[Federal Register Volume 84, Number 157 (Wednesday, August 14, 2019)]
[Proposed Rules]
[Pages 40353-40371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16916]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2018-0524; FRL-9997-74-OLEM]
RIN 2050-AG98
Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Enhancing Public Access
to Information; Reconsideration of Beneficial Use Criteria and Piles
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In this action, EPA is proposing the following targeted
changes to the April 17, 2015 Coal Combustion Residuals Final Rule
based on stakeholder input: Revisions to the annual groundwater
monitoring and corrective action report requirements, establishing an
alternate risk-based groundwater protection standard for boron, and
revisions to the publicly accessible CCR website requirements. The
Agency is also proposing to address two provisions of the final rule
that were remanded back to EPA on August 21, 2018 by the U.S. Court of
Appeals for the D.C. Circuit. First, EPA is proposing to revise the CCR
beneficial use definition by replacing the mass-based numerical
threshold with specific location-based criteria as the trigger for an
environmental demonstration. Second, EPA is proposing to introduce a
single approach to consistently address the potential environmental and
human health issues associated with piles of CCR, regardless of the
location of the pile and whether the CCR is destined for disposal or
beneficial use.
DATES: Comments. Comments must be received on or before October 15,
2019. Public Hearing. The EPA will hold a public hearing on October 2,
2019, in the Washington, DC metropolitan area.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2018-0524, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Land and Emergency Management Docket, Mail Code
28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
Hand Delivery/Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
The hearing will be held in the Washington, DC metropolitan area.
The exact location of the hearing will be posted in the docket for this
proposal and on EPA's CCR website (https://www.epa.gov/coalash) in
advance of the hearing. The hearing will convene at 9:00 a.m. (local
time) and will conclude at 8:00 p.m. (local time).
Please note that if this hearing is held at a U.S. government
facility, individuals planning to attend the hearing should be prepared
to show valid picture identification to the security staff in order to
gain access to the meeting room. Please note that the REAL ID Act,
passed by Congress in 2005, established new requirements for entering
federal facilities. For purposes of the REAL ID Act, EPA will accept
government-issued IDs, including driver's licenses, from the District
of Columbia and all states and territories except from American Samoa.
If your identification is issued by American Samoa, you must present an
additional form of identification to enter the federal building where
the public hearing will be held. Acceptable alternative forms of
identification include: Federal employee badges, passports, enhanced
driver's licenses, and military identification cards. For additional
information for the status of your state regarding REAL ID, go to:
https://www.dhs.gov/real-id-enforcement-brieffrequently-asked-questions. Any objects brought into the building need to fit through
the security screening system, such as a purse, laptop bag, or small
backpack. Demonstrations will not be allowed on federal property for
security reasons.
FOR FURTHER INFORMATION CONTACT: Jesse Miller, Materials Recovery and
Waste Management Division, Office of Resource Conservation and Recovery
(5304-P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW,
Washington, DC 20460; telephone number: (703) 308-1180; email address:
[email protected]. For more information on this rulemaking please
visit https://www.epa.gov/coalash.
SUPPLEMENTARY INFORMATION:
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2018-
0524, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. The EPA may
publish any comment received to its public docket. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to
[[Page 40354]]
make. The EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the web, cloud, or
other file sharing system). For additional submission methods, the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www.epa.gov/dockets/commenting-epa-dockets.
B. Participation in Public Hearing
The EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the hearing, please use the online registration form available
on EPA's CCR website (https://www.epa.gov/coalash) or contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
register to speak at the hearing. The last day to pre-register to speak
at the hearing will be September 26, 2019. On September 30, 2019, the
EPA will post a general agenda for the hearing on EPA's CCR website
(https://www.epa.gov/coalash).
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be taken the day of the hearing at
the hearing registration desk. The EPA will make every effort to
accommodate all speakers who arrive and register, although preferences
on speaking times may not be able to be fulfilled.
Each commenter will have 5 minutes to provide oral testimony. The
EPA encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) or in hard copy form. If EPA is
anticipating a high attendance, the time allotment per testimony may be
shortened to no shorter than 3 minutes to accommodate all those wishing
to provide testimony and have pre-registered. All comments and
materials received at the public hearing will be placed in the docket
for this rule, as well as a transcript from this hearing. While EPA
will make every effort to accommodate all speakers who arrive and
register the day of the hearing, opportunities to speak may be limited
based upon the number of preregistered speakers. Therefore, EPA
strongly encourages anyone wishing to speak to preregister.
The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral comments and
supporting information presented at the public hearing. Commenters
should notify the person listed in the FOR FURTHER INFORMATION CONTACT
section if they will need specific equipment or if there are other
special needs related to providing comments at the hearings. Verbatim
transcripts of the hearings and written statements will be included in
the docket for the rulemaking.
Please note that any updates made to any aspect of the hearing is
posted online at https://www.epa.gov/coalash. While the EPA expects the
hearing to go forward as set forth above, please monitor our website or
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to determine if there are any updates. The EPA does not intend
to publish a document in the Federal Register announcing updates.
The EPA will not provide audiovisual equipment for presentations
unless we receive special requests in advance. Commenters should notify
the person listed in the FOR FURTHER INFORMATION CONTACT section when
they pre-register to speak that they will need specific equipment. If
you require the service of a translator or special accommodations, such
as audio description, please pre-register for the hearing and describe
your needs by September 26, 2019. We may not be able to arrange
accommodations without advanced notice.
C. Submitting CBI
Do not submit information that you consider to be CBI
electronically through https://www.regulations.gov or email. Send or
deliver information identified as CBI to only the following address:
ORCR Document Control Officer, Mail Code 5305-P, Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
Attn: Docket ID No. EPA-HQ-OLEM-2018-0524.
Clearly mark the part or all of the information that you claim to
be CBI. For CBI information in a disk or DC-ROM that you mail to the
EPA, mark the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. If you submit a CD-ROM or disk that
does not contain CBI, mark the outside of the disk or CD-ROM clearly
that it does not contain CBI. Information marked as CBI will not be
disclosed except in accordance with procedures set forth in 40 Code of
Federal Regulations (CFR) part 2.
D. Docket
The EPA has established a docket for this action under Docket ID
No. EPA-HQ-OLEM-2018-0524. The EPA has previously established a docket
for the April 17, 2015, CCR final rule under Docket ID No. EPA-HQ-RCRA-
2009-0640, and the docket number supporting the March 15, 2018 proposed
rule is EPA-HQ-OLEM-2017-0286. All documents in the docket are listed
in the https://www.regulations.gov index. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy form. Publicly available docket materials are available
either electronically at https://www.regulations.gov or in hard copy at
the EPA Docket Center (EPA/DC), EPA WJC West Building, Room 3334, 1301
Constitution Ave. NW, Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.
The telephone number for the Public Reading Room is (202) 566-1744, and
the telephone number for the EPA Docket Center is (202) 566-1742.
II. General Information
A. Does this action apply to me?
This rule applies to the disposal and beneficial use of 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. This discussion is not intended to be exhaustive, but
rather provides a guide for readers regarding entities likely to be
regulated by this action. This discussion lists the types of entities
that EPA is now aware could potentially be regulated by this action.
Other types of entities could also be regulated. To determine whether
your entity is regulated by this action, you should carefully examine
this proposal, as well as the applicability criteria found in Sec.
257.50 of title 40 of the Code of Federal Regulations. If you have
questions regarding the applicability of this action to a particular
entity, consult
[[Page 40355]]
the person listed in the FOR FURTHER INFORMATION CONTACT section.
B. What action is the Agency taking?
The EPA is proposing to amend the regulations governing the
disposal of CCR in landfills and surface impoundments in order to
address certain issues raised by stakeholders that have arisen since
the April 15, 2015 publication of the CCR rule and which were not
addressed in the March 15, 2018 proposal (83 FR 11584) or the July 30,
2018 final rule (83 FR 36435). These issues are presented in Units IV
through VIII of this proposal.
In this proposal, EPA is not reconsidering, proposing to reopen, or
otherwise soliciting comment on any other provisions of the final CCR
rule beyond those specifically identified in this proposal. The EPA
will not respond to comments submitted on any issues other than those
specifically identified in this proposal and they will not be
considered part of the rulemaking record.
C. What is the Agency's authority for taking this action?
These regulations are established under the authority of sections
1008(a), 2002(a), 4004, 4005 and 7004(b) 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) and the Water Infrastructure Improvements for the Nation
(WIIN) Act of 2016, 42 U.S.C. 6907(a), 6912(a), 6944, 6945 and 6974(b).
D. What are the incremental costs and benefits of this action?
This action is expected to result in net costs amounting to between
$0.43 million and $3.8 million per year. Further information on the
economic effects of this action can be found in Unit IX of this
preamble.
III. Background
On April 17, 2015, EPA finalized national regulations to regulate
the disposal of CCR as solid waste under subtitle D of the Resource
Conservation and Recovery Act (RCRA) titled, ``Hazardous and Solid
Waste Management System; Disposal of Coal Combustion Residuals from
Electric Utilities,'' (80 FR 21302) (2015 CCR rule or CCR rule). The
CCR rule established national minimum criteria for existing and new CCR
landfills, existing and new CCR surface impoundments, and all lateral
expansions of these types of CCR units that are codified in Subpart D
of Part 257 of Title 40 of the Code of Federal Regulations (CFR).\1\
The criteria consist 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 also required 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.
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\1\ Unless otherwise noted, all part and section references in
this preamble are to Title 40 of the CFR.
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The 2015 CCR rule was challenged by several different parties,
including a coalition of regulated entities and a coalition of
environmental organizations. See USWAG et al v. EPA, No. 15-1219 (D.C.
Cir.). Four of the claims, a subset of the provisions challenged by the
industry and environmental Petitioners, were settled. As part of that
settlement, on April 18, 2016, EPA requested the Court to remand the
four claims back to the Agency. On June 14, 2016, the United States
Court of Appeals for the District of Columbia Circuit (D.C. Circuit
Court of Appeals) granted EPA's motion.
On September 13, 2017, EPA granted petitions from the Utility Solid
Waste Activities Group (USWAG) and AES Puerto Rico LLP, requesting the
Agency initiate rulemaking to reconsider certain provisions of the 2015
final rule.\2\ The EPA determined that it was appropriate and in the
public interest to reconsider certain provisions of the 2015 CCR rule,
in light of the issues raised in the petitions and the new authorities
in the WIIN Act. In light of that decision, EPA requested that the D.C.
Circuit Court of Appeals hold the case in abeyance until the Agency had
completed its reconsideration. The EPA subsequently requested that the
Court remand certain provisions of the 2015 CCR rule on the ground that
the Agency is reconsidering the provisions. Included in that request
were two sets of provisions related to the beneficial use of CCR: (1)
The 12,400-ton threshold in the beneficial use definition, and (2) the
requirements for ``piles'' of CCR located on-site of a utility and
those that are located off-site but destined for beneficial use. In
October 2017, the D.C. Circuit Court of Appeals directed EPA to file a
status report with the Court indicating its schedule for addressing
issues contained in the petitions for reconsideration. In the status
report filed in November 2017, EPA stated that it anticipated it would
complete its reconsideration of all provisions in two phases. The first
phase would be proposed in March 2018 and finalized no later than June
2019 and the second phase would be proposed no later than September 30,
2018 and finalized no later than December 2019. The EPA proposed the
Phase One rule on March 15, 2018 (83 FR 11584) and on July 30, 2018,
finalized several revisions included in the Phase One proposal (83 FR
36435). In the July 30, 2018, final rule, EPA adopted two alternative
performance standards that either Participating State Directors in
states with approved CCR permit programs (participating states) or EPA
where EPA is the permitting authority to (1) suspend groundwater
monitoring requirements if there is evidence that there is no potential
for migration of hazardous constituents to the uppermost aquifer during
the active life and post-closure care of the CCR unit; and (2) issue
technical certifications in lieu of the current requirements to have
professional engineers issue certifications. The Agency also
established health-based groundwater protection standards (GWPS) for
four constituents (cobalt, lead, lithium and molybdenum) that do not
have established Maximum Contaminant Levels. Finally, the Agency
extended the deadline by which facilities must cease the placement of
waste in CCR units closing for cause in two situations: Where the
facility has detected a statistically significant increase above a GWPS
from an unlined surface impoundment; and where the unit is unable to
comply with the aquifer location restriction. In both of these
situations, the deadline for waste placement was revised to October 31,
2020. Provisions included in the March 15, 2018 proposal that were not
included in July 30, 2018 final rule will be addressed in a subsequent
action.
