the ``design of the CCR surface
impoundment is in accordance with current, prudent engineering
practices for the maximum volume of CCR slurry and CCR wastewater which
can be impounded therein and for the passage of run-off from the design
storm which exceeds the capacity of the CCR surface impoundment. To
support this performance standard, EPA proposed to require the facility
to conduct specific analyses, and to provide information on critical
structures. This includes the proposed requirements to compute the
minimum factor of safety for slope stability of the retaining
structures of the unit, including the methods and calculations used to
determine each factor of safety, and to provide information on the
physical and engineering properties of the foundations of the CCR
surface impoundment, any foundation improvements, drainage provisions,
spillways, diversion ditches, outlet instrument locations and slope
protections, and area capacity curves. EPA proposed to require more
extensive information from new CCR surface impoundments addressing the
design, construction, and maintenance of the new CCR unit, recognizing
that such information may not be available for existing units.\77\ In
addition, EPA proposed to require existing and new CCR surface
impoundments of a specified size to calculate and report the hazard
potential classification of the unit. Finally, EPA proposed that any
CCR surface impoundments classified as having a high or significant
hazard potential, as certified by an independent registered
professional engineer, be required to develop and maintain an Emergency
Action Plan defining the responsible persons and actions to be taken in
the event of a dam safety emergency.
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\77\ In the proposed rule under proposed Sec. 257.71--Design
criteria for existing CCR surface impoundments, the Agency only
required the hazard potential classification for which the facility
is designed and a detailed explanation of the basis for the
classification (Sec. 257.71(d)(1)) ``as may be available'' (Sec.
257.71(d)). Similarly the computed minimum factor of safety for
slope stability of the CCR retaining structure(s) and the analyses
used in the determination (Sec. 257.71(d)(11) ``as may be
available'' (Sec. 257.71(d)).
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The Agency solicited comment on a number of issues relating to the
proposed structural stability requirements. In particular, the Agency
solicited comment on the scope of these requirements and whether they
should apply to all CCR surface impoundments regardless of height and/
or storage volume or whether EPA should adopt, as proposed and
consistent with the MSHA requirements, the size cut-off described in
the proposed rule; i.e., impounding CCR to an elevation of five feet or
more above the upstream toe of the structure and have a storage volume
of 20 acre feet or more, or impounding CCR to an elevation of 20 feet
or more above the upstream toe of the structure.
EPA also solicited comment on several alternative strategies for
regulating the structural stability of CCR surface impoundments in lieu
of regulation under RCRA subtitle D. The first alternative involved
using NPDES permits rather than RCRA regulations to address dam safety
and structural integrity. The second strategy would eliminate the
structural integrity requirements from the RCRA subtitle D rule and,
instead, have EPA establish and fund a program for conducting annual
(or at some other frequency) structural stability assessments of CCR
surface impoundments having a ``high'' or ``significant'' hazard
potential rating as defined by criteria developed by the USACE for the
NID. EPA would conduct these assessments and, using appropriate
authorities already available under RCRA, CERCLA, and/or the Clean
Water Act, would require facilities to respond to issues identified
with their CCR surface impoundments. The rationale behind this
suggested approach was that annual inspections would be far more cost
effective than the phase-out of CCR surface impoundments--approximately
$3.4 million annually for annual assessments, as compared to the $876
million annual cost of a rule that also phased out CCR. EPA also
solicited comments on the effectiveness of this approach in ensuring
the structural integrity of CCR surface impoundments. (See for example:
75 FR at 35176, 35223.)
On October 21, 2010, EPA published a NODA announcing that EPA
intended to consider the information that had been developed through
the Agency's Assessment Program as part of the CCR rulemaking. The NODA
described the Assessment Program, and solicited comment on ``the extent
to which both the CCR surface impoundment information collection
request responses and assessment materials on the structural integrity
of these impoundments should be factored into EPA's final rule on the
Disposal of Coal Combustion Residuals from Electric Utilities.'' (See
75 FR 35128.) This included the responses to information requests that
EPA originally sent to electric utilities, as well as reports and
materials related to the site assessments developed through the
Assessment Program. At that time, EPA had completed the assessments and
the final reports for 53 units. On August 2, 2013, EPA published
another NODA soliciting public comment on the additional assessments
that had been completed since the 2010 NODA. In all, this included
draft and final reports for a total of 522 units and 209 facilities.
EPA again solicited comment on the extent to which this information
should be taken into account as part of this rulemaking.
EPA received numerous comments on the proposed structural stability
requirements. Many of these fell within two general areas: (1) EPA's
approach of
[[Page 21375]]
establishing the structural stability requirements, along with EPA's
proposed reliance on MSHA's size thresholds to determine the
applicability for the majority of structural stability requirements;
and (2) the level of detail laid out in the technical criteria
themselves.
With respect to the overall regulatory approach, the majority
supported both the concept of structural stability requirements for
existing and new CCR surface impoundments, and the adoption of the MSHA
size threshold for complying with the majority of the structural
stability requirements. EPA received comments from a number of state
entities (the Association of State Dam Safety Officials (ASDSO) and the
Association of State and Territorial Solid Waste Management Officials
(ASTSWMO)) suggesting that EPA incorporate federal dam safety
guidelines rather than rely solely on MSHA's dam safety guidelines.
Commenters were concerned that the MSHA regulations ``only exist to
protect miners on mine property, and not the downstream public.'' They
urged that any EPA regulation also include consideration of hazards to
the downstream public. These commenters also requested that EPA
``incorporate specific safety standards consistent with the Federal
Guidelines for Dam Safety,'' referencing standards contained in FEMA
documents 93, 333, 64, 94 and 65.
Little support was expressed for the alternative strategies
presented in the proposal for addressing structural stability. Some
comments were received suggesting additional alternatives. One
commenter suggested that EPA consider limiting the volume of ``primary
containment ponds'' to 10 acre-feet, reasoning that this provision
would likely eliminate much of the concern regarding catastrophic
failures, like TVA, and actually reduce the amount of slurry released
in the event of a structural failure. Other commenters argued that EPA
should limit the structural requirements to CCR surface impoundments
both meeting the proposed size threshold and having a hazard potential
classification of ``high'' or ``significant'' hazard potential rating
based on FEMA's criteria for dam safety.\78\ Commenters argued that a
failure of a CCR surface impoundment with a ``low hazard potential
classification'' posed only a low risk for on-site economic or
environmental losses and would avoid the imposition of costly,
arbitrary and unnecessary regulatory burdens on the owner or operator.
In addition, commenters contended that this regulatory approach would
be consistent with many state dam regulatory programs that apply dam
integrity standards only to ``high'' or ``significant'' potential
hazard facilities and would promote consistency with existing state
controls.\79\ Several commenters also suggested that EPA consider
adding regulatory language or preamble discussion to assist owners or
operators of CCR surface impoundments in interpreting the specific
technical requirements in the regulation.
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\78\ See: Federal Guidelines for Dam Safety: Hazard Potential
Classification for Dams, Federal Emergency Management Agency
(``FEMA'') (reprinted January 2004). Under the FEMA dam safety
classification system, a ``low hazard potential classification''
means that failure or mis-operation of the impoundment ``results in
no probable loss of human life and low economic and/or environmental
losses. Losses are principally limited to owner's property.''
\79\ See e.g., New Mexico Rules and Regulations Governing Dam
Design, Construction and Dam Safety (e.g., requiring dam site
security, an instrumentation plan for monitoring and evaluating dam
performance, and an operation and maintenance manual and emergency
action plan only for dams with a high or significant hazard
potential); see also NMAC sections 19.25.12.11(G)-(J).
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EPA disagrees with the suggestion that the Agency finalize a
mandatory size limitation for operating CCR surface impoundments. While
limiting the volume of CCR surface impoundments to ten acre-feet would
limit the volume of CCR released in the event of a structural failure,
limiting the size of CCR surface impoundments to 10 acre-feet may not
always be practicable; nor does EPA believe that such a restriction is
truly necessary to ensure that the section 4004(a) standard will be
met. Many CCR surface impoundments are much larger than ten acre-feet
and have been operating for many years without a structural failure.
While EPA acknowledges that this fact in no way guarantees that a
failure will not occur, the Agency is convinced that the implementation
of all of the combined regulatory requirements in this rule (e.g.,
location criteria, structural integrity, inflow design flood controls
and inspection requirements) provides the necessary safeguards that
will ensure that CCR surface impoundments are designed, constructed,
operated, and maintained to minimize the risks associated with a
catastrophic release of impounded CCR due to structural failure. While
limiting the size of CCR surface impoundments will reduce risks because
there will be a lower volume of waste in the unit, the Agency is not
convinced that, in practice, such a requirement would meaningfully
reduce the risks at many facilities. EPA expects that such a
restriction would only cause facilities to construct either several
small units or a multi-unit system. Failure of one unit can lead to
progressive failure of other units in the system, and thus, ultimately
this may not reduce the total volume of waste that could be released
into the environment. EPA also disagrees that structural stability
requirements should only apply to ``high'' or ``significant'' potential
hazard facilities. Similarly, EPA disagrees with commenters that
structural integrity requirements should only apply to owners or
operators of CCR surface impoundments that both meet the specified size
criteria and have either a high hazard or significant hazard potential
classification. Even for CCR units with a low hazard potential
classification, EPA is still concerned with the risk to human health
and the environment from any structural failure of a CCR unit. As
discussed previously in Unit VI.C of this document, the environmental
effects of the failure of even a low hazard potential impoundment can
still be significant, given the size of these units, the nature of the
material in the unit, and the potential volumes that could be released.
Contamination of surface waters and groundwater resources is still a
significant threat when CCR units of this size fail, irrespective of
the lower likelihood that a release will affect human health, as
reflected in the low hazard potential classification. Consequently, one
focus of this rule is preventing any release, catastrophic or
otherwise, of CCR to the environment, and limiting all structural
stability requirements commenters suggested would be inconsistent with
this goal.
The Agency agrees that the final regulation should incorporate
provisions that address the hazards to the downstream public.
Accordingly, the final rule incorporates a number of provisions
consistent with the FEMA Guidelines, including a requirement that
owners and operators know each CCR unit's hazard potential
classification, as this is part of owners and operators' responsibility
to actively ensure the integrity of their CCR unit(s) and that their
operations do not endanger human health or the environment. EPA also
agrees that the requirements should be differentiated based on the
potential severity of the consequence posed by the unit's failure, and
therefore the hazard potential can be relevant in determining the
stringency of particular requirements. However, the hazard potential
is, at best, only an indicator of the potential damage that may be
incurred from the
[[Page 21376]]
structural failure of the unit, and so EPA has generally not relied on
hazard potential as the sole basis for determining the structural
integrity requirements that are necessary for a CCR unit.\80\ Although
the hazard potential classification can serve as a proxy for the amount
of water and CCR that could potentially be released to the environment
in the event of a CCR surface impoundment failure, the amount of water
and CCR potentially released is more directly correlated to the actual
height and storage volume of the CCR surface impoundment. In addition,
it is widely recognized that the hazard potential classification of an
individual unit can often fail to encompass the overall magnitude of a
release on human health and the environment. CCR surface impoundments
can frequently be part of a facility's run-off system that is
responsible for routing surface waters to a drainage basin or
watershed. As previously discussed, the failure of a CCR unit that is
part of such a system has the potential to inundate downstream surface
water units and water bodies, resulting in progressive failures of
other units, including other CCR surface impoundments at the facility,
which in turn can have a much greater environmental impact than the
failure of just the one unit for which a hazard potential
classification was made. Using a ``height and/or volume'' threshold to
determine the applicability of the structural integrity criteria
ensures that CCR units with the potential to cause these progressive
failures in downstream surface water management units are appropriately
overseen and regulated. CCR surface impoundments exceeding a specified
height and/or capacity threshold also pose a higher degree of risk of
release of CCR to the environment than other types of CCR surface
impoundments (e.g., incised or ``small'' CCR units). For all of these
reasons, the size of the CCR unit, rather than the hazard potential
classification, is the best indicator of potential severity of release
of CCR to the environment and should therefore be the primary basis on
which structural integrity criteria are applied. As such, EPA is
promulgating, as proposed, a regulatory strategy that establishes some
requirements for all CCR surface impoundments, but relies primarily on
size as the basis for determining the majority of the specific
technical criteria for minimizing risk from structural failure.
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\80\ For example, EPA relied on hazard potential to trigger the
requirement for an Emergency Action Plan, which will identify the
actions necessary to minimize damage to life and property. As damage
to life and property are the factors directly addressed in hazard
potential classification, reliance on the classification is an
appropriate determinant for this requirement.
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Regarding the second major issue presented in the comments, as
noted previously, EPA received comments requesting the Agency to
provide either more specific regulatory language or further guidance in
the preamble, so that parties could certify that the CCR surface
impoundment met the rule's overall performance standard. Commenters
contended that guidance would be particularly critical if EPA did not
establish more specific technical criteria, as owners or operators will
be vulnerable to lawsuits for non-compliance. In addition, state
officials requested that EPA adopt more specific standards consistent
with those adopted under FEMA's Federal Guidelines for Dam Safety. As
discussed throughout this section in more detail, EPA has adopted
clarifications to the regulation, particularly in the sections on
structural stability and safety factors, to more precisely lay out the
specific technical standards that are considered to be the ``generally
accepted and recognized good engineering practices'' that must be met.
EPA relied extensively on existing MSHA requirements, FEMA's Federal
Guidelines for Dam Safety, and guidance issued by the U.S. Army Corps
of Engineers, as they were applied throughout EPA's Assessment Program,
to supplement the technical detail originally contained in the proposed
rule. EPA has also modified the criteria, where necessary, so they
better reflect the information and experience developed through the
Assessment Program, e.g., the engineering criteria used to evaluate the
CCR surface impoundments and to make recommendations to improve the
structural stability of the units.
In this rule, the Agency is finalizing structural integrity
criteria to ensure that CCR surface impoundments are designed,
constructed, operated, and maintained in a manner that ensures the
structural integrity of the CCR surface impoundment throughout its
active life (i.e., through closure of the CCR unit), detects actual or
potential releases of CCR as early as practicable, and prevents
catastrophic failures. Many of the requirements have been adopted
without revision from the proposed rule for some requirements, however,
as noted EPA has provided additional language to clarify the final
regulation. These clarifications have been made in response to comments
urging EPA to finalize regulatory requirements that were more precise
or sufficiently objective (i.e., a specific standard of performance) to
allow a qualified professional engineer to reasonably certify that the
requirements of the rule have been met. These specific regulatory
clarifications are discussed throughout this section.
A further change is that the final rule requires facilities to
periodically reassess several elements of the structural integrity
performance standards (i.e., re-assess every five years). Finally, in
contrast to the programs established by MSHA and FEMA, the final rule
establishes certain minimum requirements for all CCR surface
impoundments. This is based on the fact that, unlike the dams regulated
under other federal programs, the material in all CCR units is harmful,
so even small releases can present environmental and human health
concerns. But the majority of the structural integrity requirements
vary depending on whether the CCR surface impoundment or lateral
expansion exceeds particular size thresholds. The rulemaking record
clearly demonstrates that these larger CCR surface impoundments present
a greater risk of catastrophic failure, and therefore require a more
robust set of regulatory requirements to ensure their continued
structural integrity. The final rule's implementation of a size
threshold for structural integrity requirements is consistent with the
approach taken by the majority of dam safety programs and regulation.
These modifications are being made to better reflect the
protections necessary to ensure that: (1) Structural integrity is
maintained throughout the operational life of a CCR unit; and (2) the
risk of catastrophic failure is minimized. The changes being made in
this rule have been directly influenced by comments received, the
observations and the conclusions drawn from EPA's Assessment Program,
and the recommendations made by both MSHA and FEMA regarding dam
safety. They are also generally consistent with the regulatory
requirements of many other state and other federal agencies regulating
dam safety.
1. Overview of Technical Criteria
Except for incised units, owners or operators of all existing and
new CCR surface impoundments and any lateral expansion of these CCR
units are required to: (1) Place a permanent identification marker on
or immediately adjacent to the CCR units with the name associated with
the CCR unit and the name of the owner or operator of the CCR unit; (2)
conduct an initial hazard potential assessment to determine the current
hazard potential classification of
[[Page 21377]]
the CCR unit; (3) conduct periodic (i.e., every five years) hazard
potential re-assessments; (4) develop an Emergency Action Plan (EAP) if
the hazard potential classification of the CCR unit is classified as
either a high- or significant hazard potential; and (5) maintain the
CCR unit with vegetated slopes or other forms of slope protection.
Owners or operators of CCR surface impoundments that either have a
height of five feet or more and a storage volume of 20 acre feet or
more, or a height of 20 feet or more are required to comply with the
following additional structural integrity criteria: (1) Document the
design and construction of the CCR surface impoundment; (2) conduct an
initial structural stability assessment; (3) conduct an initial safety
factor assessment; and (4) conduct periodic (not to exceed five years)
structural stability and safety factor assessments.\81\ Owners and
operators of CCR units that fail to make the safety factor assessment
or fail to meet the factors of safety specified in the rule must stop
placing CCR in the unit and initiate closure.
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\81\ Height means the vertical measurement from the downstream
toe of the CCR surface impoundment at its lowest point to the lowest
elevation of the crest of the CCR surface impoundment.
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The structural integrity requirements of the final rule require the
compilation of construction history of the existing CCR surface
impoundment within one year of the effective date of the rule.
Within two months of the effective date of the rule, the structural
integrity requirements (Sec. 257.73) state that the owner or operator
must install a permanent marker on the existing CCR surface
impoundment. This timeframe is being promulgated as proposed, as EPA
did not receive comments on the timeframe for installation of a
permanent marker.
2. Structural Integrity Requirements Applicable to All CCR Surface
Impoundments
a. Hazard Potential Classification Assessments
A hazard potential classification provides an indication of the
potential for danger to life, development, or the environment in the
event of a release of CCR from a surface impoundment. In this rule, an
owner or operator of any existing or new CCR surface impoundment or any
lateral expansion of a CCR surface impoundment must determine which of
the following hazard potential classifications characterizes their
particular CCR unit.\82\ These classifications are: a high hazard
potential CCR surface impoundment, a significant hazard potential CCR
surface impoundment; and a low hazard potential CCR surface impoundment
and are defined as follows:
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\82\ Incised CCR surface impoundments are not required to
perform a hazard potential classification assessment because hazard
potential classifications are based on the failure of a dam, diked
surface impoundment, or other water-retaining structure and the
adverse incremental impacts that may result from the failure.
Because incised CCR surface impoundments, as defined in this rule,
do not have a diked portion which may fail, the incised CCR surface
impoundment cannot have a hazard potential classification. This
final rule covers CCR surface impoundment failures and releases due
to other potential failure modes (i.e., which do not pose an
immediate catastrophic threat to human health or the environment),
such as a release through the liner of the unit or through failure
of underlying structures, in the location restrictions, design
criteria, and operating criteria of the rule.
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High hazard potential CCR surface impoundment means a
diked surface impoundment where failure or mis-operation will probably
cause loss of human life.
Significant hazard potential CCR surface impoundment means
a diked surface impoundment where failure or mis-operation results in
no probable loss of human life, but can cause economic loss,
environmental damage, disruption of lifeline facilities, or impact
other concerns.
Low hazard potential CCR surface impoundment means a diked
surface impoundment where failure or mis-operation results in no
probable loss of life and low economic and/or environmental losses.
Losses are principally limited to the surface impoundment's owner's
property.
Owners and operators of all CCR surface impoundments must determine
each unit's hazard potential classification through a hazard potential
classification assessment. Hazard potential classification assessments
must be certified by a qualified professional engineer and
documentation must be provided that supports the basis for the current
hazard potential rating. An initial hazard potential assessment must be
conducted within one year of the effective date of the rule for
existing units and prior to the initial receipt of CCR in the unit for
new units or lateral expansions. Hazard potential classifications,
structural stability assessments, and safety factor assessments require
significant planning and coordination, such as detailed site-work and
investigations, modeling and analysis, design and construction planning
and implementation, and post-construction investigation. Many of these
efforts take several months to complete, compounded by the fact that
much of the work cannot be completed in cold-weather or heavy-rain
seasons.
As commenters noted, it is imperative that the owner or operator
maintain a current assessment of a unit's hazard potential
classification, rather than develop a single one-time classification
``for which the facility was designed.'' (See proposed Sec.
257.71(d)(10).) Moreover, FEMA recommends that a unit's hazard
potential classification should be reviewed no less frequently than
every five years in order to take into account changes in the factors
that are the basis for which a hazard potential classification is made
(e.g., changed reservoir or downstream development).\83\ Based on this
information, EPA determined that a periodic reassessment of a CCR
surface impoundment's hazard potential classification is a necessary
component in maintaining the accuracy of the unit's hazard potential
classification, as well as the overall safety of the unit.
Consequently, EPA is requiring the owner or operator of a CCR surface
impoundment to reassess the hazard potential classifications of their
CCR unit and to have that classification, certified by a qualified
professional engineer, at least every five years.
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\83\ See: Federal Guidelines for Dam Safety: Hazard Potential
Classification for Dams, Federal Emergency Management Agency
(``FEMA'') (reprinted January 2004). Under the FEMA dam safety
classification system, a ``low hazard potential classification''
means that failure or mis-operation of the impoundment ``results in
no probable loss of human life and low economic and/or environmental
losses. Losses are principally limited to owner's property.''
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EPA has continued to rely on FEMA requirements as the basis for
general CCR surface impoundment safety requirements, e.g., inflow
design flood selection, inspection criteria, earthquake analyses and
design for several reasons: (1) Structural failure risks for CCR
surface impoundments are similar to the risks from the larger dam
universe for which FEMA intends its guidance; and (2) risks to
downstream development from CCR surface impoundment failures are equal
or similar to those presented by other types of dams' failures.
In this rule, hazard potential classifications define the
consequences in the event of a failure of a CCR surface impoundment.
The classification is separate from the structural stability of a CCR
unit or the likelihood of the impoundment failing. A surface
impoundment that meets or exceeds all of the structural stability
criteria and safety factors of this rule would still be classified as
``high hazard potential'' if, in the event of failure, loss of life
would be likely to occur.
[[Page 21378]]
The hazard potential classification of the CCR surface impoundments
is an essential element in determining how to properly design,
construct, operate, and maintain a CCR surface impoundment. As such,
the final rule bases the stringency of some technical requirements, in
part, on the potential for adverse impacts on the failure of the CCR
unit, as quantified by the hazard potential classification of this
rule. Specifically, the requirements become more stringent as the
potential for loss of life and/or property damage increases. This is
reflected in both the criteria established under the structural
stability assessments, .e.g., where the combined capacity of all
spillways must adequately manage flow during and following peak
discharge from the specified inflow design flood based on the hazard
potential classification of the unit--and in the hydrologic and
hydraulic capacity requirements, which are similarly specified based on
the hazard potential classification of the CCR unit (see Sec. Sec.
257.73(d)(2)(v); 257.74(d)(2)(v) and 257.82 respectively).\84\
Additionally, high and significant hazard potential CCR surface
impoundments must develop a written Emergency Action Plan which
establishes emergency action procedures in the event of a previously
defined emergency.
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\84\ A high-hazard potential impoundment, for example, must be
designed with sufficient spillway capacity to manage flow from the
probable maximum flood, whereas a low hazard potential unit need
only account for a 100 year flood.
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b. Emergency Action Plan
An Emergency Action Plan (EAP) is a document that identifies
potential emergency conditions at a CCR surface impoundment and
specifies actions to be followed to minimize loss of life and property
damage. Typically an EAP includes: (1) Actions the owner or operator
will take to moderate or alleviate a problem at the CCR unit; (2)
actions the owner or operator will take, in coordination with emergency
management authorities, to respond to incidents or emergencies related
to the CCR surface impoundment; (3) procedures owner or operators will
follow to issue early warning and notification message to responsible
downstream emergency management authorities; (4) inundation maps to
allow owners and operators of the CCR unit and emergency management
authorities to identify critical infrastructure and population-at-risk
sites that may require protective measures, warning and evacuation
planning; and (5) delineation of the responsibilities of all those
involved in managing an incident or emergency and how the
responsibilities should be coordinated and implemented.\85\ As FEMA
guidance suggests, and EPA reiterates here, the level of detail in the
EAP should be commensurate with the potential impact of a surface
impoundment failure or other operational incident (e.g., its hazard
potential classification). A surface impoundment with low potential
hazard impact should not require an extensive evaluation or be subject
to an extensive planning process, while high-hazard and significant
hazard surface impoundments would typically require a much larger
emergency planning effort. In addition, high hazard and significant
hazard surface impoundments tend to involve more entities that must
coordinate responsibilities and greater efforts would generally be
necessary to effectively respond to an incident with such a surface
impoundment than to a similar incident involving a low-hazard surface
impoundment. As such, every EAP must be tailored to specific site
conditions.
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\85\ See: ``Federal Guidelines for Dam Safety: Emergency Action
Planning for Dams,'' FEMA 64/July 2013.A.
---------------------------------------------------------------------------
EPA is promulgating, as proposed, a provision that requires any CCR
surface impoundment that is determined by the owner or operator,
through the certification by a qualified professional engineer, to be
either a high hazard potential CCR surface impoundment or a significant
hazard potential CCR surface impoundment to prepare and maintain a
written EAP. While EPA agrees that the level of detail contained in an
EAP should be commensurate with its hazard potential rating, EPA has
concluded that at a minimum, the EAP must: (1) Define responsible
persons and the actions to be taken in the event of a CCR surface
impoundment-safety emergency; (2) provide contact information for
emergency responders, including a map which delineates the downstream
area which would be affected in the event of a failure and a physical
description of the CCR surface impoundment; (3) include provisions for
an annual face-to-face meeting or exercise between representatives of
the owner or operator of the CCR unit and the local emergency
responders; and (4) define conditions that initiate implementation of
the EAP and define emergency response actions which must be implemented
upon the detection of these conditions, including all persons
responsible for the implementation of the emergency response actions.
The first three of these four requirements were proposed as part of the
EAP and are being promulgated without revision. The fourth requirement,
which requires facilities to explicitly define the conditions by which
the EAP is activated, was inadvertently omitted from the proposal, and
is being added to the final rule to ensure that the EAP includes at
least the basic requirements necessary to function effectively.
The owner or operator must amend the written EAP whenever there is
a change in conditions that would substantially affect the written EAP
in effect, e.g., change in personnel, change in emergency responder
contact information, a change in the CCR surface impoundments'
designation from a significant-hazard potential classification to a
high-hazard potential classification, or the vertical expansion of the
CCR unit (i.e., increase in the amount of CCR that potentially could be
released.) Consistent with the requirements for hazard potential
classification reassessments, the Agency is requiring, at a minimum
that the EAP be reassessed at least every five years. If an owner or
operator determines that, as part of it periodic hazard potential re-
assessment that the unit no longer is classified as a high-hazard or a
significant-hazard potential classification, but is now classified as a
low hazard potential CCR surface impoundment, then the owner or
operator of the CCR unit is no longer subject to the requirement to
prepare and maintain an EAP, effective when such documentation is
placed into the facility's operating record. If, however, during the
reassessment effort it is determined that an existing CCR unit
classified as a low hazard potential has been re-classified as either a
significant-hazard or high-hazard potential, the owner or operation
must prepare an EAP for the CCR unit within six months of completing
such a periodic hazard potential re-assessment.
Although the owner or operator is responsible for developing and
maintaining the EAP, which must be certified by a qualified
professional engineer, the plan should be developed and implemented in
close coordination with all applicable emergency management
authorities, including the appropriate local, state, and federal
authorities. Generally, these coordination efforts, along with the EAP,
provide emergency management authorities with the necessary information
to facilitate the implementation of their responsibilities, and so, it
is vital that the development of the EAP be coordinated with emergency
responders and other entities, agencies, and jurisdictions, as
[[Page 21379]]
appropriate. After the initial EAP has been developed and placed in the
operating record and on the owner or operator's internet site, it
should be periodically reviewed and updated on a regular basis, as it
can become outdated and ineffective. While the Agency is only requiring
the EAP to be re-assessed every five years, it is recommended that the
EAP be reviewed at least annually for appropriateness, accuracy, and
adequacy so as to remain current. EPA recommends that the EAP be
promptly updated to address changes in personnel, contact information
and/or significant changes to the facility or emergency procedures.
Even if no revisions are necessary, the review should be documented.
The initial EAP must be prepared within 18 months from the
effective date of the rule. In order to prepare an EAP, the owner or
operator must accurately and comprehensively identify potential failure
modes and at-risk development, and therefore completion of the
emergency action plan needs to follow the completion of the initial
hazard potential classification, structural stability assessment, and
safety factor assessments, during which this information will be
generated.
c. Vegetated Slopes of Dikes and Surrounding Areas
EPA proposed to require both new and existing CCR surface
impoundments that exceed the MSHA size thresholds to document the slope
protection measures that have been adopted and to compute the minimum
factors of safety for slope stability, in order to support the
certification from an independent professional engineer that the unit
has been designed in accordance with ``generally accepted engineering
standards.'' EPA is promulgating the requirement that all CCR surface
impoundments have adequate slope protection because EPA determined
through the Assessment Program that slope protection is an essential
element in preventing slope erosion and subsequent deterioration of CCR
unit slopes. EPA is requiring slope protection for all units, not just
units exceeding the size threshold of the final rule, because EPA has
identified that slope protection on CCR units is a generally accepted
good practice which reduces the occurrence of erosion, degradation of
surface waters due to run-off from the CCR unit, enhances slope
stability, and that vegetated cover is an easily accomplished practice
in the vast majority of climates where CCR surface impoundments are
located. In conducting the Assessment Program, the protective cover of
slopes of the CCR surface impoundment was determined to be relevant to
the overall condition rating of all units, irrespective of size. This
is consistent with FEMA guidance, which also lays out specifications
for the ideal vegetative cover for a dam. EPA has adopted this
requirement to be consistent with its findings from the Assessment
Program, and in response to comments, and has elaborated on the slope
protection measures necessary to achieve the factors of safety. The
final rule provides performance standards drawn primarily from FEMA
guidance, as applied during the Assessment Program.
All CCR surface impoundments are required to be designed,
constructed, operated, and maintained with adequate slope protection to
protect against surface erosion at the site. Slope protection is
necessary to ensure that dike or embankment erosion does not occur.
Additionally, slope protection is required of all CCR surface
impoundments to maintain the stability of the CCR surface impoundment
slope under rapid drawdown events \86\ and low pool conditions of water
bodies that may abut the CCR surface impoundment and are outside the
control of the owner or operator, e.g., a natural river which the
slopes of the CCR surface impoundment run down to and abut. The slope
protection can act as a stabilizer in the slope of the embankment
during rapid drawdown events. Adequate slope protection can be achieved
in most climates through simple vegetation, typically a healthy, dense
stand of low-growing grass, or other similar vegetative cover. In arid
climates where the upkeep of vegetation is inhibited, alternate forms
of slope protection, including rip-rap, or rock-armor is typically
used. Additional slope protective measures are available and effective
in certain circumstances, including but not limited to rock, wooden
pile, or concrete revetments, vegetated wave berms, concrete facing,
gabions, geotextiles, or fascines.
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\86\ This rapid drawdown is not included in the rule's factors
of safety assessments. The protection against rapid drawdown
requirement of this provision is concerned with the rapid drawdown
of adjacent water bodies acting upon the downstream slope of the CCR
surface impoundment rather than the rapid drawdown of the impounded
reservoir of the CCR surface impoundment acting upon the upstream
slope of the CCR surface impoundment.
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The owner or operator must ensure that the slopes of the CCR
surface impoundment are protected from erosion by appropriate
engineering slope protection measures. It is recommended throughout
embankment technical literature that vegetative cover not be permitted
to root too deeply, precipitating internal embankment issues. The rule
requires a vegetative cover limit to prevent the establishment of
rooted vegetation, such as a tree or a bush on the CCR surface
impoundment slope. EPA has concluded that a vegetative cover of no more
than six inches above the face of the embankment is adequate and is the
uppermost limit for vegetative cover height for this final rule. In
developing this requirement, EPA was strongly influenced by information
contained in the FEMA document entitled, ``Technical Manual for Dam
Owners: Impacts of Plants on Earthen Dams'' \87\ in determining an
appropriate vegetative cover height for CCR surface impoundments. Six
inches represents a vegetative height which prevents any trees, bushes,
or shrubbery from rooting deeply enough to warrant additional removal
measures outside of simple mowing. Furthermore, the height prescribed
by the final rule represents a maximum height of vegetative cover to
allow for adequate observation of the slope of the CCR unit during
inspection. Vegetative cover in excess of six inches above the slope of
the dike would prevent the adequate observation of the slope of the CCR
unit and detection of structural concerns such as animal burrows and
minor sloughs, amongst others concerns. Consistent with FEMA guidance,
as applied during the Assessment Program, other slope protection, such
as rock armoring or vegetated berms, would also be considered
adequate.\88\
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\87\ http://www.fema.gov/media-library-data/20130726-1446-20490-2338/fema-534.pdf.
\88\ http://www.fema.gov/media-library-data/20130726-1446-20490-2338/fema-534.pdf.
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3. Structural Integrity Criteria Applicable to CCR Surface Impoundments
Exceeding a Specific Size Threshold
The structural integrity criteria discussed in this section of the
preamble apply to existing and new CCR surface impoundments and any
lateral expansion with: (1) A height of five feet or more and a storage
volume of 20 acre-feet or more; or (2) a height of 20 feet or more. The
rule defines height as the vertical measurement from the downstream toe
of the CCR surface impoundment at its lowest point to the lowest
elevation of the crest of the CCR surface impoundment. The downstream
toe is defined as the junction of the downstream slope or face of the
CCR surface impoundment with the ground surface. This final rule
considers the lowest elevation of the crest of the CCR
[[Page 21380]]
surface impoundment to be the maximum storage elevation of the
reservoir or pool of the CCR unit, e.g., the invert of the lowest-
elevation spillway. EPA is implementing this size threshold because it
comports with thresholds established by other federal and state
agencies regulating dam integrity and/or safety. Specifically, for the
implementation of the size threshold of this final rule, EPA relied on
the identical size parameters, i.e., height of five feet and capacity
of 20 acre-feet, which is promulgated in MSHA coal slurry impoundment
regulations in 30 CFR 77.216.
In the proposed rule, EPA used the size cut-off promulgated by MSHA
in their dam safety requirements for coal slurry impoundments at 30 CFR
part 77. In proposing this cut-off, EPA reasoned that the MSHA
requirements affecting coal slurry impoundments were directly
applicable and relevant to CCR surface impoundments and provided a size
threshold that, when applied to the rule's structural integrity
criteria, would generally meet RCRA's mandate to ensure protection of
human health and the environment by minimizing the potential for
catastrophic failure. Specifically, EPA proposed that surface
impoundments: (1) Impounding CCR to an elevation of five feet or more
above the upstream toe of the structure and can have a storage volume
of 20 acre-feet or more; or (2) impounding CCR to an elevation of 20
feet or more above the upstream toe of the structure would be subject
to the structural stability criteria. EPA also proposed to define
upstream toe as the junction of the upstream slope of the dam with the
ground surface, with the height of the CCR unit measured from the
upstream toe or water-borne toe of the CCR unit.
While little comment was received on adopting this size threshold
or the accompanying definition of upstream toe, the Agency was
concerned that the size threshold presented in the proposed rule did
not reflect standard measuring protocols used by other federal agencies
and the dam sector in determining the size of a dam or, in the case of
this rule, surface impoundment. Of particular concern to the Agency was
the fact that EPA's own Assessment Program was measuring the height of
a CCR unit from the downstream toe rather than the upstream toe, which
was specified in the MSHA regulatory requirement and the subsequent CCR
proposed rule.
A review of MSHA, FEMA and the USACE regulations and guidance, as
well as the guidance of several state agencies that oversee dam safety,
revealed that dam or surface impoundment height is more appropriately
measured from the downstream and not the upstream toe of the unit. EPA
based this conclusion on the near-universal position of dam safety
guidance that the downstream slope height of the dike is of primary
concern in the design, construction, operation, and maintenance of the
dam or surface impoundment. Virtually all of the dam safety
regulations, including state and federal guidance and regulations, that
EPA reviewed considered measured dam height to be taken from the
downstream slope of the dike. Some of these guidance and regulations
include FEMA ``Federal Guidelines for Dam Safety,'' U.S. Army Corps
``National Inventory of Dams,'' and MSHA Metal and Nonmetal Tailings
and Water Impoundment Inspection requirements in 30 CFR part 56 and
Sec. 57.20010.\89\ This information, coupled with the information on
the methodology used in the Assessments Program, convinced the Agency
that a revised description of the CCR surface impoundment size cutoff
was necessary, specifically requiring the height of the CCR unit to be
measured from the downstream toe.
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\89\ http://www.msha.gov/regs/complian/PILS/2013/PIL13-IV-01.asp.
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a. Design and Construction Information
The first element of the structural integrity criteria applicable
to CCR units exceeding the specified size threshold requires the owner
or operator to compile and place in the operating record design and
construction information pertaining to the CCR unit. Among other
things, this provision requires the following documentation to be
provided by the owner or operator: (1) The name of the owner or
operator of the unit; (2) the name of the unit; and (3) any
identification number assigned by the state. In addition, it requires
that the owner or operator identify: (5) The location of the CCR unit
on a U.S. Geological Survey Map or a topographic map of equivalent
scale; (6) provide dimensional drawings of the CCR unit with pertinent
engineering structures and appurtenances identified; (7) describe the
purpose of the CCR unit; and (8) identify the name and size of the
watershed affecting the CCR unit, if any. Detailed information is also
required documenting: (9) The design and construction of the unit
including dates and descriptions of each zone or stage constructed;
(10) instrumentation used to monitor the operation of the CCR unit,
(11) spillway and diversion design descriptions and construction
specifications; and (12) provisions for surveillance, maintenance and
repair of the CCR unit.
While these requirements apply to both existing and new CCR surface
impoundments, existing CCR surface impoundments are required to compile
this information only ``to the extent available,'' within one year of
the effective date of the rule. Conversely, new CCR surface
impoundments or any lateral expansion must compile all of the
information listed prior to the initial receipt of CCR. For existing
CCR surface impoundments, EPA acknowledges that much of the
construction history of the surface impoundment maybe unknown or lost.
EPA's Assessment Program confirmed that many owners or operators of CCR
units did not possess documentation on the construction history or
operation of the CCR unit. Information regarding construction
materials, expansions or contractions of units, operational history,
and history of events was frequently difficult for the owners or
operators to obtain. The Assessment Program also confirmed the Agency's
initial assumption that this information, in many instances, will be
difficult to compile. Therefore, in this rule, EPA is using the phrase
``to the extent available'' and clarifying that the term requires the
owner or operator to provide information on the history of construction
only to the extent that such information is reasonably and readily
available. EPA intends facilities to provide relevant design and
construction information only if factual documentation exists. EPA does
not expect owners or operators to generate new information or provide
anecdotal or speculative information regarding the CCR surface
impoundment's design and construction history.
There are several other requirements under the design and
construction criteria requiring clarification. First, the Agency is
amending the requirement that all dimensional drawings of the CCR unit
(see Sec. 257.73(b)(vii) and Sec. 257.74(b)(vii)) use a uniform scale
of one inch equals 100 feet. After further consideration, EPA has
deleted this requirement and has replaced the proposed scale of 1 inch
equals 100 feet with the phrase ``at a scale that details engineering
structures and appurtenances relevant to the design, construction,
operation, and maintenance of the CCR unit.'' EPA made this change in
response to comments arguing that this level of detail was unnecessary.
EPA agrees that, given the extremely large variety in the size of CCR
units, a prescriptive scale for all drawings of all CCR units is not
necessary in many cases; this level of detail would be excessive for
most
[[Page 21381]]
units. The Agency is also clarifying, (see Sec. 257.73(b)(2) and Sec.
257.74(b)(2)) that if an owner or operator determines that a
significant change has occurred in the information/documentation
previously compiled under this provision, the owner or operator must
update the relevant information and place it in the operating record.
b. Types of Assessments
A second element of the structural integrity criteria is the
requirement for specific technical assessments of the CCR unit.
Consistent with the requirements outlined in the proposed rule, two
technical assessments are required for all CCR units exceeding the
specified size threshold: (1) A structural stability assessment; and
(2) a safety factor assessment. The owner or operator of an existing
CCR surface impoundment is required to conduct an initial assessment
addressing both structural stability and safety factors within one year
of the effective date of the rule. New CCR surface impoundments or any
lateral expansion of a CCR unit are required to complete the initial
assessment prior to placing CCR into the unit. Following the initial
assessments, EPA is also requiring periodic re-assessments of both a
CCR surface impoundment's structural stability and factors of safety.
EPA proposed to require an annual recertification, but in a departure
from the proposed rule, EPA is only requiring these re-assessments to
be conducted on a regular basis, not to exceed once every five years.
In making this regulatory change, the Agency has relied heavily on the
dam safety guidance established by FEMA in the document titled, Federal
Guidelines for Dam Safety that a formal inspection, including ``. . . a
review to determine if the structures (i.e., CCR surface impoundments)
meet current accepted design criteria and practices . . .'' be taken at
an interval not to exceed five years. EPA has interpreted this guidance
to be applicable to both the structural stability assessment and the
safety factor assessment.
A demonstration must be completed within the assessment period for
the specific type of assessment. This means that, within this timeframe
the owner or operator must demonstrate that the CCR unit meets all of
the requirements of each type of assessment, as certified by a
qualified professional engineer. It also means that the owner or
operator must have taken all measures necessary to bring the unit into
compliance with all of the requirements for assessments of this final
rule within the assessment period. If the owner or operator cannot
demonstrate that the unit meets these factors of safety (or otherwise
fails to comply with the structural stability requirements) within the
appropriate timeframe, the unit must initiate closure.
i. Periodic Structural Stability Assessments
In order to ensure the proper upkeep and operation of the CCR unit,
the owner or operator must demonstrate that the CCR surface impoundment
has been designed, constructed, operated and maintained to provide
structural stability. Specifically, consistent with the proposal, the
final rule requires the owner or operator to demonstrate that the
design, construction, operation, and maintenance of the CCR surface
impoundment is consistent with recognized and generally accepted good
engineering practices for the maximum volume of CCR and water that can
be impounded therein. As discussed previously, EPA has elaborated on
this overall performance standard in response to comments from the
engineers who would be required to make these certifications, urging
EPA to specify more precisely the standards that must be met.
Specifically the final rule focuses on the critical structural aspects
of the CCR surface impoundment that EPA identified in the proposed
rule, and identifies the minimum elements that a professional engineer
must provide engineering details on or otherwise address. In certain
cases, the final criteria identify specific engineering performance
standards. EPA relied on existing MSHA requirements, FEMA dam safety
guidance, and guidance issued by the USACE, as applied throughout EPA's
Assessment Program to develop these criteria. Consistent with the
proposal, these demonstrations must be certified by a qualified
professional engineer. Each of these criteria is discussed in more
detail below.
In addition to implementing adequate slope protection against
erosion, which is a structural stability requirement applicable to all
CCR units, the owner or operator of a CCR surface impoundment exceeding
the specified size threshold must demonstrate that the unit, including
any vertical and lateral expansions, is constructed with ``stable
foundations and abutments.'' A stable foundation is an essential
element of surface impoundment construction and prevents differential
settlement of the embankment which can result in adverse internal
stresses with the embankment cross-section. Soils tend to consolidate
when subjected to loadings for extended periods, which can lead to
strain incompatibility, a phenomena which prevents the full development
of peak strength of the foundation. The stability of foundations and
abutments can be determined by engineering monitoring, representative
soil sampling, and modeling. Similarly, cohesion between the abutments
of the CCR surface impoundment and the embankment of the CCR surface
impoundment is critical. Frequently, CCR surface impoundments are
subject to cracking and excessive seepage and piping in the groins
where the abutment and embankment meet. These adverse conditions may
lead to further structural deficiencies which threaten the safety of
the CCR surface impoundment.
Consistent with general engineering construction methodologies, the
structural stability assessment also requires the owner or operator to
determine whether the CCR surface impoundment has been mechanically
compacted to a density sufficient to withstand the range of loading
conditions in the CCR unit.\90\ Compaction of a dike or embankment is
considered essential, as the compaction of soils leads to an increase
in density and subsequently strength. Soil mechanics theory has
established that the density of a soil corresponds to the moisture
content and strength of the soil. The rule requires the owner or
operator make this determination for all dikes of a CCR surface
impoundment.
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\90\ http://www.publications.usace.army.mil/Portals/76/Publications/EngineerManuals/EM_1110-2-2300.pdf.
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EPA notes that a number of existing voluntary consensus standards
are available that can be useful in making this determination. For
example, ASTM D 698 establishes a performance standard of 95% of the
maximum standard Proctor density. Similarly, ASTM D 1557 establishes a
standard of 90% of the maximum modified Proctor density. Alternatively,
in certain instances, such as soils consisting of more than 30%
material retained on the \3/4\ in. sieve, Proctor testing is not
appropriate and the relative density criteria can be met. In such
cases, EPA recommends a 70% relative density. These specific soil
compaction criteria are ubiquitous throughout engineering construction
as sufficient to support engineered works based on the requirements.
They are also consistent with the standards promulgated by the state of
New Mexico's dam safety program in order to ensure proper compaction
during construction of new CCR surface impoundments.
EPA recognizes that it would be highly difficult for owners or
operators
[[Page 21382]]
of older units to certify with any certainty that the unit's
construction meets the specific numeric compaction criteria found in
the ASTM standards. New units, however, can easily meet these
standards, and should therefore be designed and constructed to meet the
numeric compaction criteria.
The owner or operator must also design, construct, operate, and
maintain the CCR surface impoundment spillway or spillways with
appropriate material so as to prevent the degradation of the spillway,
as well as to ensure that the CCR surface impoundment has adequate
spillway capacity to manage the outflow from a specific inflow design
flood. In addition, a demonstration must be made that the CCR surface
impoundment has been designed, constructed, operated, and maintained
with inflow design flood controls and/or spillway capacity to manage
peak discharge during and following inflow design floods. This
demonstration is required to ensure the CCR surface impoundments will
have adequate hydrologic and hydraulic capacity to prevent such
failures as overtopping and excessive internal seepage and erosion.
Spillways must be designed to withstand discharge from the inflow
design flood without losing their structural form and leading to
discharge issues, such as erosion or overtopping of the embankment.
This requirement is covered in more detail in the hydrologic and
hydraulic capacity requirements for CCR surface impoundments section of
this rule.
EPA is not requiring a facility to include any demonstration
relating to the potential for rapid, or sudden, drawdown loading
condition. Rapid or sudden drawdown is a condition in earthen
embankments in which the embankment becomes saturated through seepage
in an extended high pool elevation in the reservoir. A threat to the
embankment emerges when the reservoir pool is drawn down or lowered at
a rate significantly higher than the excess poor water pressure within
the embankment can diminish. Typically, rapid drawdown scenarios are
considered for embankments with reservoirs used for water supply and
management, emergency reservoirs, or agricultural supply, in which the
reservoir is rapidly discharged from the structure. In these scenarios,
a high pool elevation is maintained in the reservoir in storage months.
Subsequently, the water supply is drawn on in months where there is a
high demand for the reservoir's contents. This drawing down of the pool
can affect the structural stability of the unit. However, the
management of CCR surface impoundments differs from that of
conventional water supply, emergency, and agricultural reservoirs. The
only instance of a rapid drawdown of a CCR surface impoundment which
EPA has identified is in the event of a massive release of the
reservoir of the CCR surface impoundment due to a failure of the dike
of the CCR surface impoundment. In this instance, a massive release has
occurred or is occurring. A subsequent failure of the upstream or
internal embankment due to this rapid drawdown would only precipitate
further embankment failure and not any further release of the contents
of the impoundment, as the contents of the surface impoundment would
have already been released. In these instances, remediation of a
failure in a rapidly drawn-down section would be necessary prior to
filling of the unit, but is not a concern precipitating a release of
impounded contents.
A second consideration regarding rapid drawdown, however, is the
rapid drawdown of a water body adjacent to the slope of the CCR surface
impoundment which may periodically inundate the slope. Many CCR surface
impoundments are located in areas in which the downstream slope of the
CCR surface impoundment runs down to a lake, stream, or river. In such
instances, rapid drawdown must be considered for the stability of the
downstream slope of the embankment in the event of a rapid drawdown in
the lake, stream, or river pool elevation or stage. Because the water
ponded against the downstream slope of the CCR surface impoundment
provides a stabilizing load on the slope of the CCR surface
impoundment, the rapid or gradual loss of this stabilizing force must
be considered in the analysis of the CCR surface impoundment. The rule,
therefore, requires that existing and new CCR surface impoundments and
any lateral expansions of such units with a downstream slope that can
be inundated by an adjacent water body, such as rivers, streams, or
lakes, be constructed with downstream slopes that will maintain
structural integrity in events of low pool or rapid drawdown of the
adjacent water body. This ensures that the structural integrity of the
downstream slope of the CCR surface impoundment will be maintained,
even though the conditions of an adjacent surface water body may be
outside the owner or operator's control.
ii. Periodic Safety Factor Assessments
As previously discussed, EPA received comment requesting the Agency
to supplement the proposed technical criteria to assist owners or
operators of CCR surface impoundments in interpreting the factor of
safety determination required by proposed Sec. 257.71(d)(12). EPA
proposed that facilities compute ``a minimum factor of safety for slope
stability of the CCR retaining structure(s),'' and to provide the
methods and calculations used to determine each factor of safety. In
reviewing the proposed requirement, the Agency agrees that further
elaboration on the requirement is necessary to ensure that engineers
can accurately assess a CCR unit's structural stability using factor of
safety calculations, and would be valuable to ensure a consistent
national standard. EPA has therefore revised the criteria to be
consistent with the criteria developed and used to assess these
impoundments as part of the Assessment Program.
Accordingly, the final rule requires demonstrations of structural
integrity using accepted engineering methodologies under specific
loading conditions. Owners or operators must conduct and have certified
by a qualified professional engineer, an initial assessment, supported
by the appropriate engineering calculations, documenting whether the
CCR unit achieves the following minimum factors of safety: (1) The
calculated static factor of safety under the long-term, maximum storage
pool loading condition, which must equal or exceed 1.50; (2) the
calculated static factor of safety under the maximum surcharge pool
loading condition, which must equal or exceed 1.40; (3) the calculated
seismic factor of safety, which must equal or exceed 1.00; and (4) the
calculated liquefaction factor of safety, which must equal or exceed
1.20. In addition to the safety factors specified for existing CCR
surface impoundments, new CCR surface impoundments and any lateral
expansion must also comply with a fifth safety factor, the calculated
static factor of safety under the end-of-construction loading
condition, which must equal or exceed 1.30.
The minimum static factors of safety are adopted directly from the
USACE's Engineer Manual EM 1110-2-1902 entitled, ``Slope Stability.''
As discussed in more detail in Unit III of this document, EPA relied
heavily on this manual and applied these specific factors of safety
during its Assessment Program, and it is widely considered the
benchmark in the dam engineering community for slope stability and
methodology and analysis.
The seismic factor of safety is adopted from review of several dam
safety guidance documents, including USACE guidance Engineer Circular
1110-2-6061: Safety of Dams-Policy and Procedures 2204, Engineer
Circular
[[Page 21383]]
1110-2-6000: Selection of Design Earthquakes and Associated Ground
Motions 2008, and Engineer Circular 1110-2-6001: Dynamic Stability of
Embankment Dams 2004. EPA also reviewed MSHA's 2009 Engineering and
Design Manual for Coal Refuse Disposal Facilities, in particular
Chapter 7, ``Seismic Design: Stability and Deformation Analyses.''
These documents are viewed by ASDSO, FEMA and MSHA as generally
accepted guidance on how to conduct seismic stability analyses. EPA
chose the factor of safety of 1.00 because the 1.00 quantity represents
the condition of the slope in which the strength of resistance to
loading is equal to the anticipated loading stress acting upon the
embankment, or the value which represents stability under the
appropriate loading condition.
The liquefaction factor of safety is adopted from review of several
dam safety guidance and liquefaction guidance, including ``Soil
Liquefaction During Earthquakes,'' Idriss and Boulanger, Earthquake
Engineering Research Institute, 2008,\91\ ``Geotechnical and Stability
Analyses for Ohio Waste Containment Facilities,'' Ohio EPA, Sept. 14,
2004, Chapter 5,\92\ and Federal Guidelines for Dam Safety: Earthquake
Analyses and Design of Dams, Document 65, FEMA May 2005.\93\ EPA also
reviewed several technical resources regarding soil liquefaction,
including ``Ground Motions and Soil Liquefaction During Earthquakes,''
Seed and Idriss, 1982,\94\ ``Liquefaction Resistance of Soils: Summary
report from the 1996 and 1998 NCEER/NSF Workshops on Evaluation of
Liquefaction Resistance of Soils,'' Youd and Idriss, 2001,\95\ and
Seismic Design Guidance for Municipal Solid Waste Landfill Facilities,
US EPA, Office of Research and Development, 1995. EPA chose a
liquefaction factor of safety of 1.20, identifying that consideration
of liquefaction potential and post-liquefaction residual strength slope
stability included several uncertainties in assumptions and analysis
which must be accounted for in a factor of safety above unity (i.e.,
1.00). FEMA guidance explicitly states that ``post-liquefaction factors
of safety are generally required to be a minimum of 1.2 to 1.3.''
---------------------------------------------------------------------------
\91\ https://www.eeri.org/products-page/monographs/soil-liquefaction-during-earthquakes-3/.
\92\ http://epa.ohio.gov/portals/34/document/guidance/gd_660.pdf.
\93\ http://www.ferc.gov/industries/hydropower/safety/guidelines/fema-65.pdf.
\94\ Seed, H.B., and Idriss, I.M., 1982, ``Ground Motions and
Soil Liquefaction During Earthquakes,'' Monograph No. 5, Earthquake
Engineering Research Institute, Berkeley, California, pp. 134.
\95\ Youd, T.L., Idriss, I.M., 2001, ``Liquefaction Resistance
of Soils: Summary report from the 1996 and 1998 NCEER/NSF Workshops
on Evaluation of Liquefaction Resistance of Soils.'' Journal of
Geotechnical and Geoenvironmental Engineering, ASCE.
---------------------------------------------------------------------------
In conjunction with this requirement, EPA continues to require
periodic re-assessments of the safety factor calculations, but as
discussed, has modified the frequency to be no less than once every
five years for all affected CCR units. Periodic reassessments are
necessary to account for factors that are subject to change and can
adversely affect the structural stability of a CCR unit, e.g., age,
use, volume of material contained within, and to reflect the dynamic
nature of a CCR surface impoundment and the loads to which the dikes of
the CCR surface impoundment may reasonably be expected to become
subject to both the requirement to periodically reassess safety factor
calculations and the five-year timeframes are consistent with the
guidance set forth by other federal agencies in assessing dam safety,
including MSHA, FEMA, and the USACE. For example, FEMA's Federal
Guidelines for Dam Safety explicitly recommends that a dam be formally
reassessed at an interval not to exceed every five years, and EPA has
adopted this minimum frequency of assessment in this final rule.
(a) General Safety Factor Assessment Considerations
Generally accepted engineering methodologies specify that the
determination of the structural stability factors of safety specified
above is to be calculated by the qualified professional engineer using
conventional analysis procedures or, if necessary, special analysis
procedures. Conventional analysis procedures include, but are not
limited to, limit equilibrium methods of slope stability analysis,
whereas, special analysis procedures include, but are not limited to,
finite element methods, finite difference methods, three-dimensional
methods, or probabilistic methods. Whichever methodology is used to
determine the factors of safety of the CCR surface impoundment, the
qualified professional engineer must document the methodology used, as
well as the basis for using that methodology, and the analysis must be
supported by appropriate engineering calculations.
Limit equilibrium methods compare forces, moments, and stresses
which cause instability of the mass of the embankment to those which
resist that instability. The principle of the limit equilibrium method
is to assume that if the slope under consideration were about to fail,
or at the structural limit of failure, then one must determine the
resulting shear stresses along the expected failure surface. These
determined shear stresses are then compared with the shear strength of
the soils along the expected failure surface to determine the factor of
safety. Limit equilibrium methods include, but are not limited to,
methods of slices. The most commonly applicable method of slices are
the ordinary method of slices or Modified Swedish Method, Bishop's
Modified Method, force equilibrium methods, Janbu's method, Morgenstern
and Price's method, or Spencer's Method.
If conventional analysis procedures yield results that indicate
complex failure mechanisms or the need for estimation of displacements,
such as the need to determine internal stresses or displacements in an
embankment or account for 3-dimensional effects in an embankment,
special analysis procedures may be necessary to calculate factors of
safety. Special analysis procedures include, but are not limited to:
(1) The finite element method; (2) the finite difference method; (3)
the three-dimensional limit equilibrium analysis method; or (4) the
probabilistic method.\96\
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\96\ Additional information regarding special analysis
methodologies can be found in publications from the U.S. Army Corps
of Engineers Engineering Publications or geotechnical journals and
scholarly articles.
---------------------------------------------------------------------------
Structural stability factors of safety need to be met in all cross-
sections of the CCR surface impoundment since the failure of any cross-
section of the CCR surface impoundment can result in the loss of the
reservoir and stored CCR material in the CCR surface impoundment.
However, it is not necessary to require the facility to fully analyze
and calculate factors of safety for all cross sections under the
specific loading conditions identified above. Rather, it is sufficient
to calculate the factors of safety under both static, seismic, and
liquefaction loading conditions only for the critical cross section of
the CCR surface impoundment embankment, provided the facility carefully
analyzes each cross section to properly identify the critical cross
section. EPA has adopted this approach because the critical cross-
section(s) represents a ``most-severe'' case and it is reasonably
anticipated that all other cross-sections of the embankment will exceed
the calculated factors of safety of the critical cross-section(s). The
final rule therefore adopts this approach. The final rule
[[Page 21384]]
defines the critical cross section of the embankment of a CCR surface
impoundment to be that which is anticipated to be most susceptible
amongst all cross sections of the embankment to structural failure
based on several engineering considerations for the given loading
condition, such as soil composition of the cross-section, phreatic
surface level within the cross section, grade of the upstream and
downstream slopes of the cross section, and presence or lack of
reinforcing measures in the cross-section as opposed to other cross-
sections, such as buttressing or slope protection on the slopes of the
cross section. Due to the variance of qualitative and quantitative
properties of embankment structural strength, EPA expects that a
prudent engineering analysis will need to consider multiple cross
sections to ensure proper selection of a critical cross section.
(b) The Calculated Static Factor of Safety Under the Long-Term, Maximum
Storage Pool Loading Condition
It is generally accepted practice to analyze the stability of the
downstream slope of the dam embankment for steady-state seepage (or
steady seepage) conditions with the reservoir at its normal operating
pool elevation (usually the spillway crest elevation) since this is the
loading condition the embankment will experience most. This condition
is called steady seepage with maximum storage pool. The maximum storage
pool loading is the maximum water level that can be maintained that
will result in the full development of a steady-state seepage
condition. Maximum storage pool loading conditions need to be
calculated to ensure that the CCR surface impoundment can withstand a
maximum expected pool elevation with full development of saturation in
the embankment under long-term loading. The final rule requires that
the calculated static factor of safety for the critical cross section
of the CCR surface impoundment under the long-term maximum storage pool
loading condition meet or exceed 1.5. The generally accepted
methodology for determining the long-term, maximum storage pool loading
condition considers conditions at the CCR surface impoundment that
exist for a length of time sufficient for steady-state seepage or
hydrostatic conditions to fully develop within the embankment of the
CCR unit.\97\ The maximum storage pool loading needs to consider a pool
elevation in the CCR unit that is equivalent to the lowest elevation of
the invert of the spillway, i.e., the lowest overflow point of the
perimeter of the embankment. The generally accepted methodology for the
calculation of the factors of safety uses shear strengths expressed as
effective stress and with pore water pressures that correspond to the
long-term condition. Pore-water pressures should be estimated from the
most reliable of the following sources: (1) Field measurements of pore
pressures in existing slopes; (2) past experience and judgment of the
qualified professional engineer; (3) hydrostatic pressure computation
for conditions of no flow; or (4) steady-state seepage analysis using
flow nets or finite element analyses.
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\97\ U.S. Army Corps of Engineers ``Slope Stability'' manual.
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(c) The Calculated Static Factor of Safety Under the Maximum Surcharge
Pool Loading Condition
The maximum surcharge pool loading condition is calculated to
evaluate the effect of a raised level (e.g., flood surcharge) on the
stability of the downstream slope. This ensures that the CCR surface
impoundment can withstand a temporary rise in pool elevation above the
maximum storage pool elevation for which the CCR surface impoundment
may normally be subject under inflow design flood stage, for a short-
term until the inflow design flood is passed through the CCR surface
impoundment. The final rule requires that the calculated static factor
of safety for the critical cross section of the CCR surface impoundment
under the long-term maximum surcharge pool loading condition meet or
exceed 1.4.
Similar to the long-term, maximum loading condition, a prudent
evaluation of the maximum surcharge pool loading condition needs to
consider conditions at the CCR unit to exist for a length of time
sufficient for steady-state seepage or hydrostatic conditions to fully
develop within the embankment of the CCR surface impoundment. The
maximum surcharge pool is considered a temporary pool that is higher
than the maximum storage pool; the maximum surcharge loading condition
should therefore consider a temporary condition in the pool at which
the pool exists temporarily above the maximum storage pool elevation in
the event of an inflow design flood and spillway discharge condition in
the reservoir, i.e., above the lowest invert of the spillway during the
anticipated inflow design flood.
(d) The Calculated Seismic Factor of Safety
All CCR surface impoundments, including any lateral expansions that
exceed the size threshold must meet a seismic factor of safety equal to
or greater than 1.0. EPA has included this requirement because the
mechanics and response phenomena of geotechnical structures vary
radically under dynamic loading from those under static loading.
Consequently, reliance on the factors of safety under static loading is
not sufficient to evaluate the structural stability of a CCR surface
impoundment. Standard engineering methodology and guidance support
EPA's conclusion that adequate seismic analysis of embanked structures
is essential to ensure the continued structural stability of a
geotechnical structure under dynamic, or seismic, loading is
warranted.\98\
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\98\ E.g., FEMA's Federal Guidelines for Dam Safety: Earthquake
Analyses and Design of Dams.
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As discussed in the section of this preamble addressing the
location criteria, all CCR surface impoundments must also be capable of
withstanding a design earthquake without damage to the foundation or
embankment that would cause a discharge of its contents. To further
support the location criteria established in this rule, CCR surface
impoundments and any lateral expansion exceeding a specific height and/
or volume threshold must be assessed under seismic loading conditions
for a seismic loading event with a 2% probability of exceedance in 50
years, equivalent to a return period of approximately 2,500 years,
based on the USGS seismic hazard maps for seismic events with this
return period for the region where the CCR unit is located. EPA chose
the 2% exceedance probability in 50 years event based on its common use
in seismic design criteria throughout engineering. See for example,
ASCE 7 Minimum Design Loads for Buildings and Other Structures,
International Building Code. Moreover, USGS seismic hazard maps,
dictate that the life of a structure and the realistic probability of
event occurrence be considered in the design of lateral force resisting
systems for structures. As discussed in the Regulatory Impact
Assessment, the expected life of a CCR surface impoundment can exceed
50 years. Consistent with the location criteria for seismic impact
zones, EPA adopted 2% as a reasonable probability of occurrence.
Under standard engineering methodologies, seismic analysis includes
several procedures to adequately analyze the structural
[[Page 21385]]
strength of a CCR surface impoundment during dynamic, i.e., seismic,
loading. Such analyses would typically need to include the appropriate
characterization of ground motions at the site of the CCR surface
impoundment for the 2% probability in 50 years seismic event.\99\ In
addition, the peak ground acceleration (PGA), velocity, and
displacement should be selected using historic records, site-specific
observations, or magnitude-distance attenuation relations.
Additionally, the analysis would need to include an appropriate
duration of earthquake, considering accelorograms for the anticipated
event. Appropriate elastic response spectra should be selected using
engineering methodology for selection, such as the Newmark-Hall
Spectrum or other appropriate published spectra, USGS Probabilistic
Maps, or site-specific response spectra.
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\99\ FEMA Doc. 65 ``Earthquake Analyses and Design of Dams;''
http://www.ferc.gov/industries/hydropower/safety/guidelines/fema-65.pdf.
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(e) The Calculated Liquefaction Factor of Safety
All CCR surface impoundments, including any lateral expansions that
exceed the size threshold and have been determined to contain soils
susceptible to liquefaction must meet a liquefaction factor of safety
equal to or greater than 1.20. A prudent engineering analysis of
structural stability also includes a liquefaction potential analysis
and analysis of post-liquefaction static factors of safety. As
discussed previously, liquefaction is a phenomenon which typically
occurs in loose, saturated or partially-saturated soils in which the
effective stress of the soils reduces to zero, corresponding to a total
loss of shear strength of the soil. The most common occurrence of
liquefaction is in loose soils, typically sands. The liquefaction FOS
determination in the final rule is used to determine if a CCR unit
would remain stable if the soils of the embankment of the CCR unit were
to experience liquefaction. Liquefaction analysis is only necessary in
instances where CCR surface impoundments show, through representative
soil sampling, construction documentation, or anecdotal evidence from
personnel with knowledge of the CCR unit's construction, that soils of
the embankment are susceptible to liquefaction.
EPA has included this requirement because the mechanics and
response phenomena of geotechnical structures vary radically following
induced liquefaction, i.e., post-liquefaction. Similar to the
requirement for seismic factors of safety, liquefaction factors of
safety are necessary because reliance on static loading is not
sufficient to evaluate the structural stability of a CCR surface
impoundment. Standard engineering methodology and guidance support
EPA's conclusion that adequate liquefaction potential analyses and
post-liquefaction residual strength slope stability analyses of
embanked structures is essential to ensure the continued structural
stability of a geotechnical structure following dynamic loading.
Under standard engineering methodologies, liquefaction potential
analysis and post-liquefaction stability analysis includes several
procedures to adequately analyze the structural strength of a CCR
surface impoundment. Because only certain soils, such as loose sands,
are susceptible to liquefaction, the rule requires only embankments
constructed of such soils identified through liquefaction potential
analysis to meet liquefaction factors of safety. Such liquefaction
potential analysis would need to include proper soil characterization
of the embankment soils for soil age and origin, fines content and
plasticity index, water content, saturation, and maximum current, past,
and anticipated future phreatic surface levels within the embankment,
foundation, or abutments, location beneath the natural ground surface,
and penetration resistance whether through standard penetration testing
(SPT) or, ideally, cone penetration testing (CPT). Post-liquefaction
stability analysis would need to include detailed characterization of
the site conditions, identification of the minimum liquefaction-
inducing forces based on soil characterization, determination of
seismic effect on liquefied layers of the embankment, and calculation
of factors of safety against each liquefied layer of the embankment.
(f) The Calculated Static Factor of Safety Under the End-of-
Construction Loading Condition
The End-of-Construction loading condition must be calculated for
new CCR surface impoundments to ensure that the CCR surface impoundment
can withstand a ``first-filling'' of the embankment, during which time
the embankment first become saturated and is subject to phreatic flow
through the cross-section.
Embankments are typically constructed in layers with soils at or
above their optimum moisture content that undergo internal
consolidation because of the weight of the overlying layers. Embankment
layers may become saturated during construction as a result of
consolidation of the layers or by rainfall. Because of the low
permeability of fine-grained soils of which many embankments are
constructed and the relatively short time for construction of the
embankment, there can be little drainage of the water from the soil
during construction: resulting in the development of significant pore
pressures. Soils with above optimum moisture content will develop pore
pressures more readily when compacted than soils with moisture contents
below optimum. In general, the most severe construction loading
condition is at the end of construction.
The final rule requires that the calculated static factor of safety
for the critical cross section of the CCR surface impoundment under end
of construction loading conditions meet or exceed 1.30. The End-of-
Construction loading condition is analyzed for new construction under
their initial filling condition, following the completion of
construction. Undrained shear strength conditions are typically assumed
for the End-of-Construction loading condition. Both the upstream and
downstream slopes of the embankment are analyzed for this condition
(g) Failure To Demonstrate Minimum Safety Factors or Failure To
Complete a Timely Safety Factor Assessment
As previously discussed, the rule requires an owner or operator to
document that the calculated factors of safety for each CCR surface
impoundment achieve the minimum safety factors specified in the rule.
For any CCR surface impoundment that does not meet these requirements,
the owner or operator must either take any engineering measure
necessary to ensure that the unit meets the requirements by the rule's
deadlines, or cease placement of CCR and non-CCR waste into the unit
and initiate closure of such CCR unit as provided in section 257.102
within six months. Similarly, if an owner or operator fails to complete
the initial safety factor assessment or any subsequent periodic factor
safety assessment by the deadlines established in the rule, the owner
or operator must cease placing CCR and non-CCR waste into the unit and
initiate closure within six months.
(h) Vertical Expansions of CCR Surface Impoundments and Structural
Integrity Criteria
It is not uncommon for the owner or operator to raise the crest of
a CCR surface impoundment to accommodate the additional capacity needs
of the
[[Page 21386]]
facility. The record documents that CCR surface impoundments are
commonly expanded from the original design or as-built construction,
through such ``vertical expansions,'' including where a CCR surface
impoundment changes from a ``small'' CCR unit (i.e., below the height
and/or volume threshold) to a ``large'' CCR unit (i.e., exceeding the
height and/or volume threshold). In these situations, the owner or
operator of the CCR unit becomes subject to additional structural
integrity requirements as a result of the vertical expansion. Realizing
that these newly created CCR units will require some time to meet the
structural integrity requirements, the Agency is allowing one year from
the completion of the vertical expansion for the owner or operator to
comply with the requirements of Sec. Sec. 257.73 or 257.74, as
applicable.
F. Operating Criteria--Air Criteria
EPA proposed to require CCR landfills, CCR surface impoundments and
any lateral expansion to control the creation of fugitive dust.
Specifically, EPA proposed that facilities must ensure that fugitive
dust either not exceed the standard of 35 [mu]g/m\3\, established as
the level of the 24-hour National Ambient Air Quality Standards (NAAQS)
for fine particulate matter (PM-2.5), or any alternative standard
established pursuant to applicable requirements developed under a State
Implementation Plan (SIP) approved or promulgated by the Administrator
pursuant to section 110 of the CAA (see 75 FR 55175). Consistent with
the numerical standard, EPA proposed to require that CCR units be
managed to control the wind dispersal of dust, and that CCR landfills
also be required to emplace wet conditioned CCR (i.e., wetting CCR with
water to a moisture-content that prevents wind dispersal and
facilitates compaction, but does not result in free liquids) into the
unit. EPA also required that documentation of the measures taken to
comply with the requirements be certified by an independent registered
professional engineer. EPA proposed these requirements based on the
results of a screening level analysis of the risks posed by fugitive
dust from CCR landfills, which showed that without fugitive dust
controls, levels at nearby locations could exceed 35 [mu]g/m\3\,
established as the level of the 24-hour PM 2.5 NAAQS for fine
particulate. These measures were also intended to reduce the excessive
cancer risks associated with the inhalation of hexavalent chromium.
This potential risk would apply to over six million people who live
within the census population data ``zip code tabulation areas'' for the
495 rule-affected electric utility plant locations. (See 75 FR 35215.)
\100\
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\100\ As evidenced in 42 U.S.C. 6971(f), Congress intended that
the Occupational Safety and Health Administration (OSHA) be able to
enforce its regulations to protect workers exposed to hazardous
waste and that EPA and OSHA would work together to ensure that. EPA
is clarifying that it intends that the CCR disposal rule not preempt
applicable OSHA standards designed to protect workers exposed to
CCRs; thus EPA's final rule on CCR disposal will apply in addition
to any applicable OSHA standards. The Agency has added specific
regulatory language in this section to address this intent.
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As part of the proposal, EPA solicited comments on the following
fugitive dust issues: (1) The location of air monitoring stations near
CCR landfills or CCR surface impoundments; and (2) information on any
techniques, such as wetting, compaction, or daily cover that are or can
be employed to reduce exposures to fugitive dust. The Agency received
no information from commenters on either of these issues.
The majority of comments received, however, took issue with the
proposed technical standard of 35 ug/m\3\. Commenters argued that, as
proposed, the standard would be impossible to implement because the
Agency provided no information on particle size, form of the standards,
whether an averaging period is available, point of compliance or how
one considers upwind sources. More generally, however, commenters
argued that the proposed provisions were unnecessary because fugitive
dust issues were adequately addressed by existing air rules through the
development and implementation of NAAQS, such as PM10 and
PM2.5. These same commenters acknowledged, however, that if
the Agency established a criterion to control fugitive dusts, a more
appropriate and reasonable standard could be based on best management
practices or BMPs. To that end, commenters offered information
suggesting that CCR landfills typically used compaction, regular
wetting and temporary covers in conjunction with visual air monitoring
to effectively control fugitive dust at their facilities, and that
these practices were included in facility operating plans.
As discussed in the proposed rule, EPA's decision to address
fugitive dust was based on a peer review of the 2010 draft Risk
Assessment, 2007 NODA stakeholder comments, photographic documentation
of fugitive dust associated with the management of CCR, Agency actions
to control fugitive emissions during the clean-up of the December 2008
TVA Kingston spill, and OSHA's Material Safety Data Sheets (now Safety
Data Sheets (SDS)) requirements for coal ash. These lines of evidence
have been bolstered since the proposal, by evidence collected during
the eight 2010 CCR public hearings, where stakeholders provided
extensive feedback about fugitive dust impacts associated with CCR
management at facilities adjacent to their residences, and by
documented reports on fugitive dust issues provided by citizen
groups.\101\ The stakeholders called for federal oversight to address
those instances where complaints were seemingly ignored by state
regulators and/or where state administrative enforcement measures
failed to compel the utilities to effectively amend their dust emission
control management practices. The Agency followed up on the complaints
with state agencies and compiled a preliminary database on documented
and alleged fugitive dust damage cases.\102\
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\101\ For instance, photographic evidence provided by Susan
Holmes, the Bokoshe Environmental Cause Group (B.E. Cause), Bokoshe,
Oklahoma. See Earthjustice's brief background coverage at: http://earthjustice.org/blog/2011-april/not-having-fun-in-bokoshe-ok, and
ABC News' Oklahoma Town Fears Cancer, Asthma May Be Linked to Dump
Site, March 29, 2011: http://abcnews.go.com/US/oklahoma-town-fears-cancer-asthma-linked-dump-site/story?id=13240312.
\102\ A compilation of damage cases can be found in the docket
supporting this rule.
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In support of this rule, EPA compiled records of over 20 documented
fugitive dust cases, in addition to several alleged cases that could
not be verified. The documented cases indicate that fugitive dust
concerns arise in all phases of the CCR life cycle--from conveyor belt
transfer at the coal-fired power plant, through stockpiling and
transport for disposal/beneficial use, and up to final disposition.
Fugitive dust also is a potential concern associated with both--
landfills and surface impoundments. Whereas a nexus between fugitive
dust impacts and CCR landfill operations was to be expected, EPA
discovered that fugitive dust was also of concern at CCR surface
impoundments, either under conditions of windy winter spells affecting
CCR exposed above or next to the CCR surface impoundment boundary, or
due to the total CCR surface impoundment evaporation in arid areas.
Very few studies have been undertaken to test the health impacts
caused by fugitive dust emissions, and of those few, due to inherent
limitations, all failed to prove that fugitive dust was the cause of
the documented health concerns. For example, in the wake of the January
[[Page 21387]]
2005 coal ash pile collapse at the Rostosky Ridge Road, in Allegheny
County, Pennsylvania, both the federal and county studies \103\ failed
to test during this period and missed the narrow exposure window that
would have possibly demonstrated a link between the event and the
short-term health symptoms (e.g., sore throat, cough, fever, nausea,
fatigue, diarrhea, and headaches) contracted by residents who
ultimately removed approximately 1,500 tons of fly ash from their
properties immediately after the incident without the benefit of any
protective respiratory gear. The federal and county studies also found
no evidence of long-term arsenic poisoning of the tested individuals.
For recurring instances of CCR dispersion in the air at the Indian
River Power Plant, Millsboro, Delaware, three consecutive state studies
tentatively established other risk factors as the probable cause for a
lung cancer cluster in a down-wind location of the presumable source
term (CCR fugitive dust blowing of a landfill and stack
emissions).\104\ Critics claim that these studies used too small of a
sample, and were not designed to capture the impact of long-term
exposure to pollution.\105\
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\103\ (i) Coal Fly Ash Landslide, Forward Township, Allegheny
County, Pennsylvania, ASTDR Health Consultation June 1, 2006: http://www.atsdr.cdc.gov/HAC/pha/CoalFlyAshLandslide/CoalFlyAshLandslideHC060106.pdf (ii) Results of the Health
Investigation Following Fly Ash Contamination in Forward Township,
Allegheny County, Pennsylvania, Allegheny County Health Department,
July 2005: http://www.achd.net/air/pubs/pdf/Forward%20Fly%20Ash%20Study%202005.pdf.
\104\ Millsboro Inhalation Exposure and Biomonitoring Study.
State of Delaware Department of Natural Resources and Environmental
Control, Department of Health and Social Services, Dover (RTI
Project 0213061), DE, May 2013: http://www.dnrec.delaware.gov/Admin/Documents/Millsboro_Inhalation_Exposure_and_Biomonitoring_Study_Final_Repor_05282013.pdf.
\105\ Critic chides cancer study: Indian River plant results
called lame. Delawareonline, May 28, 2013: http://www.delawareonline.com/article/20130528/NEWS/305280081/.
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Nevertheless, in eleven other cases, states adopted measures to
address concerns from fugitive dust emissions; these included
conducting lung-cancer cluster and other health studies, conducting
particle dispersion studies, issuing Notices of Violation and Consent
Orders to the responsible facilities, waiving landfill cover
exemptions, and requiring dust management plans for newly permitted CCR
landfills. In addition, in several instances, citizens filed lawsuits
or reached an out-of-court settlement with the primary responsible
party; and in one case, OSHA imposed a steep fine on the owners of a
facility manufacturing abrasive blasting and roofing materials from
slag produced at a nearby coal-fired power plant, for willfully
exposing their workers to dangerously high levels of hazardous dust,
and for failing to provide adequate breathing protection and training
for workers at the facility. According to stakeholder allegations,
fugitive dusts generated by these same materials also adversely
impacted residents in the facility's immediate vicinity.
As previously stated, many commenters argued that the proposed
numeric particulates standard was incompatible with the air quality
requirements established under the States' Implementation Plans (SIPs)
or with provisions set up by the states in their Title V Clean Air
Permits to the power producers. In addition, the commenters argued that
the proposed standard lacked technical details to facilitate effective
implementation, and that implementation of the standard required
specialized equipment and advanced training to carry out a judicious
reading and interpretation of opacity, a proxy measure for the level of
fugitive dust emissions. In light of these comments, EPA re-evaluated
the existing CAA standards applicable to these units; 40 CFR 70.2
identifies fossil-fuel-fired steam electric plants of more than 250
million BTU/hour heat input as potential sources of fugitive dust (PM
sources) that must be covered by state permitting, and 40 CFR 70.3
stipulates that fugitive emissions from a part 70 source shall be
included in the permit application and the part 70 permit in the same
manner as stack emissions, regardless of whether the source category is
included in the list of sources contained in the definition of major
source. Based on these applicable CAA requirements, the Agency agrees
that the adoption of a PM standard under the final rule would entail a
potential for duplication or inconsistency with applicable state-
established standards in SIP permits.
EPA also acknowledges the challenges involved in measuring the
proposed compliance standard. Because fugitive dust is emitted from
non-point sources, it cannot be easily measured by conventional
methods. Usually, regulations developed by the states to control
fugitive dust stipulate that no person or source shall cause or allow,
from any activity, any emissions of fugitive particulate matter that
are visible to an observer who looks horizontally along the source's
property line. A quantitative measurement of fugitive dust levels
(EPA's Reference Method 9) would require measuring opacity, which, as
the commenters noted, necessitates specialized technical training,
trainee certification, and judicious application of instrumentation.
Therefore, rather than requiring a potentially redundant and
challenging-to-implement quantitative standard, EPA is substituting a
performance standard for fugitive dust control. This standard requires
owners or operators of a CCR unit to adopt measures that will
effectively minimize CCR from becoming airborne at the facility,
including CCR fugitive dust originating from CCR units, CCR piles,
roads, and other CCR management activities. The Agency considers this
standard to be consistent with the intent of the proposed rule, with
the added advantage of allowing facilities the flexibility to determine
the appropriate measures to achieve regulatory compliance at their
individual site. This standard and the accompanying regulatory
requirements supporting its implementation, will achieve the statutory
obligation of ``no reasonable probability of adverse effects on human
health and the environment.''
As in the proposal, the Agency is also requiring documentation of
the measures taken to comply with the technical standard in a ``CCR
fugitive dust control plan'' (herein referred to as ``plan'').
Consistent with the proposal, the plan must be certified by a qualified
professional engineer and placed in the operating record and on the
owner or operators publicly accessible internet site. The plan requires
owners or operators to elaborate on the types of activities applicable
and appropriate for the conditions at the facility that will be
employed to minimize CCR from becoming airborne at the facility.
Examples of control measures that may be appropriate include: Locating
CCR inside an enclosure or partial enclosure; operating a water spray
or fogging system; reducing fall distances at material drop points;
using wind barriers, compaction, or vegetative covers; establishing and
enforcing reduced vehicle speed limits; paving and sweeping roads;
covering trucks transporting CCR; reducing or halting operations during
high wind events; or applying a daily cover.
The initial plan must be completed by the effective date of the
rule (i.e., within six months of publication). Because this is an
initial plan, and because it must be completed within a short
timeframe, EPA acknowledges that the facility may only be able to
present its initial judgment of the measures that it anticipates are
likely to be effective based on the information that is readily
available within this six month
[[Page 21388]]
timeframe. EPA anticipates that owners or operators may need to revise
the plan as they gain additional information and experience
implementing the regulations. In recognition of this, the final rule
also requires that the CCR fugitive dust control plan include a
description of the procedures the owner or operator will follow to
periodically assess the effectiveness of the control plan. Consistent
with other plans required in this rule, the owner or operator may amend
the written CCR fugitive dust control plan at any time. However, the
owner or operator must amend the written plan whenever there is a
change in conditions that would substantially affect the written plan
in effect, such as the construction and operation of a new CCR unit.
The plan and any subsequent amendments must be certified by a qualified
professional engineer.
In addition, the Agency is promulgating with a slight modification
the requirement for owners and operators of all CCR landfills and any
lateral expansion to emplace CCR as conditioned CCR, as well as the
definition of conditioned CCR. Conditioned CCR has been defined to mean
CCR wetted with water to a moisture content that will prevent wind
dispersal, but will not result in free liquids, consistent with the
definition in the proposed rule. In response to several commenters'
requests, and upon further evaluation the Agency is allowing that in
lieu of water, CCR conditioning may be accomplished with an appropriate
chemical dust suppression agent.\106\ As with other requirements of
this rule, in order to ensure that the provisions of the fugitive dust
criteria are maintained throughout the operating life of the CCR unit,
the Agency is requiring that the owner or operator prepare an annual
CCR fugitive dust control report, describing the actions taken to
control CCR fugitive dust, a record of all citizen complaints, and a
summary of any corrective measures taken. The first annual report must
be completed no later than 14 months after placing the initial CCR
fugitive dust control plan in the facility's operating record. The
owner or operator has completed the annual CCR fugitive dust control
report when the plan has been placed in the facility's operating
record.
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\106\ Spray-on adhesives, surfactants, aqueous foamers,
humectants (calcium, magnesium, ad sodium chloride and their
mixtures), and polymer solutions and emulsions. See, for instance
``The Role of Chemicals in Controlling Coal Dust Emissions''
Benetech, Inc. available at http://pdf.ebooks6.com/download.php?id=139860 or Peterson, Edwin. ``An Aid to Fugitive
Materials Control in Coal Ash Applications'' presented at the World
of Coal Ash (WOCA) conference--May 9-12, 2011 in Denver, Colorado.
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The general public, as well as the Agency, is highly concerned with
potential risks associated with CCR fugitive dusts. This was readily
apparent during the public hearings and from the many comments received
on this issue. The Agency continues to receive information regarding
this human health and environmental concern. While the subtitle D
provisions of this rule lack permitting oversight mechanisms to control
fugitive dust from CCR units, it is clear to the Agency that additional
substantive actions was needed to facilitate citizen suit enforcement
of this criteria. Consequently, the Agency are adding a specific
requirement to the CCR fugitive dust control plan to require owners and
operators of all CCR units to develop and implement formal procedures
to log citizen complaints involving CCR fugitive dust events. These
complaints must, then, be included as part of the annual CCR fugitive
dust control report. This report must be placed in the operating record
and on the owner or operator's publicly accessible internet site.
Promulgation of these measures will subject the owner or operator of
the CCR disposal facility to public and state scrutiny, and create an
incentive for the owner or operator of the CCR disposal facility to
improve compliance with the fugitive dust control requirements.
G. Operating Criteria--Run-On and Run-Off Controls for CCR Landfills
EPA's proposal required owners or operators of CCR landfills and
all lateral expansions to design, construct and maintain a run-on
control system to prevent flow onto the active portion of these units
during the peak discharge from a 24-hour, 25-year storm. As described
in the proposed rule, run-on controls are designed to prevent erosion,
which may damage the physical structure of the landfill, prevent the
surface discharge of CCR in solution or suspension; and to minimize the
downward percolation of run-on through wastes, creating leachate.
Similarly, EPA proposed run-off controls in order to collect and
control, at a minimum, the water volume resulting from a 24-hour, 25-
year storm. This standard was proposed in order to protect surface
waters from contamination. Under the existing 40 CFR part 257
requirements, to which CCR units are currently subject, run-off must
not cause a discharge of pollutants into waters of the United States
that is in violation of the National Pollutant Discharge Elimination
System (NPDES) under section 402 of the Clean Water Act. EPA did not
propose to revise the existing requirement, but merely incorporated it
for ease of the regulated community.
The Agency proposed the 24-hour period because it was a timeframe
that included storms of high intensity with short duration and storms
of low intensity with long duration. EPA believed that this was a
widely used standard that had been incorporated into the hazardous
waste landfills and MSW landfills regulatory requirements. At the time,
EPA had no information that warranted a more restrictive standard for
CCR landfills. EPA received no significant comment on the proposed
requirements, and for the most part, is adopting the proposed
requirements without revision. However, in an effort to clarify and
provide more direction to the owner or operator and the certifying
qualified professional engineer, the Agency has added additional
regulatory language that more specifically describes the technical
criteria established under this section of the rule.
The run-on and run-off controls of the final rule require that the
owner or operator prepare the initial run-on and run-off control system
plan within 18 months of publication of the rule. Run-on and run-off
control system plan reporting may require design, construction, and
post-construction implementation. In instances where run-on and run-off
capacity is insufficient, installing additional capacity may involve
construction of diversion structures such as swales or ditches. Many of
these efforts may require several months of design and construction,
compounded by the fact that much of the work cannot be completed in
cold-weather or heavy-rain seasons.
1. Run-On and Run-Off Controls for CCR Landfills and All Lateral
Expansions \107\
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\107\ In the proposed rule under the RCRA subtitle D option, EPA
jointly proposed run-on and run-off requirements for CCR landfills
and CCR surface impoundments under proposed Sec. 257.81. In this
final rule, EPA has modified the ``run-on and run-off'' requirements
and is providing separate requirements for CCR landfills and CCR
surface impoundments. CCR surface impoundments are now subject to
the hydrologic and hydraulic capacity requirements at Sec. 257.82.
This new section of the rule more appropriately addresses flow
management issues at CCR surface impoundments.
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All CCR landfills and all lateral expansions must be designed,
constructed, operated, and maintained with a run-on control system to
prevent flow onto the active portion of the CCR unit from the peak
discharge from a 24-hour, 25-year storm and a run-off control system to
collect and control at
[[Page 21389]]
least the volume of water resulting from a 24-hour, 25-year storm from
the active portion of the CCR unit.\108\
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\108\ Under existing part 257 requirements, to which CCR units
are currently subject, runoff must not cause a discharge of
pollutants into waters of the United States that is in violation of
the National Pollutant Discharge Elimination System (NPDES) under
section 402 of the Clean Water Act (40 CFR 257.3-3). EPA did not
propose to revise this requirement but is merely incorporating it
here for ease of the regulated community.
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Consistent with the proposal, the rule requires the owner or
operator of a CCR landfill or lateral expansion to prepare an initial
run-on and run-off control system plan for the CCR unit. For existing
CCR landfills, the plan must be prepared by the owner or operator no
later than one year from the effective date of the rule. For new CCR
landfills and any lateral expansion of a CCR landfill, the plan must be
prepared no later than the date of initial placement of CCR in the
landfill or lateral expansion. The plan must document how the run-on
and run-off control systems have been designed and constructed to meet
the requirements of rule and must be supported by appropriate
engineering calculations. The run-on and run-off control system plan
must be certified by a qualified professional engineer and is
considered prepared when the owner or operator has placed the plan in
the facility's operating record.
The rule also provides for the owner or operator to amend the plan
at any time (e.g., prior to receipt of CCR in the CCR unit, during the
operating life of the CCR unit, during closure of the CCR unit, or
following closure of the CCR unit) provided the revised plan is placed
in the facility's operating record. The owner or operator must, however
revise the plan whenever there is a change in the conditions that would
substantially affect the written plan in effect (e.g., closure of an
existing portion or cell of the CCR landfill, resulting in a possible
change in the size of the ``active portion'' of the CCR landfill).
In addition, consistent with other provisions in this rule, the
Agency is requiring that the run-on and run-off control system plan be
reviewed, and where necessary, revised or updated at least every five
years. The Agency is specifying this periodic review in order to
address factors having the potential to influence the run-on and run-
off control system. Among other things, CCR landfills can be subject to
build-out, operational changes, and surface cover changes, all of which
have the potential to significantly alter run-on and run-off flows to
and from the active portion of the CCR landfill. Changes in storm
intensity and duration, as well as upstream catchment area
characteristics, can alter flows that may significantly affect a
previously adequate run-on and run-off control system. A mandated five
year review of a control system plan is consistent with accepted good
engineering practices and protocols for proper maintenance of
operational systems supporting the overall performance of a CCR
landfill. It is also consistent with the proposed requirement that an
owner or operator ``maintain'' the run-on and run-off control system.
EPA interprets this to require the owner or operator to ensure that the
run-on and run-off control system is kept in a condition that meets the
requirements of the rule, i.e., that the run-on and run-off control
system both prevents flow onto the active portion of the unit during
the peak discharge from a 24-hour, 25-year storm and collects and
controls at least the water volume resulting from a 24-hour, 25-year
storm event for the duration of the CCR landfill's operational life. A
requirement to conduct a review of the control plan at least once every
five years merely provides an explicit mechanism to ensure this occurs
in a manner that facilitates citizen and state oversight.
