Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities, 35128-35264 [2010-12286]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 118 (Monday, June 21, 2010)]
[Proposed Rules]
[Pages 35128-35264]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-12286]



[[Page 35127]]

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Part II





Environmental Protection Agency





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40 CFR Parts 257, 261, 264 et al.



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

Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / 
Proposed Rules

[[Page 35128]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 257, 261, 264, 265, 268, 271 and 302

[EPA-HQ-RCRA-2009-0640; FRL-9149-4]
RIN-2050-AE81


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
proposing to regulate for the first time, coal combustion residuals 
(CCRs) under the Resource Conservation and Recovery Act (RCRA) to 
address the risks from the disposal of CCRs generated from the 
combustion of coal at electric utilities and independent power 
producers. However, the Agency is considering two options in this 
proposal and, thus, is proposing two alternative regulations. Under the 
first proposal, EPA would reverse its August 1993 and May 2000 Bevill 
Regulatory Determinations regarding coal combustion residuals (CCRs) 
and list these residuals as special wastes subject to regulation under 
subtitle C of RCRA, when they are destined for disposal in landfills or 
surface impoundments. Under the second proposal, EPA would leave the 
Bevill determination in place and regulate disposal of such materials 
under subtitle D of RCRA by issuing national minimum criteria. Under 
both alternatives EPA is proposing to establish dam safety requirements 
to address the structural integrity of surface impoundments to prevent 
catastrophic releases.
    EPA is not proposing to change the May 2000 Regulatory 
Determination for beneficially used CCRs, which are currently exempt 
from the hazardous waste regulations under Section 3001(b)(3)(A) of 
RCRA. However, EPA is clarifying this determination and seeking comment 
on potential refinements for certain beneficial uses. EPA is also not 
proposing to address the placement of CCRs in mines, or non-minefill 
uses of CCRs at coal mine sites in this action.

DATES: Comments must be received on or before September 20, 2010. EPA 
will provide an opportunity for a public hearing on the rule upon 
request. Requests for a public meeting should be submitted to EPA's 
Office of Resource Conservation and Recovery by July 21, 2010. See the 
FOR FURTHER INFORMATION CONTACT section for contact information. Should 
EPA receive requests for public meetings within this timeframe, EPA 
will publish a document in the Federal Register providing the details 
of such meetings.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2009-0640, by one of the following methods:
     https://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: Comments may be sent by electronic mail (e-mail) 
to rcra-docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA-2009-0640. 
In contrast to EPA's electronic public docket, EPA's e-mail system is 
not an ``anonymous access'' system. If you send an e-mail comment 
directly to the Docket without going through EPA's electronic public 
docket, EPA's e-mail system automatically captures your e-mail address. 
E-mail addresses that are automatically captured by EPA's e-mail system 
are included as part of the comment that is placed in the official 
public docket, and made available in EPA's electronic public docket.
     Fax: Comments may be faxed to 202-566-0272; Attention 
Docket ID No. EPA-HQ-RCRA-2009-0640.
     Mail: Send your comments to the Hazardous Waste Management 
System; Identification and Listing of Special Wastes; Disposal of Coal 
Combustion Residuals From Electric Utilities Docket, Attention Docket 
ID No., EPA-HQ-RCRA-2009-0640, Environmental Protection Agency, 
Mailcode: 5305T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please include a total of two copies.
     Hand Delivery: Deliver two copies of your comments to the 
Hazardous Waste Management System; Identification and Listing of 
Special Wastes; Disposal of Coal Combustion Residuals From Electric 
Utilities Docket, Attention Docket ID No., EPA-HQ-RCRA-2009-0640, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2009-0640. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through https://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: 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. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the Hazardous Waste 
Management System; Identification and Listing of Special Wastes; 
Disposal of Coal Combustion Residuals From Electric Utilities Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC 20460. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The Docket telephone 
number is (202) 566-0270. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The

[[Page 35129]]

telephone number for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Alexander Livnat, Office of Resource 
Conservation and Recovery, Environmental Protection Agency, 5304P; 
telephone number: (703) 308-7251; fax number: (703) 605-0595; e-mail 
address: livnat.alexander@epa.gov, or Steve Souders, Office of Resource 
Conservation and Recovery, Environmental Protection Agency, 5304P; 
telephone number: (703) 308-8431; fax number: (703) 605-0595; e-mail 
address: souders.steve@epa.gov. For technical information on the CERCLA 
aspects of this rule, contact Lynn Beasley, Office of Emergency 
Management, Regulation and Policy Development Division (5104A), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460, [E-mail address and telephone number: 
Beasley.lynn@epa.gov (202-564-1965).]
    For more information on this rulemaking please visit https://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/index.htm.