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\2\ The USWAG and AES Puerto Rico rulemaking petitions are
available in the docket to this rulemaking.
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On August 21, 2018, the D.C. Circuit Court of Appeals issued its
decision. Of greatest relevance to this proposed rule, the Court
granted EPA's request to remand the challenged beneficial use
provisions back to EPA in order to allow the Agency to complete its
administrative reconsideration.
IV. Proposal To Revise the Beneficial Use Criteria
In the 2015 CCR rule, EPA established a Beneficial Use definition
to distinguish between legitimate beneficial uses of CCR and the
disposal of CCR. The Beneficial Use definition is comprised of four
criteria: (1) The CCR must provide a functional benefit; (2)
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the CCR must substitute for the use of a virgin materials, 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 where such specifications or standards have not been
established, CCR may not be 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. See, Sec.
257.53 and 80 FR 21349-54 (April 15, 2015). Criteria one through three
of the Beneficial Use definition still remain as finalized in the 2015
CCR rule. In this action, EPA is proposing to eliminate the mass-based
numerical threshold used to trigger an environmental demonstration, and
replace it with specific location-based criteria derived from the
existing location criteria for CCR disposal units. The EPA is also
soliciting comments and information that could be used to select a new
mass-based numerical threshold.
The EPA's current regulations at Sec. 257.53 require that to be
considered a ``beneficial use,'' when unencapsulated CCR is placed on
the land in amounts greater than 12,400 tons, in non-roadway
applications, the user must demonstrate that releases to environmental
media (i.e., groundwater, surface water, soil, air) are comparable to
or lower than those from analogous products made without CCR or that
releases to environmental media will be at or below relevant regulatory
and health-based benchmarks for human and ecological receptors during
use. The Agency established this environmental criterion to ensure that
unencapsulated uses of CCR would be conducted in an environmentally
protective manner. This fourth criterion was designed to address both
the concern that large-scale fills were effectively operating as
landfills and the documented risks associated with the placement of
unencapsulated CCR in or near water sources. See 80 FR 21351-52 (April
15, 2015). A numerical threshold was established to determine when
further analysis was warranted. The 12,400-ton threshold criterion was
based on data collected in response to the 2010 Steam Electric Power
Generating Effluent Guidelines Questionnaire (``the Effluent Guidelines
Questionnaire''),\3\ representing the smallest size CCR landfill. The
EPA selected this threshold largely because the 2014 risk assessment
demonstrated that at these volumes the potential risks warrant
regulation. See 80 FR 21352 (April 15, 2015). In addition, EPA noted
that the threshold of 12,400 tons was generally consistent with three
state regulations identified in a 2013 Notice of Data Availability: \4\
North Carolina and Wisconsin, which had established 5,000 cubic yards
of CCR as a threshold, and West Virginia which had a threshold of
10,000 cubic yards (which equates to about 6,000-12,000 tons). See 80
FR 21351 (April 15, 2015).
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\3\ Additional information on this questionnaire can be found on
EPA's website: https://www.epa.gov/eg/steam-electric-power-generating-effluent-guidelines-questionnaire.
\4\ 78 FR 46943-44 (August 2, 2013).
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After the final rule was issued, EPA received a letter \5\ alleging
that the 12,400-ton criterion was based on erroneous data that had been
submitted to the Agency (available in the docket for the 2015 CCR
rule). The letter concluded that the facility had incorrectly reported
data in cubic yards rather than in cubic feet as requested in the
survey questionnaire form. Based on their calculations, the letter
claimed that the smallest landfill in the survey questionnaire data is
approximately 74,800 tons and requested that EPA update the fourth
beneficial use criterion to reflect this higher value.
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\5\ See letter from Kenneth Kastner, Hogan Lovells US LLP, on
behalf of Headwaters Resources, Inc., to U.S. Environmental
Protection Agency, dated April 1, 2015; available in the docket to
this rulemaking.
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The petition for rulemaking \6\ submitted by USWAG included a
request to correct the numerical threshold for the beneficial use
definition (based on the letter previously discussed). Considering the
numerical threshold issue raised by the petitioner, EPA has
preliminarily determined that it is appropriate and in the public
interest to reconsider the numerical threshold criterion in the final
rule.
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\6\ USWAG's petition for rulemaking is available in the docket
to this rulemaking.
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As part of this reconsideration, EPA conducted a focused review of
currently available data from three sources: (1) Data collected in
response to the Effluent Guidelines Questionnaire; (2) available risk
information from the risk assessment for the 2015 rule; and (3)
information from state beneficial use programs.\7\
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\7\ Many state environmental agencies have requirements and
programs to manage the beneficial use of non-hazardous solid waste
including coal combustion residuals.
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Effluent Guidelines Questionnaire Data. The Agency first reviewed
the reported landfill data received in response to the Effluent
Guidelines Questionnaire. After reviewing this data, EPA identified
several additional data points in which some facilities mistakenly
reported data in cubic yards rather than cubic feet. While this dataset
can still provide useful information on typical landfill sizes, EPA was
not able to independently confirm the accuracy of every individual
value. A review of the full database would not be practicable; at a
minimum it would require EPA to contact each facility that provided
information to confirm whether the facility had made any errors in
reporting its data. No member of the public or stakeholders provided
additional data to support the contention that the smallest CCR
landfill is approximately 74,800 tons, or information that would allow
EPA to independently confirm that value.
Available Risk Information. The Agency next reviewed the results of
the 2014 Human and Ecological Risk Assessment of Coal Combustion
Residuals (``the 2014 Risk Assessment'') to determine whether the model
results for landfills could be used to draw conclusions about
structural fill and other unencapsulated uses of CCR.\8\ The EPA
focused on the model runs for arsenic (III), which was found to be the
primary risk driver associated with unlined landfills in the 2014 Risk
Assessment. To identify the relevant subset of model runs, EPA queried
the risk assessment results for unlined landfills with no surface water
interception and plumes that reached the receptor within the 10,000-
year evaluation window (i.e., non-zero risk). These limits were placed
to eliminate confounding factors that could obscure trends.
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\8\ The Agency's review is documented in the Analysis of Model
Results from 2014 Risk Assessment of Coal Combustion Residuals:
Impacts of Total Mass Disposed and Distance to Receptor on Risk,
which is available in the docket for this rulemaking.
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The EPA plotted the queried data to visualize any relationships
that exist between risk and distance to receptor (meters), total mass
disposed (tons), or mass disposed per area (tons/acre). Significant
relationships were identified for distance to receptor and total mass
disposed, but not for mass disposed per
[[Page 40357]]
area. Although the identified relationships are relevant to
unencapsulated beneficial uses, the data used to identify these
relationships are based on the characteristics of existing landfills.
However, unencapsulated beneficial uses are not subject to the same
siting and construction requirements as the landfills modeled in the
2014 Risk Assessment. As a result, unencapsulated beneficial uses of an
equivalent size have the potential to be placed closer to receptors, in
more permeable soils or in other areas that will tend to increase risk.
Therefore, the potential high-end risks associated with unencapsulated
uses will tend to be higher than those modeled for landfills. This
makes it difficult to extrapolate the landfill data to unencapsulated
uses and to identify a numerical cutoff for proximity or size at which
these uses will start to pose concern. Therefore, EPA concluded these
data cannot be used directly to select national beneficial use
criteria.
State Beneficial Use Programs. From the sources discussed above,
EPA identified relationships between risk and both the tonnage of CCR
placed in the environment and the distance from the CCR to receptors,
but the Agency was unable to use these data as the basis for national-
scale beneficial use criteria. Therefore, the Agency reviewed existing
state beneficial use programs to understand the basis for similar state
criteria. The Agency reviewed the 2012 ASTSWMO Beneficial Use Coal
Combustion Residuals Survey Report (``the 2012 ASTSWMO Report'').\9\
The 2012 ASTSWMO Report summarizes the results from a survey conducted
in October 2011 through March 2012 to which 46 states responded and
includes information from their 2006 Beneficial Use Survey Report. The
2012 ASTSWMO Report states that 35 out of 46 States restrict the
beneficial use of CCR by statute, regulation, policy, or local
ordinance. The Agency initially focused on six states (i.e., Alaska,
Illinois, North Carolina, South Carolina, Wisconsin, and West Virginia)
that reported the use of numerical criteria to distinguish between
small- and large-scale fills in the 2012 ASTSWMO Report. The EPA also
gathered additional information on state beneficial use regulations
through state websites and follow-up telephone calls with some states.
Specifically, the Agency reviewed six additional state beneficial use
programs that either were mentioned in submitted comments on the June
2010 proposed rule or were recommended for consideration by one of the
other states reviewed (i.e., Kentucky, Maryland, New York,
Pennsylvania, Virginia, and Wyoming).
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\9\ ASTSWMO, ``Beneficial Use of Coal Combustion Residuals
Survey Report'', September 2012, which is available in the docket to
this rulemaking.
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Of the six states (Alaska, North Carolina, South Carolina,
Illinois, Wisconsin, and West Virginia) identified in the 2012 ASTSWMO
Report, four have requirements based on the amount of CCR applied in a
fill project by total mass (Illinois--10,000; and North Carolina--
80,000 tons), mass per area (North Carolina--8,000 tons/acre) or volume
(Wisconsin--5,000 and West Virginia--10,000 cubic yards).\10\ Of the
other six states (Kentucky, Maryland, New York, Pennsylvania, Virginia,
and Wyoming) reviewed that were not from the 2012 ASTSWMO Report, only
one additional state (Pennsylvania) has requirements based by total
mass (100,000 tons) and mass per area (10,000 tons/acre). Uses at or
greater than these amounts trigger some form of design, operation,
construction and/or maintenance requirements or some form of
notification to the state, landowner, deed record office and/or the
public. Only one state (West Virginia) prohibited all fill uses above
the established criteria (10,000 cubic yards). Based on EPA's review of
these specific state beneficial use programs, none of the identified
size criteria are based on an analysis of the potential risks
associated with the specified mass or volume. Instead, these values are
based on considerations such as the size of previously completed fill
projects or consensus values agreed upon by state, industry and citizen
groups. However, many of these states have additional criteria in place
for fill applications that either directly or indirectly address
potential risks. Under these state programs, the proposed use of CCR is
prohibited if the placement of CCR does not meet these additional
criteria, regardless of the amount of CCR used. In describing state
programs in this section, the Agency uses the state terminology for
clarity. These additional criteria include:
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\10\ With a typical compacted density for fly ash between 1,120
to 1,500 kg/m\3\, the reported volumetric limits correspond to an
upper bound somewhere between 4,700 and 12,600 tons. This range is
similar to the lower end of mass limits reported by other states.
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Three states (Wisconsin, North Carolina, and Pennsylvania)
require placement of the CCR to be a minimum distance above the
groundwater table. One state (Wisconsin) requires placement to be 5
feet above the groundwater table and another (Pennsylvania) requires it
to be 8 feet above the groundwater table. The third state (North
Carolina) prohibits placement within 4 feet of the seasonal high
groundwater table.
Three states (Wisconsin, Illinois, and Pennsylvania)
require chemical analysis of either the CCR bulk content or leachate to
demonstrate that concentrations either present in or released from the
ash are below specified levels.
Two states (North Carolina and Pennsylvania) require a
minimum setback distance from wetlands--one of 50 feet and another of
100 feet. One of the states (Pennsylvania) also has a limit of 300 feet
from an ``exceptional value wetland.''
Two states (North Carolina and Pennsylvania) prohibit
placement within the 100-year flood plain.
Two states (North Carolina and Pennsylvania) limit
placement near water bodies, requiring a setback distance of 50 and 100
feet (respectively) from any surface water body. One of the states
(Pennsylvania) also has a limit of 300 feet from any exceptional
quality water body.
Two states (North Carolina and Wisconsin) impose
restrictions on proximity to residences. One state (North Carolina)
required a minimum setback distance of 300 feet from any private
dwelling or 50 feet from any property boundary. The other (Wisconsin)
prohibited placement of CCR in any area zoned for residential use.
Two states (Wisconsin and Pennsylvania) require a minimum
setback distance, one of 200 feet and another of 300 feet from water
supply wells.
One state (Pennsylvania) requires a setback of 100 feet
from sinkholes or any area draining to a sinkhole.
One state (Pennsylvania) requires a setback of 25 feet
from bedrock outcrops.