The date of preparing the initial plan is the basis for
establishing the deadline to complete the first subsequent plan; i.e.,
the subsequent plan must be completed within five years of the prior
plan. The owner or operator may complete any required plan prior to the
required deadline and must place the completed plan into the facility's
operating record within the five year timeframe. A qualified
professional engineer must certify that the run-on and run-off control
system plan, including any subsequent amendments, meets the run-on and
run-off control system requirements of this final rule.
a. Run-On Control
Consistent with the proposal, EPA is defining run-on to mean any
liquid that drains over land onto any part of a CCR landfill or any
lateral expansion of a CCR landfill. In surface water hydrology, run-on
is a quantity of surface run-off, or excess rain, snowmelt, or other
sources of water, which flows from an upstream catchment area onto a
specific downstream location. This rule requires that the CCR landfill
be designed, constructed, operated, and maintained to prevent flow onto
the active portion of the CCR landfill during the peak discharge from a
24-hour, 25-year storm. EPA has adopted this requirement to minimize
the amount of surface water entering the CCR landfill and to minimize
disruption of the CCR landfills operation due to storm water inflow.
Uncontrolled or undesirable storm water run-on may have significant
impacts on the stability of the slopes of a CCR landfill and continued
safe operation of the CCR landfill, due to such phenomena as erosion
and infiltration.
b. Run-Off Control
EPA has adopted the definition of run-off from the proposal without
revision. Run-off means any liquid that drains over land from any part
of the CCR landfill. Effectively, run-off is the portion of rainwater,
snowmelt, or other liquid which does not undergo abstraction, such as
infiltration, and travels overland. Typically, run-off is the product
of the inability of water to infiltrate into soil due to saturation or
infiltration rate capacity being exceeded. The rule requires that the
CCR landfill be designed, constructed, operated, and maintained to
collect and control at least the water volume resulting from a 24-hour,
25-year storm. The owner or operator must design, construct, operate,
and maintain the CCR landfill in such a way that any run-off generated
from at least a 24-hour, 25-year storm must be collected through
hydraulic structures, such as drainage ditches, toe drains, swales, or
other means, and controlled so as to not adversely affect the condition
of the CCR landfill. EPA has promulgated these requirements to minimize
the detention time of run-off on the CCR landfill and minimize
infiltration into the CCR landfill, to dissipate storm water run-off
velocity, and to minimize erosion of CCR landfill slopes. An additional
concern with run-off from CCR landfills is the water quality of the
run-off, which may collect suspended solids from the landfill slopes.
EPA acknowledges that the run-off requirements will also minimize the
amount of run-off related pollution generated by the landfill run-off.
c. Run-On and Run-Off Control System Plan
The owner or operator of any CCR landfill must prepare an initial
run-on and run-off control system plan documenting, with supporting
engineering calculations, how the control systems have been designed
and constructed to meet the requirements of the rule. This has been
adopted without revision from the proposal. In most cases, EPA expects
this documentation will include in addition to the supporting
engineering calculations, references and drawings regarding the
[[Page 21390]]
identification of the 24-hour, 25-year storm for the location of the
CCR landfill, a characterization of the rainfall abstractions,
including but not limited to depression storage and infiltration, the
selection and basis of an appropriate run-off model, the selection and
basis of an appropriate run-on or run-off routing model, and the
selection and design of an appropriate run-on and run-off management
system (e.g., swales, ditches, retention or detention ponds).
Consideration of the above factors would generally constitute a
comprehensive review of the hydraulic and hydrologic processes
associated with the design of a run-on and run-off control system plan.
EPA recognizes that over time, any number of factors, e.g., expansion
of the facility, could affect a change in the run-on and run-off
control system plan. Consequently in the final rule EPA is providing
for flexibility in this area by stating that the plan can be amended by
the owner or operator at any time during the life of the CCR landfill,
provided the amendments are placed in the operating record and on the
facility's publicly accessible Internet site.
H. Operating Criteria--Hydrologic and Hydraulic Capacity Requirements
for CCR Surface Impoundments
As discussed in the previous section, EPA proposed to require
owners or operators of CCR landfills to design, construct, operate, and
maintain: (1) A run-on control system to prevent flow onto the active
portion of the unit during the peak discharge from a 24-hour, 25-year
storm; and (2) a run-off control system to collect and control, at a
minimum, the water volume resulting from the same 24-hour, 25-year
storm. EPA also proposed to apply these same run-on and run-off
requirements to all CCR surface impoundments and lateral expansions.
Commenters overwhelmingly disagreed with EPA's decision to apply
the same run-on and run-off requirements to both CCR landfills and CCR
surface impoundments, arguing that a ``control system to prevent flow
onto the active portion of the surface impoundment'' was at odds with a
commonly employed practice of using CCR surface impoundments to manage
incoming storm water and other inflow. While some commenters reasoned
that preventing run-on may be appropriate for CCR landfills and CCR
surface impoundments surrounded by above-ground dikes, the proposed
requirement was entirely inappropriate for units specifically designed
to retain storm water from an adjoining watershed or to operate as part
of a facility's overall storm water management system. Numerous
commenters suggested that instead of the run-on prevention provision
for CCR surface impoundments, EPA adopt a requirement specifying that
CCR surface impoundments be designed to accommodate ``peak discharge
events.'' Other commenters argued that storm water run-on controls were
only appropriate during and after the closure of CCR surface
impoundments; while still other commenters suggested that EPA remove
entirely the run-on and run-off requirements because CCR surface
impoundments were typically designed to impound and discharge storm
water flow far in excess of a 25-year/24-hour storm event.
In evaluating the arguments against the requirements to prevent
flow onto the CCR surface impoundment, the Agency was strongly
influenced by guidance developed by FEMA for selecting and
accommodating hydraulic and hydrologic inflow and outflow as well as
the application of this guidance to the CCR surface impoundments
evaluated as part of EPA's Assessment Program.\109\ A review of FEMA
guidance confirmed commenters' contentions that managing flow both to
and from dams and impoundments was a widely used practice, and a
preferable management strategy for accommodating storm water flows.
This was further confirmed by observations made during EPA's Assessment
Program; EPA frequently observed units designed to detain or retain
storm water inflows of an upstream catchment area to manage CCR, and/or
to receive storm water inflow as part of the facility's overall storm
water management system. Moreover, EPA relied on the same FEMA guidance
to assess the adequacy of the hydrologic and hydraulic capacity of the
CCR surface impoundments. In conducting these assessments, EPA
considered a number of factors including operating freeboard, catchment
area, hydrologic structures' inflow and outflow ratings, design
precipitation event, spillway presence and capacity, and unit operating
procedures to make this determination. The adequacy of the capacity was
determined using FEMA guidance for selecting and accommodating inflow
design floods (IDF) for dams. (Note: The use of the terminology related
to ``inflow design flood'' for CCR surface impoundments rather than
``run-on'' and ``run-off'' is more directly applicable to the hydraulic
and hydrologic capacity of CCR surface impoundments to adequately
manage both the inflow and outflow from a design flood.)
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\109\ EPA referred to FEMA's ``Federal Guidelines for Dam
Safety: Selecting and Accommodating Inflow Design Floods for Dams''
in evaluating the adequacy of the CCR surface impoundment's
hydrologic and hydraulic capacity during its assessment effort.
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During its assessment effort, EPA also found that, contrary to
commenter's arguments CCR surface impoundments were often not designed
to address floods in excess of a 24-hour, 25-year storm event. Rather
many CCR surface impoundments were deficient in their hydrologic and
hydraulic capacity requirements due to factors such as lack of
operating freeboard, misunderstanding of the actual contributory area,
lack of documentation, undersized decant structures, undersized
spillways, and lack of spillways.
EPA also disagrees with the comment asserting that storm water
controls are only appropriate during and after closure of CCR surface
impoundments. Hydrologic and hydraulic capacity, as determined by an
effective design flood control system, is an essential element of the
overall structural integrity and safety of a CCR surface impoundment.
CCR surface impoundments are subject to any number of stresses
throughout their operational life; one of the most common causes of a
dike or embankment failure being the inability of the CCR unit to
adequately pass or manage flood flows resultant from direct or indirect
precipitation. These failures can occur at any point in the CCR unit's
life, not solely during and after closure, and are usually due to
inadequate hydrologic and hydraulic capacity, leading to internal
erosion due to seepage and piping, erosion of spillways, overtopping
erosion, and overstressing of the embankment. Furthermore, according to
the U.S. Bureau of Reclamation, a common dam failure mode is due to
overtopping, accounting for 30% of the failures in the U.S. over the
last 75 years.\110\ Overtopping is the direct result of lack of
adequate hydrologic and hydraulic capacity of a dam or surface
impoundment. Therefore, EPA is not modifying the regulation as
suggested by the commenter.
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\110\ http://www.usbr.gov/ssle/damsafety/Risk/BestPractices/16-FloodOvertoppingPP20121126.pdf.
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In light of comments received, observations made during EPA's
Assessment Program, and guidance developed by FEMA, EPA has concluded
that it was inappropriate to propose to prohibit all run-on discharge
or inflow from storm water to CCR surface impoundments. EPA has also
[[Page 21391]]
concluded that run-on and run-off criteria are inappropriate for CCR
surface impoundments, and that a more appropriate standard involves
determining the hydrologic and hydraulic capacity of a unit, measured
by its inflow design flood or IDF. Therefore, EPA is amending the
proposed run-on and run-off requirements for CCR surface impoundments
to require owners or operators of all CCR surface impoundments to
design, construct, operate, and maintain hydraulic and hydrologic
capacity to adequately manage flow both into and from a CCR surface
impoundment during and after the peak discharge resulting from the
inflow design flood, based on the Hazard Potential Classification of
the CCR surface impoundment.
The final rule requires the preparation of the initial inflow
design flood control system plan within 18 months of publication of the
final rule. In many cases, inflow design flood control system plan
reporting may require design, construction, and post-construction
implementation in order to provide sufficient hydrologic and hydraulic
(H/H) capacity for the CCR unit. In instances where H/H capacity is
insufficient, installing additional capacity may involve spillway
construction or decant structure construction or installation. Many of
these efforts may require several months of design and construction,
compounded by the fact that much of the work cannot be completed in
cold-weather or heavy-rain seasons.
1. Inflow Design Flood Controls for CCR Surface Impoundments and All
Expansions
The Agency has concluded that the proposed requirement preventing
run-on to a CCR surface impoundment was both impractical and
unwarranted and could possibly disrupt effective storm water management
systems operating at CCR facilities. Therefore, consistent with FEMA
guidance, the Agency is modifying this requirement to require an owner
or operator of an existing or new CCR surface impoundment or any
lateral expansion to design, construct, operate, and maintain H/H
capacity of CCR surface impoundments to: (1) Adequately manage flow
into the CCR surface impoundment during and following the peak
discharge of the inflow design flood; and (2) adequately manage flow
from the CCR unit to collect and control the peak discharge resulting
from the inflow design flood. The inflow design flood is based on the
hazard potential classification of the unit as required by Sec. 257.73
and Sec. 257.74 of this rule.\111\ The inflow design floods for
specific hazard potential classifications are as follows: (1) The
probable maximum flood (PMF) for high hazard potential CCR surface
impoundments; (2) the 1000-year flood for significant hazard potential
CCR surface impoundments; (3) the 100-year flood for low hazard
potential CCR surface impoundments; and (4) the 25-year flood for
incised CCR surface impoundments.\112\
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\111\ Federal Guidelines for Dam Safety: Selecting and
Accommodating Inflow Design Floods for Dams. August 1, 2013. FEMA P-
94.
\112\ All discharge from the CCR surface impoundment must be
handled in accordance with the surface water requirements under
Sec. 257.3-3.
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EPA has based this revised requirement on the FEMA's guidance
entitled, ``Selecting and Accommodating Inflow Design Floods for
Dams,'' which represents current and accepted practices in dam
engineering and provides a consistent and uniform standard that has
been adopted throughout dam engineering.
Incised CCR surface impoundments, as defined in this rule, are also
required to meet inflow design flood requirements.\113\ While incised
units do not pose the same potential for release as a diked unit, i.e.,
breach of dike and release of CCR, overtopping of an incised unit does
represent a potential environmental hazard warranting control. EPA
acknowledges, however, that overtopping of an incised unit would result
in a release of CCR material through a surcharge flow, i.e., flow of a
temporary stage overtopping the ``crest'' of the incised CCR surface
impoundment, and would not precipitate the degradation of a dike and
potential subsequent breach of a dike and massive release of contents
of the CCR surface impoundment. To reflect the lower risks associated
with such releases, and because incised CCR surface impoundments are
not required to determine their hazard potential classification, the
Agency is requiring that incised CCR surface impoundments only must
accommodate a 25-year flood for the hydrologic and hydraulic capacity
requirements of the rule. EPA chose the 25-year flood for incised CCR
surface impoundments to maintain consistency with the proposed rule,
which required that all units accommodate a 25-year storm event. As
part of these requirements, EPA is also finalizing a definition of
inflow design flood and flood hydrograph. Inflow design flood has been
defined to mean the flood hydrograph that is used to design or modify
the CCR surface impoundment and its appurtenant works, and flood
hydrograph has been defined to mean the temporal distribution of inflow
into a CCR surface impoundment.
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\113\ Incised CCR surface impoundment means a CCR surface
impoundment which is constructed by excavating entirely below the
natural ground surface, holds an accumulation of CCR entirely below
the adjacent natural ground surface, and does not consist of any
constructed diked portion.
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2. Inflow Design Flood Control Systems
Controlling the inflow and outflow of the CCR surface impoundment
reduces the risks of hydrologic failure, which include overtopping
erosion, internal excessive seepage and piping, erosion of spillways,
and overstressing of the structural components of the CCR surface
impoundment. The CCR surface impoundment's H/H capacity is to be
designed based on the unit's hazard potential classification as
determined by a qualified professional engineer. To meet the
performance standard in the rule, the CCR surface impoundment must be
designed to have adequate H/H capacity to ensure that rainfall and
watershed characteristics have been accounted for, the hydraulic
ratings of all intake structures are adequate and free of obstruction,
operating freeboard is adequate, all spillways and decant structures
have adequate capacity, and all downstream hydraulic structures have
adequate capacity. While not required, an antecedent flood study may be
necessary to characterize the condition of the CCR surface impoundment
under normal operating conditions.
EPA recognizes that in many impoundment configurations, an inflow
design flood may be limited to the direct precipitation that falls
within the perimeter of the CCR surface impoundment during a storm
event, due to the lack of storm water inflow routing from adjacent
catchment areas. Other CCR surface impoundments may have storm water or
other hydrologic contributions from various catchment areas or other
sources. The final rule's hydraulic and hydrologic capacity standards
require all CCR surface impoundments to have adequate hydraulic and
hydrologic capacity to accommodate all contributory inflow to CCR
surface impoundments, regardless of the inflow's origin.
The hydraulic and hydrologic capacity requirements will minimize
the potential for overtopping to occur from normal or abnormal
operations, overfilling, wind and wave action, rainfall, and run-on,
and will ensure that the unit is operated with appropriate
consideration of these potentially adverse conditions. The Agency
notes, however, that the operating freeboard of a CCR surface
[[Page 21392]]
impoundment is subject to fluctuations, deviating from original design
assumptions and specifications. Additionally, EPA notes that routine
maintenance and alterations of hydraulic structures associated with the
CCR surface impoundments, e.g., decant structures and spillways, can
adversely impact the hydrologic and hydraulic capacity of the CCR
surface impoundment. At no point should the inflow design flood exceed
the capacity of the CCR surface impoundment, regardless of fluctuations
in freeboard, maintenance of hydraulic structures, or other potential
obstructions to the hydraulic and hydrologic capacity of the unit. The
owner or operator must account for operational changes or diminished
capacity in the calculation of hydraulic and hydrologic capacity of the
CCR unit.
3. Inflow Design Flood Control System Plan
The owner or operator of an existing CCR surface impoundment must
prepare an initial inflow design flood control system plan to document
that the design and construction of the system will achieve the rule's
performance standards no later than 18 months after the publication of
this rule in the Federal Register. New CCR surface impoundments or
lateral expansions of CCR surface impoundments must prepare an initial
inflow design flood control system plan no later than the date of
initial receipt of CCR in the unit. The owner or operator must obtain a
certification from a qualified professional engineer that the plan
meets all applicable requirements of the rule for inflow design flood
control system plans. The plan must also be supported by appropriate
engineering calculations. This documentation should also include
references, and drawings regarding the identification of the design
storm for the catchment area affecting the CCR surface impoundment and
the CCR surface impoundment itself, a characterization of the rainfall
abstractions, including but not limited to depression storage and
infiltration in the upstream catchment area affecting the CCR surface
impoundment. In addition, EPA expects supporting documentation to
address the selection and basis of an appropriate run-off model and an
appropriate run-on or run-off routing model; the identification and
characterization of any intake or decant structures of the CCR surface
impoundment; an appropriate characterization of the spillway(s) of the
CCR surface impoundment and their capacity; and characterization of
downstream hydraulic structures which ultimately receive the discharge
from the CCR surface impoundment. Finally, the owner or operator must
comply with the recordkeeping, notification and internet requirements
specified in the rule for the plan.
The owner or operator may amend the written inflow design flood
control system plan at any time prior to receipt of CCR in the CCR
unit, during the operating life of the CCR unit, during closure of the
CCR unit, or following closure of the CCR unit provided the revised
plan is placed in the facility's operating record. The owner or
operator must amend the written inflow design flood control system plan
whenever there is a change in the conditions that would substantially
affect the written plan in effect. The owner or operator of the CCR
surface impoundment must also periodically update the inflow design
flood control system plan. The owner or operator must review or update
an existing plan at a frequency no less than every five years. Changes
in storm characteristics (e.g., intensity and duration) and upstream
catchment area characteristics, hazard potential classifications, as
well as build-out, operational changes, and diminishing available
capacity, all have the potential to influence inflow design flood
volumes and therefore the effectiveness of the existing inflow design
flood control systems. A periodic review of the plan to address these
and other factors is necessary to ensure that the hydrologic and
hydraulic capacity of the unit is maintained over time. An update of
the inflow design flood control system plan should document any
modifications pertinent to the inflow design flood control system.
The owner or operator may amend the written inflow design flood
control system plan at any time and must place the revised plan in the
facility's operating record. However, the owner or operator must amend
the written inflow design flood control system plan whenever there is a
change in the conditions that would substantially affect the written
plan in effect. The owner or operator of the CCR unit must also review
and, where necessary, update an inflow design flood control system plan
every five years. As part of this review, the owner or operator must
obtain certification from a qualified professional engineer must
certify that the inflow design flood control system plan, and any
subsequent amendments continues to meet the requirements of the rule.
The date of completion of the initial plan is the basis for
establishing the deadline to complete the first subsequent plan. The
owner or operator may complete any required plan prior to the required
deadline, and must place the completed plan into the facility's
operating record within a reasonable amount of time.
I. Operating Criteria--Inspection Requirements for CCR Surface
Impoundments
EPA proposed structural stability requirements for CCR surface
impoundments based on the long-standing MSHA requirements, with only
minor modifications. These structural stability requirements were
covered in various sections of the proposed rule (see specifically
proposed Sec. Sec. 257.71, 257.72, 257.83, and 257.84). Section 257.83
addressed requirements for periodic inspections of CCR surface
impoundments. In proposing these requirements, the Agency concluded
that periodic inspections were critical to ensure that any problems
relating to structural stability are quickly identified and remedied to
prevent catastrophic releases, such as occurred at Martins Creek,
Pennsylvania and TVA's Kingston, Tennessee facility. The proposed rule
required owners or operators to conduct: (1) Weekly inspections to
detect potentially hazardous conditions or structural weakness; and (2)
annual inspections to assure that the design, operation, and
maintenance of the surface impoundment was in accordance with generally
accepted engineering standards. EPA proposed that weekly inspections be
conducted by a person qualified to recognize specific signs of
structural instability and other hazardous conditions by visual
observation and, if applicable, to monitor instrumentation. The
proposed rule also required annual inspection reports from an
independent registered professional engineer, certifying that the
design, operation, and maintenance of the CCR surface impoundment was
in accordance with generally accepted engineering standards. Consistent
with the annual inspection requirements, EPA, as part of its
recordkeeping requirements also proposed that owners or operators of
CCR surface impoundments annually document and report on, among other
things: (1) Changes in the geometry of the impounding structure; (2)
location and type of instrumentation monitoring the unit; (3) the
minimum, maximum and present depth and elevation of the impounded
water, sediment or slurry for the reporting period; and (4) storage
capacity of the impounding structure (see 75 FR at 35246).
The annual inspection provisions also required that if a
potentially hazardous
[[Page 21393]]
condition developed, the owner or operator must immediately take
several actions: Eliminate the potentially hazardous condition; notify
potentially affected persons and state and local first responders;
notify and prepare to evacuate, if necessary, all personnel from the
property who may be affected by the potentially hazardous condition(s);
and direct a qualified person to monitor all instruments and examine
the structure at least once every eight hours, or more often as
required by an authorized representative of the state. Finally, the
proposed rule required that inspection and monitoring reports be
maintained in the facility operating record and placed on the
facility's publicly accessible Internet site as well as promptly
reporting the results of the inspection or monitoring to the state.
EPA specifically requested comment on whether to cover all CCR
impoundments for stability (including the inspection requirements),
regardless of height and storage volume, whether to use the cut-offs in
the MSHA regulations, or whether other regulations, approaches, or size
cut-offs should be used. The Agency further requested commenters who
believed that other regulations or size cut-offs should be used (and
not the size cut-offs established in the MSHA regulations) to provide
the basis and technical support for their position. (75 FR 35176,
35223). In response to EPA's general solicitation for alternative size
cut-offs, the Agency received little response. However, many commenters
questioned EPA's decision to require inspections for all CCR surface
impoundments, given that the other structural stability requirements
were triggered only if the CCR unit exceeded the proposed size
threshold (consistent with MSHA requirements). Commenters argued that
there was no basis to require inspections of all CCR surface
impoundments given that units below the specified size threshold had a
much lower risk of catastrophic failure. A more limited requirement the
commenter's argued, was supported by MSHA's decision to regulate only
those ``larger'' sized units. Other commenters argued that inspection
timeframes should take into account site specific conditions at the
site and be based on the recommendations of an independent registered
professional engineer. Commenters reasoned that while, in theory, a
short inspection interval (i.e., a weekly inspection) should increase
the chances of finding an adverse condition, the judgment of a
qualified professional engineer to establish the frequency and focus,
as well as the purpose of the dam safety inspection was a far more
effective method for detecting and preventing the development of a
potentially adverse situation. Still other commenters questioned the
overall value of a weekly inspection if, as proposed, no documentation
of the results was required.
In reviewing the proposed regulatory language, it appears an error
was made. Although the preamble generally stated that the proposed
regulatory requirements addressing stability (which included
inspections) applied only to those CCR surface impoundments exceeding
the specified size threshold established by the MSHA regulations, the
regulatory text required inspections for all CCR units. The final rule
requires weekly general inspections and monthly instrumentation
inspections to be conducted for all CCR surface impoundments. Periodic
inspections of all CCR units are a necessary practice to ensure that
the overall structural integrity of the CCR unit is maintained and that
actual and potential structural weaknesses and other hazardous
conditions are quickly identified and remediated throughout the active
life of the unit. All CCR surface impoundments pose some risk of
release--whether from a catastrophic failure or from a more limited
structural failure, such as occurred at Duke Energy's Dan River plant.
Periodic inspections are a generally accepted, prudent engineering
practice that will significantly reduce the risks of such failures;
during the Assessment Program, EPA discovered that many facilities
routinely conduct some sort of periodic inspection and monitoring,
although the frequency varied widely between facilities. The final rule
merely codifies this practice, by establishing a consistent minimum
timeframe. EPA is therefore requiring that all CCR surface impoundments
be inspected by a qualified person both weekly (for visual signs of a
potentially adverse condition) and monthly (for instrumentation
monitoring). Consistent with the proposed rule, EPA is also requiring
annual inspections for all CCR surface impoundments that exceed the
specified size threshold of: (1) A height of five feet and a storage
capacity of 20 acre-feet; or (2) a height of 20 feet, must also be
inspected no less than annually by a qualified professional engineer.
These inspection requirements are generally being promulgated as
proposed, with minor technical clarifications.
The final inspection requirements have been drawn heavily from
guidelines established by FEMA for dam safety, under which maintaining
structural integrity involves continuous evaluation of the unit, based
on periodic inspections. To be most effective, FEMA suggests, and EPA
concurs, that inspections be varied with respect to both the time
interval between inspections and the level of detail of the inspection.
FEMA guidance, in part, suggests that inspections can be categorized as
either: Visual observations to identify abnormal conditions (i.e.,
informal inspections); field inspections by a professional engineer
(i.e., intermediate inspections); and a technical review to determine
if the unit meets current and accepted design criteria and practices
(i.e., formal inspection).\114\ In general, FEMA recommends that
inspections focusing on visual observations should be conducted often
(e.g., weekly) while more substantive technical evaluation should be
conducted every year to every five years depending on the engineering
analyses required. (See also the preamble discussion on the
requirements specified in Sec. Sec. 257.73 and 257.74 of this rule, in
particular the discussion addressing the five year time interval for
structural stability and factor of safety reassessments.)
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\114\ See ``Federal Guidelines for Dam Safety'' Federal
Emergency Management Agency. (Reprinted April 2004).
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For the reasons discussed above, EPA has concluded, consistent with
FEMA guidelines, that routine inspections of all CCR units are
necessary to ensure that the units are safely operated and that issues
that could disrupt the safety and continuing operation of these units
are promptly identified and remediated. Accordingly, the final rule
requires both weekly inspections and monthly instrumentation
inspections to be conducted at all CCR surface impoundments to confirm
that they are operating safely. These inspections must be conducted by
a qualified person trained to recognize specific signs of structural
instability and other hazardous conditions by visual observation and
if, applicable monitor instrumentation. EPA is also retaining the
annual inspection requirement for CCR surface impoundments exceeding
the specified size threshold established in this rule. This inspection
must be conducted and certified by a qualified professional engineer.
Units exceeding this size threshold pose a higher degree of risk of
release of CCR to the environment than other types of CCR surface
impoundments (e.g., incised or ``small'' CCR units) and as such warrant
additional regulatory control and oversight.
[[Page 21394]]
The final rule requires that both weekly inspections of the CCR
unit and monthly monitoring of CCR unit instrumentation be initiated
within 6 months of the publication of the rule.
Within nine months of the publication of the rule, the owner or
operator must complete the initial annual inspection of the CCR unit.
Initial annual inspection requires the retaining of a professional
engineer along with the familiarization of the engineer with the
facility and CCR units. Additionally, the annual inspection should not
be conducted unless weekly inspection and monthly instrumentation
monitoring has been initiated and established in order to generate a
body of information for the professional engineer to consider.
Furthermore, in some cold-weather regions of the United States, weather
may inhibit adequate inspection of CCR units, whether through snow or
ice cover. EPA is establishing a timeframe of nine months after the
publication of the rule so as to allow for adequate weather conditions
for inspection.
1. Surface Impoundment Inspection Requirements
a. Weekly Inspections
As presented in the proposed rule and finalized here, this rule
requires all CCR surface impoundments to be examined by a qualified
person at least once every seven days for any appearance of actual or
potential structural weakness or other conditions that are disrupting
or that have the potential to disrupt the operation or safety of the
CCR unit. The results of the inspection by a qualified person must be
recorded in the facility's operating record.
Weekly inspections are intended to detect, as early as practicable,
signs of distress in a CCR surface impoundment that may result in
larger, more severe conditions. They are also designed to identify
potential issues with hydraulic structures that may affect the
structural safety of the CCR surface impoundment and impact the
hydraulic and hydrologic capacity of the CCR surface impoundment. The
early detection of signs of structural weaknesses is an essential
preventative measure which helps to impede structural failure. The
required weekly inspections are designed to identify such signs of
structural weakness before they develop into larger, debilitating
concerns in the structural stability of the dike.
Appearances of structural weakness may include, but are not limited
to: (1) Excessive, turbid, or sediment-laden seepage; (2) signs of
piping and other internal erosion; (3) transverse, longitudinal, and
desiccation cracking; (4) slides, bulges, boils, sloughs, scarps,
sinkholes, or depressions: (5) Abnormally high or low pool levels; (6)
animal burrows; (7) excessive or lacking vegetative cover; (8) slope
erosion; and (9) debris.
In addition, EPA is also adopting a new provision that requires the
qualified person to inspect the discharge of all outlets of hydraulic
structures which pass underneath the base of the CCR surface
impoundment or through the dike of the CCR unit for abnormal
discoloration, flow, or discharge of debris or sediment. The
requirement is being added to aid in the identification of any internal
or sub-surface issues which cannot be reasonably identified in a
routine visual inspection. Abnormal discharges from hydraulic
structures are often an indication of potential issues with the sub-
surface or internal integrity of the structure. Hydraulic structures,
particularly corrugated metal pipe, are subject to deterioration and
corrosion over time and, as deterioration proceeds, the hydraulic
structure becomes more susceptible to collapse, translation, or
malfunction. Issues with hydraulic structures within the dike may
exacerbate structural or operational issues with the CCR surface
impoundment due to the significant internal deterioration of the dike
via the hydraulic structure. As an example, on February 2, 2014, Duke
Energy's Dan River Fossil Plant experienced a structural collapse of a
corrugated metal storm water discharge pipe which passed underneath the
interior of a CCR surface impoundment. The subsequent collapse of the
base of the CCR surface impoundment led to a massive release of CCR to
the environment. Additionally, the adjacent dike of the CCR surface
impoundment was severely damaged due to the erosion of the upstream
slope.
Further, an owner or operator may want to consider inspections
outside of the weekly, seven-day schedule if an unanticipated event,
such as a flood, earthquake, or vandalism occurs on the site. While
rare in occurrence, these events may increase the chances that a
potential structural stability issue has arisen. Prudent CCR management
practices dictate that a visual assessment is warranted after such
events. For example, after a large flood (considered a flood with a
return period of equal or greater frequency of ten years) there is
potential for damage, including structural damage to the CCR surface
impoundment, caused by increased reservoir levels that inundate areas
infrequently inundated. The slopes of the dike should be inspected to
ensure that no significant erosion has occurred due to the flood, or
that any large debris or sediment has been deposited on the dike. An
inspection should also be conducted following an earthquake where
earthquake damage is observed or can be reasonably expected, where
ground motion is felt at the CCR surface impoundment or in nearby
locations, or following established magnitude-epicenter distance
relationships.\115\
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\115\ The U.S. Army Corps of Engineers have developed useful
criteria for post-earthquake inspections, specifically their
published magnitude-epicenter distance criteria in Table 11.1 of
``Safety of Dams--Policy and Procedures,'' ER 1110-2-1156, 31 March
2014.\115\ The criteria stipulate when the dam (or in the case of
this rule, CCR surface impoundment) should be inspected.
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b. Monthly Instrumentation Inspection
In a departure from the proposed rule, EPA is requiring the
monitoring of all instrumentation supporting the operation of the CCR
unit to be conducted by a qualified person no less than once per month.
This is a change from the proposal which required instrumentation to be
monitored no less than every seven days.
Many commenters argued that requiring inspections every seven days
was excessive, and that, based on FEMA guidelines for dam safety, a
more reasonable timeframe would be once per month for CCR surface
impoundments with a hazard potential rating of ``high'' and quarterly
for those CCR surface impoundments with a hazard potential rating of
``significant.'' In considering these comments, the Agency was
influenced by a number of factors including the FEMA guidelines
suggested by the commenters. Also weighing heavily in EPA's decision
were the observations made as part of the Assessment Program, which
revealed that many CCR units are equipped with only ``basic'' measuring
devices such as piezometers and pool elevation and freeboard
instrumentation and not the more sophisticated (i.e., sensitive)
measuring devices for measuring pressure, seepage, internal movement,
slope movement; and vibration. These findings strongly suggested to the
Agency that, given the status of current instrumentation employed at
CCR facilities, weekly monitoring would be excessive, impractical,
and--of greatest significance--unlikely to indicate any measurable
changes in structural stability in such a short timeframe. EPA,
therefore, agrees that a monthly timeframe is a more appropriate
interval for detecting discernible or significant changes in the
operation of the CCR
[[Page 21395]]
unit. EPA has not, however, differentiated between high, significant,
and low hazard potential CCR surface impoundments in the requirement
that instrumentation be monitored monthly, as commenters suggested.
Through the assessment effort, EPA identified that typically low hazard
potential CCR surface impoundments were monitored less frequently than
high- or significant hazard potential CCR surface impoundments by the
owner or operator. Additionally, these low hazard potential CCR surface
impoundments less commonly were equipped with sophisticated monitoring
instrumentation, including remote monitoring instrumentation which
would allow the owner or operator to monitor the unit from a remote
location. Based on these observations, along with the limited burden
that instrumentation monitoring places on the owner or operator, the
rule requires all CCR surface impoundments with instrumentation to be
monitored monthly.
c. Annual Inspections
The rule requires owners or operators of any CCR surface
impoundments exceeding the MSHA size threshold (i.e., a height of five
feet or more and a storage volume of 20 acre-feet or more; or a height
of 20 feet or more) to conduct annual inspections of the CCR unit
throughout its operating life. These annual inspections are focused
primarily on the structural stability of the CCR surface impoundment
and must ensure that the operation and maintenance of the CCR surface
impoundment is in accordance with recognized and generally accepted
good engineering standards. Inspections must be conducted and certified
by a qualified professional engineer.\116\ Incised CCR surface
impoundments, as defined in Sec. 257.53 are not subject to the annual
inspection requirements. Incised units present lower risks of
structural failure, and so weekly inspections are sufficient to address
any risks associated with these CCR units.
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\116\ For purposed of this requirement, qualified means an
individual experienced in the operation and maintenance of dams and
who has been trained to recognize signs of concern and structural
weakness by visual observation, and if applicable, to monitor
instrumentation.
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Annual inspections of any CCR surface impoundment must include, at
a minimum: (1) A review of all previously generated information
regarding the status and condition of the CCR unit, including, but not
limited to, all operating records and publicly accessible internet site
entries, design and construction drawings and other documentation; (2)
a thorough visual inspection to identify indications of distress,
unusual or adverse behavior, or malfunction of the CCR unit and
appurtenant structures; and (3) a thorough visual inspection of
hydraulic structures underlying the base of the CCR unit and passing
through the dike of the CCR unit for structural integrity and continued
safe and reliable operation. Additionally, following each inspection,
the qualified professional engineer must prepare an inspection report
which documents the following: (1) Any changes in geometry of the
impounding structure since the previous annual inspection; (2) the
location and type of existing instrumentation and the maximum recorded
readings of each instrument since the previous annual inspection; (3)
the approximate minimum, maximum, and present depth and elevation of
the impounded water and CCR since the previous annual inspection; (4)
the storage capacity of the impounding structure at the time of
inspection; (5) the approximate volume of the impounded water and CCR
at the time of the inspection; and (6) any appearances of an actual or
potential structural weakness of the CCR unit, in addition to any
existing conditions that are disrupting or have the potential to
disrupt the operation and safety of the CCR unit and appurtenant
structures; and (7) any other change(s) which may have affected the
stability or operation of the impounding structure since the previous
annual inspection.
This last set of requirements was originally presented in Sec.
257.84 of the proposed rule (i.e., recordkeeping requirements),
however, the Agency has moved these requirements to the annual
inspection section of the rule because (1) these requirements apply
only to CCR surface impoundments exceeding the specified size
threshold, rather than all CCR surface impoundments, as proposed; (2)
must be reported annually; and (3) are more appropriately housed in the
inspection section.
The owner or operator of existing CCR surface impoundments must
ensure that the initial annual inspection by a qualified professional
engineer is completed and documented with a report no later than nine
months after the publication of the rule. EPA established this
timeframe for completing an initial annual inspection based on its
experience with the Assessment Program. In an effort similar to
conducting an initial annual inspection, the following tasks were
generally completed within three months: Retaining the services of a
qualified professional engineer, developing a scope of work, reviewing
existing documentation on the CCR unit, conducting a thorough field
inspection, and completing an inspection report. Owners and operators
of new CCR surface impoundment must commence annual inspections no
later than one year from the initial placement of CCR into the new
unit. An annual inspection is not required in any calendar year in
which the five year structural stability reassessment is also required
to be completed. (See Sec. Sec. 257.73 and 257.74.) The report which
the qualified professional engineer has certified must be placed in the
facility's operating record and placed on the facility's publicly
accessible internet site. An annual inspection is considered complete
when the inspection report has been placed in the facility's operating
record. Finally, if a deficiency is identified during an inspection,
the owner or operator must take immediate measures to remedy the
structural weakness or disrupting condition as soon as feasible.
J. Operating Criteria--Inspections for CCR Landfills
Under 40 CFR part 258, EPA does not require specific inspection
requirements for MSWLFs. Rather, EPA relies on states to establish
their own inspection criteria and frequency of inspections to ensure
protection of human health and the environment. It is the Agency's
understanding that many states require owners or operators of MSWLFs to
conduct either daily, weekly, quarterly and annual inspections of these
units to ensure that the design, construction, operation, and
maintenance complies with all requirements. In addition, based on a
review of selected state regulations most states conduct state
inspections of operating landfills no less than annually.
Under the proposed subtitle D option, EPA did not propose to
require mandatory inspections of new or existing landfills or any
lateral expansion. However, under the subtitle C option, EPA proposed
to apply the requirements of Sec. 264.303 to permitted CCR landfills.
Specifically, these requirements stated that CCR landfills while in
operation would be required to be inspected weekly and after storms to
detect evidence of any of the following: (1) Deterioration,
malfunctions, or improper operation of run-on and run-off control
systems; (2) proper functioning of wind dispersal control systems,
where present; and (3) the presence of leachate in and proper
functioning of the leachate collection and removal system where
present. (See proposed Sec. 264.1306, 75 FR 35257).
[[Page 21396]]
Upon further evaluation, the Agency has decided, consistent with
the weekly inspection requirements proposed for CCR landfills under the
subtitle C option, as well as many state requirements for MSWLFs, to
require all existing and new CCR landfills and any lateral expansion to
conduct, at intervals not exceeding seven days, inspections by a
qualified person for any appearances of actual or potential structural
weakness or any other conditions which are disrupting or have the
potential to disrupt the operation or safety of the CCR landfill. In
addition, EPA is also requiring inspections by a qualified professional
engineer at intervals not exceeding one year to ensure that the design,
construction, operation, and maintenance of the CCR landfill is
consistent with recognized and generally accepted good engineering
standards. This inspection must include a review of all data in the
operating record as well as a visual inspection of the unit to identify
signs of distress or malfunction that is or potentially could affect
the safe operation of the unit. The qualified professional engineer
must then also prepare a report to identify and discuss the findings of
the inspection as well as a discussion of potential remedies for
addressing any deficiencies discovered during the inspection. The
Agency has concluded that all CCR landfills should be routinely
inspected to ensure that they are operating as designed and are being
maintained in compliance with the federal criteria.
The Agency is promulgating these inspection requirements based on:
(1) A review of state municipal landfill inspection requirements; and
(2) comments from parties that clearly supported inspections of all CCR
landfills. The Agency reviewed MSWLF inspection checklists in a
selected number of states to assess the scope of these inspections. The
Agency also conducted a preliminary review of state MSWLF regulations
for New York, Pennsylvania, Ohio, Wisconsin, Illinois, Missouri, North
Dakota and California. All of these states require MSWLF owners or
operators to conduct a either daily, weekly, monthly, quarterly and
annual inspections addressing the following: (1) Proper placement of
the waste; (2) slope stability and erosion control; (3) surface water
percolation is minimized (i.e. reduce ponding); (4) liner systems and
leachate collection systems are properly operated and maintained; (5)
water quality monitoring systems are maintained and operating; (6) dust
is controlled; and (7) a plan is in place to promptly address and
correct problems and deficiencies discovered during the inspection. The
Agency also noted during its review of state regulations that states
reserve the right to inspect landfills at any time and routinely
conduct state inspections on a no less than annual basis. CCR landfills
present at least the same level of risks as MSWLFs, and while the
operations may differ, both operating systems are equally susceptible
to malfunction. Weekly inspections of all CCR landfills by a qualified
person are therefore equally necessary to ensure that groundwater
monitoring, run-on and run-off controls, liner systems, and leachate
collection systems are operated and maintained to reduce adverse
environmental and human health impacts.
This rule also requires that owners or operators of all existing
and new CCR landfills and any lateral expansion conduct an annual
inspection, certified by a qualified professional engineer, to assure
that these units are designed, constructed, operated, and maintained
throughout their operating life to ensure protection of human health
and the environment. The Agency finds that annual inspections for these
units are justified for a number of reasons. First, CCR landfills are
large engineered units that require that a variety of design and
operating parameters be assessed to assure that the CCR landfill is
operating as designed. Of particular concern to the Agency is the fact
that coal ash is a fine grained material that may have the potential to
compact and clog leachate collection systems (see: ``Operations and
Maintenance Guidelines for Coal Ash Landfills'' Christopher Hardin, et.
al. 2011 World of Coal Ash Conference. May 2011). It is reasonable
therefore that the rule requires annual inspections to assure that
these liner and leachate systems are assessed to assure that they are
performing their functions as designed. Second, a formal annual
inspection would review data collected during weekly inspections and
determine if any remedial actions are need to address deficiencies.
Third, the annual review by a qualified professional engineer ensures
that a detailed level of engineering analysis of operating conditions
are evaluated which could lead to recommendations to address design or
operating issues that need attention.
K. Groundwater Monitoring and Corrective Action
EPA is finalizing groundwater monitoring and corrective action
requirements to ensure that groundwater contamination at new and
existing CCR units will be detected and cleaned up as necessary to
protect human health and the environment. These requirements reflect
Congressional intent that protection of groundwater be a prime
objective of any new solid waste regulations. As stated in the
proposal, EPA's damage cases and risk assessments indicate there is
significant potential for CCR landfills and CCR surface impoundments to
leach hazardous constituents into groundwater, impair drinking water
supplies and cause adverse impacts on human health and the environment.
Indeed, groundwater contamination is one of the key environmental and
human health risks EPA has identified with CCR landfills and CCR
surface impoundments. Groundwater monitoring is a key mechanism for
facilities to verify that the existing containment structures, such as
liners and leachate collection and removal systems, are functioning as
intended. Thus, in order for a CCR landfill or CCR surface impoundment
to show no reasonable probability of adverse effects on health or the
environment, a system of routine groundwater monitoring to detect any
contamination from a CCR unit, and corrective action requirements to
address identified contamination, are essential.
EPA proposed to require that a system of monitoring wells be
installed at all new and existing CCR units. The regulation would also
provide procedures for sampling these wells and methods for statistical
analysis of the analytical data derived from the well samples to detect
the presence of hazardous constituents released from these CCR units.
The Agency proposed a groundwater monitoring program consisting of
detection monitoring and assessment monitoring, and a corrective action
program. This phased approach to groundwater monitoring and corrective
action programs provides for a graduated response over time to the
problem of groundwater contamination as the evidence of such
contamination increases. This allows for proper consideration of the
transport characteristics of CCR constituents in groundwater, while
protecting human health and the environment.
EPA largely based these proposed groundwater monitoring
requirements on those for MSWLFs in the 40 CFR part 258 criteria,
albeit with certain modifications to tailor the requirements to the
case at hand. In particular, the possibility that a state may lack a
permit program for CCR units made it impossible to include some of the
alternatives available in 40 CFR part 258, which establish alternative
standards that allow a state, as part of
[[Page 21397]]
its permit program to tailor the default requirements to account for
site specific conditions at the individual facility. EPA also sought to
tailor the proposed requirements for CCR units, by incorporating
certain provisions from the interim status regulations, which operate
in the absence of a permit, and by including in several of the proposed
requirements, a certification by an independent registered professional
engineer that the rule's requirements had been met.
In the proposed rule, the Agency required facilities to install a
groundwater monitoring system that met a specified performance standard
and that consisted of a minimum of one upgradient and three
downgradient wells at all CCR units. EPA acknowledged in the proposal
that the design of an appropriate groundwater monitoring system is
particularly dependent on site conditions relating to groundwater flow,
and on the development of a system that has a sufficient number of
wells, installed at appropriate locations and depths, to yield
groundwater samples from the uppermost aquifer that represent the
quality of background groundwater that has not been affected by
contaminants from a CCR unit. EPA's existing requirements under 40 CFR
parts 258 and 264 recognize this, and because they operate in a
permitting context, these requirements provide more flexibility in
establishing groundwater monitoring systems. But because the same
guarantee of permit oversight is not available under the criteria
developed for the proposal, EPA proposed to establish a minimum
requirement based on the part 265 interim status regulations, which are
self-implementing. Long experience demonstrates that these monitoring
requirements will be protective of a wide variety of conditions and
wastes, and that facilities can feasibly implement these requirements.
EPA also noted that in many instances a more detailed groundwater
monitoring system will need to be in place, and EPA therefore proposed
requiring a certification by the independent registered professional
engineer that the groundwater monitoring system is designed to detect
all significant groundwater contamination.
EPA also proposed to require that owners and operators of CCR units
establish consistent sampling and analysis procedures to determine
whether a statistically significant increase in the level of a
hazardous constituent(s) has occurred, indicating the presence of
groundwater contamination.
As noted, EPA proposed a phased approach to monitoring. The first
phase is detection monitoring where indicators would be monitored to
determine whether groundwater was potentially being contaminated. The
parameters EPA proposed to be used as indicators of groundwater
contamination were the following: Boron, chloride, conductivity,
fluoride, pH, sulfate, sulfide, and total dissolved solids (TDS). In
selecting the parameters for detection monitoring, EPA chose
constituents that are present in CCR and would rapidly move through the
subsurface, and thus provide an early detection of whether contaminants
were migrating from the CCR unit. Under the proposed rule, monitoring
would be required no less frequently than semiannually.
When a statistically significant increase over background levels is
detected for any of these parameters, the proposed rule required the
facility to begin an assessment monitoring program to determine if
releases of CCR constituents of concern had occurred. The parameters
that were proposed for assessment monitoring were aluminum, antimony,
arsenic, barium, beryllium, boron, cadmium, chloride, chromium, copper,
fluoride, iron, lead, manganese, mercury, molybdenum, pH, selenium,
sulphate (sic), sulfide, thallium, and total dissolved solids.
The proposed rule also required that whenever monitoring results
indicate a statistically significant level exceeding the groundwater
protection standard for any of these parameters, the owner or operator
must start the process for cleaning up the contamination, and initiate
an assessment of corrective action remedies. The proposed rule required
that the assessment of correction action remedies be initiated within
90 days and then completed within 90 days.
EPA proposed that the assessment of corrective measures must
consider a number of factors, including the effectiveness, performance,
and time needed for the potential remedies. As part of the assessment
of corrective measures, the owner or operator was required to identify
the source of the release. The owner or operator was also required to
gather data on plume definition, fate of the contaminants, stratigraphy
and hydraulic properties of the aquifer. The owner or operator also was
required to consider whether immediate measures to limit further plume
migration or measures to minimize further introduction of contaminants
to groundwater would be necessary. EPA also proposed to require the
owner or operator to provide notification of the corrective measures
assessment to the State Director, place the corrective measures
assessment in the operating record and on the owner's or operator's
publicly accessible internet site, and discuss the results of the
corrective measures assessment in a public meeting with interested and
affected parties.
Based on the results of the corrective measures assessment, EPA
proposed to require the owner or operator to select a remedy based on a
number of factors, including: the long- and short-term effectiveness
and protectiveness of the potential remedy, along with the degree of
certainty that the remedy will prove successful; the effectiveness of
the remedy in controlling the source to reduce further releases; the
ease or difficulty of implementing a potential remedy; the degree to
which community concerns are addressed by a potential remedy; and
potential risks to human health and the environment from exposure to
contamination prior to completion of the remedy. The owner or operator
was also required to specify as part of the selected remedy a schedule
for initiating and completing remedial activities.
Under the proposed rule, implementing the corrective action program
required the owner or operator to establish and implement a corrective
action groundwater monitoring program; implement the corrective action
remedy selected; and take any interim measures necessary to ensure the
protection of human health and the environment, all according to the
schedule the owner or operator developed during the assessment of
corrective measures.
The proposed rule also required that the owner or operator must
demonstrate that concentrations of constituents have not exceeded the
groundwater protection standards for three consecutive years in order
to support a determination that the remedy is complete.
The majority of the commenters supported ``appropriate groundwater
monitoring standards for CCR waste management units'' and the
development of such standards under a RCRA subtitle D framework.
Comments were received on various parts of the groundwater monitoring
scheme laid out in the proposed rule. The majority of comments received
requested EPA to provide ``more flexibility'' to the proposed
requirements. Many commenters wanted the states to be more involved
with the process and provided comments suggesting that additional
``flexibility,'' such as is provided in the 40 CFR part 258
[[Page 21398]]
regulations for MSWLFs as part of the permitting process, be extended
to CCR units. For example, commenters wanted states to have the
authority to add or drop monitoring constituents; approve alternative
schedules; modify the number of wells needed; allow variances; allow
alternatives to the point of compliance specified in the rule; employ
alternative methods to detect potential groundwater contamination, such
as leak detection systems; allow alternatives to the statistical
methods used to determine whether groundwater contamination has
occurred; and to replace the qualified professional engineer role in
the certification process.
For the final rule, EPA has developed a groundwater monitoring
program that is flexible and allows facilities to design a system that
accounts for site specific conditions within specific parameters. The
final rule establishes an overall performance standard that the system
must meet, lays out the minimum requirements of an effective system,
and requires the owner or operator to design a system that achieves
that overall performance standard based on a full characterization of
site conditions.
As described in more detail below, in certain cases, EPA was able
to develop performance standards to serve as ``more flexible''
alternatives to the technical specifications laid out in the proposal.
In these instances, the available information allowed the Agency to
develop performance standards that were sufficiently objective and
determinate that EPA could conclude that the 4004(a) standard would be
met nationwide.
However, many of the commenters' requests related to alternatives
that would be less stringent than the minimum criteria laid out in the
proposal and were based on arguments that state regulators (or
facilities) should be allowed to ``tailor'' those requirements to sites
that did not need those particular requirements. As explained at length
in the proposal, EPA is concerned that provisions allowing such
modifications are particularly susceptible to abuse, since in many
cases the provisions could allow substantial cost avoidance. In the
absence of a mandated state oversight mechanism to ensure that the
suggested modifications are technically appropriate, these kinds of
provisions can operate at the expense of protectiveness. In Unit II of
this preamble, EPA explains the extent of our authority to establish
criteria under RCRA sections 1008(a)(3) and 4004(a), including the
implications associated with the lack of any authority to establish a
program analogous to part 258, which relies on approved states to
implement the federal criteria through a permitting program. As a
result of the statutory structure, this rule is self-implementing and
is designed to operate to ensure that facilities will manage CCR in a
manner that achieves the 4004(a) standard even in the absence of any
regulatory entity available to judge the reasonableness of the desired
alternatives. While some states currently do have programs for the
regulation of CCR, which in some cases may be more stringent than this
final rule, the federal program must be defensible on the record in
place at the time the final rule is adopted. Based on the current
rulemaking record, in most cases EPA lacked the information necessary
to defend the commenters' less stringent alternatives (i.e., the
commenters' requested ``flexibilities'') to the minimum technical
criteria specified in this rule for these units. Under both the
subtitle C and part 258 programs, EPA can rely on subsequent
proceedings to develop the information necessary to support such
tailoring. This is clearly neither contemplated nor authorized under
the regulatory program relevant to this rule.
In addition, given the extremely technical nature of these
requirements, EPA remains concerned that such provisions would render
the requirements appreciably more difficult for citizens to effectively
enforce. Nevertheless, working within these constraints this rule
specifically allows the qualified PE to design a system that accounts
for site conditions within the parameters of the minimum technical
criteria, and EPA has added language to the regulation that expressly
clarifies this. Moreover, states that have programs can continue to
impose more stringent requirements, and thus can require, for example,
additional monitoring wells, monitoring of additional aquifers, and
inclusion of additional parameters to the detection monitoring list or
the assessment monitoring list. The following discussion addresses in
more detail the technical requirements under groundwater monitoring and
corrective action in the final rule.
1. Applicability
Consistent with the provisions in the proposed rule, the final rule
requires a system of monitoring wells to be installed at all CCR
landfills, CCR surface impoundments and lateral expansions. Existing
CCR units must install the groundwater monitoring system, develop their
groundwater sampling and analysis procedures, develop background levels
for appendix III and appendix IV constituents, and begin detection
monitoring (Sec. 257.90 through Sec. 257.94) within two years of the
effective date of this rule. The proposed rule required that existing
CCR units comply with the groundwater monitoring requirements within
one year of the effective date. EPA proposed one year believing that it
would be feasible for facilities to install the necessary systems. EPA
also believed that a one year timeframe would ensure that existing CCR
disposal facilities begin monitoring groundwater as soon as possible,
so that releases from existing CCR units are detected and addressed.
Comments received on this issue argued that the one-year timeframe was
not sufficient to complete a hydrogeologic study and develop a
monitoring plan. Several commenters requesting more time mentioned
staffing shortages and limited contractor and lab resources. One state,
referencing its experience relating to development and implementation
of groundwater monitoring systems, said that a one year timeframe to
investigate, design and submit and obtain approval for the installation
of an effective groundwater monitoring system was unreasonable. Most
commenters thought that a timeframe of two years was reasonable. After
review of the comments received on this issue and careful reexamination
of the actual requirements in the final rule, EPA agrees that a one-
year timeframe is not feasible, and has decided to extend the
timeframes for completing installation of the system, including
background monitoring, to two years. As important as it is to begin
detecting and addressing releases to groundwater, it is equally
important that these complex systems be designed and installed
correctly. That generally entails a number of activities, many of which
must occur sequentially, including: determining the uppermost aquifer,
deciding whether to install a single or multi-unit monitoring system,
collecting and evaluating hydrogeological information that can be used
to model the site, characterizing the site geology, characterizing the
groundwater flow beneath the site, determining the flow direction and
hydraulic gradient, establishing horizontal and vertical flow
direction, determining hydraulic conductivity, determining groundwater
flow rate, determining the monitoring wells placement, selecting the
drilling method, designing the monitoring wells, developing sampling
and analysis procedures, choosing a statistical method for evaluating
the data and
[[Page 21399]]
beginning detection monitoring. We also recognize that in some states,
the state may require the owner or operator to receive state approval
before they can install a groundwater monitoring system. Two years is a
more reasonable timeframe in which to carry out these activities. New
CCR landfills, new CCR surface impoundments and any lateral expansion
must comply with these same requirements (Sec. Sec. 257.90 through
257.94) before any CCR can be placed in the CCR unit.
Consistent with the proposal, the final rule also requires that the
owner or operator of the CCR facility annually certify that each CCR
unit is in compliance with the groundwater monitoring and corrective
action provisions and provide a copy of this certification to the State
Director. Because this is a self-implementing rule that relies on
citizen enforcement, it is important for the owner or operator of the
facility to periodically document that they are in compliance with the
existing groundwater monitoring requirements, and an annual
certification is the easiest and most effective way to achieve this.
While the groundwater monitoring data will be made available on the
owner or operator's publicly accessible Web site and in the operating
record of the facility, the analysis of these data is complicated and
requires a certain level of scientific expertise to analyze the data
correctly. As such, a document that serves as both an interpretative
record of scientific analysis and regulatory compliance is critically
important to the successful implementation of a self-implementing rule
that is to be enforced exclusively by citizens and the states. For
similar reasons, the certification must also be placed in the operating
record, provided to the State Director, and posted on the owner or
operator's publicly accessible Web site.
The groundwater monitoring requirements must be met throughout the
active life of the CCR unit, as well as during the closure and post-
closure care period.
EPA has added a new provision to Sec. 257.90 to address the
corrective action requirements that apply when CCR have been released
into the environment, such as from the kind of structural failure that
occurred with TVA's Kingston Fossil Fuel plant release, or from the
kind of release that occurred in North Carolina at the Dan River. EPA
inadvertently drafted the corrective action requirements in the
proposed rule to apply exclusively upon detection of groundwater
contamination caused by a leaking unit. However, there is no reason to
establish different corrective action provisions for conducting clean-
up operations for different kinds of releases; the same general process
is applicable to all kinds of releases.
The new provision requires that in the event of a release from a
CCR unit, the owner or operator must immediately take all necessary
measures to control the source(s) of releases so as to reduce or
eliminate, to the maximum extent practicable, further releases of
contaminants into the environment. The owner or operator of the CCR
unit is also required to comply with all of the relevant corrective
action requirements in Sec. Sec. 257.96, 257.97, and 257.98.
2. Groundwater Monitoring System Requirements
EPA received comments that supported establishing more prescriptive
requirements for the design of the groundwater monitoring system. For
example, one commenter argued that three downgradient wells are
insufficient to ensure detection of leakage from the very large
disposal units typically used for CCR; due to uncertainty in flow
directions, the perimeter of the CCR unit must be monitored on its
cross-gradient, as well as downgradient sides. The commenter suggested
that the minimum number of non-background monitoring wells should
instead be three, plus one for every 500 feet of downgradient and
cross-gradient perimeter of the CCR unit (i.e., if the perimeter length
adds up to 1200 feet, the minimum number of wells would be five), and
that wells should be spaced no more than 500 feet apart along the
downgradient and cross-gradient perimeter. EPA also received many
comments arguing that the minimum requirements were overly
prescriptive, and that the final rule should instead allow a
professional engineer or hydrologist to design ``an alternative, but
equally effective, groundwater monitoring program.'' The majority of
comments on groundwater monitoring systems requested that EPA not
promulgate requirements that would be incompatible with state
requirements.
The final rule provisions are fundamentally the same as those in
the proposal, although EPA has also added language to the regulations
to better clarify how the requirements in the various sections
collectively operate. The final rule establishes a general performance
standard that all groundwater monitoring systems must meet: All
groundwater monitoring systems must consist of a sufficient number of
appropriately located wells (at least one upgradient and three
downgradient wells) in order to yield groundwater samples from the
uppermost aquifer that represent the quality of background groundwater
and the quality of groundwater passing the waste boundary. This is the
same performance standard included in the proposed rule. The objective
of a groundwater monitoring system is to intercept groundwater to
determine whether the groundwater has been contaminated by the CCR
unit. Early contaminant detection is important to allow sufficient time
for corrective measures to be developed and implemented before
sensitive receptors are significantly affected. To accomplish this, the
rule requires that wells be located to sample groundwater from the
uppermost aquifer at the waste boundary. These requirements have been
adopted without fundamental change from the proposal.
Because hydrogeologic conditions vary so widely from one site to
another, the rule does not prescribe the exact number, location and
depth of monitoring wells needed to achieve the general performance
standard. Rather, the rule requires the owner or operator to install a
minimum of one upgradient and three downgradient wells, and any
additional monitoring wells necessary to achieve the general
performance standard of accurately representing the quality of the
background groundwater and the groundwater passing the waste boundary.
The number, spacing, and depths of the monitoring wells must be
determined based on a thorough characterization of the site, including
a number of specifically identified factors relating to the
hydrogeology of the site (e.g., aquifer thickness, groundwater flow
rates and direction). Further, any owner or operator who determines
that the specified minimum number of wells is adequate must provide a
factual justification for that decision. Factors that may substantiate
a reduced density of groundwater monitoring wells includes simple
geology (i.e., horizontal, thick, homogenous strata that are continuous
across site, with no fractures, faults, folds, or solution channels), a
flat and constant hydraulic gradient, uniform hydraulic conductivity,
low seepage velocity, and high dispersivity potential.
In essence, the rule establishes a presumption that the minimum of
one upgradient and three downgradient wells is not sufficient, and
requires the owner or operator to rebut that presumption in order to
install only this minimum. This is fundamentally consistent with the
proposed rule, which required the installation of a system that would
achieve the general performance standard, as well as the
[[Page 21400]]
``minimum'' of one upgradient and three downgradient wells. The final
regulation merely makes more explicit that both of these requirements
must be met.
EPA considered establishing a more prescriptive set of
requirements, including a specified number, location, and design of
monitoring wells, but because of the highly site specific nature of
developing an adequate groundwater monitoring system, determined that
it lacked sufficient information to be able to design a single
groundwater monitoring system that would be nationally protective at
all sites. A properly designed system must account for many variables,
most of which are highly dependent on the individual characteristics of
the unit and the facility site. Consequently, the final rule leaves the
exact system design to be determined by those at the site, including a
qualified professional engineer, who can tailor the design of the
system to the unit and site conditions.
Nevertheless, EPA is confident that the parameters laid out in the
regulation will ensure that the design of groundwater monitoring
systems at CCR facilities will be protective. As a practical matter,
EPA expects that there will be few cases, if any, where four wells will
be sufficient, given that this requirement was originally developed for
hazardous waste management units that are typically much smaller than
CCR units. As mentioned above, a small unit with simple geology, a flat
and constant hydraulic gradient, uniform hydraulic conductivity, low
seepage velocity, and high dispersivity potential would be the type of
unit for which the minimum number of wells could be sufficient to meet
the overall performance standard. Although EPA is finalizing a
requirement for one upgradient and three downgradient wells as a
regulatory minimum, the Agency expects large CCR units to have many
more wells because most CCR sites have hydrologic settings that are too
complex for the regulatory minimum to be adequate. Facilities with
large CCR units could have as many as thirty or more downgradient
wells. This is because the placement and spacing of detection
monitoring wells along the downgradient perimeter of the CCR unit must
be based on the abundance, extent, and physical/chemical
characteristics of the potential contaminant pathways. All potential
pathways need to be monitored.
Therefore, even though EPA is not requiring a specific number of
wells, the Agency is confident that the combination of the requirements
will ensure that protective groundwater monitoring systems will be
installed. The owner or operator is required to install a sufficient
number of wells to meet the performance standard in Sec. 257.91(a)(1)
and (2), provide a justification if they determine the required minimum
is adequate, and have a qualified professional engineer certify that
their groundwater monitoring system has been designed and constructed
to ensure that the groundwater monitoring will meet this performance
standard--i.e., accurately represent the quality of groundwater that
has not been affected by leakage from any CCR unit--that is,
groundwater from background wells and the quality of groundwater
passing the waste boundary.
The final rule establishes certain parameters regarding the
location of the wells. Upgradient background wells must be located
beyond the upgradient extent of potential contamination. However,
groundwater quality in areas where the geology is complex can be
difficult to characterize. If the facility is new, groundwater samples
collected from both upgradient and downgradient locations prior to
waste disposal can be used to establish background water quality.
Downgradient wells to monitor for any contaminants leaking into the
groundwater must be located at the hydraulically downgradient perimeter
(i.e., the edge) of the CCR unit or at the closest practical distance
from this location.
Determining background groundwater quality by sampling wells that
are not hydraulically upgradient may be necessary where hydrogeologic
conditions do not allow the owner or operator to determine which wells
are hydraulically upgradient (e.g., floodplains, where nearby surface
water can influence groundwater). In such cases, the rule allows the
owner or operator to establish groundwater quality at existing units by
locating wells that are not upgradient under certain conditions (Sec.
257.91(a)(1)). This provision may be used when hydrogeologic conditions
do not allow the owner or operator to determine which wells are
hydraulically upgradient and when sampling at other wells will provide
data establishing background groundwater quality that is equally or
more representative than that provided by upgradient wells. These
conditions could include one or more of the following:
The facility is located above an aquifer in which
groundwater flow directions change seasonally.
The facility is located near production wells that
influence the direction of groundwater flow.
Upgradient groundwater quality is affected by a source of
contamination other than the CCR unit.
The proposed or existing CCR unit overlies a groundwater
divide or local source of recharge.
Geologic units present at downgradient locations are
absent at upgradient locations.
Karst terrain or fault zones modify flow.
Nearby surface water (e.g., rivers) influences groundwater
flow directions.
Additionally, there is nothing in the rule that would prevent the
owner or operator from monitoring multiple aquifers in addition to the
uppermost significant aquifer. Certain site conditions warrant more
extensive monitoring requirements, as discussed in ``Technical Manual
Solid Waste Disposal Facility Criteria'', EPA530-R-93-017, USEPA,
November, 1993, Chapter 5, Subpart E, Ground-Water Monitoring and
Corrective Action.
Each CCR unit must have its own groundwater monitoring system,
unless the owner or operator chooses to install a multiunit groundwater
monitoring system. The final rule specifies that if a multiunit system
is installed, it must be based on the consideration of several factors,
including the number, spacing, and orientation of the CCR units, the
hydrogeologic setting, the site history and the engineering design of
the CCR units. A multiunit groundwater monitoring system must be
equally capable of detecting background and groundwater contamination
at the waste boundary as an individual monitoring system. This
documentation must be certified by a qualified professional engineer.
Whether a single or multi-unit system has been installed, the
monitoring wells must be cased in a manner maintaining the integrity of
the borehole and must be maintained so as to meet design
specifications. Both of these provisions have been adopted from the
proposal without revision.
3. Sampling and Analysis Requirements
EPA received comment on several aspects of its proposed
requirements for conducting groundwater sampling and analyses.
Specifically mentioned here, commenters raised concern about the number
of samples required to establish background concentrations and about
the statistical test methodologies specified in the proposal. As
discussed below, EPA has modified the rule to account for the issues
raised by these commenters. The sampling and analysis requirements in
the final rule have
[[Page 21401]]
otherwise been adopted from the proposed rule with only minor
clarifications.
The rule provides procedures for sampling monitoring wells and
methods for the statistical analysis of groundwater monitoring of
appendix III (detection monitoring) and appendix IV (assessment
monitoring) constituents that may be released from CCR units. The
sampling and analysis program must include procedures and documentation
for sample collection (including the frequency, water level
measurements, well purging, field analyses, and sample withdrawal and
collection); sample preservation and handling (including sample
containers, sample preservation, sample storage and shipment); chain of
custody control; analytical procedures (appropriate methods can be
found in ``Test Methods for Evaluating Solid Waste, Physical/Chemical
Methods,'' SW-846 (USEPA, 1986), http://www.epa.gov/waste/hazard/testmethods/sw846/online/index.htm); and quality assurance/quality
control. More information and guidance can be found in ``Technical
Manual Solid Waste Disposal Facility Criteria,'' EPA530-R-93-017,
USEPA, November, 1993, Chapter 5, Subpart E, Ground-Water Monitoring
and Corrective Action, as well as the ``Unified Guidance Document:
Statistical Analysis of Groundwater Monitoring Data at RCRA
Facilities,'' March 2009, EPA 530/R-09-007.
Similar to the approach used in designing a groundwater a number of
system, the final rule adopts a combination of a general performance
standard for groundwater sampling and analytical methods, along with
particular technical specifications that must be met. The general
performance standard requires that the method used must accurately
measure hazardous constituents and other monitoring parameters. In
addition, the rule specifies that groundwater elevations must be
measured in each monitoring well immediately prior to sampling. Also,
the rate and direction of the groundwater flow in the uppermost aquifer
must be determined each time groundwater is sampled. Further, the rule
specifies that the background groundwater quality must be established
at a hydraulically upgradient well for each of the monitoring
parameters or constituents required by the applicable groundwater
monitoring program, except as provided in Sec. 257.91. The number of
samples collected to establish groundwater quality data must be
consistent with the appropriate statistical procedures determined for
the specific statistical method chosen. The sampling must also be
conducted to account for both seasonal and spatial variability in
groundwater quality.
To establish background levels, the proposed rule required that ``a
minimum of four independent samples from each background and
downgradient well must be collected and analyzed . . .'' 75 FR 35247-
35248 (proposed Sec. Sec. 257.93(f) and 257.94(b)). This is the same
sampling protocol that EPA adopted for both the subtitle C and part 258
groundwater monitoring requirements.
EPA received comments criticizing this sampling protocol. Several
commenters stated that more than the required four samples were needed
in order to adequately represent background water quality and reduce
the number of false negatives. For example, one commenter argued that
EPA should require a minimum of one year of monthly monitoring of
background concentrations to characterize fluctuations in parameters
that will be evaluated statistically. The commenter claimed that this
would also help to ensure that quarterly monitoring events are properly
timed. Another comment stated that more data points and time were
needed to ensure statistical confidence in the data. By contrast,
another commenter objected to the requirement to obtain four
independent samples, arguing that this requirement was unnecessary and
should be deleted. The commenter argued that this requirement was
inconsistent with EPA's Unified Guidance (EPA, 2009) for Statistical
Analysis of Groundwater Monitoring Data at RCRA Facilities, which
specifies that replicate samples (i.e., multiple samples from the same
location during a given sampling event) should typically be limited to
the collection of two samples from the same location, rather than four.
Another commenter requested clarification on the number of samples
required when establishing background levels that would serve as the
point of comparison in determining whether a statistically significant
increase over background levels had occurred.
In response to these comments, EPA reviewed the available
information to determine whether revisions to the proposed requirements
were warranted.
More recent information developed since the promulgation of the
subtitle C and part 258 groundwater monitoring requirements indicates
that statisticians now generally consider sample sizes of four or less
to be insufficient for good statistical analysis because the
observations are too few to adequately characterize the parameters of
the population. Tests utilizing a small background sample size have low
statistical performance in terms of power and per-test false positive
rates. In 2009, EPA issued a guidance document that accounts for more
recent scientific developments, ``Unified Guidance Document:
Statistical Analysis of Groundwater Monitoring Data at RCRA
Facilities,'' March 2009, EPA 530/R-09-007. This guidance recommends a
minimum of eight to ten independent background observations be
collected before performing the first statistical test. Sample sets of
20 are considered optimal.
RCRA regulations are predicated on having appropriate and
representative background measurements. Samples should be tested
against data which best represent current uncontaminated conditions. In
addition, as discussed further in Unit VI.K.5 below, the detection of a
statistically significant increase over background concentrations of
the constituents of concern will have serious implications for unlined
surface impoundments, as these units will be required to close whenever
the facility makes such a finding. EPA is also cognizant of the
significant differences between the subtitle C and part 258 regulations
and the final regulations being promulgated for CCR units. Both the
subtitle C and the part 258 MSWLF requirements are implemented under
permit programs, under which regulatory authorities are specifically
authorized to establish more stringent requirements to account for
scientific advances (among other things). EPA expects that current
permits generally specify a greater number of samples than the minimum
laid out in the regulations (i.e., more than four) to determine
background concentrations. And because of this it is less critical that
those regulations (subtitle C and part 258) reflect the most current
science. By contrast, as previously discussed, the provisions adopted
under this rule are self-implementing, and will only be updated through
a subsequent rulemaking. Accordingly, the Agency agrees with the
comments that four samples would be insufficient and has amended the
rule to require the owner or operator to collect, at a minimum, eight
statistically independent and identically distributed (spatially
invariant) samples from each well for each monitoring parameter.
Although still a small sample size by statistical standards, eight
independent observations allows for minimally acceptable estimates of
variability and evaluation of trend and goodness-of fit. While more
samples, including a full
[[Page 21402]]
year of background monitoring, would be scientifically ideal, the
Agency selected eight samples by balancing the minimum number needed to
ensure the scientific accuracy of the results against the need to
expedite initiating the groundwater monitoring process of detecting
exceedances, along with any necessary corrective action at these
facilities.
Background sampling (i.e., the requirement to collect eight
statistically independent samples from each well) must be completed for
all appendix III and IV constituents by the end of the 24 month period
to begin implementation of the groundwater monitoring program.
EPA has also revised the regulatory text relating to the number of
samples that must be collected during subsequent sampling events after
background concentrations have been established to clarify how the
various provisions collectively operate. Consistent with the proposal,
the final rule requires the owner or operator to collect and analyze
the number of samples from each well necessary to be consistent with
the statistical test selected under Sec. 257.93(e) and with the unique
characteristics of the site, but at minimum, to collect at least one
sample from each background and downgradient well. In cases where the
groundwater is ``well-behaved'' one sample from each compliance well
could be all that the owner or operator would need to conduct the
necessary comparisons. But if statistical assumptions are not met
(e.g., the observations are not statistically independent or background
well data show trends) a comparison based on a single observation will
not yield a significant result, and will likely result in a false
positive. Further, detection monitoring tests, such as Student's t-
test, look at the difference between the sample means (e.g., upgradient
vs downgradient) to determine when an observed difference should be
considered more than a chance fluctuation. Every t-test assumes that
the observations that make up each data group meet the requirements of
statistical independence and stationarity. Therefore, the larger the
sample size the more significant the result. In other words, a facility
can choose to use only one observation (a group size of one), but the
chances are good that the result derived would be non-significant,
since there are many reasons sample means can vary. Consequently, it is
likely to be in the facility's best interest to take more samples than
the minimum, particularly in the early stages of monitoring. As
monitoring continues, each successive sample will be added to the
sampling data base, which will increase the confidence in the
statistical analyses performed. Additional guidance on sample size can
be found in the ``Unified Guidance Document: Statistical Analysis of
Groundwater Monitoring Data at RCRA Facilities,'' March 2009, EPA 530/
R-09-007.
The requirements for applying statistical procedures in the rule
are the same as those included in the proposed rule, which were based
on the statistical procedures used in the MSWLF regulations. The rule
requires the owner or operator to select from among the listed
statistical procedures based on a determination that the test is
appropriate for evaluating groundwater at that site. The statistical
method chosen must be appropriate for the distribution of chemical
parameters or hazardous constituents. The rule has been revised to
include the clarification that normal distributions of data values
shall use parametric methods and non-normal distributions shall use
non-parametric methods. The rule identifies four statistical
procedures, along with an alternative procedure that must meet the
performance standard of Sec. 257.93(g). The four specific statistical
procedures provided in this final rule are: (1) A parametric analysis
of variance followed by multiple comparison procedures to identify
statistically significant evidence of contamination; (2) an analysis of
variance based on ranks followed by multiple comparison procedures to
identify statistically significant evidence of contamination; (3) a
tolerance or prediction interval procedure; and (4) a control chart
approach. The performance standard for the alternative method in
subsection (g) is the same as the performance standard in the proposal,
with minor revisions. EPA has deleted the performance standard
``protect human health and the environment'' in subsections (3), (4)
and (5). While that standard is perfectly appropriate in a context in
which a regulatory authority will apply the standard, EPA is concerned
that a qualified professional engineer will be unable to certify that
any alternative statistical method meets that standard. EPA received
comments from professional engineers raising concern about their
ability to certify that many of the requirements in the proposed rule
had been met without further specification or clarification. To address
those concerns, in those three provisions EPA has substituted a more
objective performance standard that more precisely defines the relevant
issues to be considered. Specifically, the subsections now specify that
those approaches must be ``at least as effective as any other approach
in this section for evaluating groundwater.''
The data objectives of the monitoring, in terms of the number of
samples collected and the frequency of collection, must be consistent
with the statistical method selected. Guidance on selecting a specific
method is described in ``Unified Guidance Document: Statistical
Analysis of Groundwater Monitoring Data at RCRA Facilities,'' March
2009, EPA 530/R-09-007. The owner or operator must indicate in the
operating record the statistical method that will be used in the
analysis of groundwater monitoring results.
The owner or operator must conduct the statistical comparisons
between upgradient and downgradient wells within 90 days of completion
of each sampling event and receipt of validated data. The statistical
comparison must be conducted in order to determine if a statistically
significant increase has occurred over background levels for each
parameter or constituent required in the particular groundwater
monitoring program that applies to the unit as determined under
Sec. Sec. 257.94(a) or 257.95(a). This has been adopted without
revision from the proposal.
EPA is finalizing as proposed the prohibition in Sec. 257.93(b) on
field filtering groundwater samples because filtration of samples for
metals analyses will not provide accurate information concerning the
mobility of metals contaminants, the primary objective of groundwater
sampling. Metal contaminants may move through fractured and porous
media not only as dissolved species, but also as precipitated phases,
polymeric species, or adsorbed to particles of colloidal dimensions
(<10 microns). For an assessment of mobility, all mobile species must
be considered, including suspended or colloidal particles acting as
absorbents for contaminants. Filtration of groundwater samples for
metals analyses will not provide accurate information concerning the
mobility of metal contaminants because some mobile species in solution
are likely to be removed by filtration before chemical analysis.
Significant underestimations of mobility may result if filters
(typically 0.45 micron) are used to separate dissolved and particulate
phases.
In its approach to sampling EPA is specifying in the final rule
that owners and operators use `total recoverable metals' concentrations
in measuring groundwater quality. Measurement of total recoverable
metals captures both the particulate fraction and dissolved
[[Page 21403]]
fraction of metals in natural waters. Exceedances of ambient water
criteria on a total recoverable basis are an indication that metal
loadings could be a stress to an ecosystem.
One commenter argued that to prohibit field filtering would
potentially bias the results artificially high, particularly at sites
where low yielding formations or naturally high levels of turbidity in
groundwater are encountered. However, high turbidity can also be the
consequence of faulty well design and/or construction, which causes the
introduction of foreign materials (high turbidity) through created
fracture pathways. A properly designed well should allow for sufficient
groundwater flow for sampling, minimize the passage of materials into
the well, and exhibit sufficient structural integrity to prevent
collapse of the intake structure. It is vital that the well provide a
representative hydraulic connection to the geologic formation of
interest. Otherwise the water chemistry information cannot be correctly
interpreted in relation to groundwater flow or transport of chemical
constituents.
Sampling with no filtration means that increased importance is
placed on proper well construction and purging sampling procedures to
eliminate or minimize sources of sampling artifacts. There should be
nothing in the well design that will lead to high levels of turbidity.
Groundwater sampling should be conducted utilizing EPA protocol low
stress (low-flow) purging and sampling methodology, including
measurement and stabilization of key indicator parameters prior to
sampling. For purposes of sampling, this final rule presumes that a
properly constructed well is capable of yielding groundwater samples
with low turbidity (<=5 Nephelometric Turbidity Units (NTU)), and by
knowing the cause of turbidity the qualified professional engineer will
be able to optimize well performance and reduce turbidity levels,
eliminating the need for filtration.
EPA is revising Sec. 257.93(i)(2) to specify a time period of 90
days to determine if a statistically significant increase over
background concentrations of one of more of the contaminants has been
detected. As proposed, this section specified: ``Within a reasonable
period of time after completing sampling and analysis, the owner or
operator of the CCR landfill or surface impoundment must determine
whether there has been a statistically significant increase over
background at each monitoring well.'' Commenters pointed out that this
section of the regulation was very vague, and potentially
unenforceable. Several commenters suggested that once sampling and
analysis had been completed, 90 days would be a reasonable amount of
time to complete the statistical analysis to determine whether an
exceedance had occurred. No commenter suggested a longer period of time
was necessary and that timeframe is consistent with the Agency's
experience of the timeframes necessary to complete such analyses.
Accordingly, we have revised the provision to require the determination
of a statistically significant increase to be made within 90 days of
sampling and analysis.
4. Detection Monitoring Program
With three exceptions, EPA is finalizing the regulatory provisions
relating to detection monitoring as proposed. The three revisions are
the appendix III list of monitoring parameters; the required number of
samples to determine background concentrations; and the availability of
an option to conduct detection monitoring on a less frequent basis due
to a lack of groundwater.
The detection monitoring phase of the groundwater monitoring
program in this rule requires that the owners or operators of CCR units
establish background concentrations for all monitoring parameters
(appendix III and IV of part 257) and sample at least semiannually
during the active life of the facility, closure, and post closure
periods for a set of detection monitoring indicator parameters
(appendix III of part 257).
In response to comments, EPA has revised appendix III to delete
conductivity and sulfide from the list of monitoring parameters and to
add calcium. Thus, the list of parameters included on the detection
monitoring list is boron, calcium, chloride, fluoride, pH, sulfate and
total dissolved solids (TDS). The Agency has deleted conductivity from
the detection monitoring program because it is merely a proxy for TDS,
which is already included on the list of parameters to analyze during
detection monitoring. The Agency has also deleted sulfide because it
occurs in groundwater only under strongly reducing conditions, and such
conditions are rather rare at CCR disposal facilities. Calcium is being
added to appendix III because it is an indicator of the extent of
leaching from fly ash and FGD gypsum and because of the strong
demonstrated link between the leaching of calcium and arsenic, which is
one of the primary risk drivers identified in the risk assessment.
As discussed in the preceding section, in detection monitoring, a
minimum of eight independent samples from each background and
downgradient well must be collected and analyzed for the appendix III
and IV parameters no later than 24 months from the effective date of
the rule. During subsequent sampling events, at least one sample from
each background and downgradient well must be collected and analyzed,
although the total number of samples must be consistent with the
statistical procedures selected and with the performance standard in
Sec. 257.93(g). See discussion above in section 3. Sampling and
Analysis Requirements.
Under the proposed rule, monitoring would be required no less
frequently than semiannually. In the final rule, semiannual sampling
remains the general requirement; however, in response to comments, EPA
has decided to include a provision that would allow an alternative
sampling frequency if there is not adequate groundwater to flow to
sample wells semiannually. Specifically, EPA received comment stating
that there may be instances where there simply is not enough water
available to collect and analyze on a semiannual basis, especially in
western climates where the rate of groundwater recharge may be too slow
or a lack of precipitation exists. The commenter also provided an
example demonstrating that mining practices in adjacent areas can
greatly alter the groundwater flow. Accordingly, EPA has included a
provision to address the situations where there is insufficient
groundwater available to collect and analyze samples around CCR units
on a semiannual basis.
An owner or operator seeking to establish an alternative frequency
must demonstrate that less frequent monitoring is necessary based on
the following three factors: (1) Lithology of the aquifer and the
unsaturated zone; (2) hydraulic conductivity of the aquifer and the
unsaturated zone; and (3) groundwater flow rates. In addition, the rule
requires the owner or operator to demonstrate that any alternate
sampling frequency would be no less effective in ensuring that any
leakage from the CCR unit will be discovered within a timeframe that
does not materially delay the initiation of any necessary remediation
measures. The owner or operator must have a qualified professional
engineer certify that the alternative (i.e., less frequent) monitoring
will achieve this performance standard. The final rule also specifies
that any alternate frequency during the active life (including closure)
and the post-closure
[[Page 21404]]
care period shall be no less than annual. As noted, the owner or
operator will bear the burden of justifying an alternate frequency
under this regulation, and in any court proceeding brought to enforce
these requirements. This means that any uncertainty or lack of
information will be weighed against the entity seeking to justify the
alternate frequency.
Consistent with the proposed rule, if the owner or operator
determines that there is a statistically significant increase (SSI)
over background for one or more of the parameters listed in appendix
III at any monitoring well at the waste boundary, the owner or operator
must place a notice in the operating record and on the facility's
internet site indicating which parameters have shown statistically
significant changes from background levels and notify the State
Director.
The facility must also then establish an assessment monitoring
program and begin monitoring within 90 days. The owner or operator has
the opportunity to demonstrate that a source other than the CCR unit
caused the statistically significant increase or that the statistically
significant increase resulted from error in sampling, analysis,
statistical evaluation or a natural variation in groundwater quality.
Within 90 days, the owner or operator must prepare a report documenting
this demonstration which must then be certified by a qualified
professional engineer verifying the accuracy of the information in the
report. If a successful demonstration is made within 90 days, the owner
or operator may continue detection monitoring. If a successful
demonstration is not made within 90 days, the owner or operator must
initiate assessment monitoring.
Commenters raised concern that 90 days would not be sufficient to
complete all of the activities necessary to determine whether the
detection of an SSI was from another source than the CCR unit or was
based on inaccurate results. The Agency recognizes that in some
circumstances it could take more than 90 days to resample and have
laboratories conduct new analyses, or to conduct field investigations
to determine that another source is causing the contamination. As a
result, Sec. 257.94(e)(3) does not place an ultimate time limit for
owners and operators to complete the demonstration. However, if after
90 days the owner or operator has not made a successful demonstration,
(s)he must begin an assessment monitoring program. At this stage, there
is evidence to indicate that a release has occurred from the CCR unit,
and while EPA agrees that the facility may want to confirm that the
information is accurate, it is critical that the facility not delay
indefinitely the more targeted monitoring to determine whether a
constituent of concern is contaminating groundwater. It would not be
consistent with the statutory standard to allow a facility unlimited
time to delay taking reasonable steps to assess, and if necessary,
address potential contamination by continuing to resample until they
obtain a ``better'' answer. Moreover, initiation of an assessment
monitoring program does not involve an irretrievable commitment of
resources or even a significant investment by the facility, but only
requires the facility to begin more targeted sampling for constituents
of concern. This represents a reasonable first step to address a
potential threat to groundwater. This requirement is also in the MSWLF
part 258 regulations. For more information see 56 FR 51078 (October 9,
1991).
Subsequent to initiating the assessment monitoring program, if an
owner or operator demonstrates that the statistically significant
increase resulted from an error in sampling, analysis, statistical
evaluation, or natural variation in groundwater quality, or was caused
by a source other than the CCR unit, the owner or operator may cease
assessment monitoring and return to detection monitoring. If the
demonstration is successful, the owner or operator must have the
demonstration certified by a qualified professional engineer, and is
required by Sec. 257.94(e)(3) to place a notice in the operating
record, and on publicly accessible Internet site and send a copy of the
report to the State Director.
5. Assessment Monitoring Program
EPA is adopting an assessment monitoring program that is largely
identical to the program laid out in the proposal. However, as
discussed in more detail below, some revisions have been made; some
were made in response to comments, but most are conforming changes made
to be consistent with changes adopted in other provisions, such as the
detection monitoring program described previously.
Consistent with the proposed rule, if any of the detection
monitoring parameters are detected at a statistically significant level
over the established background concentrations, the owner or operator
must proceed to the next step, assessment monitoring. Assessment
monitoring requires annual sampling and analysis for the full list of
constituents included in appendix IV. The number and frequency of
samples required for assessment monitoring are the same as those
established for detection monitoring. See discussion above in 3.
Sampling and Analysis Requirements.
EPA has also revised the list of constituents in appendix IV by
deleting the following constituents and parameters: Aluminum, boron,
chloride, copper, iron, manganese, pH, sulfate, sulfide, and TDS; and
adding the following constituents: Cobalt, lithium, and radium 226 and
228 combined. The following constituents and parameters are being
removed from appendix IV because they are on appendix III and therefore
will continue to be monitored throughout assessment monitoring: Boron,
chloride, pH, sulfate and TDS. Although fluoride is on appendix III, we
are also retaining it on appendix IV because it does have an MCL and
was found to pose risks in the 2014 risk assessment, and therefore is
appropriately considered to be a constituent that is relevant for
purposes of corrective action. Aluminum, copper, iron, manganese, and
sulfide have been removed because they lack maximum contaminant levels
(MCLs) and were not shown to be constituents of concern based on either
the risk assessment conducted for this rule or the damage cases (see
Units X and XI of this document). Cobalt has been added to appendix IV
because cobalt was found to be a risk driver in the 2014 risk
assessment, based on certain waste management disposal practices that
lead to highly acidic wastes conditions. Lithium is being added to
appendix IV because it has been detected in several proven and
potential damage cases at levels exceeding EPA's Regional Screening
Level (RSL) of soil to groundwater and has been determined as
potentially toxic if consumed concurrently with certain drug
types.\117\ Radium 226 and 228 combined (the sum of the radioactive
isotopes radium-226 and radium-228) is being added because there is
evidence from several damage cases of exceedances of gross alpha,
indicating that radium from the disposal of CCR may be problematic.
Appendix IV now contains antimony, arsenic, barium, beryllium, cadmium,
chromium, cobalt, fluoride, lead, lithium, mercury, molybdenum,
[[Page 21405]]
selenium, thallium and radium 226 and 228 combined.
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\117\ EPA's Regional Screening Level (RSL) Soil to Groundwater
Supporting Table (TR = 1E-6, HQ = 1) May 2014/Mid-atlantic Risk
assessment: http://www.epa.gov/reg3hwmd/risk/human/rb-concentration_table/Generic_Tables/index.htm; and Health
Consultation: Chesapeake ATGAS 2H Well Site Leroy Hill Road, Leroy,
Leroy Township, Bradford County, Pennsylvania, October 29, 2013.
U.S. Department of Health and Human Services, Agency for Toxic
Substances and Disease Registry Division of Community Health
Investigations Atlanta, Georgia. http://www.atsdr.cdc.gov/.
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If any appendix IV constituents are detected in any appendix IV
analyses, the owner or operator must notify the State Director and
continue to monitor, at least semiannually, for both the specific
constituents in appendix IV that were detected and all parameters in
appendix III. EPA has decided to also include a provision to allow an
alternative sampling frequency if there is not adequate groundwater to
flow to sample wells semiannually, consistent with the revised
provision adopted for the detection monitoring program. If the owner or
operator demonstrates at any time during assessment monitoring that all
of the detected appendix III and IV constituents are at or below
background values for two consecutive sampling events, (s)he must
notify the state and may return to detection monitoring. In general,
EPA expects that appendix III constituents are unlikely to remain
elevated once measures have been taken to address the release of the
detected appendix IV constituents. But should appendix III constituent
levels remain elevated, detection monitoring continues to be necessary
to determine whether another source of contamination is present.
After obtaining the sampling results the owner or operator must
place a notice in the operating record and on the facility's internet
site indicating which appendix IV constituents have been detected and
notify the State Director. Within 90 days and on at least a semiannual
basis thereafter, the owner or operator must resample all wells,
conduct analyses for all parameters in appendix III and for those
constituents in appendix IV that were detected in the initial
assessment monitoring sampling event. The results of this resampling
must be placed in the owner or operator's operating record, as well as
its publicly accessible internet site. The results of the resampling
must also be sent to the State Director. These provisions have been
adopted without change from the proposal.
For each appendix IV constituent that is detected, a groundwater
protection standard must be set. The groundwater protection standards
must be the MCL or the background concentration level for the detected
constituent, whichever is higher. If there is no MCL promulgated for a
detected constituent, then the groundwater protection standard must be
set at background. The proposed rule would have allowed the owner or
operator to establish an alternative groundwater protection standard
for constituents for which MCLs have not been established provided that
the alternative groundwater protection standard has been certified by
an independent registered professional engineer and the state has been
notified that the alternative groundwater protection standard has been
placed in the operating record and on the owner's or operator's
publicly accessible internet site. This provision had been adopted from
the part 258 regulations, but was determined to be inappropriate in a
self-implementing rule, as it was unlikely that a facility would have
the scientific expertise necessary to conduct a risk assessment, and
was too susceptible to potential abuse. Additionally, numerous comments
were received suggesting that only those constituents with MCLs be
included in appendix IV. The commenters were concerned that only MCLs
are enforceable. With the exception of cobalt, lead, lithium and
molybdenum (included on appendix IV because of their relevance in the
risk assessment and damage cases), all appendix IV constituents have an
MCL. In the proposed rule, as stated above, owner or operators were
allowed to establish certain types of alternative groundwater
protection standards. In the final rule, if a constituent has no MCL
(i.e., cobalt, lead, lithium and molybdenum), their groundwater
protection standards will be their background levels. These background
standards are sufficiently precise that they are enforceable.
The owner or operator must compare the levels of any detected
appendix IV constituents to the appropriate groundwater protection
standard. If the concentrations of all appendix IV constituents are
shown to be at or below background values for two consecutive sampling
events using the statistical procedures required by Sec. 257.93, the
owner or operator of the CCR disposal facility must place that
information in the operating record and on the facility's publicly
accessible internet site and notify the State Director. The owner or
operator may then return to detection monitoring.
If the concentrations of any appendix III or IV constituents are
above background values, but all concentrations are determined to be
below the groundwater protection standard using the statistical
procedures required by this rule, the owner or operator must continue
assessment monitoring program.
If, however, the monitoring indicates a statistically significant
increase for any appendix IV constituent over the groundwater
protection standard, the owner or operator is required to notify the
State Director and local officials of this finding and place a notice
in the operating record and on the owner or operator's publicly
accessible internet site.