SUPPLEMENTARY INFORMATION:

A. Does this action apply to me?

    The proposed rule would apply to all coal combustion residuals 
(CCRs) generated by electric utilities and independent power producers. 
However, this proposed rule does not address the placement of CCRs in 
minefills. The U. S. Department of Interior (DOI) and EPA will address 
the management of CCRs in minefills in a separate regulatory action(s), 
consistent with the approach recommended by the National Academy of 
Sciences, recognizing the expertise of DOI's Office of Surface Mining 
Reclamation and Enforcement in this area.\1\ In addition, under either 
alternative proposal, EPA is not proposing to affect the current status 
of coal combustion residuals that are beneficially used.\2\ (See 
section IV. D for further details on proposed clarifications of 
beneficial use.) CCRs from non-utility boilers burning coal are not 
included within today's proposed rule. EPA will decide on an 
appropriate action for these wastes after completing this rulemaking 
effort.
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    \1\ The National Research Council (NRC) Committee on Mine 
Placement of Coal Combustion Wastes stated: ``The committee believes 
that OSM and its SMCRA state partners should take the lead in 
developing new national standards for CCR use in mines because the 
framework is in place to deal with mine-related issues.'' National 
Academy of Sciences. Managing Coal Combustion Residues in Mines; The 
National Academies Press, Washington, DC, 2006.
    \2\ The NRC committee recommended ``that secondary uses of CCRs 
that pose minimal risks to human health and the environment be 
strongly encouraged.'' Ibid.
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    The proposed rule may affect the following entities: electric 
utility facilities and independent power producers that fall under the 
North American Industry Classification System (NAICS) code 221112, and 
hazardous waste treatment and disposal facilities that fall under NAICS 
code 562211. The industry sector(s) identified above may not be 
exhaustive; other types of entities not listed could also be affected. 
The Agency's aim is to provide a guide for readers regarding those 
entities that potentially could be affected by this action. To 
determine whether your facility, company, business, organization, etc., 
is affected by this action, you should refer to the applicability 
criteria contained in section IV of this preamble. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting confidential business information (CBI). Do not 
submit information that you consider to be CBI through https://www.regulations.gov or by e-mail. Send or deliver information 
identified as CBI only to the following address: RCRA CBI Document 
Control Officer, Office of Resource Conservation and Recovery (5305P), 
U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington DC 20460, Attention 
Docket No, EPA-HQ-RCRA-2009-0640. You may claim information that you 
submit to EPA as CBI by marking any part or all of the information as 
CBI (if you submit CBI on a disk or CD ROM, mark the outside of the 
disk or CD ROM as CBI and then identify electronically within the disk 
or CD ROM the specific information that is claimed as CBI). Information 
so marked will not be disclosed, except in accordance with the 
procedures set forth in 40 CFR part 2. In addition to one complete 
version of the comment that includes 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 the 
copy that does not contain CBI on disk or CD ROM, mark the outside of 
the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have questions 
about CBI or the procedures for claiming CBI, please contact: LaShan 
Haynes, Office of Resource Conservation and Recovery (5305P), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington DC 20460-0002, telephone (703) 605-0516, e-mail address 
haynes.lashan@epa.gov.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes, and explain your 
interest in the issue you are attempting to address.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.
    3. Docket Copying Costs. The first 100-copied pages are free. 
Thereafter, the charge for making copies of Docket materials is 15 
cents per page.

C. Definitions, Abbreviations and Acronyms Used in This Preamble (Note: 
Any term used in this proposed rulemaking that is not defined in this 
section will either have its normal dictionary meaning, or is defined 
in 40 CFR 260.10.)

    Acre-foot means the volume of one acre of surface area to a depth 
of one foot.
    Beneficial Use of Coal Combustion Products (CCPs) means the use of 
CCPs that provides a functional benefit; replaces the use of an 
alternative material, conserving natural resources that would otherwise 
need to be obtained through practices such as extraction; and meets 
relevant product specifications and regulatory standards (where these 
are available). CCPs that are used in excess quantities (e.g., the 
field-applications of FGD gypsum in amounts that exceed scientifically-
supported quantities required for enhancing soil properties and/or crop