Several of the remaining states evaluate all uses including fill
uses on a case-by-case basis, regardless of size, typically requiring a
site-specific assessment that considers potential risks before
approving the placement of unencapsulated CCR in fill applications.
Based on the 2012 and 2006 ASTSWMO reports, and additional state
beneficial use programs looked at by EPA, factors that these states
consider in their review include: Test data on the chemical and
physical characteristics of the wastes; benefit assessment based on
suitable physical, chemical, or agronomic properties of the wastes;
special conditions that limit use; and evaluations of potential risks
to human health.
[[Page 40358]]
The EPA solicits comments and information on specific state
criteria that would represent an appropriate trigger for an
environmental demonstration such as, numerical limits, setbacks (to
wetlands, private residences), proximity to water (water body, water
supply well), specific criteria for CCR use, and any other requirements
that state beneficial use programs have in place (e.g., specific areas
prohibited from CCR use) to supplement the information on the group of
12 states reviewed by the Agency.
Based on the Agency's review of these sources of information, EPA
is proposing to eliminate the mass-based numerical threshold and
replace it with specific location-based criteria, derived from the
existing location criteria for CCR disposal units, to trigger an
environmental demonstration. As discussed further below, the available
information does not appear to provide strong support for a single
numerical mass-based threshold as a general matter; however, EPA
solicits comments on whether to retain a mass-based threshold. Assuming
EPA determines a threshold to be appropriate, EPA also solicits
comments on whether an appropriate value for a mass threshold to
trigger an environmental demonstration should be based on the state
beneficial use programs' lower tonnage thresholds, discussed above, or
to retain the current 12,400-ton numerical criterion. The EPA also
requests comment on whether a combination of the mass-based threshold
and location-based criteria would be an appropriate trigger to require
an environmental demonstration for unencapsulated uses. Generally,
having some type of threshold is a reasonable approach since there may
potentially be some relatively small volume uses or dry locations where
an environmental demonstration is not necessary. The Agency notes that
two of the four proposed approaches discussed in this preamble would be
of particular interest to those entities that use small volumes of CCR.
Both of these approaches include a numerical threshold where
unencapsulated uses involving an amount of CCR less than the threshold
would not trigger the need for an environmental demonstration.
Nevertheless, EPA also solicits comment on whether the environmental
demonstration required under the beneficial use definition's fourth
criterion should be conducted for all unencapsulated CCR uses. All four
of these approaches are discussed below.
A. Location-Based Criteria Instead of a Mass-Based Numerical Value
Based on the above considerations, EPA is proposing to eliminate
the mass-based numerical threshold and instead replacing it with
specific location-based criteria, which are largely derived from the
current location criteria for CCR disposal units, to trigger an
environmental demonstration. The specific location-based criteria EPA
is proposing in this action are: Distance from the uppermost aquifer;
placement in a wetland; placement in an unstable area; placement in a
flood plain; distance from a fault area; and placement in a seismic
zone. The EPA considered information developed for the 2015 CCR rule
and the state beneficial use programs discussed above. As mentioned
previously, modeled risks in the 2014 Risk Assessment show that where
the CCR is placed in the environment can be a sensitive variable. In
addition, the conditions in certain areas, such as wetlands or other
areas addressed by the current CCR location criteria for disposal
units, are generally recognized as having the potential to impact the
structural integrity of a disposal unit negatively and as such,
increase the risks to human health or the environment, e.g., through
leaching of contaminants into groundwater. Several states have
established requirements to protect specific sensitive areas found in
each state, by prohibiting CCR from being placed for fill uses. Some of
these requirements are also similar to the existing location
restrictions for CCR units, e.g., address the same site conditions.
Based on these considerations, EPA is proposing to revise the fourth
criterion of the Beneficial Use definition by adopting certain location
criteria (based on the location criteria for CCR disposal units) as
triggers for the environmental demonstration. Before the placement of
any amount of unencapsulated CCR in areas meeting the location-based
criteria can occur for a proposed use, an affirmative demonstration
that releases to environmental media (i.e., groundwater, surface water,
soil and air) are comparable to or lower than those from analogous
products made without CCR, or will be at or below relevant regulatory
and health-based benchmarks for human and ecological receptors during
use, is necessary in order to be considered a ``beneficial use.'' The
EPA is proposing the following location-based criteria: Distance from
the uppermost aquifer; placement in a wetland; placement in an unstable
area; placement in a flood plain; distance from a fault area; and
placement in a seismic zone. The EPA solicits comment on additional
location criteria based on state beneficial use programs for distance
from a water body and distance from a water supply well.
1. Distance From the Uppermost Aquifer
The current CCR regulations restrict placement of CCR units within
1.52 meters (five feet) of the upper limit of the uppermost aquifer or
to demonstrate that there will not be an intermittent, recurring, or
sustained direct 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). See Sec. 257.60(a). For placement of CCR in fill
applications, state programs have similar requirements, but they are
specific to groundwater. Two states (Wisconsin and Pennsylvania)
prohibit placement of CCR within 5 and 8 feet (respectively) of the
groundwater table, while a third state (North Carolina) prohibits
placement within 4 feet of the seasonal high groundwater table. The EPA
is proposing a location-based criterion that when unencapsulated CCR is
placed at a site for beneficial use within 5 feet of the upper limit of
the uppermost aquifer that the environmental demonstration under the
existing regulation would be triggered to assess the potential
environmental releases from the CCR use under consideration. The EPA
chose this value to be consistent with the current federal location
criteria for CCR disposal units. The EPA solicits comments on (i)
adopting a location criterion based on the distance to the uppermost
aquifer and whether North Carolina's 4 feet of the seasonal groundwater
table, the 8-foot value in Pennsylvania's requirements or Wisconsin's
criterion of 5-feet from the groundwater table is more appropriate; and
(ii) whether there are other existing state restrictions that are
appropriate for EPA to consider in establishing a criterion for
distance to the groundwater table to trigger an environmental
demonstration.
2. Placement in a Wetland
The current regulations restrict placement of CCR units in wetlands
except if the owner or operator makes specific demonstrations that the
CCR unit will not degrade sensitive wetland ecosystems. See in Sec.
257.61. The current regulations define a wetland by reference to the
definition in Sec. 232.2. For placement of CCR in fill applications,
two states (North Carolina and Pennsylvania) require a minimum
[[Page 40359]]
setback distance from wetlands of 50 and 100 feet (respectively), and
300 feet from an exceptional value wetland. The EPA is proposing to
adopt a provision that when unencapsulated CCR is placed at a site for
beneficial use in a wetland that the environmental demonstration would
be triggered to assess potential environmental releases from the
proposed CCR use. This means that an environmental demonstration is
required before the placement of any amount of unencapsulated CCR can
occur for a proposed use in a wetland. The EPA considered this
criterion to ensure consistency with the location criteria for CCR
disposal units. However, EPA requests comment on whether a different
definition of a wetland is more appropriate in this context. The EPA
also solicits comments on (i) adopting a location criterion based on a
distance to wetlands; (ii) whether the 50-foot value in North Carolina,
the 100-foot value in Pennsylvania's requirements or the criterion of
300 feet from an exceptional value wetland is a more appropriate
distance; (iii) whether prohibiting the placement of CCR for beneficial
use in wetlands is more consistent with the CCR disposal regulations;
and (iv) whether other state restrictions exist that are appropriate
for EPA to consider in establishing a criterion for distance to wetland
in triggering an environmental demonstration.
3. Placement in an Unstable Area
The current CCR disposal regulations restrict the placement of CCR
in sites classified as unstable areas unless the owner or operator
demonstrates that engineering measures have been incorporated into the
unit's design to ensure the structural components will not be
disrupted. See Sec. 257.64. In the current rule, unstable areas are
locations that are susceptible to natural or human-induced events or
forces capable of impairing the integrity of some or all of the
structural component responsible for preventing releases from a CCR
unit. See Sec. 257.53. For CCR fill applications, one state
(Pennsylvania) prohibits placement within 100 feet of a sinkhole or any
area draining to a sinkhole. Sinkholes are commonly found in unstable
areas, such as karst terrains, where the types of rock below the land
surface can naturally be dissolved by groundwater circulating through
the rock \11\ that can result in a collapse of the land surface. The
EPA is proposing to adopt a provision that when unencapsulated CCR is
placed for beneficial use in an unstable area, the environmental
demonstration would be triggered. This means that an environmental
demonstration is required before the placement of any amount of
unencapsulated CCR can occur for a proposed use in an unstable area.
The environmental demonstration is reasonable in order to assess any
environmental releases that may result from the shifting of the placed
CCR and potential structural failure of any engineering controls (e.g.,
tears in liners), if employed, that could cause contaminants to leach
into groundwater from the movement of the unstable area. The EPA
solicits comments on (i) adopting a location criterion based on
placement in an unstable area; (ii) whether prohibiting the placement
of CCR for beneficial use in unstable areas is more consistent with the
CCR disposal regulations and the Pennsylvania requirement; and (iii)
whether other state provisions are appropriate for EPA to consider in
establishing a criterion for placement of unencapsulated CCR for
beneficial use in sites classified as unstable areas.
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\11\ U.S. Geological Survey. ``What is a sinkhole?'' A copy of
the USGS web page is available in the docket to this rulemaking.
---------------------------------------------------------------------------
4. Placement in a Flood Plain
In the current CCR rule (as well as part 258 requirements for
municipal solid waste landfills), EPA restricts siting of disposal
units in the 100-year flood plain. See Sec. Sec. 257.3-1 and 258.11.
For CCR fill applications, two states (North Carolina and Pennsylvania)
prohibit the placement of CCR within a 100-year flood plain. The EPA is
proposing to incorporate a similar provision when unencapsulated CCR is
placed at a site for beneficial use in the 100-year flood plain that
the environmental demonstration would be triggered due to the potential
environmental releases posed by flooding in these areas. The EPA
solicits comments on (i) adopting a location criterion based on
placement of CCR in a flood plain; and (ii) whether prohibiting the
placement of unencapsulated CCR for beneficial use within a 100-year
flood plain is more consistent the current CCR rule (as well as part
258 requirements for municipal solid waste landfills) and with some
state restrictions.
5. Distance From a Fault Area
In addition to these location criteria, the current regulations
prohibit the location of CCR units within 60 meters (200 feet) of a
fault that has had displacement in Holocene time, unless the owner or
operator demonstrates that an alternate setback distance of less than
200 feet will prevent damage to the structural integrity of the unit.
See Sec. 257.62. None of the reviewed states included a similar
location restriction. However, a few of the reviewed states are located
in areas with significant seismic activity. The EPA is proposing to
adopt a provision that when unencapsulated CCR is placed for beneficial
use within 200 feet of a fault and within a seismic impact zone that
the environmental demonstration would be triggered. The environmental
demonstration is reasonable in order to assess any environmental
releases resulting from the shifting of the placed CCR and potential
failure of any engineering controls (e.g., tears in the liners), if
employed, that could cause contaminants to leach into the groundwater
from the seismic activity. Therefore, while this consideration may not
be of significance for the other individual states that EPA reviewed,
the Agency considers this to be relevant and appropriate on a national
scale because many states across the nation have these types of areas.
The EPA solicits comments on (i) adopting a location criterion based on
a distance of within 200 feet from a fault area to trigger an
environmental demonstration; and (ii) whether prohibiting the placement
of CCR for beneficial use within fault areas is more consistent with
the CCR disposal regulations.
6. Placement in a Seismic Zone
The current CCR disposal rule also prohibits the location of CCR
units within seismic impact zones unless the owner or operator makes a
demonstration that all containment structures are designed to resist
the maximum horizontal acceleration in lithified earth materials from a
probable earthquake. See Sec. 257.63. None of the reviewed states
included a similar location restriction. However, a few of the reviewed
states are located in areas with significant seismic activity. The EPA
is proposing to adopt a provision that when unencapsulated CCR is
placed for beneficial use within a seismic impact zone that the
environmental demonstration would be triggered. Fill applications
typically involve the placement of large amounts of CCR and in some
situations may require the use of engineering controls, such as liners.