The owner or operator also must characterize the nature and extent
of the release. As part of characterizing the nature and extent of the
release, the owner or operator must install additional wells, as
necessary to define the contaminant plume(s) and collect data on the
nature and estimated quantity of the material released. Adequate
characterization of the release is critical in designing and
effectively implementing a protective corrective action program if
groundwater remediation is necessary. The purpose of these additional
wells is to delineate the contaminant plume boundary and to eventually
demonstrate the effectiveness of corrective action in meeting the
groundwater protection standard.
Because the requirements for additional monitoring are entirely
specific to the site conditions and the size and nature of the release,
the Agency is not able to set requirements that precisely specify the
location or the number of additional wells that must be installed.
Instead EPA has adopted an approach that corresponds to the approach to
designing the original groundwater monitoring system under Sec.
257.91. The regulations establish a general performance standard
(``install additional wells as necessary to define the contaminant
plume'') and specify a true minimum of installing at least one well at
the facility boundary in the direction of contaminant migration in
order to ascertain whether the contaminants have migrated past the
facility boundary. The regulations also establish a rebuttable
presumption that this minimum is insufficient, requiring the owner or
operator to justify a decision to install only this minimum. The
requirement to justify the decision to only install the minimum number
of additional wells is a revision from the proposal that has been
adopted to be consistent with the Agency's overall approach to
developing an effective groundwater monitoring system.
The Agency has also added some clarification to the proposed
requirement to characterize the nature and extent of the release, by
requiring the owner or operator to collect data on the nature and
estimated quantity of material released, including specific information
on the constituents listed in appendix IV and the levels at which they
are present in the material released. This information will be
necessary to help the owner or operator characterize the release and
assist in ultimately deciding on a remedy.
[[Page 21406]]
If contamination has migrated off-site, the owner or operator must
notify individuals who own land or reside on land overlying the plume.
In addition to characterizing the nature and extent of the release,
the owner or operator must initiate an assessment of corrective
measures within 90 days of finding a statistically significant increase
over background concentrations, and select the appropriate remedy.
During this phase, the owner or operator is required to continue at
least semiannual monitoring (or an alternative frequency, no less than
annually) for all appendix III constituents and for those appendix IV
constituents exceeding the groundwater protection standard. To be
consistent with the provisions in detection monitoring, EPA has
included a provision that would allow the owner or operator to
demonstrate that a source other than their CCR unit caused the
contamination or that the statistically significant increase above
groundwater protection standards resulted from error in sampling,
analysis, statistical evaluation, or natural variation in groundwater
quality. This alternative option will not delay compliance with the
next phase of the groundwater monitoring and corrective action program.
Thus, until such a demonstration is made, the owner or operator must
comply with the other requirements of this section, including
initiating the assessment of corrective measures. At this stage, the
evidence that the CCR unit is leaking is stronger, and the owner or
operator has previously had the opportunity to demonstrate that the
finding was made in error under the detection monitoring program, so no
further delay in initiating measures to address any groundwater
contamination is warranted.
Another change since the proposal is that in addition to complying
with all of the corrective action requirements--i.e., initiating an
assessment of corrective measures, followed by selection of a remedy
and implementation of a corrective action program--if the unit is an
unlined surface impoundment, it must either retrofit or initiate
closure. Further, where the facility has chosen to install a multi-unit
groundwater monitoring system, the detection of an SSI of an appendix
IV constituent would trigger the corrective action and closure (or
retrofit) of all of the unlined surface impoundments covered by that
monitoring system, as there will be no way to isolate a particular
unlined unit as the source of the contamination. These requirements are
discussed in more detail in the Closure section.
6. Assessment of Corrective Measures
This section of the regulations also largely mirrors the analogous
provisions in the proposed rule. EPA added some language to reflect
that this section is not limited to the remediation of groundwater from
a leaking CCR unit but will also apply to contamination caused by any
kind of release from a CCR unit. EPA also made some minor revisions in
response to comments, and some editorial changes to conform this
provision to changes made in other sections of the rule.
Consistent with the proposal, Sec. 257.96(a) specifies that the
assessment of corrective measures must be initiated within 90 days of
detecting a statistically significant increase of any of the
constituents listed in appendix IV, at a level exceeding the
groundwater protection standard(s), or of otherwise documenting a
release of contaminants from the CCR unit. The regulation also requires
the assessment of corrective measures to be completed in 90 days of
such a finding, but in response to comments, EPA is adopting a
provision that will allow for a single 60 day extension. Multiple
commenters argued that 90 days was not adequate to complete the
assessment of corrective measures. Commenters stated that for
situations with complex hydrogeology, additional studies and sampling
may be required in order to assess potential contributing offsite
sources, background levels, and possible remedies. They stated that
identification of remedy alternatives, collection and analysis of data
used to evaluate remedy alternatives, and discussions with vendors/
contractors regarding availability of labor and materials are all
critical steps in the remedy selection process. As explained in the
``Technical Manual Solid Waste Disposal Facility Criteria,'' EPA530-R-
93-017, USEPA, November, 1993, Chapter 5, Subpart E, Ground-Water
Monitoring and Corrective Action, the owner or operator will need to:
(1) Identify and remediate the source of contamination; and (2)
identify and remediate the known contamination. The factors that must
be considered in assessing corrective measures include source
evaluation, plume delineation, groundwater assessment and source
control. Based on the comments received, as well as the Agency's own
experience, EPA recognizes that there may be complex situations that
require more time to develop a careful and well-thought out corrective
measures assessment. Therefore, the final rule has been modified to
allow up to an additional 60 days to complete the assessment of
corrective measures, provided that a qualified professional engineer
certifies that the additional time is necessary. The initial 90 days
plus the additional 60 days, which is within the range of time
suggested by the commenters, would provide the owner or operator up to
150 days to complete the corrective measures assessment, which EPA
expects will be sufficient. The certification must be placed in the
operating record, on the owner's or operator's publicly accessible
internet site and submitted to the proper state official.
The rule requires the owner or operator to assess the effectiveness
of potential remedies in meeting the objectives of Sec. 257.97 by
addressing at least: (1) Performance, reliability, ease of
implementation and potential impacts; (2) time requirements; and (3)
institutional requirements. The proposed rule also included
consideration of the costs of remedy implementation. However, that
language came directly from the MSWLF rule in part 258. Because
Congress did not authorize the consideration of costs in establishing
minimum national standards under RCRA section 4004(a), we have removed
this factor. In evaluating the performance, reliability, ease of
implementation, and potential impacts of each remedy, the owner or
operator should evaluate whether specific remedial technologies are
appropriate to the problem and the ability of those technologies to
achieve the groundwater protection standards. Analysis of a remedy's
reliability should include an assessment of the effectiveness of the
remedy in controlling the source of the release and its long-term
reliability. Source control measures need to be evaluated to limit the
migration of the plume, and to ensure an effective remedy. The
regulation does not limit the definition of source control to exclude
any specific type of measure to achieve this. Remedies must control the
source of the contamination to reduce or eliminate further releases by
identifying and locating the cause of the release. Source control
measures may include the following: Modifying the operational
procedures (e.g., banning waste disposal); undertaking more extensive
and effective maintenance activities (e.g., excavate waste to repair a
liner failure); or, in extreme cases, excavation of deposited wastes
for treatment and/or offsite disposal. Construction and operation
requirements also should be evaluated. The analysis of the timing of
potential remedies should include an evaluation of construction, start-
up, and
[[Page 21407]]
completion time. Timing is particularly important if contamination has
migrated off-site. Institutional requirements such as local permit or
public health requirements may affect implementation of the remedies
evaluated and should be assessed by the owner or operator.
The proposed rule included a provision that would allow an owner or
operator to determine that compliance cannot be reasonably achieved
with any currently available methods. This has been deleted from the
final rule. The Agency determined that without state oversight or a
permitting program, that provision was potentially subject to abuse and
thus, inappropriate to include in a self-implementing rule.
As part of evaluating potential remedies, the owner or operator
must hold a public meeting to discuss the remedies under consideration
(prior to selecting a final remedy). Once the owner or operator has
selected a remedy, he must place a description of the selected remedy
in the operating record, on the owner or operator's publicly accessible
internet site and notify the State Director.
7. Selection of Remedy
This section of the final rule has been adopted with only minor
changes from the proposal. As in the prior section, EPA has revised
certain provision to reflect that this section will also apply to the
cleanup of contamination caused by a release from a CCR unit. EPA also
deleted a provision that had been adopted from the part 258
regulations, but that was determined to be inappropriate in a self-
implementing rule as it was too susceptible to potential abuse.
Based on the results of the corrective measures assessment
conducted, the owner or operator must select a remedy. The selected
remedy must attain all of the performance standards listed in
subsection (b). Specifically, the remedy must protect human health and
the environment, attain the groundwater protection standards, control
the sources of releases so as to reduce or eliminate, to the maximum
extent practicable, further releases of appendix IV constituents into
the environment, and comply with any relevant standards for management
of wastes generated as a result of the remedial activities. EPA
included an additional criterion more directly related to remediation
of contamination associated with a release, such as from a collapse or
structural failure of a CCR unit, which requires the remedy to ``remove
from the environment as much of the contaminated material that was
released from the CCR unit as is feasible, taking into account factors
such as avoiding the inappropriate disturbance of sensitive
ecosystems.'' Together, these criteria reflect the major technical
components of any kind of clean up remedy.
The rule also specifies decision criteria to be considered by the
owner or operator in selecting the most appropriate remedy. These
include: (1) Long and short term effectiveness, and degree of certainty
of success; (2) effectiveness of remedy in controlling the source to
reduce further releases; (3) ease or difficulty of implementation; and
(4) community concerns. Additionally, the rule requires the owner or
operator to specify a schedule for implementing and completing the
remedial activities. The rule requires the owner or operator to set the
schedule because it is impossible for EPA to establish a single
schedule appropriate for all possible situations; the schedule will
necessarily depend on the nature and size of the contamination, among
other factors. The rule outlines six factors to be considered in
establishing a schedule for completing remedies (Sec. Sec.
257.97(d)(1-6)). These factors are: (1) Extent and nature of
contamination; (2) reasonable probabilities of remedial technologies in
achieving compliance with the groundwater protection standards; (3)
availability of treatment or disposal capacity for CCR managed during
implementation of the remedy; (4) potential risks to human health and
the environment; (5) resource value of the aquifer; and (6) other
relevant factors. EPA had included one additional factor in the
proposal: ``The desirability of utilizing technologies that are not
currently available, but which may offer significant advantages over
already available technologies in terms of effectiveness, reliability,
safety, or ability to achieve remedial objectives.'' EPA considered
that this provision, which could be used to justify delaying
remediation measures, was potentially subject to abuse and thus,
inappropriate to be included in a self-implementing rule.
For similar reasons, EPA deleted the provisions in the proposal,
subsections (e) and (f) that would authorize a facility to determine
that remediation of a release is not necessary. These sections which
came from the MSWLF rule in part 258 are appropriate where there is
state oversight. The preamble to the final MSWLF rule specifically
discusses situations in which an approved state may decide not to
require cleanup of hazardous constituents released to groundwater from
a MSWLF (see 56 FR 51090). However, there is no similar guarantee that
an individual facility will act in the public interest.
8. Implementation of the Corrective Action Program
The proposed rule required the owner or operator to include a
schedule for initiating the remedial activities in the schedule for
implementing the remedy (Sec. 257.97(d)). The Agency understands that
selecting a remedy is closely related to the assessment process and
cannot be accomplished unless a sufficiently thorough evaluation of
alternatives has been completed. The process of documenting the
rationale for selecting a remedy requires that a report be placed in
the operating record that clearly defines the corrective action
objectives and demonstrates why the selected remedy is anticipated to
meet those objectives. The report must identify how the remedy will be
protective of human health and the environment, attain the groundwater
protection standards (either background or MCLs), attain source control
objectives, and comply with waste management standards.
The selection of a remedy also involves a public meeting with
interested parties before finally selecting a remedy. For these
reasons, the Agency is not establishing a deadline for completing the
remedy selection process, but rather expects it to be completed as soon
as practicable. Once the assessment of corrective measures has been
completed within the timeframe specified in this rule, and the public
meeting has occurred, the facility owner or operator must select a
remedy and begin implementing that remedy as soon as is practicable. It
is vitally important that the facility selects a remedy as soon as
practicable and begins designing and implementing that remedy, so that
releases to groundwater are addressed without unnecessary delay. EPA
understands that there are a variety of activities that may be
necessary in order to select the appropriate remedy (e.g., discussions
with affected citizens, state and local governments; conducting on-site
studies or pilot projects); and, once selected, to implement the remedy
(e.g., securing on-site utilities if needed, obtaining any necessary
permits, etc.). That is why EPA does not find it appropriate to set
specific timeframes for selecting the remedy or to begin implementing
the selected remedy. However, in order to ensure that the community is
kept informed as to the progress of selecting and implementing the
remedy, EPA is requiring that the facility owner or operator, on a
semiannual basis, post status reports/updates on their progress
[[Page 21408]]
to their publicly accessible internet site and submit these to the
state.\118\
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\118\ As evidenced in 42 U.S.C. 6971(f), Congress intended that
the OSHA be able to enforce its regulations to protect workers
exposed to hazardous waste and that EPA and OSHA would work together
to ensure that. EPA is clarifying that it intends that the CCR
disposal rule not preempt applicable OSHA standards designed to
protect workers exposed to CCRs; thus EPA's final rule on CCR
disposal will apply in addition to any applicable OSHA standards.
The Agency has added specific regulatory language in this section to
address this intent.
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However, the Agency has concluded that it is reasonable to require
that once a remedy has been chosen, the owner or operator of the CCR
unit must begin to implement that remedy within a specified period of
time. Consistent with the timeframes throughout this section, the final
rule requires that within 90 days of selecting a remedy, the owner or
operator must have initiated corrective measures, including any interim
measures determined to be appropriate, and have established a
corrective action groundwater monitoring program (and begin following
it). (Sec. 257.98). This is a reasonable timeframe in which to begin
these activities based on EPA's long experience in conducting and
overseeing cleanup activities.
The remedy would be considered complete when the owner or operator
demonstrates compliance with the groundwater protection standards for a
period of three consecutive years, and all other actions required to
meet the performance standards in Sec. 257.97(b) have been satisfied
(e.g., source control). The owner or operator must obtain certification
that the remedy is complete from a qualified professional engineer, and
must notify the State Director. The certification must also be placed
in the operating record and on the owner or operator's publicly
accessible Internet site.
The Agency deleted the provision that allows an owner or operator
to determine that compliance cannot be reasonably achieved with any
currently available methods. The Agency determined that without state
oversight or a permitting program, that provision was potentially
subject to abuse and thus, inappropriate to be included in a self-
implementing rule.
9. Timing Overview
The groundwater monitoring regulations require that the owner or
operator of existing CCR units must comply with Sec. 257.90-Sec.
257.94 within 30 months of the date of publication of the rule.
Essentially, that means that by the end of 30 months, the owner or
operator must (1) install the groundwater monitoring system; (2)
document the sampling and analysis procedures; (3) establish which
statistical tests will be used to determine exceedances; (4) sample all
wells to have a minimum of 8 samples for all appendix III and IV
parameters; and (5) determine if there is a statistically significant
exceedance of any appendix III parameter, which would trigger
assessment monitoring.
New CCR units must comply with Sec. Sec. 257.90-257.93, including
the requirement under Sec. 257.94(b) to collect and analyze eight
independent samples from each well for the parameters listed in
appendix III and IV to this part to determine background levels for all
appendix III and IV constituents, before commencing operation.
Essentially, that means that before receiving CCR waste, the owner or
operator must (1) install the groundwater monitoring system; (2)
document the sampling and analysis procedures; (3) establish which
statistical tests will be used to determine exceedances; and (4) sample
all wells to have a minimum of eight samples for all appendix III and
IV parameters.
If assessment monitoring is triggered, within three months the
owner or operator must sample all wells for all appendix IV
constituents (minimum of one sample) and resample (minimum of one
sample) all wells for all appendix III parameters and those appendix IV
constituents that were detected in the first round of sampling. The
owner or operator could also simultaneously use this three month
timeframe to demonstrate that the statistically significant increase
found in detection monitoring was due to another source or sampling and
analysis error. While conducting assessment monitoring, the owner or
operator must continue sampling for all appendix III constituents and
any appendix IV detected constituents semiannually. The owner or
operator must sample for all appendix IV constituents annually.
The owner or operator must also establish groundwater protection
standards (MCL or background levels) for all appendix IV constituents
detected during sampling.
If one or more appendix IV constituents are detected at
statistically significant levels above the groundwater protection
standards established, or a release from a CCR unit has been detected,
corrective action is triggered. The owner or operator must characterize
the nature and extent of the release by installing additional
monitoring wells, collecting data on the quantity and concentration
levels of regulated constituents in the released material, sampling and
notifying the State Director, local government officials, and any
persons who own land or reside on the land that overlies the plume if
the plume has migrated off site. The owner or operator must also place
the notification in their operating record and on their publicly
accessible Internet site.
If corrective action is triggered, within three months the owner or
operator must initiate an assessment of corrective measures. If the CCR
unit is an unlined surface impoundment, the unit must stop receiving
CCR and non-CCR wastes and initiate closure of the unit or begin to
retrofit the unit within six months. The owner or operator could also
simultaneously use these three months to initiate an assessment of
corrective measures to demonstrate that the statistically significant
increase found during assessment monitoring was due to another source
or sampling and analysis error.
The assessment of corrective measures must be completed in three
months, with the possibility of an additional two months if the owner
or operator demonstrates the need for additional time. The owner or
operator must continue assessment monitoring and provide notification
of the corrective measures assessment to the State Director and place
the assessment in the operating record and on the owner's or operator's
publicly accessible Internet site. The owner or operator also must
discuss the results of the corrective measures assessment at least one
month prior to selection of remedy in a public meeting.
Within three months of selecting a remedy, the owner or operator
must initiate remedial activities. Corrective action is completed when
the owner or operator demonstrates compliance with the groundwater
protection standards for three consecutive years.
L. Closure of Inactive Units.
As discussed in Unit VI.A of this document, EPA proposed that
inactive CCR surface impoundments that had not completed closure in
accordance with specified standards by the effective date would be
subject to all of the requirements applicable to existing CCR surface
impoundments. EPA adopted this approach to create an incentive to
expedite the closure of these units, with all of the significant risk
mitigation that such a measure would entail. EPA is retaining this
general approach in the final rule, but has revised the provision to
grant inactive CCR surface impoundments more time to complete closure,
consistent with the other closure provisions in the final rule. The
[[Page 21409]]
final rule extends the deadline to three years from publication of the
rule in the Federal Register.
The proposal was based on EPA's belief that the timeframes between
publication of the final rule and the effective date would be
sufficient for facilities to close inactive CCR surface impoundments.
This was particularly true under the subtitle C option, where the
timeframe between publication and the effective date could be as long
as 18 months, due to the need for subsequent action by authorized
states. Under the proposed rule, the maximum amount of time a facility
would have to initiate and complete closure of a disposal unit was
seven months. However, as discussed elsewhere in this preamble, EPA
received numerous comments raising concern that these timeframes would
essentially be ``impossible to meet'' for surface impoundments located
in certain geographic and climatic conditions, as well as for all of
the larger units. These comments convinced EPA that it had not
adequately accounted for the complexities inherent in electric
generating facility operations, and the different characteristics of
CCR surface impoundments in designing the closure provisions in the
proposal. EPA has revised the timeframes applicable to closures in the
final rule accordingly in light of these issues. See Unit VI.M of this
document. These same considerations apply with respect to this
provision, and additional time is therefore necessary to make this
option truly viable.
EPA selected three years based primarily on two factors. EPA
initially focused on the minimum amount of time necessary to close a
CCR surface impoundment. As discussed in more detail in Unit VI.M of
this document, there can be a substantial range in the amount of time
needed to close a surface impoundment, depending on, for example, the
size and location of the unit.
However, a critical factor in EPA's decision is that under this
approach these units will not be subject to the rule's groundwater
monitoring or structural stability requirements (provided they complete
closure within three years). Moreover, based on the information in the
record, it appears highly unlikely that groundwater monitoring is
currently being conducted at these units (as discussed in Unit IV.A of
this document, the information on groundwater monitoring requirements
applicable to existing units was extremely sparse, but many older units
appear to lack effective groundwater monitoring systems). EPA
considered that allowing these inactive units to remain in place
without taking measures to address the continuing threat that these
units present for a substantial amount of time could not be justified.
EPA therefore focused on the amount of time authorized under the rule
for implementation of the groundwater monitoring requirements (i.e., 2
years from the effective date) and for key structural stability
requirements (i.e., 18 months to complete key analyses).
As discussed in more detail in the next section, the information in
the record demonstrates that it is feasible to complete the closure of
CCR surface impoundments within three years. EPA recognizes that larger
CCR surface impoundments (i.e., above 40 acres) may not be able to
close within this timeframe. However, to be able to support this
provision, EPA must balance the risk mitigation achieved by closure of
CCR surface impoundments against the risks inherent in allowing
inactive CCR surface impoundments to remain in place for longer periods
of time. The longer inactive CCR impoundments remain without all of the
protections provided by the final rule, the greater the potential for
significant health and environment impacts. Larger units are also the
ones more likely to present the highest risks, and so warrant the
greater oversight provided by application of all of the technical
criteria to their operation (and closure). Consequently, EPA is unable
to justify expanding this option to include the longer timeframes
available under Sec. Sec. 257.102 or 257.103.
The criteria for conducting the closure of inactive CCR surface
impoundments are essentially the same as those applicable to active CCR
units. Inactive units can either clean close units, or close with waste
in place, subject to same performance standards in Sec. 257.102 for
all other CCR units. If an inactive CCR surface impoundment is
completely closed within the three year timeframe, no other
requirements apply to that unit. This means that no groundwater
monitoring or other post-closure care requirements would apply to these
units. Once an inactive CCR surface impoundment has been breached and
dewatered, the risks are essentially the same as the risks associated
with an inactive CCR landfill, which are not subject to any
requirements under the final rule.
However, owners or operators of inactive CCR surface impoundments
that have not completed closure within this timeframe must comply with
all of the requirements applicable to existing CCR impoundments. If the
facility intends to maintain the inactive unit indefinitely, whether to
provide potential future capacity, or to continue to dredge the unit to
provide material for beneficial use, or with the idea that it may be
repurposed for other facility operations (e.g., to manage stormwater),
there is no basis for distinguishing between these units and actively
managed units on the basis of the potential risks. Thus, such units
would need, for example, to meet all of the location and structural
stability criteria (which could independently compel closure of the
unit), install the groundwater monitoring system, and begin to monitor
within the timeframes established in the final rule. This also means
that any facility that initiates closure under this provision but fails
to complete it within this timeframe, must comply with all groundwater
monitoring requirements in Sec. Sec. 257.90-98 (e.g., install
groundwater monitoring wells) as well as all of the post-closure care
requirements.
M. Closure and Post-Closure Care
Closure and post-closure care are an integral part of the design
and operation of CCR landfills and CCR surface impoundments.\119\ EPA
solicited public comment on closure and post-closure care requirements
under a subtitle D approach in the proposed rule and sought additional
comment on specific closure requirements in a subsequent notice of data
availability.
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\119\ As discussed in the proposed rule, EPA's ``Guide for
Industrial Waste Management'' documents the general consensus on the
need for effective closure and post-closure care requirements
(Chapter 11). This guide can be accessed at http://www.epa.gov/epawaste/nonhaz/industrial/guide/.
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For CCR landfills, the proposed closure and post-closure care
requirements were modeled on current regulations that apply to
municipal solid waste landfills, which are codified in part 258. In
some cases, the proposed requirements were modified to reflect the lack
of a mandatory permitting mechanism (see Unit V.A. of this preamble for
additional information), in addition to other changes EPA believed were
appropriate to ensure that there would be no reasonable probability of
adverse effects from the wastes that remain after a CCR unit had
closed. For CCR surface impoundments, the Agency modeled the proposed
requirements on current regulations that apply to interim status
hazardous waste surface impoundments, which are codified in part 265.
Some additional proposed provisions were based on requirements
currently applicable to water, sediment, or slurry impoundments and
[[Page 21410]]
impounding structures that are regulated by the MSHA. See 30 CFR part
77, subpart C.
The proposed rule included a number of closure and post-closure
criteria, including: (1) Requirements to prepare closure and post-
closure plans; (2) requirements for conducting closure of a CCR unit
when the CCR is removed and when the CCR is left in place, including
design criteria for a final cover system; (3) timeframes to commence
and complete closure activities; (4) closure and post-closure care
certification requirements; and (5) requirements for conducting post-
closure care. The Agency received numerous comments on the proposed
closure and post-closure criteria, with the majority of comments
pertaining to the proposed timeframes for closure (i.e., timeframes for
commencing and completing closure) of a CCR surface impoundment. As a
result of these comments, EPA solicited additional comments on the
timeframes for closure in a NODA published on August 2, 2013 (NODA 3).
See 78 FR at 46944. The sections below explain the approach and
rationale for the final rule closure and post-closure care criteria
based on the comments received in response to the proposed rule and the
NODA.
1. Closure Plan
The Agency proposed to require that the owners or operators of CCR
landfills and CCR surface impoundments prepare a written closure plan
describing the closure of the unit and providing a schedule for
implementation of the plan. 75 FR at 35207-08. The closure plan would
describe the steps necessary to close the CCR unit at any point during
the active life based on recognized and generally accepted good
engineering practices. The proposal also identified the minimum
information necessary to include in the closure plan. This information
included: (1) An estimate of the largest area of the CCR unit that
would ever require a final cover during the active life of the CCR
unit; (2) an estimate of the maximum inventory of CCR that would ever
be present on-site over the active life of the CCR unit; (3) a
description of the final cover and the procedures to be used to install
the final cover; (4) a description of how the facility will provide for
major slope stability following closure; (5) a description of the
measures the owner or operator will adopt to preclude the probability
of future impoundment of water, sediment, or slurry; and (6) a schedule
for the implementation of the closure plan. See proposed Sec.
257.100(a) and (g). The proposed rule would also have required each
owner or operator to develop the closure plan by the effective date of
the final rule. Finally, EPA proposed to require the owner or operator
to have the closure plan certified by an independent registered
professional engineer, in addition to complying with all of the
notification and posting requirements under the rule.
EPA received few public comments on either the proposal to develop
a closure plan or the individual elements of the closure plan. Some
commenters generally supported the requirement for an owner or operator
to develop a closure plan for the CCR unit, and no commenters opposed
it. However, one commenter requested that EPA include more specific
requirements for slope stability in the regulatory language beyond the
general requirement to address major slope stability in the closure
plan for units that close with waste in place.
The Agency agrees that the proposed regulatory language should
provide more specific criteria defining the expectations with regard to
major slope stability. The proposed regulation merely required the
owner or operator to ``provide for major slope stability'' in the
closure plan, or in other words, to include measures to ensure that
slope stability issues will be accounted for in designing the final
cover. See 75 FR 35252.
EPA explained that unit closure must provide for major slope
stability to prevent the sloughing of the cover system over the wastes
that will remain in the CCR unit over the long term. Sloughing of a
land slope can occur when the earth material becomes saturated with
water and incapable of maintaining the slope resulting in the movement
or sliding of the earth material. 75 FR at 35209. Slope stability is a
critical issue in the design of final cover systems for both surface
impoundments and landfills because cover system slope instability has
been attributed to a number of final cover system failures.\120\ More
specifically, the primary causes of final cover system slope failure
during construction have been identified as: (1) Placing soil over the
sideslope geosynthetics from the top of the slope downward, rather than
the toe of the slope upward; (2) using presumed values for critical
interface shear strengths that were not conservative; and (3) using
interface shear strength values from laboratory tests performed under
conditions not representative of the actual field conditions. For final
cover system slope failures after rainfall or thaw, the primary causes
of failure have been identified as: (1) Not accounting for seepage
forces; (2) clogging of the internal drainage layer, which leads to
increased seepage forces; and (3) not accounting for moisture at the
geomembrane and compacted clay liner interface (which weakened the
interface) due to both rain falling on the compacted clay liner surface
during construction and freeze-thaw effects.
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\120\ USEPA, ``Assessment and Recommendations for Improving the
Performance of Waste Containment Systems,'' EPA/600/R-02/099,
December 2002.
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Given that slope stability is a critical issue in the design and
eventual performance of a final cover system, EPA has adopted a new
criterion in the performance standard that all closures must meet: The
owner or operator must ensure that the CCR unit is closed in a manner
that will ``provide for major slope stability to prevent the sloughing
or movement of the final cover system during closure and throughout the
post-closure care period.'' See Sec. 257.102(d)(1)(iii). Or in other
words, the owner or operator must design a final cover system with any
measures necessary to ensure that the major slopes of the closed CCR
unit remain stable. Consistent with the proposal, the closure plan must
discuss how the final cover system will achieve the performance
standards specified in the regulation, which will necessarily include
how the measures taken to address major slope stability. As explained
in the proposed rule, the original provision was based on existing MSHA
standards, specifically the requirements under 30 CFR 77.216-5 which
apply to abandoned water, sediment or slurry impoundments and
impounding structures.\121\ 75 FR 35208-09. Under these requirements
major slope stability includes long term stability considerations, such
as ``erosion control, drainage, etc.'' These issues are equally
relevant to the closure of CCR units, and EPA expects facilities to
account for these factors in their final closure plans.
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\121\ The term ``abandoned'' is defined in the MSHA regulations
under 30 CFR 77.217, and as applied to an impoundment or impounding
structure such term means that work on the structure has been
completed in accordance with a plan for abandonment approved by the
District Manager.
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The remaining information elements of the closure plan have been
adopted without revision (although EPA has reorganized the final
regulatory text for greater clarity). These are briefly summarized
below:
a. An estimate of the largest area of the CCR unit ever requiring a
final cover during the active life of the CCR unit. If
[[Page 21411]]
the owner or operator routinely closes portions of a CCR unit as the
design capacity is reached, the closure plan should indicate the
largest area of the CCR unit that will be open (and requiring a final
cover) at one time.
b. An estimate of the maximum inventory of CCR ever on-site over
the active life of the CCR unit. If the owner or operator routinely
closes portions of a CCR unit as the design capacity is reached, the
closure plan should indicate the maximum inventory of CCR that will be
open (and requiring a final cover) at one time.
c. A description of the final cover and the procedures to be used
to install the final cover. The closure plan should also discuss how
the closure performance standard will be achieved.
d. A description of the provisions to preclude the probability of
future impoundment of water, sediment, or slurry. The final grades of
the final cover system should promote surface water run-off and
minimize erosion. The closure plan should also discuss the steepness of
the slopes of the final cover system, in addition to the vertical
spacing and width of benches.
e. A schedule for the implementation of the closure plan.
This rule also provides new procedures for amending an existing
written closure plan. While the proposed rule did not specifically
allow or require the owner or operator to revise an existing closure
plan, EPA recognizes that available information and conditions known at
the time the closure plan is prepared may very well change during the
active life of the CCR unit, which could be decades in some cases. In
order to eliminate any potential confusion over whether an owner or
operator is allowed under this rule to revise the closure plan to
reflect a change in conditions or circumstances, the final rule adopts
new procedures for amending a written closure plan. These new
procedures allow the owner or operator to revise the closure plan at
any time provided the revised plan is placed in the facility's
operating record, in addition to complying with all of the notification
and posting requirements under the rule. Furthermore, the final rule
requires the closure plan be amended any time there is a change in
conditions that would substantially affect the written closure plan in
effect.
Finally, in a departure from the proposed rule, the final rule
provides owners and operators one year from the rule's effective date
to prepare the initial written closure plan, which is one year longer
than proposed. EPA made this change as part of its effort to coordinate
the compliance and implementation timeframes in the CCR rule with
another Agency rulemaking--the Effluent Limitations Guidelines and
Standards for the Steam Electric Power Generating Point Source Category
(ELG) rulemaking--that may affect owners and operators of CCR units.
See 78 FR 34442. As explained in that proposal, consistent with RCRA
section 1006(b), EPA has sought to effectively coordinate any final
RCRA requirements with the ELG requirements, to minimize the overall
complexity of these two regulatory structures, and to facilitate the
implementation of engineering, financial and permitting activities.
EPA's goal is to ensure that the two rules work together to effectively
address the discharge of pollutants from steam electric generating
facilities and the human health and environmental risks associated with
the disposal of CCRs, without creating avoidable or unnecessary
burdens.
EPA proposed to require facilities to complete a closure plan by
the rule's effective date, or six months following the rule's
publication. However, this would have required owners or operators to
prepare closure plans approximately three months prior to publication
of the ELG final rule. Given that an understanding of the ELG rule
would likely affect the details and content of a closure plan, the
Agency concluded that it would make no sense to require an owner or
operator to prepare a closure plan within six months, only to have them
update it months later, after the owner or operator understands the
requirements of both the CCR and ELG final rules. No measureable
environmental or health benefit would be gained by having a closure
plan in place for those three months. Moreover, EPA wants to ensure
that closure plans are well considered, and the knowledge that a plan
may need to be substantially revised in the near future could create a
contrary incentive.
By extending the deadline for preparation of the closure plan by
one year, owner or operators will have slightly more than six months
after the ELG rule is published to complete a closure plan. This is
consistent with the six month timeframe EPA originally proposed, which
as noted, would have required completion of the closure plan within six
months of publication of the final CCR rule.
2. Closure of a CCR Unit Through Removal and Decontamination
The proposed rule would have allowed facilities to close a CCR unit
either through CCR removal and decontamination of all areas affected by
releases from the CCR unit (``clean closure'') or with CCR in place
with a final cover system. The Agency proposed that if the owner or
operator elects to clean close a CCR unit, CCR removal and
decontamination are complete when constituent concentrations throughout
the CCR unit and any areas affected by releases from the CCR unit do
not exceed the numeric cleanup levels for those constituents found in
CCR established by the state in which the CCR unit is located, to the
extent that the state has established cleanup levels. 75 FR 35208. In
the absence of state cleanup levels, the proposal stated that metals
should be removed to either statistically equivalent background levels,
or to maximum contaminant levels or health-based numbers. Once a
facility had completed clean closure of a CCR unit, EPA proposed that
post-closure care would not be required for that unit. EPA also noted
that it was considering whether to adopt a further incentive for clean
closure, under which the owner or operator could remove the deed
notation required under the proposed rule, once all CCR has been
removed from the facility and notification provided to the state.
Several commenters urged EPA to not require clean closure as the
only method of closing a CCR unit, arguing that clean closure is not
feasible or not necessary. Others acknowledged that clean closure is
not only a viable option for their CCR units, but in some cases it
would be ``the only prudent closure option.'' A few commenters
suggested criteria to determine the conditions under which clean
closure would be appropriate. For example, one commenter agreed with
EPA that the risk-based corrective action process (RBCA) would be
useful in determining whether waste removal is appropriate at the site.
EPA received relatively few comments on the specific standards for
conducting clean closure. One commenter identified six criteria that
should be included in any final regulation in order to allow a facility
to have been deemed to have completed clean closure of a CCR surface
impoundment and thereby avoid post-closure care. Some of the
commenter's suggestions were comparable to requirements in the
proposal. However the commenter also included requirements to ensure
that adequate engineering controls were used to prevent contamination
of soil and groundwater during excavation, and requirements for
quarterly monitoring of shallow groundwater beneath the surface
impoundment for a period of five years to demonstrate that no
[[Page 21412]]
residual CCR was left in place. Finally, a number of commenters
supported a provision that would allow the owner or operator to remove
the deed notation required provided all CCR is removed from the site.
EPA did not propose to require clean closure nor to establish
restrictions on the situations in which clean closure would be
appropriate. As EPA acknowledged in the proposal, most facilities will
likely not clean close their CCR units given the expense and difficulty
of such an operation. Because clean closure is generally preferable
from the standpoint of land re-use and redevelopment, EPA has
explicitly identified this as an acceptable means of closing a CCR
unit. However, both methods of closure (i.e., clean closure and closure
with waste in place) can be equally protective, provided they are
conducted properly. Thus, consistent with the proposal, the final rule
allows the owner or operator to determine whether clean closure or
closure with the waste in place is appropriate for their particular
unit. EPA agrees that the RBCA process, using recognized and generally
accepted good engineering practices such as the ASTM Eco-RBCA process,
can be a useful tool to evaluate whether waste removal is appropriate
at the site. It is, however, not a necessary prerequisite.
EPA has adopted the provisions governing clean closure from the
proposed rule with only one revision. The final provisions consist of
two performance standards: First, the owner or operator must remove all
CCR from the unit and decontaminate all areas affected by releases from
the CCR landfill or surface impoundment. As part of meeting this
performance standard, the final rule requires facility owners or
operators to remove all wastes from the closing unit, and remove all
liners contaminated with CCR waste and CCR waste leachate. The final
rule also requires the owner or operator to remove and decontaminate
all areas affected by releases from the CCR unit. This would require
removal or decontamination of the underlying and surrounding soils and
flushing, pumping, and/or treating the aquifer. The Agency interprets
the term ``soil'' broadly to include both unsaturated soils and soils
containing groundwater.
Second, the final rule specifies that closure has been completed
when all CCR in the unit and any areas affected by releases from the
CCR unit have been removed and groundwater monitoring demonstrates that
all concentrations of the assessment monitoring constituents listed in
appendix IV to part 257 do not exceed either statistically equivalent
background levels or MCLs. This standard encompasses both saturated and
unsaturated soils, as well as the groundwater. As part of attaining
this standard, facility owners and operators will need to document that
any contaminants left in the subsoils (i.e., contaminated groundwater
left in soils below the former landfill or impoundment) will not impact
any environmental media including groundwater, surface water, or the
atmosphere in excess of Agency-recommended limits or factors.
Typically, any metals in these ``subsoils'' in excess of background
levels are allowed to either naturally attenuate, or are removed by
flushing. Once the facility has removed all of the assessment
monitoring constituents listed in appendix IV down to background levels
or MCLs the groundwater is considered to be ``clean'' and closure is
complete.
EPA disagrees that specific provisions requiring the use of
adequate engineering controls to prevent contamination of soil and
groundwater during excavation are necessary to ensure that closure will
be protective. To the extent that any contamination of soil or
groundwater has occurred during CCR removal, this would constitute a
release (or an ``area affected by a release'') from the CCR unit, and
the final performance standard requires the facility to ensure that
this has been removed before closure is deemed to be complete.
Contrary to the commenter's suggestion that quarterly monitoring
for five years is necessary to demonstrate that no residual CCR was
left in place, the rule requires a facility to document that all
appendix IV concentrations are below MCL or background levels for two
consecutive sampling events, using the statistical procedures in Sec.
257.93(g). This is the same sampling required to demonstrate under the
groundwater monitoring program that there is no longer a reason to
suspect a source of contamination, and that consequently assessment
monitoring can cease. EPA selected these provisions as the most
factually analogous to the circumstances surrounding the clean closure
of a CCR unit. Once a facility has removed the waste and any liner, the
presumption is that the source of contamination has been removed as
well. Although there may be site-specific factors that could support
the need for a longer monitoring period, there is no factual basis to
require a longer minimum period of sampling on a national basis.
This represents a change from the proposal. EPA proposed a
performance standard that required decontamination to either any state
established numeric cleanup levels for CCR constituents, or in the
absence of state cleanup levels, the removal of metals to either
statistically equivalent background levels, or to MCLs, or health-based
numbers. This was taken directly from the current part 258 standards
for MSWLFs. EPA has deleted both of these standards as inappropriate
for these units.
The reference to state established clean up levels was
inadvertently carried over from the existing part 258 regulations. As
explained throughout this preamble, EPA is unable to rely on state
programs to establish the specific standards under this rule; the
record does not contain information on all state cleanup standards, and
there is no mechanism for states to operate approved programs in lieu
of federal programs.
EPA determined that the requirement to clean all soils to
background levels was equally inappropriate. In practice, EPA does not
routinely require complete removal of all contamination (that is,
cleanup to `background') from a closing unit even for hazardous waste
units. Requiring CCR units to clean up soils to levels before the site
was contaminated, would be more stringent than current hazardous waste
policies. There is no basis in the current record to impose provisions
for the remediation of CCR units that are more stringent than those
imposed on hazardous wastes.
Upon completion, the unit is exempt from the groundwater monitoring
and any other post-closure care requirements. In addition, the final
rule adopts the proposal to allow the owner or operator to remove the
deed notation required under Sec. 257.102(i)(4), upon certification
that clean closure has been completed. EPA proposed this option to
create a further incentive for clean closure, and it is clear from the
commenters, who uniformly supported this option, that it does so. Some
commenters raised concern about the effect this option will have on
state laws, which may not allow the deed notation to be removed. EPA
notes that these criteria do not preempt state laws; to the extent
state law requires the facility to retain a deed notation despite the
completion of clean closure, those requirements will remain in place,
notwithstanding this final rule.
3. Closure of a CCR Unit With CCR in Place
The proposed rule would have also allowed facilities to close a CCR
unit by leaving the CCR in place and installing a final cover system.
The final cover
[[Page 21413]]
system would have been required to be designed and constructed to a
have a permeability less than or equal to the permeability of any
bottom liner system or the natural subsoils present, or a permeability
no greater than 1 x 10-5 centimeters per second (cm/sec),
whichever is less. The proposal would have also required an
infiltration layer that contains a minimum of 18 inches of earthen
material and an erosion layer containing a minimum of six inches of
earthen material that is capable of sustaining native plant growth to
help minimize erosion of the final cover. These proposed requirements
were generally modeled after the performance standard and technical
requirements contained in Sec. 258.60 for MSWLFs. 75 FR 35208. EPA
also proposed that the final cover system would have to be designed to
minimize the disruption of the final cover through a design that
accommodates settling and subsidence and provides for major slope
stability to prevent the sloughing of the closed CCR unit over the long
term. These last two criteria are based on existing requirements for
interim status units under RCRA part 265 and MSHA requirements under 30
CFR part 77, subpart C, respectively.
As proposed, CCR surface impoundments would have been subject to an
additional set of performance standards. The owner or operator of a CCR
surface impoundment would have been required to either drain the CCR
unit or solidify the remaining wastes. In addition, the owner or
operator would have been required to stabilize the wastes to a bearing
capacity to support the final cover. The proposed criteria would also
have required that the final cover for all CCR units be designed to
minimize the migration of liquids through the closed CCR surface
impoundment over the long term; promote drainage, and accommodate
settling and subsidence so that the final cover's integrity is
maintained. Finally, closure of the CCR unit would also have been
subject to the general performance standard that the probability of
future impoundment of water, sediment, or slurry be precluded.
The Agency also proposed to allow owners or operators of CCR units
to select an alternative final cover design. As proposed, the
alternative final cover design would have required an infiltration
layer that achieves an equivalent reduction in infiltration, and an
erosion layer that would provide equivalent protection from wind and
water erosion, as the infiltration and erosion layers specified for
final covers described above. In addition, the proposed approach for
alternative final cover designs would have also required certification
by an independent registered engineer, notification being provided to
the state that the alternative final cover design has been placed in
the facility's operating record, and placement of the alternative final
cover design on the owner or operator's publicly accessible Internet
site.
a. Final Cover System Design
EPA received comments supporting the proposed approach, while other
commenters opposed the proposed final cover system design requirements.
One state commenter generally supported using the part 258 final cover
design requirements as a general model for CCR units. This commenter
also requested that the Agency clarify whether new CCR units would be
required to install a composite final cover system given that it was
proposed that new CCR units would be required to designed and
constructed with a composite bottom liner. Another state indicated that
its state regulations allow final cover designs similar to that
proposed by EPA, although the state requires a 24 inch infiltration
layer and a 12 inch erosion layer. Another commenter referenced current
research showing that soil-only covers may not be effective in
minimizing infiltration over the long term under certain climates. This
commenter recommended that a geomembrane should be made a standard
component of the cover system. Other commenters stated that the final
cover system should be a composite system consisting of a synthetic
component and a low permeability clay component. A state commenter
offered that post-closure maintenance of composite cap system
incorporating a geomembrane has been challenging in that state. Another
commenter stated that a compacted clay liner should not be used as a
final cover for landfills due to the potential for settlement cracking,
desiccation cracking, and root and animal penetration. Instead, it was
suggested that if a single barrier system is used, then a benefit-cost
analysis favors a geomembrane, and if a composite barrier is to be
used, a benefit-cost analysis favors a composite system of a
geomembrane and geosynthetic clay liner.
The Agency also received many comments on the proposed approach to
allow the use of alternative final cover systems. Most commenters
supported allowing the use of alternative covers. One commenter stated
that the use of geosynthetic clay liners in lieu of 18 inches of
earthen material for the infiltration layer is a commonly accepted for
cover systems for MSWLFs. This commenter also noted that that
geosynthetic clay liners have documented permeability characteristics
on the order of 1 x 10-9 cm/sec. Another commenter supported
allowing the use of alternative cover systems because a one-size-fits-
all approach is not appropriate for final cover system designs. A state
also offered that appropriately designed alternative final covers such
as capillary barrier covers and evapotranspiration covers are being
successfully used at facilities in the state.
After considering comments received regarding final covers, the
Agency is essentially finalizing the approach in the proposed rule with
minor revisions. The final rule allows owners or operators to use a
final cover system consisting of an infiltration layer and an erosion
layer, provided the infiltration layer has a permeability less than or
equal to the bottom liner or natural subsoils. However, regardless of
the bottom liner or natural subsoils present, the final cover must have
a permeability no greater than 1 x 10-5 cm/sec.
To address the commenters' concerns that the final cover system may
not function effectively as designed over the long term under certain
circumstances, the rule also includes a performance standard that any
final cover system must meet. This standard is modeled after the
closure performance standard applicable to interim status hazardous
waste units under Sec. 265.111. The final rule requires that any final
cover system control, minimize or eliminate, to the maximum extent
practicable, post-closure infiltration of liquids into the waste and
releases of leachate (in addition to CCR or contaminated run-off) to
the ground or surface waters. Thus, a facility must ensure that in
designing a final cover for a CCR unit they account for any condition
that may cause the final cover system not to perform as designed. This
could include accounting for site conditions that may increase the
likelihood that a cover would be susceptible to desiccation cracking or
settlement cracking. Under this performance standard, if the cover
system results in liquids infiltration or releases of leachate from the
CCR unit, the final cover would not be an appropriate cover. The final
rule requires the final cover system design to be certified by a
qualified professional engineer that the design meets both the
performance standard and cover system criteria.
The final rule does not require the use of composite final covers,
such as a geomembrane underlain by a compacted soil infiltration layer.
This is also the
[[Page 21414]]
case in situations for a CCR unit that is designed with a composite
bottom liner or if the permeability of the soil underlying the unit is
comparable to the permeability of a geomembrane. As EPA has concluded
for municipal solid waste landfills, in certain site-specific
situations it may be possible to construct an infiltration layer that
achieves an equivalent reduction in infiltration without matching the
permeability in the bottom liner material. 62 FR 40710.
Nonetheless, in certain locations, composite cover systems may be
necessary to achieve the rule's performance standards. EPA acknowledges
that under certain circumstances issues can arise with compacted clay
barriers, particularly when used alone. These can include desiccation,
freeze-thaw sensitivity, and distortion due to total and differential
settlement of the underlying wastes. These issues can generally be
addressed through proper maintenance of the cover system; and in fact
the final rule requires as part of post-closure care that the owner or
operator maintain the integrity and effectiveness of any final cover,
including making repairs to the final cover to correct the effects of
settlement, subsidence, erosion, or other events, and preventing run-on
and run-off from eroding or otherwise damaging the final cover.
Consequently, EPA is not mandating the installation of a composite
liner system.
However, fewer problems are typically seen with the use of
composite cover systems. And while ongoing oversight and proper
maintenance is necessary to ensure the efficacy of any cover system,
less effort is generally involved to ensure the continued performance
of a composite cover system. EPA therefore generally recommends that
facilities install a composite cover system, rather than a compacted
clay barrier, as the composite system has often proven to be more
effective (and cost effective) over the long term. For these reasons,
EPA also anticipates that composite cover systems will be recommended
in many circumstances by qualified professional engineers.
The final rule also allows the use of an alternative final cover.
The rule requires that the alternative final cover must include
infiltration and erosion layer that achieve equivalent performance as
the minimum designs specified for final cover systems as discussed
above. As discussed in the proposed rule, EPA included this provision
to increase the flexibility for an owner or operator of a CCR unit to
account for site-specific conditions. Moreover, these provisions will
provide an opportunity to incorporate future technology improvements
that would be missed if the rule required prescriptive design measures.
In addition, these requirements would not supersede more stringent
state requirements. Thus, if a state either has more prescriptive or
more stringent standards in its state regulations applicable to CCR
units, those state requirements would control any final cover system or
alternative final cover system design.
While the rule provides the owner or operator flexibility in
selecting the final cover for the unit, EPA remains concerned about the
lack of guaranteed state oversight on final cover selection. A final
cover system that does not perform as designed may result in
unacceptable infiltration of water into the closed CCR unit that may
lead to leachate and releases from the unit. To address this concern,
as well as the concerns raised by commenters regarding the long-term
performance of certain cover systems by providing further assurance
that the final cover system will perform over the long term, EPA has
deleted the proposed provision that would have allowed owners or
operators to shorten the length of the post-closure care period. As
discussed in Unit M.9 below, the final rule requires facilities to
conduct post-closure care for all CCR units for 30 years.
b. Performance Standards When Leaving CCR in Place
EPA received no significant comments on the proposed performance
standards. The Agency is therefore finalizing these requirements
without revision from the proposal (although EPA has reorganized the
final regulatory text for greater clarity). The performance standards
are summarized below:
i. As discussed in the previous section, the CCR unit must be
closed in a manner that will control, minimize or eliminate, to the
maximum extent practicable, post-closure infiltration of liquids into
the waste and releases of CCR, leachate, or contaminated run-off to the
ground or surface waters.
ii. The CCR unit must be closed in a manner that will preclude the
probability of future impoundment of water, sediment, or slurry.
iii. The CCR unit must be closed in a manner that will provide for
major slope stability, which is discussed is Unit M.1 of this document
for closure plans above.
iv. The CCR unit must be closed in a manner that will minimize the
need for further maintenance of the unit.
v. The CCR unit must be closed in the shortest amount of time
consistent with recognized and generally accepted good engineering
practices. The Agency added this performance standard to be consistent
with the final provisions applicable for the timeframes for initiating
and completing the closure of CCR units.
4. Timeframes for Closure
The Agency proposed that closure of a CCR landfill or CCR surface
impoundment must be initiated by the owner or operator no later than 30
days following the known final receipt of CCR. To address concerns
about ``inactive'' or abandoned units, the proposed rule also provided
that a CCR unit must initiate closure no later than one year after the
most recent receipt of CCR if the CCR unit had remaining capacity and
there was a reasonable likelihood that the CCR unit would receive
additional CCR (i.e., the rule would have forced the facility to close
the CCR unit). See 77 FR at 35209 and proposed Sec. 257.100(j). In
addition, the proposed rule would have required an owner or operator to
complete closure activities within 180 days of initiating closure. See
proposed Sec. 257.100(k). Thus, the maximum amount of time a facility
would have had to initiate and complete closure of a CCR unit was seven
months.
While the existing closure criteria for MSWLFs allow the Director
of an approved State to grant time extensions for closure (both to
initiate and to complete closure) if steps are taken to prevent threats
to human health and the environment from the unclosed unit, EPA
proposed not to include similar provisions for owners or operators of
CCR units. At proposal, the Agency believed that extending the closure
deadlines was inappropriate because, in the absence of an approved
state program, the owner or operator could unilaterally decide to
extend the time for closure of a CCR unit, without any basis, or
oversight by a regulatory authority. 75 FR 35209.
EPA received numerous comments in response to the proposed
deadlines under the subtitle D proposed approach. Industry and state
commenters stated that the proposed deadlines to begin and complete
closure activities (30 and 180 days, respectively) are technically
impracticable and simply too short for the vast majority of CCR units,
especially for CCR surface impoundments to complete closure. Commenters
stated that a 30-day deadline to initiate closure activities may not be
workable in situations such as when there are construction
[[Page 21415]]
limitations due to seasonal or climatic conditions, and should not be
required in circumstances when a coal-fired generating unit is
temporarily idled (e.g., maintenance related outages or an outage
corresponding with a CCR handling system conversion). Regarding the
amount of time needed to close a unit, numerous commenters noted that
it would be impossible to properly complete closure activities within
the proposed 180 days at most CCR surface impoundments due to the
length of time needed to dewater an impoundment and stabilize the
wastes prior to constructing the final cover system. For example,
commenters pointed out that dewatering of a surface impoundment alone
can take several years to complete because impoundments can be hundreds
of acres in size. One commenter provided information related to an
ongoing CCR surface impoundment closure where the dewatering and ash
stabilizing phases of closure took two years to complete. Commenters
also stated that because a large number of CCR units will have to be
closed during roughly the same timeframe, facilities may not be able to
obtain the necessary specialized personnel, equipment, and materials
(e.g., clay or fill material, liner materials) to close multiple units
simultaneously. This issue may be further complicated in locations
where multiple facilities are competing for the same limited resources.
Commenters further argued that adopting the same closure deadlines
applicable to MSWLFs is not appropriate given differences in size,
design, and operation (e.g., CCR surface impoundments contain large
volumes of water, MSWLFs typically close each component cell when it
reaches its disposal capacity). As a result of these concerns,
commenters recommended that EPA extend the deadlines both to commence
and complete closure activities. The majority of the these commenters,
however, urged EPA not to establish specific deadlines for closure and
instead require facilities to close a CCR unit consistent with a
closure plan approved by a state, or developed and certified by a
qualified professional, such as a professional engineer.
In a subsequent NODA, the Agency solicited additional public
comment on several different options to address these concerns. 78 FR
at 46944-46. With respect to the deadline to initiate closure, EPA
presented several examples of routine and legitimate circumstances in
which CCR units would not receive CCR for periods longer than one year,
even though the facility intended to continue to use the unit. For
example, EPA discussed circumstances in which the facility alternates
between two surface impoundments, only one of which is operational at a
time. Once the impoundment has reached capacity, the facility dewaters
the unit, and begins to send CCR to the second impoundment. Once the
unit is dewatered, the CCR is 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 CCR is
two years, perhaps longer, during which the other unit is ``idle,'' in
that it does not ``receive CCR,'' but it remains operational.
The Agency also solicited comment on a revised approach to the
deadline to initiate closure. The approach entailed establishing a
rebuttable presumption that if the CCR unit has not received waste
within a particular period of time (e.g., 18-24 months), the CCR unit
would be considered inactive and unit closure would be required to
begin within a specified time. However, if the facility could
substantiate that there was a reasonable likelihood that the CCR unit
would again receive CCR in the future and also was able to document
certain findings, the owner or operator would not need to immediately
commence closure of the CCR unit. In the NODA, EPA discussed several
examples of situations that could support a demonstration that
immediate closure of the CCR unit was not necessary. One example was if
an owner or operator could document that a CCR unit had been dedicated
to a temporarily idled coal-fired generating unit and there was a
reasonable likelihood that CCRs would be disposed in the CCR unit once
the coal-fired generating unit resumed operation. Another situation
presented was a CCR unit dedicated to a coal-fired generating unit that
was not burning coal at the time (e.g., electricity was being generated
with other fuels such as natural gas), but the facility needed the CCR
unit following resumption of coal burning. A final example involved
normal facility operations that include periods during which the CCR
unit does not receive CCR for extended periods (e.g., the alternating
use of two CCR surface impoundments discussed above). As part of this
approach, the Agency solicited comment on whether to limit the length
of time an owner or operator can maintain an idle CCR unit.
With respect to the deadline for completing closure, EPA
acknowledged in the NODA that different deadlines, at least for the
larger CCR units, were warranted. Information that the Agency has
obtained throughout the rulemaking confirmed commenters' claims that
the timeframes originally proposed to complete closure of CCR surface
impoundments will be practicably infeasible for the larger
impoundments. However, the Agency cautioned that any ultimate timeframe
provided in the rule that would be practicable for the largest CCR
units would be far too long to justify as timeframes for closure of the
smaller impoundments. EPA explained that it intended to examine
available closure plans for CCR surface impoundments to determine
whether there are consistent timeframes or other factors that EPA could
adopt as part of the regulations. EPA specifically identified two
closure plans of CCR units that were scheduled to close as a possible
source of useful information. These plans projected that closure would
take multiple years to complete for modestly-sized CCR surface
impoundments (i.e., less than 50 acres).
a. Deadlines To Initiate Closure
In response to the NODA, most utility commenters stated that the
time to initiate closure should be tied to reasonable triggers that
account for the diverse uses of CCR surface impoundments and CCR
landfills. In particular, these commenters recommended that closure not
be initiated for an idled CCR unit if the CCR unit was expected to
receive additional waste in the future, whether CCR or any other waste
the unit may be authorized to manage. These commenters also supported
the scenarios EPA described in the NODA as examples of legitimate
situations that could warrant delaying the immediate closure of a CCR
unit. Many of these commenters generally agreed that the rebuttable
presumption alternative discussed in the NODA could be an appropriate
approach for closure, in particular for CCR units not covered by a
state-approved operating plan, provided the regulatory approach would
be implemented in a manner that did not restrict other legitimate uses
of the CCR unit. Many of these commenters also asserted that a limit on
the length of time a CCR unit can remain idle is not practical because
the owner or operator will not be able to predict with any degree of
certainty how long a CCR unit will be idled. Several of these
commenters also urged EPA to specify in the final rule what EPA
intended by the phrase ``initiation of closure;'' that is, that EPA
define the activities or actions the owner or operator must take by the
deadlines specified in the rule.
A trade organization and other commenters warned that strict
restraints on the initiation (and completion) of
[[Page 21416]]
closure of CCR units would pre-empt opportunities for reclaiming CCR
from these CCR units for beneficial use of CCR. These commenters
recommended that the final rule create meaningful incentives for the
beneficial use of CCR already in CCR units which will become
unavailable to reclamation once a final cover system is put in place.
For example, one commenter suggested that an incentive could be
deferring deadlines for closure of a CCR unit if an owner or operator
reduces its net tonnage by a set amount, such as 10,000 tons per year,
if the CCR is beneficially used. EPA also received comments from
several states that generally supported the rebuttable presumption
concept. One state supported a longer rebuttable presumption time
period of three years that could be extended if approved by the state
on a case-by-case basis.
After consideration of all of the public comments, the Agency is
adopting an approach that largely mirrors the approach outlined in the
NODA. Closure of a CCR unit is triggered in one of three ways. The
first is upon the known final receipt of waste (CCR or otherwise), or
when an owner or operator removes the known final volume of CCR from
the CCR unit for the purpose of beneficial use of CCR. Under these
scenarios, the final rule requires an owner or operator to commence
closure of the CCR unit within 30 days of such known final receipt or
known final volume removal, whichever date is later.
The second way closure can be triggered relates to ``idled'' CCR
units. This applies to situations in which the CCR unit has remaining
disposal, treatment, or storage capacity, or there has been a temporary
pause in the removal activities of CCR from the CCR unit. In these
situations, the rule establishes a presumption that the owner or
operator must initiate closure of the CCR unit no later than two years
after the most recent receipt of CCR or any non-CCR waste stream, or no
later than two years after the most recent date that CCR was removed
from the CCR unit for the purpose of beneficial use, whichever date is
later. The rule, however, provides procedures for an owner or operator
of the CCR unit to rebut this presumption and obtain additional time,
provided the owner or operator can make the prescribed demonstrations.
The final way closure is triggered is when a CCR unit fails to meet
certain of the technical criteria. Specifically, an owner or operator
may be compelled to close a CCR unit in the following circumstances:
(1) If the CCR unit has been sited inappropriately; i.e., cannot meet
the applicable location criteria; (2) if an unlined CCR surface
impoundment is found to contaminate groundwater in excess of a
groundwater protection standard; or (3) if a CCR surface impoundment
cannot demonstrate the minimum factors of safety regarding structural
integrity of the CCR unit. When closure is triggered under these
circumstances, the owner or operator must initiate closure of the CCR
unit within six months. Each of these is discussed in more detail
below.
i. ``Known Final Receipt'' of CCR
Several commenters suggested that the rule not link the deadlines
to initiate closure solely to when a CCR unit ceases to receive CCR.
Many of these commenters provided information that CCR units also serve
functions other than managing CCR, including the management of other
wastes or water treatment. Thus, while there are periods of time that
certain CCR units will receive both CCR and non-CCR wastes, there are
also other times when the same CCR unit will only receive non-CCR
wastes or perform other forms of active waste management in the unit,
e.g., specific water treatment functions. EPA agrees that these are
legitimate waste management activities, and EPA is aware of no risks
that would warrant cessation of such activities simply because the unit
is no longer receiving CCR. Therefore, in response to these comments,
the final rule no longer requires closure based solely upon the receipt
of CCR. Instead, the final rule requires closure to be initiated after
the CCR unit ceases to receive any waste or waste stream into the CCR
unit. See Sec. 257.102(e)(1) and (e)(2) in the rule.
The Agency also agrees with those commenters that supported
delaying the commencement of closure of a CCR unit if substantial
quantities of CCR are removed from the CCR unit for the beneficial use
of the waste. This could include, for example, removal of CCR from a
CCR unit followed by its use as a partial replacement for Portland
cement. As discussed in Unit IV.B of this preamble, EPA has identified
significant benefits from reducing the disposal volumes of CCR in CCR
landfills and CCR surface impoundments, including reduced risks
associated with the practice of CCR disposal, benefits from reducing
the need to mine and process virgin materials, and energy and
greenhouse gas benefits. EPA finds these potential benefits compelling
and is therefore revising the closure requirements in the rule to
accommodate the removal and beneficial use of CCR. EPA has therefore
revised the rule to provide that closure of an otherwise idled CCR unit
is not immediately triggered, as long as the owner or operator is
removing substantial quantities of CCR from the unit. However, once
removal of CCR for beneficial use is no longer taking place, the rule
would require the owner or operator to initiate closure of the CCR
unit. See Sec. 257.102(e)(1) and (e)(2) in the rule.
After considering comments received regarding the specific
timeframe by which closure must be initiated following known final
receipt of wastes, the Agency is finalizing the 30 day timeframe from
the proposed rule. Several commenters expressed concern that 30 days is
too short because it does not account for the potential that weather or
seasonal concerns may interfere or cause substantial delay. The Agency
acknowledges that weather or seasonal effects can delay certain
activities, but disagrees that the rule provision needs to be revised
to account for those. This provision does not require that specific
actions or activities must be initiated during this 30-day period. For
example, the rule does not require the installation of the final cover
system (or the commencement of removal of CCR from the CCR unit)
necessarily begin within this 30-day period. Instead, the provision is
more flexible; the owner or operator can initiate closure by taking
other actions necessary to implement the closure plan that are not
weather or seasonal dependent, such as turning off pumps supporting
sluice lines or taking any steps necessary to comply with any state or
other agency standards that are a prerequisite to initiating closure.
Provided the owner or operator has started to take the measures to
implement the closure plan that can be feasibly undertaken, the
facility will have complied with this requirement.
The 30-day period remains equally appropriate under the wider
provision that allows closure to be triggered either by the known final
receipt of all wastes in the unit, or upon the known final volume
removal of CCR for beneficial use of CCR. There are no facts unique to
these circumstances that would necessitate an extension beyond the 30
day timeframe. Furthermore, as the terms ``known final receipt'' and
``known final volume removal'' suggest, the owner or operator has made
the determination to cease managing waste in the CCR unit, or to cease
removing CCR from the CCR unit for beneficial use purposes. This will
likely occur in situations where the CCR unit is reaching its disposal
capacity (or treatment capacity when the CCR unit is receiving non-CCR
waste streams) or the
[[Page 21417]]
owner or operator intends to close the CCR unit for other purposes
(e.g., the closing of a CCR surface impoundment following conversion to
dry handling of CCR). Given that these situations can generally be
anticipated and planned for in advance, EPA is not aware of
circumstances that would prevent owners or operators from at least
commencing closure within this 30-day period. In summary, the owner or
operator must commence closure of the CCR unit with 30 days of known
final receipt of CCR or any non-CCR waste stream, or within 30 days of
known final removal of CCR for beneficial use, whichever date is later.
ii. Temporarily Idled Units
This situation involves CCR units with remaining CCR disposal or
storage capacity (or treatment capacity for non-CCR waste streams) that
may sit idle for extended periods of time (e.g., potentially years at a
time); however, the owner or operator intends to continue to maintain
the idled unit to receive CCR or non-CCR waste streams in the future.
EPA proposed that these CCR units could remain idle for up to one year,
but that closure of the CCR unit would have to be initiated no later
than one year after the most recent receipt of CCRs. See 75 FR 35252
(proposed Sec. 257.100(j)). The majority of commenters claimed that
one year was too short and would require the premature closure of CCR
units that would be needed in the future. In response to these comments
and new information documenting examples of legitimate circumstances in
which CCR units were idled for more than one year, EPA solicited
comment on a revised approach to establish longer timeframes to
initiate closure for temporarily idled CCR units. As discussed
previously, this approach entailed establishing a rebuttable
presumption that if the CCR unit has not received waste within a
specified period of time (i.e., 18 months to two years), the CCR unit
would be considered inactive and closure of the CCR unit would be
required. However, this time could be extended beyond the 18 months or
two years if the facility could substantiate certain findings. See 78
FR at 46945.
After considering comments received, the Agency is essentially
finalizing the approach presented in the 2013 NODA. Specifically, in
situations where the CCR unit has remaining disposal or storage
capacity (or treatment capacity for non-CCR wastestreams) and there is
a reasonable likelihood that the CCR unit will receive additional CCR
or non-CCR waste in the future, the final rule allows the owner or
operator to keep the CCR unit available for use for up to two years.
However, if the CCR unit has not received CCR or any non-CCR waste
within two years of the last receipt of CCR or any non-CCR waste,
whichever date is later, the rule requires closure of the CCR unit
unless the owner or operator can document that additional time is
necessary to accommodate routine operations and legitimate waste
management activities.
The Agency agrees that it is not necessary to require closure of
temporarily idled CCR units after one year. Information in the record
documents numerous examples of legitimate circumstances in which CCR
units were idled for more than one year. In most of the examples
provided CCR units are temporarily idled for periods that can last more
than one year, but typically use of the CCR units resumes within
approximately two years. Based on this information EPA has concluded
that a two year timeframe before presumptively requiring closure of a
CCR unit would be more consistent with current practice, and is better
supported by the available information.
This same information documented that there can be situations in
which a CCR unit is idled for longer periods of time (e.g., a coal-
fired boiler may be idled for years during which another fossil fuel is
burned (e.g., natural gas), and the CCR unit will be needed when the
utility returns to coal burning. In order to obtain additional time
beyond two years, the owner or operator must document in writing both
that the CCR unit has remaining disposal or storage capacity and the
facts that support a conclusion that there is a reasonable likelihood
that the CCR unit will accept CCR or non-CCR waste in the foreseeable
future. The facility would need to substantiate those findings,
including the specific reasons the owner or operator believes ``that
there is a reasonable likelihood that CCR will be disposed in the waste
disposal unit.'' These findings would need to be certified by the owner
or operator of the CCR unit.
The rule identifies examples of specific scenarios that would
support a determination that there is a continuing need for the unit to
support future waste management activities (e.g., that the CCR will
resume receiving CCR or non-CCR waste in the future). These are
intended to be illustrative rather than an exclusive list; there may
well be additional circumstances in which routine operations or
legitimate waste management practices would support the necessary
determination. The particular situations identified in the rule
generally match those discussed in the NODA or reflect situations
identified in public comments. Specifically, the rule identifies four
particular circumstances: (1) Normal plant operations include periods
during which the CCR unit does not receive wastes (CCR or non-CCR waste
streams). This may include the alternating use between one CCR unit
that receives CCR while dewatering or removing CCR from a second unit.
(2) The CCR unit is dedicated to a coal-fired boiler unit that is
temporarily idled (i.e., CCR is not being generated) and there is a
reasonable likelihood that the coal-fired boiler will resume operations
in the future. (3) The CCR unit is dedicated to an operating coal-fired
boiler (i.e., CCR is being generated); however, no CCR is being placed
in the CCR unit because the CCR is being entirely diverted to
beneficial uses, but there is a reasonable likelihood that the CCR unit
will again be used in the foreseeable future. (4) The CCR unit
currently receives only non-CCR waste streams and those non-CCR waste
streams are not generated for an extended period of time, but there is
a reasonable likelihood that the CCR unit will again receive non-CCR
waste streams in the future. As noted, a facility must substantiate
these findings; it is not sufficient to merely repeat the words of the
regulation and conclude that additional time is warranted.
The final rule allows an owner or operator to obtain additional
two-year time extensions for as long as the owner or operator continues
to be able to provide a factual basis to justify the need for
additional time via a written demonstration. Because these idled units
must continue to comply with all applicable technical requirements,
including those for groundwater monitoring, corrective action, and
structural stability, a fixed or definitive limit on the amount of time
that a CCR unit can sit idle is not necessary.
In addition, the Agency agrees that the final rule should better
define the actions or activities that constitute ``initiation of
closure'' of a CCR unit. A clear definition will assist in the
implementation and understanding of the rule. Commenters suggested a
number of actions or activities, any one of which would be sufficient
to show that closure of the CCR unit has been initiated. Examples
provided by the commenters included the removal of CCR sluice lines;
beginning the necessary permitting processes (i.e., submitting a
completed permit application); turning off pumps supporting the sluice
lines; preparing a bid for contractors; or procuring capping materials
such as clay or top soil.
[[Page 21418]]
The final rule specifies that closure has been initiated when the
owner or operator takes two actions. The first action is that the owner
or operator must have permanently ceased placing CCR and non-CCR waste
streams in the CCR unit. As suggested by commenters, permanent removal
of CCR sluice lines or inactivation of the pumping system supporting
the sluicing operation would be evidence that placement of CCR and non-
CCR waste streams has ceased. The second action is that the owner or
operator must have taken steps to implement the written closure plan
required by the rule. This second action would include submitting a
completed application for any required state or agency permit or permit
modification in order to implement closure of the CCR unit, or taking
any steps necessary to comply with any state or other agency standards
or regulations that are a prerequisite to initiating or completing the
closure of the CCR unit. Once the owner or operator has completed both
of these actions, closure of the CCR unit has been initiated for
purposes of this rule. See Sec. 257.102(e)(3) in this rule.
iii. Closure for Cause
Finally, the Agency is clarifying that the closure initiation
timeframes specified above--the 30 day period for known final receipt
or known final volume removal and the 2 year period for temporarily
idled CCR units--do not apply to closures initiated for cause. As
discussed elsewhere in the preamble, the final rule requires certain
CCR surface impoundments and CCR landfills to close. The situations
include: Unlined CCR surface impoundments whose groundwater monitoring
shows an exceedance of a groundwater protection standard; existing CCR
surface impoundments that do not comply with the location criteria; CCR
surface impoundments that are not designed and operated to achieve
minimum safety factors; and existing CCR landfills that do not comply
with the location criteria for unstable areas. In these situations, the
final rule specifies that the owner or operator must initiate closure
activities within six months of making the relevant determination that
the CCR unit must close.
b. Deadlines To Complete Closure
In response to the August 2013 NODA, many utility commenters stated
that the time period to complete closure must be sufficiently flexible
to account for the inherent uncertainties in predicting a closure
schedule. These commenters pointed to potentially innumerable
complications and circumstances beyond the control of the owner or
operator that render it nearly impossible to predict with precision
when the closure of a CCR unit will be completed. These commenters also
believe it is impractical and unrealistic for the rule to subject the
closure of CCR units to any type of fixed regulatory structure. They
maintained their position from the proposed rule that it would be
impossible to properly complete closure of most CCR surface
impoundments within 180 days. Their recommendation is to allow closure
timeframes to be governed by the a state-approved closure process,
which would include the owner or operator developing and submitting a
closure plan to the state and mechanisms for the state to verify and
enforce compliance with all closure requirements, including the closure
plan. Under this approach, the owner or operator's compliance with the
requirements of the state-approved closure process (including following
the closure plan, completing mitigation, etc.) would represent
compliance with this rule's closure requirements. For CCR units not
subject to a state-approved closure process, these commenters
recommended that the owner or operator should demonstrate compliance
with the CCR closure requirements by submitting a closure plan to the
state that is certified by an independent professional engineer. In
this case, because there is not direct state oversight and
administration of the closure process, the timelines in the closure
plan could be subject to a modified set of tiered timeframes for
completing closure, provided owners or operators could demonstrate that
more time is needed to close the unit on a case-by-case basis.\122\
These commenters also opposed any closure approach with firm and
inflexible timeframes because no single factor (e.g., the acreage of
the CCR unit or the volume of CCR in the unit) is determinative in all
instances of how long it will take to complete closure of the CCR unit.
Commenters also cautioned that pre-closure closure plans (and the
closure schedules contained therein) may not be an actual reflection of
the time it will take to close the unit due to unforeseen or variable
conditions. Finally, these commenters also generally opposed the idea
discussed in the NODA of petitioning the Agency for a site-specific
rule to vary from a generally applicable deadline.
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\122\ The tiered timeframes for completing closure could be
based on the size of the CCR unit (after obtaining necessary state
and local approvals): (1) Within 3 years for an impoundment with an
area less than 20 acres; (2) Within five years for an impoundment
between 20 and 50 acres; (3) Within 8 years for an impoundment
between 50 and 75 acres; (4) Within 10 years for an impoundment with
an area of 75 acres or more; and (5) Within 180 days for a landfill.
Under this approach, the owner or operator could demonstrate the
need for additional time to close the CCR unit.
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Many commenters described the numerous factors that could affect
timeframes for closure of a CCR unit. Most comments were specific to
CCR surface impoundments where closures are typically more complex as
compared to CCR landfills due to the presence of water in impoundments.
Factors most often cited by the commenters that may affect the time
required to close a CCR unit included: (1) The size and volume of CCR
in the unit; (2) the geotechnical characteristics of the CCR; (3) the
type or design of the surface impoundment (i.e., diked, incised, valley
fill, and side hill); (4) the need to coordinate or obtain approvals
from state permitting officials; (5) the availability of qualified
engineers, contractors, and materials since closing a CCR unit is a
specialized activity, especially given that many units may be required
to close simultaneously; (6) climate and weather that can affect
dewatering operations and the length of a construction season; (7) the
time needed to obtain replacement disposal capacity for a closing unit
that would ensure ongoing facility operations; and (8) dam safety
considerations during closure. Many of commenters identified that the
dewatering process (an early necessary step in the closure process) as
being a site-specific issue, as the time that will be needed to dewater
an impoundment can vary considerably depending on the type of CCR unit,
the volume of CCR in unit, and the geotechnical properties of the CCR.
Several commenters also cited that closure times for some CCR units
will require substantial volumes of fill material to properly grade a
closing surface impoundment to facilitate positive drainage from the
closed unit. These commenters provided estimates on the volumes of fill
material needed and showed that the earthmoving aspect of this step
alone can take many years to complete in some cases.
Several state commenters generally supported the tiered closure
alternative discussed in the NODA. However, these commenters urged EPA
to include provisions in the rule to provide flexibility for closing
units to demonstrate the need for additional time on a case-by-case
basis.
i. Timeframes for Completing Closure
In the August 2013 NODA the Agency solicited comment on ways to
establish categories of timeframes that would adequately account for
the various factors that can affect the amount of
[[Page 21419]]
time needed to properly close a CCR surface impoundment. One approach
discussed in the NODA was called the ``tiered approach'' that was based
on comments received in response to the proposed rule. Under that
approach, the final rule would establish fixed timeframes to complete
closure that varied depending on the size of the impoundment (i.e.,
surface area acreage). The Agency stated in the NODA that the concept
of a tiered approach was appealing; however, the precise basis for the
distinctions (i.e., unit size cutoffs) and timeframes were not clear.
EPA further explained its concern that factors other than size (e.g.,
climate, geography, unit configuration) would also appear to be
relevant, and that any timeframes should account for those other
factors. EPA encouraged commenters interested in supporting a tiered
approach to provide the rationale and data to support any suggested
categories of timeframes. 78 FR 46946. Most commenters opposed the
tiered approach by itself (i.e., an approach without an accompanying
process by which an owner or operator could obtain additional time due
to site-specific circumstances) because they felt there simply are too
many factors that can affect closure timeframes. These commenters
concluded that basing closure timeframes on a subset of factors would
not be appropriate. As one commenter noted, a 20 acre impoundment 10
feet deep can likely be dewatered and closed more quickly than a 20
acre impoundment 30 feet deep.
After considering comments and information available on closure
timeframes, EPA has concluded that there are insufficient data and
information to adopt the kind of tiered approach discussed in the NODA.
EPA is convinced that the available information does not support an
approach that would establish fixed and definitive timeframes for
closure, based on a select subset of factors that distinguish between
surface impoundments (e.g., a 50 acre diked impoundment holding 500
acre-feet of CCR with a hydraulic conductivity of 1 x 10-5
centimeters per second located in a state in the southwest with a
permitting program would be required to close in four and one-half
years, while a 50 acre cross valley impoundment holding 1,500 acre-feet
of CCR with a hydraulic conductivity of 1 x 10-6 centimeters
per second located in a state in the upper midwest with a permitting
program would be required to close in seven years, etc.). While
information is available for surface impoundments on certain factors,
such as the size and type of the unit and geographic information, the
Agency has little to no data for a number of other key factors. For
example, EPA has no information on the geotechnical properties of the
CCR that can affect the time needed to dewater a unit, the volumes of
clays, soils, and other materials that will be needed for closure, and
information on the time needed to obtain state approvals (in accordance
with state CCR programs) related to closure of a unit.
In discussing the tiered approach EPA noted that commenters had
suggested that the largest CCR surface impoundments (i.e., those having
a surface area greater than 75 acres) should be subject to a site-
specific deadline to complete closure. In the NODA, the Agency
explained that a site-specific deadline may not be practicable unless
the rule were to establish a ``variance'' process as part of the rule.
78 FR 46946. Under a variance approach, EPA 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 allow facilities
to petition EPA for a site-specific rule to establish an alternate
deadline. In response to the NODA, some commenters expressed interest
in such an approach, but other commenters found the approach not
practicable since each owner or operator would need to petition the
Agency for a site-specific rule. Some commenters believed that a site-
specific rule process, which would necessarily involve a notice and
comment process, would be an unwieldy process leading to unnecessary
delays. The Agency agrees that this is also not a practical alternative
to establish timeframes to complete closure.
Recognizing the numerous factors that can affect the amount of time
needed to close an impoundment, many commenters suggested EPA not
establish any type of fixed regulatory deadline for closure. Instead,
these commenters recommended that the rule allow closure timeframes to
be governed by a state-approved closure process. Under this process
suggested by commenters, an adequate state-approved closure process
would include one where the owner or operator developing and submitting
a closure plan to the state and mechanisms for the state to verify and
enforce compliance with all closure requirements, including the closure
plan. Under the commenter's recommendation, compliance with the
requirements of the state-approved closure process would not be
compliance with the closure requirements of this rule. As discussed
elsewhere in this preamble, under subtitle D of RCRA, the Agency cannot
rely on the existence of a state permitting authority to implement the
subtitle D requirements.
Some other commenters suggested EPA not establish any type of fixed
regulatory deadline for closure in the rule, and instead rely on the
closure plan developed and certified by a professional engineer. The
Agency disagrees that this approach would meet the protectiveness
standard of RCRA section 4004(a). CCR units present significant risks,
and it is critical that facilities complete closure expeditiously--
particularly those that are closing because they are structurally
unsound or are contaminating groundwater. To be able to determine that
the rule will be protective, the final rule must limit the discretion
of individual facilities, many of whom may have significant incentives
for delay, and avoid the potential for abuse. Moreover, in contrast to
corrective action, where EPA was truly unable to establish an outer
limit on the necessary timeframes--including even a presumptive outer
bound--closures, while complex, do not vary to the same degree as site
remediation actions. Consequently, as discussed later in this section,
the available data were sufficient to support the establishment of
definitive timeframes.
Most commenters, however, were generally supportive of an approach
that would establish timeframes for closure, whether in a tiered-like
approach (i.e., timeframes for closure based on one or more
characteristics of the unit) or under a ``rebuttable presumption''
approach, so long as the rule would provide the owner or operator a
process or procedures to demonstrate the need for additional time. As
explained in the NODA, such an approach could be implemented by
establishing a presumption that facilities complete closure within a
specified timeframe, such as five years, unless the facility could
document that closure is not feasible to complete within the
presumptive timeframe.
After consideration of all of the public comments, EPA is adopting
an approach that takes elements from two of the alternatives discussed
in the NODA: The concept of tiered timeframes based primarily on the
size of the surface impoundment, and the concept of a rebuttable
presumption. The final rule establishes a presumption that the owner or
operator must complete the closure of a CCR surface impoundment within
five years of initiating closure activities. For CCR landfills the
presumption is that the owner or
[[Page 21420]]
operator must complete closure within six months of initiating closure
activities. The rule, however, provides procedures for an owner or
operator to rebut either presumption and obtain additional time,
provided the owner or operator can make the prescribed demonstrations.
For CCR surface impoundments, the amount of additional time beyond the
five years varies based on the size (using surface area acreage of the
CCR unit as the surrogate of size) of the unit. For impoundments 40
acres or smaller, the maximum time extension is two years. For
impoundments greater than 40 acres, the maximum time extension is five
two-year extensions (ten years) and the owner or operator must
substantiate the factual circumstances demonstrating the need for each
two year extension. For a CCR landfill, the amount of additional time
beyond the six months does not vary according to the size of the
landfill, rather the maximum time extension is two one-year extensions
(two years) for any CCR landfill. The owner or operator must
substantiate the factual circumstances demonstrating the need for each
one-year extension.
ii. CCR Surface Impoundment Timeframes
To develop these timeframes the Agency began by identifying the
period of time in which most surface impoundments could feasibly
complete closure. EPA intended this period of time to serve as the
basis for the rebuttable presumption of the rule. As EPA recognized in
the NODA, a timeframe that would be feasible for the largest units
would grant more time than could be justified to complete the closure
of smaller units. The closure of CCR units, and particularly the
closure of CCR units that are compelled to close because they fail to
comply with the rule's requirements (e.g., are structurally unstable or
are contaminating groundwater), needs to occur as expeditiously as is
feasible. While these units (and particularly the larger CCR surface
impoundments) are in the process of closing, they continue to present
risks to human health and the environment. On the other hand a
presumptive time period that is feasible for a small percentage of
units would simply result in a greater number of facilities that would
need to obtain time extensions. It is well established that the law
cannot compel actions that are physically impossible, ``lex non cogit
ad impossibilia,'' and it is incumbent on EPA to develop a regulation
that does not in essence establish such a standard.
The available information shows that CCR surface impoundments can
vary in size by orders of magnitude (i.e., from less than one acre to
nearly 1,000 acres). EPA evaluated the information on the size
distribution of CCR surface impoundments in its database of survey
results from EPA's 2009 Information Request.\123\ Through this effort,
EPA received a substantial amount of factual information from 240
facilities covering 676 surface impoundments, including surface area
information on over 650 impoundments. The database of survey responses
shows that the median surface impoundment is approximately 14 acres in
size, 75 percent of impoundments are 50 acres or smaller, 80 percent of
impoundments are 66 acres or smaller, and 90 percent of impoundments
are 111 acres or smaller.
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\123\ More information on EPA's Information Request, including a
data base of survey responses, can be accessed at http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/index.htm.
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Available information on actual and projected timeframes needed to
close CCR surface impoundments of varying sizes (using surface area as
the surrogate for size) is summarized below. Much of this information
came from public comments from utilities. The largest CCR surface
impoundment in this data set that has actually completed closure is a
40-acre unit that closed over a period of approximately five years
(i.e., the surface impoundment at PPL Corporation's Martins Creek Power
Plant).\124\ This facility closed with waste in place, and included
installation of a final cover system. According to the facility, this
CCR unit ceased receiving wastewater in January 2008, and the closure
work began with dewatering the unit and preparing the revised closure
plan and permit modification applications. Installation of the final
cover, in addition to final soil grading and seeding of the unit was
completed in spring 2012. By early 2013, all remaining closure actions
were completed and state regulators issued final approvals in July
2013. EPA gave substantial weight to this information because (1) it
was a CCR surface impoundment--the units of greatest relevance to the
issue at hand; (2) the closure was recently completed, and so would
accurately reflect current and available engineering practices; and (3)
the facility actually completed closure of the unit. See EPA-HQ-RCRA-
2012-0028-0103 and EPA-HQ-RCRA-2012-0028-0113.
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\124\ EPA included information on the planned closure of this
CCR surface impoundment in the NODA. 78 FR 46945. The closure plan
estimated that the closure process would take approximately three
years to complete.
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As another example, American Electric Power (AEP) provided some
information on the recent closure of a CCR surface impoundment in 2013.
This 21-acre unit had been inactive for several years and was closed
over the course of two construction seasons. The impoundment was closed
by leaving CCR in place and installing a composite cap, in addition to
the installation of hydraulic appurtenances to control the design storm
events. See EPA-HQ-RCRA-2012-0028-0067.
Cleco Corporation provided planned closure timeframes contained in
existing permits for its CCR surface impoundments. For three of its CCR
surface impoundments, which in aggregate totaled 66 acres, Cleco
Corporation estimated that it could take approximately one year to
complete closure, which would be accomplished by leaving CCR in place
and installing a final cover system. Cleco Corporation also estimated
that it would take approximately nine months to complete closure of two
additional CCR surface impoundments, with an aggregate acreage of 5.5
acres, by removing CCR from the CCR units, (i.e., clean closure of the
units). Information on the size of any of the five CCR units was not
provided, which complicates the Agency's ability to assess the closure
of any of the individual CCR units. In addition, the time period
appears to begin when dewatering operations are initiated and the
comments do not discuss how much time may be needed to obtain any
necessary approvals from the state prior to commencing closure
activities. See EPA-HQ-RCRA-2012-0028-0106.
Similarly, Xcel Energy stated in its comments to the NODA that it
closed four CCR surface impoundments at its Northern States Power of
Minnesota's Minnesota Valley Plant by removing all of their contents.
See EPA-HQ-RCRA-2012-0028-0079. While the commenter did not provide any
information on the time needed to close the four CCR units, other
information available to the Agency indicated that closure took place
sometime after May 2009 and was completed prior to September 2013.
Based on information obtained from Xcel Energy in response to EPA's
request for information from May 2009, the four CCR units at the
Minnesota Valley Plant each have a surface area less than one acre. In
addition, the response to the information request showed that one CCR
surface impoundment was nearly full of ash, a second was more than half
full, and the final two CCR units were less than one quarter full.
In the August 2013 NODA, the Agency solicited comment on a draft
plan to close two CCR surface
[[Page 21421]]
impoundments at Santee Cooper's Grainger Generating Station in South
Carolina. 78 FR 46945. The plan estimated that closure of the two CCR
units, approximately 42 and 39 acres in surface area, could be
accomplished during a three year period. This original estimate was
based on closing the unit with waste in place and installing a final
cover. However, Santee Cooper has since amended its draft plan and is
now pursuing closure by removal of CCR and transport off-site for
either disposal or beneficial use.\125\ The revised draft envisions the
complete removal of CCR from both CCR units and also one foot of
underlying soil beneath the units. In total, the draft closure plan
estimates that approximately 1.3 million cubic yards of CCR and
underlying soil will be removed from both units--approximately 900,000
cubic yards from one unit and 400,000 cubic yards from the second--over
a period of six to ten years.
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\125\ ``Amended Closure Plan Wastewater Ash Ponds, Grainger
Generating Station, Conway, South Carolina,'' January 2014.
---------------------------------------------------------------------------
The Florida Electric Power Coordinating Group (FCG) claimed that,
based on FGC member experience, closing a 30 acre CCR surface
impoundment is expected to take approximately two years to complete,
but provided no additional information or details. See EPA-HQ-RCRA-
2012-0028-0064.
The Utility Solid Waste Activities Group (USWAG) provided another
projected closure schedule for a 20 acre CCR surface impoundment
operated by Luminant. This facility was in the process of closing the
unit when the comments were prepared. The schedule estimated that
completion of all closure activities, would take approximately 45
months (3 years, 9 months) to complete. However, the commenter also
states that, when complete, the ``full closure period will take
approximately 84 months (seven years) due to the unique circumstances
of that closure.'' No other information was provided on this closure to
explain the ``unique circumstances'' that warrant such an extended
period of time. See EPA-HQ-RCRA-2012-0028-0113.
There is other information in these data that indicates that larger
impoundments may be able to complete closure within approximately the
same timeframes as smaller units. For example, the data included the
projected closure of a 100-acre CCR surface impoundment over a four and
one-half year period, which seems to indicate that larger units may be
able to close in approximately the same period of time. However, the
Agency gave substantially less weight to this information for a number
of reasons. Most critically, this information merely demonstrated
projected timeframes for CCR surface impoundments, not actual
timeframes that had been achieved. In addition, for some of these data,
it was unclear whether the circumstances that allowed for completion
within this timeframe were generally applicable to the majority of CCR
surface impoundments. In one instance, the commenter noted that the
time to complete closure was shorter than would normally be expected
because the impoundment was being closed well before it reached full
capacity and because water in the impoundment could be pumped into an
adjacent impoundment. The commenter also noted that the impoundment had
been built with a leachate collection system to facilitate dewatering
at closure. See EPA-HQ-RCRA-2012-0028-0113.
Moreover, the majority of commenters claimed that it would take
substantially longer than five years to close the largest impoundments.
For example, USWAG stated that one of its members obtained ``approval
for a closure plan for a 343-acre surface impoundment that provided for
a twelve-year closure period to ensure adequate time to complete
dewatering of the impoundment, assure the stability of the dewatered
CCRs, and uniformly construct the slope of the final cover materials.''
No other information was provided on this closure example. See EPA-HQ-
RCRA-2009-0640-10483. USWAG also provided information on the closure of
the CCR surface impoundment at First Energy's Little Blue Run Disposal
Area. This 950 acre surface impoundment, which is the largest CCR
surface impoundment in the country, has a projected closure period of
15 years.
Similarly, to illustrate the time required simply for earthmoving
operations to close a large CCR surface impoundment (in their example,
350 acres), Duke Energy Corporation estimated that the time needed in
the schedule to deliver and place the necessary volume of materials for
construction of the final cover and the sub-base to the cover system
could take between nine and 12 years. This estimate is based on the
need for approximately 10 to 11 million cubic yards of fill to
construct and shape the sub-base of the final cover and the cover
system itself that would require nearly 500,000 truckloads to deliver.
See EPA-HQ-RCRA-2012-0028-0095.\126\
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\126\ EPA also received information from Consumers Energy
Company on the closure of three former fly ash surface impoundments
at the JR Whiting plant. These surface impoundments (combined)
totaled approximately 52 acres and are scheduled to be closed with a
final cover over an approximately 12-year period. The commenter
claimed that the extended time for closure ``was necessary to allow
dewatering and the filling of numerous voids, but principally to
allow the generation of fly ash to allow the placement of
structurally placed, low permeability ash to provide minimal
required slopes for closure and to serve as the select layer for the
flexible membrane liner.'' See EPA-HQ-RCRA-2012-0028-0068.
Information on the individual size of any of the three CCR units was
not provided in the comments, which complicates any assessment of
the time needed to complete closure of any single CCR unit. Because
the facility appears to be continuing to use the unit to actively
manage waste, EPA does not consider this to be representative of a
typical closure process.
---------------------------------------------------------------------------
Collectively, this information formed the basis for the five year
presumptive default. As noted the median size of CCR surface
impoundments is approximately 14 acres, and 75 percent of impoundments
are 50 acres or smaller. The information presented by the utilities
documents that impoundments as large as 66 acres under normal
circumstances can close within two to three years. EPA therefore
expects that most, if not all, units should be able to complete closure
within five years. For all but the very largest units, this timeframe
would even accommodate potential delays caused by weather or any other
unpredictable variables. This is clearly demonstrated by the examples
presented by public comments, and by the recent example of the 40-acre
CCR surface impoundment in Martins Creek that closed within five years.
EPA also notes that five years is the timeframe Congress mandated
for the completion of open dumps to close or upgrade. While the closure
times apply generally to all units--both those whose closure is
mandated by this final rule and those that close because the facility
decides to do so--the statutory directive provides further support for
EPA's decision.
But as many commenters stated, initial estimates can and often do
vary from actual closure times due to unforeseen or variable
conditions. EPA acknowledges that a host of variables can, and
frequently do, delay closure activities, such that the initial time
estimates to complete closure of the unit are ultimately exceeded. For
example, the 40 acre impoundment at Martins Creek Power Plant discussed
above was initially scheduled in its closure plan to be completed
within three years; however, closure ultimately took five years to
complete. The additional two
[[Page 21422]]
years was due to the need to obtain approval of a modified closure plan
from the state, as well as modifications to three permits, in addition
to obtaining other local planning approvals. Further time was also
needed to accommodate the public notice and comment processes for
several of the permits and approvals.
EPA recognizes that there are a number of unpredictable or variable
conditions that can affect the time needed to close a CCR unit and that
those conditions are not within the control of the owner or operator.
For example, some states require review and approval of a closure plan
prior to initiating of closure activities. See, for example, 25 Pa.
Code sections 288.292(b) and 289.311(b) for CCR landfills and CCR
surface impoundments, respectively. Another commenter noted that in
Illinois, permits from several different authorities may need to be
obtained to commence closure, including the Illinois Department of
Natural Resources, the U.S. Army Corps of Engineers, and the U.S. Fish
and Wildlife Services.
Climate and weather can also impact the time needed to complete
closure. For example, an unusually wet or short construction season can
result in schedule delays; one commenter noted that in certain regions
of the Midwest, it is possible for as much as 40 inches of rain to fall
in a given season.
To account for these conditions, a substantial majority of
commenters requested that the final rule include the potential for time
extensions, and several specifically referenced the need for a ``force
majeure'' provision. One commenter also recommended that a ``force
majeure'' clause specifically include delays caused by court order
(i.e., appeals of permits issued by state agencies causing judgments in
court). Another commenter provided an example of a ``force majeure''
provision that could serve as a model:
An extension shall be granted for any scheduled activity delayed
by an event of force majeure which shall mean any event arising from
causes beyond the control of the owner that causes a delay in or
prevents the performance of any of the conditions under this rule
including but not limited to: acts of God, fire, war, insurrection,
civil disturbance, explosion; adverse weather conditions that could
not be reasonably anticipated causing unusual delay in
transportation and/or field work activities; restraint by court
order or order of public authority; inability to obtain, after
exercise of reasonable diligence and timely submittal of all
applicable applications, any necessary authorizations, approvals,
permits, or licenses due to action or inaction of any governmental
agency or authority; and delays caused by compliance with applicable
statutes or regulations governing contracting, procurement or
acquisition procedures, despite the exercise of reasonable diligence
by representatives of the owner.
Events which are not force majeure include by example, but are
not limited to, unanticipated or increased costs of performance,
changed economic circumstances, normal precipitation events, or
failure by the owner to exercise due diligence in obtaining
governmental permits or performing any other requirement of this
rule or any procedure necessary to provide performance pursuant to
the provisions of this rule.
EPA agrees that the rule should include procedures to obtain
extensions of time to complete closure of the unit, based on the
complexity of the activity. As previously noted, the law, including a
regulation, cannot compel the impossible. However, because the record
demonstrates that most units, even the larger units, can close within
that five year timeframe, the rule establishes a high threshold to
obtain additional time. To account for those instances of true physical
impossibility, the rule limits extensions to circumstances in which the
owner or operator can demonstrate that the additional time is needed
due to factors that are truly beyond the facility's control--i.e.,
could fairly be characterized as an example of ``force majeure.'' To
obtain additional time, the owner or operator of the CCR unit must
document in writing the exact reasons why additional time is needed.
The regulation specifies that such reasons could include: (1)
Complications stemming from the climate and weather, such as unusual
amounts of precipitation or a significantly shortened construction
season; (2) the time required to dewater a surface impoundment due to
the volume of CCR contained in the CCR unit or the geotechnical
characteristics of the CCR in the unit; (3) the geology and terrain
surrounding the CCR unit will affect the amount of material needed to
close the CCR unit; or (4) the time required or delays caused by the
need to obtain State permits and/or to comply with other State
requirements. These findings would need to be certified by the owner or
operator of the unit, as well as by a qualified professional engineer.
The final rule limits the amount of time that closure can be
extended based on the size of the CCR unit. Specifically, the rule
allows CCR surface impoundments 40 acres or smaller a time extension of
up to two years, while CCR surface impoundments larger than 40 acres
can obtain up to five two-year extensions. The 40 acre size demarcation
is based on the available information showing that surface impoundments
of 40 acres or smaller routinely have either completed closure or are
projected to be able to complete closure within a timeframe shorter
than five years. EPA expects that facilities will account for all
potential delays that can reasonably be foreseen in planning their
closure activities, and that this is feasible within this five year
timeframe. Consequently the final rule restricts facilities with units
of this size to a single extension to account for truly exception
circumstances (e.g., Acts of God).
The Agency also recognizes that there is increased uncertainty for
CCR surface impoundments larger than 40 acres. First, while available
information documents that some CCR surface impoundments larger than 40
acres can be closed within this same five year period, the Agency has
other information indicating that closure of units larger than 40 acres
can be expected to take much longer than five years. For example, the
largest surface impoundment in the country is approximately 950 acres
and is scheduled to cease receiving CCR by December 31, 2016 and
commence closure in 2017. The facility's projected closure period is 15
years. However, EPA currently has no data (anecdotal or otherwise) on
the actual timeframes in which a surface impoundment of that size has
completed closure. Given that closure for the largest of surface
impoundments could reasonably be expected to take more than five years
to complete, the Agency has concluded that surface impoundments larger
than 40 acres need to be provided with the possibility of additional
time extensions beyond the two years provided to impoundments less than
40 acres. Based on available information, in particular the current
estimates of the time needed to close the largest unit in the country,
the rule authorizes a facility to obtain a maximum of five time
extensions, totaling as much as ten years in two year increments to
close a CCR surface impoundment greater than 40 acres. However, the
owner or operator must substantiate the factual circumstances
demonstrating the need for each two-year extension.
Several commenters also urged EPA to specify in the final rule what
EPA intended by the phrase ``completion of closure;'' and to define the
activities or actions the owner or operator must complete to satisfy
the closure requirements. For purposes of this rule, closure of a CCR
unit is complete when the unit meets all of the requirements of this
rule and the owner or operator
[[Page 21423]]
obtains certification from a qualified professional engineer verifying
that closure has indeed been completed, consistent with all of the
performance standards in the rule. While EPA recognizes that under some
state programs closure is not considered complete until the owner or
operator receives certification from the state, this is not a
prerequisite to completion of closure under these federal rules.
iii. Closure Timeframes for CCR Landfills
Similar to the approach for CCR surface impoundments, EPA
recognizes that there can be unforeseen and extraordinary circumstances
that warrant additional time to close a CCR landfill. Accordingly, the
rule adopts procedures analogous to those for CCR surface impoundments
that allow the owner or operator to obtain additional time to complete
the closure of a CCR landfill, provided the owner or operator can make
the prescribed demonstrations. However, the amount of additional time
the facility can obtain beyond the presumptive six month timeframe does
not depend on the size of the landfill; rather the maximum time
extension is two one-year extensions (two years) for any CCR landfill.
As with the procedures for CCR surface impoundments, the owner or
operator must substantiate the factual circumstances demonstrating the
need for each one-year extension.
EPA developed this timeframe based on its review of the available
information in the record regarding the timeframes for completing the
closure of CCR landfills, some of which is summarized below. Additional
information may also be found in the comment response document.
In response to the August 2013 NODA, Nebraska Public Power District
(NPPD) provided information documenting that it completed closure of a
10 acre CCR landfill within 180 days after the final volume of fly ash
and bottom ash was placed in the CCR landfill. Closure was accomplished
by leaving CCR in place and installing a final cover system. NPPD's
comments do not indicate what year closure of this CCR landfill was
completed. See EPA-HQ-RCRA-2012-0028-0076.
The Florida Electric Power Coordinating Group (FCG) stated in its
comments that FCG member experience with CCR landfill closure has
``demonstrated the need for a period of time greater than 180 days to
complete closure activities.'' However, the commenter did not provide
any information indicating how long such closures actually took, nor
any information to substantiate their claim. See EPA-HQ-RCRA-2012-0028-
0064.
Overall, the closure of CCR landfills is less complex than the
closure of CCR surface impoundments. Portions of the CCR landfills that
reach final grade can be closed as other areas of the CCR landfill
continue to receive CCR, which is typically not possible at CCR surface
impoundments. Nor does the owner or operator need to dewater the unit,
which appears to be the aspect of closure most likely to be a source of
unanticipated circumstances. Finally, there is substantially less
uncertainty with respect to the timeframes to complete the closure of
CCR landfills, which are not all that different (in this respect) than
landfills containing other forms of solid or hazardous waste. EPA
therefore has greater confidence that a fixed period of two years will
be adequate to account for the vast majority of circumstances.
c. Alternative Closure Requirements
The Agency is finalizing alternative closure requirements in two
narrow circumstances for a CCR landfill or CCR surface impoundment that
would otherwise have to cease receiving CCR and close, consistent with
the requirements of Sec. 257.101(a), (b)(1), or (d). The first is
where the owner or operator can certify that CCR must continue to be
managed in that CCR unit due to the absence of both on-site and off-
site alternative disposal capacity. Sec. 257.103(a). The second is
where the owner or operator of a facility certifies that the facility
will cease operation of the coal-fired boilers no later than the dates
specified in the rule, but lacks alternative disposal capacity in the
interim. Sec. 257.103(b). Under either of these alternatives, CCR
units may continue to receive CCR under the specified conditions
explained below. In addition, under either alternative, the owner or
operator must continue to comply with all other requirements of the
rule, including the requirement to conduct any necessary corrective
action.
1. No alternative CCR disposal capacity (Sec. 257.103(a)).
The Agency recognizes that the circumstance may arise where a
facility's only disposal capacity, both on-site and off-site, is in a
CCR unit that has triggered the closure requirements in Sec.
257.101(a), (b)(1), or (d). As a result, the facility may be faced with
either violating the closure requirements in Sec. 257.101 by
continuing to place CCR in a unit that is required to close, or having
to cease generating power at that facility because there is no place in
which to dispose of the resulting waste. For example, while it is
possible to transport dry ash off-site to alternate disposal facility
that simply is not feasible for wet-generated CCR. Nor can facilities
immediately convert to dry handling systems. As noted previously, the
law cannot compel actions that are physically impossible, and it is
incumbent on EPA to develop a regulation that does not in essence
establish such a standard.
Should a facility choose to comply with the regulation and stop
generating power, there would be significant risks to human health that
would arise if a community would be left without power for an extended
period of time. As information in the record demonstrates, obtaining
alternative capacity can sometimes require a substantial amount of time
(e.g., if the facility needs to construct alternative capacity,
including potentially the need to locate an alternative site or
purchase additional property). EPA recognizes that there are also
significant risks to human health and the environment, as demonstrated
throughout this preamble, from a leaking or improperly sited CCR unit,
and that these risks justify requiring those units to either retrofit
to meet the federal criteria established in the final rule or close.
EPA also acknowledges that in the interim period while the owner or
operator seeks to obtain additional capacity, the risks associated with
the continued use of these units will be significant. However, the
Agency believes that the risks to the wider community from the
disruption of power over the short-term outweigh the risks associated
with the increased groundwater contamination from continued use of
these units. This conclusion is further buttressed by the fact that
during this interim period the risks associated with allowing these
units to continue to receive CCR are mitigated by all of the other
requirements of the rule with which the facility must continue to
comply, including the requirements to continue groundwater monitoring
and corrective action.
Under Sec. 257.103(a)(1), a CCR unit that would otherwise be
required to cease receiving CCR under Sec. 257.101(a), (b)(1), or (d),
may continue to receive CCR provided the owner or operator certifies
that the CCR generated at that facility must continue to be managed in
that unit due to the absence of alternative disposal capacity both on-
site and off-site. The rule also requires the owner or operator to
document this claim, and the claim must be based on the real absence of
an alternative and not justified based on the costs or inconvenience of
alternative disposal capacity. Sec. 257.103(a)(1)(i). The owner
[[Page 21424]]
or operator must also remain in compliance with all other requirements
of this rule, including the requirement to take any necessary
corrective action. Sec. 257.103(a)(1)(ii). Because this alternative is
only available as long as the absence of disposal capacity exists, the
owner or operator must document its efforts to obtain additional
capacity. If any additional capacity is identified, the owner or
operator must arrange to use it as soon as is feasible. Sec.
257.103(a)(1)(iii). The owner or operator is also required to prepare
an annual progress report documenting the continued absence of disposal
capacity and must also document the progress made toward developing
alternative capacity. Sec. 257.103(a)(1)(iv).
Once alternative disposal capacity is available, the CCR unit must
cease receiving CCR and must initiate closure following the timeframes
in Sec. 257.102(e) and (f). Finally, if the owner or operator has not
identified alternative capacity within five years after the initial
certification the CCR unit subject to this section must cease receiving
CCR and must initiate closure following the timeframes in Sec.
257.102(e) and (f). As discussed elsewhere in this preamble, several
commenters provided information to document the length of time needed
to obtain additional capacity. Based on this information, the five year
timeframe provided for under this alternative is expected to provide
sufficient time to obtain alternative disposal capacity and to avoid
the consequences of a forced immediate closure of a power plant.
2. Permanent cessation of a coal-fired boiler by a date certain.
(Sec. 257.103(b)).
Under this provision, the Agency addresses the circumstance where a
facility's only disposal capacity, both on-site and off-site, is in a
CCR unit that has triggered the closure requirements in Sec.
257.101(a), (b)(1), or (d), but the owner or operator of coal-fired
power plant has decided to permanently cease operation of that plant
within one of two timeframes specified in the regulation. For the same
reasons discussed immediately above, EPA has concluded that the
provisions of Sec. 257.103(b) represent the most reasonable balance
between the competing risks.
Additionally, EPA anticipates that some owners or operators will
decide to permanently cease operation of a coal-fired power plant in
response to the combined effects of new and/or existing statutory or
regulatory requirements promulgated under the Clean Air Act and under
the Clean Water Act (e.g. the proposed Effluent Limitations Guidelines
and Standards for the Steam Electric Power Generating Point Source
Category. See 78 FR 34442, in combination with market dynamics. As
discussed earlier in this preamble, RCRA section 1006(b) directs EPA to
integrate the provisions of RCRA for purposes of administration and
enforcement and to avoid duplication, to the maximum extent
practicable, with the appropriate provisions of other EPA statutes,
including the CAA and the CWA. As noted earlier, section 1006(b)
conditions EPA's authority to reduce or eliminate RCRA requirements on
the Agency's ability to demonstrate that the integration meets RCRA's
protectiveness mandate (42 U.S.C. 6005(b)(1)). See Chemical Waste
Management v. EPA, 976 F.2d 2, 23, 25 (D.C. Cir. 1992). The provisions
of Sec. 257.103(b) are fully consistent with the direction in section
1006(b) to account for the provisions of other EPA statutes which may
lead an owner or operator to close a coal-fired power plant.
EPA has also concluded that the provisions of Sec. 257.103(b) meet
RCRA's protectiveness mandate. As stated above, EPA recognizes that
there are long-term risks to human health and the environment, as
demonstrated throughout this preamble, from a leaking CCR unit and
those risks justify requiring those units to either meet the federal
criteria established in this rule or close. However, the risks
associated with allowing these units to continue to receive CCR are
mitigated by the requirement that the facility must comply with all
other requirements of the rule, including initiating groundwater
monitoring and corrective action where necessary. And a critical factor
is that facilities that choose to rely on this alternative will be
required to complete closure of their disposal unit in an expedited
timeframe. Thus, the risks from these units will be fully addressed
sooner. Consequently, while over the short term the risks will be
higher, overall, the risks will be at least equivalent to, or
potentially lower than if the CCR unit had closed in accordance with
the normal closure timeframes.
Under Sec. 257.103(b)(1), a CCR unit that would otherwise be
required to cease receiving CCR under Sec. 257.101(a), (b)(1), or (d),
may continue to receive CCR provided the owner or operator of the
facility certifies that the facility will cease operation of the coal-
fired boilers within the timeframes specified in paragraphs (b)(2)
through (b)(4) and that the CCR generated at that facility (before the
plant ceases to operate) must continue to be managed in that unit due
to the absence of alternative disposal capacity both on-site and off-
site. The rule also requires the owner or operator to document the
facts that support this claim. The regulation specifies that the claim
must be based on the real absence of alternative disposal capacity, and
not justified based on the costs or inconvenience of alternative
disposal capacity. Sec. 257.103(b)(1)(i). The owner or operator must
also remain in compliance with all other requirements of this rule,
including the requirement to take any necessary corrective action.
Sec. 257.103(b)(1)(ii). The owner or operator is also required to
prepare an annual progress report documenting the continued absence of
disposal capacity and must also document the progress made toward the
closing of the coal-fired boiler. Sec. 257.103(b)(1)(iii).
Under Sec. 257.103(b)(1), the owner or operator does not need to
demonstrate any efforts to develop alternative capacity because of the
impending closure of the power plant itself.
Consistent with the general timeframes provided for the closure of
CCR surface impoundments, EPA has established different timeframes
based on the size of the CCR unit. Under Sec. 257.103(b)(2), where the
disposal unit is a CCR surface impoundment 40 acres or smaller in size,
the coal-fired boiler must cease operation and the disposal unit must
have completed closure within 8.5 years of the publication date of the
rule. Where the disposal unit is a CCR surface impoundment larger than
40 acres in size, the coal-fired boiler must cease operation and the
disposal unit must have completed closure within 13.5 years of the
publication date of the rule. Sec. 257.103(b)(3). Finally, under Sec.
257.103(b)(4), where the disposal unit is a CCR landfill, the coal-
fired boiler must cease operation and the disposal unit must have
completed closure within 6 years of the publication date of the rule.
These timeframes were selected to ensure that closure of these units
will be completed in a measurably shorter timeframe, and that overall
the risks will be lower, or at least equivalent to, the level of risk
that would be achieved under the rule's ``standard'' closure
provisions.
5. Notation on the Deed to Property
The proposed rule would have required, following closure of the CCR
unit, the owner or operator to record a notation on the deed or some
other instrument normally examined during a title search. This notation
would notify any potential purchaser in perpetuity that the property
has been used as a CCR landfill or CCR surface impoundment and that use
of the land is restricted under the rule's post-closure care
provisions. After the
[[Page 21425]]
notation was completed, the proposed rule would have required the owner
or operator to notify the state that the notation has been recorded and
a copy has been placed in the facility's operating record and on its
publicly accessible internet site. In addition, the Agency solicited
public comment on adding a provision to the rule to allow removal of
the deed notation once all CCR are removed from the CCR unit, and
notification is provided to the state of this action. The EPA solicited
comment on this potential approach as a way to create a further
incentive for clean closure of the facility. 75 FR at 35208-09. The
proposal further encouraged commenters who are interested in supporting
such an option to suggest alternatives to state oversight to provide
for facility accountability.
EPA received few public comments on the proposed requirement to
record a deed notation to the property (or some other instrument that
is normally examined during title search). One commenter provided
general support for the proposed requirement to record a deed notation
to the property. Another commenter urged EPA to ensure that any deed
notation requirements should not interfere or conflict with existing
state property laws that provide for environmental covenants.
EPA did receive several comments in response to the Agency's
solicitation of comment on adding a provision to the rule to allow
removal of the deed notation when all CCR are removed from the
facility, and notification is provided to the state of this action. One
commenter supported the addition of this provision, stating that the
licensure requirements of the Professional Engineer provide an
assurance of integrity because the Professional Engineer would be
required to verify that closure has been completed in accordance with
the closure plan. This commenter also stated that it would be
sufficient to allow removal of a deed notation upon an application to
the state agency supported by a declaration of a licensed professional,
subject to state agency review and approval. Another commenter
supported providing the incentive for clean closure and allowing the
facility to demonstrate the ``cleanliness of the closure.'' The
commenter also recommended that the information provided by the
facility should be followed by a review from an independent third party
with knowledge of the industry and associated environmental issues.
After considering comments, the final rule requires an owner or
operator to record a notation on the deed or some other instrument
normally examined during a title search. This notation notifies any
potential purchaser in perpetuity that the property has been used as a
CCR landfill or CCR surface impoundment and that use of the land is
restricted under the rule's post-closure care provisions. See Sec.
257.102(i). In response to the commenter that urged EPA to ensure that
any deed notation requirements should not interfere or conflict with
existing state property laws, the Agency has no information that the
proposed requirement would create such a conflict. In addition, the
commenter did not provide any information or suggest that EPA's
proposed approach would actually interfere or conflict with existing
state property laws. Therefore, the Agency is finalizing the deed
notation requirement as proposed.
In addition, regarding the Agency's solicitation of comment on
adding a provision to the rule to allow removal of the deed notation
when all CCR are removed from the facility, as discussed in Unit VI.M.2
of this preamble, the final rule adopts the proposal to allow the owner
or operator to remove the deed notation required under Sec.
257.102(i)(4), upon certification that clean closure has been
completed. The rationale for this decision is discussed in that unit of
the preamble.
6. Notification of Intent To Close and Certification of Closure
Completion
The Agency proposed to require owners or operators to notify the
state that a notice of intent to close a CCR unit has been placed in
the facility's operating record and on the publicly accessible internet
site. This notification had to be completed prior to beginning closure
of the CCR unit. Following closure of a CCR unit, the proposed rule
would also have required the owner or operator to obtain a
certification from an independent registered professional engineer
verifying that closure has been completed in accordance with the
written closure plan. As proposed, this certification would be placed
in the facility's operating record and on the publicly accessible
Internet site.
The Agency received no public comments on the proposed requirements
to develop a notification of intent to close or the certification of
completion of closure. Therefore, the Agency is finalizing these
requirements as proposed. See Sec. 257.102(g) and (h).
7. Post-Closure Care Plan
The Agency proposed to require that the owners or operators of CCR
landfills and CCR surface impoundments prepare a written post-closure
care plan describing how the CCR unit would be maintained after
closure. See proposed Sec. 257.101(c). The proposal also identified
the minimum information necessary to include in the post-closure care
plan. This information included: (1) A description of the monitoring
and maintenance activities for the CCR unit and the frequency at which
these activities would be performed; (2) the name, address, and
telephone number of the person or office to contact about the facility
during the post-closure care period; and (3) a description of the
planned uses of the property during the post-closure care period.
The proposed rule further provided that the post-closure use of the
property shall not disturb the integrity of the final cover, liner(s),
or any other components of the containment system, or the function of
the post-closure monitoring systems unless necessary to comply with the
requirements of the rule. The proposal would have allowed a disturbance
if the owner or operator of the CCR unit demonstrated that disturbance
of the final cover, liner, or other component of the containment
system, including any removal of CCR, would not increase the potential
threat to human health or the environment. A professional engineer
would have been required to certify such a demonstration.
The Agency received no significant comments on the proposed post-
closure care requirements. The Agency's responses to these comments are
addressed in the closure comment response document, which is available
in the rulemaking docket. Therefore, the Agency is finalizing these
requirements substantially as proposed. See Sec. 257.102(g) and (h).
8. Post-Closure Care Activities
Following closure of a CCR landfill or CCR surface impoundment, EPA
proposed that the owner or operator would be required to conduct post-
closure care of the closed unit. At a minimum, the proposal would have
required the owner or operator to conduct at least the following: (1)
Maintain the integrity and effectiveness of any final cover, including
making repairs to the final cover to correct the effects of settlement,
subsidence, erosion, or other events, and preventing run-on and run-off
from eroding or otherwise damaging the final cover; (2) maintain the
integrity and effectiveness of the leachate collection and removal
system and operating the leachate collection and removal system in
accordance with applicable requirements under the design criteria for
such systems; and (3) maintain the groundwater monitoring system in
[[Page 21426]]
accordance with applicable requirements under the groundwater
monitoring and corrective action rule provisions.
EPA received few public comments on the proposed activities to
conduct during the post-closure care period. These commenters were
supportive of the activities and specifically urged the rule to require
the monitoring of groundwater throughout the post-closure care period.
The Agency received no comments opposing the proposed post-closure care
activities. Therefore, EPA is finalizing the same post-closure care
activities in this rule. See Sec. 257.104(b). In addition, consistent
with the proposal, the rule clarifies that certain CCR units are not
subject to these post-closure care activities. Specifically, owners or
operators that elect to close a CCR unit by removing CCR (i.e., clean
close the CCR unit) are not subject to any post-closure care
requirements. See Sec. 257.104(a)(2) and Unit M.2 of this preamble. In
addition, owners or operators of inactive CCR surface impoundments that
elect to complete closure of the unit within 30 months of the rule's
effective date are not subject to any post-closure care requirements.
See Sec. 257.104(a)(3).
9. Length of Post-Closure Care Period
The Agency proposed that the owner or operator of a CCR unit
conduct post-closure care for 30 years. EPA also proposed to allow
utilities to conduct post-closure care for a decreased length of time
if the owner or operator demonstrates that the reduced period is
sufficient to protect human health and the environment. The owner or
operator would have been required to have this demonstration certified
by a professional engineer, in addition to complying with all of the
notification and posting requirements under the proposed rule. The
proposed rule would also have allowed an increase in the post-closure
care period if the owner or operator of the CCR unit determined that it
is necessary to protect human health and the environment. EPA also
recognized in the proposed rule that state oversight can be critical to
ensure that post-closure care is conducted for the length of time
necessary to protect human health and the environment; however the
Agency also recognized that there is no set length of time for post-
closure care that will be appropriate for all possible sites, and all
possible conditions. Therefore, EPA solicited comment on alternative
methods to account for different conditions, yet still provide methods
of oversight to assure facility accountability.
Some commenters supported the proposed approach because it provided
flexibility to increase or decrease the post-closure care period of 30
years. EPA also received comments from a number of states documenting
the current state requirements; some states require a post-closure care
period of less than 30 years, some require 30 years, and one state
currently requires 40 years for CCR units. Other commenters opposed the
shortening of the 30-year period without state involvement and
approval.
After considering public comments, and in a departure from the
proposed rule, the Agency is requiring that post-closure care be
conducted for a minimum of 30 years. EPA is making this change due to
the lack of guaranteed state oversight for this rule. The Agency has
concluded that providing the owner or operator the flexibility to
shorten the post-closure care period is no longer appropriate,
particularly given the flexibility being provided for the selection of
a final cover system or alternative final cover system. As discussed in
Unit M.3 above, the information available to the Agency supports the
need to proceed cautiously. By not allowing the post-closure care
period to be shortened, EPA better ensures that the final cover system
will be properly maintained. In addition, a mandatory 30 year period
ensures that if problems do arise with respect to a final cover system,
the groundwater monitoring and corrective action provisions of the rule
will detect and address any releases from the CCR unit, at least during
the post-closure care period.
10. Notification of Completion of Post-Closure Care Period
The Agency proposed to require owners or operators of CCR units to
notify the state that a notice of completion of the post-closure care
period has been placed in the facility's operating record and on the
publicly accessible Internet site. The proposed approach would have
required the owner or operator to obtain a certification from an
independent registered professional engineer verifying that post-
closure care has been completed in accordance with the written post-
closure care plan.
The Agency received no public comments on the proposed requirement
to develop a notification of completion of the post-closure care
period. Therefore, the Agency is finalizing these requirements as
proposed. See Sec. 257.104(e).
N. Recordkeeping, Notification and Posting of Information to the
Internet
In response to EPA's lack of authority to require a state permit
program or to oversee state programs, EPA has sought to enhance the
protectiveness of the regulatory requirements by providing for state
and public notifications of the third party certifications, as well as
requiring a robust set of other information that documents the
decisions made or actions taken to comply with the technical
requirements of the rule. Consistent with the proposed rule, owners or
operators of CCR units are required to document how the various
provisions of the rule have been met by placing information (e.g.,
plans, records, notifications, reports) in the operating record and
providing notification of these actions to the State Director/or
appropriate Tribal authority. The owner or operator is also required to
establish and maintain a publicly accessible Internet site that posts
documentation that has, in many instances, also been entered into the
operating record. The owner or operator is required to maintain a copy
of the current Emergency Action Plan, the current fugitive dust control
plan, and the current written closure plan as long as the facility
remains active. EPA believes that the establishment and maintenance of
this information in both the operating record and on a publicly
accessible Internet site is appropriate so as to allow states and
citizens access to all of the information necessary to show that the
rule has been implemented in accordance with the regulatory
requirements.
With regard to the specific recordkeeping and reporting
requirements outlined in the proposal, the Agency received very little
comment. Commenters were primarily concerned not with the specific
recordkeeping requirements but rather how the recordkeeping
requirements aligned with the overall approach of the RCRA subtitle D
regulatory scheme. These comments and the Agency's responses are
discussed in Unit V of this preamble.
The combined mechanisms of recordkeeping, notifications, and
maintaining a publicly accessible Internet site will serve to provide
interested parties with the information necessary to determine whether
the owner or operator is implementing and is operating in accordance
with the requirements of the rule. As stated in the proposal and
reiterated here, EPA believes that it cannot conclude that the RCRA
subtitle D regulations will ensure there is no reasonable probability
of
[[Page 21427]]
adverse effects on health or the environment, unless there are
mechanisms for states and citizens to monitor the situation, such as
when groundwater monitoring shows exceedances above the groundwater
protection standard specified in the rule, so they can determine when
intervention is appropriate. EPA also believes that the recordkeeping
and notification requirements will minimize the danger of owners or
operators abusing the self-implementing system being established in
this rule through increased transparency and by facilitating the
citizen suit enforcement provisions applicable to the rule.
In contrast to the proposed rule, the Agency has identified for
ease of implementation each recordkeeping, notification and Internet
posting required in this rule. The proceeding section provides a
summary of the requirements for each reporting mechanism.
1. Recordkeeping Requirements
This rule requires the owner or operator of a CCR landfill or CCR
surface impoundment and any lateral expansion to maintain files of all
required information (e.g., demonstrations, plans, notifications, and
reports) that supports the implementation of this rule in an operating
record located at the facility. Each file must be maintained in the
operating record for a period of at least five years following
submittal of the file into the operating record. In certain instances,
however, files must be maintained until the CCR unit completes closure.
For example, the initial and periodic structural stability assessments
as required under section Sec. 257.73(d) and Sec. 257.74(d) must be
maintained for five years consistent with the timeframe for periodic
reassessments. Whereas, information on the construction of a CCR
surface impoundment must be maintained until the CCR unit completes
closure (see 257.73(c) and 257.102.) These timeframes are generally
consistent with the timeframes required for maintaining hazardous waste
compliance records under subtitle C of RCRA and with the timeframes
outlined in the proposed subtitle C option for the regulation of CCR.
(See specifically 40 CFR 264.73 and 265.73.)
Owners or operators with more than one CCR unit may elect to
consolidate all files into one operating record provided that each unit
is identified and files for that unit are maintained separately in
different sections of the operating record. The owner or operator of
the CCR unit must place files documenting compliance with the location
restrictions; design criteria; operating criteria; groundwater
monitoring and corrective action; closure and post closure care, into
the operating record, with the specific documentation requirements
found in Sec. 257.105. In the development of this final rule, the
Agency has included in the regulatory language a comprehensive listing
of each recordkeeping and notification required by the rule. The Agency
anticipates that this effort will facilitate owners or operators
efforts in complying with the reporting provisions of the rule, and
will provide other interested parties with a guide to the reporting
provisions of the rule.
2. Notification Requirements
As previously discussed, owners or operators are required to notify
State Directors and/or the appropriate Tribal authority when specific
documentation has been placed in the operating record and on the owner
or operator's publicly accessible Web site. In most instances these
notifications must be certified by a qualified professional engineer
and may, in certain instances will be accompanied with additional
information and or data supporting the notification. For example under
Sec. 257.106(f)(1), within 60 days of commencing construction of a new
CCR unit, a notification of the availability of the design criteria
specified under Sec. 257.105(f)(1) or (f)(3) in the operating record
and on the owner or operator's publicly accessible Internet site. If
however, the owner or operator of the CCR units elects to install an
alternative composite liner, the owner or operator must also submit to
the State Director and/or appropriate Tribal authority a copy of the
alternative composite liner design which has been certified by a
qualified professional engineer.
Notification requirements can be found in Sec. 257.106, and are
required for location criteria, design criteria, operating criteria,
groundwater monitoring and corrective action and closure and post
closure care.
3. Publicly Accessible Internet Site Requirements
The Agency is finalizing, as proposed a requirement for owners and
operators of any CCR unit to establish and maintain a publicly
accessible Internet site, titled ``CCR Rule Compliance Data and
Information.'' As with the operating record, owners or operators that
maintain multiple CCR units may elect to use one Internet site in order
to comply with these requirements, provided that the Web site clearly
and distinctly identifies information from each of the CCR units by
name and location. Unless provided otherwise in the rule, information
posted to the Internet site must be available for a period no less than
three years from the initial posting date. Posting of information must
be completed no later than 30 days from submittal of the information to
the operating record. This timeframe is consistent with the
notification requirements of the rule. As with the other criteria in
this section, Internet postings are required for various elements
identified in the following sections: Location restrictions; design
criteria; operating criteria; groundwater monitoring and corrective
action; closure and post closure care. These requirements are
enforceable by citizen suits.
VII. Summary of Major Differences Between the Proposed and Final Rules
The basic regulatory framework outlined in the proposed rule under
the subtitle D option, is being adopted in this final rule for the
regulation of CCR landfills and CCR surface impoundments and any
lateral expansion. However, as discussed in Unit VI of this document,
the Agency has made a number of revisions to several of the provisions
in the proposed rule, including (1) the timeframes for closure; (2)
locations restrictions--placement above the uppermost aquifer; (3) the
use of an alternative composite liner design; (4) revisions to align
the structural stability criteria with the experience and data
generated by the Assessment Program; and (5) air criteria. These
changes have been made in response to public comments and additional
information collected and analyses conducted by EPA in the course of
responding to those comments. These are discussed in greater detail
below. Under the proposed rule, all new CCR landfills and all CCR
surface impoundments that had not completed closure would be required
to retrofit to a composite liner or close within five years. However,
after reviewing comments and further evaluation, the Agency has
concluded that this regulatory approach was unnecessary in light of the
protections afforded by the other technical provisions of the rule
(e.g., groundwater monitoring, corrective action). In the final rule,
EPA is allowing unlined CCR surface impoundments to continue to operate
for the remainder of the active life, provided that the facility
documents through groundwater monitoring that the CCR surface
impoundment is not contaminating groundwater. However, if groundwater
[[Page 21428]]
monitoring at the facility demonstrates that the unlined CCR surface
impoundment has exceeded any groundwater protection standard, the owner
or operator must initiate corrective action, and either remove all CCR
from the unit and install a composite liner (i.e., ``retrofit'') or
close within five years. In a departure from the proposed rule, CCR
surface impoundments less than 40 acres may receive one two-year
extension, providing for a maximum of seven years to complete closure.
Units greater than 40 acres may receive up to five two-year extensions
providing a maximum of 15 years to complete closure. These units are
also eligible for alternative closure timeframes to account for site
specific operational constraints.
In addition, under the proposed rule, CCR surface impoundments that
had not closed in accordance with the rule would be subject to all the
provisions of the rule. After further evaluation, EPA has revised the
provision to allow an inactive CCR surface impoundment three years from
publication of the rule in the Federal Register to complete closure.
Owners or operators of inactive CCR surface impoundments that have not
completed closure within this timeframe are subject to all the
applicable requirements of the rule.
In response to comment and upon further evaluation the Agency is
amending the location restriction relating to the placement of the CCR
unit above the natural water table. Under the proposal, new landfills,
any CCR surface impoundment, and all lateral expansions would have been
required to have a base located a minimum of two feet above the upper
limit of the natural water table. In the final rule, the Agency has
amended this requirement to require that new CCR landfills and all CCR
surface impoundments, and all lateral expansions be constructed with a
base no less than 1.52 meters (five feet) above the uppermost aquifer
or must demonstrate that there will not be an intermittent, recurring,
or sustained hydraulic connection between any portion of the base of
the CCR unit and the uppermost aquifer due to normal fluctuations in
groundwater elevations (including the seasonal high water table.) EPA
has made this change in response to comments and further evaluation
demonstrating that this standard is the minimum distance necessary to
demonstrate that no reasonable probability of adverse effects on human
health and the environment will occur.
EPA proposed to require all new CCR landfills, CCR surface
impoundments and any lateral expansion to be constructed with a
composite liner. A composite liner was defined as a system consisting
of two components; the upper component consisting of a minimum 30-mil
FML and the lower component consisting of at least two feet of
compacted soil. Based on public comments and further evaluation, the
Agency is finalizing a new requirement that allows an owner or operator
to install an alternative composite liner provided it meets the
performance standard established in the rule. EPA has concluded that
this alternative composite liner affords the same protection to
groundwater resources as a composite liner.
Under the proposed rule, all CCR landfills and CCR surface
impoundments would have been required to manage fugitive dusts in a
manner not to exceed 35 [mu]g/m3. The proposal also required owners or
operators to control the wind dispersal of dusts consistent with the
standard, and to document the measures taken to comply with the
requirements. In response to comments and upon further evaluation, the
Agency has removed the numerical standard of 35 [mu]g/m3 from the rule
and is establishing a performance standard for fugitive dust control.
This standard requires owners or operators of any CCR unit to adopt
measures that will effectively minimize CCR from becoming airborne at
the facility. The Agency considers this standard to be generally
consistent with the proposed rule with the added advantage of allowing
for flexibility in achieving compliance. The owner or operator must
also prepare an annual CCR fugitive dust control report that describes
actions taken by the owner or operator to control CCR fugitive dust and
to present a record of all citizen complaints during the previous year,
as well as a summary of the corrective action measures taken.
VIII. Implementation Timeframes for Minimum National Criteria and
Coordination With Steam Electric ELG Rule
The final rule generally establishes timeframes for the technical
criteria based on the amount of time determined to be necessary to
implement the requirements (e.g., installing the groundwater monitoring
wells). In establishing these timeframes, EPA also accounted for other
Agency rulemakings that may affect owners or operators of CCR units,
namely the Effluent Limitations Guidelines and Standards for the Steam
Electric Power Generating Point Source Category (ELG) (78 FR 34432
(June 7, 2013)) and the Carbon Pollution Emission Guidelines for
Existing Stationary Sources: Electric Utility Generating Units (Clean
Power Plan) (79 FR 34830 (June 18, 2014)). Specifically, the
implementation timeframes in this rule will not require owners or
operators of CCR units to make decisions about those CCR units without
first understanding the implications that such decisions would have for
meeting the requirements of each rule. For example, this final rule
requires the closure and post-closure plans to be prepared following
the anticipated publication of the ELG and Clean Power Plan final rules
so that owners or operators of CCR units can take into consideration
those final rules as they prepare the closure and post-closure care
plans.
This is also particularly true in the situation where the minimum
criteria in the CCR rule could potentially require a surface
impoundment to either undergo RCRA closure or retrofit with a composite
liner. A decision on what action to take with that unit may ultimately
be directly influenced by the requirements of the ELG rule; for
example, if the final ELG rule requires a conversion to dry handing of
fly ash, then it may not make economic sense for an electric utility to
retrofit a surface impoundment that contains wet-handled fly ash since
it would be required to cease that practice under the ELG rule. Thus,
under the final timeframes in this rule, any such decision will not
have to be made by the owner or operator of a CCR unit until well after
the ELG rule is final and the regulatory requirements are well
understood. In this example, the earliest date that a CCR surface
impoundment may be triggered into a retrofit or closure decision is
approximately February 2017 (the exact date would be 24 months
following publication of this final rule), which would apply to a CCR
surface impoundment that fails to achieve minimum safety factors for
the CCR unit. This is due to the fact that the owner or operator must
complete the initial safety factor assessment within 18 months of the
publication of this rule plus an additional six months to initiate
closure of the CCR unit if the minimum factors or safety are not
achieved. The ELG rule is scheduled to be finalized in September 2015
and its effective date is 60 days following its publication. Thus,
there is ample time for the owners and operators of CCR units to
understand the requirements of both regulations and to make the
appropriate business decisions.
The tables below summarize the implementation timeframes for the
minimum criteria for existing CCR
[[Page 21429]]
surface impoundments and for existing CCR landfills being promulgated
in this rule.
Implementation Timeframes for the Minimum Criteria for Existing CCR
Surface Impoundments
------------------------------------------------------------------------
Implementation
timeframe (number Description of
Requirement of months after requirement to be
publication of completed
rule)
------------------------------------------------------------------------
Location Restrictions (Sec. 42 months........ --Complete
257.60-Sec. 257.64). demonstration for
placement above the
uppermost aquifer.
--Complete
demonstrations for
wetlands, fault
areas, seismic
impact zones, and
unstable areas.
Design Criteria (Sec. 18 months........ --Document whether
257.71). CCR unit is either a
lined or unlined CCR
surface impoundment.
Structural Integrity (Sec. 8 months......... --Install permanent
257.73). marker.
18 months........ --Compile a history
of construction,
complete initial
hazard potential
classification
assessment, initial
structural stability
assessment, and
initial safety
factor assessment.
24 months........ --Prepare emergency
action plan.
Air Criteria (Sec. 257.80).. 6 months......... --Prepare fugitive
dust control plan.
Hydrologic and Hydraulic 18 months........ --Prepare initial
Capacity (Sec. 257.82). inflow design flood
control system plan.
Inspections (Sec. 257.83)... 6 months......... --Initiate weekly
inspections of the
CCR unit.
6 months......... --Initiate monthly
monitoring of CCR
unit
instrumentation.
9 months......... --Complete the
initial annual
inspection of the
CCR unit.
Groundwater Monitoring and 30 months........ --Install the
Corrective Action (Sec. groundwater
257.90-Sec. 257.98). monitoring system;
develop the
groundwater sampling
and analysis
program; initiate
the detection
monitoring program;
and begin evaluating
the groundwater
monitoring data for
statistically
significant
increases over
background levels.
Closure and Post-Closure Care 18 months........ --Prepare written
(Sec. 257.103-Sec. closure and post-
257.104). closure care plans.
Recordkeeping, Notification, 6 months......... --Conduct required
and Internet Requirements recordkeeping.
(Sec. 257.105-Sec. --Provide required
257.107). notifications.
--Establish CCR
website.
------------------------------------------------------------------------
Implementation Timeframes for the Minimum Criteria for Existing CCR Landfills
----------------------------------------------------------------------------------------------------------------
Implementation timeframe (number of months Description of requirement
Requirement after publication of rule) to be completed
----------------------------------------------------------------------------------------------------------------
Location Restrictions (Sec. 42 months................................... --Complete demonstration for
257.64). unstable areas.
Air Criteria (Sec. 257.80)........ 6 months.................................... --Prepare fugitive dust
control plan.
Run-On and Run-Off Controls (Sec. 18 months................................... --Prepare initial run-on and
257.81). run-off control system
plan.
Inspections (Sec. 257.83)......... 6 months.................................... --Initiate weekly
inspections of the CCR
unit.
9 months.................................... --Complete the initial
annual inspection of the
CCR unit.
Groundwater Monitoring and 30 months................................... --Install the groundwater
Corrective Action (Sec. 257.90- monitoring system; develop
Sec. 257.98). the groundwater sampling
and analysis program;
initiate the detection
monitoring program; and
begin evaluating the
groundwater monitoring data
for statistically
significant increases over
background levels.
Closure and Post-Closure Care (Sec. 18 months................................... --Prepare written closure
257.103--Sec. 257.104). and post-closure care
plans.
Recordkeeping, Notification, and 6 months.................................... --Conduct required
Internet Requirements (Sec. recordkeeping.
257.105--Sec. 257.107). --Provide required
notifications.
--Establish CCR website.
----------------------------------------------------------------------------------------------------------------
IX. Implementation of the Minimum Federal Criteria and State Solid
Waste Management Plans
As explained earlier in this document, the final regulations EPA is
promulgating under RCRA subtitle D impose minimum federal criteria with
which CCR units must comply without any additional action by a state or
federal regulator. As discussed previously in this document, under the
provisions of subtitle D applicable to solid waste, states are not
required to adopt or implement these regulations, to develop a permit
program, or submit a program covering these units to EPA for approval
and there is no mechanism for EPA to officially approve or authorize a
state program to operate ``in lieu of'' the federal regulations.
EPA has, however, received numerous comments regarding the
potential implementation challenges that this statutory and resulting
regulatory structure may pose, particularly in states that already have
a comprehensive regulatory program governing CCR units. These concerns
include the fact that facilities may need to comply with two sets of
potentially differing regulations, perhaps resulting in confusion for
the regulated community and the general public, and also potentially
resulting in inconsistent results from citizens seeking enforcement of
the criteria. The
[[Page 21430]]
commenters were also concerned that there is no explicit mechanism for
EPA to officially approve a state program (as there is in subtitle C or
in the municipal solid waste provisions of subtitle D). In addition, in
states without a current formal program for overseeing CCR landfills
and surface impoundments at coal fired electric utilities, stakeholders
have expressed a preference for a state mechanism for implementing the
federal requirements. Finally, many stakeholders expressed a strong
preference for a permit program with its opportunities for public input
and transparency.
Moreover, EPA recognizes the critical role that our state partners
play in implementation and ensuring compliance with environmental
regulations. This is particularly important in complex situations, such
as presented by CCR landfills and surface impoundments that involve
corrective action and requirements and timelines for closure of units.
EPA expects that states will be active partners in overseeing the
regulation of CCR landfills and CCR surface impoundments, and has
adopted a number of provisions to ensure that States have the
information necessary to undertake this role. First, the final
regulations require owners or operators of regulated CCR units to
notify the state of actions taken to comply with the requirements of
the rule (see Sec. 257.106). Facilities will also be required to
maintain a publicly accessible internet site that will document the
facility's compliance with the requirements of the rule; states (along
with other members of the public) will be able to access this site to
monitor facility activities (see Sec. 257.107). (For a detailed
discussion of these requirements, please see Unit VI.N of this
document.)
In order to ease implementation the regulatory requirements for CCR
landfills and CCR surface impoundments, EPA strongly encourages the
states to adopt at least the federal minimum criteria into their
regulations. EPA recognizes that some states have already adopted
requirements that go beyond the minimum federal requirements; for
example, some states currently impose financial assurance requirements
for CCR units, and require a permit for some or all of these units.
This rule will not affect these state requirements. The federal
criteria promulgated today are minimum requirements and do not preclude
States' from adopting more stringent requirements where they deem to be
appropriate.
As noted above, commenters on the proposal voiced concerns that
because EPA does not have the authority to approve a state program
under subtitle D of RCRA, there is no document in which EPA formally
provides its judgment that a state solid waste program substantially
incorporates the minimum federal criteria. However, a mechanism for
this has been available for many years through the solid waste
management planning process already in the regulations at 40 CFR part
256 ``Guidelines for Development and Implementation of state Solid
Waste Management Plans.'' This process, designed early in the
development of the waste management infrastructure, was structured to
encourage states to effectively plan for and manage their solid wastes,
including upgrading or closing any units that were considered ``open
dumps'' through the development of SWMPs. Currently most states have
SWMPs that have previously been submitted to and approved by EPA. EPA
strongly recommends that states take advantage of this process by
revising their SWMPs to address the issuance of the revised federal
requirements in this final rule, and to submit revisions of these plans
to EPA for review, using the provisions contained in 40 CFR part 256.
To be clear, EPA is not suggesting that states revise their entire
SWMPs, but only that states revise their plans to address the revised
federal requirements being promulgated today. EPA would then review and
approve the revised SWMPs provided they demonstrate that the minimum
federal requirements in this final rule will be met. In this way, EPAs
approval of a revised SWMP signals EPA's opinion that the state SWMP
meets the minimum federal criteria.
As noted above, the part 256 regulations established the system for
the development and approval of initial SWMPs as well as their
revisions. For the convenience of the reader, we describe these
regulations in the following paragraphs. The regulations lay out a
series of requirements that a plan must meet to be approved, as well as
a number of recommendations that should also be reflected in the solid
waste management plan. (e.g., 40 CFR 256.01-256.04 and 256.20-256.27.)
For example, Sec. 256.02 sets out the scope of the SWMPs, requiring
that the plans address ``all solid waste in the state that poses
potential adverse effects on public health or the environment or
provides an opportunity for resource conservation or resource
recovery.'' The regulations also specify that the plan must require
that all solid waste shall be disposed of in ``sanitary landfills,''--
i.e., units that meet any federal requirements promulgated under RCRA
section 4004(a)--or otherwise disposed of in an environmentally sound
manner. 40 CFR 256.01(a)(2). The plan must also prohibit the
establishment of new open dumps, and provide for the closing or
upgrading of all existing open dumps within the state, pursuant to the
requirements of RCRA section 4005. 40 CFR 256.01(a)(2)-(3). State plans
must also ``set forth an orderly and manageable process for achieving
the objectives of the Act and meeting the requirements of these
guidelines.'' 40 CFR 256.02(d). The regulations further specify that
the plan ``shall describe as specifically as possible the activities to
be undertaken, including detailed schedules and milestones.'' Id.
The part 256 regulations further require a SWMP to identify the
state's legal authorities, and regulatory powers, including any
revisions that may be necessary to implement the plan. 40 CFR
256.02(e). The plan must also identify and set out the responsibilities
of state, local, and regional authorities that will implement the state
plan. 40 CFR 256.10(a). Thus, the SWMP is the comprehensive compendium,
developed and adopted with public participation, setting forth how
solid waste is managed in a particular state. As such, SWMPs have been
a key component of solid waste programs for many years. As stated
above, states that have approved plans will only need to address these
requirements for CCR landfills and surface impoundments.
In addition to the substantive requirements, the part 256
regulations impose a number of procedural obligations. Before
submission to EPA, the SWMP must be adopted by the state pursuant to
state administrative processes and developed in accordance with the
public participation requirements set out in Sec. 256.60. In addition,
all SWMPs were to contain procedures for revisions. 40 CFR 256.03(e).
EPA anticipates that states would rely on their existing procedures to
revise their SWMPs to implement the new federal criteria.
Currently, most states have approved SWMPs. These approvals were
based on the requirements applicable to solid waste management that
were in force at the time of approval. Now, because EPA is promulgating
revised federal criteria, the facilities that will be considered to be
``sanitary landfills'' and ``open dumps'' is changing. Thus, EPA
expects that SWMPs in many states will need to be revised to account
for these revised Federal requirements. Consistent with the provisions
in Sec. 256.01(a)(2)-(3) and with the requirement in Sec. 256.03(e)
that such plans are to be revised where
[[Page 21431]]
necessary, in order to maintain approval of these plans EPA expects
that states will revise their SWMPs to account for the promulgation of
revised federal criteria for CCR landfills and surface impoundments.
As fully explained later in this section, the plans are generally
the best tool available for demonstrating how CCR units will be
regulated in a state, including how the state intends its state
requirements to relate to the federal regulations. In addition, EPA
anticipates that the public participation processes will have
substantial benefit, by involving all sectors of the community in
addressing the management of CCR in a particular state.
EPA believes that the revised SWMPs will have significant benefits
and provide the best mechanism available to respond to the concerns
expressed by commenters regarding the role of states in management of
this waste. First, the revised plans will enable states to set out, as
part of their overall solid waste program, how the State intends to
regulate CCR landfills and surface impoundments; that is, these plans
can demonstrate how, if at all, the state program has incorporated the
minimum national criteria and can highlight those areas where the state
regulations are more stringent than or otherwise go beyond the federal
minimum criteria. For example, the plan can describe the actions the
state will take to oversee CCR units, particularly those units
undergoing closure or corrective action, and how the State intends to
review or use the notices and other information pertaining to the units
that the facility owners will be providing to the state (as required in
the federal regulations). Providing this detail can greatly assist the
regulated community to understand the regulatory structure under which
they will be operating. It can also assist the general public in
understanding the regulations and thereby their ability to monitor
industry's compliance with the rule.
Second, substantial benefits will be gained through the public
participation process required as part of revising the state plans. See
40 CFR 256.60. At a minimum, these processes will promote greater
awareness of the federal regulatory requirements, as well as how these
fit into the overall context of solid waste management in the State,
which will be very valuable as the new minimum criteria for CCR are
implemented. In addition, these processes will provide the public and
communities near CCR landfills and surface impoundments with an
opportunity to participate in the decision making about how CCR are
managed in their state. Finally, the record generated by the public
participation process has an inherent value to states, the utilities,
and the general public in that it can demonstrate explicitly the manner
in which issues related to the regulation of CCR landfills and surface
impoundments were raised and resolved in the state. This record would
be a value in any later proceedings seeking enforcement of the rule.
Third, once EPA has approved a SWMP that incorporates or goes
beyond the minimum federal requirements, EPA expects that facilities
will operate in compliance with that plan and the underlying state
regulations. In those circumstances, EPA's view is that facilities
adhering to the requirements of a state program that is identical to or
more stringent than an approved SWMP will meet or exceed the minimum
federal criteria. In addition, EPA anticipates that a facility that
operates in accord with an approved SWMP will be able to beneficially
use that fact in a citizen suit brought to enforce the federal
criteria; EPA believes a court will accord substantial weight to the
fact that a facility is operating in accord with an EPA-approved SWMP.
In addition, as noted above, the record generated by the public
participation process in developing the SWMP has an inherent value to
the states, the utilities, and the general public in any such
litigation. The more specific the record is on the public process
regarding how the SWMP would incorporate the minimum federal
requirements and any state oversight the more valuable it would be in
any court proceedings to complement EPA's approval of the SWMP. As
fully explained earlier, EPA approval of a state SWMP does not mean
that the state program operates ``in lieu of'' the federal program as
EPA does not have the authority to make such a determination.
The process and criteria for approval of SWMPs are set out in 40
CFR part 256. The part 256 regulations state that EPA has six months
from submittal of a plan to either approve or disapprove it. The
regulations further state that EPA will approve a plan if the agency
determines that the plan: (a) Meets the requirement set out in RCRA
Section 4003(a)(1), (2), (3), and (5); (b) and contains provisions for
revisions. Those requirements of 4003(a) are: The identification of the
responsibilities of state, local, and regional authorities in the
implementation of the plan and the means for coordinating regional
planning and implementation; prohibition on the establishment of new
open dumps and the requirement that all solid waste be utilized for
resource recovery or disposed of in landfills meeting the minimum
federal criteria; provision of the closing or upgrading of all existing
open dumps; and no prohibition on negotiating or entering into
contracts for the supply of solid waste to resource recovery
facilities. In this rule, EPA has established minimum national criteria
for CCR disposal facilities, which effectively define when CCR disposal
facilities are open dumps. In order for EPA to approve a revised state
SWMP, it must determine that the state plan provides enforceable
regulatory requirements for the closing or upgrading of CCR disposal
facilities that constitute open dumps. A state SWMP can do so through
direct incorporation and implementation of the minimum federal criteria
established by this rule or through incorporation of alternative
requirements that are at least as protective of public health and the
environment.
EPA anticipates that it will be able to review and approve state
SWMPs that adopt the federal regulations in total or go beyond the
federal minimum criteria very quickly; EPA's review of plans that do
not adopt the federal minimum criteria or alter them substantially is
likely to be more difficult and therefore more time consuming. EPA's
review of and decision to approve or disapprove a state solid waste
management plan will be based on the record before the Agency at the
time of that decision. This record includes the record developed during
the public participation process in which the state engaged prior to
submitting the revised SWMP to EPA for approval. Should information
come to EPA's attention at a later date that a state is not
implementing its approved plan or taking actions at variance with the
plan's provisions, EPA will take appropriate steps including
potentially withdrawing approval of the SWMP.
Because SWMPs form a critical part of the implementation of this
rule, EPA intends to engage the states very soon after promulgation of
the minimum criteria to develop a streamlined, efficient process for
review and approval of these revised plans. EPA also intends to develop
both guidance for states to use to submit revisions and for EPA to use
in its review of the revisions.
In addition, EPA is exploring options for developing and publishing
the statutorily required inventory of open dumps. Specifically, within
one year of the promulgation of federal criteria under RCRA section
4004(a), section 4005(b) directs EPA ``to assist the states in
complying'' with the directive in section 4003(a)(3) that state SWMPs
[[Page 21432]]
shall provide for closure and upgrading of open dumps (i.e., facilities
that do not meet the revised federal criteria) by publishing an
inventory of all ``open dumps'' in the US. 42 U.S.C. 6945(b). Because
the minimum criteria promulgated today include implementation
timelines, it is possible for a facility to become an open dump in the
future for failure to meet the minimum criteria. Thus, EPA anticipates
publishing an initial inventory and likely subsequent periodic updates.
Finally, in addition to benefits just described of a revised SWMP,
RCRA Section 4005 provides an incentive in certain circumstances for
states to obtain EPA approval on revised SWMPs. Under section 4005,
States with approved SWMPs can provide additional time for facilities
that do not meet the national minimum criteria (i.e., ``open dumps''),
to come into compliance. As noted above, within one year of the
promulgation of federal criteria under RCRA section 4004(a), section
4005(b) directs EPA ``to assist the states in complying'' with the
directive in section 4003(a)(3) that state SWMPs shall provide for
closure and upgrading of open dumps (i.e., facilities that do not meet
the revised Federal criteria) by publishing an inventory of all ``open
dumps'' in the US. 42 U.S.C. 6945(b). Facilities on this inventory are
eligible to obtain a ``schedule of compliance'' from a state with an
approved management plan, provided certain additional criteria have
been met. Specifically, the facility must demonstrate that it is unable
to use other ``public or private alternatives'' to manage its waste in
the non-compliant unit. In such cases, the state may establish a
schedule of remedial measures that includes ``an enforceable sequence
of actions or operations'' which must lead to compliance within a
``reasonable time (not to exceed five years from the date of
publication of criteria).'' 42 U.S.C. 6945(a). Such a schedule would
shield the facility from any suit brought to enforce the criteria.
Thus, if a State receives EPA approval on its revised plan, it can
offer facilities additional time, albeit limited, to come into
compliance with the federal requirements. EPA expects, however, that
few facilities will either be eligible for or need to take advantage of
this flexibility. First, as a practical matter, only a limited number
of facilities or units will fall into the category of open dumps within
the relevant timeframes. As noted, an open dump is defined as a solid
waste facility that does not meet the federal minimum criteria. 42
U.S.C. 6903(14). As also explained, the final criteria establish
timeframes for facilities to implement the technical requirements,
ranging between six months to several years, including certain
provisions that authorize extensions. Until those deadlines pass, the
facility is not an open dump and therefore would not be eligible for or
need a compliance schedule under section 4005. Because the statute
limits the states' ability to set compliance schedules to five years
from the publication of the criteria, if a facility is out of
compliance with the criteria either shortly before or after this time
five-year timeframe, from a purely practical perspective, compliance
schedules are no longer a viable option. Thus for certain of the
provisions (e.g., closure, which generally must be completed within
five years) compliance schedules would never be available.
Second, the timeframes in the regulation reflect EPA's considered
judgment of the amount of time that would realistically be needed under
normal circumstances for a facility to come into compliance, based on
standard engineering practices used throughout the industry. Most
facilities will, in fact, be able to comply with the federal criteria
within the specified timeframes, and so will not need to seek a
compliance schedule. For example, as part of its Dam Safety Assessment
program, EPA evaluated all CCR surface impoundments with a dam hazard
potential rating of ``high'' or ``significant,'' using criteria that
were essentially the same as the technical criteria adopted in the
final rule. As of the completion of that program, all units were either
rated satisfactory, or were taking steps to ensure the structural
stability of the unit. EPA acknowledges that ensuring the structural
stability of these units requires continued maintenance and oversight,
so past compliance is no guarantee of future compliance. However, our
experience from the Assessment Program leads us to expect that the vast
majority of CCR surface impoundments will be able to demonstrate
compliance with the structural stability requirements in the final
criteria within the specified timeframes. Any facility that seeks to
justify an extension would have a heavy burden to demonstrate that
anything longer than a minor amount of time is needed to implement the
structural stability requirements would meet the statutory standard
(i.e., be ``reasonable''). Similarly, absent factors beyond the
facility's control (i.e, ``Acts of God'') EPA is unable to envision the
circumstances that would support a decision that additional time beyond
the 30 months already provided in the criteria to comply with the
groundwater monitoring requirements would be ``reasonable.''
Third, RCRA section 4005(a) imposes a number of requirements that
will further limit both the circumstances in which a compliance
schedule may be granted, and the amount of time that states will
ultimately be authorized to grant. 42 U.S.C. 6945(a). Section 4005(a)
requires that to obtain a compliance schedule, the facility must first
demonstrate that it has considered other public or private alternatives
to comply with the prohibition on open dumping and is unable to utilize
such alternatives.\127\ At a minimum, this means that the facility must
demonstrate that there are no alternative units that meet the federal
requirement, either on-site or off-site, that can be used to dispose of
the CCR. EPA also interprets this provision to require the facility to
demonstrate that it has made a good faith effort to comply with the
criteria, which would include documenting the actions that had been
taken, along with the facts demonstrating the reasons that compliance
was not feasible within the criteria's timeframes. As has been
previously discussed, cost is not a factor that is appropriately
considered under sections 1008(a)(3), 4004(a), or 4005(a), and so would
not provide an adequate justification for these purposes either.
---------------------------------------------------------------------------
\127\ Upon promulgation of criteria under sections 1008(a)(3)
and 4004(a), the continued use of any unit that does not comply with
these criteria is prohibited, as ``open dumping,'' unless a
compliance schedule has been established.
---------------------------------------------------------------------------
Further, the statute requires that a schedule for compliance
specify ``a schedule of remedial measures, and an enforceable sequence
of actions, leading to compliance within a reasonable time.'' Id. This
means that any compliance schedule must lay out precisely the
activities that remain to be completed, along with clear and
enforceable deadlines for each. Again, this will effectively serve to
limit the ultimate amount of time that would be granted in any
individual case.
Finally, as stated earlier, the statute requires that any schedule
to bring an open dump into compliance is to be limited to a
``reasonable time,'' that is not to exceed five years from the date of
publication of the federal criteria. Whether a particular period of
time is ``reasonable'' depends on the facts of the particular
situation, but, generally speaking, it should take into account the
technical complexity of the requirement, the activities that remain
[[Page 21433]]
to be completed, the reasons for the lack of compliance, and other
particular factors such as geology, geography, weather, and engineering
circumstances. For example, EPA expects that a significantly lower
amount of time would be reasonable for a facility that simply chose to
delay implementation than for a facility whose compliance was
complicated by factors beyond its control. Overall, to be consistent
with the statute, EPA expects that facilities seeking to establish an
alternative compliance schedule would need to provide a factual
justification that not only documents the reasons that compliance
within the criteria's timeframes was not feasible, but carefully
documents the facts that would support a determination that any
significant extension of time to come into compliance is
``reasonable.''
EPA expects that as part of any revised solid waste management
plans, a state would explain the criteria it intended to use to
determine whether and how much additional time to comply with the
federal criteria should be granted. See 40 CFR 256.04(f) and 256.26.
Consistent with the statute's directives, EPA expects that any
extension would be limited to the time absolutely necessary to bring a
unit into compliance, and that five years would not automatically be
granted. Nor would a revised solid waste management plan that granted
all ``open dumps'' an additional five years generally meet the
regulatory criteria for approval. Id. EPA also expects that states
would consider the original timeframes laid out in the criteria. As
previously discussed, in developing these time frames EPA sought to
achieve a balance between the minimum amount of time that would
realistically be needed to properly and adequately implement the
technical requirements, and the need to expeditiously address the
significant risks associated with CCR units. EPA therefore expects that
in granting additional time under compliance schedules, states will be
guided by the same considerations. As documented throughout this
preamble, CCR disposal units do pose significant risks to public health
and the environment; it is therefore critical that actions to implement
these criteria be taken expeditiously to address these risks. EPA
intends to closely review those portions of a state solid waste
management plan that address the processes and criteria for
establishing compliance schedules.
In conclusion, EPA believes that the use of the solid waste
management plan revision process is the best mechanism available under
RCRA subtitle D to address the states' interest in obtaining formal EPA
``approval'' of their solid waste management plans. EPA will continue
to work with the states as the rules are implemented to ensure that
this process is streamlined and efficient.
X. Risk Assessment
EPA revised and updated the 2010 draft risk assessment using
mathematical models to determine the rate at which chemical
constituents may be released from different waste management units
(WMUs), to predict the fate and transport of these constituents through
the environment, and to estimate the resulting risks to human and
ecological receptors. Modeling was conducted in a step-wise fashion,
with more refined analyses used at each subsequent step. Below, EPA
discusses how the risk assessment was revised and updated in response
to the various public comments received. The Agency also provides a
summary of the analyses conducted as part of the risk assessment and
the final conclusions drawn from these analyses. For further
discussion, see the revised risk assessment and response to comments
documents available in the docket.
A. Response to Public Comments
EPA received numerous, general comments on both the draft risk
assessment and subsequent NODAs. These comments tended to express
general support or disapproval for the risk assessment methodology,
data, or results. However, these comments did not provide any specific
technical recommendations or data that could be used to improve the
risk assessment. EPA appreciates the overwhelming interest of the
public regarding the Agency's risk assessment. However, without any
substantive critique that could be acted upon, EPA could not alter the
risk assessment in response to these more general comments. To the
extent that any commenter mentioned substantive issues regarding a
specific aspect of the risk assessment, these comments are further
addressed in subsequent sections of this preamble.
1. Comments Related to Fate and Transport Modeling
COMMENT: Commenters wondered how realistic results may be using a
risk assessment model that assumes current conditions will be
maintained for 10,000 years. Specifically, commenters were concerned
about the assumption that constituent concentrations in the leachate
remain constant throughout that timeframe. In addition, commenters
questioned the assumption that well use and climate conditions will
remain constant for 10,000 years.
EPA RESPONSE: EPA acknowledges that the 10,000-year groundwater
modeling time horizon required further clarification in the revised
risk assessment. Thus, the text in the revised risk assessment has been
updated to make it clear that the selection of a maximum 10,000-year
time horizon does not mean that all model simulations continue for the
full 10,000 years. Specifically, Section 4 states:
EPA ran the model until either the observed groundwater
concentration of a constituent at the receptor point reached a peak and
then fell below a model-specified minimum concentration (10-16 mg/L),
or the model had been run for a time period of 10,000 years.
Although groundwater concentrations are modeled beyond the observed
peak or maximum average concentrations, these post-peak or post-maximum
average predictions are not used in estimates of risk. In many cases
the leachate plume reaches the receptor point much sooner than 10,000
years. As discussed in Section 5 and appendix K of the revised risk
assessment, on a national scale, both unlined and clay-lined surface
impoundments consistently pose peak risks within 100 years. Meanwhile,
composite liners show much longer peak arrival times, close to 10,000
years for most surface impoundment runs. Peak arrival times are longer
for landfills, and more than 10,000 years for composite-lined
landfills. Under such timeframes, EPA acknowledges that surface
conditions may change significantly, compounding the uncertainty
associated with the predicted exposures and risks. However, EPA also
notes that the time to first exceedance of selected risk criteria is
typically considerably less than the time to the greatest exceedance.
EPA acknowledges that future groundwater use patterns may shift as
the number and location of receptors changes, and that it is unknown
whether future changes in receptor locations and other surface
conditions would result in greater, lesser, or the same risk as
predicted in this analysis. However, no known data exist that would
allow EPA to do more than speculate about future population dynamics.
Thus, the Agency relied on the best available data on the current
population to conduct the revised risk assessment. The approach used to
place residential groundwater wells is further discussed in Section 4
and appendix B of the revised risk assessment, and the associated
uncertainties are discussed in Section 5.
[[Page 21434]]
COMMENT: Comments related to the specifics of the groundwater
transport modeling were received from commenters. Issues covered in
their comments included the following:
Geochemical Modeling:
The way that soil and aquifer Kd values were
determined and used, including the fact that the risk assessment did
not explicitly model oxidation/reduction reactions and precipitation-
dissolution processes that may influence the chemical fate and
transport.
Whether hydrogeologic settings were assigned correctly.
Selection of Sorbents:
The selection of iron oxides, and dissolved organic matter
(DOM) and particulate organic matter (POM) to represent all sorbents in
soil and aquifer materials.
The selection of goethite as the iron oxide mineral used
to estimate sorption to vadose zone and aquifer materials.
The treatment of POM and DOM in the MINTEQA2 modeling used
to generate the Kd values (sorption isotherms) used in the
analysis.
The adequacy of sensitivity and uncertainty analyses for
the MINTEQA2 modeling.
Kd Values:
The approach used to determine the value of pH in the
aquifer for selecting Kd.
The subsequent calculation of the retardation factor.
Arsenic Speciation:
The assumption that arsenic III is the only or dominant
form of arsenic is too conservative, as arsenic III readily converts to
the less mobile arsenic V species under aerobic conditions.
A commenter requested time to exceedance results for
arsenic species and other constituents, as well as distance versus
concentration output from EPACMTP.
EPACMTP Assumptions and Simplifications:
--The appropriateness of EPACMTP and its various assumptions and
simplifications for groundwater modeling, including:
--Not altering the chemistry of the aquifer receiving leachate.
--Not simulating variable oxidation-reduction potential conditions or
multiple chemical species during a model run.
--Not evaluating the potential mobilization of non-waste related metals
from soils when exposed to leachate with potentially different
geochemistry compared to ambient conditions.
--Not considering the potential occupation of adsorption sites by
naturally occurring metals or competition from multiple contaminants.
--Not considering mounding-induced reduction of the unsaturated zone
thickness or other cases where the groundwater table is in direct
contact with the bottom of the WMU.
--Not considering fractured rock, karst, and other complex
hydrogeologic settings.
The comments also addressed the general need for more transparency
in the data and methods used in the analysis and the need for
validation and/or comparison of model inputs and results to site-
specific field data.
EPA RESPONSE: The following is EPA's response broken out by
subtopic.
Geochemical Modeling:
EPA recognizes that explicit reactive/geochemical modeling would be
more realistic than using linear and nonlinear partitioning
coefficients. EPA considered the use of the Objects Representing
Chemical Speciation and Transport (ORCHESTRA) model during revisions to
the risk assessment because it can account for geochemical
interactions, such as aqueous complexation, precipitation, surface
complexation, and ion exchange.\128\ However, such modeling is not a
practical approach for a nationwide analysis because the data
collection effort necessary to populate such a model on a nationwide,
location-based level would be prohibitively expensive. Even assuming
such data were available to populate ORCHESTRA or a similar model, the
complexity of the algorithms necessary to account for highly variable
geochemical and hydrogeologic conditions nationwide and the time
required to run such a model would also be impractical. Furthermore,
the use of Kd as a surrogate for dilution/sorption/
precipitation processes is a widely used and accepted method in both
the scientific literature and the groundwater modeling community,
provided the values of Kd used are appropriate to account
for the range of potential attenuation processes.\129\ Therefore, for a
nationwide analysis, the use of Kd is a practical and
necessary simplification. EPA has added discussion to the risk
assessment to clarify Kd-related issues raised by the
commenters. Appendix H of the revised risk assessment displays select
percentiles of the Kd values used in the analysis. These
values were derived from the isotherm sampling performed by EPACMTP and
used in the modeling (including effective Kd values for the
unsaturated zone). A listing of all individual Kd values
available in the MINTEQA2 isotherms used in these analyses would not be
practicable. Instead, the full input and output files are available to
the public in the docket.
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\128\ Meeussen, J.C.L. 2003. ORCHESTRA: An Object-Oriented
Framework for Implementing Chemical Equilibrium Models.
Environmental Science & Technology 37(6):1175-1182.
\129\ U.S. EPA. 1999. Understanding Variation In Partition
Coefficient, Kd, Values Volume I: The Kd Model, Methods of
Measurement, and Application of Chemical Reaction Codes. EPA 402-R-
99-004A. OAR. Washington, DC. August.
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Some commenters suggested that EPA should focus on the effect of
redox potential in the groundwater on fate and transport. While this is
possible, it would take significant effort to set up this type of
approach for every inorganic constituent considered in the risk
assessment, and it was determined not to be necessary. EPA did
indirectly account for some of the major effects of redox potential
when modeling arsenic and other constituents for which speciation is
known to have a significant impact on mobility. For these constituents,
a model run was conducted for each species under the assumption that
all of the constituent mass was present as that speciation. Therefore,
EPA did not evaluate redox, and acknowledges this is a source of
uncertainty for the groundwater transport modeling approach. Commenters
expressed concern about the assumption of a single speciation, noting
that it is likely that constituents will be present as some combination
of the different species. EPA acknowledges that this approach is a
simplification of real world conditions; however, the Agency believes
this approach is useful because it provide bounding estimates that can
inform the risk assessment.
Regarding the concern that there were possible errors in
hydrogeological assignments, these assignments have been updated in the
revised risk assessment based on a more robust and accurate dataset for
waste management units (WMU) and facility locations. These data are
discussed in Section 3 and appendix B of the revised risk assessment.
Because these assignments were based on more complete GIS coverages of
soils and aquifers across the U.S., they are more consistent and
reliable than the previous ones in representing the spatial variability
in hydrogeologic environments needed by the EPACMTP model.
Selection of Sorbents:
In recent years, databases of equilibrium sorption reactions have
been compiled in the literature for several of the dominant potential
sorbents in the environment, including two common iron oxide minerals:
hydrous ferrous oxides (HFO) and
[[Page 21435]]
goethite.130 131 Because of the availability of these data
and their prevalence in the environment, these are the sorbent types
available for MINTEQ2 modeling used to develop constituent sorption
isotherms. Other common hydrous oxides that can sorb chemicals include
hydrous oxides of aluminum, manganese, and silicon (Dzombak and Morel,
1990); however, there were insufficient data on these to consider their
use. To determine the most appropriate iron oxide sorbent, EPA chose
goethite as the most appropriate form of hydrous iron oxide for the
risk assessment to avoid an underestimation of risk. While both
goethite and HFO are common forms of iron oxide in soils, goethite is a
much poorer adsorbent than HFO, thereby leading to relatively greater
groundwater plume concentrations. EPA acknowledges that HFOs are common
as well and there is the potential for HFOs with greater sorption
affinities than goethite to be present at some CCR disposal sites. In
reaching this conclusion, EPA consulted experts who published on this
subject (specifically, Dr. David Dzombak, Dr. Samir Mathur and Dr.
Jerry Allison), developer of MINTEQA2. EPA agrees that this was a
necessary assumption.
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\130\ Dzombak, D.A and F.M.M. Morel. 1990. Wiley-Interscience,
New York, 393 pp.
\131\ Mathur, Samir S. 1995. Development of a Database for Ion
Sorption on Goethite using Surface Complexation Modeling. Carnegie
Mellon University, M.S. Thesis, Department of Civil and
Environmental Engineering.
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EPA also recognizes that limiting MINTEQA2 to two types of sorptive
materials (iron oxide and organic matter [DOM and POM]) is a
simplification given the wide range or soil and aquifer materials that
actually adsorb metals (e.g., clay and other soil minerals). However,
given that the extensive sorption databases needed to perform MINTEQA2
are available for POM, DOM, and goethite, they are the best
representation of subsurface sorption processes active in soils and
aquifer materials. This decision and the actual approaches used to
model DOM, POM, and goethite are described in detail in MINTEQA2
background documents and the associated Response to Peer Review
Comments for those documents.
Finally, with respect to the adequacy of sensitivity and
uncertainty analyses for MINTEQA2, EPA notes that the 2009 sensitivity
analysis showed that only results for strongly sorbing constituents
were sensitive to the Kd values output from MINTEQA2. In
contrast, the three risk drivers identified in the revised risk
assessment (arsenic, lithium, and molybdenum) all tend to be weakly
sorbing, with the exception of arsenic in the pentavalent state.
Furthermore, to the extent Kd affects the risks, Section 5
of the revised risk assessment evaluated these effects by examining
alternate speciation (e.g., trivalent and pentavalent arsenic) as well
as the effect of waste type and waste pH. For these reasons, EPA finds
that sufficient sensitivity and uncertainty analyses were conducted.
Kd Values:
The approach adopted in the risk assessment to determine the value
of pH in the aquifer (used to select Kd) and the subsequent
calculation of the retardation factor assumed that, after entering the
aquifer, the leachate plume would thoroughly mix with the ambient,
uncontaminated groundwater. One commenter stated that the mixing zone
would only be present at the periphery of the groundwater plume. This
is consistent with the general conceptual model used in this risk
assessment of uniform subsurface flow with recharge. However, EPACMTP
requires a constant groundwater pH in each model run to model transport
with nonlinear sorption isotherms. EPA assumed full mixing as a more
conservative approach to selecting pH because, for most metals,
sorption/precipitation tends to increase (i.e., Kd goes up)
with higher pH, which is characteristic of much CCR leachate (i.e.,
assuming full mixing lowers the groundwater pH and, thus, decreases
sorption). To characterize the potential effect of this simplifying
assumption on calculated risk results, EPA conducted an uncertainty
analysis that is presented in Section 5 of the revised risk assessment.
EPA considered comparing the modeled Kd values to
available estimates in the published literature, but did not do so for
three reasons. First, there are many individual values within each
Kd isotherm that depend both on constituent concentrations
and MINTEQA2 master variables, such as pH, organic carbon, and iron
oxide concentrations. Second, measured values are limited to specific
sites where conditions that may not be fully documented, and because
such variables can vary from site to site, it can be very difficult to
determine exactly how well the collected values represent conditions
across the country. Third, field and laboratory methods for measuring
Kd vary greatly and are not easy to compare, adding a
significant measurement uncertainty to the variability issues mentioned
above. Therefore, not only would this comparison be complicated to
perform, it would also be subject to its own numerous uncertainties and
unknown biases, making it unlikely to provide a basis for definitive
conclusions about the representativeness of the current approach.
With respect to comments on the calculation of the retardation
factor, EPA points commenters to U.S. EPA (2003) \132\ which discusses
how EPA uses Kd values to model sorption in the subsurface
environment.
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\132\ U.S. EPA (Environmental Protection Agency). 2003. EPA's
Composite Model for Leachate Migration with Transformation Products
(EPACMTP). Technical Background Document. EPA 53-R-03-002. Office of
Solid Waste, Washington, DC.
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Arsenic Speciation:
Commenters also pointed out that literature on arsenic V often
shows that it is orders of magnitude less soluble than arsenic III,
which appears inconsistent with the results of the 2010 Draft Risk
Assessment. The draft assessment found similar exposure concentrations
for both arsenic species. As a result of a combination of different
updates to the revised risk assessment, the modeled concentrations of
arsenic III and V are now generally an order of magnitude different,
although the specific results vary between pathways. One cause of this
difference is likely the increased distances to receptors in the
revised risk assessment. The increased distance would lead to
additional arsenic V attenuation because this species sorbs more
readily (i.e., has greater Kd values) than arsenic III.
Section 5 of the revised risk assessment discusses the uncertainty
associated with modeling both species of arsenic. For the specific
concentrations at various distances, EPA directs the commenter to
review the input and output files available in the docket.
EPA did not model the time to first exceedance of risk criteria,
but did conduct a sensitivity analysis for the time to peak groundwater
concentration. The time to peak results for arsenic species and other
select constituents are presented in Section 5 of the revised risk
assessment. The distance to nearest well receptors is also discussed in
Section 5 of the revised risk assessment. The relation of distance
versus concentration was not explicitly evaluated on a per simulation
basis, rather all receptor well locations within one mile from the WMU
footprint were included in the analysis to provide a conservative risk
estimate.
EPACMTP Assumptions and Simplifications:
Comments on the treatment of dispersivity within EPACMTP
highlighted the need for greater transparency about the model's
[[Page 21436]]
underlying assumptions and input data sources. The documentation for
the 2010 Draft Risk Assessment did not include comprehensive tables
detailing model input parameters, their values or distributional
characteristics, and the sources of the data used. These values are, in
many cases, publicly available in the EPACMTP Background and
Parameters/Data Background documents.133 134 EPA still finds
it inappropriate to duplicate this large amount of data. Instead, the
revised risk assessment includes an increase in the number of
references to these documents, and directs readers to refer to these
documents for further information. Additionally, the full input and
output files are available to the public in the docket.
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\133\ U.S. EPA. 2003. EPA's Composite Model for Leachate
Migration with Transformation Products (EPACMTP): Parameters/Data
Background Document. EPA 530-R-03-003. Office of Solid Waste,
Washington, DC. April.
\134\ U.S. EPA. 2003. EPACMTP Technical Background Document.
Office of Solid Waste, Washington, DC.
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With respect to the fundamental questions raised about the
assumptions and simplifications built into EPACMTP, EPA acknowledges
some limitations within the model. Some simplifications are necessary
to complete a large, national scale risk assessment, and the model
provides the most appropriate available tool to complete this type of
analysis. As discussed in Section 5 of the revised risk assessment,
EPACMTP has been thoroughly peer reviewed and tested for application in
large-scale risk assessments. This section also provides additional
documentation on these internal and external reviews of the model, its
limitations, and the associated uncertainties. With respect to
particular criticisms levied:
EPA alters the chemistry of the aquifer receiving leachate
by changing the aquifer pH in response to full mixing. Alternatively,
EPA conducts an analysis in Section 5 using the alternate assumption of
partial mixing;
EPA evaluates alternative species in separate model runs.
As described in the revised risk assessment, EPA believes that
presentation of these two results bound the range of possible risks
from a constituent. To the extent that EPA does not model oxidation-
reduction potential, EPA notes that this would require geochemical
modeling, which was not feasible for the reasons discussed above;
Full mixing of the leachate plume did not demonstrate
significant potential to affect aquifer pH. Thus, since pH is one of
the most significant factors affecting constituent mobilization EPA
does not believe significant constituent mass from the underlying soils
will be mobilized in most cases. Instead, it is a site-specific
consideration that is not possible to include in a nationwide risk
assessment.
A discussion of sorbent competition as a limitation of the
analysis is discussed in Attachment H-1 of appendix H in the revised
risk assessment.
EPA did not consider groundwater mounding, groundwater in
contact with the waste management unit, fractured rock, karst, and
other complex hydrogeologic settings as these are site-specific
considerations that could not be accommodated in a nationwide risk
assessment.
COMMENT: Several commenters discuss the use of site-specific
analysis to increase confidence in the risk assessment results. They
expressed concern that the results are difficult to evaluate given the
significant variability and uncertainty associated with the national
scope of the analysis, and that validation or calibration of EPACMTP
results with actual data is needed, including the potential use of
damage cases.
EPA RESPONSE: Commenters expressed concern about validation of the
EPACMTP model with actual field data and some commenters suggested that
EPA should use actual monitoring data rather than modeling to assess
potential risks. EPA recognizes the importance of monitoring data in
characterizing specific sites. EPA agrees with the commenters that
confidence in the results of an environmental fate and transport model
increase significantly when model predictions can be compared favorably
with measured field results. However, site-specific modeling involves
extensive data collection and detailed modeling (representing site-
specific conditions and processes), which was not possible for this
large, national-scale risk assessment. Available site-specific data are
limited to a relatively small fraction of locations and settings. This
risk assessment was intended to represent a broad range of potential
conditions. Consequently, EPA validated the model results with actual
field data by comparing the results of the national probabilistic,
Monte Carlo analysis to proven/potential damage cases from across the
United States. These damage cases represent real-world instances of
contamination from CCR WMUs that provide the best available comparison
for the results of the risk assessment. This comparison is presented in
Section 5 of the revised risk assessment. EPA also provided extensive
EPACMTP validation results relative to theoretical models and field
data in appendix D of the EPACMTP technical background document (U.S.
EPA, 2003a,b).\135\
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\135\ U.S. EPA (Environmental Protection Agency). 2003a. EPA's
Composite Model for Leachate Migration with Transformation Products
(EPACMTP). Technical Background Document. EPA 53-R-03-002. Office of
Solid Waste, Washington, DC.
---------------------------------------------------------------------------
COMMENT: Comments relating to the number of wells contaminated, the
realistic risk of exposure, well placement within the plume, distance
to receptor wells, identification of surface water receptors, surface
water interception modeling, the appropriateness of receiving water
reaches (e.g. the nearest surface water body), and other receptor or
well-related issues were received from public commenters.
Surface Water Interception Modeling:
Regarding surface water interception, many comments were supportive
of EPA's approach for simulating the interception of groundwater by
surface water bodies, which has been added to the revised risk
assessment. However, some commenters indicated that a meaningful
allocation of the groundwater plume between a surface water body and a
downgradient well receptor can only be determined reliably with
assessment of the system at a local scale.
Commenters also raised questions regarding the specific surface
water interception methodology, including the base data and algorithms
used to calculate stream base flow, net groundwater flow, and the
contaminant mass loss to groundwater. Concern was expressed about the
large range of possible values used for Monte Carlo sampling without
calibrating models to site specific conditions and the potential to
mismatch parameters. Additionally, concerns were raised that the
assessment assumed transport directly to the nearest water body without
reflecting complexities that are often present and could lead to longer
transport pathways or to pathways to water bodies other than the
nearest.
Commenters noted that the vicinity of many WMUs is serviced by a
municipal water supply, and; therefore, there would be no drinking
water receptors associated with these WMUs. Comments were also received
that the one mile distance considered by the transport model is not
sufficient, because actual receptor wells in many cases are further
than one mile from facilities. Comments also highlighted the
possibility that modeled receptor well concentrations may incorrectly
represent actual
[[Page 21437]]
exposures by sampling from a single aquifer depth. Comments on
dispersivity noted the need for greater transparency in the report.
Placement of Receptor Wells, EPACMTP Well Inputs and Assumptions:
Comments related to the risk assessment's use of water well
distances from MSWLFs and the Agency's belief that these distances
would be protective for CCR WMUs. Additional comments focused on the
assumption that the wells used in this assessment are contaminated
(i.e., located within the plume), even if the well location used
reflects a deeper well that may be screened in an uncontaminated
aquifer; the manner in which the assessment handles uncontaminated
wells, plume characteristics, groundwater-surface water interactions,
vertical contaminant concentration across a screened interval in an
aquifer; and the values used for plume dispersivity.
EPA RESPONSE: The following is EPA's response broken out by
subtopic.
Surface Water Interception Modeling:
In cases where receptor wells are located downgradient from a
surface water body that intersects the groundwater table, some or all
of the groundwater, along with the mass of constituents contained
therein, is intercepted by the water body before it can reach the well.
This interception was not modelled in the 2010 Draft Risk Assessment.
However, a review of the input database for the 2010 Draft Risk
Assessment found that such a water body was present in approximately
two-thirds of the Monte Carlo runs. Furthermore, ignoring the loss of
constituent mass had the effect of overestimating exposures. Thus, in
the revised risk assessment an EPACMTP model post-processor was created
to account for surface water interception by removing constituent mass
flowing into the water body from the groundwater plume, and leaving
only the remaining groundwater available to migrate to a drinking water
receptor. The approach used to account for interception is discussed in
further detail in Section 4 and appendix J of the revised risk
assessment.
While commenters were generally supportive of the proposed
approach, some indicated that a meaningful allocation of constituent
mass from groundwater into a surface water body required site-specific
data. Concerns were raised about the assumption that transport occurred
directly to the nearest water body without reflecting complexities that
are often present and could lead to longer transport pathways or to
pathways to water bodies other than the nearest. EPA acknowledges that
local conditions can make groundwater flow conditions complex, and
detailed, local-scale assessments would be required to describe these
conditions accurately. While EPA agrees that local-scale conditions
must be considered for precise estimation for specific systems, it was
impractical for EPA to characterize, simulate, and calibrate models for
the numerous locations across the nation. Discussion of the
uncertainties associated with this approach has been added to Section 5
of the revised risk assessment.
Several questions about the surface water interception methodology
were raised by the public. The qBaseflow input parameter was derived
from the NHDplus mean recharge parameter (MEAN_RCHRG) \136\ and the
size of the water body catchment and reach (see appendix B of the
revised risk assessment). The approach assumes that all streams
intersect the shallow aquifer and that all streams either gain water
from the aquifer or do not interact with the aquifer at all (for
simplicity and conservatism). As the commenter indicates, qNetflow is a
key result calculated by subtracting the stream baseflow from the
average groundwater flow upgradient of the stream. The qNetflow value
becomes the adjusted groundwater flow beyond the stream, reflecting
groundwater losses to the stream. One commenter raised a specific
question about how the methodology handles cases where qNetflow is less
than zero, but greater than the average groundwater flow. This case
does not occur with the methodology adopted by EPA, because qNetflow is
always equal to or less than the average groundwater flow (i.e. streams
are assumed not to be losing). If qNetflow is negative (i.e., a losing
stream), all of the groundwater is assumed to migrate to any wells on
the opposite side of the stream.
---------------------------------------------------------------------------
\136\ Available online at: water.usgs.gov/GIS/metadata/usgswrd/XML/nhd_recharge.xml.
---------------------------------------------------------------------------
Model Validation/Calibration:
Concern was expressed about the large range of possible values used
in the probabilistic analysis for certain parameters and the potential
for this to result in a mismatch of input parameters without proper
site-specific calibration. EPA notes that the revised risk assessment
is not intended to capture the exact risks at each disposal site.
Instead, the revised assessment combines the best resolution of site-
based, regional and national data available to provide an estimate of
potential risks that may occur from current disposal practices. While
the assigned data for any given model iteration may not reflect the
exact conditions at a real-world site, the resulting sum of all model
iterations reflect the range of potential conditions near each WMU,
weighted by prevalence, across the conterminous United States.
Placement of Receptor Wells, EPACMTP Well Inputs and Assumptions:
Comments regarding placement of receptor wells in the probabilistic
analysis (also known as the appropriateness of receiving water reaches)
are the result of a fundamental misinterpretation regarding the
constraints placed on groundwater receptor location to be, as described
in the 2010 Draft Risk Assessment, ``within the contaminant plume.''
This constraint is more fully explained in Section 4.4.3.6 of the
EPACMTP technical background document.\137\ A citation referring
readers to that document has been placed in Section 4 of the revised
risk assessment. Because the comment resulted from a misunderstanding,
EPA does not believe the sensitivity analysis suggested by the
commenter is necessary.
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\137\ U.S. EPA (Environmental Protection Agency). 2003a. EPA's
Composite Model for Leachate Migration with Transformation Products
(EPACMTP). Technical Background Document. EPA 53-R-03-002. Office of
Solid Waste, Washington, DC.
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Some commenters were concerned that many residents in the vicinity
of some WMUs may be serviced by a municipal water supply. Because these
residents would not be exposed to groundwater, the risk assessment
could overestimate exposures. EPA acknowledges that there may be a
large percentage of the population that does not rely on groundwater as
a source of potable water; however, the aim of the risk assessment is
to estimate the magnitude of potential risk to the exposed population.
Thus, this does not represent a significant source of uncertainty in
the risk assessment.