As with landfills, large-scale fill applications located in seismic
areas can encounter structural stability issues (i.e., the placed CCR
shifts and engineering controls fail), (e.g., tears in the liner). The
environmental demonstration is reasonable in order to assess any
environmental releases resulting from a probable earthquake that may
cause the placed CCR to shift
[[Page 40360]]
and potential failure of any engineering controls (e.g., tears in the
liners), if employed, that could cause contaminants to leach into the
groundwater from the seismic activity. Therefore, while this
consideration may not be of significance for the other individual
states that EPA reviewed, the Agency considers this to be relevant and
appropriate on a national scale because many states across the nation
have these types of areas. The EPA solicits comments on (i) adopting a
location criterion based on placement of CCR in a seismic zone to
trigger an environmental demonstration; and (ii) whether prohibiting
the placement of CCR for beneficial use within seismic impacts zones is
more consistent with the CCR disposal regulations.
The EPA also considered adopting the following additional location
criteria, largely-based on state beneficial use program provisions:
Distance from a water body and distance from a water supply well.
7. Distance From a Water Body
For placement of CCR in fill applications, two states (North
Carolina and Pennsylvania) require a minimum setback distance within 50
and 100 feet from a water body; and within 300 feet of an exceptional
value or high-quality water body. The modeled risks in the 2014 Risk
Assessment show that distance to receptor is a sensitive variable.
Therefore, EPA solicits comment on adopting a provision that when
unencapsulated CCR is placed at a site for beneficial use within 50
feet from a water body the environmental demonstration under the
existing regulation would be triggered to assess environmental
releases. The EPA intends the term ``water body'' to mean perennial and
intermittent streams and rivers. This criterion generally would be
consistent with the approach taken by North Carolina and Pennsylvania.
This value, which represents the least restrictive state requirement,
will ensure that the federal provision is not inconsistent with
existing state programs, as a regulated entity could always comply with
both the EPA and the state provision, including any more stringent
state requirement. The EPA solicits comments on (i) adopting a location
criterion based on a distance from a water body; (ii) whether the 50-
foot criterion in North Carolina, the 100-foot criterion in
Pennsylvania's requirements or the criterion prohibiting placement
within 300 feet of an exceptional value or high-quality water body
(also in Pennsylvania's requirements) is more appropriate; and (iii)
whether other state restrictions exist that are appropriate for EPA to
consider in establishing a criterion for distance to water bodies to
trigger an environmental demonstration. The EPA is considering such a
provision and could finalize it without a subsequent proposal.
8. Distance From a Water Supply Well
For placement of CCR in fill applications, three states (Wisconsin,
North Carolina and Pennsylvania) require a minimum setback of 200 and
300 feet from water supply wells. Modeled risks in the 2014 Risk
Assessment show that distance to receptor is a sensitive variable.
Therefore, EPA solicits comments on adopting a provision that when
unencapsulated CCR is placed at a site for beneficial use within 200
feet from a water supply well the environmental demonstration would be
triggered to assess the risks to potential receptors. The EPA
considered this criterion to ensure consistency with existing state
programs. This value, which represents the least restrictive state
requirement, will ensure that the federal provision is not inconsistent
with existing State programs, as a regulated entity could always comply
with both the EPA and the State provision, including any more stringent
state requirement. The EPA solicits comments on (i) adopting a location
standard based on a distance from a water supply well; (ii) whether
either the 200-foot distance in North Carolina or 300-foot distance in
both North Carolina's and Pennsylvania's requirements is more
appropriate; and (iii) whether other state restrictions exist that are
appropriate for EPA to consider in establishing a criterion for
distance to water supply well to trigger an environmental
demonstration. The EPA is considering such a provision and could
finalize it without a subsequent proposal.
The EPA solicits comments on (i) revising the fourth criterion's
trigger for an environmental demonstration from a mass-based threshold
amount to any or all of the above location criteria; (ii) information
on other state beneficial use programs with location-based provisions;
(iii) the potential impacts to state beneficial use programs in setting
location criteria based on the location criteria for CCR disposal units
in the 2015 CCR Rule; and (iv) whether prohibiting the placement of CCR
for beneficial use within wetlands, seismic impacts zones, unstable
areas, and flood plains is more consistent with the CCR disposal
regulations. In response to concerns from commenters that there may be
some situations where the location-based criteria prevent placement of
CCR in appropriate uses, the Agency also solicits comment and
information on these specific situations where EPA should consider
exemptions for any of the proposed location-based criteria.
B. Mass-Based Numerical Value
As discussed previously, EPA also considered selecting a new value
to replace the existing 12,400-ton numerical threshold based on the
numerical values that state beneficial use programs have in place and
the available risk information. Of the state programs EPA looked at,
several state programs have values lower than the existing 12,400-ton
threshold based on mass (Illinois 10,000 tons); or by volume (Wisconsin
5,000 cubic yards; West Virginia 10,000 cubic yards). North Carolina
and Pennsylvania have both lower and upper values based on mass per
unit area (8,000 tons per acre; 10,000 tons per acre); and mass of
total CCR used in a fill project (80,000 tons; 100,000 tons). As
discussed earlier, none of the numerical criteria in the identified
State programs were based on an analysis of the potential risks
associated with the specified mass or volume. Instead, the States based
the values on considerations such as the size of previously completed
fill projects or consensus values agreed upon by state, industry and
citizen groups.
The current mass-based criteria of 12,400 tons is similar to the
lower end of identified state limits. Although the analysis of model
runs from the 2014 Risk Assessment demonstrates that potential risks
will tend to decrease as the mass of CCR decreases, the Agency cannot
define an exact relationship between risk and small changes in mass for
prospective uses. The EPA identified individual model runs with risks
above 1 x 10-5 for the smallest modeled landfill of 8,023
tons; however, it is not possible to estimate the likelihood that such
risks will occur at these lower tonnages based on the limited number of
model runs for small landfills. As EPA acknowledged in the 2015 CCR
rule, the following factors are more critical than the volumes of CCR
in whether the use may present a risk of concern: ``the characteristics
of the CCR, the amount of material and the manner in which it is
placed, and (perhaps most important) the site conditions.'' See 80 FR
21348 (April 15, 2015). Thus, for these smaller uses, EPA explained
that 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
[[Page 40361]]
address risks'' See 80 FR 21352 (April 15, 2015).
The EPA also is aware that Alaska and Virginia have already taken
steps to adopt the 12,400-ton threshold into their state regulations.
Because EPA anticipates that there will likely be little practical
difference between the current threshold of 12,400 tons and the lower
end of the state limits in terms of the number of fill applications
that would be affected, EPA considered retaining the existing value in
the interest of minimizing disruption to the states and industry.
However, EPA solicits comment on whether that preliminary conclusion is
accurate, as well as the potential impact of this consideration on
state programs (e.g., whether other states have not incorporated the
current requirement).
The available information does not appear to provide strong support
for a new numerical value to replace the existing 12,400-ton mass-based
threshold. Nevertheless, EPA is still considering whether to adopt a
new numerical value for the existing mass-based threshold. The EPA,
therefore, solicits comments on whether (i) the state beneficial use
programs' tonnage thresholds discussed above are appropriate for
revising the numerical criterion to trigger an environmental
demonstration; (ii) the existing 12,400 ton-numerical threshold is
appropriate and reasonable; (iii) the Agency's preliminary conclusion
that retaining the existing numerical value minimizes disruption; and
(iv) whether there are potential impacts to state beneficial use
programs. The EPA is also requesting (i) information on other numerical
criterion that states use to trigger other requirements, either those
listed in this proposal or other state beneficial use programs that EPA
did not review, that would also represent an appropriate trigger for
further analysis of unencapsulated uses; and (ii) other state criteria,
either those listed in this proposal or incorporated in other state
beneficial use programs, that would also form an appropriate basis for
national criteria to trigger an environmental demonstration.
C. Use Both Mass- and Location-Based Criteria
The EPA also requests comment on whether to adopt a combination of
the mass-based threshold and location-based criteria to trigger an
environmental demonstration for unencapsulated uses. Under such an
approach, the environmental demonstration for unencapsulated uses would
be triggered by either a mass-based threshold or any of the location-
based criteria. Under such an approach, uses that exceed a mass-based
threshold would need to conduct an environmental demonstration, even if
they did not involve placement in areas that meet the location
criterion. The EPA, therefore, requests comment on whether the
thresholds from the state beneficial use programs listed above or other
states not listed above would represent an appropriate basis on which
to trigger the environmental demonstration.
The EPA also solicits comment on any alternative approaches to
combining the mass- and location-based criteria to ensure that both the
largest uses and those with the greatest potential for risk would
conduct an environmental demonstration.
D. All Unencapsulated Uses Demonstrate Environmental Analysis
In general, having some type of threshold is a reasonable approach
since there may potentially be some relatively small volume uses or dry
locations where an environmental demonstration is not necessary.
Nevertheless, EPA also solicits comment on whether the environmental
analysis of the beneficial use definition's fourth criterion should be
demonstrated in all cases rather than limiting the fourth criterion to
only the largest or most environmentally concerning beneficial use
circumstances. Under such an approach, every unencapsulated beneficial
use of CCR in non-roadway applications would have to make an
appropriate environmental demonstration of whether releases to
environmental media from the beneficial use are likely to be of
concern. Under this approach, it is possible that the Agency could also
develop additional guidance \12\ and offer technical direction
regarding the nature and extent of the environmental demonstration that
would be needed depending on the site-specific considerations related
to the particular proposed beneficial use of CCR in question. The EPA
also solicits comment on the use of guidance to determine what an
appropriate environmental demonstration would be in particular site-
specific circumstances. The EPA is considering all such approaches or
provisions and could finalize it without a subsequent proposal.
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\12\ In 2016, EPA released the ``Methodology for Evaluating
Beneficial Uses (BU) of Industrial Non-Hazardous Waste Secondary
Materials'' and the ``Beneficial Use Compendium: A Collection of
Resources and Tools to Support Beneficial Use Evaluations'' to help
the beneficial use community evaluate the potential for adverse
impacts to human health and the environment associated with the
beneficial use of secondary materials, including CCR.
---------------------------------------------------------------------------
The EPA also solicits comment on whether the regulations should
impose a notification requirement upon a person placing unencapsulated
CCR on the land in accord with the regulatory criteria. Many state
programs require notice to the state, landowner, deed record office
and/or the public. The EPA is considering such a provision and could
finalize it without a subsequent proposal.
E. Applicability of the Revised BU Definition
The EPA proposes that all beneficial use applications or projects
not completed before the effective date of a final rule would be
subject to the revised beneficial use criteria. This is consistent with
what the Agency required in the 2015 final rule in terms of
applicability of the new beneficial use definition. The EPA solicits
comment on whether this approach is reasonable and whether there are
other factors, such as a project's completion timeframe, that should
also be considered into the Agency's applicability approach.
V. Proposal To Revise Requirements Applicable to Piles
Under the current regulation, CCR piles are defined as any ``non-
containerized accumulation of solid, non-flowing CCR that is placed on
the land.'' See Sec. 257.53. This definition closely mirrors the RCRA
definition of disposal, which is defined in part as 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 or be emitted into the air or discharged into any
waters, including ground waters.'' See 42 U.S.C. 6903(3). Under this
regulation, CCR piles constitute disposal and are consequently subject
to all regulatory criteria applicable to CCR landfills. In contrast,
activities that meet the definition of a beneficial use are not
considered disposal, even if they involve the direct placement on the
land of ``non-containerized'' CCR. See Sec. Sec. 257.50(g) and 257.53
(definitions of CCR landfill and CCR pile); 80 FR 21327-30 (April 17,
2015). Since promulgation of the 2015 CCR rule, questions have been
raised about the requirements that apply to piles of unencapsulated CCR
placed on the land prior to beneficial use.
The current regulation distinguishes piles of CCR on-site (at an
electric utility or independent power producer site) from temporary
piles of CCR off-site (at
[[Page 40362]]
a beneficial use site), based on whether CCR from the pile could fairly
be considered to be in the process of being beneficially used. See
Sec. 257.53 (definition of CCR pile); 80 FR 21356 (April 17, 2015).
While the CCR from the pile on-site may someday be beneficially used,
it is not currently in the process of being beneficially used, and even
when some amount is transported away, a new amount from the utility may
replace it. See Id. The extended placement of CCR directly on the land
in such a manner is a potential source of uncontrolled releases. To
address these potential releases, the regulation requires that the pile
be containerized (i.e., that the facility adopt measures to control
these releases, and any resulting exposures to human health and the
environment). Such measures include placement of CCR on an impervious
base such as asphalt, concrete or geomembrane; leachate and run off
collection; and walls or wind barriers. See Id. If CCR is not
containerized, the pile is a CCR pile and subject to the same
requirements as a CCR landfill. See Id.