Comments were also received that the one-mile distance considered
by the transport model is not sufficient, because actual receptor wells
in many cases are further distant than one mile from facilities. EPA
conducted a sensitivity analysis, discussed in Section 5 of the revised
risk assessment, which indicates that risks beyond the one-mile
distance are appreciably lower than risks within one mile. Given that
the highly exposed population was adequately captured by a one-mile
radius, the significant additional effort required to extend the
analysis further downgradient was unjustified.
[[Page 21438]]
With respect to comments related to the placement of wells within
deeper aquifers, EPA has a policy of addressing uncertainty by erring
in favor of the protection of human health and environmental quality.
Consistent with this practice, wells screened within vulnerable,
surficial aquifers (i.e., the top 10 meters of the saturated zone)
continue to be the primary focus of the Agency's national-scale
modeling efforts. Comments also highlighted the possibility that
modeled receptor well concentrations may incorrectly represent actual
exposures by sampling from a single aquifer depth. Wells are typically
screened across an extended depth, and may capture both contaminated
and pristine groundwater. Due to the constraints of EPACMTP, EPA
maintained the current approach of modeling exposures at a single
depth. A discussion of the uncertainties associated with this approach
has been added to Section 5 of the revised risk assessment.
In response to comments on the use of MSW landfill data to predict
the distance to private wells, EPA did not use the MSW data in the
revised risk assessment. Instead, EPA used synthetic population
representations of U.S. Census data to place each household and its
occupants at discrete points across the landscape surrounding CCR WMUs.
Synthetic populations are realistic representations of households and
individual residents and their attributes in a given census area, and
are based on methods that identify realistic locations within each
block by using LandScan 90-meter night-time population distributions to
place each household across the landscape.\138\ From these households,
a distribution of the distances to the nearest well was created. This
approach is discussed in more detail in appendix B of the revised risk
assessment. Some commenters suggested that EPA develop site-specific
estimates of actual populations around facilities rather than relying
on synthetic populations to determine potential receptor locations. The
synthetic approach provides the maximum spatial resolution possible for
publically available population data from the U.S. Census. More site-
specific estimates would be costly, but not necessarily more accurate.
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\138\ Bhaduri, B., E. Bright, P. Coleman, and M. Urban. 2007.
LandScan USA: A high resolution geospatial and temporal modeling
approach for population distribution and dynamics. GeoJournal
69:103-117.
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Some commenters were also concerned that the assessment did not
consider direct discharges from surface impoundments to surface water.
This pathway was outside the scope of the assessment, because it is
regulated by the NPDES program. However, this pathway was evaluated in
Environmental Assessment for the Proposed Effluent Limitation
Guidelines and Standards for the Steam Electric Power Generating Point
Source Category,\139\ which will be revised in support of final
effluent limitation guidelines due to be released in September of 2015.
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\139\ U.S. EPA. 2013. Environmental Assessment for the Proposed
Effluent Limitation Guidelines and Standards for the Steam Electric
Power Generating Point Source Category. EPA-821-R-13-003. Office of
Water. Washington, DC. 20460. April.
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2. Comments Related to Source Modeling
COMMENT: The majority of the public commentary in this subcategory
was dominated by the assertion that Toxicity Characteristic Leaching
Procedure (TCLP), Synthetic Precipitation Leaching Procedure (SPLP) and
other laboratory leachate test data are not applicable to CCR wastes.
Comments specifically regarding the use of Leaching Environmental
Assessment Framework (LEAF) data for modeling leaching behavior noted
that the data should be applied appropriately and pointed out the
following: (1) That the range of conditions (i.e., range of pH)
encompassed by the LEAF data is broader than those conditions found in
the field for CCR disposal; (2) high pH limits the mobility of leaching
constituents; (3) the need for validating LEAF leachate concentrations
against field data if available; and (4) the reliability of the LEAF
data is questionable as a result of inconsistencies identified in the
LeachXS LiteTM database.
EPA RESPONSE: Only pore water and impoundment water data were used
to characterize surface impoundments. Therefore, the comments received
on the use of laboratory leachate data are not relevant for the surface
impoundment scenario. For landfills, EPA agrees that TCLP, SPLP and
other single pH test methods may not be the most appropriate leachate
extraction methods for all waste streams and all disposal scenarios.
The 2010 Draft Risk Assessment relied on a hierarchy of dissolved
concentration data to characterize leaching from landfills, ranging in
order of preference from field leachate data to TCLP. However, new data
collected using the LEAF test methods have been made available through
a series of EPA reports.140 141 142 LEAF were collected with
three LEAF methods, specifically:
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\140\ U.S. EPA. 2006. Characterization of Mercury-Enriched Coal
Combustion Residues from Electric Utilities Using Enhanced Sorbents
for Mercury Control. EPA-600/R-06/008. Prepared by F. Sanchez, R.
Keeney, D. Kosson, and R. DeLapp for the U.S. Environmental
Protection Agency, Air Pollution Prevention and Control Division.
February.
\141\ U.S. EPA. 2008. Characterization of Coal Combustion
Residues from Electric Utilities Using Wet Scrubbers for Multi-
Pollutant Control. EPA/600/R-08/077. Prepared by F. Sanchez, D.
Kosson, R. Keeney, R. DeLapp, L. Turner, and P. Kariher for the U.S.
Environmental Protection Agency, Air Pollution Prevention and
Control Division. July.
\142\ U.S. EPA. 2009. Characterization of Coal Combustion
Residues from Electric Utilities--Leaching and Characterization
Data. EPA-600/R-09/151. Office of Research and Development, National
Risk Management Research Laboratory, Research Triangle Park, NC.
December.
---------------------------------------------------------------------------
[ssquf] SW-846 Method 1313 (and its predecessor, Method SR02);
[ssquf] SW-846 Method 1314; and
[ssquf] SW-846 Method 1316 (and its predecessor, Method SR03).\143\
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\143\ Methods SR02 and SR03 are predecessor methods to SW-846
Methods 1313 and 1316.
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With the availability of the LEAF data, EPA no longer relied on
other data sources to model landfills because the inability to identify
trends in leaching behavior from single pH tests made it impossible to
link these data together with the LEAF data in the probabilistic
analysis. The LEAF data provide information on the leaching behavior of
CCR for a range of pH values observed in CCR landfills, as well as the
liquid-to-solid ratio of the pore water. The data from these three
methods were used in conjunction to characterize landfill leaching.
While the natural pH range for any individual sample may be narrower
than the full range analyzed with the LEAF methods, many facilities
burn a range of coal types under varying operating conditions, and co-
dispose with other materials, so the range of pH for a specific CCR
sample may be exposed to is wider than the pH estimated based on one
sample alone.
EPA agrees that appropriate use of the data is needed to ensure
that data represent likely conditions of leaching occurring at range of
facilities nationwide taking into account local specific environmental
conditions, the geometry of monofill, type of coal, air pollution
control, and other factors that affect leaching. Since the NODAs were
released, a report comparing leachate from field and laboratory
analyses has been completed.\144\ The report includes the use of
geochemical speciation modeling as needed to reflect site-
[[Page 21439]]
specific factors affecting leaching, and shows that LEAF methods
provide realistic predictions of environmental releases across the
range of pH.
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\144\ U.S. EPA. 2014. Leaching Test Relationships, Laboratory-
to-Field Comparisons and Recommendations for Leaching Evaluation
using the Leaching Environmental Assessment Framework (LEAF). EPA-
600/R-14/061. EPA Office of Research and Development, National Risk
Management Research Laboratory, Research Triangle Park, NC 27711.
November.
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All three LEAF methods are summarized in appendix C, with the
leachate data provided in Attachment C-5 of the revised risk
assessment. Additionally, the inter-laboratory validation for these
methods are described in U.S. EPA (2012a, b) 145 146 while
Kosson et al. (2002) \147\ provides the detailed test methodology for
the predecessor methods, SR02 and SR03. The noted discrepancies and
classification errors within LeachXS Lite have been corrected.
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\145\ U.S. EPA. 2012. Interlaboratory Validation of the Leaching
Environmental Assessment Framework (LEAF) Method 1314 and Method
1315. EPA/600/R-12/624. Prepared by A.C. Garrabrants, D.S. Kosson,
R. DeLapp, P. Kariher, P.F.A.B. Seignette, H.A. van der Sloot, L.
Stefanski, and M. Baldwin for the U.S. EPA Office of Research and
Development, Air Pollution Control Division. September.
\146\ U.S. EPA. 2012b. Interlaboratory Validation of the
Leaching Environmental Assessment Framework (LEAF) Method 1313 and
Method 1316. EPA/600/R-12/623. Prepared by A.C. Garrabrants, D.S.
Kosson, L. Sefanski, R. DeLapp, P.F.A.B. Seignette, H.A. van der
Sloot, P. Kariher, and M. Baldwin for the U.S. EPA Office of
Research and Development, Air Pollution Control Division. September.
\147\ Kosson, D.S., H.A. van der Sloot, F. Sanchez and A.C.
Garrabrants. 2002. An integrated framework for evaluating leaching
in waste management and utilization of secondary materials.
Environmental Engineering Science 19(3):159-204.
---------------------------------------------------------------------------
COMMENT: Public comments focused on the general relevance of the
facility data based on age and noted that newer data should be used to
more accurately reflect the current state of CCR management. Related
comments cited that the grouping of waste and liner types by facility
is not representative of current conditions. Another commenter
suggested that the outcomes for different liner types were not
comparable and should not be used to make relative conclusions about
liner performance. It was also suggested that the assumed three-foot
clay layer underlying composite liners is too thick, and two feet would
be more representative of current practice. Commenters also described
existing management controls required in some geographical locations
that mitigate potential risks (e.g., liners, leachate collection) and
requested that EPA reflect the existence of those controls in their
analysis, as well as mismanagement scenarios when these controls are
not in place.
EPA RESPONSE: Since the purpose of the risk assessment was to
evaluate risks for the universe of currently operating facilities and
WMUs, EPA generally agrees with the commenter that the 1995 EPRI and
2006 DOE survey data relied on in the 2010 Draft Risk Assessment may be
outdated. Thus, EPA collected data from several new sources of
information on the facilities, WMUs, and liners that are present at the
time of this analysis. Further discussion of these data sources is
available in Section 2 and appendix A of the revised risk assessment.
Regarding the inclusion of mismanagement scenarios, EPA reviewed
the high-end pore water concentrations and determined that these data
represent actual CCR samples and therefore represent possible high-end
risks from current management practices. To better understand which
practices may lead to the highest risks, EPA conducted sensitivity
analyses that consider the influence of liner type, liner design, waste
type and other variables on model results. The results of these
analyses are presented in Section 5 of the revised risk assessment.
Several commenters described existing management controls required
in some geographical locations that mitigate potential risks (e.g.,
liners, leachate collection) and requested that EPA reflect the
existence of those controls in the final risk analysis. The Agency's
analysis reflects the presence of different management scenarios at
WMUs to the extent the available data allowed (e.g., WMUs were assumed
to have liners if the information indicated such). A key objective of
the analysis was to compare the effectiveness of management options
(e.g., liners; surface impoundments versus landfills) at preventing
potential releases and exposures. Because the population of WMUs
considered in the analysis included a range of management controls, the
analysis does provide such comparative results between management
options. The uncertainties associated with the updated facility, WMU
and liner data are discussed in Section 5 of the revised risk
assessment.
COMMENT: One commenter suggested that the risk assessment applied
risk results for fly ash to bottom ash, FGD sludge, and other CCR
wastes, which may result in an incorrect estimate of risks for these
other wastes. Other commenters called for EPA to evaluate each CCR
waste independently. A public commenter expressed concern about whether
the risk assessment adequately considered alternative CCR disposal
scenarios. Specifically, it was noted that CCR codisposed with coal
refuse generate more acidic conditions (i.e., lower pH) due to higher-
levels of sulfide minerals, which may significantly impact the mobility
of metals.
EPA RESPONSE: In the revised risk assessment, EPA modeled a
combined ash waste types for the majority of surface impoundments and
all landfills. Although commenters are correct that different CCR
wastes may behave differently when monofilled, the 2009/2010 EPA survey
data indicates that the CCR are codiposed in a majority of units. Thus,
EPA believes this approach appropriately reflects current disposal
practices.
With regard to the evaluation of CCR codisposed with coal refuse,
EPA notes that the pore water data used to characterize surface
impoundments were broken out separately for this waste type evaluation.
These data reflect samples collected in the field and are
representative of the pH at which these samples are managed. While some
ash and coal refuse samples are highly acidic, others are more neutral
or slightly basic (full pH range of 1.7 to 8.2). The development and
application of these waste types is discussed in Section 3, Section 4
and appendix H of the revised risk assessment, while the associated
uncertainties are discussed in Section 5. For landfills, waste pH,
which is the major driver of variations in Kd values used to
distinguish waste types, was known with great accuracy for CCR
nationwide because U.S. EPA (2009a) \148\ compiled a full, nationwide
distribution of CCR pH. In this distribution, disposal of ash with coal
refuse is reflected is the acidic tail of the distribution. For the
national probabilistic analysis, EPA aggregated model runs for ash and
coal refuse (surface impoundments) and acidic waste (landfills) with
other wastes so that risks reflected the prevalence of these disposal
practices. However, EPA also performed sensitivity analyses to
understand the extent that the lower pH of co-managed wastes could
affect risks, which is discussed in Section 5 of the revised risk
assessment.
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\148\ U.S. EPA. 2009. Characterization of Coal Combustion
Residues from Electric Utilities--Leaching and Characterization
Data. EPA-600/R-09/151. Office of Research and Development, National
Risk Management Research Laboratory, Research Triangle Park, NC.
December.
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COMMENT: Commenters stated that it is unclear why EPA chose to
approximate infiltration through composite liner systems based on leak
detection system flow rates from industrial landfills that use a
different construction design than projected for CCR landfills.
EPA RESPONSE: The composite liner leakage rates used for this risk
assessment correspond to leakage rates developed for the peer-reviewed
Industrial Waste Management
[[Page 21440]]
Evaluation Model (IWEM).\149\ The types of synthetic liners used are
likely to be the same, regardless of the type of waste present. EPA is
unaware of any factors specific to CCR that would exacerbate leakage
rates, nor did the commenter provide any. Thus, in the absence of any
information to the contrary, EPA finds these to be the best available
data.
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\149\ U.S. EPA. 2002. Industrial Waste Management Evaluation
Model (IWEM) Technical Background Document. EPA530-R-02-012. Office
of Solid Waste, Washington, DC. August.
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Because there is currently no approach for differentiating between
flow from unimpacted water released by the consolidation of clay and
from contaminated leakage through the liner, EPA excluded data on the
subset of composite liners constructed with natural clay from the
distribution of composite liner leakage rates. EPA did consider the
potential impact of incorporating these additional data into the risk
assessment as part of sensitivity analysis, presented in Section 5 of
the revised risk assessment.
COMMENT: Concerning the treatment of non-detect values in the risk
assessment, one commenter recognized that the use of one half the
detection limit in calculations has become an accepted protocol.
However, it was suggested that this approach may not be appropriate in
all cases, and that newer or more straightforward methods can be
applied to improve precision and minimize biasing of the dataset.
Another commenter noted that mercury was excluded from the analysis due
to the high number of non-detects.
EPA RESPONSE: Additional constituent data measured with lower
detection limits have been made available to EPA since completion of
the 2010 Draft Risk Assessment. However, the overall CCR constituent
database still contains a large number of non-detect data for some
constituents. EPA continues to incorporate all available with the use
half the reported detection limit as the most appropriate method to
account for these non-detects. The commenter is correct that much of
the pre-2010 mercury data has high detection limits and a large
proportion of non-detects. In this one instance, EPA relied only on the
newer data made available to the Agency since the 2010 Risk Assessment,
which was collected through newer methods with significantly lower
detection limits. A more detailed rationale for this approach is
provided in Section 3 of the revised risk assessment, along with
further discussion of the uncertainty in Section 5.
COMMENT: Comments received related to the effect of waste
compaction in landfills focused on changes to hydrologic properties of
waste materials, such as porosity and hydraulic conductivity. These
changes may result from compaction, consolidation, hydration or
geochemical changes, and have the potential to result in either an
underestimation or overestimation of risks.
EPA RESPONSE: EPA acknowledges that the landfill source model does
not consider the compaction of CCR waste that may occur over time as a
result of anthropogenic activities, gravity or infiltrating water.
However, no data on either the rate or degree to which these processes
may occur were provided by commenters or identified elsewhere. EPA
considered the impacts of this uncertainty in Section 5 of the revised
risk assessment.
COMMENT: Public comments focused on assumptions relating to the
variability of unlined landfill design, landfill clay liner materials,
and construction of landfill cover materials and construction. Specific
comments emphasized that the clay liner and cover thickness assumptions
(three feet) were too conservative and not conservative enough,
respectively. Commenters also questioned why composite covers and
leachate collection systems were not considered for clay-lined
landfills. Additionally, commenters stated that there was a high degree
of variability in the material and design and construction for unlined
landfills that was not accounted for in the HELP modeling. One
commenter also pointed out that the assessment may overestimate
percolation rates from landfills by underestimating the use of
engineering controls. In addition, a commenter stated that the
assessment assumes that States will require liners in all cases which
may not be the case, thereby weakening the regulation.
EPA RESPONSE: For both unlined and clay-lined landfills, EPA used
Hydrologic Evaluation of Landfill Performance (HELP) model-derived
infiltration rates. These infiltration rates assume that the cap placed
on top of the landfill at the end of its useful life will remain intact
for the duration of the risk assessment, up to a maximum 10,000 years
of modeling. A commenter pointed out that hydraulic conductivity of a
clay liner is likely to increase by orders of magnitude due to
desiccation resulting from natural temperature cycles. Additionally,
commenters stated that there was a high degree of variability in the
material and design and construction for unlined landfills that was not
accounted for in the HELP modeling. EPA has adopted the use of the HELP
model, which was subject to both peer and administrative review, as the
source of unlined and clay-lined infiltration rates for landfill for
nearly two decades. EPA acknowledges that there are limitations in
using HELP. However, the model has been tested and verified as
discussed in the EPACMTP Parameter/Data Background Document.\150\ To
the extent that the performance of the cap will decrease over time, EPA
acknowledges that unlined and clay-lined infiltration rates calculated
by HELP may be underestimated, however the degree of that underestimate
is unknown. Discussion of this uncertainty has been added to Section 5
of the revised risk assessment.
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\150\ U.S. EPA. 2003. EPA's Composite Model for Leachate
Migration with Transformation Products (EPACMTP): Parameters/Data
Background Document. EPA 530-R-03-003. Office of Solid Waste,
Washington, DC. April.
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COMMENT: One commenter expressed concern over the fact that the
assessment modeled all disposal sites above the water table. The
commenter indicated that many surface impoundments and landfills are
deep and can come in direct contact with the water table. This will
result in an underestimation of peak concentrations, arrival times and
risks for these WMUs. Furthermore, the commenter emphasized that the
use of the unsaturated zone flow module to calculate infiltration from
the bottom of impoundments underestimates true risks in the
consolidated sediment, and noted that clogged soil layers should be
treated as saturated rather than unsaturated.
EPA RESPONSE: EPA acknowledges that EPACMTP is not designed to
handle scenarios where the water table is above the bottom of the
landfill. However, EPACMTP can accommodate surface impoundments in
direct contact with the water table. If unit geometry and the selected
depth to the water table create a scenario where the bottom of the unit
is in contact with the water table, then the entire soil column is
considered saturated. Otherwise, even for very high infiltration rates,
regions beneath impoundments will remain partially saturated when there
is sufficient distance between the unit and the water table. EPA has
added a discussion of the uncertainties associated with WMU source
terms and EPACMTP in Section 5 of the revised risk assessment.
EPA believes the commenter misunderstood how the sediments were
modeled for surface impoundments. The EPACMTP unsaturated zone
[[Page 21441]]
module assumes that the 0.2 m of consolidated sediments at the bottom
of a surface impoundment are always saturated whereas the 0.5 m of
clogged native soil are assumed to be unsaturated when the bottom of
the surface impoundment is above the water table.
COMMENT: Public commenters recommended that EPA address the future
increase in mercury and NOX compounds levels in CCR that
will result from mercury capture from flue gas under new emission
control regulations. Commentary pointed out that the recent Vanderbilt
study should provide data that could be used to expand the risk
assessment in this area.
EPA RESPONSE: The risk assessment was designed to evaluate the
risks associated with current management practices and, as such, draws
no conclusions about the potential for future air pollution
technologies to alter the composition or leaching behavior of CCR
wastes. However, it has been shown that newer mercury pollution control
technologies currently in place have the potential to affect leaching
behavior.151 152 153 Thus, EPA conducted a sensitivity
analysis to evaluate the risks associated with existing units that
dispose of this waste; however, the data were too few to allow EPA to
draw conclusions about the effect of pollution control technologies on
the risks. This sensitivity analysis is presented in Section 5 of the
revised risk assessment.
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\151\ U.S. EPA. 2006. Characterization of Mercury-Enriched Coal
Combustion Residues from Electric Utilities Using Enhanced Sorbents
for Mercury Control. EPA-600/R-06/008. Prepared by F. Sanchez, R.
Keeney, D. Kosson, and R. DeLapp for the U.S. Environmental
Protection Agency, Air Pollution Prevention and Control Division.
February.
\152\ U.S. EPA. 2008. Characterization of Coal Combustion
Residues from Electric Utilities Using Wet Scrubbers for Multi-
Pollutant Control. EPA/600/R-08/077. Prepared by F. Sanchez, D.
Kosson, R. Keeney, R. DeLapp, L. Turner, and P. Kariher for the U.S.
Environmental Protection Agency, Air Pollution Prevention and
Control Division. July.
\153\ U.S. EPA. 2009. Characterization of Coal Combustion
Residues from Electric Utilities--Leaching and Characterization
Data. EPA-600/R-09/151. Office of Research and Development, National
Risk Management Research Laboratory, Research Triangle Park, NC.
December.
---------------------------------------------------------------------------
COMMENT: Multiple public commenters noted that additional pore
water will improve the risk assessment, but TCLP and SPLP data are not
appropriate for use as source concentrations. Additionally, commenters
stated that EPA applies the LEAF data to pH conditions that are not
realistic to CCR disposal scenarios. Although LEAF provides a more
representative and scientifically sound approach, it must be correctly
adapted. Alternative statistical methods to represent the input data as
a range is certainly feasible and could enhance the risk assessment if
the range of data is used as an input to the risk assessment.
Commenters agree that the LEAF data does provide useful
information, but point out that it is associated with the potential for
leaching and does not represent actual leaching of a specific CCR under
actual field conditions. Commenters argues that field leaching data
should not be mixed with laboratory data, and that EPA's field leachate
dataset (for landfills and impoundments) is not adequate for use in the
CCR risk assessment. Specific efforts recommended to properly utilize
the LEAF data include: Use of probability density functions for
leachate concentrations based on pH and/or L/S ratios in the Monte
Carlo process; selection of leachate concentrations based on pH and L/S
and tied to the geographic location of the WMU and CCR type; and
geochemical modeling to incorporate reactions once leachate impacts
groundwater.
A few commenters pointed out that the pore water data are generally
representative, although concerns were raised about the highest arsenic
concentration (81 mg/L) in the dataset. One commenter believed that
although the addition of new data is an improvement, EPA could greatly
improve the accuracy of the model's results by removing the extreme and
unsubstantiated outlier data driving its high risk cases. Another
commenter believed the assumption that concentration of contaminants in
the sediment pores (applicable to a post closure scenario) would be
equal to the concentration assigned to in the impoundment water would
result in underestimated risks. Additionally, commenters noted that EPA
should classify the data according to CCR type and coal type.
Overall, commenters support updates to the pore water data and the
use of statistical method to normalize the data curve. However, one
commenter noted that EPA should not use commenter-submitted CCR pore
water data unless it meets requisite applicable data quality
requirements. Another commenter stated that EPA needs to provide better
clarity on these solicited comments (on the use of older pore water
data) and provide these documents in the docket. Without these
documents, the reader does not have a complete understanding of co-
managed material containing CCR. Another comment noted that properly
collected field pore water (freely draining) samples should take
priority over any of the laboratory generated data and freely draining
pore water is more representative of leachate releases than tightly
held pore water.
EPA RESPONSE: The use of pore water data is still considered the
most appropriate approach to estimate constituent fluxes to groundwater
for CCR surface impoundments. This is because pore water better
represents the leachate seeping from the bottom of the impoundment than
impoundment water samples. EPA did not use available LEAF data for
surface impoundments because a national distribution of pH was not
available to allow the Agency to probabilistically assign LEAF
concentrations to these units, and because there was no way to account
for partitioning of the leachate into wastewater versus porewater.
Thus, EPA has continued to rely on pore water data, supplemented with
data from the 2010 comments. EPA appreciates commenter support on the
use of pore water data and statistical methods for data analysis for
surface impoundments. EPA agrees that data available for minefill sites
may not be representative of disposal in surface impoundments. Thus,
these data were not considered in the revised risk assessment. The
specific handling of pore water concentration data with site quartiles,
rather than site averages, is discussed in Section 4 and Section 5 of
the revised risk assessment report.
EPA agrees that TCLP and SPLP data are less appropriate for CCR
disposal scenarios and no longer uses these data in the revised risk
assessment. EPA adapted the LEAF methods and data for landfills, as
this is the best available approach and data to represent CCR landfill
leachates, and does not mix or use field data with LEAF laboratory
results for landfill leachate. The LEAF data are considered the most
robust and technically defensible data available. As noted in the 2010
Environmental Science and Technology publication,\154\ the data
represents the largest collection of comprehensive characteristic
leaching data to date.
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\154\ Thorneloe, S., D. Kosson, F. Sanchez, A. Garrabrants, and
G. Helms. 2010. Evaluating the Fate of Metals in Air Pollution
Control Residues from Coal-Fired Power Plants. Environ. Sci.
Technol. 44:7351-7356.
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A commenter noted that the LEAF data provide the potential for
leaching and not actual leaching of a specific CCR under actual field
conditions. The commenter suggests using probability distribution of
key factors affecting leaching behavior [i.e., pH and liquid/solid
ratio (L/S)] and site specific data tied to the geographic location of
the management unit and the type of CCR being managed. In the revised
risk assessment, pH is expressed as a
[[Page 21442]]
national distribution for selecting leachate concentrations developed
to represent CCR nationally, and L/S is considered in estimating
washout leachate concentrations based on field data observations. The
use of the pH distribution developed in U.S. EPA (2009) \155\ does
capture the range of potential variability in pH conditions at CCR
sites nationwide and is the best approach possible given the current
availability of information on site-specific coal ash chemistry.
Although leachate concentrations were selected considering pH and L/S
conditions that are nationally representative, EPA does not have the
detailed and extensive site-specific measurements that would be needed
to tie CCR and leachate concentrations to specific WMU locations.
Instead, EPA adopted a national probabilistic approach that is site-
based and representative of risks to human and ecological health across
the country. The revised risk assessment also provides details
regarding how the LEAF data are used in combination of geographical
specific data such as hydrology, precipitation, fill configuration, CCR
type, pH, L/S ratio, and other factors that take the leaching potential
as an input to fate and transport models accounting for attenuation and
dilution. Additionally, an effort was made to collect CCR samples that
characterize the range and quantity of coal usage in the U.S. along
with likely air pollution control configurations. While the data is not
statistically representative on a site-specific basis, it is adequate
to identify trends in leaching behavior that relate to differences in
materials types, APC technology, and coal rank. Geochemical speciation
modeling was not conducted because the source term as measured and
interpreted is conservative, provided that oxidizing conditions occur.
---------------------------------------------------------------------------
\155\ U.S. EPA. 2009. Characterization of Coal Combustion
Residues from Electric Utilities--Leaching and Characterization
Data. EPA-600/R-09/151. Office of Research and Development, National
Risk Management Research Laboratory, Research Triangle Park, NC.
December.
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Regarding the number and concentration of pore water samples, EPA
reviewed the high-end pore water concentrations and determined that
these represent actual CCR samples that therefore represent possible
high-end risks if CCR is inadequately regulated and managed. EPA
recognizes that more pore water data would potentially improve the
representativeness of the dataset, but is convinced that the current
dataset adequately captures the possible high end risks that are of
most interest in the rulemaking, including risks from the mismanagement
of CCR through codisposal with coal refuse.
The assumption that saturated contaminant concentrations in surface
impoundment sediments are at equilibrium with the impoundment waters is
a conservative assumption that is unlikely to significantly
underestimate risks. This assumption is further discussed in Section 5
of the revised risk assessment report.
Regarding commenter-submitted pore water data, EPA conducted a
review of the additional datasets provided by the commenters with
respect to relevance and data quality. Based on the available
information, EPA determined that the selected datasets were relevant
and acceptable in terms of data quality requirements. However, EPA does
not have sufficient data to distinguish between freely draining and
tightly bound pore water data at this time. Overall, EPA agrees that
the use of these data introduces some uncertainty into the analysis,
which is discussed in Section 5 of the revised risk assessment.
COMMENT: One commenter questioned the assumption that there will be
no net addition of waste into a surface impoundment during and after
the operational life, noting that impoundments are frequently deepened.
Additionally, many surface impoundment wastes are left in place at the
time of closure, so that the waste behaves more as a landfill than a
surface impoundment (and increasingly, with new landfills being
constructed on top of previous surface impoundments). Another commenter
questioned why the conceptual model assumes that impoundments are
always full during their operating life, which overestimates releases
to the subsurface. Additionally, a commenter noted that the assumption
of only 0.2 m of sediment accumulation underestimates the amount of
sedimentation and subsequently overestimates the amount of percolation
to the subsurface. The commenter stated that in actual operation, ash
thickness can increase up to 30 feet or more, eventually filling the
impoundment, which results in a significant decrease in percolation
through the base. Furthermore, the commenter questioned the assumption
that post-closure percolation continues at the same rate as during
active operations.
EPA RESPONSE: Based on the 2009/2010 EPA surveys, it was assumed
that the majority of the surface impoundments are storage impoundments,
which are continuously dredged. Because these facilities have other
units (whether onsite or offsite) established for disposition, it
likely that the majority of waste in the dredged impoundments would be
removed by the end of the unit's operating life. Regardless, an
uncertainty analysis provided in appendix K demonstrates that the risks
during the operating life of surface impoundments are greater because
the higher hydraulic head drives leachate into underlying soils with
greater force than gravity alone post-closure. Therefore, EPA did not
explicitly model the post-closure phase of surface impoundments. The
uncertainties resulting from this decision are discussed in Section 5
of the revised risk assessment.
EPA acknowledges that EPACMTP is restricted to modeling flow as
steady state with the assumption that an impoundment always has a fixed
depth of wastewater. EPA further acknowledges that such an assumption
may overestimate infiltration. The surface impoundment conceptual model
assumes that sediments are periodically dredged and removed and that
the long-term average thickness of the sediment is approximately 0.4 m,
with half of that layer consolidated. EPA has used EPACMTP and its
predecessor model versions for a longstanding time period and it has
undergone multiple rounds of internal and external review. The reviews
associated with EPACMTP and its limitations are further discussed in
Section 5 of the revised risk assessment report.
COMMENT: Public commenters suggested that risks from operating
landfills should be considered along with those that occur post-
closure. These commenters questioned whether greater risks may occur
during site operations when wastes are uncovered and exposed directly
to precipitation. Additional commenters noted that complete leaching of
all constituent mass at a constant concentration is overly
conservative.
EPA RESPONSE: The landfill source model used in this risk
assessment is not able to address landfills during operation because
the non-linear sorption isotherms used require a constant, annualized
infiltration rate throughout the duration of leaching. Instead, the
revised risk assessment assumed that the full footprint of the landfill
is filled to capacity with a cap no less permeable than the soil or
liner underlying the WMU is present at the start of leaching. EPA
acknowledges that this approach introduces some uncertainty into the
analysis, the potential impacts of which are discussed in Section 5 of
the revised risk assessment.
With respect to comments that complete leaching of all constituent
mass is overly conservative, EPA now
[[Page 21443]]
models landfills using leachable mass as discussed in Section 4 and
appendix C of the revised risk assessment. Alternatively, EPA presents
a sensitivity analysis of these results compared with the results
generated using total mass in Section 5.
3. Comments Related to Exposure Scenarios
COMMENT: The commenter emphasized that the risk assessment does not
consider direct discharges to ground and surface water systems other
than groundwater infiltration (e.g., direct injection to groundwater,
point and nonpoint discharges to surface water systems). It was
recommended that EPA consider combining contributions from these
sources with CCR groundwater leaching impacts to calculate the full
load of CCR constituents to groundwater and surface water systems. The
commenter continues by suggesting that the use of liners in
impoundments does not reduce overall hazards if direct discharges are
considered in the risk assessment.
EPA RESPONSE: RCRA waste disposal risk assessments do not address
direct discharges from impoundments to surface waters because they are
regulated as permitted point source discharges under the Clean Water
Act by EPA's Office of Water. Since this pathway is outside the scope
of the risk assessment, the revised risk assessment does not consider
these releases. However, this pathway was evaluated in the
Environmental Assessment for the Proposed Effluent Limitation
Guidelines and Standards for the Steam Electric Power Generating Point
Source Category,\156\ which will be revised in support of final
effluent limitation guidelines (ELG) due to be released in September of
2015. The revised risk assessment was updated to note this fact.
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\156\ U.S. EPA. 2013. Environmental Assessment for the Proposed
Effluent Limitation Guidelines and Standards for the Steam Electric
Power Generating Point Source Category. EPA-821-R-13-003. Office of
Water. Washington, DC 20460. April.
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EPA is not aware of any CCR disposal where waste is directly
injected into groundwater aquifers, and absent any data on this
practice declines to evaluate it.
COMMENT: Public comments were received on the methodology applied
to evaluate exposure to fugitive dust during landfill operations
(before closure). The majority of these comments focused on the
fugitive analysis as presented in Inhalation of Fugitive Dust: A
Screening Assessment of the Risks Posed by Coal Combustion Waste
Landfills,\157\ and EPA's proposed approach for refining the analysis.
Comments received on the initial fugitive dust analysis methodology and
modeling ranged from emphasizing that the approach was overly
conservative in some cases to underestimating risk in other cases.
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\157\ U.S. EPA. 2010. Inhalation of Fugitive Dust: A Screening
Assessment of the Risks Posed by Coal Combustion Waste Landfills.
OSWER. Washington, DC. September.
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Multiple comments were provided on the proposed methodology for
refining the fugitive dust analysis that was applied in the revised
risk assessment. One commenter recommended that 2010/2011 EPA survey
data should be used to refine the fugitive dust analysis for landfills.
Specifically, the current OW data indicate that active portions of the
landfills are significantly smaller than the landfills identified in
the 1995 EPRI survey. Several comments were received that pointed out
that the application of AERSCREEN and AERMOD is appropriate if
representative or realistic inputs are used including meteorological
data, material silt content, source areas for subcells of ash
management units and consideration of common operating and control
practices, which are in some cases defined by the states (e.g.,
Virginia). However, one commenter expressed concern that no previous or
current EPA regulatory model; including SCREEN3, AERSCREEN or AERMOD;
has been rigorously tested and evaluated for performance in modeling
fugitive emissions associated with CCR landfills.
In general, the commenters supported or recommended the use of
appropriate AP-42 factors and other techniques to estimate emissions.
Others noted that consideration of deposition impacts and constituent-
specific modeling is appropriate. One commenter recommended that EPA
should conduct a full-scale assessment that considers fugitive dust as
well as emissions from landfills and emissions of diesel particulate
matter from haul trucks, on-site heavy-duty landfill equipment, and
diesel-powered pumps and generators, with potential receptors of
interest as residents and sensitive subpopulations living near the
power plant, along the transportation route and at the landfill.
Another commenter expressed concern over the lack of metal speciation
data, while another comment concerned gas emissions from the landfills
(e.g., hydrogen sulfide). One final commenter voiced concern that
insufficient information was provided on the modeling approach and the
model inputs to support evaluation and allow comments on the overall
validity or propriety of the suggested modeling.
EPA RESPONSE: The majority of the comments received concerning
exposures during landfill operation (before closure) focused on the
assessment of fugitive dust. EPA acknowledges that the 2010 Draft Risk
Assessment did not evaluate the inhalation pathway, relying instead on
the findings of a previous evaluation, Inhalation of Fugitive Dust: A
Screening Assessment of the Risks Posed by Coal Combustion Waste
Landfills.\158\ This previous evaluation only considered releases from
windblown emissions and the potential to exceed national ambient air
quality standards (NAAQS) for particulate matter.
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\158\ U.S. EPA. 2010. Inhalation of Fugitive Dust: A Screening
Assessment of the Risks Posed by Coal Combustion Waste Landfills.
OSWER. Washington, DC. September.
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Based on the comments received, EPA updated the screening analysis
of fugitive dust. EPA agrees that there are potential risks posed by
fugitive emissions from sources beyond wind and revised the analysis to
consider emissions from a range of activities, such as vehicular
activity, unloading operations and spreading/compacting operations.
Emissions from these sources were calculated using techniques that have
undergone extensive peer-review, including AP-42: Compilation of Air
Pollutant Emission Factors.\159\ Screening level modeling was performed
with a combination of AERSCREEN and AERMOD to estimate dust dispersion
and deposition rates. Model inputs were selected to be representative
of current landfills, environmental settings (e.g., meteorological
conditions) and common dust management practices. Estimated air
concentrations were used to screen acute and chronic health risks from
inhalation, as well as the potential to exceed NAAQS standards.
Furthermore, EPA considered exposures that may result from the offsite
deposition on and accumulation in downgradient media. This was done for
all relevant metal species. In contrast, EPA did not evaluate emissions
of hydrogen sulfide to air as EPA has no data on the extent to which
this constituent is present in CCR or released into the surrounding
environment. Further discussion of this screening analysis is presented
in
[[Page 21444]]
Section 3 and appendix F of the revised risk assessment.
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\159\ U.S. EPA. 1985. Compilation of Air Pollutant Emission
Factors. Volume I: Stationary Point and Area Sources (Fourth
Edition). AP-42. U.S. Environmental Protection Agency, Office of Air
and Radiation and Office of Air Quality Planning and Standards,
Research Triangle Park, NC. September.
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COMMENT: Comments both supported and disagreed with the
appropriateness of a screening analysis to eliminate pathways from
consideration in the full-scale probabilistic analysis. One commenter
pointed out that the EPA conducted a very conservative, but
appropriate, screen to identify constituents to include in the full-
scale probabilistic analysis. Another commenter emphasized that a full-
scale risk assessment should be conducted that assesses exposures
concurrently through all pathways (e.g., including surface pathways
with inhalation exposure) for all chemical constituents. In particular,
they emphasized that inhalation exposures to human carcinogens, such as
hexavalent chromium, as well as noncarcinogens may occur through the
aboveground pathway. Although the commenters disagreed over the use of
a screening approach, both expressed concerns over the use of risk
attenuation factors to scale screening risks to the full-scale risks
for the subset of constituents that did not pass the screen and were
not evaluated under the full scale assessment. Both commenters believe
that this approach ignores the unique fate and transport properties of
the omitted constituents and that the use of a simplistic, attenuation
factor is not an appropriate way to estimate risk.
EPA RESPONSE: By first conducting the screening analysis presented
in Section 3 of the revised risk assessment, EPA was able to focus
available resources on the characterization of risks for exposure
routes and constituents with the greatest potential to pose risks. The
screening analysis conducted for the revised risk assessment considered
all of the potential exposure routes identified in the conceptual
models for surface impoundments and landfills, which included
aboveground exposures to ambient air, soil, sediment, produce, and
animal products. Each exposure pathway was evaluated for all
constituents (and individual species, as appropriate) for which both
concentration and toxicity data were available.
The screening analysis was developed to be protective of highly
exposed individuals. Due to the conservative nature of the screening,
the calculated risks represent a protective, but unlikely, combination
of conditions that most likely reflect an upper bound on potential
exposures for each individual constituent. The revised screening
assessment did not rely on risk attenuation factors to screen out
constituents. All constituents that resulted in screening-level risks
above human health or ecological criteria, and for which
characterization of fate and transport could be refined, were carried
forward for further consideration in the probabilistic analysis,
described in Section 4 of the revised risk assessment. It is possible
that consideration of exposure to multiple constituents through a
single pathway or to the same constituent through multiple pathways may
have resulted in the retention of some additional constituents.
However, it is highly unlikely that these additional constituents would
remain risk drivers once more realistic dilution and attenuation in the
environment is considered.
COMMENT: Multiple commenters noted that there may be additional
constituents present in CCR wastes beyond those quantitatively
evaluated in the risk assessment. In particular, multiple commenters
referenced organics and radionuclides. Some commenters called on EPA to
quantify the risks associated with these additional constituents.
Others claimed that these constituents are present in low levels and do
not pose risk to receptors.
EPA RESPONSE: In the Report to Congress: Wastes from the Combustion
of Fossil Fuels: Volume 2--Methods, Findings, and Recommendations,\160\
EPA reviewed the available data on organic constituents, such as
polyaromatic hydrocarbons and dioxins. These data indicated that
concentrations of all organics are near or below analytical detection
limits both in CCR and in the leachate released from CCR. Based on the
findings of this report, the Agency concluded that organic constituents
were not risk drivers and did not require further evaluation. In the
absence of additional data that demonstrate the organic composition of
CCR wastes have markedly changed, EPA continues to rely on these
findings.
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\160\ U.S. EPA (Environmental Protection Agency). 1999b. Report
to Congress: Wastes from the Combustion of Fossil Fuels: Volume 2--
Methods, Findings, and Recommendations (EPA 530-R-99-010). Office of
Solid Waste and Emergency Response. Washington, DC.
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EPA acknowledges that, like other inorganic constituents,
naturally-occurring radionuclides may be concentrated in CCR waste
through the combustion of coal. However, due to a lack of data that
could be used to characterize leachate concentrations for individual
radionuclides, a quantitative evaluation of risk was not conducted. To
address this data gap, EPA has included radionuclides in the list of
constituents for groundwater monitoring. Furthermore, potential
transport of these constituents downgradient by windblown dust and
storm run-off are addressed through requirements for fugitive dust
controls and run-on/run-off controls.
4. Comments Related to Human Exposure and Toxicity
COMMENT: Some commenters argued that EPA underestimated risks by
not considering combined chemical effects, additive risk and concurrent
exposures through multiple pathways. One commenter indicated that EPA
should conduct a full scale assessment that considers concurrent
exposure from ingestion of fish and groundwater. Commenters also raised
concerns that some chemical constituents share a common mechanism of
toxicity and may affect the same body organ or system, resulting in
greater risks than predicted through the consideration of each
constituent separately.
One commenter noted that the combination of risks from different
constituents would not change the overall results of the risk
assessment. Constituents concentrations found to result in an HQ less
than 1 in the screening analysis are unlikely to make a meaningful
contribution to overall risk regardless of whether multiple compounds
share the same toxicological endpoints. Additionally, the commenter
expressed that it would be inappropriate to add the risks from
different constituents as modeled because the constituents do not all
arrive at a hypothetical receptor at the same time, due to differing
mobility in the subsurface environment.
EPA RESPONSE: EPA acknowledges that this risk assessment considered
potential risks to human health from individual constituents and
individual pathways. EPA acknowledges that not explicitly evaluating
cumulative risk is a source of uncertainty that may result in some
underestimation of risks. It is possible that an individual could be
exposed to risks from drinking contaminated groundwater, as well as
eating contaminated fish from a local surface water body, but it is
unlikely that these two exposure pathways would occur simultaneously
with any appreciable frequency in the real world. It is even more
unlikely that a receptor would be exposed to both media at the high-end
concentrations modeled. Therefore, the magnitude of the uncertainty
introduced into the risk assessment is likely to be small. It is also
possible for an individual to be exposed to multiple constituents
through a single pathway. This is a more likely scenario because, as
demonstrated
[[Page 21445]]
by the available data, CCR typically leach multiple inorganic
constituents. Where exposure to multiple constituents is likely to
occur, EPA policy is to assume that the risks resulting from these
exposures are additive.\161\ The current probabilistic analysis
identified individual constituents above risk criteria. Many of the
other constituents modeled resulted in risks an order of magnitude or
more below risk criteria. Thus, the consideration of additive risk,
even with the high-end risks modeled in this risk assessment, is
unlikely alter the principal results of the probabilistic analysis.
Similarly, because the risks for individual constituents were found to
be above levels of concern, consideration of additive risk is unlikely
to meaningfully change the results of the analysis. EPA updated the
revised risk assessment to include a discussion of the associated
uncertainties in Section 5.
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\161\ U.S. EPA. 2000. Supplementary Guidance for Conducting
Health Risk Assessment of Chemical Mixtures. Risk Assessment Forum,
Washington, DC. August.
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COMMENT: Some commenters identified incorrect and inconsistent
reporting of toxicity benchmark values and recommended conducting a
thorough review of literature to ensure the use of the most current
values were used. One commenter expressed concern over the use of the
current IRIS value for arsenic carcinogenic effects and believes it
underestimates risk. Other commenters emphasized that it would be
inappropriate for EPA to consider using the draft oral cancer slope
factor (CSF) for arsenic and the oral CSF for hexavalent chromium
[chromium (VI)] published by the New Jersey Department of Environmental
Protection (NJDEP). Concerning lead, one commenter supported a peer
reviewer's recommendation to use the Integrated Exposure Uptake
Biokinetic (IEUBK) model to calculate human health risks, especially
for young children. Additionally, a commenter requested chemical-
specific information on toxicity criteria derivation, as well as
information on the relationship between environmental exposures to
specific chemicals and adverse health effects. The commenter emphasized
that this information would provide an uncertainty discussion regarding
toxicity values, facilitate communication with the public, and provide
a balanced perspective on risk.
EPA RESPONSE: Human health benchmarks were chosen based on the
Office of Solid Waste and Emergency Response hierarchy (OSWER Directive
9285.7-53).\162\ EPA reviewed the benchmarks to confirm their accuracy
and determine whether newer values have become available from EPA or
other sources used by EPA since the CCR draft risk assessment was
conducted. The current, updated list of human health benchmarks is
provided in appendix E of the revised risk assessment, and the
references cited in that appendix provide further information on the
potential adverse effects and derivation of toxicity criteria.
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\162\ U.S. EPA. 2003. Human Health Toxicity Values in Superfund
Risk Assessments. Office of Solid Waste and Emergency Response
Directive 9285.7-53. December.
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For lead, EPA used the drinking water maximum contaminant level
(MCL) to estimate risks from drinking water exposure in the draft risk
assessment. In the revised risk assessment EPA continued to rely on the
MCL, but also used IEUBK model for lead in children as described in
Section 5 of the revised risk assessment. While lead failed the
screening assessment, risks from lead exposure in the probabilistic
assessment were well below the risk criterion, and did not drive risks
in either the probabilistic or any sensitivity analyses.
COMMENT: The commenters questioned why the cancer benchmark of 1 x
10-\5\ was selected while the typical range used by OSWER
and EPA guidance is a range from 1 x 10-\4\ to 1 x
10-\6\. The commenters suggested that an explanation is
necessary. In particular, one commenter requests clarification on the
phrase ``point of departure'' when supporting the use of the cancer
benchmark of 1 x 10-\5\. Concerning non-cancer criteria, a
commenter suggested that non-cancer risks should be report as follows:
Worst Case--Assume maximum exposure scenarios including exposure 24-
hours/day, 365 days/year for 70 years; High End--95th percentile based
on national human activity pattern distributions; Central Tendency--
50th percentile (or median) risk based on national human activity
pattern distributions. Furthermore, another commenter believed that it
is more appropriate to consider 95th percentiles, rather than 90th
percentile, of exposure and risk estimates for humans and ecological
receptors.
EPA RESPONSE: The rationale for the selected cancer and non-cancer
risk criteria, based on Agency policy, is discussed in Section 2 of the
revised risk assessment. A citation to the where ``point of departure''
was originally defined is provided for reference. The rationale for use
of 90th percentile risk generated by a Monte Carlo simulation is
discussed in Section 4 of the revised risk assessment.
COMMENT: Commenters questioned the evaluation of only the
reasonable maximum exposure scenario. Specifically, it was noted that
the receptor placement downgradient of an unlined management unit does
not represent the entire population exposure distribution. One
commenter suggested that EPA clearly define the exposed population of
interest.
EPA RESPONSE: In risk assessments used to develop regulations under
RCRA, EPA has historically assessed potential risks resulting from a
reasonable maximum exposure (RME) scenario in order to ensure that the
resulting regulation is adequately protective of human health without
being excessively conservative. The types of data necessary to define
the exact population that relied on groundwater wells as a source of
drinking water or consumes fish from impacted water bodies are not
available. EPA believes that consideration of RME is a reasonable and
protective alternative, given the available data. Uncertainties
associated with the revised risk assessment are further discussed in
Section 5 of the revised risk assessment.
COMMENT: The commenters questioned the use of data from the 1997
Exposure Factors Handbook in the development of intake rate
distributions for various exposures, because more current data are
currently available. Commenters recommended that EPA make updates to
these parameters using more current sources of information, including
the recently released 2011 Exposure Factors Handbook.\163\ In addition,
some commenters pointed out the potential for the available exposure
factor data to underestimate or overestimate exposures. One commenter
noted that the risk assessment did not fully account for the dependence
of input variables (e.g., the interdependence of body weight and water
ingestion rates for children and link between the rate of fish consumed
from a water body). Another commenter suggested that a sensitivity
analysis of human health exposure factors be conducted to add to the
sensitivity analysis conducted by EPA in 2009.
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\163\ U.S. EPA. 2011. Exposure Factors Handbook: 2011 Edition.
EPA/600/R-090/052F. National Center for Environmental Assessment,
Office of Research and Development, Washington, DC. September.
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Regarding fish consumption rates, commenters questioned the
representativeness of a fixed fish consumption rate drawn from a single
[[Page 21446]]
study. It was suggested for transparency that the risk assessment
provide the results of the chi-square tests to demonstrate how well the
fish consumption rate data fit a log normal distribution. Additionally,
it was suggested that fish consumption rates should be determined from
other studies and more robust data sets. One commenter suggested the
incorporation of fish consumption rates representative of subsistence
fishers, such as Native American populations that harvest and consume
fish as part of their native traditions and culture.
Regarding drinking water ingestion rates, one commenter voiced
concern about the assumption that groundwater is the source of all
drinking water. The commenter indicated that this is an overly
conservative and atypical assumption, as a majority of individuals will
consume liquids from other sources (e.g., milk, juice, sodas, bottled
water, sports and energy drinks).
EPA RESPONSE: This revised risk assessment relied on both the 1997
Exposure Factors Handbook (EFH) \164\ and the 2008 Child-Specific
Exposure Factors Handbook (CSEFH) \165\ for information on human
exposure factors for the U.S. population. The 2011 Exposure Factors
Handbook \166\ has been completed and updates some of the data from the
1997 EFH. During the finalization of this risk assessment, EPA released
OSWER Directive 9200.1-120.\167\ Although this document provides
default exposure factors to use for point estimates, EPA is still in
the process of updating the full distributions necessary for
probabilistic analysis. Therefore, this risk assessment does not
incorporate the data from the 2011 EFH.
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\164\ U.S. EPA. 1997. Exposure Factors Handbook, Volume III,
Activity Factors. EPA/600/P-95/002Fa. Office of Research and
Development, Washington, DC. August.
\165\ U.S. EPA. 2008. Child-Specific Exposure Factors Handbook.
EPA/600/R-06-096F. National Center for Environmental Assessment,
Cincinnati, OH.
\166\ U.S. EPA. 2011. Exposure Factors Handbook: 2011 Edition.
EPA/600/R-090/052F. National Center for Environmental Assessment,
Office of Research and Development, Washington, DC. September.
\167\ U.S. EPA. 2014. Human Health Evaluation Manual,
Supplemental Guidance: Update of Standard Default Exposure Factors.
OSWER Directive 9200.1-120. February.
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Exposure data used for the fish ingestion rates are described in
appendix D of the revised risk assessment. Data on site-specific fish
consumption rates were not available for use in this analysis. Instead,
the full distribution of fish consumption rates were drawn from a study
of adult anglers from Maine that fished from streams, rivers, and
ponds. Because age-specific data for children were not available, all
child cohorts were assumed to consume fish at the same rate as the
adult cohort. Data on fish ingestion rates for Native American
subsistence fishers are currently limited and can vary widely
geographically, to the point that the 2011 EFH makes no recommendation
for representative values. EPA acknowledges that these issues introduce
uncertainty into the analysis, which are further discussed in Section 5
of the revised risk assessment.
COMMENT: Commenters emphasized the need to update exposure factors
for childhood exposures and recommended that updates include data from
the 2011 EFH. One commenter stated that the risk assessment
appropriately considered the potential fish exposures for children.
However, they pointed out that the fish consumption rates for children
should be lower than those applied for adults. Another commenter
suggested that the risk assessment should provide a clear description
of how the exposure duration of child cohorts were used in the risk
calculations. Specifically, the commenter questioned whether exposure
durations were truncated at the end of each age cohort or aged through
the different cohorts.
EPA RESPONSE: The revised risk assessment makes use of the 1997 EFH
\168\ and the 2008 CSEFH \169\ for information on human exposure
factors for the U.S. population. Although, as discussed in the preamble
sections above, the revised risk assessment does not incorporate data
from the recent 2011 EFH,\170\ all child data included in this document
was derived from the 2008 EFH. In addition to child ingestion of
drinking water, EPA's evaluation has been revised to also account for
infant exposures that may occur from formula mixed with contaminated
groundwater. These data are presented in appendix D of the revised risk
assessment. Consistent with the commenter's recommendation for cohort
aging, the risk assessment aged receptors through each age cohort using
age-specific data for exposure factors and physical characteristics
that were weighted proportionally by the corresponding time period and
then summed. Specific discussion of truncation values is provided in
later in this preamble.
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\168\ U.S. EPA. 1997. Exposure Factors Handbook, Volume III,
Activity Factors. EPA/600/P-95/002Fa. Office of Research and
Development, Washington, DC. August.
\169\ U.S. EPA. 2008. Child-Specific Exposure Factors Handbook.
EPA/600/R-06-096F. National Center for Environmental Assessment,
Cincinnati, OH.
\170\ U.S. EPA. 2011. Exposure Factors Handbook: 2011 Edition.
EPA/600/R-090/052F. National Center for Environmental Assessment,
Office of Research and Development, Washington, DC. September.
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COMMENT: Public commenters recommended updating BCF values with
more current references. One commenter questioned why bioconcentration
factors were zero for some constituents that are essential nutrients
(i.e., cobalt and copper). Another commenter voiced concern that EPA
had not fully considered the appropriateness of using BCFs to describe
metals bioaccumulation, suggesting that current science (including EPA
guidance documents) indicates that BCFs are poor predictors of tissue
metal concentrations due to wide variation in uptake patterns governed
by several chemical and biological factors. Another commenter
recommended the use of an approach that would be more robust than the
single BCF approach, establishing and applying distributions of BCFs.
This commenter also recommended that the assessment adhere to the EPA
policy of using dissolved metals in the calculating the
bioconcentration of metals in fish, or should provide the rationale for
using a different approach.
EPA RESPONSE: EPA recognizes that the use of BCFs may not represent
the most current approaches available to estimate metal bioaccumulation
at individual sites, where fish tissue data can be collected. However,
as noted by public commenters, BCFs are useful in a screening-level
assessment and EPA believes they are also appropriate for a national-
level risk assessment, where site-specific data are not available and
collection of site-specific data is not viable.
In some cases, insufficient data to determine a BCF value meant
that these constituents could not be quantitatively evaluated for this
pathway. Regarding the concern expressed with respect to zero BCF
values, the commenter did not provide alternative BCFs that EPA could
consider for the constituents at issue. Additionally, EPA agrees that,
given the latest scientific information, distributions of BAFs/BCFs may
be better than single BAFs/BCFs because they account for changes in
bioaccumulation/bioconcentration at different water concentrations. EPA
is working to develop BAF/BCF distributions for several CCR pollutants
of concern but does not yet have a robust enough dataset for use for
the final CCR Rule. In lieu of this, EPA is proceeding with the single
BAF/BCF approach for the current analysis. EPA does recognize this
issue as a limitation for the BCF calculations and considers it as an
uncertainty in the risk
[[Page 21447]]
characterization. Overall, EPA agrees that the use of this older data
introduces some uncertainty into the analysis. These uncertainties are
discussed in greater detail in Section 5 of the revised risk
assessment.
With the exception of mercury, EPA evaluated bioconcentration based
on water column concentrations that include contributions from
dissolved and solid phases because available BCFs represent
contributions from both. Because a BAF based only on dissolved-phase
concentrations was available for mercury, EPA evaluated this
constituent using only dissolved concentrations. Applying this
conservative approach for most constituents ensured protection of human
health. Even with this conservative assumption, the 90th percentile
risks for the probabilistic analysis (Section 4) did not exceed risk
criteria for the fish ingestion pathway. Therefore, this approach is
unlikely to have affected the principal findings of the risk
assessment.
For the revised risk assessment, EPA reviewed the available
literature and identified BCFs for additional constituents that
previously had no values. As noted in appendix G of the revised risk
assessment, the following source hierarchy was used for fish BCFs:
Primary literature: These are generally papers focused on
a single chemical 171 172 173 174 or may contain data on
multiple chemicals.175 176
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\171\ Eisler, R. 1989. Molybdenum Hazards to Fish, Wildlife, and
Invertebrates: A Synoptic Review. Contaminant Hazard Reviews, Report
No. 19, Biological Report 85(1.19). Laurel, MD. August.
\172\ Kumada, H., et al. 1973. Acute and chronic toxicity,
uptake and retention of cadmium in freshwater organisms. Bull.
Freshwater Fish. Res. Lab. 22: 157
\173\ Lemly AD. 1985. Toxicology of selenium in a freshwater
reservoir: implications for environmental hazard evaluation and
safety. Ecotoxicology and Environmental Safety. 10(3): 314-338.
\174\ Murphy, B.R., G.J. Atchison, and A.W. McIntosh. 1978.
Cadmium and zinc in muscle of bluegill (Lepomis macrochirus) and
largemouth bass (Micropterus salmoides) from an industrially
contaminated lake. Environmental Pollution 17:253-257.
\175\ Barrows ME, Petrocelli SR, Macek KJ, Carroll JJ. 1980.
Bioconcentration and elimination of selected water pollutants by
bluegill sunfish (Lepomis macrochirus). In: Haque R, ed. Dynamics,
exposure and hazard assessment of toxic chemicals. Ann Arbor,
Michigan, U.S.A.: American Chemical Society. p. 379-392.
\176\ Stephan, C.E. 1993. Derivation of Proposed Human Health
and Wildlife Bioaccumulation Factors for the Great Lakes Initiative.
Draft. Environmental Research Laboratory, Office of Research and
Development, U.S. Environmental Protection Agency, Duluth, MN.
March.
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U.S. EPA databases/publications: These included ECOTOX
\177\ and the Mercury Report to Congress.\178\
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\177\ U.S. EPA (Environmental Protection Agency). 2009b. ECOTOX
User Guide: ECOTOXicology Database System. Version 4.0. Available
online at www.epa.gov/ecotox/.
\178\ U.S. EPA (Environmental Protection Agency). 1997d. Mercury
Study Report to Congress. Volume III--Fate and Transport of Mercury
in the Environment. EPA 452/R-97/005. Office of Air Quality Planning
and Standards and Office of Research and Development, Washington,
DC.
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Other government agency resources: These included ATSDR
Toxicological Profiles \179\ and the Hazardous Substances Data
Bank.\180\
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\179\ ATSDR (Agency for Toxic Substances and Disease Registry).
2008. Minimal Risk Levels (MRLs) for Hazardous Substances. Available
at www.atsdr.cdc.gov/mrls.html.
\180\ U.S. NLM (National Library of Medicine). 2011. Hazardous
Substances Data Bank (HSDB). Available online at:
toxnet.nlm.nih.gov/cgi-bin/sis/htmlgen?HSDB.
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EPA also finds that the references provided by commenters provided
primarily phytotoxicity and accumulation data for terrestrial plants,
and were therefore not relevant to EPA's explicit solicitation on
whether the bioconcentration factors drawn from Baes et al. (1984)
should be considered in the final risk assessment.\181\
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\181\ Baes, C.F., III, R.D. Sharp, A.L. Sjoreen, and R.W. Shor.
1984. A Review and Analysis of Parameters for Assessing Transport of
Environmentally Released Radionuclides Through Agriculture. ORNL-
5786. Oak Ridge National Laboratory, Oak Ridge, TN. September.
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5. Comments Related to Ecological Exposure and Toxicity
COMMENT: Public commenters emphasized the potential importance of
cumulative ecological risk, whereby an ecological receptor may be
exposed to multiple constituents and/or pathways concurrently. For
example, amphibians may be subject to both dermal and ingestion
exposure. Public commenters noted that ecological risks were
underestimated because the following scenarios were not considered for
ecological receptors: Aboveground pathways, contaminant transport to
nearby uncontaminated environments, and the inclusion of field data in
the analysis.
EPA RESPONSE: EPA acknowledges that cumulative effects can be
important for ecological receptors. However, just as EPA did not
consider cumulative human health risks from exposures to groundwater
(discussed in the previous sections of this preamble), they were not
modeled for ecological receptors. In the national, probabilistic
analysis (Section 4 of the revised risk assessment), risks for all
constituents fell below the ecological criteria. Even the sum of
modeled risks for all constituents fell below the ecological criteria.
In sensitivity analyses (Section 5 of the revised risk assessment),
which considered different subsets of national disposal practices that
may drive risks, boron and cadmium were the two constituents found to
result in risks above ecological criteria. To the extent that
cumulative exposures were not evaluated, EPA acknowledges that
ecological risk could be underestimated to some degree. However, these
uncertainties are unlikely to affect the principal findings of the risk
assessment. In addition, EPA also notes that all surface water risks
are orders of magnitude lower than the risks resulting from direct
discharges modeled in U.S. EPA (2013).\182\
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\182\ U.S. EPA. 2013. Environmental Assessment for the Proposed
Effluent Limitation Guidelines and Standards for the Steam Electric
Power Generating Point Source Category. EPA-821-R-13-003. Office of
Water. Washington, DC 20460. April.
---------------------------------------------------------------------------
In contrast to the surface water and sediment exposures, ecological
risks for individual constituents were appreciably above risk criteria
for direct exposure to impoundment wastewater. As a result, it is clear
that CCR disposal in surface impoundments have the potential to pose
risk to ecological receptors, even without consideration of cumulative
exposures.
COMMENT: Public commenters stated that the risk assessment does not
consider sensitive habitats or species. Commenters requested additional
consideration of threatened and endangered species and the inclusion of
ecological field data.
EPA RESPONSE: EPA did not evaluate these sensitive habitats and
sensitive/endangered ecological receptors because these are inherently
site-specific issues for which data on potential impacts are often not
available and can be difficult to quantify, even on a site-specific
basis. EPA acknowledges that the inability to quantitatively evaluate
the potential for these adverse effects represents a source of
uncertainty. Discussion of these uncertainties is presented in Section
5 of the revised risk assessment.
COMMENT: Public commenters were concerned that a more conservative
approach was needed to derive the ecological benchmarks. Multiple
commenters also stated that the use of risk attenuation factors to
scale the screening risks to full-scale risks was inappropriate.
Several commenters noted that the ecological boron benchmark used for
surface water exposures contained incorrect units based on an incorrect
transcription in the peer-reviewed article. Another commenter noted
that the ecological
[[Page 21448]]
cadmium benchmark used for direct contact with surface water was
incorrect.
EPA RESPONSE: Ecological benchmarks were obtained for CCR
constituents when available and compared with the modeled media
concentrations (e.g., surface water, sediment) to estimate the HQs used
to characterize ecological risk. These benchmarks represent the best
available estimates of receptor responses based ``no effects'' (NOAEL)
or ``lowest effects'' (LOAEL) study data. In some scenarios, these
benchmarks may represent species not actually present in the field. In
others, these benchmarks may not capture the most sensitive possible
receptor at every site or for each constituent. While some benchmarks
have factors of safety included to account for these or other
uncertainties, there remains the potential for these ecological
benchmarks to underestimate risks for the specific species and
communities that live in surface waters impacted by CCR WMUs. The
magnitude of this uncertainty is unknown. Consideration of any
additional sensitive species not captured by the current benchmarks may
result in some additional constituents above risk criteria in the
probabilistic analysis. EPA notes that ecological risks to some of
these additional sensitive receptors may be reflected in damage cases.
However, this site-specific uncertainty is unlikely to affect the
national conclusions of the risk assessment.
Regarding incorrect benchmark values, an updated boron benchmark
was used in the revised risk assessment. The units in the fish study
from which the previous SCV was derived \183\ had been erroneously
transcribed in Suter and Tsao (1996) \184\ as [micro]g/L instead of mg/
L. The updated SCV was recalculated using the corrected units. The
revised value has been corroborated with the authors. Additionally, a
continuous criteria concentration (CCC) was used for the cadmium
surface water benchmark in the revised risk assessment, replacing the
previous value. The updated values are presented in appendix E of the
revised risk assessment report.
---------------------------------------------------------------------------
\183\ Hamilton, S.J. 1995. Hazard assessment of inorganics to
three endangered fish in the Green River, Utah. Ecotoxicol Environ
Saf 30:134-142.
\184\ Suter, G.W., and C.L. Tsao. 1996. Toxicological Benchmarks
for Screening Potential Contaminants of Concern for Effects on
Aquatic Biota: 1996 Revision. U.S. Department of Energy, Oak Ridge
National Laboratory, Oak Ridge, TN. June.
---------------------------------------------------------------------------
6. Comments Related to the Monte Carlo Analysis Approach
COMMENT: While some public commenters stated that the human health
probability distributions appeared appropriate, others expressed
concern regarding a conservative bias in input parameter probability
distributions used and the resulting potential for overestimation of
risks. These commenters noted that the ideal approach would be to
estimate the actual risk and associated uncertainty rather than
weighting the results conservatively.
EPA RESPONSE: The revised risk assessment conducted a full-scale,
probabilistic Monte Carlo analysis to quantify human and ecological
risks. EPA agrees it would be ideal to produce best estimates of actual
risk. All input data distributions (e.g., aquifer data, soil type, WMU
data, climate data, distance to groundwater wells, distance to surface
water bodies, constituent concentrations, water flow data, human
exposure factors) were developed in line with this objective. However,
these distributions were developed from available data and are subject
to the limitations of these data. In cases where data were not
sufficient to fully characterize the input distribution, conservative
values and assumptions were used to fill data gaps to remain protective
of human health and the environment. Further discussion of these
uncertainties has been added to Section 5 of the revised risk
assessment.
COMMENT: Public commenters pointed out that the risk assessment
does not formally differentiate variability from uncertainty or show
confidence limits for risk results, which makes it challenging to
identify opportunities to reduce uncertainty. One commenter requested
that EPA discuss the implications of the relatively wide risk
distributions, including the reasons why some risk distributions are
larger than others based on the Monte Carlo results.
EPA RESPONSE: EPA acknowledges it would be ideal to separate
variability from uncertainty when possible in a probabilistic risk
assessment. EPA was able to reduce a substantial number of the
uncertainties in the revised risk assessment through the acquisition of
additional data on facilities, environmental parameters, and
constituent concentrations. Variability and uncertainty are still
comingled in a large number of cases due to remaining data gaps;
however, EPA conducted multiple sensitivity analyses to determine the
potential for different inputs to affect risk results. Additional
discussion of the differences between parameter variability, data
uncertainty, and model error, as well as discussions of the sensitivity
and uncertainty analyses, is presented in Section 5 of the revised risk
assessment.
EPA disagrees that there are wide risk distributions. While the
commenter correctly points to other risk assessments that had closer
central tendency and high-end results, those were either site-specific
assessments or involved no fate or transport modeling. National-scale
risk assessments will necessarily have wider variability in their
results compared to risk assessments that are specific to a single
site. Thus, the ``wider'' risk distributions simply reflect the fact
that different sites with different CCR can have very disparate impacts
on human health and the environment.
7. Miscellaneous Comments
COMMENT: Some commenters stated that the documentation is
incomplete and that an independent reviewer could not reproduce the
analysis. Another commenter performed an independent review and cancer
risk estimate and noted that the EPA used a reasonable approach for
calculating cancer cases in the risk assessment.
EPA RESPONSE: EPA acknowledges that the documentation of the inputs
and intermediate outputs could have been more transparent for the 2010
Draft Risk Assessment. In the revised risk assessment, many of the
inputs EPA used are directly discernible from the appendices. A summary
of the data available in each appendix is presented in Section 1 of the
revised risk assessment. EPA also acknowledges that the additions and
discussions of inputs in the document were not sufficient for complete
duplication of the results. Thus, the input and output files for the
draft risk assessment were made available in the docket of the proposed
rule via an FTP site,\185\ and final input and output files are being
placed in the docket for the final rule.
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\185\ Available online at: ftp://ftp.epa.gov/coal-combustion-residues.
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COMMENT: Commenters requested improvement on the graphical
presentation of risk results. Additionally, commenters requested
further explanation of the minimum and maximum truncating values, as
truncated values may reduce risk estimates.
EPA RESPONSE: While EPA did not provide a graphical presentation of
the risk results, this information is more clearly discernible from the
full input and output files. For discussion of the
[[Page 21449]]
full inputs and outputs files, see the responses in the preamble
section above. With regard to truncation, EPA no longer manually
truncates input distributions for the human exposure factors. Instead,
exposure factor distributions in the revised risk assessment were
generated with the @Risk software (Palisade Co., Newfield, NY),\186\ as
described in appendix D. EPA has also added further discussion of the
cohorts to revised risk assessment, with tables comparing each cohort's
risk presented in Section 5 of the revised risk assessment.
---------------------------------------------------------------------------
\186\ Available online at: www.palisade.com/risk/.
---------------------------------------------------------------------------
COMMENT: Commenters requested more complete documentation of the
sensitivity analysis. Other comments included a request to add human
health exposure factor variables to the sensitivity analysis, and to
conduct additional sensitivity analyses on different topics (e.g., well
distance distribution).
EPA RESPONSE: EPA acknowledges the omission of the original
sensitivity analysis from the docket. EPA updated the sensitivity
analysis \187\ so that it clearly describes the methodology that
underlies the results summarized in Section 5 of the revised risk
assessment. This sensitivity analysis was placed in the docket for the
proposed rule.
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\187\ U.S. EPA. 2009. Sensitivity Analysis for the Coal
Combustion Waste Risk Assessment. Draft Technical Report. Prepared
by RTI International for U.S. EPA, Office of Solid Waste,
Washington, DC.
---------------------------------------------------------------------------
Human health exposure factor variables were not evaluated in the
sensitivity analysis. Human exposure factor variables have well-
established, peer-reviewed, national distributions that are regularly
used in probabilistic risk analyses conducted by EPA based on Agency
policy. Therefore, the contribution of variability in the exposure
factors to the variability in risk was not particularly useful for
understanding the aspects of CCR disposal practices that may drive
risk. Additional sensitivity analyses such as leachate duration versus
leachable content and liner performance by thickness were conducted in
the revised risk assessment and are summarized in Section 5.
B. Summary of Risk Assessment and Results
1. Problem Formulation
EPA first developed conceptual models to illustrate a general
layout of surface impoundments and landfills, the chemical constituents
that may be released from these WMUs, the routes through which these
constituents may migrate through environmental media, and the types of
exposures that may result. These conceptual models were used as the
basis for all subsequent data collection efforts. EPA first collected
data on the coal-fired power plants and CCR WMUs located across the
United States. EPA then collected regional and national data to
characterize the environment and receptor population surrounding each
WMU. The data assembled represent the most current and comprehensive
information available to the Agency at the time this risk assessment
was conducted. Using the data collected, EPA first conducted a
simplified hazard identification to determine which constituents
warranted further evaluation. At this stage, EPA considered the
presence of a constituent in CCR waste, combined with the availability
of at least one toxicity benchmark, sufficient evidence of hazard
potential. Table 1 presents a summary of the different chemical
constituents retained as constituents of potential concern (COPCs) for
further analysis.
Table 1--List of Chemical Constituents Evaluated in the CCR Risk
Assessment
------------------------------------------------------------------------
-------------------------------------------------------------------------
Aluminum
Ammonia
Antimony
Arsenic
Barium
Beryllium
Boron
Cadmium
Calcium
Chloride
Chromium
Cobalt
Copper
Fluoride
Iron
Lanthanum
Lead
Lithium
Magnesium
Manganese
Mercury
Molybdenum
Nickel
Nitrate/Nitrite
Selenium
Silicon
Silver
Sodium
Strontium
Sulfate
Sulfide
Thallium
Uranium
Vanadium
Zinc
------------------------------------------------------------------------
All risks identified in subsequent analyses were compared against
risk criteria of cancer risk greater than 1 x 10-\5\ or a
noncancer hazard quotient (HQ) greater than 1. EPA typically relies on
a risk range to determine the point at which regulation is appropriate.
EPA uses as an initial cancer risk ``level of concern'' a calculated
risk level of 1 x 10-\5\ (one in one hundred thousand) or an
HQ above 1.0 for any noncarcinogens. For example, waste streams for
which the calculated high-end individual cancer-risk level is 1 x
10-\5\ or higher generally are considered candidates for
regulation. Waste streams whose risks are calculated to be 1 x
10-\4\ or higher generally will be considered to pose a
substantial present or potential hazard to human health and the
environment and generally will be regulated. Waste streams for which
these risks are calculated to be 1 x 10-\6\ or lower, and
lower than 1.0 HQs or EQs for any noncarcinogens, generally will be
considered not to pose a substantial present or potential hazard to
human health and the environment and generally will not regulated. See
59 FR 66075-66077, December 22, 1994.
2. Screening Analysis
EPA conducted separate screening analyses for each exposure pathway
to identify which COPCs are most likely to pose risk to receptors. The
results of this screening generally do not provide a precise
characterization of individual risks that may occur, but rather
identify those COPCs that are most likely to exceed risk criteria. In
cases where well established, post-construction management practices
(``controls'') have been shown to minimize releases from WMUs, EPA
considered exposures for both an uncontrolled and controlled management
scenario.
This screening analysis identified potential risks to human and
ecological receptors resulting from the releases of particulate matter
and the chemical constituents contained therein through wind and run-
off. Under an uncontrolled management scenario, risks to human
receptors resulted from the inhalation of windblown particulates in
ambient air and the ingestion of soil and animal products (i.e., meat
and dairy), while risks to ecological receptors resulted from exposures
to soil and sediment. Under a controlled management scenario, which
consisted of fugitive dust controls and run-on/run-off controls, all
risks associated with these exposure pathways decreased to below the
criteria. Due to the conservative nature of the screening, there is a
great deal of uncertainty surrounding the specific risks calculated for
these exposure pathways. These risks represent a protective, but
unlikely, combination of conditions that reflect at least an upper
[[Page 21450]]
bound on potential exposures. Thus, the cumulative effect of these
uncertainties results in an overestimation of nationwide risks to most
or all receptors. Therefore, EPA makes no direct findings concerning
the magnitude of the risks that may occur under either an uncontrolled
or controlled management scenario, but concludes with a high degree of
confidence that the reductions achievable with standard management
practices are sufficient to be protective even under this conservative
screening assessment. Based on these lines of evidence, EPA concluded
that no further characterization was warranted for these exposure
pathways.
These screening analyses identified potential risks to human and
ecological receptors from leaching of chemical constituents from CCR
waste into surrounding environmental media. Risks to human health
resulted from ingestion of groundwater and fish, while risks to
ecological receptors resulted from exposure to surface water. There was
no simple method to estimate the effect controls may have for these
pathways. However, considerable dilution and attenuation may occur
before COPCs reach downgradient private wells and surface water bodies.
Therefore, EPA retained all of the COPCs found to be above risk
criteria in groundwater and surface water for further characterization.
In addition, EPA used the uncontrolled screening results for the above
ground sediment pathway as a conservative proxy for the groundwater to
surface water sediment pathway. As a result, sediment exposures of four
COPCs were retained for further characterization. Table 2 presents a
summary of the chemical constituents retained as COPCs for each
pathway.
Table 2--List of Chemical Constituents Retained for Probabilistic Analysis
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Human health Ecological
----------------------------------------------------------------------------------------------------------------
Ingestion of groundwater Ingestion of fish Surface water exposure Sediment exposure
----------------------------------------------------------------------------------------------------------------
Antimony Arsenic Aluminum Antimony
Arsenic Cadmium Arsenic Arsenic
Boron Mercury Barium Silver
Cadmium Selenium Beryllium Vanadium
Cobalt Thallium Boron .......................
Fluoride ........................ Cadmium .......................
Lead ........................ Chloride .......................
Lithium ........................ Chromium .......................
Molybdenum ........................ Cobalt .......................
Thallium ........................ Copper .......................
........................ Iron .......................
........................ Lead .......................
........................ Molybdenum .......................
........................ Nickel .......................
........................ Selenium .......................
........................ Silver .......................
........................ Vanadium .......................
........................ Zinc .......................
----------------------------------------------------------------------------------------------------------------
These screening analyses also identified potential risks to
ecological receptors from direct exposure to impoundment wastewater.
Unlike the other exposure pathways, no dilution or attenuation will
occur within impoundment wastewater prior to ecological exposures.
Thus, the direct exposures considered in the screening analysis provide
a reasonable estimate of the relative magnitude of risks. Based on the
screening analyses, EPA concluded that HQs for ecological receptors
exceeded 1 for the following constituents (listed from highest to
lowest potential): Arsenic (100), barium (50), aluminum (30), boron
(30), selenium (20), cadmium (10), vanadium (10), beryllium (2),
chloride (2) and chromium (2). Because the screening analysis provides
sufficient characterization of these exposures, this pathway was not
carried forward for further analysis.
3. Probabilistic Analysis
EPA conducted a national-scale, probabilistic analysis to better
characterize the potential risks to human and ecological receptors
associated with leachate released from surface impoundments and
landfills. The specific exposure routes evaluated for these releases
were human ingestion of groundwater used as a source of drinking water
and fish caught from freshwater lakes or streams, as well as ecological
contact with and ingestion of surface water and sediment. A combination
of models was used to predict COPC fate and transport through the
environment, receptor exposures, and the resulting risks. Site-specific
data were used, supplemented by regional and national data sets, to
capture the national variability of disposal practices, environmental
conditions and receptor behavior. EPA modeled risks for both highly
exposed individuals (90th percentile risks) and more moderately exposed
individuals (50th percentile risks). In instances where the speciation
of a COPC has been shown to greatly affect fate and transport, EPA
modeled multiple species to provide a bounding on potential exposures.
Table 3 shows the 90th percentile human health risks to the most
sensitive age cohorts for constituents that exceeded the risk criteria.
Risks are presented for arsenic modeled entirely as two different
species (III and V) to provide a bounding on potential risks. Values
that exceed the selected risk criteria are shown in bold. No 90th
percentile risks above ecological criteria were identified for either
surface impoundment or landfills. No 50th percentile risks above human
health or ecological criteria were identified for either surface
impoundment or landfills.
[[Page 21451]]
Table 3--90th Percentile Nationwide Probabilistic Risk Results
------------------------------------------------------------------------
Ingestion of groundwater
----------------------------
COPC Surface
impoundments Landfills
------------------------------------------------------------------------
Cancer Risks
------------------------------------------------------------------------
Arsenic III................................ 2 x 10 4 5 x 10 6
Arsenic V.................................. 1 x 10 5 7 x 10 8
------------------------------------------------------------------------
Noncancer Risks
------------------------------------------------------------------------
Arsenic III................................ 5 0.1
Arsenic V.................................. 0.4 <0.01
Lithium.................................... 2 (a)
Molybdenum................................. 2 <0.01
------------------------------------------------------------------------
\a\ Leachate data were not available to model this COPC for landfills.
Surface Impoundments:
Ingestion of groundwater was the only exposure pathway that
resulted in risks above 1 x 10-5. 90th percentile cancer
risks above 1 x 10-5 were identified for arsenic III (2 x
10-4). The 90th percentile noncancer risks above an HQ of 1
were identified for arsenic III (5), lithium (2), and molybdenum (2).
Landfills:
All 90th percentile cancer and non-cancer risks were below human
health criteria.
High-end risks identified for surface impoundments are consistently
higher than those for landfills. These results are attributed to the
higher infiltration rates through surface impoundments, which are
driven by the hydraulic head of the ponded water. Median risks for both
surface impoundments and landfills were substantially lower than both
the high-end risks in this risk assessment and the median risks modeled
in the 2010 Risk Assessment. This decrease is attributed primarily to
the interception of groundwater by surface water bodies, which is
accounted for in the revised risk assessment to provide a more accurate
mass balance of constituent mass during transport. It is common for
coal-fired utilities to be located near water bodies, which are used as
a source of cooling water and conveyance of waste. As a result, in the
majority of model iterations, the interception of groundwater by
surface water bodies resulted in negligible downstream well
concentrations.
Based on the results of the probabilistic analysis, EPA concludes
that leaching from CCR waste management units has the potential to pose
risk to receptors. Arsenic, lithium, and molybdenum are the chemical
constituents found to pose the greatest risks from surface
impoundments, while arsenic posed the greatest risks from landfills.
Available toxicological profiles indicate that risks from arsenic
ingestion are linked to an increased likelihood of cancer in the skin,
liver, bladder and lungs, as well as nausea, vomiting, abnormal heart
rhythm, and damage to blood vessels; \188\ risks from lithium ingestion
are linked to neurological and psychiatric effects, decreased thyroid
function, renal effects, cardiovascular effects, skin eruptions, and
gastrointestinal effects; \189\ and risks from molybdenum ingestion are
linked to higher levels of uric acid in the blood, gout-like symptoms,
and anemia.\190\
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\188\ Profile for arsenic available online at: www.epa.gov/iris/subst/0278.htm and www.atsdr.cdc.gov/toxprofiles/tp2.pdf.
\189\ Profile for lithium available online at: hhpprtv.ornl.gov/issue_papers/Lithium.pdf.
\190\ Profile for molybdenum available online at: www.epa.gov/iris/subst/0425.htm.
---------------------------------------------------------------------------
4. Sensitivity and Uncertainty Analysis
The modeled probabilistic risks capture the range of current,
nationwide CCR disposal practices. However, because of the broad scope
of the analysis, there are a number of sources of variability and
uncertainty present. Therefore, to confirm the results of the
probabilistic analysis and to better understand whether any particular
subset of disposal practices drives the risks identified, EPA conducted
additional sensitivity and uncertainty analyses.
EPA reviewed the models used, as well as the data and assumptions
input into these models, to better understand the sources of
variability and uncertainty inherent in the probabilistic analysis. The
Agency then qualitatively and, to the extent possible, quantitatively
analyzed these sources to understand the potential effects each may
have on the modeled risk results. During this review, specific
attention was focused on the parameters shown to have the greatest
influence on model results. As a further method of validation, EPA
compared the results of the sensitivity and uncertainty analyses with
proven and potential damage cases. Together these analyses and
comparisons show that there is a high degree of confidence in the
principal findings of the probabilistic analysis. However, the review
of sensitive parameters revealed some specific disposal practices that
may result in greater risks than identified in the probabilistic
modeling.
Through these additional sensitivity and uncertainty analyses,
which explored different subsets of national disposal practices, EPA
identified the potential for higher risks than those identified in the
broader, national analysis. In particular, consideration of different
waste pH values showed higher risks for arsenic at more acidic and
basic pH values, as well as additional risks for boron, cobalt,
fluoride and mercury at these more extreme pH values. Consideration of
specific liner types showed that groundwater risks are driven by
disposal in unlined units and, in particular, unlined surface
impoundments. For these units, EPA identified higher risks for arsenic,
lithium, and molybdenum, as well as additional risks for thallium.
Clay-lined units were found to pose lower risks than unlined units.
Composite-lined units were found to be the most protective disposal
practice, resulting in risks far below all criteria identified in this
risk assessment.
C. Conclusions
Based on the analyses presented in this document, EPA concludes
that current management practice of placing CCR waste in surface
impoundments and landfills poses risks to human health and the
environment within the range that OSWER typically regulates. On a
national scale, surface impoundments presented higher risks than
landfills. Risks to ecological receptors were identified from exposures
to aluminum, arsenic, barium, beryllium, boron, cadmium, chloride,
chromium, selenium and vanadium through direct exposure to impoundment
wastewater. Risks to residential receptors were identified primarily
from exposures to arsenic, lithium, and molybdenum in groundwater used
as a source of drinking water, but additional risks from boron,
cadmium, cobalt, fluoride, mercury and thallium were identified for
specific subsets of national disposal practices.
Sensitivity analyses on liner type indicate that disposal of CCR
wastes in unlined surface impoundments and landfills presents the
greatest risks to human health and the environment. As modeled, the
national risks from clay-lined units are lower than those for unlined
units, but such units can exceed risk criteria at individual sites.
Composite liners were the only liner type modeled that effectively
reduced risks from all pathways and constituents far below human health
and ecological criteria in every sensitivity analysis conducted.
Sensitivity analyses on waste type indicate that the acidic conditions
that result from codisposal of CCR waste with coal refuse and the basic
conditions that result from disposal of FGD waste result in higher
[[Page 21452]]
risks from arsenic and other constituents than CCR waste disposed
alone.
The risk results are consistent with the groundwater damage cases
compiled by EPA. These damage cases were primarily associated with
unlined units and were most frequently associated with releases of
arsenic. Recent surveys of the industry indicate the majority of newly
constructed units are lined, and that that the practice of codisposal
with coal refuse has declined. However, this risk assessment presents a
static snapshot of current disposal practices. While newer units may be
managed in a more protective manner, older units, which still comprise
the majority of current units, continue to operate in a manner that
poses risks to human health and the environment that OSWER typically
regulates.
XI. Summary of Damage Cases
EPA has a long history of considering damage cases in its
regulatory decisions under RCRA. As discussed earlier in this preamble,
the statute specifically directs EPA to consider ``documented cases in
which danger to human health and the environment from surface run-off
or leachate has been proved,'' in reaching its Regulatory Determination
for these wastes, demonstrating that such information is to carry great
weight in decisions under this section. 42 U.S.C. 6982(n)(4). Damage
cases, even if only potential damage cases, are also relevant under the
third Bevill factor: ``potential danger, if any, to human health and
the environment from the disposal and reuse of such materials.'' 42
U.S.C. 6982(n)(4). In addition, damage cases are among the criteria EPA
must consider under its regulations for determining whether to list a
waste as a ``hazardous waste.'' See 40 CFR 261.11(a)(3)(ix). Damage
cases generally provide extremely potent evidence in hazardous waste
listings. In this regard, EPA notes that the number of damage cases
collected for this rulemaking (157) is by far the largest number of
documented cases in the history of the RCRA program.
EPA considers that both proven and potential damage cases provide
information directly relevant to this rulemaking. First, damage cases
provide evidence of both the extent and nature of the potential risks
to human health and the environment. The primary difference between a
proven and a potential damage case is whether the contamination has
migrated off-site of the facility. But the mere fact that groundwater
contamination has not yet migrated off-site does not change the fact
that a potentially harmful constituent has leached from the unit into
groundwater. Whether the constituent ultimately causes further damage
by migrating into drinking water wells does not diminish the
significance of the environmental damage caused to the groundwater
under the site, even where it is only a future source of drinking
water. As EPA explained in the preamble to the original 1979 open
dumping criteria, which are currently applicable to these facilities,
EPA is concerned with groundwater contamination even if the aquifer is
not currently used as a source of drinking water. Sources of drinking
water are finite, and future users' interests must also be protected.
(See 44 FR 53445-53448.) (``The Act and its legislative history clearly
reflect Congressional intent that protection of groundwater is to be a
prime concern of the criterion. . . . EPA believes that solid waste
activities should not be allowed to contaminate underground drinking
water sources to exceed established drinking water standards. Future
users of the aquifer will not be protected unless such an approach is
taken.'')
In the June 21, 2010 proposed rule, EPA presented for public
comment an assessment of CCR damage cases, and requested comments and
other information related to damage cases EPA had previously received
from industry, environmental groups, and citizen groups. EPA later
requested public comment on additional damage case information in a
Notice of Data Availability (NODA) published in the Federal Register on
October 12, 2011 (76 FR 63252). As discussed in Section IV of this
preamble, the Agency is deferring making a Bevill determination;
however, EPA is still presenting its findings with regard to damage
cases (including information submitted during the comment periods for
the June 2010 proposal and the October 2011 NODA) because as described
above, this information supports actions taken in the present final
rule.\191\
---------------------------------------------------------------------------
\191\ Damage Case Compendium (Technical Support Document on
Damage Cases), U.S. EPA, December 2014.
---------------------------------------------------------------------------
A. Damage Cases Presented in June 21, 2010 Proposed Rule
In the June 2010 proposed rule, the Agency summarized its database
on damage cases that had expanded since the May 2000 Regulatory
Determination.\192\ This summary included two cases of CCR slurry spill
caused by surface impoundment dike failures (the 2005 Martins Creek,
Pennsylvania, and the 2008 TVA Kingston, Tennessee), and two cases
involving structural fill (the use, between 1995-2007, of CCR in the
reclamation of two sand and gravel pits in Gambrills, Maryland; and for
contouring the Battlefield Golf Course, in Chesapeake, Virginia, in the
early 2000s). In the June 2010 proposed rule, the Battlefield Golf
Course site was designated as a potential damage case, whereas the
other three sites were designated as proven damage cases.\193\
---------------------------------------------------------------------------
\192\ See June 21, 2010 Federal Register--Appendix to the
Preamble: Documented Damages from CCR Management Practices (75 FR
35230).
\193\ See 75 FR at 35131 for definitions of ``proven'' and
``potential'' damage cases.
---------------------------------------------------------------------------
B. Additional Information and Studies
Shortly prior to the publication of the June 2010 proposed rule and
immediately thereafter, several stakeholder groups provided the Agency
with new information on damage cases. In November 2009, the Electric
Power Research Institute (EPRI) issued a two-volume draft report \194\
analyzing the 24 proven and 43 potential damage cases established in
EPA's 2007 damage case report \195\ accompanying the August 2007 Notice
of Data Availability (NODA).\196\ EPRI claimed that in the great
majority of damage cases there is no record of primary MCL contaminants
migrating off-site that would justify designating them as proven damage
cases. EPRI also disagreed with several ecologic damage cases that had
been predicated on fish advisories in Texas, on the grounds that the
selenium toxicity standard that triggered these fish advisories was
later revised by the state, and subsequently the fish advisories were
rescinded. In February and August 2010, The Environmental Integrity
Project (EIP), jointly with other citizen groups, issued two reports,
identifying 70 alleged damage cases.197 198 Fifty of these
cases were submitted to EPA for the first time.
---------------------------------------------------------------------------
\194\ Evaluations of CCP Damage Cases: These two volumes were
finalized in July and September 2010, respectively: http://my.epri.com/portal/server.pt?open=512&objID=413&&PageID=230509&mode=2&cached=true.
\195\ Coal Combustion Waste Damage Case Assessments, July 9,
2007. EPA-HQ-RCRA-2006-0796-0015.
\196\ Notice of Data Availability on the Disposal of Coal
Combustion Wastes in Landfills and Surface Impoundments, 72 FR
49714, August 29, 2007.
\197\ In Harm's Way: Lack of Federal Coal Ash Regulations
Endangers Americans and Their Environment. Environmental Integrity
Project, Earthjustice, and Sierra Club: http://www.environmentalintegrity.org/news_reports/08_26_10.php.
\198\ Out of Control: Mounting Damages from Coal Ash Waste
Sites. Environmental Integrity Project and EarthJustice: http://www.environmentalintegrity.org/news_reports/news_02_24_10.php.