In contrast, the regulations treat CCR stored off-site at a
beneficial use site in a temporary pile to be in the process of being
beneficially used (even though a pile is not itself a beneficial use).
If the CCR is temporarily placed at a beneficial use site and meets the
regulatory definition of a beneficial use, the pile is not a CCR pile
and is not subject to disposal requirements. See Id. Thus, if the
temporary pile contains less than the 12,400-ton threshold amount of
CCR identified in criterion 4 of the beneficial use definition,
criteria 1-3 must be met. For a temporary pile exceeding the threshold
amount in the beneficial use definition, all four criteria must be met,
including the environmental demonstration, which generally requires the
user to evaluate the potential releases from the pile. One way to meet
the environmental demonstration is to control releases from the pile.
See 40 CFR 257.53; 80 FR 21347-54 (April 17, 2015). Thus, the
regulation seeks to achieve the same end result--controlling releases
and potential exposures--through different regulatory mechanisms.
In response to the May 2017 petitions from AES Puerto Rico LP and
USWAG, EPA has reconsidered its current approach of distinguishing
between on-site and off-site piles; and is proposing to replace it with
a single regulatory mechanism applicable to all temporary placement of
CCR on the land, whether the CCR is on-site or off-site, and whether
the CCR is subsequently destined for disposal or beneficial use. The
EPA is not proposing to revise the general standard that already
applies to both on-site and off-site piles (``to control releases from
the pile''). However, EPA considers that a single regulatory approach
would consistently address the potential environmental and human health
issues associated with such piles, which are largely unrelated to
whether the pile is on the land on-site or off-site and whether the CCR
is destined for disposal or beneficial use.
The EPA is, therefore, proposing to establish a single set of
requirements applicable to all temporary placement of unencapsulated
CCR on the land, whether destined for beneficial use or disposal, that
maintains the current standard applicable to both on-site and off-site
piles under the current regulation. Rather than characterizing such
activities as either disposal or beneficial use, EPA considers that
these activities are better characterized as ``storage,'' with criteria
established pursuant to the authority in section 1008(a)(3) to control
releases. Therefore, EPA is proposing a definition of a CCR storage
pile to distinguish between the activities that will be considered
storage and those that will be considered disposal. Specifically, EPA
is proposing to define a CCR storage pile as a temporary accumulation
of unencapsulated CCR on the land, whether on-site or off-site. As a
second element, EPA is proposing to include in the definition a
requirement to control releases of CCR (e.g., from windblown dust, or
from stormwater or run-on and run-off) to the environment.
Accumulations of unencapsulated CCR in enclosed structures, would not
be required to meet either the definition of a CCR storage pile or the
landfill requirements in part 257. The accumulation of unencapsulated
CCR that does not meet all elements of the proposed definition of a CCR
storage pile, including the requirement to control releases of CCR,
would be considered to be disposal when placed on the land, and would
be subject to the part 257 landfill regulations.
Accordingly, in this action, EPA is proposing several revisions to
Sec. 257.53 and conforming changes in Sec. 257.2.
A. The Definition of a CCR Storage Pile
The EPA is proposing to establish criteria to distinguish
activities that constitute the temporary storage of unencapsulated CCR
in a pile from those activities that are truly disposal and therefore
need to comply with the part 257 requirements. Specifically, EPA is
proposing to define a CCR storage pile as ``any temporary accumulation
of solid, non-flowing CCR placed on the land that is designed and
managed to control releases of CCR to the environment.''
1. Definition of a Temporary Accumulation
As noted in the preamble to the 2015 CCR rule, EPA considered
placing a time limit on a pile; as an alternative regulatory strategy,
a limit (e.g., 180 days) would have been established on the amount of
time that the CCR would have been allowed to be maintained in a pile
without regulation as a CCR landfill. See 80 FR 21355 (April 17, 2015).
The EPA rejected this option because it would have been difficult to
oversee and verify the actual time when CCR had been placed in a pile
and when the CCR was subsequently removed. See Id. In this action, in
place of establishing a time limit, EPA is proposing to define the
properties of a temporary accumulation and allow the use of several
criteria to identify a temporary pile. Specifically, EPA is proposing
to define a temporary accumulation as an accumulation on the land that
is neither permanent nor indefinite.
To demonstrate that the accumulation on the land is temporary, at
some point, all of the CCR must be removed from the pile at the site.
To ensure that a temporary accumulation is identifiable, EPA is
proposing that the entity engaged in the activity must have a record,
such as a contract, purchase order, facility operation and maintenance
plan, or fugitive dust control plan, documenting that all of the CCR in
the pile will be completely removed according to a specific timeline.
The criterion requiring possession of a record is designed to be
flexible and account for the practical realities of current practices;
pile removal is contingent on business activities, which are performed
according to agreements and schedules, such as for the sale of CCR, for
hauling services for the disposal of CCR, or purchase orders for
products made with CCR from the pile. The EPA is not proposing to
require any particular type of a record be used to demonstrate that a
pile is temporary; however, an appropriate, useful record should
contain verifiable information about amounts of CCR to be sold/
purchased/removed and the timeline of removal activities.
The EPA solicits comment on whether the criterion requiring
possession of a record to show that the CCR will be removed can be
feasibly implemented. Namely, EPA requests comment about (i) specific
cases where piles are temporary but records are not available; and (ii)
an alternative criterion inclusive
[[Page 40363]]
of such cases. For example, EPA is considering whether utilities with
on-site landfills possess or could develop verifiable records to show
that the CCR from piles will be transported for disposal at the
utility-owned landfill in a timely manner (e.g., do utilities with on-
site landfills, or could utilities with on-site landfills, keep
schedules of daily on-site operation, and would such schedules
sufficiently provide the needed information). Similarly, EPA is
considering whether cement kilns and concrete batch plants can match
purchase orders for products made with CCR to piles of CCR, or if
alternative records are readily available to demonstrate that the CCR
in a pile will be used. The EPA is also seeking comment about whether
purchase orders for construction materials are sufficiently forward-
looking to allow the piles of CCR that are set up early in a
construction season to be matched up with construction projects
beginning late in the construction season, or if a grace period should
be allowed for cement kilns and concrete batch plants supplying
construction materials with CCR, to put applicable agreements in place
(e.g., 90-120 days after the start of the construction season). The EPA
also requests comment and information on additional or alternative
criteria crucial for demonstrating that a pile is temporary and/or
effectuating the timely removal of CCR.
2. Proposed Requirement To Control Releases
The EPA is proposing to include in the definition of CCR storage
pile a requirement to control releases to be consistent with the
definition of disposal in 42 U.S.C. 6903(3). As stated in that
definition, disposal includes 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
or be emitted into the air or discharged into any waters, including
groundwaters.''
When significant and persistent volumes of unencapsulated CCR are
present, similarities exist in the potential risks posed to human
health, groundwater resources, or the air between the placement of CCR
in piles and placement in CCR landfills, if inappropriately managed.
See 80 FR 21356 (April 17, 2015). The same pollution control measures,
such as liners, leachate collection systems, and groundwater
monitoring, would appropriately control releases and address the
potential adverse effects from both the piles of significant and
persistent volumes and CCR landfills.
The EPA's proposal is designed to address these potential risks.
Under the proposed definition, temporary accumulations are limited to
the amount of CCR specified to be used as documented in the relevant
record, and all of the CCR will be removed. Therefore, by defining a
CCR storage pile as a temporary accumulation, EPA would effectively
limit the amount of unencapsulated CCR that will be placed and persist
in one location. Due to these factors, EPA considers that it is not
necessary to impose on CCR storage piles the same set of technical
requirements as for CCR landfills, but that meeting the requirement to
control releases of CCR in the definition of a CCR storage pile would
result in no reasonable probability of adverse effects on human health
and the environment from the management of CCR on-site or off-site.
Moreover, none of these concerns are present when CCR is stored in
enclosed structures. The EPA's proposed definition, therefore, would
explicitly exclude CCR contained in enclosed structures. In Unit V.B of
this preamble (Definition of an Enclosed Structure), EPA is proposing
to identify the structural properties and design and operational
elements of an enclosed structure, modeled after the requirements in
Sec. 264.1100 for units in which hazardous wastes are stored or
treated not to be subject to the definition of land disposal.
The definition of disposal in 42 U.S.C. 6903(3) regards all
environmental media, and consistent with this definition of disposal,
EPA's requirement to control releases of CCR would apply to all
environmental media. Releases covered by the requirement to control
releases in the proposed definition of the CCR storage pile would at a
minimum, include releases through wind-blown dust, surface transport by
precipitation runoff and releases to soil and to groundwater.
Meeting the requirement to control releases would mean having to
account for normal conditions and operating procedures. The EPA is
proposing that one way for the entities engaged in the activity to meet
the requirement is by designing and managing piles such that the
releases are consistent with the terms of federal, state or local
regulations for surface water, groundwater, soil or air protection.
Examples of federal, state, or local regulations include stormwater
discharge permits for construction sites; nation-wide effluent limits
for relevant industry sectors (e.g., cement, concrete and gypsum
facilities, and power plants); states' groundwater protection plans;
and states' requirements for implementing control measures to prevent
releases from storage piles of CCR. Releases that are specifically
authorized under federal, state and local regulations for surface
water, groundwater, soil or air protection would be allowed under this
proposal. Situations in which CCR is being swept away and released to
soil, water or air in violation of existing local, state and federal
requirements, would be considered to be evidence of disposal.
Examples of measures that might be used to control releases from a
CCR storage pile include: Periodic wetting, application of surfactants,
tarps or wind barriers to suppress dust; tarps or berms for preventing
contact with precipitation and controlling run-on/runoff; and
impervious storage pads, geomembrane liners or tarps for soil and
groundwater protection. The EPA is not proposing to impose a specific
set of control measures in every case, as the amount of CCR stored and
the prevailing weather conditions may affect which controls are
appropriate. Therefore, EPA intends to provide the entities engaged in
the activity with flexibility to determine the control measures most
appropriate to meet the requirement to control releases at a given
site. This flexibility also ensures that EPA's requirements do not
contradict any state or local requirements for the use of prescribed
controls. However, if control measures are not used or are inadequate
for prevailing conditions, increasing the likelihood of CCR being swept
away, then the entity engaged in the activity would not have met the
requirement to control releases, and the accumulation of CCR would be
considered to be disposal. Visible dust, run-on/runoff and ponding of
the water at the bottom of the pile, point to an issue with the choice
of control measures.
The EPA's understanding is that for many beneficial uses,
beneficial users are implementing measures to protect the mechanical
and chemical properties of CCR. These measures frequently match the
controls necessary to meet the proposed requirement to control
releases. Furthermore, several federal, state and local government
regulations for environmental protection require the use of pollution
controls that would also meet the requirement. Below is a brief summary
of EPA's understanding of current beneficial use handling practices and
existing regulations that would apply to control releases.
Fly Ash used in concrete. The EPA's understanding is that the
handling of fly ash marketed for beneficial use in concrete production
is consistent across
[[Page 40364]]
the industry; fly ash is collected in a dry powder form and directed to
silos, domes, or buildings at concrete batch plant sites in a self-
contained system from start to end. The reason for the containment is
that fly ash provides mechanical and chemical benefits when used in
concrete, making it a valuable ingredient and fully warranting the
protection of its properties through handling and storage.
Flue Gas Desulphurization (FGD) gypsum used in wallboard. The EPA's
further understanding is that FGD gypsum may be transferred down a
conveyer belt directly from an electric utility or independent power
producer to a wallboard plant. Generally, it will either be contained
in a building or stored on a pad.\13\
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\13\ In order to be subject to RCRA, the material must be a
solid waste. When FGD gypsum used for wallboard manufacture is a
product rather than a waste or discarded material, and its use meets
product specifications, FGD gypsum would not be regulated under the
CCR rule. See, 80 FR at 21348. Note that whether the FGD gypsum is
being managed as a ``waste'' or a ``product'' is a fact-specific
determination, https://www.epa.gov/coalash/frequent-questions-about-beneficial-use-coal-ash.
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CCR used as raw feed at cement kilns. The EPA's understanding is
that the CCR used as a source of silica for production of clinker at
cement kilns is generally stored on concrete pads or within partial
enclosures composed of a concrete pad, overhead cover and several, but
not all four sides. Placement of CCR on concrete pads controls releases
to soil and groundwater, and federal, state and local regulations
impose further requirements to control releases to air and surface
water. For example, at cement kilns, fugitive dust from raw material
storage, which includes piles of CCR, must be controlled to an opacity
standard in Sec. 60.62(b), and this opacity standard limits the
allowed particulate matter (PM) emissions; \14\ moreover, federal
regulations require National Pollutant Discharge Elimination System
(NPDES) permit coverage and compliance with stormwater effluent
discharge standards in 40 CFR part 411, subpart C.\15\
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\14\ Examples of emission control measures implemented in
Portland cement manufacturing facilities for raw materials, such as
CCR, can be found at: Bhatty, Javed I., Miller, F. MacGregor, and
Kosmatka, Steven H.; editors, Innovations in Portland Cement
Manufacturing, SP400, Portland Cement Association, Skokie, Illinois,
U.S.A, 2004; page 656. This book is available in the docket to this
rulemaking.
\15\ U.S. EPA, ``Developing your Stormwater Pollution Prevention
Plan: A Guide for Industrial Operators.'' EPA 833-B-09-002. June
2015. Available in the docket to this rulemaking.
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CCR used in construction. NPDES permits are also required for
construction activities that disturb at least one acre, including sites
that are part of a larger common plan of development that will
ultimately disturb at least one acre.\16\ The EPA has authorized most
states to administer the NPDES permitting program; \17\ however, where
EPA has not authorized states to implement the NPDES program and EPA
maintains the NPDES permitting authority, the Agency issues a
Construction General Permit (CGP). The CGP requires implementation of
pollution prevention controls to minimize the stormwater discharges of
pollutants and also requires dust minimization and
suppression.18 19 States and localities also require dust
control during construction.20 21
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\16\ See, Sec. 122.26(a)(1)(ii), (a)(9)(i)(B), (b)(14)(x), and
(b)(15)(i). Exclusions exist if the construction site disturbs less
than five acres, and the rainfall erosivity factor (``R'' in the
revised universal soil loss equation, or RUSLE) value is less than
five during the period of construction activity. For more
information, please see EPA's web page on ``Rainfall Erosivity
Factor Calculator for Small Construction Sites'' at https://www.epa.gov/npdes/rainfall-erosivity-factor-calculator-small-construction-sites.
\17\ A copy of EPA's web page titled ``Authorization Status for
EPA's Construction and Industrial Stormwater Programs'' is available
in the docket to this rulemaking.
\18\ A copy of EPA's web page titled ``2017 Construction General
Permit (CGP)'' is available in the docket to this rulemaking.
\19\ A copy of EPA's 2017 Construction General Permit is
available in the docket to this rulemaking.
\20\ Examples include: http://bentoncleanair.org/windblown-dust/urban-fugitive-dust-policy/.
\21\ Examples include: https://www.michigan.gov/documents/deq/deq-ead-caap-genpub-FugDustMan_313656_7.pdf; https://www.arb.ca.gov/drdb/sb/curhtml/R345.pdf; https://www.tceq.texas.gov/airquality/stationary-rules/pm; https://www.pacode.com/secure/data/025/chapter123/s123.1.html.
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The EPA requests comment on whether this proposal will
appropriately address the risks associated with the potential releases
from piles of CCR in all circumstances. The EPA asks if in some cases,
it is acceptable to manage releases retroactively. For example, are
there situations in which CCR will only enter the topmost layer of soil
over the time the CCR is in place at the site, in which retroactive
management of these releases combined with an active management of
releases to air and water, could avoid all reasonable probability of
adverse effects on human health and the environment. For example,
commenters may have information to show that the placement of CCR at a
construction site, which typically occurs over a brief, one-time
period, is precisely one such situation in which releases to soil and
groundwater can retroactively be managed by removing the CCR and the
contaminated soil beneath it, at the completion of the project. The EPA
also seeks comment and data on whether there are additional situations
where piles are commonly in place for a short period of time (e.g., 90
days or less), at the end of which the CCR is fully removed and
presents no reasonable probability of adverse effects on human health
or the environment, thus supporting an exemption from having to meet
the requirement to control releases. The EPA also asks for information
about key characteristics of such piles that would make them readily
identifiable in practice. Further, EPA requests comment on whether
requiring that a pile must be temporary is a key element of controlling
risks associated with the potential releases from piles of CCR; for
example, do commenters have information to show that the size of a pile
is sufficiently controlled by the ability to use pollution control
measures to control releases of CCR and that the temporary element is
not needed. The EPA also solicits comment on the existence of any data
documenting instances in which releases from temporary placement of CCR
on the land caused adverse effects even though releases had been
managed consistently with current regulatory standards. Finally, EPA
solicits comment on whether specific state criteria for storage, or any
other criteria, would form a more appropriate basis for a national
storage standard.
B. The Definition of an Enclosed Structure
The EPA is proposing to define an enclosed structure by identifying
structural properties and design and operational elements that would
ensure CCR is appropriately contained. Entities containing CCR within
such structures would not be subject to the definition of CCR storage
pile or CCR landfill requirements in the part 257 regulations. The
proposed key properties and elements are modeled after the requirements
in Sec. 264.1100 for units in which hazardous wastes are stored or
treated not to be subject to the definition of land disposal.
From Sec. 264.1100 requirements, EPA is proposing to omit the
requirements that are specifically relevant to the containment of
hazardous waste and liquid waste. Examples of such requirements pertain
to the control of fumes using pressure gradients, provisions for
contact between the structure and hazardous wastes, or the need for a
system of containment barriers to contain liquid wastes.
The EPA is also proposing to omit the requirement that the ``no
visible fugitive emissions'' standard and Method 22--Visual
Determination of Fugitive Emissions from Material Sources and
[[Page 40365]]
Smoke Emissions from Flares in 40 CFR part 60, appendix A, be met.
Rather than requiring a potentially challenging-to-oversee-and-enforce
observation and recording procedure, EPA is proposing to include in the
design and operational elements of an enclosed structure a performance
standard stating that enclosed structures must be designed and operated
to prevent the release of fugitive dust emissions through openings,
including doors, windows and vents.
The remaining Sec. 264.1100 requirements, which EPA proposes to
adopt, pertain to full containment of waste, as well as to the
structural stability and integrity of the enclosure. Stability and
integrity are marked by the ability to withstand external loads from
seismic and climatic conditions, as well as any internal loads from
daily operating activities, such as the operating of heavy equipment
inside the enclosure.
C. The Definitions of a CCR Pile and CCR Landfill
The EPA is also proposing to revise the definition of a CCR pile to
be consistent with the above proposals. In the current definition, EPA
distinguishes between piles on-site (which were almost always regulated
as landfills) and piles off-site, (which, if temporary, were generally
considered to be beneficial use, subject only to the four criteria in
the definition). The current regulation also distinguishes between on-
site piles that are not containerized and those that are containerized.
See 80 FR 21356 (April 17, 2017); Sec. 257.53. In this action, EPA is
proposing to maintain the term CCR pile to identify accumulations of
CCR that will be subject to the disposal requirements. However, as
discussed previously, EPA is proposing to treat all piles on- and off-
site the same, such that the only piles of CCR subject to the disposal
requirements are those accumulations that do not meet the definition of
a CCR storage pile. Consequently, EPA is proposing to delete from the
current definition of CCR pile the phrase ``non-containerized'' and the
sentence ``CCR that is beneficially used off site is not a CCR pile.''
While EPA is proposing to maintain the term CCR pile, EPA also requests
comment whether the term and the definition remain necessary or should
instead, be deleted.
In another conforming change, EPA is also proposing to revise the
definition of a CCR landfill to include accumulations of CCR on the
land that do not meet the definition of a CCR storage pile. This
proposed change would apply to the definition of CCR landfill in
Sec. Sec. 257.2 and 257.53.
VI. Proposal To Revise the Annual Groundwater Monitoring and Corrective
Action Report Requirements
Section 257.90(e) requires owners and operators of CCR units to
prepare an annual groundwater monitoring and corrective action report.
This 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. The CCR rule also specifies the minimum information that
must be included in the annual report. For example, one of the current
requirements is to provide all the monitoring data obtained under the
groundwater monitoring and corrective action program for the year
covered by the report. The CCR regulations further require the owner or
operator to include in the report 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 samples were required by the detection monitoring or
assessment monitoring programs. See Sec. 257.90(e)(3). Except for
certain inactive CCR surface impoundments, owners and operators were
required to prepare the initial annual report no later than January 31,
2018, and post the report to its publicly accessible CCR website within
30 days of preparing the report. See Sec. Sec. 257.90(e) and
257.107(d). For eligible inactive CCR surface impoundments,\22\ the
deadline to prepare the initial annual report is August 1, 2019. See
Sec. 257.100(e)(5)(ii).
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\22\ For more information on eligible inactive CCR surface
impoundments, see the preamble to the direct final rule published on
August 5, 2016 (81 FR 51802).
---------------------------------------------------------------------------
The Agency reviewed the annual reports available on the CCR
websites and observed that some facilities provided groundwater
monitoring data in formats that were clear and easy for the public to
understand, while some did not. Many reports contained a concise
summary in the beginning of the report to orient the reader to the
stage of groundwater monitoring that the facility was in, whether any
constituents have been determined to be present at statistically
significant levels above background (for part 257 Appendix III
constituents) or a groundwater protection standard (for part 257
Appendix IV constituents), and the groundwater monitoring data in a
table format. In other reports, it was difficult to tell whether the
analytical results corresponded to background or downgradient wells,
whether the CCR unit was operating under the detection or assessment
monitoring program, when the assessment monitoring program was
initiated for the CCR unit, or whether the facility had initiated
corrective action for the unit. In addition, several facilities only
provided laboratory printouts of the data, potentially making it
difficult for the public and other stakeholders to put the results into
context within the overall groundwater monitoring program.
The purpose of requiring posting of the annual reports is to allow
the public, states and EPA to easily see and understand the groundwater
monitoring data. To accomplish this purpose, the Agency is considering
two possible revisions to the annual groundwater monitoring and
corrective action reporting requirements.
First, EPA is proposing to amend Sec. 257.90 by adding new
paragraph (e)(6). This new provision would establish minimum set of
requirements that would need to be addressed in the summary discussion
of the status of the groundwater monitoring and corrective action
programs for the CCR unit. This summary would be placed at the
beginning of the annual report (e.g., as part of the report's executive
summary) for readers to readily access the information. The minimum
requirements for this summary would include stating whether the CCR
unit was operating pursuant to the detection monitoring program under
Sec. 257.94 or the assessment monitoring program under Sec. 257.95,
identifying those constituents and the corresponding wells, if any, for
which the facility had determined that there is a statistically
significant increase over background levels for constituents listed in
Appendix III (or if operating under the assessment monitoring program,
constituents in Appendix IV that were detected at statistically
significant levels above the groundwater protection standard), the date
when the assessment monitoring program was initiated for the CCR unit,
and describing any corrective measures initiated or completed (to
include the dates of these actions), including the remedy, during the
annual reporting period.
Second, the Agency solicits comment on whether to amend Sec.
257.90 to require that the groundwater monitoring analytical results
and related information be presented in a standardized format such as
multiple tables and included in the annual
[[Page 40366]]
report. As noted, the purpose of requiring posting of the groundwater
reports is to allow members of the public, as well as the states and
EPA, to easily see and understand the groundwater monitoring data. The
EPA requests comment on whether the regulations need to establish a
standardized format for these reports in order to accomplish this
purpose. Possible examples of what form these formats could take are
available for review in the docket to this rulemaking.\23\ The Agency
also requests comment on formats that could be used.
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\23\ See EPA memorandum titled ``Annual Groundwater Monitoring
Report Data Examples''; dated July 1, 2019.
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Information about the groundwater wells could include the following
data elements: Well identification number, sampling date, latitude and
longitude in decimal degrees, groundwater elevation including well
depth to groundwater and total depth of groundwater, and whether the
groundwater well is upgradient or downgradient of the CCR unit. The
well information provides context for each sample and therefore helps
the members of the public understand the sampling results. This
information is already collected and reported in the groundwater
sampling and analysis plan under Sec. 257.93 and so the information is
readily available to the facility.