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[[Page 21453]]
In response to EPRI's report, EPA reassessed the 24 proven damage
cases identified in EPA's 2007 Damage Case report, as well as three
additional proven damage cases cited in the proposed rule. In addition,
in response to EIP's reports, the Agency assessed the 70 alleged damage
cases, to independently confirm the allegations in the report. In
reviewing \199\ these alleged damage cases, EPA took a number of
measures. First, to the extent the information was available, EPA
consulted tabulated monitoring well data to validate the exceedance
data presented in comments; and studied well- and waste-unit location
maps, geohydrologic studies, and groundwater potentiometric maps to
validate both whether the wells were up-gradient or down-gradient wells
and instances of groundwater mounding. EPA also contacted state
regulators to confirm the reports' claims of contamination,
particularly contamination exceeding state or federal water quality
standards, and conducted internet research (focusing on state
regulatory information) pertaining to the sites in question. EPA also
thoroughly assessed state comments submitted to EPA in response to the
June 2010 proposed rule and the October 2011 NODA. Third, EPA
identified state or federal administrative measures applied to
utilities (e.g., consent orders, notices of violation, penalties for
non-compliance, etc.) and/or legal motions (e.g., law-suits, motions
for injunctive relief, and out-of-court settlements) filed by the
states or citizen groups in order to identify any instances of non-
compliance by the utilities that have resulted in documented impacts to
water resources.
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\199\ See Assessment of Previously Identified Proven Damage and
Recently Alleged Damage Cases, October 2010.
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EPA's review confirmed that 13 of the 27 damage cases previously
designated as proven did meet the criteria used by EPA for identifying
proven damage cases; however, EPA also found that six of the 27 cases
only meet the criteria for a potential damage case, while the remaining
eight cases were altogether rejected (i.e., EPA determined that a
damage case has not occurred, and/or test of proof criteria were not
satisfied, and/or CCR was not the only or predominant waste component).
Regarding the 70 alleged damage cases in the two EIP reports, EPA
concluded that ten of them qualify as proven damage cases, 45 as
potential damage cases, and the remainder were either rejected or, due
to the lack of adequate information, defined as indeterminate.
In November 2011, the Utility Solid Waste Activities Group (USWAG)
submitted to the docket of the October 2011 NODA a critical review of
EIP's 70 alleged damage cases from 2010. USWAG's review concluded that
``the overwhelming majority of the allegations regarding the 70 sites .
. . fail to provide the requisite `test of proof' documentation
necessary for EPA to characterize virtually any of the sites as proven
damage cases.'' Also, in November 2011 EIP submitted to the docket of
the October 2011 NODA a report alleging 20 new damage cases.\200\
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\200\ EPA-HQ-RCRA-2011-0392-0259. Nineteen of the cases involve
groundwater impact, and one involves soil contaminated by the
placement of coal ash and clinkers from train engine boilers for
railroad tracks bed. A hard copy of the report, Risky Business: Coal
Ash Threatens America's Groundwater Resources at 19 More Sites, was
issued on December 12, 2011.
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Following review of the comments on the proposed rule and the
October 2011 NODA, EPA has revisited some of its earlier damage case
findings. Our post-proposal studies have resulted in: (1) Rejection of
17 of the previously-established and newly-alleged damage cases, either
due to inappropriate scope (e.g., oil combustion waste, non-utility
CCR, or CCR disposed-off in abandoned coal mine pits), co-mingling with
non-CCR waste, or inadequate information to ascertain that contaminants
are derived from CCR; (2) two of the damage cases that had been
previously designated as `rejected' in EPA's 2007 damage case report
were re-categorized as proven damage cases and six others were re-
categorized as potential damage cases; and (3) one damage case site
reported in Risky Business occurred next to a site that had already
been previously reported.
In summary, at the present time the Agency has established 40
proven and 113 potential damage cases. In addition, the rulemaking
docket contains four additional, state-endorsed damage cases from
Wisconsin. While EPA has insufficiently-detailed information (including
the extent, if any, that the contaminants have migrated off site) to
designate these four additional sites as potential or proven, because
the state has identified them to us as damage cases, we have included
them in our overall total of 157.
C. Stakeholder Comments on Damage Cases
All of the comments submitted by stakeholders to the dockets of the
proposed rule and the October 2011 NODA, as well as EPA's responses,
are included in the Technical Support Document to CCR Damage Cases
which is available in the RCRA docket supporting this rule. The
following is a summary of the salient comments submitted by the various
stakeholder groups.
1. Utility Industry's Comments
EPA received several comments from utilities arguing that an
incident should not be considered to be a ``damage case'' if the
environmental damage has been addressed or is no longer occurring and/
or if the State Director is satisfied that no further action is
required. (Note: For those damage cases known to the Agency prior to
EIP's 2010 reports, remediation is completed or underway at all sites
where remediation was known to be required.) These commenters also
argued that EPA should disregard cases in which there are no downstream
contaminant receptors to be harmed by the contamination. These
commenters also alleged that only ``proven'' damage cases should be
considered to be relevant as only these are ``documented cases in which
danger to human health or the environment from surface runoff or
leachate has been proved,'' 42 U.S.C. 6982(n)(4).
Industry commenters also made a number of other points. They stated
that most damage cases occurred in older facilities commissioned before
current state landfill regulations were promulgated, where most waste
units lack liners and leachate collection systems, and that in most
cases, exceedances of state or federal water quality standards were
contained on site, and these exceedances are mostly for constituents
(e.g., sulfate and boron) that do not have federal, health-based
drinking water quality standards. These commenters also claimed that
the number of proven damage cases is very sparse: Of the 24 proven
damage cases in EPA's 2007 report,\201\ they argued that only three had
documented off-site groundwater exceedances of health-based MCLs that
can be attributed to CCR impacts. They also claimed that of the 70
alleged damage cases in EIP's 2010 reports (In Harm's Way and Out of
Control), 64 did not meet EPA's ``test of proof'' criteria for
characterizing the site as a proven damage case. For the remaining six
sites, where the allegations on their face arguably met EPA's
definition of a proven damage case, these commenters claimed that these
cases should be discounted because they involved sites that are either
no longer active or where the damages had been already remediated
[[Page 21454]]
or are undergoing remediation with federal/state oversight. These
commenters also said that 12 of the 70 EIP-alleged damage cases were
previously addressed in EPA's 2007 Damage Case report, and of these,
five sites had been rejected by the EPA due to lack of evidence of
damage or lack of evidence of damage uniquely associated with CCR, and
seven sites had been characterized as indeterminate due to insufficient
information. According to these commenters, no new information
regarding these 12 sites was contained in the two EIP reports that
warrants their designation as proven damage cases.\202\
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\201\ Coal Combustion Waste Damage Case Assessments, ibid.
\202\ EPA-HQ-RCRA-2011-0392-0211, ibid.
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2. Individual State Comments
EPA also received a significant number of comments from individual
states. In their comments, many of the states addressed selected damage
cases that occurred within their jurisdiction, subject to their
authority. Several states agreed with EPA's assessment of the damage
cases; for instance, Wisconsin and Michigan complimented EPA's database
of damage cases. Other commenters agreed with some of the newly alleged
damage cases' reports of groundwater contamination exceeding regulatory
standards, but disagreed with EIP's conclusions that enforcement was
inadequate, tardy, or absent. According to some state commenters,
enforcement was not necessary or appropriate in those instances. For
example, some states (e.g., North Carolina, Oklahoma, Tennessee, and
Florida) argued that the contamination did not pose public health risks
because the contaminants were confined to state-established Compliance
Boundaries (known also as Groundwater Mixing Zones) \203\ and/or
because there was no evidence the contamination had migrated off-site.
Several other states (e.g., Maryland, Virginia, and Texas) confirmed
EPA's established damage cases as well as some of the newly alleged
damage cases, but claimed that these cases were associated with
presently outdated practices, and that regulatory requirements have
since been revised to prohibit such practices. Two states (South Dakota
and Pennsylvania) confirmed that contamination above federal or state
regulatory standards had occurred, but attributed the contaminant(s) to
sources other than CCR units, e.g., coal mining pits associated with
coal refuse; and/or nearby, up-gradient unlined MSWLFs, cooling water
evaporation ponds, or natural background soil compositions. For certain
cases, the states explained that required assessment monitoring was
still ongoing to establish the source, scope, and extent of the
contamination, and so had reached no conclusions about the specific
allegations (North Carolina, North Dakota, and Tennessee). Finally Ohio
acknowledged that the extent of groundwater contamination risk within
the state is poorly-documented due to the scarcity of monitoring wells
down gradient from unlined disposal units.
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\203\ A Zone of Discharge or Zone of Mixing is a three
dimensional region containing groundwater being managed to mitigate
impairment caused by the release of contaminants from a waste
disposal site; by definition, it is inside the detection boundary
area, hence it is exempt from compliance with MCL and SMCL standards
(e.g., in Florida, Illinois, South Carolina, Tennessee, North
Carolina, and Pennsylvania).
---------------------------------------------------------------------------
3. State Association Comments
The Association of State and Territorial Solid Waste Management
Officials (ASTSWMO) argued that the 24 proven damage cases reported in
EPA's 2007 Damage Case report do not reflect current land disposal
practices, and so are irrelevant to the proposed rule. For example,
disposal ``units'' involved in several damage cases included five sand
and gravel pits, two quarries, and one lake impoundment. ASTSWMO
commented that half of these sites began operating in 1970 or earlier,
including at least six sites that began operating in the early 1950s.
ASTSWMO claimed that much of the information cited in the two EIP 2010
alleged damage case reports is incomplete, incorrect and/or misleading.
For example, their comments alleged that EIP failed to provide
pertinent information on specific monitoring wells, sample/analytical
dates, and hydrogeological data. ASTSWMO also claimed that many of the
assumptions about groundwater flow were based on a topographic maps
rather than on potentiometric maps that are based on subsurface
groundwater flow data. They also claim that data in state files
contradicted claims in the reports, and that EIP's reports contained
numerous technical errors, such as reporting values for naturally
occurring constituents as contamination, reported data without
distinguishing between down-gradient and up-gradient wells, ignoring
the potential contribution from sources other than CCR-related units
(e.g., coal mining legacy), and claims that information provided by
state program staff was misconstrued/misrepresented.
4. Citizens Group Comments
Citizen groups generally argued that the fact that damage has
occurred should be part of the weight of evidence documenting the
potential for harm at all CCR disposal sites, without regard to whether
the damage cases were categorized as ``proven'' or ``potential.'' These
commenters also raised a number of arguments in direct response to the
comments provided by the utilities and the states. For example, these
commenters argued that the presence of downstream receptors is a valid
factor to consider when setting priorities for mitigating damage, but
does not justify allowing contamination to migrate off of the disposal
site. These commenters claimed that about one-fifth of EPA's damage
cases preceding the 2010 EIP reports show evidence of contamination of
private and public drinking water wells. In addition, these commenters
allege that state regulatory agencies have done little to respond to
contamination from CCR disposal sites, and, even in those cases where
action has been taken, rarely is any action taken beyond assessment
monitoring. According to these commenters, off-site monitoring has only
occurred at a limited number of sites, and mostly such monitoring was
performed voluntarily by the utilities and was not reported to state
regulators. These commenters also claimed that although less than half
of EPA's damage cases preceding the 2010 EIP reports involve active
landfills, almost three-quarters of the newly alleged damage cases
(EIP's 2010 reports) involve active landfills. They further alleged
that a large majority of EPA's surface impoundment damage cases
preceding the 2010 EIP reports are active sites, indicating that the
absence of liners is contributing to the contamination problems. They
noted that one quarter of the damage cases in EIP's 2010 reports
involved units with liners, indicating that the mere presence of any
liner provides no assurance that migration of contaminated groundwater
from a waste unit is not occurring. Overall, they claimed that surface
impoundments remain ``woefully unregulated'' when compared to
landfills. Over one third of EIP's alleged groundwater damage cases
show migration of contamination off-site. Also, a quarter of EPA's
damage cases preceding the 2010 EIP reports involve contamination of
surface water, and 15 percent of these damage cases show ecologic
damage. Finally, these commenters note that several of the Secondary
Contaminant Maximum Levels (SMCLs) constituents still might
[[Page 21455]]
cause harm to recipients residing next to CCR disposal sites.\204\
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\204\ Examples include boron's One-Day and Ten-Day Health
Advisory (3.0 mg/L) and the Longer Term Health Advisory (2.0 mg/L)
levels for children; manganese's Long Term Health Advisory (LTHA:
0.3 mg/L) level; and sulfate's Drinking Water Advisory (DWA: 500 mg/
L) level in groundwater have been exceeded each in between over 60
and close to 80 of both the alleged and damage case sites and those
sites preceding the 2010 EIP reports.
---------------------------------------------------------------------------
D. Response to Key Stakeholder Comments
In many instances EPA did not have access to information that would
either substantiate or refute the claims in EIP's reports. In many
instances public commenters submitted information that clarifies,
rebuts or otherwise calls into question some of the allegations
contained in the various damage case reports. For example, there are
instances in which claims were made that a contaminant plume had
migrated offsite even though there were no offsite monitoring wells to
confirm the claim. Due to the dearth of groundwater monitoring on
facilities' boundaries (or beyond) EPA could not identify offsite plume
migration for most sites, except in the rare instances drinking water
wells had been contaminated. Consequently, only 10 of the 70 alleged
cases submitted by EIP in 2010 were designated as proven damage cases.
In addition, factual errors were identified in certain instances;
for example, certain allegations of groundwater contamination were
based on surface water standards (rather than groundwater standards).
Corrections or updated facts are reflected in EPA's damage case
assessment. Nevertheless, EPA was able to validate a significant number
of EIP's claims; for example, as of 2011, EPA was able to confirm that
a significant portion of the damage cases in EIPs 2010 report involved
both landfills and surface impoundments, most of which involved units
with either no liner or a substandard liner system. And for many of
EIP's damage cases, EPA was able to confirm sufficient details to
classify them as potential damage cases.
However, EPA disagrees with most of the arguments minimizing the
significance of the damage case record. First, cases where
contamination has been remediated remain relevant to this rulemaking.
EPA is relying on the damage cases to evaluate the extent and nature of
the risks associated with particular CCR management practices. Facts
demonstrating the consequences from particular activities therefore
remain relevant, particularly (although not solely) where the
management practices continue to occur. In other words, what matters in
this regard are facts that provide information on the reasons that unit
leaked, the particular contaminants that were present, the levels of
those contaminants, and the nature of any impacts caused by that
contamination. None of these facts are affected by whether the damage
is ultimately mitigated or remedied. This is entirely consistent with
RCRA section 8002(n), which requires EPA to evaluate the ``potential
danger, if any, to human health and the environment from the disposal
and reuse of such materials'' in addition to ``documented'' damage
cases. 42 U.S.C. 6982(n)(3)-(4). Accordingly, the fact that any
contamination has subsequently been remediated is not a basis for
disregarding a damage case. Moreover, EPA is not relying on these
damage cases to evaluate the adequacy of state programs, although it
may ultimately provide information relevant to such findings. Therefore
the adequacy of the state's response, or the lack thereof, is also not
relevant to whether particular damage cases are appropriately
considered as part of this rulemaking.
EPA also disagrees that only the presence of receptors within the
impact sphere of a contaminating facility merits consideration of a
particular damage case. EPA's longstanding and consistent policy across
numerous regulatory programs has been that groundwater contamination is
a significant concern that merits regulatory action in its own right,
whether or not the aquifer is not currently used as a source of
drinking water. Sources of drinking water are finite, and future users'
interests must also be protected. The absence of current receptors is
therefore also not an appropriate basis on which to discount damage
cases. And for all of the reasons discussed above, EPA also disagrees
that only exceedances of health-based standards of contaminants that
have migrated off-site (i.e., only proven damage cases) should be
accounted for as part of this rulemaking.
The Agency also disagrees with the claims that the number of damage
cases is ``sparse,'' the majority of which involve only ``outdated CCR
management practices'' in older facilities, and therefore are not
relevant to determining the current risks from CCR mismanagement. Even
assuming that only ``proven'' damage cases were relevant, to date, EPA
has confirmed a total of 40 proven damage cases, which is hardly
``sparse.'' And when ``potential'' damage cases are considered, the
totals rise to 157; this is the largest number of damage cases in the
history of the RCRA program. Further, these numbers likely
underestimate the true number of cases in which CCR units are
contaminating groundwater. In reality, the damage case record
represents only a subset of those CCR waste units that have effective
groundwater monitoring. As discussed in Unit IV.A of this document, a
significant portion of CCR surface impoundments still lack groundwater
monitoring, and only approximately 80% of the recently commissioned
impoundments (i.e., since about 1994) have groundwater monitoring.
In addition, under many state programs existing impoundments are
exempt from groundwater monitoring and once monitoring is put in place,
new damage cases quickly emerge. This is illustrated by two lines of
evidence: First, in the wake of the 2008 TVA Kingston CCR spill two
states required utilities for the first time to install groundwater
monitoring. Illinois required facilities to install groundwater
monitoring down gradient from their surface impoundments. As a result,
within only about two years, Illinois detected seven new instances of
primary MCL exceedances and five additional instances with exceedances
of SMCLs. The data for all twelve sites were gathered from onsite; it
appears none of these facilities had been required to monitor
groundwater off-site, so whether the contamination had migrated off-
site is currently unknown.\205\ Similarly, North Caroline required
facilities to install additional down gradient wells. In January 2012,
officials from the North Carolina Department of Environment and Natural
Resources disclosed that elevated levels of metals have been found in
groundwater near surface impoundments at all of the State's 14 coal-
fired power plants.\206\
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\205\ See EIP's December 2011 Risky Business: Coal ash Threatens
America's Groundwater Resources at 19 More Sites, docket document
EPA-HQ-RCRA-2011-0392-0259, appendix A3.
www.environmentalintegrity.org/.../121311EIPThirdDamageReport.pdf
and Illinois EPA's Ash Impoundment Strategy Progress Reports,
February 10 and October 2011, accessed Online July 15, 2014: http://www.epa.state.il.us/water/groundwater/publications/ash-impoundment-progress.pdf and http://www.epa.state.il.us/water/ash-impoundment/documents/ash-impoundment-progress-102511.pdf.
\206\ Groundwater Monitoring Data for Coal Ash Ponds, NC DENR:
http://portal.ncdenr.org/web/wq/hot-topics/coalashregulation/gwatermonitoring. Accessed Online July 15, 2014.
---------------------------------------------------------------------------
Second, states with effective programs for groundwater monitoring
tend to have a larger record of damage cases (e.g., Wisconsin,
nationally ranked as the 32nd CCR disposer in 2011, has 14 damage
cases) as compared to states with less stringent groundwater
[[Page 21456]]
monitoring requirements (e.g., Texas, nationally ranked as the second
largest CCR disposer in 2011, has only three confirmed, potential
damage case).
Nor is it accurate that the majority of these damage cases involve
older units that no longer reflect current management practices or
state requirements. The commenters point to the fact that the majority
of cases involve units constructed before current state landfill
regulations were promulgated, and thus lack liners and leachate
collection systems. EPA agrees that the majority of cases do involve
such units, but this hardly reflects ``outdated'' or irrelevant
management practices. As discussed in Unit IV.A of this document, the
majority of CCR continues to be managed in older (i.e., constructed
pre-1994) units that lack liners and leachate collection systems, and
will in fact continue to be managed in such units for at least the near
future.
Approximately six percent of the waste units associated with
groundwater impacts have been constructed from 1990 onwards.
Considering there is a lag time between the construction of many of the
disposal units and the first detection of their groundwater impact by
subsequently installed groundwater monitoring wells, the absence of
damage cases associated with newer units is neither unexpected nor
dispositive as to the level of risk such units pose.
Finally, a number of other factors support the conclusion that the
current number of damage cases likely underestimate the current risks.
First, the combined effect of a number of current state regulatory
provisions is to decrease the instances in which off-site contamination
will be detected (or on-site contamination will need to be remediated).
For example, several states have adopted ``buffer zones'' where certain
standards may not apply; Florida designates certain areas as a ``Zone
of Discharge'' (ZOD), in which numerical primary and secondary drinking
water standards do not apply; this exemption extends even beyond the
ZOD, unless ordered specifically by the state. In addition, secondary
maximum contaminant levels (SMCLs) are not applicable to existing
industrial facilities discharging to groundwater in the state.\207\ In
other instances, states grant waivers to certain facilities that exceed
health-based standards several-fold.\208\ Certain states (e.g.,
Indiana) consider surface impoundments as temporary storage facilities
as long as they are dredged on a periodic basis (e.g., annually). Under
these states' rules, such impoundments are exempt from any solid waste
regulations that would require groundwater monitoring, and from
requirements for corrective action.\209\ Such requirements are likely
to decrease the instances in which contamination above an MCL has
migrated off-site will be detected. Second, the record documents
several instances where, once the contaminant plume has migrated off-
site and impacted private water wells, the utility has purchased these
properties, thereby rendering the off-site contamination, ``on-site.''
At times, this practice (which is condoned by the state) has expanded
the ZOD to well beyond its original boundary. Once the status of the
contaminant plume changes from off-site migration, which typically
requires remedial action, back to onsite containment, this can affect
the kind of corrective action the state requires of the utility (or
indeed whether any will be required).
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\207\ Illinois uses a similar concept: Groundwater Mixing Zone;
North Carolina waives any compliance requirements for constituents
in exceedance of the state's groundwater standards that are confined
to monitoring wells within the Compliance Boundary; and in
Pennsylvania and Tennessee, state laws do not require state response
to onsite exceedances of secondary MCLs.
\208\ The observations cited in the following pertain to
groundwater quality. Regarding surface water quality, NPDES permits
in many states commonly have very limited requirements for
monitoring discharge constituents, excluding all or most of the
heavy metals.
\209\ E.g., Duke Energy's Gibson Generating Station, Princeton,
Indiana, a proven damage case.
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E. Characterization of Impacts Associated With CCR Units
1. CCR Waste Unit Types Associated With Damage Cases
EPA's documented record of confirmed damage cases is dominated by
wet-disposal and treatment modes: Surface impoundments, cooling ponds,
and artificial wetlands constitute close to half of the total number of
implicated waste units. In comparison, dry disposal modes such as
landfills, sand and gravel pits, storage piles for coal ash and FGD,
and certain structural fills account for about one third of the
confirmed damage cases.\210\ Sand and gravel pits and quarries as well
as structural fills, comprise about ten percent of all the unit types
that are associated with damage cases.
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\210\ Facilities with both wet and dry disposal waste units are
implicated in less than twenty percent of the cases.
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2. Contaminants of Concern (COCs)
Because the list of constituents to be monitored in groundwater
varies from permit to permit and among states, accurate estimates of
the frequency of constituents associated with groundwater impacts
nationwide cannot be made with confidence. Based on the available
monitoring records, the most prevalent contaminant among the primary
MCLs identified in damage cases is arsenic, whereas the most prevalent
contaminants identified among the secondary MCLs are sulfate and boron.
Similarly, disparities from one permit to another as to which
constituents are monitored in NPDES discharges from CCR impoundments
limit EPA's ability to identify trends associated with contaminants of
concern. Based on the Agency's record of all of the confirmed damage
cases, it can be only established that the most prevalent COCs with
respect to Primary Water Quality Criteria (WQCs) exceedances in surface
water, and/or of cleanup standards in sediments and soils are selenium
and arsenic, and for Secondary WQCs or cleanup standard exceedances,
are boron and iron.\211\
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\211\ For a list of the key metals found in CCR wastewater and
examples of the environmental concerns associated with them, see
Steam Electric Power Generating Point Source Category: Final
Detailed Study Report; EPA 821-R-09-008, October 2009: http://water.epa.gov/scitech/wastetech/guide/steam-electric/upload/Steam-Electric_Detailed-Study-Report_2009.pdf.
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The high mobility of boron and sulfate explains the prevalence of
these constituents in damage cases that are associated with groundwater
impacts. Damage cases impacting surface water that have also a
documented ecologic impact comprise the largest subset of proven damage
cases (over 40 percent). The most prevalent COC here is selenium, the
bioaccumulative effects of which have caused abnormal mortality rates
and sublethal effects such as histopathological changes and damage to
reproductive and developmental success, adversely impacting aquatic
populations and communities of fish and amphibians. Such impacted
communities, residing both in lentic (e.g., cooling water lakes) and
lotic (e.g., small to medium-size streams) settings that receive
regulated (i.e., via permitted outfalls) and unregulated (i.e., via
seepage) discharge from CCR impoundments were documented and rather
extensively studied in several sites (e.g., in Texas, North Carolina,
and South Carolina).212 213
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\212\ In validation of the findings of the Risk Assessment
accompanying this rule, EPA has documented numerous damage cases
where selenium in CCR wastewater discharge into surface waters
triggered the issuance of fish-consumption advisories as well as
selenium MCL exceedances in groundwater, suggesting that selenium
concentrations in CCR wastewater constitute a human health risk.
\213\ According to the draft Steam Industry's Effluent
Guidelines EA, the steam electric power sector is responsible for a
significant fraction of the toxic pollutants reported to be
discharged in industrial National Pollutant Discharge Elimination
System (NPDES) permits.
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[[Page 21457]]
There are fewer recorded instances of surface water damage cases
involving the heavy metal COCs such as antimony, beryllium, mercury,
and thallium than of groundwater damage cases. It is unclear whether
this genuinely reflects lower potential risks via this route of
exposure. Intrinsic differences between the chemical and physical
parameters of surface water and groundwater (e.g., the higher redox
potential and the larger flow-rate of the former) would accelerate the
removal of many metals from surface water through precipitation and/or
adsorption and facilitate a greater dilution. However, as noted, NPDES
permits in many states commonly have very limited requirements for
monitoring discharge constituents, excluding all or most of the heavy
metals, so this cannot be ruled out as at least a contributing
factor.\214\
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\214\ This issue is illustrated by the very limited monitoring
record on mercury exceedances in surface water as compared to the
extensive documentation of mercury impacts revealed in studied
surface water that receive steam industry effluents. These studies
have documented fish and invertebrates exposed to mercury from CCR
wastewater exhibiting elevated levels of mercury in their tissues
and developing sublethal effects such as reduced growth and
reproductive failure. For an excellent summary of surface water
ecologic and human health risks and impacts study results, see the
cited Steam Electric Power study report.
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3. Failure/Impact Modes
The CCR damage case record shows the following prevalent impact
modes (more than one possible impact type per generating facility site
is possible): Slightly over half of the recorded impact cases are
associated with groundwater; about ten percent are associated with
surface water, which quite frequently is also accompanied by documented
ecological impacts and/or with the contamination of soils and/or river
sediments; over one third are associated with both groundwater and
surface water impacts; and about four percent are associated with
catastrophic surface impoundment failures.
The established damage case record includes ten sites involving
exceedances of primary MCLs that have impacted drinking water wells. In
all of these cases, the implicated utility provided alternative potable
water to well water users.\215\ Three of the damage cases were listed
on the National Priority List as Superfund sites,\216\ and one is a
Superfund Alternative (SA) site.\217\ In the course of reassessing the
pre-EIP 2010 damage cases and vetting EIP's alleged damage cases, the
Agency rejected two other Superfund damage cases, because in addition
to CCR, these site had also accepted large volume of non-CCR
waste.\218\
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\215\ These proven damage cases include eight cases where the
utility was directed by the state to provide an alternative water
supply (NIPSCO Yard 520, IN; Constellation Energy Gambrills, MD; Don
Frame Trucking, NY; Bruce Mansfield, PA; Trans Ash Landfill, TN;
VEPCO Chisman Creek, VA; Stoneman, WI; and WEPCO Highway 59, WI);
and two instances in which the utility provides substitute water to
residents on a voluntary basis (Gibson Station, IN, and Colstrip,
MT). In three additional, potential damage cases (Oak Creek, WI;
Battlefield Golf Course, VA; and Joliet Station 9, IL), the
utilities provide substitute water--out of abundance caution--to
adjacent residential properties whose water wells were impacted by
secondary MCL exceedances, and in two additional cases, the
electrical utility was instructed by state regulators to provide
substitute water to residential properties which either have had
their drinking water wells impacted by trace amounts of thallium,
within the State and the federal standards (Asheville, NC) or by
exceedances of boron (Sutton, NC). Finally, in one case (Belews
Creek, NC) the electric utility agreed to co-fund upgrading of
potable water treatment plants in two municipalities to eliminate
trihalomethanes, a carcinogenic by-product of power plant scrubber,
bromide-containing river water subject to water treatment employing
chlorine.
\216\ OU-12, Oak Ridge, Tennessee (an NPL site between 1989 and
1997); VEPCO, Chisman Creek, Virginia (an NPL site between 1983 and
1988); and the Lemberger Landfill, Wisconsin (1986 to present).
\217\ Town of Pines Groundwater Plume, Indiana (SA: 2003-
Present): http://www.epa.gov/region5/superfund/npl/sas_sites/INN000508071.htm. The Site is not listed on the National Priority
List (NPL) although it qualifies for such listing. The SA approach
uses the same investigation and cleanup process and standards that
are used for sites listed on the NPL, while it can potentially save
the time and resources associated with listing a site on the NPL. As
long as a PRP enters into an SA approach agreement with EPA, there
is no need for EPA to list the site on the NPL.
\218\ These are the formerly proven damage case of Salem Acres,
Massachusetts (originally addressed in the 2007 Coal Combustion
Waste Damage Case Assessments Report), and Industrial Excess
Landfill, Uniontown, Ohio, an alleged damage case submitted by EIP
in In Harm's Way, 2010.
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Four major releases of CCR sludge associated with surface
impoundment dike or pipe failure resulted in significant coal slurry
releases,\219\ causing fish kills and other ecologic damage, and in
some instances damage to infrastructure. In the Clinch River spill, for
instance, it was estimated that 217,000 fish were killed in a 90-mile
stretch of the river in Virginia and Tennessee. The Clinch River plant
coal ash had a high free lime content, which reacted with water in the
settling pond to form an alkaline calcium hydroxide. As a result,
during the release, pH was elevated to levels as high as 12.7. The
high-toxicity shock also decimated benthic macro-invertebrate
populations for a distance of over three miles below the spill site,
and snails and mussels were eliminated for over 11 miles below the
Clinch River power plant.
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\219\ These catastrophic releases involved the release of 1.1 x
10\9\, 2.7 x 10\8\, 1.3 x 10\8\, and 1 x 10\8\ gallons of CCR slurry
at the spills of the 2008 Kingston TVA, Tennessee; the 2014 Dan
River, North Carolina; the 1967 Clinch River, Virginia; and the 2005
Martins Creek, Pennsylvania, respectively.) In addition, the
possible ecologic impacts of two consecutive, 30 million gallons
each, of CCR slurry releases (in 2007 and 2008) by the Eagle Valley
power plant in Indiana have not been assessed.
---------------------------------------------------------------------------
As demonstrated in the aftermath of the 2008 coal ash spill in TVA
Kingston, Tennessee, large impoundment dike breach incidents result in
impacts to soil and river sediments. In a study conducted few months
after the spill, Emory River's downstream sediments showed high mercury
concentrations similar to those detected in the coal ash (115-130
[mu]g/kg).\220\ According to this study, the ecological effects of
mercury in the coal ash and sediments depend on the chemical mobility
of mercury in the solids and the potential for mercury methylation in
the impacted area. Previous studies have shown that sulfate addition
can promote methylation in freshwater ecosystems by stimulating sulfate
reducing bacteria, the primary organisms responsible for producing
methylmercury in the environment. In coal-ash-containing waters, a 10-
to 20-fold increase in SO4-2 concentrations was
observed in the Emory River Cove area relative to unaffected upstream
sites. Therefore, the methylation potential of mercury from this
material could be high because the coal ash also provides an essential
nutrient (SO4-2) that encourages microbial
methylation. In addition, leaching of contaminants from the coal ash
caused contamination of surface waters in areas of restricted water
exchange and slight elevation down gradient. The accumulation of
arsenic-rich fly ash in bottom sediment in the Emory River's aquatic
system could cause fish poisoning via both food chains and decrease of
benthic fauna that is a vital food source. Another recent study
estimates that the damage to fish and other wildlife incurred by both
permitted and unpermitted CCR effluent discharge at some 22 sites
amounts to over $2.3 billion.\221\
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\220\ Survey of the Potential Environmental and Health Impacts
in the Immediate Aftermath of the Coal Ash Spill in Kingston,
Tennessee. Laura Ruhl et al., Environ. Sci. Technol. Published
online on May 4, 2009. Volume 43 (16), pp 6326-6333: http://pubs.acs.org/doi/abs/10.1021/es900714p.
\221\ A. Dennis Lemly and Joseph P. Skorupa: Wildlife and the
Coal Waste policy Debate: Proposed Rules for Coal Waste Disposal
Ignore Lessons from 45 Years of Wildlife Poisoning. Environ. Sci.
Technol., 27 July, 2012.
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[[Page 21458]]
a. Construction Year and First Detection Year
Slightly over half of the CCR waste units identified as the source
of groundwater contamination in the damage cases were commissioned in
the 1970s and 1980s, two boom decades of coal-fueled power generation
growth in the U.S. Whereas the majority of the CCR waste units
associated with damage cases were constructed before 1990,
approximately six percent of the units in the damage cases (where the
commissioning date is known) became operational after 1990. For 61
units with known commissioning dates, the median lag time between
commissioning and the first detection of impact to groundwater is about
20 years. However, considering the large range of lag time values
(between less than one year and 50 years) the recorded median lag time
most probably reflects additional variables. Possible variables include
monitoring wells that were installed after many of the waste units were
already well into their operating stage, and the variable hydraulic
conductivity of the impoundment's substrate (including the
effectiveness of its liner, if any), both of which will determine how
quickly groundwater contamination is first detected. Overall, the
evidence about the lag time between the commissioning of a waste unit
and the first detection of the impact of its leakage implies that most
likely there are prospective damage cases that have not yet been
identified, challenging industry's claims that the damage cases
represent the legacy of a bygone regulatory regime.
b. Liners
Of the waste units implicated in damage cases to groundwater with
information on liners, over 90 percent have either no liners, some sort
of ash-based liners (e.g., Poz-O-Tec, an FGD/lime-conditioned liner),
or only partial- or high-permeability (e.g., concrete) liners. The
majority of the remaining CCR waste units is either clay-lined and/or
has a recognizably-failed liner. Considering that over a half of CCR
waste units associated with groundwater impacts were constructed in the
1970s and 1980s, historic information on liner prevalence and
composition is highly pertinent. According to the February 1988 Report
to Congress on coal combustion wastes (``RTC I''), before 1975 less
than 20 percent of all generating facility units managed their CCR in
lined disposal units, and in generating facility units constructed
since 1975, the share of lined units grew to over 40 percent.\222\
However, as late as in the mid-1980s, about three-quarters of all CCR
units (87 percent of surface impoundments and 39 percent of landfills)
were still unlined.\223\
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\222\ Wastes from the Combustion of Coal by Electric Utility
Power Plants (First Report to Congress), EPA/530-SW-88-002,
February, 1988, pages 4-30 to 4-33: http://www.epa.gov/osw/nonhaz/industrial/special/fossil/coal-rtc.pdf.
\223\ These statistics are based on about 42 percent of the
total CCR units at that time, for which liner information was
available. RTC I attributes this low percentage to the common
practice of disposal in off-site units, for which liner information
was not available.
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In the mid-1990s, the estimated prevalence of unlined landfills
still ranged between 43-57 percent, and between 71-72 percent for
surface impoundments.\224\ According to the March 1999 Report to
Congress on wastes from the combustion of fossil fuels (RTC II), the
most prevalent liner type was compacted clay (about one-half of all
lined landfills, and about 80-percent of all lined surface
impoundments). Composite and/or synthetic liners were significantly
more prevalent in landfills than in surface impoundments. Based on
recent EPA data,\225\ the use of liners is still more prevalent in
landfills than in surface impoundments.
---------------------------------------------------------------------------
\224\ Based on three different partial surveys cited in the
Second Report to Congress (RTC II, 1999): Wastes from the Combustion
of Fossil Fuels, Volume 2--Methods, Findings, and Recommendations
(Second Report to Congress), EPA 530-R-99-010, March 1999: http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_2.pdf.
\225\ EPA compiled the baseline use of bottom liners by CCR
landfills and surface impoundments from the following sources: (1)
Impoundment data from EPA/OSWER's 2009-2011 impoundment dam
integrity site inspections; http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/index.htm; (2) Impoundment data
from ORCR's 2009 Information Collection Request (ICR) addressing
power plants with impoundments; http://www.epa.gov/waste/nonhaz/industrial/special/fossil/coalashletter.htm; and (3) Landfill and
impoundment data from EPA Office of Water's 2010 ICR addressing
power plants to be affected by the Steam Electric Power Generating
Effluent Guidelines: http://water.epa.gov/scitech/wastetech/guide/steam_index.cfm#point6.
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c. Geographic Distribution
Close to 70 percent of all the established damage cases occur in
EPA Regions 5, 4, and 3 (in descending frequency, Region 5: 34 percent;
Region 4: 28 percent; and Region 3: seven percent).\226\ This
distribution correlates well with the regional distribution of unlined
CCR units in the mid-1980s.\227\
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\226\ See http://www.epa.gov/aboutepa/#regional for a list of
states covered by each EPA Regional office.
\227\ According to the Report to Congress I (1988), in the mid-
1980s, the distribution of unlined CCR waste units across EPA
regions was as follows: For surface impoundments: 31.7 percent
(Region 4); 18.6 percent (Region 5); 6.2 percent (Region 7); and 3.5
percent (Region 3). For landfills: 11.1 percent (Region 5); 2.9
percent (Region 3); and 2.4 percent (Region 4).
---------------------------------------------------------------------------
d. Current CCR Waste Unit Status
As of mid-2011, close to half of the combined (proven and
potential) damage case CCR waste units were still active; about a
quarter were inactive due to either closure of the individual disposal
unit, a fuel switch (e.g., from coal to gas) by the generating
facility, or the decommissioning of the facility. Another quarter or so
represented power generating facilities where CCR waste units
(primarily impoundments) that failed to comply with state requirements
had been closed and replaced by other, new disposal units, and/or the
generating facilities switched from wet- to dry disposal. Since mid-
2011, the percentage of inactive CCR units associated with groundwater
damage cases has further increased, due to the continued drop in power
demand during the economic recession, which has resulted in power
station temporary removal from active service (i.e., mothballing) and
closures, combined with an increasing switch by many facilities to a
more cost-effective fossil fuel (i.e., natural gas).
F. Conclusions
EPA now has a significantly better understanding of CCR damage
cases than when the proposed rule was issued. First, damage cases are
more numerous than previously contemplated and as more monitoring well
systems are installed, the number of damage cases is likely to
increase. Second, the CCR damage case record corroborates the findings
of the risk analysis by demonstrating the greater vulnerability of
groundwater (and surface water) to wet disposal (i.e., surface
impoundments). Third, the damage cases show a direct correlation
between the absence of liners and groundwater impacts, and illustrate
that whereas in general the design of waste units--particularly surface
impoundments--has improved over time, a notable portion of CCR
impoundments constructed in the last two decades still lack a
protective liner, thus presenting a potential threat to groundwater.
Finally, a recent CCR spill incident \228\ demonstrates that inactive
surface impoundments that have not been properly decommissioned (i.e.,
by breaching, dewatering, and capping or by clean-closing) continue to
pose a
[[Page 21459]]
significant risk to human health and the environment.
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\228\ The Duke Energy's Dan River, North Carolina, February 2,
2014 CCR slurry spill.
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XII. Summary of Regulatory Impact Analysis
EPA estimated the costs and benefits of the final rule. The
Regulatory Impact Analysis (RIA) is available to the public in the
docket for this action.
A. Costs of the Final Rule
The estimated costs of the final rule are summarized in Table XII-A
below. These are the incremental costs above the ``baseline.'' i.e.,
the current costs for managing CCR absent this regulation. The baseline
takes into account existing state regulations for managing CCR now and
into the future. To the extent that some states may have granted
waivers or variances for certain provisions of State requirements, or
in other instances may have added extra pollution control requirements
above existing regulatory requirements to some specific permits issued
to electric utility plants for operating CCR management units, the RIA
did not take those actions into account.
EPA used the following data sources to create a model for the RIA
that estimates the costs and benefits of the rule: (1) 2012 DOE EIA-923
database; (2) ORCR's 2009-2012 CCR impoundment site inspections; (3)
impoundment data from ORCR's 2009 mail survey to plants with CCR
impoundments; (4) landfill and impoundment data from EPA Office of
Water's 2010 mail survey to power plants in support of the 2013
proposed Steam Electric Power Generating Effluent Limitation
Guidelines; (5) Integrated Planning Model (IPM) v. 5.13 (for the future
projection of coal consumption by electric utility plants); and (6) the
1995 Electric Power Research Institute (EPRI) Co-management Survey.
Table XII-A--Estimated Cost of Pollution Controls Required by the CCR Final Rule
[Millions 2013$]
----------------------------------------------------------------------------------------------------------------
@ 3% discount rate @ 7% discount rate
---------------------------------------------------------------
CCR pollution control Annualized Annualized
values Present values values Present values
----------------------------------------------------------------------------------------------------------------
1. Groundwater monitoring....................... $4.79 $151 $2.80 $39.9
2. Bottom liners................................ 491 15,500 297 4,230
3. Leachate collection system (landfills only).. 51.6 1,630 18.4 263
4. Fugitive CCR dust controls................... 7.09 224 3.36 48.0
5. Stormwater run-on/run-off controls........... 18.8 594 13.0 186
6. Location restrictions........................ 43.6 1,380 20.0 285
7. Closure capping.............................. 20.1 630 12.0 171
8. Post-closure groundwater monitoring (30 0.08 2.40 0.04 0.61
years).........................................
9. Impoundment structural integrity requirements 10.9 344 11.1 158
10. Corrective action (CCR contaminated 19.0 600 19.1 273
groundwater cleanup)...........................
11. Reporting and recordkeeping................. 26.3 831 27.3 389
12. Conversion to dry CCR handling.............. 29.0 916 57.3 818
13. Inactive impoundments (dewater and closure 12.0 380 26.7 381
cap)...........................................
14. Subtotal industry costs (1+...+13).......... 734 23,200 508 7,240
----------------------------------------------------------------------------------------------------------------
State Agency Burden Costs
----------------------------------------------------------------------------------------------------------------
15. Impoundment structural integrity 0.22 6.88 0.22 3.16
requirements...................................
16. Corrective action........................... 0.38 12.0 0.38 5.45
17. Reporting and recordkeeping................. 0.53 16.6 0.55 7.78
18. Subtotal State agency burden costs 1.12 35.5 1.15 16.4
(15+16+17).....................................
19. Total cost (14+18).......................... 735 23,200 509 7,260
----------------------------------------------------------------------------------------------------------------
B. Benefits of the Final Rule
The RIA contains two categories of benefits (1) benefits that are
monetized and (2) non-monetized benefits. The RIA estimates 11
categories of expected future human health and environmental benefits
for the CCR rule. These include reduced future CCR impoundment
structural failure releases; reduced future CCR groundwater
contamination; improved air quality from reduced power plant air
pollution; and surface water quality benefits. The estimated value of
each of the 11 monetized benefits is presented in Table XII-B below.
Table XII-B--EPA Estimated Monetized Benefits for the CCR Final Rule
[Millions 2013$ over 100-year period of analysis 2016-2114]
----------------------------------------------------------------------------------------------------------------
3% discount rate 7% discount rate
---------------------------------------------------------------
Annualized Present value Annualized Present value
----------------------------------------------------------------------------------------------------------------
1. Reduced CCR impoundment structural failure $156 $4,910 $143 $2,040
releases.......................................
2. Reduced CCR landfill & impoundment 12.8 405 9.86 141
groundwater contamination......................
3. Induced increase in future annual CCR 117 3,130 79.0 1,120
beneficial uses................................
4. Reduced incidence of cancer from CCR exposure <0.1 0.17 <0.1 <0.1
5. Avoided IQ losses from mercury in CCR........ 0.28 8.80 <0.1 0.35
6. Avoided IQ losses from lead in CCR........... 0.186 5.87 <0.1 0.23
7. Reduced need for specialized education <0.1 <0.1 <0.1 <0.1
(associated with 5 & 6 above)..................
8. Non-market surface water quality benefits.... 2.26 71.4 1.89 27.0
[[Page 21460]]
9. Protection of threatened & endangered species 0.91 28.7 0.76 10.8
near CCR impoundments..........................
10. Improved air quality from induced changes to 4.66 147 2.04 29.1
power plant emissions..........................
11. Reduced power plant groundwater withdrawals. <0.1 <0.1 <0.1 <0.1
12 Total monetized benefits (1 + . . . + 11).... 294 8,710 236 3,360
----------------------------------------------------------------------------------------------------------------
In addition to the monetized benefit categories, the RIA describes
11 additional non-monetized benefit categories. Due to uncertainties
and weaknesses in supporting documentation for quantifying and
monetizing these benefits, the RIA presents these benefits separately
from the benefits listed above, and does not include them in the
quantified comparison of benefits and costs. These non-monetized
benefits include:
1. Financial market benefits
2. Reduced community dread of CCR impoundment structural failure
releases
3. Reduced health and property nuisance impacts from CCR fugitive
dust
4. Cancer and non-cancer human health benefits from reduced CCR
contamination of fish consumed by recreational anglers and subsistence
fisher households in surface waters near power plants (additional to
monetized avoided health effects)
5. Cancer and non-cancer human health benefits from reduced CCR
exposure by other recreational users of surface waters near power
plants (additional to monetized avoided health effects)
6. Avoided CCR contamination of sediments in surface waters near
power plants
7. Water quality benefits from avoided CCR contamination treatment
costs for use of surface waters for drinking and irrigation water
supply
8. Commercial fisheries benefit in surface waters near power plants
9. Increased participation in water-based recreation near power
plants
10. Avoided fish impingement and entrainment mortality from power
plant water intakes (induced conversion to dry CCR handling reduces
future water demand for CCR sluicing)
11. Increased property values surrounding electric utility plants
(from closure capping and re-vegetation of CCR surface impoundments)
The total monetized benefits less the total costs of the rule
provide the net monetized benefits of the rule. Table XII-C summarizes
the total costs and benefits as well as the net benefits of the rule.
Table XII-C--EPA Estimated Incremental Costs & Benefits of the CCR Rule
[Millions 2013$ over 100-year period of analysis 2015-2114]
------------------------------------------------------------------------
3% discount 7% discount
rate rate
------------------------------------------------------------------------
A. Annualized Values....................
A1. Total Costs......................... $735 $509
A2 Total monetized benefits............. 294 236
A3. Net Benefits (A2-A1)................ (441) (273)
A4. Benefit to Cost Ratio (A3/A1)....... 0.40 0.46
B. Present Value........................
B1. Total Costs......................... 23,200 7,260
B2 Total monetized benefits............. 8,710 3,360
B3. Net Benefits (B2-B1)................ (14,490) (3, 900)
B4. Benefit to Cost Ratio (B2/B1)....... 0.38 0.46
------------------------------------------------------------------------
XIII. Uniquely Associated Wastes
By way of this rule, EPA is codifying in Sec. 261.4(b)(4) a list
of low volume waste that when co-disposed with CCR are not subject to
hazardous waste regulations. These wastes are also referred to as
uniquely associated wastes. However, these uniquely associated wastes
are subject to hazardous waste regulations when they are not co-
disposed with CCR.
In a letter to EPA dated October 10, 1980 the Utility Solid Waste
Activities Group (USWAG) suggested interpretive language that EPA
should adopt regarding the amendments to the Solid Waste Disposal Act
Amendments of 1980 which address fossil fuel combustion wastes. EPA
replied to USWAG by letter dated January 13, 1981 (known as the 1981
Dietrich letter), and addressed, among other issues, other associated
wastes generated in conjunction with the burning of fossil fuels.\229\
EPA stated that ``We believe it is appropriate, in the light of
Congressional intent, to interpret the Sec. 261.4(b)(4) exclusion to
include other wastes that are generated in conjunction with the burning
of fossil fuels and mixed with and co-disposed or co-treated with fly
ash, bottom ash, boiler slag and flue gas emission control wastes.''
When amendments to the 1980 Solid Waste Disposal Act were introduced,
Congressmen Bevill and Rahall stated, respectively:
---------------------------------------------------------------------------
\229\ See letter from Gary N. Dietrich to Paul Elmer, USWAG,
available in the docket for this rule.
It is the sponsor's intention that this list of waste materials
in the amendment be read broadly, to incorporate the waste products
generated in the real world as a result of the combustion of fossil
fuels. We do not believe that these terms should be narrowly read
and thus impose regulatory burdens upon those who seek to assist the
Nation by burning coal. EPA should recognize that these ``waste
streams'' often include not only the
[[Page 21461]]
byproducts of the combustion of coal and other fossil fuels, but
also relatively small proportions of other materials produced in
conjunction with the combustion, even if not derived directly from
these fuels. EPA should not regulate these waste streams because of
the presence of these materials, if there is no evidence of any
substantial environmental danger from these mixtures. (126 Cong.
Rec. H1102).
In the real world, these waste materials do not include solely
fly ash, bottom ash, slag, or scrubber sludge. Quite often, other
materials are mixed with these large volume waste streams, with no
environmentally harmful effects, and often with considerable
benefit-as when, for example, boiler cleaning- acids are neutralized
by being mixed with alkaline fly ash. These appear to me to be
environmentally beneficial practices, which EPA should encourage. At
the very least, however, the Agency should take no steps to
discourage them until it has developed a full factual understanding
of the situation. This amendment would assure that EPA allows all
persons burning coal to avoid unnecessary regulation of the
byproducts produced by that combustion, as those byproducts are
currently being managed in the real world, by real people, with real
sense. (126 Cong. Rec. H1104).
As such, EPA interpreted 40 CFR 261.4(b)(4) (the Bevill exemption)
to mean that wastes produced in conjunction with the combustion of
fossil fuels, which are necessarily associated with the production of
energy, and which traditionally have been, and which actually are,
mixed with and co-disposed or co-treated with fly ash, bottom ash,
boiler slag, or flue gas emission control wastes from coal combustion
are not hazardous wastes. In the Deitrich letter EPA stated that these
other associated wastes include, but are not limited to the following
wastes: (1) Boiler cleaning solutions; (2) boiler blowdown; (3)
demineralizer regenerant; (4) pyrites; and (5) cooling tower blowdown.
In a February 1988 Report to Congress on Wastes from the Combustion
of Coal by Electric Utility Power Plants EPA listed the following low-
volume wastes commonly produced in conjunction with the burning of
fossil fuels to produce electricity: (1) Boiler blowdown; (2) coal pile
run-off; (3) cooling tower blowdown; (4) demineralizer regenerants and
rinses; (5) metal and boiler cleaning wastes; (6) pyrites; and (7) sump
effluents. Presented for each type of low-volume waste is a brief
description of how the waste is generated, typical quantities produced,
and the physical and chemical composition of the waste.\230\ The source
of this information was primarily an August 1981 USWAG/Edison Electric
Institute report in response to a request for information in the 1981
Dietrich letter.
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\230\ See http://www.epa.gov/osw/nonhaz/industrial/special/fossil/coal-rtc.pdf, pages 3-41 to 3-62. This report addressed
wastes generated from the combustion of coal by electric utility
power plants, and did not address comanaged utility coal combustion
wastes, other fossil fuel combustion wastes, and wastes from non-
utility boilers.
---------------------------------------------------------------------------
In an August 1, 1993 Regulatory Determination the Agency emphasized
that co-management of low-volume wastes and large-volume wastes (fly
ash, bottom ash, boiler slag, or flue gas emission control wastes from
coal combustion) makes the combined waste stream a remaining waste that
would be subject to a subsequent Regulatory Determination and provided
the list below of management practices that result in combined waste
streams that are remaining wastes.\231\
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\231\ http://www.epa.gov/osw/nonhaz/industrial/special/mineral/080993.pdf.
---------------------------------------------------------------------------
Discharge of boiler blowdown to a large-volume waste
impoundment,
Discharge of demineralizer regenerant to a large-volume
waste impoundment,
Discharge of metal cleaning wastes to a large-volume waste
impoundment,
Discharge of boiler chemical cleaning wastes to a large-
volume waste impoundment,
Discharge of plant wastewater treatment effluent to a
large-volume waste impoundment,
Discharge of coal mill rejects to a large-volume waste
impoundment,
Disposal of oil ash in a large-volume waste landfill or
impoundment,
Disposal of plant wastewater treatment sludge in a large-
volume waste landfill.
In a 1999 Report to Congress on wastes from the combustion of
fossil fuels \232\ EPA stated that low-volume wastes are generated as a
result of supporting processes that are ancillary to, but a necessary
part of, the combustion and power generation processes and provided the
following list of low-volume wastes.
---------------------------------------------------------------------------
\232\ http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_2.pdf.
Coal pile run-off
Coal mill rejects/pyrites
Boiler blowdown
Cooling tower blowdown and sludge
Water treatment sludge
Regeneration waste streams
Air heater and precipitator washwater
Boiler chemical cleaning waste
Floor and yard drains and sumps
Laboratory wastes
Wastewater treatment sludge
The concept of uniquely associated wastes with respect to CCR was
first introduced in the May 22, 2000 Regulatory Determination. Prior to
this, these wastes were referred to as other wastes, remaining wastes,
or low-volume wastes, that are generated in conjunction with the
burning of fossil fuels and mixed with and co-disposed or co-treated
with fly ash, bottom ash, boiler slag and flue gas emission control
wastes. For the May 22, 2000 Regulatory Determination, the Agency
proposed the uniquely associated wastes concept with the intent of
being consistent with other wastes covered under the Bevill Amendment
(a.k.a., the Bevill exemption), such as mining and mineral processing
wastes that the Agency refers to as uniquely associated wastes, and
under the Bentsen Amendment for oil and gas exploration and production
wastes which are referred to as associated wastes. The Agency
recognized that determining whether a particular waste is uniquely
associated with fossil fuel combustion involves an evaluation of the
specific facts of each case. In the Agency's view, the following
qualitative criteria should be used to make such determinations on a
case-by-case basis:
(1) Wastes from ancillary operations are not ``uniquely
associated'' because they are not properly viewed as being ``from''
fossil fuel combustion.
(2) In evaluating a waste from non-ancillary operations, one must
consider the extent to which the waste originates or derives from the
fossil fuels, the combustion process, or combustion residuals, and the
extent to which these operations impart chemical characteristics to the
waste.
EPA proposed the following list of wastes that the Agency
considered to be uniquely associated wastes (i.e., uniquely associated
with the combustion of coal for the generation of electricity at
electric utilizes and independent power producers and, therefore,
covered by the Bevill exemption).
Coal Pile Run-off
Coal Mill Rejects and Waste Coal
Air Heater and Precipitator Washes
Floor and Yard Drains and Sumps
Wastewater Treatment Sludges
Boiler Fireside Chemical Cleaning Wastes
EPA also proposed the following list of wastes that would not be
considered uniquely associated wastes.
Boiler Blowdown
Cooling Tower Blowdown and Sludges
Intake or Makeup Water Treatment and Regeneration Wastes
Boiler Waterside Cleaning Wastes
Laboratory Wastes
General Construction and Demolition Debris
[[Page 21462]]
General Maintenance Wastes
EPA requested comments on these proposed lists and received several
comments from states, industry, and the environmental community.
Industry opposed the ``uniquely associated'' waste framework, and
favors retaining the 1981``Dietrich Policy.''
Many commenters argued that the Dietrich policy has provided clear
guidance on the scope of the Bevill exemption for the past 20 years,
and that appropriate waste management practices have been implemented
for these wastes. The Dietrich Policy has proven itself effective in
furthering congressional intent to recognize certain historic co-
management practices provided they are not environmentally harmful. The
Association of State and Territorial Solid Waste Management Officials
recommended that EPA contact States that have management programs for
fossil fuel combustion wastes to determine how to best manage the waste
that are uniquely associated or not uniquely associated with fossil
fuel combustion wastes. The Hoosier Environmental Council opposed
exempting coal wastes and stated that ``coal mill rejects and coal pile
run-off would not be uniquely associated wastes . . . because neither
of these wastes is derived from coal combustion.''
EPA acknowledges that the Deitrich letter has been longstanding
policy with regard to CCR uniquely associated wastes and that the
Agency has not sought input from States on the issue. Moreover, as
evident from the Congressional Record, the Congressional intent was to
``include not only the byproducts of the combustion of coal and other
fossil fuels, but also relatively small proportions of other materials
produced in conjunction with the combustion, even if not derived
directly from these fuels.'' These other materials would include many
of those listed in the Dietrich letter as well as many of those listed
in the May 2000 Regulatory determination.
After considering the 1981 Dietrich letter, a copy of which is
included in the docket for this rule, the proposed guidance in the May
2000 Regulatory Determination, comments received on the May 2000
Regulatory Determination and the July 2010 proposed rule, EPA has
concluded that the 1981 Dietrich letter accurately reflects the intent
of Congress when they exempted CCR from hazardous waste regulations.
EPA also believes that many of the wastes listed as uniquely associated
wastes in the May 22, 2000 Regulatory Determination are also consistent
with the Congressional intent. Therefore, the Agency is finalizing the
following list of uniquely associated wastes that includes materials
from both the Dietrich letter and the May 2000 Regulatory
Determination.
Coal pile run-off
Boiler cleaning solutions
Boiler blowdown
Process water treatment and demineralizer regeneration wastes
Cooling tower blowdown
Air heater and precipitator washes
Effluents from floor and yard drains and sumps, and
Wastewater treatment sludges
This list is being codified in 40 CFR 261.4(b): Solid wastes which
are not hazardous wastes.
XIV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Under section 3(f)(1) of Executive Order 12866 (58 FR 51735,
October 4, 1993), this action is an ``economically significant
regulatory action'' because it is likely to have an annual effect on
the economy of $100 million or more. The total annual cost of this
final rule is estimated to be $509 million a year using a 7% discount
rate. Accordingly, EPA submitted this action to the Office of
Management and Budget (OMB) for review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011) and any changes made in response
to OMB recommendations have been documented in the docket for this
action.
In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. The Regulatory Impact Analysis
(RIA) estimated the costs and benefits for this action. The RIA
estimated 12 regulatory costs: (1) Groundwater monitoring; (2) bottom
liner installation; (3) leachate collection system installation and
management; (4) fugitive dust controls; (5) rain and surface water run-
on/run-off controls; (6) disposal unit location restrictions (including
water tables, floodplains, wetlands, fault areas, seismic zones, and
karst terrain); (7) closure capping to cover units; (8) post-closure
groundwater monitoring requirements; and (9) impoundment structural
integrity requirements; (10) corrective actions (CCR contaminated
groundwater cleanup); (11) paperwork reporting/recordkeeping; and (12)
impoundment closures and conversion to dry handling. Using a 7%
discount rate, the annualized costs are estimated at $509 million, and
using a 3% discount rate, annualized costs are estimated to be $735
million. Using a 7% discount rate, the total present value costs are
estimated at $7.3 billion, and using a 3% discount rate the present
value of estimated costs is $23.2 billion.
The RIA estimated 11 monetized benefits: (1) CCR impoundment
release prevention; (2) CCR landfill & impoundment groundwater
contamination prevention; (3) induced increase in CCR beneficial uses
(e.g., concrete, wallboard); (4) reduced incidence of cancer from CCR
exposure; (5) avoided IQ losses from mercury; (6) avoided IQ losses
from lead; (7) reduced need for specialized education; (8) non-market
surface water quality benefits; (9) protection of threatened &
endangered species near CCR impoundments; (10) improved air quality
from induced changes to power plant emissions and (11) reduced power
plant groundwater withdrawals. The annualized monetized benefits are
estimated at $294 million (@ 3% discount rate) and $236 million (@ 7%
discount rate). The total present value monetized benefits are
estimated at $8.7 billion (@ 3% discount rate) and $3.4 billion (@ 7%
discount rate).
B. Paperwork Reduction Act (PRA)
The information collection activities in this rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) document that
the EPA prepared has been assigned EPA ICR number 1189.25, OMB control
number 2050-0053. You can find a copy of the ICR in the docket for this
rule, which will be available in the docket once the ICR has been
submitted to OMB for review, and it is briefly summarized here. The
information collection requirements are not enforceable until OMB
approves them.
These regulations, promulgated under subtitle D of RCRA, constitute
national minimum criteria with which facilities must comply without
oversight or intervention by a federal or state authority. To address
concerns about the absence of regulatory oversight under a subtitle D
regulation, EPA has developed a combination of mechanisms, including
recordkeeping, notification, and maintaining a publicly accessible
Internet site. The increased transparency resulting from these
requirements will minimize the potential for owners or operators to
abuse the self-implementing system established in this rule. In
addition, these requirements provide interested parties the information
necessary to
[[Page 21463]]
determine whether the owner or operator is operating in compliance with
the requirements of the rule and thus will facilitate enforcement by
States and private citizens. EPA has consolidated the recordkeeping,
notification, and Internet posting requirements into a single section
of the regulations in an effort to make these requirements easier to
follow. It is important to note that EPA will not be collecting any
information under this rule--instead, facilities must keep records,
notify the state, and post information on a publicly available Web
site. EPA has taken steps to minimize the burden to the regulated
community while at the same time achieving the transparency needed to
ensure proper implementation of this rule. In addition to the burden to
owner and operators of CCR landfills, in an effort to ease
implementation, EPA has reporting and recordkeeping requirements for
certain beneficial uses and states. For beneficial use that meets the
fourth criteria, the user must maintain records and provide
documentation upon request. For states, states are encouraged to
voluntarily adopt at least the federal minimum criteria through the
revision of SWMPs. In addition, EPA estimated the burden on state
government agencies associated with the receipt of various notification
requirements in the rule.
The respondents/affected entities are the owners/operators of
electric utilities and independent power producers that fall within the
NAICS code 221112. Specifically, these regulations apply to owners and
operators of new and existing landfills and new and existing surface
impoundments, including lateral expansions that of all landfills and
surface impoundments that dispose or otherwise engage in solid waste
management of CCR generated from the combustion of coal at electric
utilities. The rule also applies to CCR units located off-site of the
electric utilities' or independent power producers' facilities that
receive CCR for disposal. The rule applies to certain inactive CCR
surface impoundments at active electric utilities' or independent power
producers' facilities, if the CCR unit still contains CCR and liquids.
Finally, the rule applies to certain beneficial users of CCR. The rule
may also impact States that choose to revise their SWMPs.
Respondents are obligated to keep records, make the required
notifications, and maintain the publicly available Internet site. These
requirements are part of the minimum federal criteria under 40 CFR part
257 and promulgated under the authority of sections 1006(b), 1008(a),
2002(a), 3001, 4004, and 4005(a) of the Solid Waste Disposal Act of
1970, as amended by the Resource Conservation and Recovery Act of 1976
(RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984
(HAS), 42 U.S.C. 6906(b), 6907(a), 6912(a), 6944, and 6945(a).
Respondents/affected entities: EPA estimates the total number of
respondents to be 486. This number represents the estimated number of
coal-fired electric utility plants that will be affected by the rule.
Respondent's obligation to respond: The recordkeeping,
notification, and posting are part of the minimum national criteria
being promulgated under Sections 1008, 4004, and 4005(a) of RCRA.
Estimated number of respondents: 486.
Frequency of response: The frequency of response varies.
Total estimated burden: EPA estimates the total annual burden to
respondents to be approximately 358,957 hours with a three year total
estimated burden of 1,076,871 hours. Burden is defined at 5 CFR
1320.3(b).
Total estimated cost: The total estimated annual cost is
approximately $64,007,121; this is composed of approximately
$22,894,608 in annualized labor costs and $41,112,513 in annualized
capital or operation and maintenance costs. The three year total
estimated costs are $192,021,364 composed of $68,683,824 in labor costs
and $123,337,540 in operations and maintenance.
In addition, developing a state SWMP (see Unit IX of this preamble)
is not a requirement under this rule, however, EPA is encouraging
states to develop these plans and has developed a burden estimate
associated with this activity. The estimate for this one-time activity
has been annualized over the three-year period covered by the ICR. The
total estimated annual burden (for the 47 states and Puerto Rico where
CCR are generated) is approximately 10,880 hours, and approximately
$429,414 in annualized labor costs; this estimate assumes no annualized
capital or operations and maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB
approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment to 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities (SISNOSE). Small entities include small
businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small
entities, small entity is defined as: (1) A small business, based on
the U.S. Small Business size standard for NAICS code 221112 (fossil
fuel electric utility plants), with fewer than 750 employees; (2) a
small government jurisdiction, based on the RFA/SBREFA's definition (5
U.S. Code section 601(5)), is the government of a city, county, town,
township, village, school district, or special district with population
under 50,000; (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
The small entities directly regulated by this final rule consist of
one small county, 31 small cities, 32 small companies, and 13 small
cooperative owner entities that own at least one coal-burning power
plant. There are 91 coal-burning power plants that are owned by the 77
small owner entities. Those plants fall into the following categories:
One small county plant, 31 small city plants, 42 plants owned by small
companies, and 17 small cooperative plants.
The RIA estimated CCR compliance costs as a percentage of revenues
for each entity and found that for almost all small entities affected
by the rule the estimated annualized costs were less than 1% of
revenues.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities.
D. Unfunded Mandates Reform Act (UMRA)
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory
[[Page 21464]]
actions on state, local, and tribal governments and the private sector.
This rule contains a federal mandate that may result in expenditures of
$100 million or more for state, local, and tribal governments, in the
aggregate, or the private sector in any one year. Accordingly, EPA has
prepared under section 202 of the UMRA a written statement which is
summarized below.
The RIA estimates the rule may affect 414 coal-fired electric
utility plants, and may have a nationwide average annualized cost of
approximately $509 million per year (at a 7% discount rate). Of this
amount, average annualized costs to State/local governments total $36
million, and the average annualized cost to the private sector totals
approximately $436 million per year (the remainder of the total costs
are the costs associated with compliance at federally-owned electric
utility plants.)
Consistent with the intergovernmental consultation provisions of
section 204 of the UMRA, EPA initiated pre-proposal consultations with
governmental entities affected by this rule. In developing the
regulatory options for the CCR rule, EPA consulted with small
governments according to EPA's UMRA interim small government
consultation plan developed pursuant to section 203 of UMRA. EPA's
interim plan provides for two types of possible small government input:
Technical input and administrative input. According to this plan, and
consistent with section 204 of UMRA, early in EPA's 2009 process for
developing the CCR rule, EPA implemented a small government
consultation process consisting of two consultation components: (1) A
series of meetings in 2009 for purposes of acquiring technical input
from State government officials, and (2) letters to 10 organizations
representing elected State and local government officials to inform and
seek input for the rule's development, as well as to invite them to a
meeting held September 16, 2009 in Washington DC to provide input on
the rule. Following are the meetings held with state officials in 2009:
(1) February 27 with the Association of State and Territorial Solid
Waste Management Officials (ASTSWMO) Coal Ash Workgroup (Washington
DC), (2) March 22-24 with the Environmental Council of States (ECOS)
Spring Meeting (Alexandria VA), (3) April 15-16 with the ASTSWMO Mid-
Year Meeting (Columbus OH), (4) May 12-13 with the EPA Region IV State
Directors Meeting (Atlanta, GA), (5) June 17-18 with the ASTSWMO Solid
Waste Managers Conference (New Orleans, LA), (6) July 21-23 with the
ASTSWMO Board of Directors Meeting (Seattle, WA), and (7) August 12
with the ASTSWMO Hazardous Waste Subcommittee Meeting (Washington DC).
ASTSWMO is an organization with a mission to work closely with the EPA
to ensure that its state government members are aware of the most
current developments related to state waste management programs. ECOS
is a national non-profit, non-partisan association of state and
territorial environmental agency leaders. As a result of these meetings
EPA received letters in mid-2009 from 22 state governments as well as a
letter from ASTSWMO expressing their stance on CCR regulatory options.
On August 24, 2009 letters were mailed to the following 10
organizations, which include representation from small government
elected officials, to inform and seek input for the rule development,
as well as to invite them to a meeting held September 16, 2009 in
Washington DC: (1) National Governors Association, (2) National
Conference of State Legislatures, (3) Council of State Governments, (4)
National League of Cities, (5) U.S. Conference of Mayors, (6) County
Executives of America, (7) National Association of Counties, (8)
International City/County Management Association, (9) National
Association of Towns and Townships, and (10) Environmental Council of
the States. These 10 organizations representing State and local
government officials are identified in EPA's November 2008 Federalism
guidance as the ``Big 10'' organizations appropriate to contact for
purpose of consultation with small government elected officials.
Consistent with section 205, EPA identified and considered a
reasonable number of regulatory alternatives in the June 2010 proposed
rule, and is adopting the least-costly approach (i.e. a modified
version of the ``D Prime'' least costly approach presented in the 2010
proposed CCR rule).
This rule is not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments. The threshold amount established
for determining whether regulatory requirements could significantly
affect small governments is $100 million annually. The RIA estimates a
$1.2 million annual cost for state/local government implementation of
the rule and $36 million in annual direct compliance costs on 57 state
or local governments. These estimates are well below the $100 million
annual threshold established under UMRA. However this rule does have
over a $100 million dollar impact on industry. EPA selected one of the
lower industry cost options for the final rule by selecting a RCRA
subtitle D rule instead of a RCRA subtitle C rule.
E. Executive Order 13132--Federalism
The EPA has concluded that this action may have federalism
implications because it imposes substantial direct compliance costs on
state or local governments, and the Federal government will not provide
the funds necessary to pay those costs. Based on the estimates in EPA's
RIA for this action, the final rule, if promulgated, may impose a $1.2
million annual cost for state/local government implementation of the
rule and $36 million in annual direct compliance costs on 57 state or
local governments. This amount exceeds the $25 million per year
``substantial compliance cost'' threshold defined in section 1.2(A) (1)
of EPA's November 2008 ``Guidance on Executive Order 13132:
Federalism.'' There are 57 State and local governments which own 68
coal-burning power plants or 16% of the 414 electric utility plants
expected to be affected by this rule. These 57 local governments
consist of 7 state governments, 31 small municipality governments, 18
non-small municipal governments and 1 (small) county government owner.
The EPA provides the following federalism summary impact statement.
The EPA consulted with state and local officials early in the process
of developing the proposed action to permit them to have meaningful and
timely input into its development. In developing the regulatory options
described in this final action, EPA consulted with 10 national
organizations representing state and local elected officials to ensure
meaningful and timely input by state/local governments, consisting of
two consultation components. This consultation is described and
summarized in the UMRA section above.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA specifically solicited comment on the proposed action
from state and local officials. EPA received comments from over two
hundred (200) entities representing state and local governments. The
comments submitted primarily addressed the issue presented in the
proposal of which approach to regulating CCR was appropriate--a
regulation under subtitle C or under subtitle D of RCRA. The state and
local government commenters overwhelming
[[Page 21465]]
voiced their opposition to a regulation under subtitle C, citing
impacts to state programs if EPA were to bring such a large number of
facilities and a large volume of waste into the subtitle C universe.
State governments were very concerned with the resources which would be
required to issue subtitle C permits to these facilities and to develop
and obtain EPA approval of revisions to their authorized RCRA subtitle
C programs. They also expressed concerns about the limits in the
existing hazardous waste disposal capacity in the United States to
absorb such a large volume of new wastes, also citing the financial
burden and potential liability problems for cities and towns that
operate landfills or use landfills to dispose of waste that might
include coal ash.
In addition, states and local governments expressed concern that a
subtitle C rule would have a negative effect on beneficial use of CCR
and on state beneficial use programs. State and local governments fully
supported continued beneficial use of CCR and continuation of the
Bevill exemption for CCR beneficial use. They requested that EPA
establish standards to ensure that beneficial uses are protective of
human health and the environment and ensure consistency in management
of these materials throughout the country. They specifically cited the
use of CCR in cement and concrete applications, highway construction
projects and wallboard manufacture (among other uses) and the impacts
to municipalities through increased costs and potential job loss if CCR
is classified as a hazardous waste. They also noted an expectation that
utility rates would rise as a result of CCR being disposed of in
landfills rather than being used for beneficial purposes, due to
limited availability of commercial hazardous waste disposal facilities
and costs of transporting high volumes of CCR to these facilities.
State Departments of Transportation expressed particular concern that a
subtitle C rule would negatively affect the use of CCR in road bed.
Commenters further supported continued beneficial use of CCR to reduce
the need for mining for substitute products in cement and concrete.
Finally, should CCR be classified as a hazardous waste, they indicated
the need for EPA to clarify that products made using CCR are new
products and not considered hazardous wastes, and may be treated in the
same manner as similar products made without CCR.
Since EPA is promulgating this regulation under subtitle D, the
concerns over the potential effect of a subtitle C regulation on
beneficial use are moot. Moreover in this final rule, EPA has
established a definition for beneficial use which we believe makes
clear the distinction between beneficial use and disposal. This is
fully discussed in Unit VI of this document.
While States supported a rule under subtitle D, they also voiced
concern about the need for flexibility to address site-specific
situations, as would be available under a state permitting program, and
concern about potential inconsistencies between the new federal
requirements and existing State programs. States suggested that
regulation under subtitle D should embrace the existing state
permitting programs--allowing state permitting programs as the
foundation for regulating CCR disposal--and requested financial
incentives to implement federal criteria through state solid waste
programs. They also emphasized the need to allow time for states to
make necessary changes in existing state rules and statutes to
incorporate federal criteria. A few expressed the desire that financial
assurance for closure, post closure care, and corrective action should
be included in the final rule as a mechanism to ensure that funds will
be provided by owners and operators to carry out these activities.
As fully explained earlier in this document, EPA is promulgating
this rule under subtitle D of RCRA. As such, these regulations
constitute the minimum federal requirements which apply to CCR units.
States are not required to adopt these regulations or to revise their
state programs to incorporate the new federal requirements. As fully
discussed in Unit V of this document, ``Development of the RCRA
Subtitle D Regulatory Approach,'' sections 1008(a), 4004, and 4005(a)
of RCRA (i.e., subtitle D) does not provide EPA with the ability to
require states to issue permits, to approve state programs to operate
in lieu of the federal program, or to enforce any of the requirements
addressing the disposal of CCR. Consequently EPA designed the final
rule to ensure protection of public health and the environment within
these limitations. In addition, to help address potential
implementation challenges that this statutory and resulting regulatory
structure impose, as fully set out in Section IX of this document, EPA
is encouraging states to revise their Solid Waste Management Plans and
to submit these to EPA for approval.
A complete list of the comments from state and local governments
has been provided to the Office of Management and Budget and has been
placed in the docket for this rulemaking. In addition, the detailed
response to comments from these entities is contained in EPA's response
to comments document on this rulemaking.
As required by section 8(a) of Executive Order 13132, EPA included
a certification from its Federalism Official stating that EPA had met
the Executive Order's requirements in a meaningful and timely manner
when it sent the draft of this final action to OMB for review pursuant
to Executive Order 12866. A copy of this certification is included in
the public version of the official record for this final action.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) EPA may not issue a regulation that has tribal implications, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by tribal governments, or
EPA consults with tribal officials early in the process of developing
the proposed regulation and develops a tribal summary impact statement.
EPA has concluded that this action may have tribal implications.
However, it will neither impose substantial direct compliance costs on
tribal governments, nor preempt Tribal law. As identified in EPA's
Regulatory Impact Analysis for this action, there are no known tribal
owner entities of the coal-fired electric utility plants affected by
this action. Although there are three of the 414 coal-fired electric
utility plants (in operation as of 2012) which are located on tribal
lands, they are not owned by tribal governments. These are: (1) Navajo
Generating Station in Coconino County, owned by the Arizona Salt River
Project; (2) Bonanza Power Plant in Uintah County, Utah, owned by the
Deseret Generation and Transmission Cooperative; and (3) Four Corners
Power Plant in San Juan County, New Mexico owned by the Arizona Public
Service Company. The Navajo Generating Station and the Four Corners
Power Plant are on lands belonging to the Navajo Nation, while the
Bonanza Power Plant is located on the Uintah and Ouray Reservation of
the Ute Indian Tribe.
EPA consulted with tribal officials early in the process of
developing this regulation to permit them to have meaningful and timely
input into its development.
[[Page 21466]]
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is subject to E.O. 13045 (62 FR 19885, April 23, 1997)
because it is an economically significant regulatory action as defined
by E.O. 12866, and EPA believes that the environmental health or safety
risks addressed by this action may have a disproportionate effect on
children. Accordingly, we have evaluated the environmental health or
safety effects of Coal Combustion Residual constituents of potential
concern on children. The results of this evaluation are contained in
the Human and Ecological Risk Assessment of Coal Combustion Wastes
available in the docket for this action.
As ordered by E.O. 13045 Section 1-101(a), EPA identified and
assessed environmental health risks and safety risks that may
disproportionately affect children in the revised risk assessment.
Pursuant to U.S. EPA's Guidance on Selecting Age Groups for Monitoring
and Assessing Childhood Exposures to Environmental Contaminants,
children are divided into seven distinct age cohorts: 1 to <2 yr, 2 to
<3 yr, 3 to <6 yr 6 to <11 yr, 11 to <16 yr, 16 to <21 yr, and infants
(<1 yr). Using exposure factors for each of these cohorts, EPA
calculated cancer and non-cancer risk results in both the screening and
probabilistic phases of the assessment. In general, risks to infants
tended to be higher than other childhood cohorts, and also higher than
risks to adults. However, for drinking water cancer risks, the longer
exposures for adults led to the highest risks. Screening risks exceeded
EPA's human health criteria for children exposed to contaminated air,
soil, and food resulting from fugitive dust emissions and run-off.
Similarly, 90th percentile child cancer and non-cancer risks exceeded
the human health criteria for the groundwater to drinking water pathway
under the full probabilistic analysis (Table 5-17 in the Human and
Ecological Risk Assessment of Coal Combustion Wastes). As ordered by
E.O. 13045 Section 101(b) EPA has ensured that the standard addresses
disproportionate risks to children that result from environmental
health risks. The results of the screening assessment finds that risks
fell below the criteria when wetting and run-on/runoff controls
required by the rule are considered. Under the full probabilistic
analysis, composite liners required by the rule for new waste
management units showed the ability to reduce the 90th percentile child
cancer and non-cancer risks for the groundwater to drinking water
pathway to well below EPA's criteria. Additionally, the groundwater
monitoring and corrective action required by the rule will reduce risks
from current waste management units. Thus, EPA believes that this rule
will be protective of children's health.
In general, because the pollution control requirements under the
CCR rule will reduce health and environmental exposure risks at all
coal-fired electric utility plants, the CCR rule is not expected to
create additional or new risks to children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 (66 FR 28355 (May 22, 2001)) requires EPA to
prepare and submit a Statement of Energy Effects to the Administrator
of the Office of Information and Regulatory Affairs, Office of
Management and Budget (OMB), for actions identified as ``significant
energy actions.'' This action, which is a significant regulatory action
under Executive Order 12866, is not likely to have a significant
adverse effect on the supply, distribution, or use of energy based on
the results of the electricity price impact estimates of the Regulatory
Impact Analysis (RIA) for this action. We have prepared a Statement of
Energy Effects for this action.
According to Executive Order 13211, the statement should address
(i) any adverse effects on energy supply, distribution, or use,
(including a shortfall in supply, price increases, and increased use of
foreign supplies) should the proposal be implemented, and (ii)
reasonable alternatives to the action with adverse energy effects and
the expected effects of such alternatives on energy supply,
distribution, and use.
The potential impact of the final CCR rule on electricity prices is
analyzed relative to the ``in excess of one percent'' threshold which
is one of nine alternative numerical indicators established by OMB for
defining ``significant adverse effect'' under Executive Order
13211.\233\ The integrated planning model (IPM) estimates potential
increases in wholesale electricity prices for 22 National Energy
Modeling System (NEMS) regions. In addition, the analysis focuses on
potential changes in electricity prices in 2020, 2025, and 2030. The
analysis focuses on these relatively early year in the analytic time
horizon examined in the RIA to minimize uncertainty in the estimated
electricity price impacts. In addition, under the provisions of the
rule, the year 2018 is when impoundments begin to undergo closure or
wet/dry conversion if they are found to be leaking. Therefore, 2020,
2025, and 2030 represent high-cost year relative to other years in the
analytic time horizon, and the analysis presented here will likely
yield conservative estimates of the rule's impact on electricity
prices.
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\233\ OMB defines nine alternative numerical indicators of
``significant adverse effect'' on energy supply, distribution, or
use in Section 4 of its ``Memorandum for Heads of Executive
Departments and Agencies, and Independent Regulatory Agencies,'' M-
01-27, July 13, 2001.
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Using IPM, the weighted average nationwide potential increase in
the wholesale price of electricity is not expected to exceed one
percent (between .18% and 0.19% in the years 2020 through 2030).
However, for one of the 22 NEMS regions (AZNM), the RIA projects a
potential price increase above one percent (between 0.78% and 1.05% in
the years 2020 through 2030).
Finally, any retail electricity price increases, if they occur,
would have the effect of offsetting a portion of the compliance costs
to electric utilities estimated in the RIA, as the utilities would be
recovering costs through price increases to customers. Therefore, these
impacts are not additive to total rule costs, but would instead offset
costs to utilities estimated in the RIA.
Only one region may slightly exceed a one percent electricity price
increase, which the RIA estimated without considering the potential
reduction in such impact with the compliance deadline flexibility of
this action for CCR surface impoundments. Thus all regions are likely
to experience less than one percent electricity price impacts of this
action. Therefore, this statement does not address reasonable
alternatives to the action because EPA does not expect this action to
have adverse energy effects as defined by OMB.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
[[Page 21467]]
available and applicable voluntary consensus standards.
This rulemaking involves technical standards. EPA has decided to
use the following technical standards in this rule: (1) RCRA Subpart D,
Section 257.70 liner design criteria for new CCR landfills and any
lateral expansion of a CCR landfill includes voluntary consensus
standards developed by ASTM International and EPA test methods such as
SW-846, (2) Section 257.71 liner design criteria for existing CCR
surface impoundments include voluntary consensus standards developed by
ASTM International and EPA test methods such as SW-846, (3) Section
257.72 liner design criteria for new CCR surface impoundments and any
lateral expansion of a CCR surface impoundment include voluntary
consensus standards developed by ASTM International and EPA test
methods such as SW-846, and (4) Section 257.73 structural stability
standards for new and existing surface impoundments use the ASTM D 698
and 1557 standards for embankment compaction.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (E.O.) 12898 (59 FR 7629, Feb. 16, 1994)
establishes federal executive policy on environmental justice. Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population.
EPA's risk assessment for this action did not separately evaluate
either minority or low income populations. However, to evaluate the
demographic characteristics of communities that may be affected by the
CCR rule, the RIA compares the demographic characteristics of
populations surrounding coal-fired electric utility plants with broader
population data for two geographic areas: (1) One-mile radius from CCR
management units (i.e., landfills and impoundments) likely to be
affected by groundwater releases from both landfills and impoundments;
and (2) watershed catchment areas downstream of surface impoundments
that receive surface water run-off and releases from CCR impoundments
and are at risk of being contaminated from CCR impoundment discharges
(e.g., unintentional overflows, structural failures, and intentional
periodic discharges).
For the population as a whole 24.8% belong to a minority group and
11.3% falls below the Federal Poverty Level. For the population living
within one mile of plants with surface impoundments 16.1% belong to a
minority group and 13.2% live below the Federal Poverty Level. These
minority and low-income populations are not disproportionately high
compared to the general population. The percentage of minority
residents of the entire population living within the catchment areas
downstream of surface impoundments is disproportionately high relative
to the general population, i.e., 28.7%, versus 24.8% for the national
population. Also, the percentage of the population within the catchment
areas of surface impoundments that is below the Federal Poverty Level
is disproportionately high compared with the general population, i.e.,
18.6% versus 11.3% nationally.
Comparing the population percentages of minority and low income
residents within one mile of landfills to those percentages in the
general population, EPA found that minority and low-income residents
make up a smaller percentage of the populations near landfills than
they do in the general population, i.e., minorities comprised 16.6% of
the population near landfills versus 24.8% nationwide and low-income
residents comprised 8.6% of the population near landfills versus 11.3%
nationwide. In summary, although populations within the catchment areas
of plants with surface impoundments appear to have disproportionately
high percentages of minority and low-income residents relative to the
nationwide average, populations surrounding plants with landfills do
not. Because landfills are less likely than impoundments to experience
surface water run-off and releases, catchment areas were not considered
for landfills.
Because the CCR rule is risk-reducing, with reductions in risk
occurring largely within the surface water catchment zones around, and
groundwater beneath, coal-fired electric utility plants, the rule will
not result in new disproportionate risks to minority or low-income
populations.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective 180 days after its publication in
the Federal Register.
List of Subjects
40 CFR Part 257
Environmental protection, Beneficial use, Coal combustion products,
Coal combustion residuals, Coal combustion waste, Disposal, Hazardous
waste, Landfill, Surface impoundment.
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Dated: December 19, 2014.
Gina McCarthy,
Administrator.
For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations is amended as follows:
PART 257--CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL
FACILITIES AND PRACTICES
0
1. The authority citation for part 257 continues to read as follows:
Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 6944(a); 33 U.S.C.
1345(d) and (e).
0
2. Section 257.1 is amended by:
0
a. Adding a sentence at the end of paragraph (a) introductory text;
0
b. Revising paragraphs (a)(1) and (2); and
0
c. Adding paragraph (c)(12).
The revisions and additions read as follows:
[[Page 21468]]
Sec. 257.1 Scope and purpose.
(a) * * * Unless otherwise provided, the criteria in Sec. Sec.
257.50 through 257.107 are adopted for determining which CCR landfills
and CCR surface impoundments pose a reasonable probability of adverse
effects on health or the environment under sections 1008(a)(3) and
4004(a) of the Act.
(1) Facilities failing to satisfy any of the criteria in Sec. Sec.
257.1 through 257.4 or Sec. Sec. 257.5 through 257.30 or Sec. Sec.
257.50 through 257.107 are considered open dumps, which are prohibited
under section 4005 of the Act.
(2) Practices failing to satisfy any of the criteria in Sec. Sec.
257.1 through 257.4 or Sec. Sec. 257.5 through 257.30 or Sec. Sec.
257.50 through 257.107 constitute open dumping, which is prohibited
under section 4005 of the Act.
* * * * *
(c) * * *
(12) Except as otherwise specifically provided in subpart D of this
part, the criteria in subpart A of this part do not apply to CCR
landfills, CCR surface impoundments, and lateral expansions of CCR
units, as those terms are defined in subpart D of this part. Such units
are instead subject to subpart D of this part.
0
3. Section 257.2 is amended by adding in alphabetical order definitions
for ``CCR landfill'' and ``CCR surface impoundment'' to read as
follows:
Sec. 257.2 Definitions.
* * * * *
CCR landfill means an area of land or an excavation that receives
CCR and which is not a surface impoundment, an underground injection
well, a salt dome formation, a salt bed formation, an underground or
surface coal mine, or a cave. For purposes of this subpart, a CCR
landfill also includes sand and gravel pits and quarries that receive
CCR, CCR piles, and any practice that does not meet the definition of a
beneficial use of CCR.
CCR surface impoundment means a natural topographic depression,
man-made excavation, or diked area, which is designed to hold an
accumulation of CCR and liquids, and the unit treats, stores, or
disposes of CCR.
* * * * *
0
4. Part 257 is amended by:
0
a. Adding and reserving subpart C; and
0
b. Adding subpart D.
The additions read as follows:
Subpart C--[Reserved]
Subpart D--Standards for the Disposal of Coal Combustion Residuals in
Landfills and Surface Impoundments
General Provisions
Sec.
257.50 Scope and purpose.
257.51 Effective date of this subpart.
257.52 Applicability of other regulations.
257.53 Definitions.
Location Restrictions
257.60 Placement above the uppermost aquifer.
257.61 Wetlands.
257.62 Fault areas.
257.63 Seismic impact zones.
257.64 Unstable areas.
Design Criteria
257.70 Design criteria for new CCR landfills and any lateral
expansion of a CCR landfill.
257.71 Liner design criteria for existing CCR surface impoundments.
257.72 Design criteria for new CCR surface impoundments and any
lateral expansion of a CCR surface impoundment.
257.73 Structural integrity criteria for existing CCR surface
impoundments.
257.74 Structural integrity criteria for new CCR surface
impoundments and any lateral expansion of a CCR surface impoundment.
Operating Criteria
257.80 Air criteria.
257.81 Run-on and run-off controls for CCR landfills.
257.82 Hydrologic and hydraulic capacity requirements for CCR
surface impoundments.
257.83 Inspection requirements for CCR surface impoundments.
257.84 Inspection requirements for CCR landfills.
Groundwater Monitoring and Corrective Action
257.90 Applicability.
257.91 Groundwater monitoring systems.
257.92 [Reserved]
257.93 Groundwater sampling and analysis requirements.
257.94 Detection monitoring program.
257.95 Assessment monitoring program.
257.96 Assessment of corrective measures.
257.97 Selection of remedy.
257.98 Implementation of the corrective action program.
Closure and Post-Closure Care
257.100 Inactive CCR surface impoundments.
257.101 Closure or retrofit of CCR units.
257.102 Criteria for conducting the closure or retrofit of CCR
units.
257.103 Alternative closure requirements.
257.104 Post-closure care requirements.
Recordkeeping, Notification, and Posting of Information to the Internet
257.105 Recordkeeping requirements.
257.106 Notification requirements.
257.107 Publicly accessible internet site requirements.
Subpart D--Standards for the Disposal of Coal Combustion Residuals
in Landfills and Surface Impoundments
Sec. 257.50 Scope and purpose.
(a) This subpart establishes minimum national criteria for purposes
of determining which solid waste disposal facilities and solid waste
management practices do not pose a reasonable probability of adverse
effects on health or the environment under sections 1008(a)(3) and
4004(a) of the Resource Conservation and Recovery Act.
(b) This subpart applies to owners and operators of new and
existing landfills and surface impoundments, including any lateral
expansions of such units that dispose or otherwise engage in solid
waste management of CCR generated from the combustion of coal at
electric utilities and independent power producers. Unless otherwise
provided in this subpart, these requirements also apply to disposal
units located off-site of the electric utility or independent power
producer. This subpart also applies to any practice that does not meet
the definition of a beneficial use of CCR.
(c) This subpart also applies to inactive CCR surface impoundments
at active electric utilities or independent power producers, regardless
of the fuel currently used at the facility to produce electricity.
(d) This subpart does not apply to CCR landfills that have ceased
receiving CCR prior to October 19, 2015.
(e) This subpart does not apply to electric utilities or
independent power producers that have ceased producing electricity
prior to October 19, 2015.
(f) This subpart does not apply to wastes, including fly ash,
bottom ash, boiler slag, and flue gas desulfurization materials
generated at facilities that are not part of an electric utility or
independent power producer, such as manufacturing facilities,
universities, and hospitals. This subpart also does not apply to fly
ash, bottom ash, boiler slag, and flue gas desulfurization materials,
generated primarily from the combustion of fuels (including other
fossil fuels) other than coal, for the purpose of generating
electricity unless the fuel burned consists of more than fifty percent
(50%) coal on a total heat input or mass input basis, whichever results
in the greater mass feed rate of coal.
(g) This subpart does not apply to practices that meet the
definition of a beneficial use of CCR.
[[Page 21469]]
(h) This subpart does not apply to CCR placement at active or
abandoned underground or surface coal mines.
(i) This subpart does not apply to municipal solid waste landfills
that receive CCR.