Sample information could be provided in a table that contains
fields including sampling date, sampling time, sampling phase (i.e.,
background, detection monitoring, assessment monitoring, corrective
action), whether the groundwater well is upgradient or downgradient of
the CCR unit, and analytical methods listed separately for every method
used to analyze the constituent concentrations. Appendix III to Part
257--Constituents for Detection Monitoring could contain concentrations
in milligrams per liter (unless otherwise specified) of the following:
Boron, calcium, chloride, fluoride, pH (standard units), sulfate, and
total dissolved solids (TDS). Appendix IV to part 257--Constituents for
Assessment Monitoring could contain concentrations in milligrams per
liter (unless otherwise specified) of the following: Antimony, arsenic,
barium, beryllium, cadmium, chromium, cobalt, lead, lithium, mercury,
molybdenum, radium 226-228 combined (pCi/L), selenium, and thallium. It
is recommended that each constituent concentration identify the
detection limit for the analytical method used with data qualifiers
specified for non-detect samples.
The EPA solicits comment both on requiring a standardized format
and on the elements of the format. The EPA believes that a required
standardized format would increase transparency and enable the general
public, as well as federal, state, and local officials, to more easily
understand the groundwater monitoring data and thus plan for and
evaluate the appropriate next steps to protect public health and the
environment.
VII. Establishing an Alternative Risk-Based Groundwater Protection
Standard for Boron
The 2015 CCR rule required the owner or operator of a CCR unit to
set the groundwater protection standard (GWPS) at the Maximum
Contaminant Level (MCL) or to background for all constituents in
Appendix IV to part 257 that are detected at a statistically
significant level above background. MCLs are levels of constituent
concentrations promulgated under section 1412 of the Safe Drinking
Water Act. If no MCL exists for a detected constituent, then the GWPS
was required to be set at background.
On March 15, 2018, EPA proposed to add boron to the list of
constituents in Appendix IV of part 257 that trigger corrective action.
See 83 FR 11588-89. The EPA is still considering the comments received
in response to this and has made no decision on whether to add boron to
Appendix IV.
In the July 2018 final rule, EPA established specific GWPS for each
of the four constituents now listed in Appendix IV without MCLs, to be
used in place of the default background concentrations currently
required under Sec. 257.95(h)(2). See 83 FR 36443-45 (July 30, 2018).
Consistent with this decision, if EPA does finalize the addition of
boron to Appendix IV, an alternative risk-based GWPS should be
established since boron does not have an MCL. Accordingly, EPA is
proposing to establish an alternate risk-based GWPS for boron, which
would be finalized only if boron is ultimately added to Appendix IV.
The EPA is proposing to adopt a standard for boron using the same
methods that were used to develop the standards established in the July
30, 2018 final rule. See 83 FR 36443-45. Specifically, the Agency is
proposing to adopt 4,000 micrograms per liter ([micro]g/L) as the GWPS
for boron, if boron is added to Appendix IV. This level was derived
using the same methodology that EPA proposed to require States to use
to establish alternative GWPS in the March 15, 2018 proposed rule (see
83 FR 11598-99, 11613), and that EPA ultimately used to develop the
revised GWPS in the July 30, 2018 final rule. The methodology follows
Agency guidelines for assessment of human health risks of an
environmental pollutant. This means that EPA has established this GWPS
at the concentration to which the human population could be exposed to
on a daily basis without an appreciable risk of deleterious effects
over a lifetime.
The EPA used the equations in the Risk Assessment Guidance for
Superfund (RAGS) Part B to calculate these revised GWPS.\24\ RAGS Part
B provides guidance on using drinking water ingestion rates and
toxicity values to derive risk-based remediation goals. The use of
these methods, consistent with EPA risk assessment guidelines will
protect sensitive populations. The EPA relied upon relevant exposure
information from the 2008 Child-Specific Exposure Factors Handbook,\25\
the Exposure Factors Handbook: 2011 Edition \26\ and the 2014 Human
Health Evaluation Manual, Supplemental Guidance: Update of
Standard.\27\ Values based on residential receptors were used to
capture the range of current and future potential receptors. The EPA
identified toxicity values according to the hierarchy established in
the 2003 Office of Solid Waste and Emergency Response Directive 9285.7-
53,\28\ which encourages prioritization of values from sources that are
current, transparent and publicly available, and that have been peer
reviewed. Finally, EPA used the same toxicity values (reference doses)
that were used in the risk assessment supporting the 2015 CCR Rule.
Cancer slope factors (CSF) were not identified for boron. The proposed
GWPS for boron was set using a target based on a Hazard Quotient (HQ)
equal to 1.
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\24\ Risk Assessment Guidance for Superfund (RAGS) Part B can be
accessed at https://www.epa.gov/risk/risk-assessment-guidance-superfund-rags-part-b.
\25\ U.S. EPA, ``Child-Specific Exposure Factors Handbook'',
EPA/600/R-06/096F, September 2008. This document is available in the
docket to this rulemaking.
\26\ U.S. EPA, ``Exposure Factors Handbook: 2011 Edition'', EPA/
600/R-090/052F, September 2011. This document is available in the
docket to this rulemaking.
\27\ U.S. EPA, ``2014 Human Health Evaluation Manual,
Supplemental Guidance: Update of Standard Default Exposure
Factors.'' This document is available in the docket to this
rulemaking.
\28\ U.S. EPA, ``Human Health Toxicity Value in Superfund Risk
Assessments'', OSWER Directive #9285.7-53, December 5, 2003. This
document is available in the docket to this rulemaking.
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VIII. Revisions to the Publicly Accessible CCR Website Requirements
In the 2015 CCR rule, pursuant to section 7004(b)(2), the Agency
[[Page 40367]]
promulgated 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.'' Section 7004(b)(3)
directs EPA to provide for, encourage, and assist ``[p]ublic
participation in the development, revision, implementation, and
enforcement of any regulation, guideline, information, or program under
this chapter.'' To achieve these ends, internet postings are required
for various elements identified in the following sections of the CCR
regulations: Location restrictions; design criteria; operating
criteria; groundwater monitoring and corrective action; closure and
post closure care. Consistent with the statutory directive, the
websites are to make the notices and relevant information required by
the regulations available to the public in a manner that will encourage
and assist public participation in the implementation of the
regulations. This necessarily means, for example that the posted
documents must be clearly identifiable as documents, reports,
demonstrations, etc., to those attempting to access them. The Agency
considers the internet the most widely accessible and effective means
for gathering and disseminating information to the public and the
states.
The EPA has observed that some of the publicly accessible websites
that owners and operators of CCR facilities have established in
response to the CCR regulations in practice, fail to make the posted
documents publicly accessible. For example, a number of CCR websites
require either some sort of registration whereby personal information
identifying the user must be provided before members of the public are
granted ``access'' to the website. The Agency has seen other websites
where a user must submit a request for each document individually and
the requested document is subsequently emailed to the user. Still other
websites have been designed such that the posted ``publicly available''
documents cannot be downloaded or printed from the website. The EPA
does not consider these kinds of practices to be consistent with the
requirement that the information be made publicly available. The EPA
acknowledges that the current regulation does not define the term
``publicly available,'' or contain detailed requirements that such
websites must meet; nor are these practices explicitly prohibited. To
avoid any further confusion, EPA is proposing to amend the current
regulation to clearly specify that facilities must ensure that all
information required to be on the websites must be made available to
any member of the public, including through printing and downloading,
without any requirement that the public wait to be ``approved'', or
provide information in order to access the website.
Another issue EPA has noticed is that the internet addresses for
many of the publicly accessible CCR websites have changed; for some
sites, more than once. It is very difficult for the public, states, and
EPA to access the information required to be posted on these websites
if the URL's change without notice. The EPA website has a ``contact
us'' form whereby anyone can submit a comment or question to EPA that
can be accessed at https://www.epa.gov/coalash/forms/contact-us-about-coal-ash. It would be very helpful if when a facility decides to change
their web address they would submit a comment to that effect so that
EPA can update its website that lists the CCR facilities nationwide and
includes their web addresses. The Agency is therefore proposing to
amend the regulations to require that facilities notify EPA within 14
days of changing their CCR website address, to allow EPA to update the
Agency's website with the correct URL address.
Similar to the difficulties that arise when a facility changes its
web address for its CCR website, as discussed above, EPA has also
noticed that when there is a question or problem with a publicly
accessible CCR website, such as a broken link or a document that will
not download, it can be difficult to reach the appropriate contact at
the facility who has knowledge of the information posted to the CCR
website. Therefore, the Agency is requesting comment on whether each
CCR website should be required to have a mechanism (e.g., a ``contact
us'' electronic form on the CCR website) for the public to bring to the
attention of the facility issues of information accessibility.
IX. The Projected Economic Impacts of This Action
A. Introduction
The EPA estimated the costs and benefits of this action in an
Economic Analysis (EA) which is available in the docket for this
action. The EA estimates the incremental costs and cost savings
attributable to the provisions of this action, against the baseline
costs and practices in place as a result of the 2015 CCR final rule
and, in some cases, existing federal and state regulations governing
specific project types. The EA estimates that the net annualized impact
of this proposed regulatory action over a 40-year period of analysis
will be annual costs of between $0.43 million and $3.8 million. The
costs are roughly evenly attributable to the two provisions in the
rule. This action is not considered an economically significant action
under Executive Order 12866.
B. Affected Universe
The proposed rule affects entities in a number of different sectors
who obtain quantities of CCR for use in a range of beneficial use
applications and place it in ``piles'' prior to using or disposing it.
The universe also includes entities that beneficially use CCR in
applications that are (a) unencapsulated, (b) applied to land, and (c)
not part of the construction of roadways. The types of facilities and
applications potentially affected include: (1) Highway and non-road
construction projects that use CCR for flowable fill, structural fill,
embankments, soil modifications/stabilization, mineral filler in
asphalt, and aggregate; (2) local authorities that use CCR for snow and
ice control on roadways; (3) agricultural projects that use FGD gypsum
as a soil amendment; and (4) oil/gas field services that use CCR in
flowable fill or similar forms to stabilize wells. A number of other
potentially affected sectors appear to already have operations
consistent with the provisions in the proposed rule and are not
expected to change operations or incur any costs. These include cement
kilns, concrete batch plants, and mining applications.
While the sectors affected are large, the number of operations and
projects using CCR in a manner that would be affected by the rule is
limited; the EA estimates that at most, roughly 700 operations across
all sectors would be affected by either or both provisions. This number
reflects the number of individual projects for construction; the number
of companies affected is likely lower. In addition, some or all of
these projects and operations may already be operating in a manner
consistent with the requirements of the proposed rule, due to existing
state and federal regulations.
C. Baseline Costs
The baseline costs for this rule are not explicitly estimated
because they represent part of standard operating costs across multiple
project types and sectors. The baseline does assume that entities are
subject to the relevant (i.e., beneficial use-related) costs of
compliance with EPA's 2015 CCR rule, as well as the costs of compliance
with other federal and state regulations that address various
transportation,
[[Page 40368]]
construction, and waste management practices.
D. Costs and Benefits of the Proposed Rule
The costs to comply with this proposed rule for facilities that are
not currently operating in compliance includes, for the management of
CCR piles, the cost of ensuring that the releases from CCR piles are
controlled. For the preparation of a Criteria 4 (of the definition of
``beneficial use of CCR'') investigation two costs are relevant. The
first are the costs to determine whether the proposed Criterion 4
location-based standards apply to a specific project and the
preparation of a demonstration consistent with Criterion 4. The second
are the per-project costs to demonstrate compliance with the proposed
rule's location standards.
The EA estimates that number of facilities/operations that will
employ new practices to control releases from piles is between 0
(assuming that all existing operations are already compliant due to
other federal and state regulations) and 536; the annual costs
associated with changing operations are estimated to range from $0 to
roughly $3.2 million. These costs are assumed to apply every year to
the same number of facilities and construction projects, which may
overstate costs to the extent that management changes at permanent
facilities may occur only once.
The EA estimates that the number of projects requiring
investigation of the applicability of location-based standards under
Criterion 4 is between 359 and 585; in most cases these are the same
facilities and operations that are affected by the requirement for
managing CCR in piles. The annual costs associated with conducting
these investigations ranges from roughly $0.26 million to roughly $0.47
million, again assuming a consistent number of projects require
assessment every year. Further, the EA estimates that 16 to 43 projects
would trigger a location-based standard and therefore require a
demonstration consistent with Criterion 4. The annual costs associated
with developing these demonstrations are estimated to range from $0.044
million to $0.12 million. Therefore, the total annual costs associated
with the location-based standards for Criterion 4 are estimated to
range from $0.26 million to $0.47 million, though these costs may be
overestimated because they assume that all projects will conduct all
six location-based standards investigations (even if a single
investigation indicates that a Criterion 4 demonstration must be made),
and that new project in new locations occur in the same frequency every
year.