Sec. 257.51 Effective date of this subpart.
The requirements of this subpart take effect on October 19, 2015.
Sec. 257.52 Applicability of other regulations.
(a) Compliance with the requirements of this subpart does not
affect the need for the owner or operator of a CCR landfill, CCR
surface impoundment, or lateral expansion of a CCR unit to comply with
all other applicable federal, state, tribal, or local laws or other
requirements.
(b) Any CCR landfill, CCR surface impoundment, or lateral expansion
of a CCR unit continues to be subject to the requirements in Sec. Sec.
257.3-1, 257.3-2, and 257.3-3.
Sec. 257.53 Definitions.
The following definitions apply to this subpart. Terms not defined
in this section have the meaning given by RCRA.
Acre foot means the volume of one acre of surface area to a depth
of one foot.
Active facility or active electric utilities or independent power
producers means any facility subject to the requirements of this
subpart that is in operation on October 14, 2015. An electric utility
or independent power producer is in operation if it is generating
electricity that is provided to electric power transmission systems or
to electric power distribution systems on or after October 14, 2015. An
off-site disposal facility is in operation if it is accepting or
managing CCR on or after October 14, 2015.
Active life or in operation means the period of operation beginning
with the initial placement of CCR in the CCR unit and ending at
completion of closure activities in accordance with Sec. 257.102.
Active portion means that part of the CCR unit that has received or
is receiving CCR or non-CCR waste and that has not completed closure in
accordance with Sec. 257.102.
Aquifer means a geologic formation, group of formations, or portion
of a formation capable of yielding usable quantities of groundwater to
wells or springs.
Area-capacity curves means graphic curves which readily show the
reservoir water surface area, in acres, at different elevations from
the bottom of the reservoir to the maximum water surface, and the
capacity or volume, in acre-feet, of the water contained in the
reservoir at various elevations.
Areas susceptible to mass movement means those areas of influence
(i.e., areas characterized as having an active or substantial
possibility of mass movement) where, because of natural or human-
induced events, the movement of earthen material at, beneath, or
adjacent to the CCR unit results in the downslope transport of soil and
rock material by means of gravitational influence. Areas of mass
movement include, but are not limited to, landslides, avalanches,
debris slides and flows, soil fluctuation, block sliding, and rock
fall.
Beneficial use of CCR means the CCR meet all of the following
conditions:
(1) The CCR must provide a functional benefit;
(2) The CCR must substitute for the use of a virgin material,
conserving natural resources that would otherwise need to be obtained
through practices, such as extraction;
(3) The use of the CCR must meet relevant product specifications,
regulatory standards or design standards when available, and when such
standards are not available, the CCR is not used in excess quantities;
and
(4) When unencapsulated use of CCR involving placement on the land
of 12,400 tons or more in non-roadway applications, the user must
demonstrate and keep records, and provide such documentation upon
request, that environmental releases to groundwater, surface water,
soil and air are comparable to or lower than those from analogous
products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use.
Closed means placement of CCR in a CCR unit has ceased, and the
owner or operator has completed closure of the CCR unit in accordance
with Sec. 257.102 and has initiated post-closure care in accordance
with Sec. 257.104.
Coal combustion residuals (CCR) means fly ash, bottom ash, boiler
slag, and flue gas desulfurization materials generated from burning
coal for the purpose of generating electricity by electric utilities
and independent power producers.
CCR fugitive dust means solid airborne particulate matter that
contains or is derived from CCR, emitted from any source other than a
stack or chimney.
CCR landfill or landfill means an area of land or an excavation
that receives CCR and which is not a surface impoundment, an
underground injection well, a salt dome formation, a salt bed
formation, an underground or surface coal mine, or a cave. For purposes
of this subpart, a CCR landfill also includes sand and gravel pits and
quarries that receive CCR, CCR piles, and any practice that does not
meet the definition of a beneficial use of CCR.
CCR pile or pile means any non-containerized accumulation of solid,
non-flowing CCR that is placed on the land. CCR that is beneficially
used off-site is not a CCR pile.
CCR surface impoundment or impoundment means a natural topographic
depression, man-made excavation, or diked area, which is designed to
hold an accumulation of CCR and liquids, and the unit treats, stores,
or disposes of CCR.
CCR unit means any CCR landfill, CCR surface impoundment, or
lateral expansion of a CCR unit, or a combination of more than one of
these units, based on the context of the paragraph(s) in which it is
used. This term includes both new and existing units, unless otherwise
specified.
Dike means an embankment, berm, or ridge of either natural or man-
made materials used to prevent the movement of liquids, sludges,
solids, or other materials.
Displacement means the relative movement of any two sides of a
fault measured in any direction.
Disposal means the discharge, deposit, injection, dumping,
spilling, leaking, or placing of any solid waste as defined in section
1004(27) of the Resource Conservation and Recovery Act into or on any
land or water so that such solid waste, or constituent thereof, may
enter the environment or be emitted into the air or discharged into any
waters, including groundwaters. For purposes of this subpart, disposal
does not include the storage or the beneficial use of CCR.
Downstream toe means the junction of the downstream slope or face
of the CCR surface impoundment with the ground surface.
Encapsulated beneficial use means a beneficial use of CCR that
binds the CCR into a solid matrix that minimizes its mobilization into
the surrounding environment.
Existing CCR landfill means a CCR landfill that receives CCR both
before and after October 14, 2015, or for which construction commenced
prior to October 14, 2015 and receives CCR on or after October 14,
2015. A CCR landfill has commenced construction if the owner or
operator has obtained the federal, state, and local approvals or
permits necessary to begin physical
[[Page 21470]]
construction and a continuous on-site, physical construction program
had begun prior to October 14, 2015.
Existing CCR surface impoundment means a CCR surface impoundment
that receives CCR both before and after October 14, 2015, or for which
construction commenced prior to October 14, 2015 and receives CCR on or
after October 14, 2015. A CCR surface impoundment has commenced
construction if the owner or operator has obtained the federal, state,
and local approvals or permits necessary to begin physical construction
and a continuous on-site, physical construction program had begun prior
to October 14, 2015.
Facility means all contiguous land, and structures, other
appurtenances, and improvements on the land, used for treating,
storing, disposing, or otherwise conducting solid waste management of
CCR. A facility may consist of several treatment, storage, or disposal
operational units (e.g., one or more landfills, surface impoundments,
or combinations of them).
Factor of safety (Safety factor) means the ratio of the forces
tending to resist the failure of a structure to the forces tending to
cause such failure as determined by accepted engineering practice.
Fault means a fracture or a zone of fractures in any material along
which strata on one side have been displaced with respect to that on
the other side.
Flood hydrograph means a graph showing, for a given point on a
stream, the discharge, height, or other characteristic of a flood as a
function of time.
Freeboard means the vertical distance between the lowest point on
the crest of the impoundment dike and the surface of the waste
contained therein.
Free liquids means liquids that readily separate from the solid
portion of a waste under ambient temperature and pressure.
Groundwater means water below the land surface in a zone of
saturation.
Hazard potential classification means the possible adverse
incremental consequences that result from the release of water or
stored contents due to failure of the diked CCR surface impoundment or
mis-operation of the diked CCR surface impoundment or its
appurtenances. The hazardous potential classifications include high
hazard potential CCR surface impoundment, significant hazard potential
CCR surface impoundment, and low hazard potential CCR surface
impoundment, which terms mean:
(1) High hazard potential CCR surface impoundment means a diked
surface impoundment where failure or mis-operation will probably cause
loss of human life.
(2) Low hazard potential CCR surface impoundment means a diked
surface impoundment where failure or mis-operation results in no
probable loss of human life and low economic and/or environmental
losses. Losses are principally limited to the surface impoundment
owner's property.
(3) Significant hazard potential CCR surface impoundment means a
diked surface impoundment where failure or mis-operation results in no
probable loss of human life, but can cause economic loss, environmental
damage, disruption of lifeline facilities, or impact other concerns.
Height means the vertical measurement from the downstream toe of
the CCR surface impoundment at its lowest point to the lowest elevation
of the crest of the CCR surface impoundment.
Holocene means the most recent epoch of the Quaternary period,
extending from the end of the Pleistocene Epoch, at 11,700 years before
present, to present.
Hydraulic conductivity means the rate at which water can move
through a permeable medium (i.e., the coefficient of permeability).
Inactive CCR surface impoundment means a CCR surface impoundment
that no longer receives CCR on or after October 14, 2015 and still
contains both CCR and liquids on or after October 14, 2015.
Incised CCR surface impoundment means a CCR surface impoundment
which is constructed by excavating entirely below the natural ground
surface, holds an accumulation of CCR entirely below the adjacent
natural ground surface, and does not consist of any constructed diked
portion.
Indian country or Indian lands means:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running throughout
the reservation;
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of the
State; and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights of way running through the same.
Indian Tribe or Tribe means any Indian tribe, band, nation, or
community recognized by the Secretary of the Interior and exercising
substantial governmental duties and powers on Indian lands.
Inflow design flood means the flood hydrograph that is used in the
design or modification of the CCR surface impoundments and its
appurtenant works.
In operation means the same as active life.
Karst terrain means an area where karst topography, with its
characteristic erosional surface and subterranean features, is
developed as the result of dissolution of limestone, dolomite, or other
soluble rock. Characteristic physiographic features present in karst
terranes include, but are not limited to, dolines, collapse shafts
(sinkholes), sinking streams, caves, seeps, large springs, and blind
valleys.
Lateral expansion means a horizontal expansion of the waste
boundaries of an existing CCR landfill or existing CCR surface
impoundment made after October 14, 2015.
Liquefaction factor of safety means the factor of safety (safety
factor) determined using analysis under liquefaction conditions.
Lithified earth material means all rock, including all naturally
occurring and naturally formed aggregates or masses of minerals or
small particles of older rock that formed by crystallization of magma
or by induration of loose sediments. This term does not include man-
made materials, such as fill, concrete, and asphalt, or unconsolidated
earth materials, soil, or regolith lying at or near the earth surface.
Maximum horizontal acceleration in lithified earth material means
the maximum expected horizontal acceleration at the ground surface as
depicted on a seismic hazard map, with a 98% or greater probability
that the acceleration will not be exceeded in 50 years, or the maximum
expected horizontal acceleration based on a site-specific seismic risk
assessment.
New CCR landfill means a CCR landfill or lateral expansion of a CCR
landfill that first receives CCR or commences construction after
October 14, 2015. A new CCR landfill has commenced construction if the
owner or operator has obtained the federal, state, and local approvals
or permits necessary to begin physical construction and a continuous
on-site, physical construction program had begun after October 14,
2015. Overfills are also considered new CCR landfills.
New CCR surface impoundment means a CCR surface impoundment or
lateral expansion of an existing or new CCR surface impoundment that
first receives CCR or commences construction after October 14, 2015. A
[[Page 21471]]
new CCR surface impoundment has commenced construction if the owner or
operator has obtained the federal, state, and local approvals or
permits necessary to begin physical construction and a continuous on-
site, physical construction program had begun after October 14, 2015.
Operator means the person(s) responsible for the overall operation
of a CCR unit.
Overfill means a new CCR landfill constructed over a closed CCR
surface impoundment.
Owner means the person(s) who owns a CCR unit or part of a CCR
unit.
Poor foundation conditions mean those areas where features exist
which indicate that a natural or human-induced event may result in
inadequate foundation support for the structural components of an
existing or new CCR unit. For example, failure to maintain static and
seismic factors of safety as required in Sec. Sec. 257.73(e) and
257.74(e) would cause a poor foundation condition.
Probable maximum flood means the flood that may be expected from
the most severe combination of critical meteorologic and hydrologic
conditions that are reasonably possible in the drainage basin.
Qualified person means a person or persons trained to recognize
specific appearances of structural weakness and other conditions which
are disrupting or have the potential to disrupt the operation or safety
of the CCR unit by visual observation and, if applicable, to monitor
instrumentation.
Qualified professional engineer means an individual who is licensed
by a state as a Professional Engineer to practice one or more
disciplines of engineering and who is qualified by education, technical
knowledge and experience to make the specific technical certifications
required under this subpart. Professional engineers making these
certifications must be currently licensed in the state where the CCR
unit(s) is located.
Recognized and generally accepted good engineering practices means
engineering maintenance or operation activities based on established
codes, widely accepted standards, published technical reports, or a
practice widely recommended throughout the industry. Such practices
generally detail approved ways to perform specific engineering,
inspection, or mechanical integrity activities.
Retrofit means to remove all CCR and contaminated soils and
sediments from the CCR surface impoundment, and to ensure the unit
complies with the requirements in Sec. 257.72
Representative sample means a sample of a universe or whole (e.g.,
waste pile, lagoon, and groundwater) which can be expected to exhibit
the average properties of the universe or whole. See EPA publication
SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical
Methods, Chapter 9 (available at http://www.epa.gov/epawaste/hazard/testmethods/sw846/online/index.htm) for a discussion and examples of
representative samples.
Run-off means any rainwater, leachate, or other liquid that drains
over land from any part of a CCR landfill or lateral expansion of a CCR
landfill.
Run-on means any rainwater, leachate, or other liquid that drains
over land onto any part of a CCR landfill or lateral expansion of a CCR
landfill.
Sand and gravel pit or quarry means an excavation for the
extraction of aggregate, minerals or metals. The term sand and gravel
pit and/or quarry does not include subsurface or surface coal mines.
Seismic factor of safety means the factor of safety (safety factor)
determined using analysis under earthquake conditions using the peak
ground acceleration for a seismic event with a 2% probability of
exceedance in 50 years, equivalent to a return period of approximately
2,500 years, based on the U.S. Geological Survey (USGS) seismic hazard
maps for seismic events with this return period for the region where
the CCR surface impoundment is located.
Seismic impact zone means an area having a 2% or greater
probability that the maximum expected horizontal acceleration,
expressed as a percentage of the earth's gravitational pull (g), will
exceed 0.10 g in 50 years.
Slope protection means engineered or non-engineered measures
installed on the upstream or downstream slope of the CCR surface
impoundment to protect the slope against wave action or erosion,
including but not limited to rock riprap, wooden pile, or concrete
revetments, vegetated wave berms, concrete facing, gabions,
geotextiles, or fascines.
Solid waste management or management means the systematic
administration of the activities which provide for the collection,
source separation, storage, transportation, processing, treatment, or
disposal of solid waste.
State means any of the fifty States in addition to the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, and the Commonwealth of the Northern Mariana Islands.
State Director means the chief administrative officer of the lead
state agency responsible for implementing the state program regulating
disposal in CCR landfills, CCR surface impoundments, and all lateral
expansions of a CCR unit.
Static factor of safety means the factor of safety (safety factor)
determined using analysis under the long-term, maximum storage pool
loading condition, the maximum surcharge pool loading condition, and
under the end-of-construction loading condition.
Structural components mean liners, leachate collection and removal
systems, final covers, run-on and run-off systems, inflow design flood
control systems, and any other component used in the construction and
operation of the CCR unit that is necessary to ensure the integrity of
the unit and that the contents of the unit are not released into the
environment.
Unstable area means a location that is susceptible to natural or
human-induced events or forces capable of impairing the integrity,
including structural components of some or all of the CCR unit that are
responsible for preventing releases from such unit. Unstable areas can
include poor foundation conditions, areas susceptible to mass
movements, and karst terrains.
Uppermost aquifer means the geologic formation nearest the natural
ground surface that is an aquifer, as well as lower aquifers that are
hydraulically interconnected with this aquifer within the facility's
property boundary. Upper limit is measured at a point nearest to the
natural ground surface to which the aquifer rises during the wet
season.
Waste boundary means a vertical surface located at the
hydraulically downgradient limit of the CCR unit. The vertical surface
extends down into the uppermost aquifer.
Location Restrictions
Sec. 257.60 Placement above the uppermost aquifer.
(a) New CCR landfills, existing and new CCR surface impoundments,
and all lateral expansions of CCR units must be constructed with a base
that is located no less than 1.52 meters (five feet) above the upper
limit of the uppermost aquifer, or must demonstrate that there will not
be an intermittent, recurring, or sustained hydraulic connection
between any portion of the base of the CCR unit and the uppermost
aquifer due to normal fluctuations in groundwater elevations (including
the seasonal high water table). The owner or operator must demonstrate
by the dates specified in paragraph (c) of this section
[[Page 21472]]
that the CCR unit meets the minimum requirements for placement above
the uppermost aquifer.
(b) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
demonstration meets the requirements of paragraph (a) of this section.
(c) The owner or operator of the CCR unit must complete the
demonstration required by paragraph (a) of this section by the date
specified in either paragraph (c)(1) or (2) of this section.
(1) For an existing CCR surface impoundment, the owner or operator
must complete the demonstration no later than October 17, 2018.
(2) For a new CCR landfill, new CCR surface impoundment, or any
lateral expansion of a CCR unit, the owner or operator must complete
the demonstration no later than the date of initial receipt of CCR in
the CCR unit.
(3) The owner or operator has completed the demonstration required
by paragraph (a) of this section when the demonstration is placed in
the facility's operating record as required by Sec. 257.105(e).
(4) An owner or operator of an existing CCR surface impoundment who
fails to demonstrate compliance with the requirements of paragraph (a)
of this section by the date specified in paragraph (c)(1) of this
section is subject to the requirements of Sec. 257.101(b)(1).
(5) An owner or operator of a new CCR landfill, new CCR surface
impoundment, or any lateral expansion of a CCR unit who fails to make
the demonstration showing compliance with the requirements of paragraph
(a) of this section is prohibited from placing CCR in the CCR unit.
(d) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(e), the
notification requirements specified in Sec. 257.106(e), and the
internet requirements specified in Sec. 257.107(e).
Sec. 257.61 Wetlands.
(a) New CCR landfills, existing and new CCR surface impoundments,
and all lateral expansions of CCR units must not be located in
wetlands, as defined in Sec. 232.2 of this chapter, unless the owner
or operator demonstrates by the dates specified in paragraph (c) of
this section that the CCR unit meets the requirements of paragraphs
(a)(1) through (5) of this section.
(1) Where applicable under section 404 of the Clean Water Act or
applicable state wetlands laws, a clear and objective rebuttal of the
presumption that an alternative to the CCR unit is reasonably available
that does not involve wetlands.
(2) The construction and operation of the CCR unit will not cause
or contribute to any of the following:
(i) A violation of any applicable state or federal water quality
standard;
(ii) A violation of any applicable toxic effluent standard or
prohibition under section 307 of the Clean Water Act;
(iii) Jeopardize the continued existence of endangered or
threatened species or result in the destruction or adverse modification
of a critical habitat, protected under the Endangered Species Act of
1973; and
(iv) A violation of any requirement under the Marine Protection,
Research, and Sanctuaries Act of 1972 for the protection of a marine
sanctuary.
(3) The CCR unit will not cause or contribute to significant
degradation of wetlands by addressing all of the following factors:
(i) Erosion, stability, and migration potential of native wetland
soils, muds and deposits used to support the CCR unit;
(ii) Erosion, stability, and migration potential of dredged and
fill materials used to support the CCR unit;
(iii) The volume and chemical nature of the CCR;
(iv) Impacts on fish, wildlife, and other aquatic resources and
their habitat from release of CCR;
(v) The potential effects of catastrophic release of CCR to the
wetland and the resulting impacts on the environment; and
(vi) Any additional factors, as necessary, to demonstrate that
ecological resources in the wetland are sufficiently protected.
(4) To the extent required under section 404 of the Clean Water Act
or applicable state wetlands laws, steps have been taken to attempt to
achieve no net loss of wetlands (as defined by acreage and function) by
first avoiding impacts to wetlands to the maximum extent reasonable as
required by paragraphs (a)(1) through (3) of this section, then
minimizing unavoidable impacts to the maximum extent reasonable, and
finally offsetting remaining unavoidable wetland impacts through all
appropriate and reasonable compensatory mitigation actions (e.g.,
restoration of existing degraded wetlands or creation of man-made
wetlands); and
(5) Sufficient information is available to make a reasoned
determination with respect to the demonstrations in paragraphs (a)(1)
through (4) of this section.
(b) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
demonstration meets the requirements of paragraph (a) of this section.
(c) The owner or operator of the CCR unit must complete the
demonstrations required by paragraph (a) of this section by the date
specified in either paragraph (c)(1) or (2) of this section.
(1) For an existing CCR surface impoundment, the owner or operator
must complete the demonstration no later than October 17, 2018.
(2) For a new CCR landfill, new CCR surface impoundment, or any
lateral expansion of a CCR unit, the owner or operator must complete
the demonstration no later than the date of initial receipt of CCR in
the CCR unit.
(3) The owner or operator has completed the demonstration required
by paragraph (a) of this section when the demonstration is placed in
the facility's operating record as required by Sec. 257.105(e).
(4) An owner or operator of an existing CCR surface impoundment who
fails to demonstrate compliance with the requirements of paragraph (a)
of this section by the date specified in paragraph (c)(1) of this
section is subject to the requirements of Sec. 257.101(b)(1).
(5) An owner or operator of a new CCR landfill, new CCR surface
impoundment, or any lateral expansion of a CCR unit who fails to make
the demonstrations showing compliance with the requirements of
paragraph (a) of this section is prohibited from placing CCR in the CCR
unit.
(d) The owner or operator must comply with the recordkeeping
requirements specified in Sec. 257.105(e), the notification
requirements specified in Sec. 257.106(e), and the Internet
requirements specified in Sec. 257.107(e).
Sec. 257.62 Fault areas.
(a) New CCR landfills, existing and new CCR surface impoundments,
and all lateral expansions of CCR units must not be located within 60
meters (200 feet) of the outermost damage zone of a fault that has had
displacement in Holocene time unless the owner or operator demonstrates
by the dates specified in paragraph (c) of this section that an
alternative setback distance of less than 60 meters (200 feet) will
prevent damage to the structural integrity of the CCR unit.
(b) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
demonstration meets the requirements of paragraph (a) of this section.
(c) The owner or operator of the CCR unit must complete the
demonstration
[[Page 21473]]
required by paragraph (a) of this section by the date specified in
either paragraph (c)(1) or (2) of this section.
(1) For an existing CCR surface impoundment, the owner or operator
must complete the demonstration no later than October 17, 2018.
(2) For a new CCR landfill, new CCR surface impoundment, or any
lateral expansion of a CCR unit, the owner or operator must complete
the demonstration no later than the date of initial receipt of CCR in
the CCR unit.
(3) The owner or operator has completed the demonstration required
by paragraph (a) of this section when the demonstration is placed in
the facility's operating record as required by Sec. 257.105(e).
(4) An owner or operator of an existing CCR surface impoundment who
fails to demonstrate compliance with the requirements of paragraph (a)
of this section by the date specified in paragraph (c)(1) of this
section is subject to the requirements of Sec. 257.101(b)(1).
(5) An owner or operator of a new CCR landfill, new CCR surface
impoundment, or any lateral expansion of a CCR unit who fails to make
the demonstration showing compliance with the requirements of paragraph
(a) of this section is prohibited from placing CCR in the CCR unit.
(d) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(e), the
notification requirements specified in Sec. 257.106(e), and the
Internet requirements specified in Sec. 257.107(e).
Sec. 257.63 Seismic impact zones.
(a) New CCR landfills, existing and new CCR surface impoundments,
and all lateral expansions of CCR units must not be located in seismic
impact zones unless the owner or operator demonstrates by the dates
specified in paragraph (c) of this section that all structural
components including liners, leachate collection and removal systems,
and surface water control systems, are designed to resist the maximum
horizontal acceleration in lithified earth material for the site.
(b) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
demonstration meets the requirements of paragraph (a) of this section.
(c) The owner or operator of the CCR unit must complete the
demonstration required by paragraph (a) of this section by the date
specified in either paragraph (c)(1) or (2) of this section.
(1) For an existing CCR surface impoundment, the owner or operator
must complete the demonstration no later than October 17, 2018.
(2) For a new CCR landfill, new CCR surface impoundment, or any
lateral expansion of a CCR unit, the owner or operator must complete
the demonstration no later than the date of initial receipt of CCR in
the CCR unit.
(3) The owner or operator has completed the demonstration required
by paragraph (a) of this section when the demonstration is placed in
the facility's operating record as required by Sec. 257.105(e).
(4) An owner or operator of an existing CCR surface impoundment who
fails to demonstrate compliance with the requirements of paragraph (a)
of this section by the date specified in paragraph (c)(1) of this
section is subject to the requirements of Sec. 257.101(b)(1).
(5) An owner or operator of a new CCR landfill, new CCR surface
impoundment, or any lateral expansion of a CCR unit who fails to make
the demonstration showing compliance with the requirements of paragraph
(a) of this section is prohibited from placing CCR in the CCR unit.
(d) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(e), the
notification requirements specified in Sec. 257.106(e), and the
Internet requirements specified in Sec. 257.107(e).
Sec. 257.64 Unstable areas.
(a) An existing or new CCR landfill, existing or new CCR surface
impoundment, or any lateral expansion of a CCR unit must not be located
in an unstable area unless the owner or operator demonstrates by the
dates specified in paragraph (d) of this section that recognized and
generally accepted good engineering practices have been incorporated
into the design of the CCR unit to ensure that the integrity of the
structural components of the CCR unit will not be disrupted.
(b) The owner or operator must consider all of the following
factors, at a minimum, when determining whether an area is unstable:
(1) On-site or local soil conditions that may result in significant
differential settling;
(2) On-site or local geologic or geomorphologic features; and
(3) On-site or local human-made features or events (both surface
and subsurface).
(c) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
demonstration meets the requirements of paragraph (a) of this section.
(d) The owner or operator of the CCR unit must complete the
demonstration required by paragraph (a) of this section by the date
specified in either paragraph (d)(1) or (2) of this section.
(1) For an existing CCR landfill or existing CCR surface
impoundment, the owner or operator must complete the demonstration no
later than October 17, 2018.
(2) For a new CCR landfill, new CCR surface impoundment, or any
lateral expansion of a CCR unit, the owner or operator must complete
the demonstration no later than the date of initial receipt of CCR in
the CCR unit.
(3) The owner or operator has completed the demonstration required
by paragraph (a) of this section when the demonstration is placed in
the facility's operating record as required by Sec. 257.105(e).
(4) An owner or operator of an existing CCR surface impoundment or
existing CCR landfill who fails to demonstrate compliance with the
requirements of paragraph (a) of this section by the date specified in
paragraph (d)(1) of this section is subject to the requirements of
Sec. 257.101(b)(1) or (d)(1), respectively.
(5) An owner or operator of a new CCR landfill, new CCR surface
impoundment, or any lateral expansion of a CCR unit who fails to make
the demonstration showing compliance with the requirements of paragraph
(a) of this section is prohibited from placing CCR in the CCR unit.
(e) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(e), the
notification requirements specified in Sec. 257.106(e), and the
Internet requirements specified in Sec. 257.107(e).
Design Criteria
Sec. 257.70 Design criteria for new CCR landfills and any lateral
expansion of a CCR landfill.
(a)(1) New CCR landfills and any lateral expansion of a CCR
landfill must be designed, constructed, operated, and maintained with
either a composite liner that meets the requirements of paragraph (b)
of this section or an alternative composite liner that meets the
requirements in paragraph (c) of this section, and a leachate
collection and removal system that meets the requirements of paragraph
(d) of this section.
(2) Prior to construction of an overfill the underlying surface
impoundment must meet the requirements of Sec. 257.102(d).
(b) A composite liner must consist of two components; the upper
component
[[Page 21474]]
consisting of, at a minimum, a 30-mil geomembrane liner (GM), and the
lower component consisting of at least a two-foot layer of compacted
soil with a hydraulic conductivity of no more than 1 x 10-7
centimeters per second (cm/sec). GM components consisting of high
density polyethylene (HDPE) must be at least 60-mil thick. The GM or
upper liner component must be installed in direct and uniform contact
with the compacted soil or lower liner component. The composite liner
must be:
(1) Constructed of materials that have appropriate chemical
properties and sufficient strength and thickness to prevent failure due
to pressure gradients (including static head and external hydrogeologic
forces), physical contact with the CCR or leachate to which they are
exposed, climatic conditions, the stress of installation, and the
stress of daily operation;
(2) Constructed of materials that provide appropriate shear
resistance of the upper and lower component interface to prevent
sliding of the upper component including on slopes;
(3) Placed upon a foundation or base capable of providing support
to the liner and resistance to pressure gradients above and below the
liner to prevent failure of the liner due to settlement, compression,
or uplift; and
(4) Installed to cover all surrounding earth likely to be in
contact with the CCR or leachate.
(c) If the owner or operator elects to install an alternative
composite liner, all of the following requirements must be met:
(1) An alternative composite liner must consist of two components;
the upper component consisting of, at a minimum, a 30-mil GM, and a
lower component, that is not a geomembrane, with a liquid flow rate no
greater than the liquid flow rate of two feet of compacted soil with a
hydraulic conductivity of no more than 1 x 10-7 cm/sec. GM
components consisting of high density polyethylene (HDPE) must be at
least 60-mil thick. If the lower component of the alternative liner is
compacted soil, the GM must be installed in direct and uniform contact
with the compacted soil.
(2) The owner or operator must obtain certification from a
qualified professional engineer that the liquid flow rate through the
lower component of the alternative composite liner is no greater than
the liquid flow rate through two feet of compacted soil with a
hydraulic conductivity of 1 x 10-7 cm/sec. The hydraulic
conductivity for the two feet of compacted soil used in the comparison
shall be no greater than 1 x 10-7 cm/sec. The hydraulic
conductivity of any alternative to the two feet of compacted soil must
be determined using recognized and generally accepted methods. The
liquid flow rate comparison must be made using Equation 1 of this
section, which is derived from Darcy's Law for gravity flow through
porous media.
[GRAPHIC] [TIFF OMITTED] TR17AP15.004
Where,
Q = flow rate (cubic centimeters/second);
A = surface area of the liner (squared centimeters);
q = flow rate per unit area (cubic centimeters/second/squared
centimeter);
k = hydraulic conductivity of the liner (centimeters/second);
h = hydraulic head above the liner (centimeters); and
t = thickness of the liner (centimeters).
(3) The alternative composite liner must meet the requirements
specified in paragraphs (b)(1) through (4) of this section.
(d) The leachate collection and removal system must be designed,
constructed, operated, and maintained to collect and remove leachate
from the landfill during the active life and post-closure care period.
The leachate collection and removal system must be:
(1) Designed and operated to maintain less than a 30-centimeter
depth of leachate over the composite liner or alternative composite
liner;
(2) Constructed of materials that are chemically resistant to the
CCR and any non-CCR waste managed in the CCR unit and the leachate
expected to be generated, and of sufficient strength and thickness to
prevent collapse under the pressures exerted by overlying waste, waste
cover materials, and equipment used at the CCR unit; and
(3) Designed and operated to minimize clogging during the active
life and post-closure care period.
(e) Prior to construction of the CCR landfill or any lateral
expansion of a CCR landfill, the owner or operator must obtain a
certification from a qualified professional engineer that the design of
the composite liner (or, if applicable, alternative composite liner)
and the leachate collection and removal system meets the requirements
of this section.
(f) Upon completion of construction of the CCR landfill or any
lateral expansion of a CCR landfill, the owner or operator must obtain
a certification from a qualified professional engineer that the
composite liner (or, if applicable, alternative composite liner) and
the leachate collection and removal system has been constructed in
accordance with the requirements of this section.
(g) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(f), the
notification requirements specified in Sec. 257.106(f), and the
Internet requirements specified in Sec. 257.107(f).
Sec. 257.71 Liner design criteria for existing CCR surface
impoundments.
(a)(1) No later than October 17, 2016, the owner or operator of an
existing CCR surface impoundment must document whether or not such unit
was constructed with any one of the following:
(i) A liner consisting of a minimum of two feet of compacted soil
with a hydraulic conductivity of no more than 1 x 10-7 cm/
sec;
(ii) A composite liner that meets the requirements of Sec.
257.70(b); or
(iii) An alternative composite liner that meets the requirements of
Sec. 257.70(c).
(2) The hydraulic conductivity of the compacted soil must be
determined using recognized and generally accepted methods.
(3) An existing CCR surface impoundment is considered to be an
existing unlined CCR surface impoundment if either:
(i) The owner or operator of the CCR unit determines that the CCR
unit is not constructed with a liner that meets the requirements of
paragraphs (a)(1)(i), (ii), or (iii) of this section; or
(ii) The owner or operator of the CCR unit fails to document
whether the CCR unit was constructed with a liner that meets the
requirements of paragraphs (a)(1)(i), (ii), or (iii) of this section.
(4) All existing unlined CCR surface impoundments are subject to
the requirements of Sec. 257.101(a).
(b) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer attesting that the
documentation as to whether a CCR unit meets the requirements of
paragraph (a) of this section is accurate.
(c) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(f), the
notification requirements specified in Sec. 257.106(f), and the
Internet requirements specified in Sec. 257.107(f).
Sec. 257.72 Liner design criteria for new CCR surface impoundments
and any lateral expansion of a CCR surface impoundment.
(a) New CCR surface impoundments and lateral expansions of existing
and new CCR surface impoundments must
[[Page 21475]]
be designed, constructed, operated, and maintained with either a
composite liner or an alternative composite liner that meets the
requirements of Sec. 257.70(b) or (c).
(b) Any liner specified in this section must be installed to cover
all surrounding earth likely to be in contact with CCR. Dikes shall not
be constructed on top of the composite liner.
(c) Prior to construction of the CCR surface impoundment or any
lateral expansion of a CCR surface impoundment, the owner or operator
must obtain certification from a qualified professional engineer that
the design of the composite liner or, if applicable, the design of an
alternative composite liner complies with the requirements of this
section.
(d) Upon completion, the owner or operator must obtain
certification from a qualified professional engineer that the composite
liner or if applicable, the alternative composite liner has been
constructed in accordance with the requirements of this section.
(e) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(f), the
notification requirements specified in Sec. 257.106(f), and the
Internet requirements specified in Sec. 257.107(f).
Sec. 257.73 Structural integrity criteria for existing CCR surface
impoundments.
(a) The requirements of paragraphs (a)(1) through (4) of this
section apply to all existing CCR surface impoundments, except for
those existing CCR surface impoundments that are incised CCR units. If
an incised CCR surface impoundment is subsequently modified (e.g., a
dike is constructed) such that the CCR unit no longer meets the
definition of an incised CCR unit, the CCR unit is subject to the
requirements of paragraphs (a)(1) through (4) of this section.
(1) No later than, December 17, 2015, the owner or operator of the
CCR unit must place on or immediately adjacent to the CCR unit a
permanent identification marker, at least six feet high showing the
identification number of the CCR unit, if one has been assigned by the
state, the name associated with the CCR unit and the name of the owner
or operator of the CCR unit.
(2) Periodic hazard potential classification assessments. (i) The
owner or operator of the CCR unit must conduct initial and periodic
hazard potential classification assessments of the CCR unit according
to the timeframes specified in paragraph (f) of this section. The owner
or operator must document the hazard potential classification of each
CCR unit as either a high hazard potential CCR surface impoundment, a
significant hazard potential CCR surface impoundment, or a low hazard
potential CCR surface impoundment. The owner or operator must also
document the basis for each hazard potential classification.
(ii) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
initial hazard potential classification and each subsequent periodic
classification specified in paragraph (a)(2)(i) of this section was
conducted in accordance with the requirements of this section.
(3) Emergency Action Plan (EAP)--(i) Development of the plan. No
later than April 17, 2017, the owner or operator of a CCR unit
determined to be either a high hazard potential CCR surface impoundment
or a significant hazard potential CCR surface impoundment under
paragraph (a)(2) of this section must prepare and maintain a written
EAP. At a minimum, the EAP must:
(A) Define the events or circumstances involving the CCR unit that
represent a safety emergency, along with a description of the
procedures that will be followed to detect a safety emergency in a
timely manner;
(B) Define responsible persons, their respective responsibilities,
and notification procedures in the event of a safety emergency
involving the CCR unit;
(C) Provide contact information of emergency responders;
(D) Include a map which delineates the downstream area which would
be affected in the event of a CCR unit failure and a physical
description of the CCR unit; and
(E) Include provisions for an annual face-to-face meeting or
exercise between representatives of the owner or operator of the CCR
unit and the local emergency responders.
(ii) Amendment of the plan. (A) The owner or operator of a CCR unit
subject to the requirements of paragraph (a)(3)(i) of this section may
amend the written EAP at any time provided the revised plan is placed
in the facility's operating record as required by Sec. 257.105(f)(6).
The owner or operator must amend the written EAP whenever there is a
change in conditions that would substantially affect the EAP in effect.
(B) The written EAP must be evaluated, at a minimum, every five
years to ensure the information required in paragraph (a)(3)(i) of this
section is accurate. As necessary, the EAP must be updated and a
revised EAP placed in the facility's operating record as required by
Sec. 257.105(f)(6).
(iii) Changes in hazard potential classification. (A) If the owner
or operator of a CCR unit determines during a periodic hazard potential
assessment that the CCR unit is no longer classified as either a high
hazard potential CCR surface impoundment or a significant hazard
potential CCR surface impoundment, then the owner or operator of the
CCR unit is no longer subject to the requirement to prepare and
maintain a written EAP beginning on the date the periodic hazard
potential assessment documentation is placed in the facility's
operating record as required by Sec. 257.105(f)(5).
(B) If the owner or operator of a CCR unit classified as a low
hazard potential CCR surface impoundment subsequently determines that
the CCR unit is properly re-classified as either a high hazard
potential CCR surface impoundment or a significant hazard potential CCR
surface impoundment, then the owner or operator of the CCR unit must
prepare a written EAP for the CCR unit as required by paragraph
(a)(3)(i) of this section within six months of completing such periodic
hazard potential assessment.
(iv) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
written EAP, and any subsequent amendment of the EAP, meets the
requirements of paragraph (a)(3) of this section.
(v) Activation of the EAP. The EAP must be implemented once events
or circumstances involving the CCR unit that represent a safety
emergency are detected, including conditions identified during periodic
structural stability assessments, annual inspections, and inspections
by a qualified person.
(4) The CCR unit and surrounding areas must be designed,
constructed, operated, and maintained with vegetated slopes of dikes
not to exceed a height of 6 inches above the slope of the dike, except
for slopes which are protected with an alternate form(s) of slope
protection.
(b) The requirements of paragraphs (c) through (e) of this section
apply to an owner or operator of an existing CCR surface impoundment
that either:
(1) Has a height of five feet or more and a storage volume of 20
acre-feet or more; or
(2) Has a height of 20 feet or more.
(c)(1) No later than October 17, 2016, the owner or operator of the
CCR unit must compile a history of construction, which shall contain,
to the extent feasible, the information specified in
[[Page 21476]]
paragraphs (c)(1)(i) through (xi) of this section.
(i) The name and address of the person(s) owning or operating the
CCR unit; the name associated with the CCR unit; and the identification
number of the CCR unit if one has been assigned by the state.
(ii) The location of the CCR unit identified on the most recent
U.S. Geological Survey (USGS) 7\1/2\ minute or 15 minute topographic
quadrangle map, or a topographic map of equivalent scale if a USGS map
is not available.
(iii) A statement of the purpose for which the CCR unit is being
used.
(iv) The name and size in acres of the watershed within which the
CCR unit is located.
(v) A description of the physical and engineering properties of the
foundation and abutment materials on which the CCR unit is constructed.
(vi) A statement of the type, size, range, and physical and
engineering properties of the materials used in constructing each zone
or stage of the CCR unit; the method of site preparation and
construction of each zone of the CCR unit; and the approximate dates of
construction of each successive stage of construction of the CCR unit.
(vii) At a scale that details engineering structures and
appurtenances relevant to the design, construction, operation, and
maintenance of the CCR unit, detailed dimensional drawings of the CCR
unit, including a plan view and cross sections of the length and width
of the CCR unit, showing all zones, foundation improvements, drainage
provisions, spillways, diversion ditches, outlets, instrument
locations, and slope protection, in addition to the normal operating
pool surface elevation and the maximum pool surface elevation following
peak discharge from the inflow design flood, the expected maximum depth
of CCR within the CCR surface impoundment, and any identifiable natural
or manmade features that could adversely affect operation of the CCR
unit due to malfunction or mis-operation.
(viii) A description of the type, purpose, and location of existing
instrumentation.
(ix) Area-capacity curves for the CCR unit.
(x) A description of each spillway and diversion design features
and capacities and calculations used in their determination.
(xi) The construction specifications and provisions for
surveillance, maintenance, and repair of the CCR unit.
(xii) Any record or knowledge of structural instability of the CCR
unit.
(2) Changes to the history of construction. If there is a
significant change to any information compiled under paragraph (c)(1)
of this section, the owner or operator of the CCR unit must update the
relevant information and place it in the facility's operating record as
required by Sec. 257.105(f)(9).
(d) Periodic structural stability assessments. (1) The owner or
operator of the CCR unit must conduct initial and periodic structural
stability assessments and document whether the design, construction,
operation, and maintenance of the CCR unit is consistent with
recognized and generally accepted good engineering practices for the
maximum volume of CCR and CCR wastewater which can be impounded
therein. The assessment must, at a minimum, document whether the CCR
unit has been designed, constructed, operated, and maintained with:
(i) Stable foundations and abutments;
(ii) Adequate slope protection to protect against surface erosion,
wave action, and adverse effects of sudden drawdown;
(iii) Dikes mechanically compacted to a density sufficient to
withstand the range of loading conditions in the CCR unit;
(iv) Vegetated slopes of dikes and surrounding areas not to exceed
a height of six inches above the slope of the dike, except for slopes
which have an alternate form or forms of slope protection;
(v) A single spillway or a combination of spillways configured as
specified in paragraph (d)(1)(v)(A) of this section. The combined
capacity of all spillways must be designed, constructed, operated, and
maintained to adequately manage flow during and following the peak
discharge from the event specified in paragraph (d)(1)(v)(B) of this
section.
(A) All spillways must be either:
(1) Of non-erodible construction and designed to carry sustained
flows; or
(2) Earth- or grass-lined and designed to carry short-term,
infrequent flows at non-erosive velocities where sustained flows are
not expected.
(B) The combined capacity of all spillways must adequately manage
flow during and following the peak discharge from a:
(1) Probable maximum flood (PMF) for a high hazard potential CCR
surface impoundment; or
(2) 1000-year flood for a significant hazard potential CCR surface
impoundment; or
(3) 100-year flood for a low hazard potential CCR surface
impoundment.
(vi) Hydraulic structures underlying the base of the CCR unit or
passing through the dike of the CCR unit that maintain structural
integrity and are free of significant deterioration, deformation,
distortion, bedding deficiencies, sedimentation, and debris which may
negatively affect the operation of the hydraulic structure; and
(vii) For CCR units with downstream slopes which can be inundated
by the pool of an adjacent water body, such as a river, stream or lake,
downstream slopes that maintain structural stability during low pool of
the adjacent water body or sudden drawdown of the adjacent water body.
(2) The periodic assessment described in paragraph (d)(1) of this
section must identify any structural stability deficiencies associated
with the CCR unit in addition to recommending corrective measures. If a
deficiency or a release is identified during the periodic assessment,
the owner or operator unit must remedy the deficiency or release as
soon as feasible and prepare documentation detailing the corrective
measures taken.
(3) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
initial assessment and each subsequent periodic assessment was
conducted in accordance with the requirements of this section.
(e) Periodic safety factor assessments. (1) The owner or operator
must conduct an initial and periodic safety factor assessments for each
CCR unit and document whether the calculated factors of safety for each
CCR unit achieve the minimum safety factors specified in paragraphs
(e)(1)(i) through (iv) of this section for the critical cross section
of the embankment. The critical cross section is the cross section
anticipated to be the most susceptible of all cross sections to
structural failure based on appropriate engineering considerations,
including loading conditions. The safety factor assessments must be
supported by appropriate engineering calculations.
(i) The calculated static factor of safety under the long-term,
maximum storage pool loading condition must equal or exceed 1.50.
(ii) The calculated static factor of safety under the maximum
surcharge pool loading condition must equal or exceed 1.40.
(iii) The calculated seismic factor of safety must equal or exceed
1.00.
(iv) For dikes constructed of soils that have susceptibility to
liquefaction, the calculated liquefaction factor of safety must equal
or exceed 1.20.
(2) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating
[[Page 21477]]
that the initial assessment and each subsequent periodic assessment
specified in paragraph (e)(1) of this section meets the requirements of
this section.
(f) Timeframes for periodic assessments--(1) Initial assessments.
Except as provided by paragraph (f)(2) of this section, the owner or
operator of the CCR unit must complete the initial assessments required
by paragraphs (a)(2), (d), and (e) of this section no later than
October 17, 2016. The owner or operator has completed an initial
assessment when the owner or operator has placed the assessment
required by paragraphs (a)(2), (d), and (e) of this section in the
facility's operating record as required by Sec. 257.105(f)(5), (10),
and (12).
(2) Use of a previously completed assessment(s) in lieu of the
initial assessment(s). The owner or operator of the CCR unit may elect
to use a previously completed assessment to serve as the initial
assessment required by paragraphs (a)(2), (d), and (e) of this section
provided that the previously completed assessment(s):
(i) Was completed no earlier than 42 months prior to October 17,
2016; and
(ii) Meets the applicable requirements of paragraphs (a)(2), (d),
and (e) of this section.
(3) Frequency for conducting periodic assessments. The owner or
operator of the CCR unit must conduct and complete the assessments
required by paragraphs (a)(2), (d), and (e) of this section every five
years. The date of completing the initial assessment is the basis for
establishing the deadline to complete the first subsequent assessment.
If the owner or operator elects to use a previously completed
assessment(s) in lieu of the initial assessment as provided by
paragraph (f)(2) of this section, the date of the report for the
previously completed assessment is the basis for establishing the
deadline to complete the first subsequent assessment. The owner or
operator may complete any required assessment prior to the required
deadline provided the owner or operator places the completed
assessment(s) into the facility's operating record within a reasonable
amount of time. In all cases, the deadline for completing subsequent
assessments is based on the date of completing the previous assessment.
For purposes of this paragraph (f)(3), the owner or operator has
completed an assessment when the relevant assessment(s) required by
paragraphs (a)(2), (d), and (e) of this section has been placed in the
facility's operating record as required by Sec. 257.105(f)(5), (10),
and (12).
(4) Closure of the CCR unit. An owner or operator of a CCR unit who
either fails to complete a timely safety factor assessment or fails to
demonstrate minimum safety factors as required by paragraph (e) of this
section is subject to the requirements of Sec. 257.101(b)(2).
(g) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(f), the
notification requirements specified in Sec. 257.106(f), and the
internet requirements specified in Sec. 257.107(f).
Sec. 257.74 Structural integrity criteria for new CCR surface
impoundments and any lateral expansion of a CCR surface impoundment.
(a) The requirements of paragraphs (a)(1) through (4) of this
section apply to all new CCR surface impoundments and any lateral
expansion of a CCR surface impoundment, except for those new CCR
surface impoundments that are incised CCR units. If an incised CCR
surface impoundment is subsequently modified (e.g., a dike is
constructed) such that the CCR unit no longer meets the definition of
an incised CCR unit, the CCR unit is subject to the requirements of
paragraphs (a)(1) through (4) of this section.
(1) No later than the initial receipt of CCR, the owner or operator
of the CCR unit must place on or immediately adjacent to the CCR unit a
permanent identification marker, at least six feet high showing the
identification number of the CCR unit, if one has been assigned by the
state, the name associated with the CCR unit and the name of the owner
or operator of the CCR unit.
(2) Periodic hazard potential classification assessments. (i) The
owner or operator of the CCR unit must conduct initial and periodic
hazard potential classification assessments of the CCR unit according
to the timeframes specified in paragraph (f) of this section. The owner
or operator must document the hazard potential classification of each
CCR unit as either a high hazard potential CCR surface impoundment, a
significant hazard potential CCR surface impoundment, or a low hazard
potential CCR surface impoundment. The owner or operator must also
document the basis for each hazard potential classification.
(ii) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
initial hazard potential classification and each subsequent periodic
classification specified in paragraph (a)(2)(i) of this section was
conducted in accordance with the requirements of this section.
(3) Emergency Action Plan (EAP)--(i) Development of the plan. Prior
to the initial receipt of CCR in the CCR unit, the owner or operator of
a CCR unit determined to be either a high hazard potential CCR surface
impoundment or a significant hazard potential CCR surface impoundment
under paragraph (a)(2) of this section must prepare and maintain a
written EAP. At a minimum, the EAP must:
(A) Define the events or circumstances involving the CCR unit that
represent a safety emergency, along with a description of the
procedures that will be followed to detect a safety emergency in a
timely manner;
(B) Define responsible persons, their respective responsibilities,
and notification procedures in the event of a safety emergency
involving the CCR unit;
(C) Provide contact information of emergency responders;
(D) Include a map which delineates the downstream area which would
be affected in the event of a CCR unit failure and a physical
description of the CCR unit; and
(E) Include provisions for an annual face-to-face meeting or
exercise between representatives of the owner or operator of the CCR
unit and the local emergency responders.
(ii) Amendment of the plan. (A) The owner or operator of a CCR unit
subject to the requirements of paragraph (a)(3)(i) of this section may
amend the written EAP at any time provided the revised plan is placed
in the facility's operating record as required by Sec. 257.105(f)(6).
The owner or operator must amend the written EAP whenever there is a
change in conditions that would substantially affect the EAP in effect.
(B) The written EAP must be evaluated, at a minimum, every five
years to ensure the information required in paragraph (a)(3)(i) of this
section is accurate. As necessary, the EAP must be updated and a
revised EAP placed in the facility's operating record as required by
Sec. 257.105(f)(6).
(iii) Changes in hazard potential classification. (A) If the owner
or operator of a CCR unit determines during a periodic hazard potential
assessment that the CCR unit is no longer classified as either a high
hazard potential CCR surface impoundment or a significant hazard
potential CCR surface impoundment, then the owner or operator of the
CCR unit is no longer subject to the requirement to prepare and
maintain a written EAP beginning on the date the periodic hazard
potential assessment documentation is
[[Page 21478]]
placed in the facility's operating record as required by Sec.
257.105(f)(5).
(B) If the owner or operator of a CCR unit classified as a low
hazard potential CCR surface impoundment subsequently determines that
the CCR unit is properly re-classified as either a high hazard
potential CCR surface impoundment or a significant hazard potential CCR
surface impoundment, then the owner or operator of the CCR unit must
prepare a written EAP for the CCR unit as required by paragraph
(a)(3)(i) of this section within six months of completing such periodic
hazard potential assessment.
(iv) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
written EAP, and any subsequent amendment of the EAP, meets the
requirements of paragraph (a)(3) of this section.
(v) Activation of the EAP. The EAP must be implemented once events
or circumstances involving the CCR unit that represent a safety
emergency are detected, including conditions identified during periodic
structural stability assessments, annual inspections, and inspections
by a qualified person.
(4) The CCR unit and surrounding areas must be designed,
constructed, operated, and maintained with vegetated slopes of dikes
not to exceed a height of six inches above the slope of the dike,
except for slopes which are protected with an alternate form(s) of
slope protection.
(b) The requirements of paragraphs (c) through (e) of this section
apply to an owner or operator of a new CCR surface impoundment and any
lateral expansion of a CCR surface impoundment that either:
(1) Has a height of five feet or more and a storage volume of 20
acre-feet or more; or
(2) Has a height of 20 feet or more.
(c)(1) No later than the initial receipt of CCR in the CCR unit,
the owner or operator unit must compile the design and construction
plans for the CCR unit, which must include, to the extent feasible, the
information specified in paragraphs (c)(1)(i) through (xi) of this
section.
(i) The name and address of the person(s) owning or operating the
CCR unit; the name associated with the CCR unit; and the identification
number of the CCR unit if one has been assigned by the state.
(ii) The location of the CCR unit identified on the most recent
U.S. Geological Survey (USGS) 7\1/2\ minute or 15 minute topographic
quadrangle map, or a topographic map of equivalent scale if a USGS map
is not available.
(iii) A statement of the purpose for which the CCR unit is being
used.
(iv) The name and size in acres of the watershed within which the
CCR unit is located.
(v) A description of the physical and engineering properties of the
foundation and abutment materials on which the CCR unit is constructed.
(vi) A statement of the type, size, range, and physical and
engineering properties of the materials used in constructing each zone
or stage of the CCR unit; the method of site preparation and
construction of each zone of the CCR unit; and the dates of
construction of each successive stage of construction of the CCR unit.
(vii) At a scale that details engineering structures and
appurtenances relevant to the design, construction, operation, and
maintenance of the CCR unit, detailed dimensional drawings of the CCR
unit, including a plan view and cross sections of the length and width
of the CCR unit, showing all zones, foundation improvements, drainage
provisions, spillways, diversion ditches, outlets, instrument
locations, and slope protection, in addition to the normal operating
pool surface elevation and the maximum pool surface elevation following
peak discharge from the inflow design flood, the expected maximum depth
of CCR within the CCR surface impoundment, and any identifiable natural
or manmade features that could adversely affect operation of the CCR
unit due to malfunction or mis-operation.
(viii) A description of the type, purpose, and location of existing
instrumentation.
(ix) Area-capacity curves for the CCR unit.
(x) A description of each spillway and diversion design features
and capacities and calculations used in their determination.
(xi) The construction specifications and provisions for
surveillance, maintenance, and repair of the CCR unit.
(xii) Any record or knowledge of structural instability of the CCR
unit.
(2) Changes in the design and construction. If there is a
significant change to any information compiled under paragraph (c)(1)
of this section, the owner or operator of the CCR unit must update the
relevant information and place it in the facility's operating record as
required by Sec. 257.105(f)(13).
(d) Periodic structural stability assessments. (1) The owner or
operator of the CCR unit must conduct initial and periodic structural
stability assessments and document whether the design, construction,
operation, and maintenance of the CCR unit is consistent with
recognized and generally accepted good engineering practices for the
maximum volume of CCR and CCR wastewater which can be impounded
therein. The assessment must, at a minimum, document whether the CCR
unit has been designed, constructed, operated, and maintained with:
(i) Stable foundations and abutments;
(ii) Adequate slope protection to protect against surface erosion,
wave action, and adverse effects of sudden drawdown;
(iii) Dikes mechanically compacted to a density sufficient to
withstand the range of loading conditions in the CCR unit;
(iv) Vegetated slopes of dikes and surrounding areas not to exceed
a height of six inches above the slope of the dike, except for slopes
which have an alternate form or forms of slope protection;
(v) A single spillway or a combination of spillways configured as
specified in paragraph (d)(1)(v)(A) of this section. The combined
capacity of all spillways must be designed, constructed, operated, and
maintained to adequately manage flow during and following the peak
discharge from the event specified in paragraph (d)(1)(v)(B) of this
section.
(A) All spillways must be either:
(1) Of non-erodible construction and designed to carry sustained
flows; or
(2) Earth- or grass-lined and designed to carry short-term,
infrequent flows at non-erosive velocities where sustained flows are
not expected.
(B) The combined capacity of all spillways must adequately manage
flow during and following the peak discharge from a:
(1) Probable maximum flood (PMF) for a high hazard potential CCR
surface impoundment; or
(2) 1000-year flood for a significant hazard potential CCR surface
impoundment; or
(3) 100-year flood for a low hazard potential CCR surface
impoundment.
(vi) Hydraulic structures underlying the base of the CCR unit or
passing through the dike of the CCR unit that maintain structural
integrity and are free of significant deterioration, deformation,
distortion, bedding deficiencies, sedimentation, and debris which may
negatively affect the operation of the hydraulic structure; and
(vii) For CCR units with downstream slopes which can be inundated
by the pool of an adjacent water body, such as a river, stream or lake,
downstream slopes that maintain structural stability
[[Page 21479]]
during low pool of the adjacent water body or sudden drawdown of the
adjacent water body.
(2) The periodic assessment described in paragraph (d)(1) of this
section must identify any structural stability deficiencies associated
with the CCR unit in addition to recommending corrective measures. If a
deficiency or a release is identified during the periodic assessment,
the owner or operator unit must remedy the deficiency or release as
soon as feasible and prepare documentation detailing the corrective
measures taken.
(3) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
initial assessment and each subsequent periodic assessment was
conducted in accordance with the requirements of this section.
(e) Periodic safety factor assessments. (1) The owner or operator
must conduct an initial and periodic safety factor assessments for each
CCR unit and document whether the calculated factors of safety for each
CCR unit achieve the minimum safety factors specified in paragraphs
(e)(1)(i) through (v) of this section for the critical cross section of
the embankment. The critical cross section is the cross section
anticipated to be the most susceptible of all cross sections to
structural failure based on appropriate engineering considerations,
including loading conditions. The safety factor assessments must be
supported by appropriate engineering calculations.
(i) The calculated static factor of safety under the end-of-
construction loading condition must equal or exceed 1.30. The
assessment of this loading condition is only required for the initial
safety factor assessment and is not required for subsequent
assessments.
(ii) The calculated static factor of safety under the long-term,
maximum storage pool loading condition must equal or exceed 1.50.
(iii) The calculated static factor of safety under the maximum
surcharge pool loading condition must equal or exceed 1.40.
(iv) The calculated seismic factor of safety must equal or exceed
1.00.
(v) For dikes constructed of soils that have susceptibility to
liquefaction, the calculated liquefaction factor of safety must equal
or exceed 1.20.
(2) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
initial assessment and each subsequent periodic assessment specified in
paragraph (e)(1) of this section meets the requirements of this
section.
(f) Timeframes for periodic assessments--(1) Initial assessments.
Except as provided by paragraph (f)(2) of this section, the owner or
operator of the CCR unit must complete the initial assessments required
by paragraphs (a)(2), (d), and (e) of this section prior to the initial
receipt of CCR in the unit. The owner or operator has completed an
initial assessment when the owner or operator has placed the assessment
required by paragraphs (a)(2), (d), and (e) of this section in the
facility's operating record as required by Sec. 257.105(f)(5), (10),
and (12).
(2) Frequency for conducting periodic assessments. The owner or
operator of the CCR unit must conduct and complete the assessments
required by paragraphs (a)(2), (d), and (e) of this section every five
years. The date of completing the initial assessment is the basis for
establishing the deadline to complete the first subsequent assessment.
The owner or operator may complete any required assessment prior to the
required deadline provided the owner or operator places the completed
assessment(s) into the facility's operating record within a reasonable
amount of time. In all cases, the deadline for completing subsequent
assessments is based on the date of completing the previous assessment.
For purposes of this paragraph (f)(2), the owner or operator has
completed an assessment when the relevant assessment(s) required by
paragraphs (a)(2), (d), and (e) of this section has been placed in the
facility's operating record as required by Sec. 257.105(f)(5), (10),
and (12).
(3) Failure to document minimum safety factors during the initial
assessment. Until the date an owner or operator of a CCR unit documents
that the calculated factors of safety achieve the minimum safety
factors specified in paragraphs (e)(1)(i) through (v) of this section,
the owner or operator is prohibited from placing CCR in such unit.
(4) Closure of the CCR unit. An owner or operator of a CCR unit who
either fails to complete a timely periodic safety factor assessment or
fails to demonstrate minimum safety factors as required by paragraph
(e) of this section is subject to the requirements of Sec. 257.101(c).
(g) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(f), the
notification requirements specified in Sec. 257.106(f), and the
internet requirements specified in Sec. 257.107(f).
Operating Criteria
Sec. 257.80 Air criteria.
(a) The owner or operator of a CCR landfill, CCR surface
impoundment, or any lateral expansion of a CCR unit must adopt measures
that will effectively minimize CCR from becoming airborne at the
facility, including CCR fugitive dust originating from CCR units,
roads, and other CCR management and material handling activities.
(b) CCR fugitive dust control plan. The owner or operator of the
CCR unit must prepare and operate in accordance with a CCR fugitive
dust control plan as specified in paragraphs (b)(1) through (7) of this
section. This requirement applies in addition to, not in place of, any
applicable standards under the Occupational Safety and Health Act.
(1) The CCR fugitive dust control plan must identify and describe
the CCR fugitive dust control measures the owner or operator will use
to minimize CCR from becoming airborne at the facility. The owner or
operator must select, and include in the CCR fugitive dust control
plan, the CCR fugitive dust control measures that are most appropriate
for site conditions, along with an explanation of how the measures
selected are applicable and appropriate for site conditions. Examples
of control measures that may be appropriate include: Locating CCR
inside an enclosure or partial enclosure; operating a water spray or
fogging system; reducing fall distances at material drop points; using
wind barriers, compaction, or vegetative covers; establishing and
enforcing reduced vehicle speed limits; paving and sweeping roads;
covering trucks transporting CCR; reducing or halting operations during
high wind events; or applying a daily cover.
(2) If the owner or operator operates a CCR landfill or any lateral
expansion of a CCR landfill, the CCR fugitive dust control plan must
include procedures to emplace CCR as conditioned CCR. Conditioned CCR
means wetting CCR with water to a moisture content that will prevent
wind dispersal, but will not result in free liquids. In lieu of water,
CCR conditioning may be accomplished with an appropriate chemical dust
suppression agent.
(3) The CCR fugitive dust control plan must include procedures to
log citizen complaints received by the owner or operator involving CCR
fugitive dust events at the facility.
(4) The CCR fugitive dust control plan must include a description
of the procedures the owner or operator will
[[Page 21480]]
follow to periodically assess the effectiveness of the control plan.
(5) The owner or operator of a CCR unit must prepare an initial CCR
fugitive dust control plan for the facility no later than October 19,
2015, or by initial receipt of CCR in any CCR unit at the facility if
the owner or operator becomes subject to this subpart after October 19,
2015. The owner or operator has completed the initial CCR fugitive dust
control plan when the plan has been placed in the facility's operating
record as required by Sec. 257.105(g)(1).
(6) Amendment of the plan. The owner or operator of a CCR unit
subject to the requirements of this section may amend the written CCR
fugitive dust control plan at any time provided the revised plan is
placed in the facility's operating record as required by Sec.
257.105(g)(1). The owner or operator must amend the written plan
whenever there is a change in conditions that would substantially
affect the written plan in effect, such as the construction and
operation of a new CCR unit.
(7) The owner or operator must obtain a certification from a
qualified professional engineer that the initial CCR fugitive dust
control plan, or any subsequent amendment of it, meets the requirements
of this section.
(c) Annual CCR fugitive dust control report. The owner or operator
of a CCR unit must prepare an annual CCR fugitive dust control report
that includes a description of the actions taken by the owner or
operator to control CCR fugitive dust, a record of all citizen
complaints, and a summary of any corrective measures taken. The initial
annual report must be completed no later than 14 months after placing
the initial CCR fugitive dust control plan in the facility's operating
record. The deadline for completing a subsequent report is one year
after the date of completing the previous report. For purposes of this
paragraph (c), the owner or operator has completed the annual CCR
fugitive dust control report when the plan has been placed in the
facility's operating record as required by Sec. 257.105(g)(2).
(d) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(g), the
notification requirements specified in Sec. 257.106(g), and the
internet requirements specified in Sec. 257.107(g).
Sec. 257.81 Run-on and run-off controls for CCR landfills.
(a) The owner or operator of an existing or new CCR landfill or any
lateral expansion of a CCR landfill must design, construct, operate,
and maintain:
(1) A run-on control system to prevent flow onto the active portion
of the CCR unit during the peak discharge from a 24-hour, 25-year
storm; and
(2) A run-off control system from the active portion of the CCR
unit to collect and control at least the water volume resulting from a
24-hour, 25-year storm.
(b) Run-off from the active portion of the CCR unit must be handled
in accordance with the surface water requirements under Sec. 257.3-3.
(c) Run-on and run-off control system plan--(1) Content of the
plan. The owner or operator must prepare initial and periodic run-on
and run-off control system plans for the CCR unit according to the
timeframes specified in paragraphs (c)(3) and (4) of this section.
These plans must document how the run-on and run-off control systems
have been designed and constructed to meet the applicable requirements
of this section. Each plan must be supported by appropriate engineering
calculations. The owner or operator has completed the initial run-on
and run-off control system plan when the plan has been placed in the
facility's operating record as required by Sec. 257.105(g)(3).
(2) Amendment of the plan. The owner or operator may amend the
written run-on and run-off control system plan at any time provided the
revised plan is placed in the facility's operating record as required
by Sec. 257.105(g)(3). The owner or operator must amend the written
run-on and run-off control system plan whenever there is a change in
conditions that would substantially affect the written plan in effect.
(3) Timeframes for preparing the initial plan--(i) Existing CCR
landfills. The owner or operator of the CCR unit must prepare the
initial run-on and run-off control system plan no later than October
17, 2016.
(ii) New CCR landfills and any lateral expansion of a CCR landfill.
The owner or operator must prepare the initial run-on and run-off
control system plan no later than the date of initial receipt of CCR in
the CCR unit.
(4) Frequency for revising the plan. The owner or operator of the
CCR unit must prepare periodic run-on and run-off control system plans
required by paragraph (c)(1) of this section every five years. The date
of completing the initial plan is the basis for establishing the
deadline to complete the first subsequent plan. The owner or operator
may complete any required plan prior to the required deadline provided
the owner or operator places the completed plan into the facility's
operating record within a reasonable amount of time. In all cases, the
deadline for completing a subsequent plan is based on the date of
completing the previous plan. For purposes of this paragraph (c)(4),
the owner or operator has completed a periodic run-on and run-off
control system plan when the plan has been placed in the facility's
operating record as required by Sec. 257.105(g)(3).
(5) The owner or operator must obtain a certification from a
qualified professional engineer stating that the initial and periodic
run-on and run-off control system plans meet the requirements of this
section.
(d) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(g), the
notification requirements specified in Sec. 257.106(g), and the
internet requirements specified in Sec. 257.107(g).
Sec. 257.82 Hydrologic and hydraulic capacity requirements for CCR
surface impoundments.
(a) The owner or operator of an existing or new CCR surface
impoundment or any lateral expansion of a CCR surface impoundment must
design, construct, operate, and maintain an inflow design flood control
system as specified in paragraphs (a)(1) and (2) of this section.
(1) The inflow design flood control system must adequately manage
flow into the CCR unit during and following the peak discharge of the
inflow design flood specified in paragraph (a)(3) of this section.
(2) The inflow design flood control system must adequately manage
flow from the CCR unit to collect and control the peak discharge
resulting from the inflow design flood specified in paragraph (a)(3) of
this section.
(3) The inflow design flood is:
(i) For a high hazard potential CCR surface impoundment, as
determined under Sec. 257.73(a)(2) or Sec. 257.74(a)(2), the probable
maximum flood;
(ii) For a significant hazard potential CCR surface impoundment, as
determined under Sec. 257.73(a)(2) or Sec. 257.74(a)(2), the 1,000-
year flood;
(iii) For a low hazard potential CCR surface impoundment, as
determined under Sec. 257.73(a)(2) or Sec. 257.74(a)(2), the 100-year
flood; or
(iv) For an incised CCR surface impoundment, the 25-year flood.
(b) Discharge from the CCR unit must be handled in accordance with
the surface water requirements under Sec. 257.3-3.
(c) Inflow design flood control system plan--(1) Content of the
plan. The owner or operator must prepare initial
[[Page 21481]]
and periodic inflow design flood control system plans for the CCR unit
according to the timeframes specified in paragraphs (c)(3) and (4) of
this section. These plans must document how the inflow design flood
control system has been designed and constructed to meet the
requirements of this section. Each plan must be supported by
appropriate engineering calculations. The owner or operator of the CCR
unit has completed the inflow design flood control system plan when the
plan has been placed in the facility's operating record as required by
Sec. 257.105(g)(4).
(2) Amendment of the plan. The owner or operator of the CCR unit
may amend the written inflow design flood control system plan at any
time provided the revised plan is placed in the facility's operating
record as required by Sec. 257.105(g)(4). The owner or operator must
amend the written inflow design flood control system plan whenever
there is a change in conditions that would substantially affect the
written plan in effect.
(3) Timeframes for preparing the initial plan--(i) Existing CCR
surface impoundments. The owner or operator of the CCR unit must
prepare the initial inflow design flood control system plan no later
than October 17, 2016.
(ii) New CCR surface impoundments and any lateral expansion of a
CCR surface impoundment. The owner or operator must prepare the initial
inflow design flood control system plan no later than the date of
initial receipt of CCR in the CCR unit.
(4) Frequency for revising the plan. The owner or operator must
prepare periodic inflow design flood control system plans required by
paragraph (c)(1) of this section every five years. The date of
completing the initial plan is the basis for establishing the deadline
to complete the first periodic plan. The owner or operator may complete
any required plan prior to the required deadline provided the owner or
operator places the completed plan into the facility's operating record
within a reasonable amount of time. In all cases, the deadline for
completing a subsequent plan is based on the date of completing the
previous plan. For purposes of this paragraph (c)(4), the owner or
operator has completed an inflow design flood control system plan when
the plan has been placed in the facility's operating record as required
by Sec. 257.105(g)(4).
(5) The owner or operator must obtain a certification from a
qualified professional engineer stating that the initial and periodic
inflow design flood control system plans meet the requirements of this
section.
(d) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(g), the
notification requirements specified in Sec. 257.106(g), and the
internet requirements specified in Sec. 257.107(g).
Sec. 257.83 Inspection requirements for CCR surface impoundments.
(a) Inspections by a qualified person. (1) All CCR surface
impoundments and any lateral expansion of a CCR surface impoundment
must be examined by a qualified person as follows:
(i) At intervals not exceeding seven days, inspect for any
appearances of actual or potential structural weakness and other
conditions which are disrupting or have the potential to disrupt the
operation or safety of the CCR unit;
(ii) At intervals not exceeding seven days, inspect the discharge
of all outlets of hydraulic structures which pass underneath the base
of the surface impoundment or through the dike of the CCR unit for
abnormal discoloration, flow or discharge of debris or sediment; and
(iii) At intervals not exceeding 30 days, monitor all CCR unit
instrumentation.
(iv) The results of the inspection by a qualified person must be
recorded in the facility's operating record as required by Sec.
257.105(g)(5).
(2) Timeframes for inspections by a qualified person--(i) Existing
CCR surface impoundments. The owner or operator of the CCR unit must
initiate the inspections required under paragraph (a) of this section
no later than October 19, 2015.
(ii) New CCR surface impoundments and any lateral expansion of a
CCR surface impoundment. The owner or operator of the CCR unit must
initiate the inspections required under paragraph (a) of this section
upon initial receipt of CCR by the CCR unit.
(b) Annual inspections by a qualified professional engineer. (1) If
the existing or new CCR surface impoundment or any lateral expansion of
the CCR surface impoundment is subject to the periodic structural
stability assessment requirements under Sec. 257.73(d) or Sec.
257.74(d), the CCR unit must additionally be inspected on a periodic
basis by a qualified professional engineer to ensure that the design,
construction, operation, and maintenance of the CCR unit is consistent
with recognized and generally accepted good engineering standards. The
inspection must, at a minimum, include:
(i) A review of available information regarding the status and
condition of the CCR unit, including, but not limited to, files
available in the operating record (e.g., CCR unit design and
construction information required by Sec. Sec. 257.73(c)(1) and
257.74(c)(1), previous periodic structural stability assessments
required under Sec. Sec. 257.73(d) and 257.74(d), the results of
inspections by a qualified person, and results of previous annual
inspections);
(ii) A visual inspection of the CCR unit to identify signs of
distress or malfunction of the CCR unit and appurtenant structures; and
(iii) A visual inspection of any hydraulic structures underlying
the base of the CCR unit or passing through the dike of the CCR unit
for structural integrity and continued safe and reliable operation.
(2) Inspection report. The qualified professional engineer must
prepare a report following each inspection that addresses the
following:
(i) Any changes in geometry of the impounding structure since the
previous annual inspection;
(ii) The location and type of existing instrumentation and the
maximum recorded readings of each instrument since the previous annual
inspection;
(iii) The approximate minimum, maximum, and present depth and
elevation of the impounded water and CCR since the previous annual
inspection;
(iv) The storage capacity of the impounding structure at the time
of the inspection;
(v) The approximate volume of the impounded water and CCR at the
time of the inspection;
(vi) Any appearances of an actual or potential structural weakness
of the CCR unit, in addition to any existing conditions that are
disrupting or have the potential to disrupt the operation and safety of
the CCR unit and appurtenant structures; and
(vii) Any other change(s) which may have affected the stability or
operation of the impounding structure since the previous annual
inspection.
(3) Timeframes for conducting the initial inspection--(i) Existing
CCR surface impoundments. The owner or operator of the CCR unit must
complete the initial inspection required by paragraphs (b)(1) and (2)
of this section no later than January 18, 2016.
(ii) New CCR surface impoundments and any lateral expansion of a
CCR surface impoundment. The owner or operator of the CCR unit must
complete the initial annual inspection required by paragraphs (b)(1)
and (2) of this section is completed no later than 14 months
[[Page 21482]]
following the date of initial receipt of CCR in the CCR unit.
(4) Frequency of inspections. (i) Except as provided for in
paragraph (b)(4)(ii) of this section, the owner or operator of the CCR
unit must conduct the inspection required by paragraphs (b)(1) and (2)
of this section on an annual basis. The date of completing the initial
inspection report is the basis for establishing the deadline to
complete the first subsequent inspection. Any required inspection may
be conducted prior to the required deadline provided the owner or
operator places the completed inspection report into the facility's
operating record within a reasonable amount of time. In all cases, the
deadline for completing subsequent inspection reports is based on the
date of completing the previous inspection report. For purposes of this
section, the owner or operator has completed an inspection when the
inspection report has been placed in the facility's operating record as
required by Sec. 257.105(g)(6).
(ii) In any calendar year in which both the periodic inspection by
a qualified professional engineer and the quinquennial (occurring every
five years) structural stability assessment by a qualified professional
engineer required by Sec. Sec. 257.73(d) and 257.74(d) are required to
be completed, the annual inspection is not required, provided the
structural stability assessment is completed during the calendar year.
If the annual inspection is not conducted in a year as provided by this
paragraph (b)(4)(ii), the deadline for completing the next annual
inspection is one year from the date of completing the quinquennial
structural stability assessment.
(5) If a deficiency or release is identified during an inspection,
the owner or operator must remedy the deficiency or release as soon as
feasible and prepare documentation detailing the corrective measures
taken.
(c) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(g), the
notification requirements specified in Sec. 257.106(g), and the
internet requirements specified in Sec. 257.107(g).
Sec. 257.84 Inspection requirements for CCR landfills.
(a) Inspections by a qualified person. (1) All CCR landfills and
any lateral expansion of a CCR landfill must be examined by a qualified
person as follows:
(i) At intervals not exceeding seven days, inspect for any
appearances of actual or potential structural weakness and other
conditions which are disrupting or have the potential to disrupt the
operation or safety of the CCR unit; and
(ii) The results of the inspection by a qualified person must be
recorded in the facility's operating record as required by Sec.
257.105(g)(8).
(2) Timeframes for inspections by a qualified person--(i) Existing
CCR landfills. The owner or operator of the CCR unit must initiate the
inspections required under paragraph (a) of this section no later than
October 19, 2015.
(ii) New CCR landfills and any lateral expansion of a CCR landfill.
The owner or operator of the CCR unit must initiate the inspections
required under paragraph (a) of this section upon initial receipt of
CCR by the CCR unit.
(b) Annual inspections by a qualified professional engineer. (1)
Existing and new CCR landfills and any lateral expansion of a CCR
landfill must be inspected on a periodic basis by a qualified
professional engineer to ensure that the design, construction,
operation, and maintenance of the CCR unit is consistent with
recognized and generally accepted good engineering standards. The
inspection must, at a minimum, include:
(i) A review of available information regarding the status and
condition of the CCR unit, including, but not limited to, files
available in the operating record (e.g., the results of inspections by
a qualified person, and results of previous annual inspections); and
(ii) A visual inspection of the CCR unit to identify signs of
distress or malfunction of the CCR unit.
(2) Inspection report. The qualified professional engineer must
prepare a report following each inspection that addresses the
following:
(i) Any changes in geometry of the structure since the previous
annual inspection;
(ii) The approximate volume of CCR contained in the unit at the
time of the inspection;
(iii) Any appearances of an actual or potential structural weakness
of the CCR unit, in addition to any existing conditions that are
disrupting or have the potential to disrupt the operation and safety of
the CCR unit; and
(iv) Any other change(s) which may have affected the stability or
operation of the CCR unit since the previous annual inspection.
(3) Timeframes for conducting the initial inspection--(i) Existing
CCR landfills. The owner or operator of the CCR unit must complete the
initial inspection required by paragraphs (b)(1) and (2) of this
section no later than January 18, 2016.
(ii) New CCR landfills and any lateral expansion of a CCR landfill.
The owner or operator of the CCR unit must complete the initial annual
inspection required by paragraphs (b)(1) and (2) of this section no
later than 14 months following the date of initial receipt of CCR in
the CCR unit.
(4) Frequency of inspections. The owner or operator of the CCR unit
must conduct the inspection required by paragraphs (b)(1) and (2) of
this section on an annual basis. The date of completing the initial
inspection report is the basis for establishing the deadline to
complete the first subsequent inspection. Any required inspection may
be conducted prior to the required deadline provided the owner or
operator places the completed inspection report into the facility's
operating record within a reasonable amount of time. In all cases, the
deadline for completing subsequent inspection reports is based on the
date of completing the previous inspection report. For purposes of this
section, the owner or operator has completed an inspection when the
inspection report has been placed in the facility's operating record as
required by Sec. 257.105(g)(9).
(5) If a deficiency or release is identified during an inspection,
the owner or operator must remedy the deficiency or release as soon as
feasible and prepare documentation detailing the corrective measures
taken.
(c) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(g), the
notification requirements specified in Sec. 257.106(g), and the
internet requirements specified in Sec. 257.107(g).
Groundwater Monitoring and Corrective Action
Sec. 257.90 Applicability.
(a) Except as provided for in Sec. 257.100 for inactive CCR
surface impoundments, all CCR landfills, CCR surface impoundments, and
lateral expansions of CCR units are subject to the groundwater
monitoring and corrective action requirements under Sec. Sec. 257.90
through 257.98.
(b) Initial timeframes--(1) Existing CCR landfills and existing CCR
surface impoundments. No later than October 17, 2017, the owner or
operator of the CCR unit must be in compliance with the following
groundwater monitoring requirements:
(i) Install the groundwater monitoring system as required by Sec.
257.91;
(ii) Develop the groundwater sampling and analysis program to
include selection of the statistical
[[Page 21483]]
procedures to be used for evaluating groundwater monitoring data as
required by Sec. 257.93;
(iii) Initiate the detection monitoring program to include
obtaining a minimum of eight independent samples for each background
and downgradient well as required by Sec. 257.94(b); and
(iv) Begin evaluating the groundwater monitoring data for
statistically significant increases over background levels for the
constituents listed in appendix III of this part as required by Sec.
257.94.
(2) New CCR landfills, new CCR surface impoundments, and all
lateral expansions of CCR units. Prior to initial receipt of CCR by the
CCR unit, the owner or operator must be in compliance with the
groundwater monitoring requirements specified in paragraph (b)(1)(i)
and (ii) of this section. In addition, the owner or operator of the CCR
unit must initiate the detection monitoring program to include
obtaining a minimum of eight independent samples for each background
well as required by Sec. 257.94(b).
(c) Once a groundwater monitoring system and groundwater monitoring
program has been established at the CCR unit as required by this
subpart, the owner or operator must conduct groundwater monitoring and,
if necessary, corrective action throughout the active life and post-
closure care period of the CCR unit.
(d) In the event of a release from a CCR unit, the owner or
operator must immediately take all necessary measures to control the
source(s) of releases so as to reduce or eliminate, to the maximum
extent feasible, further releases of contaminants into the environment.
The owner or operator of the CCR unit must comply with all applicable
requirements in Sec. Sec. 257.96, 257.97, and 257.98.
(e) Annual groundwater monitoring and corrective action report. For
existing CCR landfills and existing CCR surface impoundments, no later
than January 31, 2018, and annually thereafter, the owner or operator
must prepare an annual groundwater monitoring and corrective action
report. For new CCR landfills, new CCR surface impoundments, and all
lateral expansions of CCR units, the owner or operator must prepare the
initial annual groundwater monitoring and corrective action report no
later than January 31 of the year following the calendar year a
groundwater monitoring system has been established for such CCR unit as
required by this subpart, and annually thereafter. For the preceding
calendar year, the annual report must document the status of the
groundwater monitoring and corrective action program for the CCR unit,
summarize key actions completed, describe any problems encountered,
discuss actions to resolve the problems, and project key activities for
the upcoming year. For purposes of this section, the owner or operator
has prepared the annual report when the report is placed in the
facility's operating record as required by Sec. 257.105(h)(1). At a
minimum, the annual groundwater monitoring and corrective action report
must contain the following information, to the extent available:
(1) A map, aerial image, or diagram showing the CCR unit and all
background (or upgradient) and downgradient monitoring wells, to
include the well identification numbers, that are part of the
groundwater monitoring program for the CCR unit;
(2) Identification of any monitoring wells that were installed or
decommissioned during the preceding year, along with a narrative
description of why those actions were taken;
(3) In addition to all the monitoring data obtained under
Sec. Sec. 257.90 through 257.98, a summary including the number of
groundwater samples that were collected for analysis for each
background and downgradient well, the dates the samples were collected,
and whether the sample was required by the detection monitoring or
assessment monitoring programs;
(4) A narrative discussion of any transition between monitoring
programs (e.g., the date and circumstances for transitioning from
detection monitoring to assessment monitoring in addition to
identifying the constituent(s) detected at a statistically significant
increase over background levels); and
(5) Other information required to be included in the annual report
as specified in Sec. Sec. 257.90 through 257.98.
(f) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(h), the
notification requirements specified in Sec. 257.106(h), and the
internet requirements specified in Sec. 257.107(h).
Sec. 257.91 Groundwater monitoring systems.
(a) Performance standard. The owner or operator of a CCR unit must
install a groundwater monitoring system that consists of a sufficient
number of wells, installed at appropriate locations and depths, to
yield groundwater samples from the uppermost aquifer that:
(1) Accurately represent the quality of background groundwater that
has not been affected by leakage from a CCR unit. A determination of
background quality may include sampling of wells that are not
hydraulically upgradient of the CCR management area where:
(i) Hydrogeologic conditions do not allow the owner or operator of
the CCR unit to determine what wells are hydraulically upgradient; or
(ii) Sampling at other wells will provide an indication of
background groundwater quality that is as representative or more
representative than that provided by the upgradient wells; and
(2) Accurately represent the quality of groundwater passing the
waste boundary of the CCR unit. The downgradient monitoring system must
be installed at the waste boundary that ensures detection of
groundwater contamination in the uppermost aquifer. All potential
contaminant pathways must be monitored.
(b) The number, spacing, and depths of monitoring systems shall be
determined based upon site-specific technical information that must
include thorough characterization of:
(1) Aquifer thickness, groundwater flow rate, groundwater flow
direction including seasonal and temporal fluctuations in groundwater
flow; and
(2) Saturated and unsaturated geologic units and fill materials
overlying the uppermost aquifer, materials comprising the uppermost
aquifer, and materials comprising the confining unit defining the lower
boundary of the uppermost aquifer, including, but not limited to,
thicknesses, stratigraphy, lithology, hydraulic conductivities,
porosities and effective porosities.
(c) The groundwater monitoring system must include the minimum
number of monitoring wells necessary to meet the performance standards
specified in paragraph (a) of this section, based on the site-specific
information specified in paragraph (b) of this section. The groundwater
monitoring system must contain:
(1) A minimum of one upgradient and three downgradient monitoring
wells; and
(2) Additional monitoring wells as necessary to accurately
represent the quality of background groundwater that has not been
affected by leakage from the CCR unit and the quality of groundwater
passing the waste boundary of the CCR unit.
(d) The owner or operator of multiple CCR units may install a
multiunit groundwater monitoring system instead of separate groundwater
monitoring systems for each CCR unit.
(1) The multiunit groundwater monitoring system must be equally as
capable of detecting monitored constituents at the waste boundary of
[[Page 21484]]
the CCR unit as the individual groundwater monitoring system specified
in paragraphs (a) through (c) of this section for each CCR unit based
on the following factors:
(i) Number, spacing, and orientation of each CCR unit;
(ii) Hydrogeologic setting;
(iii) Site history; and
(iv) Engineering design of the CCR unit.
(2) If the owner or operator elects to install a multiunit
groundwater monitoring system, and if the multiunit system includes at
least one existing unlined CCR surface impoundment as determined by
Sec. 257.71(a), and if at any time after October 19, 2015 the owner or
operator determines in any sampling event that the concentrations of
one or more constituents listed in appendix IV to this part are
detected at statistically significant levels above the groundwater
protection standard established under Sec. 257.95(h) for the multiunit
system, then all unlined CCR surface impoundments comprising the
multiunit groundwater monitoring system are subject to the closure
requirements under Sec. 257.101(a) to retrofit or close.
(e) Monitoring wells must be cased in a manner that maintains the
integrity of the monitoring well borehole. This casing must be screened
or perforated and packed with gravel or sand, where necessary, to
enable collection of groundwater samples. The annular space (i.e., the
space between the borehole and well casing) above the sampling depth
must be sealed to prevent contamination of samples and the groundwater.
(1) The owner or operator of the CCR unit must document and include
in the operating record the design, installation, development, and
decommissioning of any monitoring wells, piezometers and other
measurement, sampling, and analytical devices. The qualified
professional engineer must be given access to this documentation when
completing the groundwater monitoring system certification required
under paragraph (f) of this section.
(2) The monitoring wells, piezometers, and other measurement,
sampling, and analytical devices must be operated and maintained so
that they perform to the design specifications throughout the life of
the monitoring program.
(f) The owner or operator must obtain a certification from a
qualified professional engineer stating that the groundwater monitoring
system has been designed and constructed to meet the requirements of
this section. If the groundwater monitoring system includes the minimum
number of monitoring wells specified in paragraph (c)(1) of this
section, the certification must document the basis supporting this
determination.
(g) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(h), the
notification requirements specified in Sec. 257.106(h), and the
internet requirements specified in Sec. 257.107(h).
Sec. 257.92 [Reserved]
Sec. 257.93 Groundwater sampling and analysis requirements.
(a) The groundwater monitoring program must include consistent
sampling and analysis procedures that are designed to ensure monitoring
results that provide an accurate representation of groundwater quality
at the background and downgradient wells required by Sec. 257.91. The
owner or operator of the CCR unit must develop a sampling and analysis
program that includes procedures and techniques for:
(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures;
(4) Chain of custody control; and
(5) Quality assurance and quality control.
(b) The groundwater monitoring program must include sampling and
analytical methods that are appropriate for groundwater sampling and
that accurately measure hazardous constituents and other monitoring
parameters in groundwater samples. For purposes of Sec. Sec. 257.90
through 257.98, the term constituent refers to both hazardous
constituents and other monitoring parameters listed in either appendix
III or IV of this part.
(c) Groundwater elevations must be measured in each well
immediately prior to purging, each time groundwater is sampled. The
owner or operator of the CCR unit must determine the rate and direction
of groundwater flow each time groundwater is sampled. Groundwater
elevations in wells which monitor the same CCR management area must be
measured within a period of time short enough to avoid temporal
variations in groundwater flow which could preclude accurate
determination of groundwater flow rate and direction.
(d) The owner or operator of the CCR unit must establish background
groundwater quality in a hydraulically upgradient or background well(s)
for each of the constituents required in the particular groundwater
monitoring program that applies to the CCR unit as determined under
Sec. 257.94(a) or Sec. 257.95(a). Background groundwater quality may
be established at wells that are not located hydraulically upgradient
from the CCR unit if it meets the requirements of Sec. 257.91(a)(1).
(e) The number of samples collected when conducting detection
monitoring and assessment monitoring (for both downgradient and
background wells) must be consistent with the statistical procedures
chosen under paragraph (f) of this section and the performance
standards under paragraph (g) of this section. The sampling procedures
shall be those specified under Sec. 257.94(b) through (d) for
detection monitoring, Sec. 257.95(b) through (d) for assessment
monitoring, and Sec. 257.96(b) for corrective action.
(f) The owner or operator of the CCR unit must select one of the
statistical methods specified in paragraphs (f)(1) through (5) of this
section to be used in evaluating groundwater monitoring data for each
specified constituent. The statistical test chosen shall be conducted
separately for each constituent in each monitoring well.
(1) A parametric analysis of variance followed by multiple
comparison procedures to identify statistically significant evidence of
contamination. The method must include estimation and testing of the
contrasts between each compliance well's mean and the background mean
levels for each constituent.
(2) An analysis of variance based on ranks followed by multiple
comparison procedures to identify statistically significant evidence of
contamination. The method must include estimation and testing of the
contrasts between each compliance well's median and the background
median levels for each constituent.
(3) A tolerance or prediction interval procedure, in which an
interval for each constituent is established from the distribution of
the background data and the level of each constituent in each
compliance well is compared to the upper tolerance or prediction limit.
(4) A control chart approach that gives control limits for each
constituent.
(5) Another statistical test method that meets the performance
standards of paragraph (g) of this section.
(6) The owner or operator of the CCR unit must obtain a
certification from a qualified professional engineer stating that the
selected statistical method is appropriate for evaluating the
groundwater monitoring data for the CCR management area. The
certification must include a narrative description of the statistical
method selected to evaluate the groundwater monitoring data.
[[Page 21485]]
(g) Any statistical method chosen under paragraph (f) of this
section shall comply with the following performance standards, as
appropriate, based on the statistical test method used:
(1) The statistical method used to evaluate groundwater monitoring
data shall be appropriate for the distribution of constituents. Normal
distributions of data values shall use parametric methods. Non-normal
distributions shall use non-parametric methods. If the distribution of
the constituents is shown by the owner or operator of the CCR unit to
be inappropriate for a normal theory test, then the data must be
transformed or a distribution-free (non-parametric) theory test must be
used. If the distributions for the constituents differ, more than one
statistical method may be needed.
(2) If an individual well comparison procedure is used to compare
an individual compliance well constituent concentration with background
constituent concentrations or a groundwater protection standard, the
test shall be done at a Type I error level no less than 0.01 for each
testing period. If a multiple comparison procedure is used, the Type I
experiment wise error rate for each testing period shall be no less
than 0.05; however, the Type I error of no less than 0.01 for
individual well comparisons must be maintained. This performance
standard does not apply to tolerance intervals, prediction intervals,
or control charts.
(3) If a control chart approach is used to evaluate groundwater
monitoring data, the specific type of control chart and its associated
parameter values shall be such that this approach is at least as
effective as any other approach in this section for evaluating
groundwater data. The parameter values shall be determined after
considering the number of samples in the background data base, the data
distribution, and the range of the concentration values for each
constituent of concern.
(4) If a tolerance interval or a predictional interval is used to
evaluate groundwater monitoring data, the levels of confidence and, for
tolerance intervals, the percentage of the population that the interval
must contain, shall be such that this approach is at least as effective
as any other approach in this section for evaluating groundwater data.
These parameters shall be determined after considering the number of
samples in the background data base, the data distribution, and the
range of the concentration values for each constituent of concern.
(5) The statistical method must account for data below the limit of
detection with one or more statistical procedures that shall at least
as effective as any other approach in this section for evaluating
groundwater data. Any practical quantitation limit that is used in the
statistical method shall be the lowest concentration level that can be
reliably achieved within specified limits of precision and accuracy
during routine laboratory operating conditions that are available to
the facility.
(6) If necessary, the statistical method must include procedures to
control or correct for seasonal and spatial variability as well as
temporal correlation in the data.
(h) The owner or operator of the CCR unit must determine whether or
not there is a statistically significant increase over background
values for each constituent required in the particular groundwater
monitoring program that applies to the CCR unit, as determined under
Sec. 257.94(a) or Sec. 257.95(a).
(1) In determining whether a statistically significant increase has
occurred, the owner or operator must compare the groundwater quality of
each constituent at each monitoring well designated pursuant to Sec.
257.91(a)(2) or (d)(1) to the background value of that constituent,
according to the statistical procedures and performance standards
specified under paragraphs (f) and (g) of this section.
(2) Within 90 days after completing sampling and analysis, the
owner or operator must determine whether there has been a statistically
significant increase over background for any constituent at each
monitoring well.
(i) The owner or operator must measure ``total recoverable metals''
concentrations in measuring groundwater quality. Measurement of total
recoverable metals captures both the particulate fraction and dissolved
fraction of metals in natural waters. Groundwater samples shall not be
field-filtered prior to analysis.
(j) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(h), the
notification requirements specified in Sec. 257.106(h), and the
Internet requirements specified in Sec. 257.107(h).
Sec. 257.94 Detection monitoring program.
(a) The owner or operator of a CCR unit must conduct detection
monitoring at all groundwater monitoring wells consistent with this
section. At a minimum, a detection monitoring program must include
groundwater monitoring for all constituents listed in appendix III to
this part.
(b) Except as provided in paragraph (d) of this section, the
monitoring frequency for the constituents listed in appendix III to
this part shall be at least semiannual during the active life of the
CCR unit and the post-closure period. For existing CCR landfills and
existing CCR surface impoundments, a minimum of eight independent
samples from each background and downgradient well must be collected
and analyzed for the constituents listed in appendix III and IV to this
part no later than October 17, 2017. For new CCR landfills, new CCR
surface impoundments, and all lateral expansions of CCR units, a
minimum of eight independent samples for each background well must be
collected and analyzed for the constituents listed in appendices III
and IV to this part during the first six months of sampling.
(c) The number of samples collected and analyzed for each
background well and downgradient well during subsequent semiannual
sampling events must be consistent with Sec. 257.93(e), and must
account for any unique characteristics of the site, but must be at
least one sample from each background and downgradient well.
(d) The owner or operator of a CCR unit may demonstrate the need
for an alternative monitoring frequency for repeated sampling and
analysis for constituents listed in appendix III to this part during
the active life and the post-closure care period based on the
availability of groundwater. If there is not adequate groundwater flow
to sample wells semiannually, the alternative frequency shall be no
less than annual. The need to vary monitoring frequency must be
evaluated on a site-specific basis. The demonstration must be supported
by, at a minimum, the information specified in paragraphs (d)(1) and
(2) of this section.
(1) Information documenting that the need for less frequent
sampling. The alternative frequency must be based on consideration of
the following factors:
(i) Lithology of the aquifer and unsaturated zone;
(ii) Hydraulic conductivity of the aquifer and unsaturated zone;
and
(iii) Groundwater flow rates.
(2) Information documenting that the alternative frequency will be
no less effective in ensuring that any leakage from the CCR unit will
be discovered within a timeframe that will not materially delay
establishment of an assessment monitoring program.
(3) The owner or operator must obtain a certification from a
qualified
[[Page 21486]]
professional engineer stating that the demonstration for an alternative
groundwater sampling and analysis frequency meets the requirements of
this section. The owner or operator must include the demonstration
providing the basis for the alternative monitoring frequency and the
certification by a qualified professional engineer in the annual
groundwater monitoring and corrective action report required by Sec.
257.90(e).
(e) If the owner or operator of the CCR unit determines, pursuant
to Sec. 257.93(h) that there is a statistically significant increase
over background levels for one or more of the constituents listed in
appendix III to this part at any monitoring well at the waste boundary
specified under Sec. 257.91(a)(2), the owner or operator must:
(1) Except as provided for in paragraph (e)(2) of this section,
within 90 days of detecting a statistically significant increase over
background levels for any constituent, establish an assessment
monitoring program meeting the requirements of Sec. 257.95.
(2) The owner or operator may demonstrate that a source other than
the CCR unit caused the statistically significant increase over
background levels for a constituent or that the statistically
significant increase resulted from error in sampling, analysis,
statistical evaluation, or natural variation in groundwater quality.
The owner or operator must complete the written demonstration within 90
days of detecting a statistically significant increase over background
levels to include obtaining a certification from a qualified
professional engineer verifying the accuracy of the information in the
report. If a successful demonstration is completed within the 90-day
period, the owner or operator of the CCR unit may continue with a
detection monitoring program under this section. If a successful
demonstration is not completed within the 90-day period, the owner or
operator of the CCR unit must initiate an assessment monitoring program
as required under Sec. 257.95. The owner or operator must also include
the demonstration in the annual groundwater monitoring and corrective
action report required by Sec. 257.90(e), in addition to the
certification by a qualified professional engineer.
(3) The owner or operator of a CCR unit must prepare a notification
stating that an assessment monitoring program has been established. The
owner or operator has completed the notification when the notification
is placed in the facility's operating record as required by Sec.
257.105(h)(5).
(f) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(h), the
notification requirements specified in Sec. 257.106(h), and the
Internet requirements specified in Sec. 257.107(h).
Sec. 257.95 Assessment monitoring program.
(a) Assessment monitoring is required whenever a statistically
significant increase over background levels has been detected for one
or more of the constituents listed in appendix III to this part.
(b) Within 90 days of triggering an assessment monitoring program,
and annually thereafter, the owner or operator of the CCR unit must
sample and analyze the groundwater for all constituents listed in
appendix IV to this part. The number of samples collected and analyzed
for each well during each sampling event must be consistent with Sec.
257.93(e), and must account for any unique characteristics of the site,
but must be at least one sample from each well.
(c) The owner or operator of a CCR unit may demonstrate the need
for an alternative monitoring frequency for repeated sampling and
analysis for constituents listed in appendix IV to this part during the
active life and the post-closure care period based on the availability
of groundwater. If there is not adequate groundwater flow to sample
wells semiannually, the alternative frequency shall be no less than
annual. The need to vary monitoring frequency must be evaluated on a
site-specific basis. The demonstration must be supported by, at a
minimum, the information specified in paragraphs (c)(1) and (2) of this
section.
(1) Information documenting that the need for less frequent
sampling. The alternative frequency must be based on consideration of
the following factors:
(i) Lithology of the aquifer and unsaturated zone;
(ii) Hydraulic conductivity of the aquifer and unsaturated zone;
and
(iii) Groundwater flow rates.
(2) Information documenting that the alternative frequency will be
no less effective in ensuring that any leakage from the CCR unit will
be discovered within a timeframe that will not materially delay the
initiation of any necessary remediation measures.
(3) The owner or operator must obtain a certification from a
qualified professional engineer stating that the demonstration for an
alternative groundwater sampling and analysis frequency meets the
requirements of this section. The owner or operator must include the
demonstration providing the basis for the alternative monitoring
frequency and the certification by a qualified professional engineer in
the annual groundwater monitoring and corrective action report required
by Sec. 257.90(e).
(d) After obtaining the results from the initial and subsequent
sampling events required in paragraph (b) of this section, the owner or
operator must:
(1) Within 90 days of obtaining the results, and on at least a
semiannual basis thereafter, resample all wells that were installed
pursuant to the requirements of Sec. 257.91, conduct analyses for all
parameters in appendix III to this part and for those constituents in
appendix IV to this part that are detected in response to paragraph (b)
of this section, and record their concentrations in the facility
operating record. The number of samples collected and analyzed for each
background well and downgradient well during subsequent semiannual
sampling events must be consistent with Sec. 257.93(e), and must
account for any unique characteristics of the site, but must be at
least one sample from each background and downgradient well;
(2) Establish groundwater protection standards for all constituents
detected pursuant to paragraph (b) or (d) of this section. The
groundwater protection standards must be established in accordance with
paragraph (h) of this section; and
(3) Include the recorded concentrations required by paragraph
(d)(1) of this section, identify the background concentrations
established under Sec. 257.94(b), and identify the groundwater
protection standards established under paragraph (d)(2) of this section
in the annual groundwater monitoring and corrective action report
required by Sec. 257.90(e).
(e) If the concentrations of all constituents listed in appendices
III and IV to this part are shown to be at or below background values,
using the statistical procedures in Sec. 257.93(g), for two
consecutive sampling events, the owner or operator may return to
detection monitoring of the CCR unit. The owner or operator must
prepare a notification stating that detection monitoring is resuming
for the CCR unit. The owner or operator has completed the notification
when the notification is placed in the facility's operating record as
required by Sec. 257.105(h)(7).
(f) If the concentrations of any constituent in appendices III and
IV to this part are above background values, but all concentrations are
below the groundwater protection standard
[[Page 21487]]
established under paragraph (h) of this section, using the statistical
procedures in Sec. 257.93(g), the owner or operator must continue
assessment monitoring in accordance with this section.
(g) If one or more constituents in appendix IV to this part are
detected at statistically significant levels above the groundwater
protection standard established under paragraph (h) of this section in
any sampling event, the owner or operator must prepare a notification
identifying the constituents in appendix IV to this part that have
exceeded the groundwater protection standard. The owner or operator has
completed the notification when the notification is placed in the
facility's operating record as required by Sec. 257.105(h)(8). The
owner or operator of the CCR unit also must:
(1) Characterize the nature and extent of the release and any
relevant site conditions that may affect the remedy ultimately
selected. The characterization must be sufficient to support a complete
and accurate assessment of the corrective measures necessary to
effectively clean up all releases from the CCR unit pursuant to Sec.
257.96. Characterization of the release includes the following minimum
measures:
(i) Install additional monitoring wells necessary to define the
contaminant plume(s);
(ii) Collect data on the nature and estimated quantity of material
released including specific information on the constituents listed in
appendix IV of this part and the levels at which they are present in
the material released;
(iii) Install at least one additional monitoring well at the
facility boundary in the direction of contaminant migration and sample
this well in accordance with paragraph (d)(1) of this section; and
(iv) Sample all wells in accordance with paragraph (d)(1) of this
section to characterize the nature and extent of the release.
(2) Notify all persons who own the land or reside on the land that
directly overlies any part of the plume of contamination if
contaminants have migrated off-site if indicated by sampling of wells
in accordance with paragraph (g)(1) of this section. The owner or
operator has completed the notifications when they are placed in the
facility's operating record as required by Sec. 257.105(h)(8).
(3) Within 90 days of finding that any of the constituents listed
in appendix IV to this part have been detected at a statistically
significant level exceeding the groundwater protection standards the
owner or operator must either:
(i) Initiate an assessment of corrective measures as required by
Sec. 257.96; or
(ii) Demonstrate that a source other than the CCR unit caused the
contamination, or that the statistically significant increase resulted
from error in sampling, analysis, statistical evaluation, or natural
variation in groundwater quality. Any such demonstration must be
supported by a report that includes the factual or evidentiary basis
for any conclusions and must be certified to be accurate by a qualified
professional engineer. If a successful demonstration is made, the owner
or operator must continue monitoring in accordance with the assessment
monitoring program pursuant to this section, and may return to
detection monitoring if the constituents in appendices III and IV to
this part are at or below background as specified in paragraph (e) of
this section. The owner or operator must also include the demonstration
in the annual groundwater monitoring and corrective action report
required by Sec. 257.90(e), in addition to the certification by a
qualified professional engineer.
(4) If a successful demonstration has not been made at the end of
the 90 day period provided by paragraph (g)(3)(ii) of this section, the
owner or operator of the CCR unit must initiate the assessment of
corrective measures requirements under Sec. 257.96.
(5) If an assessment of corrective measures is required under Sec.
257.96 by either paragraph (g)(3)(i) or (g)(4) of this section, and if
the CCR unit is an existing unlined CCR surface impoundment as
determined by Sec. 257.71(a), then the CCR unit is subject to the
closure requirements under Sec. 257.101(a) to retrofit or close. In
addition, the owner or operator must prepare a notification stating
that an assessment of corrective measures has been initiated.
(h) The owner or operator of the CCR unit must establish a
groundwater protection standard for each constituent in appendix IV to
this part detected in the groundwater. The groundwater protection
standard shall be:
(1) For constituents for which a maximum contaminant level (MCL)
has been established under Sec. Sec. 141.62 and 141.66 of this title,
the MCL for that constituent;
(2) For constituents for which an MCL has not been established, the
background concentration for the constituent established from wells in
accordance with Sec. 257.91; or
(3) For constituents for which the background level is higher than
the MCL identified under paragraph (h)(1) of this section, the
background concentration.
(i) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(h), the
notification requirements specified in Sec. 257.106(h), and the
Internet requirements specified in Sec. 257.107(h).
Sec. 257.96 Assessment of corrective measures.
(a) Within 90 days of finding that any constituent listed in
appendix IV to this part has been detected at a statistically
significant level exceeding the groundwater protection standard defined
under Sec. 257.95(h), or immediately upon detection of a release from
a CCR unit, the owner or operator must initiate an assessment of
corrective measures to prevent further releases, to remediate any
releases and to restore affected area to original conditions. The
assessment of corrective measures must be completed within 90 days,
unless the owner or operator demonstrates the need for additional time
to complete the assessment of corrective measures due to site-specific
conditions or circumstances. The owner or operator must obtain a
certification from a qualified professional engineer attesting that the
demonstration is accurate. The 90-day deadline to complete the
assessment of corrective measures may be extended for no longer than 60
days. The owner or operator must also include the demonstration in the
annual groundwater monitoring and corrective action report required by
Sec. 257.90(e), in addition to the certification by a qualified
professional engineer.
(b) The owner or operator of the CCR unit must continue to monitor
groundwater in accordance with the assessment monitoring program as
specified in Sec. 257.95.
(c) The assessment under paragraph (a) of this section must include
an analysis of the effectiveness of potential corrective measures in
meeting all of the requirements and objectives of the remedy as
described under Sec. 257.97 addressing at least the following:
(1) The performance, reliability, ease of implementation, and
potential impacts of appropriate potential remedies, including safety
impacts, cross-media impacts, and control of exposure to any residual
contamination;
(2) The time required to begin and complete the remedy;
(3) The institutional requirements, such as state or local permit
requirements or other environmental or public health requirements that
may substantially affect implementation of the remedy(s).
[[Page 21488]]
(d) The owner or operator must place the completed assessment of
corrective measures in the facility's operating record. The assessment
has been completed when it is placed in the facility's operating record
as required by Sec. 257.105(h)(10).
(e) The owner or operator must discuss the results of the
corrective measures assessment at least 30 days prior to the selection
of remedy, in a public meeting with interested and affected parties.
(f) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(h), the
notification requirements specified in Sec. 257.106(h), and the
Internet requirements specified in Sec. 257.107(h).
Sec. 257.97 Selection of remedy.
(a) Based on the results of the corrective measures assessment
conducted under Sec. 257.96, the owner or operator must, as soon as
feasible, select a remedy that, at a minimum, meets the standards
listed in paragraph (b) of this section. This requirement applies to,
not in place of, any applicable standards under the Occupational Safety
and Health Act. The owner or operator must prepare a semiannual report
describing the progress in selecting and designing the remedy. Upon
selection of a remedy, the owner or operator must prepare a final
report describing the selected remedy and how it meets the standards
specified in paragraph (b) of this section. The owner or operator must
obtain a certification from a qualified professional engineer that the
remedy selected meets the requirements of this section. The report has
been completed when it is placed in the operating record as required by
Sec. 257.105(h)(12).
(b) Remedies must:
(1) Be protective of human health and the environment;
(2) Attain the groundwater protection standard as specified
pursuant to Sec. 257.95(h);
(3) Control the source(s) of releases so as to reduce or eliminate,
to the maximum extent feasible, further releases of constituents in
appendix IV to this part into the environment;
(4) Remove from the environment as much of the contaminated
material that was released from the CCR unit as is feasible, taking
into account factors such as avoiding inappropriate disturbance of
sensitive ecosystems;
(5) Comply with standards for management of wastes as specified in
Sec. 257.98(d).
(c) In selecting a remedy that meets the standards of paragraph (b)
of this section, the owner or operator of the CCR unit shall consider
the following evaluation factors:
(1) The long- and short-term effectiveness and protectiveness of
the potential remedy(s), along with the degree of certainty that the
remedy will prove successful based on consideration of the following:
(i) Magnitude of reduction of existing risks;
(ii) Magnitude of residual risks in terms of likelihood of further
releases due to CCR remaining following implementation of a remedy;
(iii) The type and degree of long-term management required,
including monitoring, operation, and maintenance;
(iv) Short-term risks that might be posed to the community or the
environment during implementation of such a remedy, including potential
threats to human health and the environment associated with excavation,
transportation, and re-disposal of contaminant;
(v) Time until full protection is achieved;
(vi) Potential for exposure of humans and environmental receptors
to remaining wastes, considering the potential threat to human health
and the environment associated with excavation, transportation, re-
disposal, or containment;
(vii) Long-term reliability of the engineering and institutional
controls; and
(viii) Potential need for replacement of the remedy.
(2) The effectiveness of the remedy in controlling the source to
reduce further releases based on consideration of the following
factors:
(i) The extent to which containment practices will reduce further
releases; and
(ii) The extent to which treatment technologies may be used.
(3) The ease or difficulty of implementing a potential remedy(s)
based on consideration of the following types of factors:
(i) Degree of difficulty associated with constructing the
technology;
(ii) Expected operational reliability of the technologies;
(iii) Need to coordinate with and obtain necessary approvals and
permits from other agencies;
(iv) Availability of necessary equipment and specialists; and
(v) Available capacity and location of needed treatment, storage,
and disposal services.
(4) The degree to which community concerns are addressed by a
potential remedy(s).
(d) The owner or operator must specify as part of the selected
remedy a schedule(s) for implementing and completing remedial
activities. Such a schedule must require the completion of remedial
activities within a reasonable period of time taking into consideration
the factors set forth in paragraphs (d)(1) through (6) of this section.
The owner or operator of the CCR unit must consider the following
factors in determining the schedule of remedial activities:
(1) Extent and nature of contamination, as determined by the
characterization required under Sec. 257.95(g);
(2) Reasonable probabilities of remedial technologies in achieving
compliance with the groundwater protection standards established under
Sec. 257.95(h) and other objectives of the remedy;
(3) Availability of treatment or disposal capacity for CCR managed
during implementation of the remedy;
(4) Potential risks to human health and the environment from
exposure to contamination prior to completion of the remedy;
(5) Resource value of the aquifer including:
(i) Current and future uses;
(ii) Proximity and withdrawal rate of users;
(iii) Groundwater quantity and quality;
(iv) The potential damage to wildlife, crops, vegetation, and
physical structures caused by exposure to CCR constituents;
(v) The hydrogeologic characteristic of the facility and
surrounding land; and
(vi) The availability of alternative water supplies; and
(6) Other relevant factors.
(e) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(h), the
notification requirements specified in Sec. 257.106(h), and the
Internet requirements specified in Sec. 257.107(h).
Sec. 257.98 Implementation of the corrective action program.
(a) Within 90 days of selecting a remedy under Sec. 257.97, the
owner or operator must initiate remedial activities. Based on the
schedule established under Sec. 257.97(d) for implementation and
completion of remedial activities the owner or operator must:
(1) Establish and implement a corrective action groundwater
monitoring program that:
(i) At a minimum, meets the requirements of an assessment
monitoring program under Sec. 257.95;
(ii) Documents the effectiveness of the corrective action remedy;
and
[[Page 21489]]
(iii) Demonstrates compliance with the groundwater protection
standard pursuant to paragraph (c) of this section.
(2) Implement the corrective action remedy selected under Sec.
257.97; and
(3) Take any interim measures necessary to reduce the contaminants
leaching from the CCR unit, and/or potential exposures to human or
ecological receptors. Interim measures must, to the greatest extent
feasible, be consistent with the objectives of and contribute to the
performance of any remedy that may be required pursuant to Sec.
257.97. The following factors must be considered by an owner or
operator in determining whether interim measures are necessary:
(i) Time required to develop and implement a final remedy;
(ii) Actual or potential exposure of nearby populations or
environmental receptors to any of the constituents listed in appendix
IV of this part;
(iii) Actual or potential contamination of drinking water supplies
or sensitive ecosystems;
(iv) Further degradation of the groundwater that may occur if
remedial action is not initiated expeditiously;
(v) Weather conditions that may cause any of the constituents
listed in appendix IV to this part to migrate or be released;
(vi) Potential for exposure to any of the constituents listed in
appendix IV to this part as a result of an accident or failure of a
container or handling system; and
(vii) Other situations that may pose threats to human health and
the environment.
(b) If an owner or operator of the CCR unit, determines, at any
time, that compliance with the requirements of Sec. 257.97(b) is not
being achieved through the remedy selected, the owner or operator must
implement other methods or techniques that could feasibly achieve
compliance with the requirements.
(c) Remedies selected pursuant to Sec. 257.97 shall be considered
complete when:
(1) The owner or operator of the CCR unit demonstrates compliance
with the groundwater protection standards established under Sec.
257.95(h) has been achieved at all points within the plume of
contamination that lie beyond the groundwater monitoring well system
established under Sec. 257.91.
(2) Compliance with the groundwater protection standards
established under Sec. 257.95(h) has been achieved by demonstrating
that concentrations of constituents listed in appendix IV to this part
have not exceeded the groundwater protection standard(s) for a period
of three consecutive years using the statistical procedures and
performance standards in Sec. 257.93(f) and (g).
(3) All actions required to complete the remedy have been
satisfied.
(d) All CCR that are managed pursuant to a remedy required under
Sec. 257.97, or an interim measure required under paragraph (a)(3) of
this section, shall be managed in a manner that complies with all
applicable RCRA requirements.
(e) Upon completion of the remedy, the owner or operator must
prepare a notification stating that the remedy has been completed. The
owner or operator must obtain a certification from a qualified
professional engineer attesting that the remedy has been completed in
compliance with the requirements of paragraph (c) of this section. The
report has been completed when it is placed in the operating record as
required by Sec. 257.105(h)(13).
(f) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(h), the
notification requirements specified in Sec. 257.106(h), and the
internet requirements specified in Sec. 257.107(h).
Closure and Post-Closure Care
Sec. 257.100 Inactive CCR surface impoundments.
(a) Except as provided by paragraph (b) of this section, inactive
CCR surface impoundments are subject to all of the requirements of this
subpart applicable to existing CCR surface impoundments.
(b) An owner or operator of an inactive CCR surface impoundment
that completes closure of such CCR unit, and meets all of the
requirements of either paragraphs (b)(1) through (4) of this section or
paragraph (b)(5) of this section no later than April 17, 2018, is
exempt from all other requirements of this subpart.
(1) Closure by leaving CCR in place. If the owner or operator of
the inactive CCR surface impoundment elects to close the CCR surface
impoundment by leaving CCR in place, the owner or operator must ensure
that, at a minimum, the CCR unit is closed in a manner that will:
(i) Control, minimize or eliminate, to the maximum extent feasible,
post-closure infiltration of liquids into the waste and releases of
CCR, leachate, or contaminated run-off to the ground or surface waters
or to the atmosphere;
(ii) Preclude the probability of future impoundment of water,
sediment, or slurry;
(iii) Include measures that provide for major slope stability to
prevent the sloughing or movement of the final cover system; and
(iv) Minimize the need for further maintenance of the CCR unit.
(2) The owner or operator of the inactive CCR surface impoundment
must meet the requirements of paragraphs (b)(2)(i) and (ii) of this
section prior to installing the final cover system required under
paragraph (b)(3) of this section.
(i) Free liquids must be eliminated by removing liquid wastes or
solidifying the remaining wastes and waste residues.
(ii) Remaining wastes must be stabilized sufficient to support the
final cover system.
(3) The owner or operator must install a final cover system that is
designed to minimize infiltration and erosion, and at a minimum, meets
the requirements of paragraph (b)(3)(i) of this section, or the
requirements of an alternative final cover system specified in
paragraph (b)(3)(ii) of this section.
(i) The final cover system must be designed and constructed to meet
the criteria specified in paragraphs (b)(3)(i)(A) through (D) of this
section.
(A) The permeability of the final cover system must be less than or
equal to the permeability of any bottom liner system or natural
subsoils present, or a permeability no greater than 1 x 10-5
centimeters/second, whichever is less.
(B) The infiltration of liquids through the CCR unit must be
minimized by the use of an infiltration layer that contains a minimum
of 18 inches of earthen material.
(C) The erosion of the final cover system must be minimized by the
use of an erosion layer that contains a minimum of six inches of
earthen material that is capable of sustaining native plant growth.
(D) The disruption of the integrity of the final cover system must
be minimized through a design that accommodates settling and
subsidence.
(ii) The owner or operator may select an alternative final cover
system design, provided the alternative final cover system is designed
and constructed to meet the criteria in paragraphs (b)(3)(ii)(A)
through (C) of this section.
(A) The design of the final cover system must include an
infiltration layer that achieves an equivalent reduction in
infiltration as the infiltration layer specified in paragraphs
(b)(3)(i)(A) and (B) of this section.
(B) The design of the final cover system must include an erosion
layer that provides equivalent protection from wind or water erosion as
the erosion layer specified in paragraph (b)(3)(i)(C) of this section.
[[Page 21490]]
(C) The disruption of the integrity of the final cover system must
be minimized through a design that accommodates settling and
subsidence.
(4) The owner or operator of the CCR surface impoundment must
obtain a written certification from a qualified professional engineer
stating that the design of the final cover system meets either the
requirements of paragraphs (b)(3)(i) or (ii) of this section.
(5) Closure through removal of CCR. The owner or operator may
alternatively elect to close an inactive CCR surface impoundment by
removing and decontaminating all areas affected by releases from the
CCR surface impoundment. CCR removal and decontamination of the CCR
surface impoundment are complete when all CCR in the inactive CCR
surface impoundment is removed, including the bottom liner of the CCR
unit.
(6) The owner or operator of the CCR surface impoundment must
obtain a written certification from a qualified professional engineer
that closure of the CCR surface impoundment under either paragraphs
(b)(1) through (4) or (b)(5) of this section is technically feasible
within the timeframe in paragraph (b) of this section.
(7) If the owner or operator of the CCR surface impoundment fails
to complete closure of the inactive CCR surface impoundment within the
timeframe in paragraph (b) of this section, the CCR unit must comply
with all of the requirements applicable to existing CCR surface
impoundments under this subpart.
(c) Required notices and progress reports. An owner or operator of
an inactive CCR surface impoundment that closes in accordance with
paragraph (b) of this section must complete the notices and progress
reports specified in paragraphs (c)(1) through (3) of this section.
(1) No later than December 17, 2015, the owner or operator must
prepare and place in the facility's operating record a notification of
intent to initiate closure of the CCR surface impoundment. The
notification must state that the CCR surface impoundment is an inactive
CCR surface impoundment closing under the requirements of paragraph (b)
of this section. The notification must also include a narrative
description of how the CCR surface impoundment will be closed, a
schedule for completing closure activities, and the required
certifications under paragraphs (b)(4) and (6) of this section, if
applicable.
(2) The owner or operator must prepare periodic progress reports
summarizing the progress of closure implementation, including a
description of the actions completed to date, any problems encountered
and a description of the actions taken to resolve the problems, and
projected closure activities for the upcoming year. The annual progress
reports must be completed according to the following schedule:
(i) The first annual progress report must be prepared no later than
13 months after completing the notification of intent to initiate
closure required by paragraph (c)(1) of this section.
(ii) The second annual progress report must be prepared no later
than 12 months after completing the first progress report required by
paragraph (c)(2)(i) of this section.
(iii) The owner or operator has completed the progress reports
specified in paragraph (c)(2) of this section when the reports are
placed in the facility's operating record as required by Sec.
257.105(i)(2).
(3) The owner or operator must prepare and place in the facility's
operating record a notification of completion of closure of the CCR
surface impoundment. The notification must be submitted within 60 days
of completing closure of the CCR surface impoundment and must include a
written certification from a qualified professional engineer stating
that the CCR surface impoundment was closed in accordance with the
requirements of either paragraph (b)(1) through (4) or (b)(5) of this
section.
(d) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(i), the
notification requirements specified in Sec. 257.106(i), and the
internet requirements specified in Sec. 257.107(i).
Sec. 257.101 Closure or retrofit of CCR units.
(a) The owner or operator of an existing unlined CCR surface
impoundment, as determined under Sec. 257.71(a), is subject to the
requirements of paragraph (a)(1) of this section.
(1) Except as provided by paragraph (a)(3) of this section, if at
any time after October 19, 2015 an owner or operator of an existing
unlined CCR surface impoundment determines in any sampling event that
the concentrations of one or more constituents listed in appendix IV to
this part are detected at statistically significant levels above the
groundwater protection standard established under Sec. 257.95(h) for
such CCR unit, within six months of making such determination, the
owner or operator of the existing unlined CCR surface impoundment must
cease placing CCR and non-CCR wastestreams into such CCR surface
impoundment and either retrofit or close the CCR unit in accordance
with the requirements of Sec. 257.102.
(2) An owner or operator of an existing unlined CCR surface
impoundment that closes in accordance with paragraph (a)(1) of this
section must include a statement in the notification required under
Sec. 257.102(g) or (k)(5) that the CCR surface impoundment is closing
or retrofitting under the requirements of paragraph (a)(1) of this
section.
(3) The timeframe specified in paragraph (a)(1) of this section
does not apply if the owner or operator complies with the alternative
closure procedures specified in Sec. 257.103.
(4) At any time after the initiation of closure under paragraph
(a)(1) of this section, the owner or operator may cease closure
activities and initiate a retrofit of the CCR unit in accordance with
the requirements of Sec. 257.102(k).
(b) The owner or operator of an existing CCR surface impoundment is
subject to the requirements of paragraph (b)(1) of this section.
(1) Except as provided by paragraph (b)(4) of this section, within
six months of determining that an existing CCR surface impoundment has
not demonstrated compliance with any location standard specified in
Sec. Sec. 257.60(a), 257.61(a), 257.62(a), 257.63(a), and 257.64(a),
the owner or operator of the CCR surface impoundment must cease placing
CCR and non-CCR wastestreams into such CCR unit and close the CCR unit
in accordance with the requirements of Sec. 257.102.
(2) Within six months of either failing to complete the initial or
any subsequent periodic safety factor assessment required by Sec.
257.73(e) by the deadlines specified in Sec. 257.73(f)(1) through (3)
or failing to document that the calculated factors of safety for the
existing CCR surface impoundment achieve the minimum safety factors
specified in Sec. 257.73(e)(1)(i) through (iv), the owner or operator
of the CCR surface impoundment must cease placing CCR and non-CCR
wastestreams into such CCR unit and close the CCR unit in accordance
with the requirements of Sec. 257.102.
(3) An owner or operator of an existing CCR surface impoundment
that closes in accordance with paragraphs (b)(1) or (2) of this section
must include a statement in the notification required under Sec.
257.102(g) that the CCR surface impoundment is closing under the
requirements of paragraphs (b)(1) or (2) of this section.
[[Page 21491]]
(4) The timeframe specified in paragraph (b)(1) of this section
does not apply if the owner or operator complies with the alternative
closure procedures specified in Sec. 257.103.
(c) The owner or operator of a new CCR surface impoundment is
subject to the requirements of paragraph (c)(1) of this section.
(1) Within six months of either failing to complete the initial or
any subsequent periodic safety factor assessment required by Sec.
257.74(e) by the deadlines specified in Sec. 257.74(f)(1) through (3)
or failing to document that the calculated factors of safety for the
new CCR surface impoundment achieve the minimum safety factors
specified in Sec. 257.74(e)(1)(i) through (v), the owner or operator
of the CCR surface impoundment must cease placing CCR and non-CCR
wastestreams into such CCR unit and close the CCR unit in accordance
with the requirements of Sec. 257.102.
(2) An owner or operator of an new CCR surface impoundment that
closes in accordance with paragraph (c)(1) of this section must include
a statement in the notification required under Sec. 257.102(g) that
the CCR surface impoundment is closing under the requirements of
paragraph (c)(1) of this section.
(d) The owner or operator of an existing CCR landfill is subject to
the requirements of paragraph (d)(1) of this section.
(1) Except as provided by paragraph (d)(3) of this section, within
six months of determining that an existing CCR landfill has not
demonstrated compliance with the location restriction for unstable
areas specified in Sec. 257.64(a), the owner or operator of the CCR
unit must cease placing CCR and non-CCR waste streams into such CCR
landfill and close the CCR unit in accordance with the requirements of
Sec. 257.102.
(2) An owner or operator of an existing CCR landfill that closes in
accordance with paragraph (d)(1) of this section must include a
statement in the notification required under Sec. 257.102(g) that the
CCR landfill is closing under the requirements of paragraph (d)(1) of
this section.
(3) The timeframe specified in paragraph (d)(1) of this section
does not apply if the owner or operator complies with the alternative
closure procedures specified in Sec. 257.103.
Sec. 257.102 Criteria for conducting the closure or retrofit of CCR
units.
(a) Closure of a CCR landfill, CCR surface impoundment, or any
lateral expansion of a CCR unit must be completed either by leaving the
CCR in place and installing a final cover system or through removal of
the CCR and decontamination of the CCR unit, as described in paragraphs
(b) through (j) of this section. Retrofit of a CCR surface impoundment
must be completed in accordance with the requirements in paragraph (k)
of this section.
(b) Written closure plan--(1) Content of the plan. The owner or
operator of a CCR unit must prepare a written closure plan that
describes the steps necessary to close the CCR unit at any point during
the active life of the CCR unit consistent with recognized and
generally accepted good engineering practices. The written closure plan
must include, at a minimum, the information specified in paragraphs
(b)(1)(i) through (vi) of this section.
(i) A narrative description of how the CCR unit will be closed in
accordance with this section.
(ii) If closure of the CCR unit will be accomplished through
removal of CCR from the CCR unit, a description of the procedures to
remove the CCR and decontaminate the CCR unit in accordance with
paragraph (c) of this section.
(iii) If closure of the CCR unit will be accomplished by leaving
CCR in place, a description of the final cover system, designed in
accordance with paragraph (d) of this section, and the methods and
procedures to be used to install the final cover. The closure plan must
also discuss how the final cover system will achieve the performance
standards specified in paragraph (d) of this section.
(iv) An estimate of the maximum inventory of CCR ever on-site over
the active life of the CCR unit.
(v) An estimate of the largest area of the CCR unit ever requiring
a final cover as required by paragraph (d) of this section at any time
during the CCR unit's active life.
(vi) A schedule for completing all activities necessary to satisfy
the closure criteria in this section, including an estimate of the year
in which all closure activities for the CCR unit will be completed. The
schedule should provide sufficient information to describe the
sequential steps that will be taken to close the CCR unit, including
identification of major milestones such as coordinating with and
obtaining necessary approvals and permits from other agencies, the
dewatering and stabilization phases of CCR surface impoundment closure,
or installation of the final cover system, and the estimated timeframes
to complete each step or phase of CCR unit closure. When preparing the
written closure plan, if the owner or operator of a CCR unit estimates
that the time required to complete closure will exceed the timeframes
specified in paragraph (f)(1) of this section, the written closure plan
must include the site-specific information, factors and considerations
that would support any time extension sought under paragraph (f)(2) of
this section.
(2) Timeframes for preparing the initial written closure plan--(i)
Existing CCR landfills and existing CCR surface impoundments. No later
than October 17, 2016, the owner or operator of the CCR unit must
prepare an initial written closure plan consistent with the
requirements specified in paragraph (b)(1) of this section.
(ii) New CCR landfills and new CCR surface impoundments, and any
lateral expansion of a CCR unit. No later than the date of the initial
receipt of CCR in the CCR unit, the owner or operator must prepare an
initial written closure plan consistent with the requirements specified
in paragraph (b)(1) of this section.
(iii) The owner or operator has completed the written closure plan
when the plan, including the certification required by paragraph (b)(4)
of this section, has been placed in the facility's operating record as
required by Sec. 257.105(i)(4).
(3) Amendment of a written closure plan. (i) The owner or operator
may amend the initial or any subsequent written closure plan developed
pursuant to paragraph (b)(1) of this section at any time.
(ii) The owner or operator must amend the written closure plan
whenever:
(A) There is a change in the operation of the CCR unit that would
substantially affect the written closure plan in effect; or
(B) Before or after closure activities have commenced,
unanticipated events necessitate a revision of the written closure
plan.
(iii) The owner or operator must amend the closure plan at least 60
days prior to a planned change in the operation of the facility or CCR
unit, or no later than 60 days after an unanticipated event requires
the need to revise an existing written closure plan. If a written
closure plan is revised after closure activities have commenced for a
CCR unit, the owner or operator must amend the current closure plan no
later than 30 days following the triggering event.
(4) The owner or operator of the CCR unit must obtain a written
certification from a qualified professional engineer that the initial
and any amendment of
[[Page 21492]]
the written closure plan meets the requirements of this section.
(c) Closure by removal of CCR. An owner or operator may elect to
close a CCR unit by removing and decontaminating all areas affected by
releases from the CCR unit. CCR removal and decontamination of the CCR
unit are complete when constituent concentrations throughout the CCR
unit and any areas affected by releases from the CCR unit have been
removed and groundwater monitoring concentrations do not exceed the
groundwater protection standard established pursuant to Sec. 257.95(h)
for constituents listed in appendix IV to this part.
(d) Closure performance standard when leaving CCR in place--(1) The
owner or operator of a CCR unit must ensure that, at a minimum, the CCR
unit is closed in a manner that will:
(i) Control, minimize or eliminate, to the maximum extent feasible,
post-closure infiltration of liquids into the waste and releases of
CCR, leachate, or contaminated run-off to the ground or surface waters
or to the atmosphere;
(ii) Preclude the probability of future impoundment of water,
sediment, or slurry;
(iii) Include measures that provide for major slope stability to
prevent the sloughing or movement of the final cover system during the
closure and post-closure care period;
(iv) Minimize the need for further maintenance of the CCR unit; and
(v) Be completed in the shortest amount of time consistent with
recognized and generally accepted good engineering practices.
(2) Drainage and stabilization of CCR surface impoundments. The
owner or operator of a CCR surface impoundment or any lateral expansion
of a CCR surface impoundment must meet the requirements of paragraphs
(d)(2)(i) and (ii) of this section prior to installing the final cover
system required under paragraph (d)(3) of this section.
(i) Free liquids must be eliminated by removing liquid wastes or
solidifying the remaining wastes and waste residues.
(ii) Remaining wastes must be stabilized sufficient to support the
final cover system.
(3) Final cover system. If a CCR unit is closed by leaving CCR in
place, the owner or operator must install a final cover system that is
designed to minimize infiltration and erosion, and at a minimum, meets
the requirements of paragraph (d)(3)(i) of this section, or the
requirements of the alternative final cover system specified in
paragraph (d)(3)(ii) of this section.
(i) The final cover system must be designed and constructed to meet
the criteria in paragraphs (d)(3)(i)(A) through (D) of this section.
The design of the final cover system must be included in the written
closure plan required by paragraph (b) of this section.
(A) The permeability of the final cover system must be less than or
equal to the permeability of any bottom liner system or natural
subsoils present, or a permeability no greater than 1 x 10-5
cm/sec, whichever is less.
(B) The infiltration of liquids through the closed CCR unit must be
minimized by the use of an infiltration layer that contains a minimum
of 18 inches of earthen material.
(C) The erosion of the final cover system must be minimized by the
use of an erosion layer that contains a minimum of six inches of
earthen material that is capable of sustaining native plant growth.
(D) The disruption of the integrity of the final cover system must
be minimized through a design that accommodates settling and
subsidence.
(ii) The owner or operator may select an alternative final cover
system design, provided the alternative final cover system is designed
and constructed to meet the criteria in paragraphs (f)(3)(ii)(A)
through (D) of this section. The design of the final cover system must
be included in the written closure plan required by paragraph (b) of
this section.
(A) The design of the final cover system must include an
infiltration layer that achieves an equivalent reduction in
infiltration as the infiltration layer specified in paragraphs
(d)(3)(i)(A) and (B) of this section.
(B) The design of the final cover system must include an erosion
layer that provides equivalent protection from wind or water erosion as
the erosion layer specified in paragraph (d)(3)(i)(C) of this section.
(C) The disruption of the integrity of the final cover system must
be minimized through a design that accommodates settling and
subsidence.
(iii) The owner or operator of the CCR unit must obtain a written
certification from a qualified professional engineer that the design of
the final cover system meets the requirements of this section.
(e) Initiation of closure activities. Except as provided for in
paragraph (e)(4) of this section and Sec. 257.103, the owner or
operator of a CCR unit must commence closure of the CCR unit no later
than the applicable timeframes specified in either paragraph (e)(1) or
(2) of this section.
(1) The owner or operator must commence closure of the CCR unit no
later than 30 days after the date on which the CCR unit either:
(i) Receives the known final receipt of waste, either CCR or any
non-CCR waste stream; or
(ii) Removes the known final volume of CCR from the CCR unit for
the purpose of beneficial use of CCR.
(2)(i) Except as provided by paragraph (e)(2)(ii) of this section,
the owner or operator must commence closure of a CCR unit that has not
received CCR or any non-CCR waste stream or is no longer removing CCR
for the purpose of beneficial use within two years of the last receipt
of waste or within two years of the last removal of CCR material for
the purpose of beneficial use.
(ii) Notwithstanding paragraph (e)(2)(i) of this section, the owner
or operator of the CCR unit may secure an additional two years to
initiate closure of the idle unit provided the owner or operator
provides written documentation that the CCR unit will continue to
accept wastes or will start removing CCR for the purpose of beneficial
use. The documentation must be supported by, at a minimum, the
information specified in paragraphs (e)(2)(ii)(A) and (B) of this
section. The owner or operator may obtain two-year extensions provided
the owner or operator continues to be able to demonstrate that there is
reasonable likelihood that the CCR unit will accept wastes in the
foreseeable future or will remove CCR from the unit for the purpose of
beneficial use. The owner or operator must place each completed
demonstration, if more than one time extension is sought, in the
facility's operating record as required by Sec. 257.105(i)(5) prior to
the end of any two-year period.
(A) Information documenting that the CCR unit has remaining storage
or disposal capacity or that the CCR unit can have CCR removed for the
purpose of beneficial use; and
(B) Information demonstrating that that there is a reasonable
likelihood that the CCR unit will resume receiving CCR or non-CCR waste
streams in the foreseeable future or that CCR can be removed for the
purpose of beneficial use. The narrative must include a best estimate
as to when the CCR unit will resume receiving CCR or non-CCR waste
streams. The situations listed in paragraphs (e)(2)(ii)(B)(1) through
(4) of this section are examples of situations that would support a
determination that the CCR unit will resume receiving CCR or non-CCR
waste streams in the foreseeable future.
(1) Normal plant operations include periods during which the CCR
unit does not receive CCR or non-CCR waste
[[Page 21493]]
streams, such as the alternating use of two or more CCR units whereby
at any point in time one CCR unit is receiving CCR while CCR is being
removed from a second CCR unit after its dewatering.
(2) The CCR unit is dedicated to a coal-fired boiler unit that is
temporarily idled (e.g., CCR is not being generated) and there is a
reasonable likelihood that the coal-fired boiler will resume operations
in the future.
(3) The CCR unit is dedicated to an operating coal-fired boiler
(i.e., CCR is being generated); however, no CCR are being placed in the
CCR unit because the CCR are being entirely diverted to beneficial
uses, but there is a reasonable likelihood that the CCR unit will again
be used in the foreseeable future.
(4) The CCR unit currently receives only non-CCR waste streams and
those non-CCR waste streams are not generated for an extended period of
time, but there is a reasonable likelihood that the CCR unit will again
receive non-CCR waste streams in the future.
(iii) In order to obtain additional time extension(s) to initiate
closure of a CCR unit beyond the two years provided by paragraph
(e)(2)(i) of this section, the owner or operator of the CCR unit must
include with the demonstration required by paragraph (e)(2)(ii) of this
section the following statement signed by the owner or operator or an
authorized representative:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this demonstration
and all attached documents, and that, based on my inquiry of those
individuals immediately responsible for obtaining the information, I
believe that the submitted information is true, accurate, and
complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and
imprisonment.
(3) For purposes of this subpart, closure of the CCR unit has
commenced if the owner or operator has ceased placing waste and
completes any of the following actions or activities:
(i) Taken any steps necessary to implement the written closure plan
required by paragraph (b) of this section;
(ii) Submitted a completed application for any required state or
agency permit or permit modification; or
(iii) Taken any steps necessary to comply with any state or other
agency standards that are a prerequisite, or are otherwise applicable,
to initiating or completing the closure of a CCR unit.
(4) The timeframes specified in paragraphs (e)(1) and (2) of this
section do not apply to any of the following owners or operators:
(i) An owner or operator of an inactive CCR surface impoundment
closing the CCR unit as required by Sec. 257.100(b);
(ii) An owner or operator of an existing unlined CCR surface
impoundment closing the CCR unit as required by Sec. 257.101(a);
(iii) An owner or operator of an existing CCR surface impoundment
closing the CCR unit as required by Sec. 257.101(b);
(iv) An owner or operator of a new CCR surface impoundment closing
the CCR unit as required by Sec. 257.101(c); or
(v) An owner or operator of an existing CCR landfill closing the
CCR unit as required by Sec. 257.101(d).
(f) Completion of closure activities. (1) Except as provided for in
paragraph (f)(2) of this section, the owner or operator must complete
closure of the CCR unit:
(i) For existing and new CCR landfills and any lateral expansion of
a CCR landfill, within six months of commencing closure activities.
(ii) For existing and new CCR surface impoundments and any lateral
expansion of a CCR surface impoundment, within five years of commencing
closure activities.
(2)(i) Extensions of closure timeframes. The timeframes for
completing closure of a CCR unit specified under paragraphs (f)(1) of
this section may be extended if the owner or operator can demonstrate
that it was not feasible to complete closure of the CCR unit within the
required timeframes due to factors beyond the facility's control. If
the owner or operator is seeking a time extension beyond the time
specified in the written closure plan as required by paragraph (b)(1)
of this section, the demonstration must include a narrative discussion
providing the basis for additional time beyond that specified in the
closure plan. The owner or operator must place each completed
demonstration, if more than one time extension is sought, in the
facility's operating record as required by Sec. 257.105(i)(6) prior to
the end of any two-year period. Factors that may support such a
demonstration include:
(A) Complications stemming from the climate and weather, such as
unusual amounts of precipitation or a significantly shortened
construction season;
(B) Time required to dewater a surface impoundment due to the
volume of CCR contained in the CCR unit or the characteristics of the
CCR in the unit;
(C) The geology and terrain surrounding the CCR unit will affect
the amount of material needed to close the CCR unit; or
(D) Time required or delays caused by the need to coordinate with
and obtain necessary approvals and permits from a state or other
agency.
(ii) Maximum time extensions. (A) CCR surface impoundments of 40
acres or smaller may extend the time to complete closure by no longer
than two years.
(B) CCR surface impoundments larger than 40 acres may extend the
timeframe to complete closure of the CCR unit multiple times, in two-
year increments. For each two-year extension sought, the owner or
operator must substantiate the factual circumstances demonstrating the
need for the extension. No more than a total of five two-year
extensions may be obtained for any CCR surface impoundment.
(C) CCR landfills may extend the timeframe to complete closure of
the CCR unit multiple times, in one-year increments. For each one-year
extension sought, the owner or operator must substantiate the factual
circumstances demonstrating the need for the extension. No more than a
total of two one-year extensions may be obtained for any CCR landfill.
(iii) In order to obtain additional time extension(s) to complete
closure of a CCR unit beyond the times provided by paragraph (f)(1) of
this section, the owner or operator of the CCR unit must include with
the demonstration required by paragraph (f)(2)(i) of this section the
following statement signed by the owner or operator or an authorized
representative:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this demonstration
and all attached documents, and that, based on my inquiry of those
individuals immediately responsible for obtaining the information, I
believe that the submitted information is true, accurate, and
complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and
imprisonment.
(3) Upon completion, the owner or operator of the CCR unit must
obtain a certification from a qualified professional engineer verifying
that closure has been completed in accordance with the closure plan
specified in paragraph (b) of this section and the requirements of this
section.
(g) No later than the date the owner or operator initiates closure
of a CCR unit, the owner or operator must prepare a notification of
intent to close a CCR unit. The notification must include the
certification by a qualified professional engineer for the design of
the final cover system as required by Sec. 257.102(d)(3)(iii), if
applicable. The
[[Page 21494]]
owner or operator has completed the notification when it has been
placed in the facility's operating record as required by Sec.
257.105(i)(7).
(h) Within 30 days of completion of closure of the CCR unit, the
owner or operator must prepare a notification of closure of a CCR unit.
The notification must include the certification by a qualified
professional engineer as required by Sec. 257.102(f)(3). The owner or
operator has completed the notification when it has been placed in the
facility's operating record as required by Sec. 257.105(i)(8).
(i) Deed notations. (1) Except as provided by paragraph (i)(4) of
this section, following closure of a CCR unit, the owner or operator
must record a notation on the deed to the property, or some other
instrument that is normally examined during title search.
(2) The notation on the deed must in perpetuity notify any
potential purchaser of the property that:
(i) The land has been used as a CCR unit; and
(ii) Its use is restricted under the post-closure care requirements
as provided by Sec. 257.104(d)(1)(iii).
(3) Within 30 days of recording a notation on the deed to the
property, the owner or operator must prepare a notification stating
that the notation has been recorded. The owner or operator has
completed the notification when it has been placed in the facility's
operating record as required by Sec. 257.105(i)(9).
(4) An owner or operator that closes a CCR unit in accordance with
paragraph (c) of this section is not subject to the requirements of
paragraphs (i)(1) through (3) of this section.
(j) The owner or operator of the CCR unit must comply with the
closure recordkeeping requirements specified in Sec. 257.105(i), the
closure notification requirements specified in Sec. 257.106(i), and
the closure Internet requirements specified in Sec. 257.107(i).
(k) Criteria to retrofit an existing CCR surface impoundment. (1)
To retrofit an existing CCR surface impoundment, the owner or operator
must:
(i) First remove all CCR, including any contaminated soils and
sediments from the CCR unit; and
(ii) Comply with the requirements in Sec. 257.72.
(iii) A CCR surface impoundment undergoing a retrofit remains
subject to all other requirements of this subpart, including the
requirement to conduct any necessary corrective action.
(2) Written retrofit plan--(i) Content of the plan. The owner or
operator must prepare a written retrofit plan that describes the steps
necessary to retrofit the CCR unit consistent with recognized and
generally accepted good engineering practices. The written retrofit
plan must include, at a minimum, all of the following information:
(A) A narrative description of the specific measures that will be
taken to retrofit the CCR unit in accordance with this section.
(B) A description of the procedures to remove all CCR and
contaminated soils and sediments from the CCR unit.
(C) An estimate of the maximum amount of CCR that will be removed
as part of the retrofit operation.
(D) An estimate of the largest area of the CCR unit that will be
affected by the retrofit operation.
(E) A schedule for completing all activities necessary to satisfy
the retrofit criteria in this section, including an estimate of the
year in which retrofit activities of the CCR unit will be completed.
(ii) Timeframes for preparing the initial written retrofit plan.
(A) No later than 60 days prior to date of initiating retrofit
activities, the owner or operator must prepare an initial written
retrofit plan consistent with the requirements specified in paragraph
(k)(2) of this section. For purposes of this subpart, initiation of
retrofit activities has commenced if the owner or operator has ceased
placing waste in the unit and completes any of the following actions or
activities:
(1) Taken any steps necessary to implement the written retrofit
plan;
(2) Submitted a completed application for any required state or
agency permit or permit modification; or
(3) Taken any steps necessary to comply with any state or other
agency standards that are a prerequisite, or are otherwise applicable,
to initiating or completing the retrofit of a CCR unit.
(B) The owner or operator has completed the written retrofit plan
when the plan, including the certification required by paragraph
(k)(2)(iv) of this section, has been placed in the facility's operating
record as required by Sec. 257.105(j)(1).
(iii) Amendment of a written retrofit plan. (A) The owner or
operator may amend the initial or any subsequent written retrofit plan
at any time.
(B) The owner or operator must amend the written retrofit plan
whenever:
(1) There is a change in the operation of the CCR unit that would
substantially affect the written retrofit plan in effect; or
(2) Before or after retrofit activities have commenced,
unanticipated events necessitate a revision of the written retrofit
plan.
(C) The owner or operator must amend the retrofit plan at least 60
days prior to a planned change in the operation of the facility or CCR
unit, or no later than 60 days after an unanticipated event requires
the revision of an existing written retrofit plan. If a written
retrofit plan is revised after retrofit activities have commenced for a
CCR unit, the owner or operator must amend the current retrofit plan no
later than 30 days following the triggering event.
(iv) The owner or operator of the CCR unit must obtain a written
certification from a qualified professional engineer that the
activities outlined in the written retrofit plan, including any
amendment of the plan, meet the requirements of this section.
(3) Deadline for completion of activities related to the retrofit
of a CCR unit. Any CCR surface impoundment that is being retrofitted
must complete all retrofit activities within the same time frames and
procedures specified for the closure of a CCR surface impoundment in
Sec. 257.102(f) or, where applicable, Sec. 257.103.
(4) Upon completion, the owner or operator must obtain a
certification from a qualified professional engineer verifying that the
retrofit activities have been completed in accordance with the retrofit
plan specified in paragraph (k)(2) of this section and the requirements
of this section.
(5) No later than the date the owner or operator initiates the
retrofit of a CCR unit, the owner or operator must prepare a
notification of intent to retrofit a CCR unit. The owner or operator
has completed the notification when it has been placed in the
facility's operating record as required by Sec. 257.105(j)(5).
(6) Within 30 days of completing the retrofit activities specified
in paragraph (k)(1) of this section, the owner or operator must prepare
a notification of completion of retrofit activities. The notification
must include the certification by a qualified professional engineer as
required by paragraph (k)(4) of this section. The owner or operator has
completed the notification when it has been placed in the facility's
operating record as required by Sec. 257.105(j)(6).
(7) At any time after the initiation of a CCR unit retrofit, the
owner or operator may cease the retrofit and initiate closure of the
CCR unit in accordance with the requirements of Sec. 257.102.
(8) The owner or operator of the CCR unit must comply with the
retrofit recordkeeping requirements specified in
[[Page 21495]]
Sec. 257.105(j), the retrofit notification requirements specified in
Sec. 257.106(j), and the retrofit Internet requirements specified in
Sec. 257.107(j).
Sec. 257.103 Alternative closure requirements.
The owner or operator of a CCR landfill, CCR surface impoundment,
or any lateral expansion of a CCR unit that is subject to closure
pursuant to Sec. 257.101(a), (b)(1), or (d) may continue to receive
CCR in the unit provided the owner or operator meets the requirements
of either paragraph (a) or (b) of this section.
(a)(1) No alternative CCR disposal capacity. Notwithstanding the
provisions of Sec. 257.101(a), (b)(1), or (d), a CCR unit may continue
to receive CCR if the owner or operator of the CCR unit certifies that
the CCR must continue to be managed in that CCR unit due to the absence
of alternative disposal capacity both on-site and off-site of the
facility. To qualify under this paragraph (a)(1), the owner or operator
of the CCR unit must document that all of the following conditions have
been met:
(i) No alternative disposal capacity is available on-site or off-
site. An increase in costs or the inconvenience of existing capacity is
not sufficient to support qualification under this section;
(ii) The owner or operator has made, and continues to make, efforts
to obtain additional capacity. Qualification under this subsection
lasts only as long as no alternative capacity is available. Once
alternative capacity is identified, the owner or operator must arrange
to use such capacity as soon as feasible;
(iii) The owner or operator must remain in compliance with all
other requirements of this subpart, including the requirement to
conduct any necessary corrective action; and
(iv) The owner or operator must prepare an annual progress report
documenting the continued lack of alternative capacity and the progress
towards the development of alternative CCR disposal capacity.
(2) Once alternative capacity is available, the CCR unit must cease
receiving CCR and initiate closure following the timeframes in Sec.
257.102(e) and (f).
(3) If no alternative capacity is identified within five years
after the initial certification, the CCR unit must cease receiving CCR
and close in accordance with the timeframes in Sec. 257.102(e) and
(f).
(b)(1) Permanent cessation of a coal-fired boiler(s) by a date
certain. Notwithstanding the provisions of Sec. 257.101(a), (b)(1),
and (d), a CCR unit may continue to receive CCR if the owner or
operator certifies that the facility will cease operation of the coal-
fired boilers within the timeframes specified in paragraphs (b)(2)
through (4) of this section, but in the interim period (prior to
closure of the coal-fired boiler), the facility must continue to use
the CCR unit due to the absence of alternative disposal capacity both
on-site and off-site of the facility. To qualify under this paragraph
(b)(1), the owner or operator of the CCR unit must document that all of
the following conditions have been met:
(i) No alternative disposal capacity is available on-site or off-
site. An increase in costs or the inconvenience of existing capacity is
not sufficient to support qualification under this section.
(ii) The owner or operator must remain in compliance with all other
requirements of this subpart, including the requirement to conduct any
necessary corrective action; and
(iii) The owner or operator must prepare an annual progress report
documenting the continued lack of alternative capacity and the progress
towards the closure of the coal-fired boiler.
(2) For a CCR surface impoundment that is 40 acres or smaller, the
coal-fired boiler must cease operation and the CCR surface impoundment
must have completed closure no later than October 17, 2023.
(3) For a CCR surface impoundment that is larger than 40 acres, the
coal-fired boiler must cease operation, and the CCR surface impoundment
must complete closure no later than October 17, 2028.
(4) For a CCR landfill, the coal-fired boiler must cease operation,
and the CCR landfill must complete closure no later than April 19,
2021.
(c) Required notices and progress reports. An owner or operator of
a CCR unit that closes in accordance with paragraphs (a) or (b) of this
section must complete the notices and progress reports specified in
paragraphs (c)(1) through (3) of this section.
(1) Within six months of becoming subject to closure pursuant to
Sec. 257.101(a), (b)(1), or (d), the owner or operator must prepare
and place in the facility's operating record a notification of intent
to comply with the alternative closure requirements of this section.
The notification must describe why the CCR unit qualifies for the
alternative closure provisions under either paragraph (a) or (b) of
this section, in addition to providing the documentation and
certifications required by paragraph (a) or (b) of this section.
(2) The owner or operator must prepare the periodic progress
reports required by paragraphs (a)(1)(iv) or (b)(1)(iii), in addition
to describing any problems encountered and a description of the actions
taken to resolve the problems. The annual progress reports must be
completed according to the following schedule:
(i) The first annual progress report must be prepared no later than
13 months after completing the notification of intent to comply with
the alternative closure requirements required by paragraph (c)(1) of
this section.
(ii) The second annual progress report must be prepared no later
than 12 months after completing the first annual progress report.
Additional annual progress reports must be prepared within 12 months of
completing the previous annual progress report.
(iii) The owner or operator has completed the progress reports
specified in paragraph (c)(2) of this section when the reports are
placed in the facility's operating record as required by Sec.
257.105(i)(10).
(3) An owner or operator of a CCR unit must also prepare the
notification of intent to close a CCR unit as required by Sec.
257.102(g).
(d) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(i), the
notification requirements specified in Sec. 257.106(i), and the
Internet requirements specified in Sec. 257.107(i).
Sec. 257.104 Post-closure care requirements.
(a) Applicability. (1) Except as provided by either paragraph
(a)(2) or (3) of this section, Sec. 257.104 applies to the owners or
operators of CCR landfills, CCR surface impoundments, and all lateral
expansions of CCR units that are subject to the closure criteria under
Sec. 257.102.
(2) An owner or operator of a CCR unit that elects to close a CCR
unit by removing CCR as provided by Sec. 257.102(c) is not subject to
the post-closure care criteria under this section.
(3) An owner or operator of an inactive CCR surface impoundment
that elects to close a CCR unit pursuant to the requirements under
Sec. 257.100(b) is not subject to the post-closure care criteria under
this section.
(b) Post-closure care maintenance requirements. Following closure
of the CCR unit, the owner or operator must conduct post-closure care
for the CCR unit, which must consist of at least the following:
(1) Maintaining the integrity and effectiveness of the final cover
system, including making repairs to the final
[[Page 21496]]
cover as necessary to correct the effects of settlement, subsidence,
erosion, or other events, and preventing run-on and run-off from
eroding or otherwise damaging the final cover;
(2) If the CCR unit is subject to the design criteria under Sec.
257.70, maintaining the integrity and effectiveness of the leachate
collection and removal system and operating the leachate collection and
removal system in accordance with the requirements of Sec. 257.70; and
(3) Maintaining the groundwater monitoring system and monitoring
the groundwater in accordance with the requirements of Sec. Sec.
257.90 through 257.98.
(c) Post-closure care period. (1) Except as provided by paragraph
(c)(2) of this section, the owner or operator of the CCR unit must
conduct post-closure care for 30 years.
(2) If at the end of the post-closure care period the owner or
operator of the CCR unit is operating under assessment monitoring in
accordance with Sec. 257.95, the owner or operator must continue to
conduct post-closure care until the owner or operator returns to
detection monitoring in accordance with Sec. 257.95.
(d) Written post-closure plan--(1) Content of the plan. The owner
or operator of a CCR unit must prepare a written post-closure plan that
includes, at a minimum, the information specified in paragraphs
(d)(1)(i) through (iii) of this section.
(i) A description of the monitoring and maintenance activities
required in paragraph (b) of this section for the CCR unit, and the
frequency at which these activities will be performed;
(ii) The name, address, telephone number, and email address of the
person or office to contact about the facility during the post-closure
care period; and
(iii) A description of the planned uses of the property during the
post-closure period. Post-closure use of the property shall not disturb
the integrity of the final cover, liner(s), or any other component of
the containment system, or the function of the monitoring systems
unless necessary to comply with the requirements in this subpart. Any
other disturbance is allowed if the owner or operator of the CCR unit
demonstrates that disturbance of the final cover, liner, or other
component of the containment system, including any removal of CCR, will
not increase the potential threat to human health or the environment.
The demonstration must be certified by a qualified professional
engineer, and notification shall be provided to the State Director that
the demonstration has been placed in the operating record and on the
owners or operator's publicly accessible Internet site.
(2) Deadline to prepare the initial written post-closure plan--(i)
Existing CCR landfills and existing CCR surface impoundments. No later
than October 17, 2016, the owner or operator of the CCR unit must
prepare an initial written post-closure plan consistent with the
requirements specified in paragraph (d)(1) of this section.
(ii) New CCR landfills, new CCR surface impoundments, and any
lateral expansion of a CCR unit. No later than the date of the initial
receipt of CCR in the CCR unit, the owner or operator must prepare an
initial written post-closure plan consistent with the requirements
specified in paragraph (d)(1) of this section.
(iii) The owner or operator has completed the written post-closure
plan when the plan, including the certification required by paragraph
(d)(4) of this section, has been placed in the facility's operating
record as required by Sec. 257.105(i)(4).
(3) Amendment of a written post-closure plan. (i) The owner or
operator may amend the initial or any subsequent written post-closure
plan developed pursuant to paragraph (d)(1) of this section at any
time.
(ii) The owner or operator must amend the written closure plan
whenever:
(A) There is a change in the operation of the CCR unit that would
substantially affect the written post-closure plan in effect; or
(B) After post-closure activities have commenced, unanticipated
events necessitate a revision of the written post-closure plan.
(iii) The owner or operator must amend the written post-closure
plan at least 60 days prior to a planned change in the operation of the
facility or CCR unit, or no later than 60 days after an unanticipated
event requires the need to revise an existing written post-closure
plan. If a written post-closure plan is revised after post-closure
activities have commenced for a CCR unit, the owner or operator must
amend the written post-closure plan no later than 30 days following the
triggering event.
(4) The owner or operator of the CCR unit must obtain a written
certification from a qualified professional engineer that the initial
and any amendment of the written post-closure plan meets the
requirements of this section.
(e) Notification of completion of post-closure care period. No
later than 60 days following the completion of the post-closure care
period, the owner or operator of the CCR unit must prepare a
notification verifying that post-closure care has been completed. The
notification must include the certification by a qualified professional
engineer verifying that post-closure care has been completed in
accordance with the closure plan specified in paragraph (d) of this
section and the requirements of this section. The owner or operator has
completed the notification when it has been placed in the facility's
operating record as required by Sec. 257.105(i)(13).
(f) The owner or operator of the CCR unit must comply with the
recordkeeping requirements specified in Sec. 257.105(i), the
notification requirements specified in Sec. 257.106(i), and the
Internet requirements specified in Sec. 257.107(i).
Recordkeeping, Notification, and Posting of Information to the Internet
Sec. 257.105 Recordkeeping requirements.
(a) Each owner or operator of a CCR unit subject to the
requirements of this subpart must maintain files of all information
required by this section in a written operating record at their
facility.
(b) Unless specified otherwise, each file must be retained for at
least five years following the date of each occurrence, measurement,
maintenance, corrective action, report, record, or study.
(c) An owner or operator of more than one CCR unit subject to the
provisions of this subpart may comply with the requirements of this
section in one recordkeeping system provided the system identifies each
file by the name of each CCR unit. The files may be maintained on
microfilm, on a computer, on computer disks, on a storage system
accessible by a computer, on magnetic tape disks, or on microfiche.
(d) The owner or operator of a CCR unit must submit to the State
Director and/or appropriate Tribal authority any demonstration or
documentation required by this subpart, if requested, when such
information is not otherwise available on the owner or operator's
publicly accessible Internet site.
(e) Location restrictions. The owner or operator of a CCR unit
subject to this subpart must place the demonstrations documenting
whether or not the CCR unit is in compliance with the requirements
under Sec. Sec. 257.60(a), 257.61(a), 257.62(a), 257.63(a), and
257.64(a), as it becomes available, in the facility's operating record.
(f) Design criteria. The owner or operator of a CCR unit subject to
this subpart must place the following
[[Page 21497]]
information, as it becomes available, in the facility's operating
record:
(1) The design and construction certifications as required by Sec.
257.70(e) and (f).
(2) The documentation of liner type as required by Sec. 257.71(a).
(3) The design and construction certifications as required by Sec.
257.72(c) and (d).
(4) Documentation prepared by the owner or operator stating that
the permanent identification marker was installed as required by
Sec. Sec. 257.73(a)(1) and 257.74(a)(1).
(5) The initial and periodic hazard potential classification
assessments as required by Sec. Sec. 257.73(a)(2) and 257.74(a)(2).
(6) The emergency action plan (EAP), and any amendment of the EAP,
as required by Sec. Sec. 257.73(a)(3) and 257.74(a)(3), except that
only the most recent EAP must be maintained in the facility's operating
record irrespective of the time requirement specified in paragraph (b)
of this section.
(7) Documentation prepared by the owner or operator recording the
annual face-to-face meeting or exercise between representatives of the
owner or operator of the CCR unit and the local emergency responders as
required by Sec. Sec. 257.73(a)(3)(i)(E) and 257.74(a)(3)(i)(E).
(8) Documentation prepared by the owner or operator recording all
activations of the emergency action plan as required by Sec. Sec.
257.73(a)(3)(v) and 257.74(a)(3)(v).
(9) The history of construction, and any revisions of it, as
required by Sec. 257.73(c), except that these files must be maintained
until the CCR unit completes closure of the unit in accordance with
Sec. 257.102.
(10) The initial and periodic structural stability assessments as
required by Sec. Sec. 257.73(d) and 257.74(d).
(11) Documentation detailing the corrective measures taken to
remedy the deficiency or release as required by Sec. Sec. 257.73(d)(2)
and 257.74(d)(2).
(12) The initial and periodic safety factor assessments as required
by Sec. Sec. 257.73(e) and 257.74(e).
(13) The design and construction plans, and any revisions of it, as
required by Sec. 257.74(c), except that these files must be maintained
until the CCR unit completes closure of the unit in accordance with
Sec. 257.102.
(g) Operating criteria. The owner or operator of a CCR unit subject
to this subpart must place the following information, as it becomes
available, in the facility's operating record:
(1) The CCR fugitive dust control plan, and any subsequent
amendment of the plan, required by Sec. 257.80(b), except that only
the most recent control plan must be maintained in the facility's
operating record irrespective of the time requirement specified in
paragraph (b) of this section.
(2) The annual CCR fugitive dust control report required by Sec.
257.80(c).
(3) The initial and periodic run-on and run-off control system
plans as required by Sec. 257.81(c).
(4) The initial and periodic inflow design flood control system
plan as required by Sec. 257.82(c).
(5) Documentation recording the results of each inspection and
instrumentation monitoring by a qualified person as required by Sec.
257.83(a).
(6) The periodic inspection report as required by Sec.
257.83(b)(2).
(7) Documentation detailing the corrective measures taken to remedy
the deficiency or release as required by Sec. Sec. 257.83(b)(5) and
257.84(b)(5).
(8) Documentation recording the results of the weekly inspection by
a qualified person as required by Sec. 257.84(a).
(9) The periodic inspection report as required by Sec.
257.84(b)(2).
(h) Groundwater monitoring and corrective action. The owner or
operator of a CCR unit subject to this subpart must place the following
information, as it becomes available, in the facility's operating
record:
(1) The annual groundwater monitoring and corrective action report
as required by Sec. 257.90(e).
(2) Documentation of the design, installation, development, and
decommissioning of any monitoring wells, piezometers and other
measurement, sampling, and analytical devices as required by Sec.
257.91(e)(1).
(3) The groundwater monitoring system certification as required by
Sec. 257.91(f).
(4) The selection of a statistical method certification as required
by Sec. 257.93(f)(6).
(5) Within 30 days of establishing an assessment monitoring
program, the notification as required by Sec. 257.94(e)(3).
(6) The results of appendices III and IV to this part constituent
concentrations as required by Sec. 257.95(d)(1).
(7) Within 30 days of returning to a detection monitoring program,
the notification as required by Sec. 257.95(e).
(8) Within 30 days of detecting one or more constituents in
appendix IV to this part at statistically significant levels above the
groundwater protection standard, the notifications as required by Sec.
257.95(g).
(9) Within 30 days of initiating the assessment of corrective
measures requirements, the notification as required by Sec.
257.95(g)(5).
(10) The completed assessment of corrective measures as required by
Sec. 257.96(d).
(11) Documentation prepared by the owner or operator recording the
public meeting for the corrective measures assessment as required by
Sec. 257.96(e).
(12) The semiannual report describing the progress in selecting and
designing the remedy and the selection of remedy report as required by
Sec. 257.97(a), except that the selection of remedy report must be
maintained until the remedy has been completed.
(13) Within 30 days of completing the remedy, the notification as
required by Sec. 257.98(e).
(i) Closure and post-closure care. The owner or operator of a CCR
unit subject to this subpart must place the following information, as
it becomes available, in the facility's operating record:
(1) The notification of intent to initiate closure of the CCR unit
as required by Sec. 257.100(c)(1).
(2) The annual progress reports of closure implementation as
required by Sec. 257.100(c)(2)(i) and (ii).
(3) The notification of closure completion as required by Sec.
257.100(c)(3).
(4) The written closure plan, and any amendment of the plan, as
required by Sec. 257.102(b), except that only the most recent closure
plan must be maintained in the facility's operating record irrespective
of the time requirement specified in paragraph (b) of this section.
(5) The written demonstration(s), including the certification
required by Sec. 257.102(e)(2)(iii), for a time extension for
initiating closure as required by Sec. 257.102(e)(2)(ii).
(6) The written demonstration(s), including the certification
required by Sec. 257.102(f)(2)(iii), for a time extension for
completing closure as required by Sec. 257.102(f)(2)(i).
(7) The notification of intent to close a CCR unit as required by
Sec. 257.102(g).
(8) The notification of completion of closure of a CCR unit as
required by Sec. 257.102(h).
(9) The notification recording a notation on the deed as required
by Sec. 257.102(i).
(10) The notification of intent to comply with the alternative
closure requirements as required by Sec. 257.103(c)(1).
(11) The annual progress reports under the alternative closure
requirements as required by Sec. 257.103(c)(2).
[[Page 21498]]
(12) The written post-closure plan, and any amendment of the plan,
as required by Sec. 257.104(d), except that only the most recent
closure plan must be maintained in the facility's operating record
irrespective of the time requirement specified in paragraph (b) of this
section.
(13) The notification of completion of post-closure care period as
required by Sec. 257.104(e).
(j) Retrofit criteria. The owner or operator of a CCR unit subject
to this subpart must place the following information, as it becomes
available, in the facility's operating record:
(1) The written retrofit plan, and any amendment of the plan, as
required by Sec. 257.102(k)(2), except that only the most recent
retrofit plan must be maintained in the facility's operating record
irrespective of the time requirement specified in paragraph (b) of this
section.
(2) The notification of intent that the retrofit activities will
proceed in accordance with the alternative procedures in Sec. 257.103.
(3) The annual progress reports required under the alternative
requirements as required by Sec. 257.103.
(4) The written demonstration(s), including the certification in
Sec. 257.102(f)(2)(iii), for a time extension for completing retrofit
activities as required by Sec. 257.102(k)(3).
(5) The notification of intent to initiate retrofit of a CCR unit
as required by Sec. 257.102(k)(5).
(6) The notification of completion of retrofit activities as
required by Sec. 257.102(k)(6).
Sec. 257.106 Notification requirements.
(a) The notifications required under paragraphs (e) through (i) of
this section must be sent to the relevant State Director and/or
appropriate Tribal authority before the close of business on the day
the notification is required to be completed. For purposes of this
section, before the close of business means the notification must be
postmarked or sent by electronic mail (email). If a notification
deadline falls on a weekend or federal holiday, the notification
deadline is automatically extended to the next business day.
(b) If any CCR unit is located in its entirety within Indian
Country, the notifications of this section must be sent to the
appropriate Tribal authority. If any CCR unit is located in part within
Indian Country, the notifications of this section must be sent both to
the appropriate State Director and Tribal authority.
(c) Notifications may be combined as long as the deadline
requirement for each notification is met.
(d) Unless otherwise required in this section, the notifications
specified in this section must be sent to the State Director and/or
appropriate Tribal authority within 30 days of placing in the operating
record the information required by Sec. 257.105.
(e) Location restrictions. The owner or operator of a CCR unit
subject to the requirements of this subpart must notify the State
Director and/or appropriate Tribal authority that each demonstration
specified under Sec. 257.105(e) has been placed in the operating
record and on the owner or operator's publicly accessible internet
site.
(f) Design criteria. The owner or operator of a CCR unit subject to
this subpart must notify the State Director and/or appropriate Tribal
authority when information has been placed in the operating record and
on the owner or operator's publicly accessible internet site. The owner
or operator must:
(1) Within 60 days of commencing construction of a new CCR unit,
provide notification of the availability of the design certification
specified under Sec. 257.105(f)(1) or (3). If the owner or operator of
the CCR unit elects to install an alternative composite liner, the
owner or operator must also submit to the State Director and/or
appropriate Tribal authority a copy of the alternative composite liner
design.
(2) No later than the date of initial receipt of CCR by a new CCR
unit, provide notification of the availability of the construction
certification specified under Sec. 257.105(f)(1) or (3).
(3) Provide notification of the availability of the documentation
of liner type specified under Sec. 257.105(f)(2).
(4) Provide notification of the availability of the initial and
periodic hazard potential classification assessments specified under
Sec. 257.105(f)(5).
(5) Provide notification of the availability of emergency action
plan (EAP), and any revisions of the EAP, specified under Sec.
257.105(f)(6).
(6) Provide notification of the availability of documentation
prepared by the owner or operator recording the annual face-to-face
meeting or exercise between representatives of the owner or operator of
the CCR unit and the local emergency responders specified under Sec.
257.105(f)(7).
(7) Provide notification of documentation prepared by the owner or
operator recording all activations of the emergency action plan
specified under Sec. 257.105(f)(8).
(8) Provide notification of the availability of the history of
construction, and any revision of it, specified under Sec.
257.105(f)(9).
(9) Provide notification of the availability of the initial and
periodic structural stability assessments specified under Sec.
257.105(f)(10).
(10) Provide notification of the availability of the documentation
detailing the corrective measures taken to remedy the deficiency or
release specified under Sec. 257.105(f)(11).
(11) Provide notification of the availability of the initial and
periodic safety factor assessments specified under Sec.
257.105(f)(12).
(12) Provide notification of the availability of the design and
construction plans, and any revision of them, specified under Sec.
257.105(f)(13).
(g) Operating criteria. The owner or operator of a CCR unit subject
to this subpart must notify the State Director and/or appropriate
Tribal authority when information has been placed in the operating
record and on the owner or operator's publicly accessible internet
site. The owner or operator must:
(1) Provide notification of the availability of the CCR fugitive
dust control plan, or any subsequent amendment of the plan, specified
under Sec. 257.105(g)(1).
(2) Provide notification of the availability of the annual CCR
fugitive dust control report specified under Sec. 257.105(g)(2).
(3) Provide notification of the availability of the initial and
periodic run-on and run-off control system plans specified under Sec.
257.105(g)(3).
(4) Provide notification of the availability of the initial and
periodic inflow design flood control system plans specified under Sec.
257.105(g)(4).
(5) Provide notification of the availability of the periodic
inspection reports specified under Sec. 257.105(g)(6).
(6) Provide notification of the availability of the documentation
detailing the corrective measures taken to remedy the deficiency or
release specified under Sec. 257.105(g)(7).
(7) Provide notification of the availability of the periodic
inspection reports specified under Sec. 257.105(g)(9).
(h) Groundwater monitoring and corrective action. The owner or
operator of a CCR unit subject to this subpart must notify the State
Director and/or appropriate Tribal authority when information has been
placed in the operating record and on the owner or operator's publicly
accessible internet site. The owner or operator must:
(1) Provide notification of the availability of the annual
groundwater
[[Page 21499]]
monitoring and corrective action report specified under Sec.
257.105(h)(1).
(2) Provide notification of the availability of the groundwater
monitoring system certification specified under Sec. 257.105(h)(3).
(3) Provide notification of the availability of the selection of a
statistical method certification specified under Sec. 257.105(h)(4).
(4) Provide notification that an assessment monitoring programs has
been established specified under Sec. 257.105(h)(5).
(5) Provide notification that the CCR unit is returning to a
detection monitoring program specified under Sec. 257.105(h)(7).
(6) Provide notification that one or more constituents in appendix
IV to this part have been detected at statistically significant levels
above the groundwater protection standard and the notifications to land
owners specified under Sec. 257.105(h)(8).
(7) Provide notification that an assessment of corrective measures
has been initiated specified under Sec. 257.105(h)(9).
(8) Provide notification of the availability of assessment of
corrective measures specified under Sec. 257.105(h)(10).
(9) Provide notification of the availability of the semiannual
report describing the progress in selecting and designing the remedy
and the selection of remedy report specified under Sec.
257.105(h)(12).
(10) Provide notification of the completion of the remedy specified
under Sec. 257.105(h)(13).
(i) Closure and post-closure care. The owner or operator of a CCR
unit subject to this subpart must notify the State Director and/or
appropriate Tribal authority when information has been placed in the
operating record and on the owner or operator's publicly accessible
Internet site. The owner or operator must:
(1) Provide notification of the intent to initiate closure of the
CCR unit specified under Sec. 257.105(i)(1).
(2) Provide notification of the availability of the annual progress
reports of closure implementation specified under Sec. 257.105(i)(2).
(3) Provide notification of closure completion specified under
Sec. 257.105(i)(3).
(4) Provide notification of the availability of the written closure
plan, and any amendment of the plan, specified under Sec.
257.105(i)(4).
(5) Provide notification of the availability of the
demonstration(s) for a time extension for initiating closure specified
under Sec. 257.105(i)(5).
(6) Provide notification of the availability of the
demonstration(s) for a time extension for completing closure specified
under Sec. 257.105(i)(6).
(7) Provide notification of intent to close a CCR unit specified
under Sec. 257.105(i)(7).
(8) Provide notification of completion of closure of a CCR unit
specified under Sec. 257.105(i)(8).
(9) Provide notification of the deed notation as required by Sec.
257.105(i)(9).
(10) Provide notification of intent to comply with the alternative
closure requirements specified under Sec. 257.105(i)(10).
(11) The annual progress reports under the alternative closure
requirements as required by Sec. 257.105(i)(11).
(12) Provide notification of the availability of the written post-
closure plan, and any amendment of the plan, specified under Sec.
257.105(i)(12).
(13) Provide notification of completion of post-closure care
specified under Sec. 257.105(i)(13).
(j) Retrofit criteria. The owner or operator of a CCR unit subject
to this subpart must notify the State Director and/or appropriate
Tribal authority when information has been placed in the operating
record and on the owner or operator's publicly accessible Internet
site. The owner or operator must:
(1) Provide notification of the availability of the written
retrofit plan, and any amendment of the plan, specified under Sec.
257.105(j)(1).
(2) Provide notification of intent to comply with the alternative
retrofit requirements specified under Sec. 257.105(j)(2).
(3) The annual progress reports under the alternative retrofit
requirements as required by Sec. 257.105(j)(3).
(4) Provide notification of the availability of the
demonstration(s) for a time extension for completing retrofit
activities specified under Sec. 257.105(j)(4).
(5) Provide notification of intent to initiate retrofit of a CCR
unit specified under Sec. 257.105(j)(5).
(6) Provide notification of completion of retrofit activities
specified under Sec. 257.105(j)(6).
Sec. 257.107 Publicly accessible Internet site requirements.
(a) Each owner or operator of a CCR unit subject to the
requirements of this subpart must maintain a publicly accessible
Internet site (CCR Web site) containing the information specified in
this section. The owner or operator's Web site must be titled ``CCR
Rule Compliance Data and Information.''
(b) An owner or operator of more than one CCR unit subject to the
provisions of this subpart may comply with the requirements of this
section by using the same Internet site for multiple CCR units provided
the CCR Web site clearly delineates information by the name or
identification number of each unit.
(c) Unless otherwise required in this section, the information
required to be posted to the CCR Web site must be made available to the
public for at least five years following the date on which the
information was first posted to the CCR Web site.
(d) Unless otherwise required in this section, the information must
be posted to the CCR Web site within 30 days of placing the pertinent
information required by Sec. 257.105 in the operating record.
(e) Location restrictions. The owner or operator of a CCR unit
subject to this subpart must place each demonstration specified under
Sec. 257.105(e) on the owner or operator's CCR Web site.
(f) Design criteria. The owner or operator of a CCR unit subject to
this subpart must place the following information on the owner or
operator's CCR Web site:
(1) Within 60 days of commencing construction of a new unit, the
design certification specified under Sec. 257.105(f)(1) or (3).
(2) No later than the date of initial receipt of CCR by a new CCR
unit, the construction certification specified under Sec.
257.105(f)(1) or (3).
(3) The documentation of liner type specified under Sec.
257.105(f)(2).
(4) The initial and periodic hazard potential classification
assessments specified under Sec. 257.105(f)(5).
(5) The emergency action plan (EAP) specified under Sec.
257.105(f)(6), except that only the most recent EAP must be maintained
on the CCR Web site irrespective of the time requirement specified in
paragraph (c) of this section.
(6) Documentation prepared by the owner or operator recording the
annual face-to-face meeting or exercise between representatives of the
owner or operator of the CCR unit and the local emergency responders
specified under Sec. 257.105(f)(7).
(7) Documentation prepared by the owner or operator recording any
activation of the emergency action plan specified under Sec.
257.105(f)(8).
(8) The history of construction, and any revisions of it, specified
under Sec. 257.105(f)(9).
(9) The initial and periodic structural stability assessments
specified under Sec. 257.105(f)(10).
(10) The documentation detailing the corrective measures taken to
remedy the
[[Page 21500]]
deficiency or release specified under Sec. 257.105(f)(11).
(11) The initial and periodic safety factor assessments specified
under Sec. 257.105(f)(12).
(12) The design and construction plans, and any revisions of them,
specified under Sec. 257.105(f)(13).
(g) Operating criteria. The owner or operator of a CCR unit subject
to this subpart must place the following information on the owner or
operator's CCR Web site:
(1) The CCR fugitive dust control plan, or any subsequent amendment
of the plan, specified under Sec. 257.105(g)(1) except that only the
most recent plan must be maintained on the CCR Web site irrespective of
the time requirement specified in paragraph (c) of this section.
(2) The annual CCR fugitive dust control report specified under
Sec. 257.105(g)(2).
(3) The initial and periodic run-on and run-off control system
plans specified under Sec. 257.105(g)(3).
(4) The initial and periodic inflow design flood control system
plans specified under Sec. 257.105(g)(4).
(5) The periodic inspection reports specified under Sec.
257.105(g)(6).
(6) The documentation detailing the corrective measures taken to
remedy the deficiency or release specified under Sec. 257.105(g)(7).
(7) The periodic inspection reports specified under Sec.
257.105(g)(9).
(h) Groundwater monitoring and corrective action. The owner or
operator of a CCR unit subject to this subpart must place the following
information on the owner or operator's CCR Web site:
(1) The annual groundwater monitoring and corrective action report
specified under Sec. 257.105(h)(1).
(2) The groundwater monitoring system certification specified under
Sec. 257.105(h)(3).
(3) The selection of a statistical method certification specified
under Sec. 257.105(h)(4).
(4) The notification that an assessment monitoring programs has
been established specified under Sec. 257.105(h)(5).
(5) The notification that the CCR unit is returning to a detection
monitoring program specified under Sec. 257.105(h)(7).
(6) The notification that one or more constituents in appendix IV
to this part have been detected at statistically significant levels
above the groundwater protection standard and the notifications to land
owners specified under Sec. 257.105(h)(8).
(7) The notification that an assessment of corrective measures has
been initiated specified under Sec. 257.105(h)(9).
(8) The assessment of corrective measures specified under Sec.
257.105(h)(10).
(9) The semiannual reports describing the progress in selecting and
designing remedy and the selection of remedy report specified under
Sec. 257.105(h)(12), except that the selection of the remedy report
must be maintained until the remedy has been completed.
(10) The notification that the remedy has been completed specified
under Sec. 257.105(h)(13).
(i) Closure and post-closure care. The owner or operator of a CCR
unit subject to this subpart must place the following information on
the owner or operator's CCR Web site:
(1) The notification of intent to initiate closure of the CCR unit
specified under Sec. 257.105(i)(1).
(2) The annual progress reports of closure implementation specified
under Sec. 257.105(i)(2).
(3) The notification of closure completion specified under Sec.
257.105(i)(3).
(4) The written closure plan, and any amendment of the plan,
specified under Sec. 257.105(i)(4).
(5) The demonstration(s) for a time extension for initiating
closure specified under Sec. 257.105(i)(5).
(6) The demonstration(s) for a time extension for completing
closure specified under Sec. 257.105(i)(6).
(7) The notification of intent to close a CCR unit specified under
Sec. 257.105(i)(7).
(8) The notification of completion of closure of a CCR unit
specified under Sec. 257.105(i)(8).
(9) The notification recording a notation on the deed as required
by Sec. 257.105(i)(9).
(10) The notification of intent to comply with the alternative
closure requirements as required by Sec. 257.105(i)(10).
(11) The annual progress reports under the alternative closure
requirements as required by Sec. 257.105(i)(11).
(12) The written post-closure plan, and any amendment of the plan,
specified under Sec. 257.105(i)(12).
(13) The notification of completion of post-closure care specified
under Sec. 257.105(i)(13).
(j) Retrofit criteria. The owner or operator of a CCR unit subject
to this subpart must place the following information on the owner or
operator's CCR Web site:
(1) The written retrofit plan, and any amendment of the plan,
specified under Sec. 257.105(j)(1).
(2) The notification of intent to comply with the alternative
retrofit requirements as required by Sec. 257.105(j)(2).
(3) The annual progress reports under the alternative retrofit
requirements as required by Sec. 257.105(j)(3).
(4) The demonstration(s) for a time extension for completing
retrofit activities specified under Sec. 257.105(j)(4).
(5) The notification of intent to retrofit a CCR unit specified
under Sec. 257.105(j)(5).
(6) The notification of completion of retrofit activities specified
under Sec. 257.105(j)(6).
0
5. Amend part 257 by adding ``Appendix III to Part 257'' and ``Appendix
IV to Part 257'' to read as follows:
Appendix III to Part 257--Constituents for Detection Monitoring
------------------------------------------------------------------------
Common name \1\
-------------------------------------------------------------------------
Boron
Calcium
Chloride
Fluoride
pH
Sulfate
Total Dissolved Solids (TDS)
------------------------------------------------------------------------
\1\ Common names are those widely used in government regulations,
scientific publications, and commerce; synonyms exist for many
chemicals.
Appendix IV to Part 257--Constituents for Assessment Monitoring
------------------------------------------------------------------------
Common name \1\
-------------------------------------------------------------------------
Antimony
Arsenic
Barium
Beryllium
Cadmium
Chromium
Cobalt
Fluoride
Lead
Lithium
Mercury
Molybdenum
Selenium
Thallium
Radium 226 and 228 combined
------------------------------------------------------------------------
\1\ Common names are those widely used in government regulations,
scientific publications, and commerce; synonyms exist for many
chemicals.
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
6. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
0
7. Section 261.4 is amended by revising paragraph (b)(4) to read as
follows:
[[Page 21501]]
Sec. 261.4 Exclusions.
* * * * *
(b) * * *
(4)(i) Fly ash waste, bottom ash waste, slag waste, and flue gas
emission control waste generated primarily from the combustion of coal
or other fossil fuels, except as provided by Sec. 266.112 of this
chapter for facilities that burn or process hazardous waste.
(ii) The following wastes generated primarily from processes that
support the combustion of coal or other fossil fuels that are co-
disposed with the wastes in paragraph (b)(4)(i) of this section, except
as provided by Sec. 266.112 of this chapter for facilities that burn
or process hazardous waste:
(A) Coal pile run-off. For purposes of paragraph (b)(4) of this
section, coal pile run-off means any precipitation that drains off coal
piles.
(B) Boiler cleaning solutions. For purposes of paragraph (b)(4) of
this section, boiler cleaning solutions means water solutions and
chemical solutions used to clean the fire-side and water-side of the
boiler.
(C) Boiler blowdown. For purposes of paragraph (b)(4) of this
section, boiler blowdown means water purged from boilers used to
generate steam.
(D) Process water treatment and demineralizer regeneration wastes.
For purposes of paragraph (b)(4) of this section, process water
treatment and demineralizer regeneration wastes means sludges, rinses,
and spent resins generated from processes to remove dissolved gases,
suspended solids, and dissolved chemical salts from combustion system
process water.
(E) Cooling tower blowdown. For purposes of paragraph (b)(4) of
this section, cooling tower blowdown means water purged from a closed
cycle cooling system. Closed cycle cooling systems include cooling
towers, cooling ponds, or spray canals.
(F) Air heater and precipitator washes. For purposes of paragraph
(b)(4) of this section, air heater and precipitator washes means wastes
from cleaning air preheaters and electrostatic precipitators.
(G) Effluents from floor and yard drains and sumps. For purposes of
paragraph (b)(4) of this section, effluents from floor and yard drains
and sumps means wastewaters, such as wash water, collected by or from
floor drains, equipment drains, and sumps located inside the power
plant building; and wastewaters, such as rain runoff, collected by yard
drains and sumps located outside the power plant building.
(H) Wastewater treatment sludges. For purposes of paragraph (b)(4)
of this section, wastewater treatment sludges refers to sludges
generated from the treatment of wastewaters specified in paragraphs
(b)(4)(ii)(A) through (F) of this section.
* * * * *
[FR Doc. 2015-00257 Filed 4-16-15; 8:45 am]
BILLING CODE 6560-50-P