The EA also estimates the costs to owners and operators of CCR
management units who will have to revise their groundwater monitoring
and corrective action reports, as well as the costs to owners and
operators of CCR management units who will have to amend their websites
to comply with the rule's reporting and documentation requirements. The
economic analysis estimates that approximately 700 CCR management units
and 5 websites will be affected by these respective provisions,
resulting in annualized costs of roughly $0.1 million.
The total costs estimated for this EA across these two provisions
are therefore estimated to range roughly between $0.43 million and $3.8
million.
Benefits associated with the rule are not quantified due to the
uncertainty about the extent and location of behavior changes. However,
improved control of releases from CCR piles and elimination of releases
of CCR in areas where location restrictions apply would likely improve
ecological and human health by reducing the risk of exposures to
arsenic and other toxic metals.
X. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review because this
action may raise novel legal or policy issues arising out of legal
mandates, the President's priorities or the principles set forth in the
Executive Order. Any changes made in response to OMB recommendations
have been documented in the docket. The EPA prepared an analysis of the
potential costs and benefits associated with this action. This Economic
Analysis (EA), entitled Economic Analysis; Hazardous and Solid Waste
Management System: Disposal of Coal Combustion Residuals from Electric
Utilities; Enhancing Public Access to Information; Reconsideration of
Beneficial Use Criteria and Piles, is summarized in Unit IX of this
preamble and the EA is available in the docket for this proposal.
B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
This action is expected to be an Executive Order 13771 regulatory
action. Details on the estimated costs of this proposed rule can be
found in EPA's analysis of the potential costs and benefits associated
with this action.
C. Paperwork Reduction Act (PRA)
The information collection activities in this rule have been
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 1189.31, OMB control
number 2050-0053. This is an amendment to the ICR approved by OMB for
the Final Rule: Hazardous and Solid Waste Management System; Disposal
of Coal Combustion Residuals from Electric Utilities published April
17, 2015 in the Federal Register at 80 FR 21302. You can find a copy of
the ICR in the docket for this action, and it is briefly summarized
here. This rulemaking, specifically the provision clarifying the type
and magnitude of non-groundwater releases that would require a facility
to comply with some or all of the corrective action procedures set
forth in Sec. Sec. 257.96-257.98, increases the paperwork burden
attributable to provisions of the April 17, 2015 CCR Final Rule.
Respondents/affected entities: Coal-fired electric utility plants
that will be affected by the rule.
Respondent's obligation to respond: The recordkeeping,
notification, and posting are mandatory as part of the minimum national
criteria being promulgated under Sections 1008, 4004, and 4005(a) of
RCRA.
Estimated number of respondents: 1,336.
Frequency of response: The frequency of response varies.
Total estimated burden: EPA estimates the total annual burden to
respondents to be an increase in burden of approximately 7,829 hours
from the currently approved burden. Burden is defined at 5 CFR
1320.3(b).
Total estimated cost: The total estimated annual cost of this rule
is a cost increase of approximately $445,055. This cost is composed of
approximately $445,055 in annualized labor costs and $0 in capital or
operation 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.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities
[[Page 40369]]
under the RFA. The small entities subject to the requirements of this
action are beneficial users of CCR spread amongst several industries
including construction, snow and ice control, the production of gypsum
wallboard, agriculture, and oil/gas field services. This action is
expected to result in net cost amounting to approximately $0.43 million
per year to $3.8 million per year. Costs will accrue to all regulated
entities, including small entities. Because fewer than 20% of small
entities in any sector will experience impacts, and because impacts
will fall below 1% of revenues for small entities in all sectors, this
action will not have a significant economic impact on a substantial
number of small entities. Further information on the economic effects
of this action can be found in Unit IX of this preamble and in the
Economic Analysis, which is available in the docket for this action.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate of $100 million
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This action imposes
no enforceable duty on any state, local or tribal governments or the
private sector. The costs involved in this action are imposed only by
participation in a voluntary federal program. UMRA generally excludes
from the definition of ``federal intergovernmental mandate'' duties
that arise from participation in a voluntary federal program.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. For the ``Final Rule: Hazardous and Solid Waste
Management System; Disposal of Coal Combustion Residuals from Electric
Utilities'' published April 17, 2015 (80 FR 21302), EPA identified
three of the 414 coal-fired electric utility plants (in operation as of
2012) as being located on tribal lands; however, they are not owned by
tribal governments. These are: (1) Navajo Generating Station in
Coconino County, Arizona, 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. Thus, Executive Order 13175 does not apply to
this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. This action's health and risk assessments are contained in
the document titled ``Human and Ecological Risk Assessment of Coal
Combustion Residuals,'' which is available in the docket for the 2015
CCR rule as docket item EPA-HQ-RCRA-2009-0640-11993.
As ordered by E.O. 13045 Section 1-101(a), for the ``Final Rule:
Hazardous and Solid Waste Management System; Disposal of Coal
Combustion Residuals from Electric Utilities'' published April 17, 2015
(80 FR 21302), EPA identified and assessed environmental health risks
and safety risks that may disproportionately affect children in the
revised risk assessment. The results of the screening assessment found
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 reduced risks
from current waste management units. This action does not adversely
affect these requirements and EPA believes that this rule will be
protective of children's health.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. For the 2015 CCR rule, EPA analyzed the
potential impact on electricity prices relative to the ``in excess of
one percent'' threshold. Using the Integrated Planning Model (IPM), EPA
concluded that the 2015 CCR rule may increase the weighted average
nationwide wholesale price of electricity between 0.18 percent and 0.19
percent in the years 2020 and 2030, respectively. As the proposed rule
represents a cost savings rule relative to the 2015 CCR rule, this
analysis concludes that any potential impact on wholesale electricity
prices will be lower than the potential impact estimated of the 2015
CCR rule; therefore, this proposed rule is not expected to meet the
criteria of a ``significant adverse effect'' on the electricity markets
as defined by Executive Order 13211.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
The documentation for this decision is contained in EPA's
Regulatory Impact Analysis (RIA) for the CCR rule, which is available
in the docket for the 2015 CCR final rule as docket item EPA-HQ-RCRA-
2009-0640-12034.
The EPA's risk assessment 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
[[Page 40370]]
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 percent belong to a minority
group and 11.3 percent falls below the Federal Poverty Level. For the
population living within one mile of plants with surface impoundments
16.1 percent belong to a minority group and 13.2 percent 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
percent, versus 24.8 percent 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 percent versus 11.3 percent 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
percent of the population near landfills versus 24.8 percent nationwide
and low-income residents comprised 8.6 percent of the population near
landfills versus 11.3 percent 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.
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. Since the CCR
rule is risk-reducing and this action does not add to risks, this
action will not result in new disproportionate risks to minority or
low-income populations.
List of Subjects in 40 CFR Part 257
Environmental protection, Waste treatment and disposal.
Dated: July 29, 2019.
Andrew R. Wheeler,
Administrator.
For the reasons set out in the preamble, EPA proposes to amend 40
CFR part 257 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), 6945(d);
33 U.S.C. 1345(d) and (e).
0
2. In Sec. 257.2 revise the definition of ``CCR landfill'' 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, any practice that does not meet the definition of a
beneficial use of CCR, and any accumulation of CCR on the land that
does not meet the definition of a CCR storage pile.
* * * * *
0
3. Amend Sec. 257.53 by:
0
a. Revising paragraph (4) the definition of ``Beneficial use of CCR''
and the definitions of ``CCR landfill or landfill'' and ``CCR pile'';
and
0
b. Adding in alphabetical order the definitions of ``CCR storage
pile'', ``Enclosed structure'' and ``Temporary accumulation''.
The revisions and additions read as follows:
Sec. 257.53 Definitions.
* * * * *
Beneficial use of CCR means the CCR meet all of the following
conditions:
(4) When unencapsulated use of CCR involves the placement on the
land in the following areas: (a) Within 1.52 meters (five feet) of the
upper limit of the uppermost aquifer; (b) in a wetland; (c) in an
unstable area (d) within a 100-year flood plain; (e) within 60 meters
(200 feet) of a fault area; (f) or within a seismic impact zone 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.
* * * * *
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, any practice that does not meet
the definition of a beneficial use of CCR, and any accumulation of CCR
on the land that does not meet the definition of a CCR storage pile.
CCR pile means any accumulation of solid, non-flowing CCR that is
placed on the land and that is not a CCR storage pile.
CCR storage pile means any temporary accumulation of solid, non-
flowing CCR placed on the land that is designed and managed to control
releases of CCR to the environment. CCR contained in an enclosed
structure is not a CCR storage pile. Examples of control measures to
control releases from CCR storage piles include: Periodic wetting,
application of surfactants, tarps or wind barriers to suppress dust;
tarps or berms for preventing contact with precipitation and
controlling run-on/runoff; and impervious storage pads or geomembrane
liners for soil and groundwater protection.
* * * * *
Enclosed structure means:
(1) A completely enclosed, self-supporting structure that is
designed and constructed of manmade materials of sufficient strength
and thickness to support themselves, the CCR, and any personnel and
heavy equipment that operate within the structure, and to prevent
failure due to settlement, compression, or uplift; climatic conditions;
and the stresses of daily operation, including the movement of heavy
equipment within the structure and contact of such equipment with
containment walls;
(2) Has containment walls that are designed to be sufficiently
durable to withstand any movement of personnel,
[[Page 40371]]
CCR, and handling equipment within the structure;
(3) Is designed and operated to ensure containment and prevent
fugitive dust emissions from openings, such as doors, windows and
vents, and the tracking of CCR from the structure by personnel or
equipment.
* * * * *
Temporary accumulation means an accumulation on the land that is
neither permanent nor indefinite. To demonstrate that the accumulation
on the land is temporary, all CCR must be removed from the pile at the
site. The entity engaged in the activity must have a record in place,
such as a contract, purchase order, facility operation and maintenance,
or fugitive dust control plan, documenting that all of the CCR in the
pile will be completely removed according to a specific timeline.
* * * * *
0
4. In Sec. 257.90 add paragraph (e)(6) to read as follows:
Sec. 257.90 Applicability.
* * * * *
(e) * * *
(6) A section at the beginning of the annual report that provides
an overview of the current status of groundwater monitoring and
corrective action programs for the CCR unit. At a minimum, the summary
must specify:
(i) At the start of the current annual reporting period, whether
the CCR unit was operating under the detection monitoring program in
Sec. 257.94 or the assessment monitoring program in Sec. 257.95;
(ii) At the end of the current annual reporting period, whether the
CCR unit was operating under the detection monitoring program in Sec.
257.94 or the assessment monitoring program in Sec. 257.95;
(iii) If it was determined that there was a statistically
significant increase over background levels for one or more
constituents listed in appendix III to this part pursuant to Sec.
257.94(e):
(A) Identify those constituents listed in appendix III to this part
and the names of the monitoring wells associated with such an increase;
and
(B) Provide the date when the assessment monitoring program was
initiated for the CCR unit.
(iv) If it was determined that there was a statistically
significant increase above the groundwater protection standard for one
or more constituents listed in appendix IV to this part pursuant to
Sec. 257.95(g):
(A) Identify those constituents listed in appendix IV to this part
and the names of the monitoring wells associated with such an increase;
(B) Provide the date when the assessment of corrective measures was
initiated for the CCR unit; and
(C) Provide the date when the assessment of corrective measures was
completed for the CCR unit.
(v) Whether a remedy was selected pursuant to Sec. 257.97 during
the current annual reporting period, and if so, the date of remedy
selection; and
(vi) Whether remedial activities were initiated or are ongoing
pursuant to Sec. 257.98 during the current annual reporting period.
* * * * *
0
5. In Sec. 257.107 revise paragraph (a) to read as follows:
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 website) containing the information specified in
this section. The owner or operator's website must be titled ``CCR Rule
Compliance Data and Information.'' The website must ensure that all
information required to be posted is immediately available to anyone
visiting the site, without requiring any prerequisite, such as
registration or a requirement to submit a document request. All
required information must be clearly identifiable and must be able to
be printed and downloaded by anyone accessing the site. If the owner/
operator changes the URL at any point, they must notify EPA via the
``contact us'' form on EPA's CCR website within 14 days of making the
change.
* * * * *
[FR Doc. 2019-16916 Filed 8-13-19; 8:45 am]
BILLING CODE 6560-50-P