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yields), placed as fill in sand and gravel pits, or used in large scale 
fill projects, such as for restructuring the landscape, are excluded 
from this definition.
    Boiler slag means the molten bottom ash collected at the base of 
slag tap and cyclone type furnaces that is quenched with water. It is 
made up of hard, black, angular particles that have a smooth, glassy 
appearance.
    Bottom ash means the agglomerated, angular ash particles, formed in 
pulverized coal furnaces that are too large to be carried in the flue 
gases and collect on the furnace walls or fall through open grates to 
an ash hopper at the bottom of the furnace.
    CCR Landfill means a disposal facility or part of a facility where 
CCRs are placed in or on land and which is not a land treatment 
facility, a surface impoundment, an underground injection well, a salt 
dome formation, a salt bed formation, an underground mine, a cave, or a 
corrective action management unit. For purposes of this proposed rule, 
landfills also include piles, sand and gravel pits, quarries, and/or 
large scale fill operations. Sites that are excavated so that more coal 
ash can be used as fill are also considered CCR landfills.
    CCR Surface Impoundment or impoundment means a facility or part of 
a facility which is a natural topographic depression, man-made 
excavation, or diked area formed primarily of earthen materials 
(although it may be lined with man-made materials), which is designed 
to hold an accumulation of CCRs containing free liquids, and which is 
not an injection well. Examples of CCR surface impoundments are 
holding, storage, settling, and aeration pits, ponds, and lagoons. CCR 
surface impoundments are used to receive CCRs that have been sluiced 
(flushed or mixed with water to facilitate movement), or wastes from 
wet air pollution control devices, often in addition to other solid 
wastes.
    Cenospheres are lightweight, inert, hollow spheres comprised 
largely of silica and alumina glass.
    Coal Combustion Products (CCPs) means fly ash, bottom ash, boiler 
slag, or flue gas desulfurization materials, that are beneficially 
used.
    Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler 
slag, and flue gas desulfurization materials destined for disposal. 
CCRs are also known as coal combustion wastes (CCWs) and fossil fuel 
combustion (FFC) wastes, when destined for disposal.
    Electric Power Sector (Electric Utilities and Independent Power 
Producers) means that sector of the power generating industry that 
comprises electricity-only and combined-heat-and-power (CHP) plants 
whose primary business is to sell electricity, or electricity and heat, 
to the public.
    Existing CCR Landfill means a landfill which was in operation or 
for which construction commenced prior to the effective date of the 
final rule. A CCR landfill has commenced construction if the owner or 
operator has obtained the Federal, State and local approvals or permits 
necessary to begin physical construction; and either
    (1) A continuous on-site, physical construction program has begun; 
or
    (2) The owner or operator has entered into contractual 
obligations--which cannot be cancelled or modified without substantial 
loss--for physical construction of the CCR landfill to be completed 
within a reasonable time.
    Existing CCR Surface Impoundment means a surface impoundment which 
was in operation or for which construction commenced prior to the 
effective date of the final rule. A CCR surface impoundment has 
commenced construction if the owner or operator has obtained the 
Federal, State and local approvals or permits necessary to begin 
physical construction; and either
    (1) A continuous on-site, physical construction program has begun; 
or
    (2) The owner or operator has entered into contractual 
obligations--which can not be cancelled or modified without substantial 
loss--for physical construction of the CCR surface impoundment to be 
completed within a reasonable time.
    Flue Gas Desulfurization (FGD) material means the material produced 
through a process used to reduce sulfur dioxide (SO2) 
emissions from the exhaust gas system of a coal-fired boiler. The 
physical nature of these materials varies from a wet sludge to a dry 
powdered material, depending on the process, and their composition 
comprises either sulfites, sulfates or a mixture thereof.
    Fly ash means the very fine globular particles of silica glass 
which is a product of burning finely ground coal in a boiler to produce 
electricity, and is removed from the plant exhaust gases by air 
emission control devices.
    Hazard potential means the possible adverse incremental 
consequences that result from the release of water or stored contents 
due to failure of a dam (or impoundment) or mis-operation of the dam or 
appurtenances.\3\
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    \3\ The Hazard Potential Classification System for Dams was 
developed by the U.S. Army Corps of Engineers for the National 
Inventory of Dams (see https://rsgis.crrel.usace.army.mil/apex/f?p=397:1:913698079375545). Hazard potential ratings do not provide 
an estimate of the probability of failure or mis-operation, but 
rather what the consequences of such a failure or mis-operation 
would be.
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    High hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation will probably cause loss of 
human life.
    Significant hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation results in no probable loss 
of human life, but can cause economic loss, environment damage, 
disruption of lifeline facilities, or impact other concerns.
    Low hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation results in no probable loss 
of human life and low economic and/or environmental losses. Losses are 
principally limited to the surface impoundment owner's property.
    Less than low hazard potential surface impoundment means a surface 
impoundment not meeting the definitions for High, Significant, or Low 
Hazard Potential.
    Independent registered professional engineer or hydrologist means a 
scientist or engineer who is not an employee of the owner or operator 
of a CCR landfill or surface impoundment who has received a 
baccalaureate or post-graduate degree in the natural sciences or 
engineering and has sufficient training and experience in groundwater 
hydrology and related fields as may be demonstrated by state 
registration, professional certifications, or completion of accredited 
university programs that enable that individual to make sound 
professional judgments regarding groundwater monitoring, contaminant 
fate and transport, and corrective action.
    Lateral expansion means a horizontal expansion of the waste 
boundaries of an existing CCR landfill, or existing CCR surface 
impoundment made after the effective date of the final rule.
    Maximum Contaminant Level (MCL) means the highest level of a 
contaminant that is allowed in drinking water under the Safe Drinking 
Water Act (SDWA). MCLs are set as close to the MCL goals as feasible 
using the best available treatment technology and taking cost into 
consideration. MCLs are enforceable standards for drinking water.
    Minefill means a project involving the placement of CCRs in coal 
mine voids for use as fill, grouting, subsidence control, capping, mine 
sealing, and

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treating acid mine drainage, whether for purposes of disposal or for 
beneficial use, such as mine reclamation.
    Natural water table means the natural level at which water stands 
in a shallow well open along its length and penetrating the surficial 
deposits just deeply enough to encounter standing water at the bottom. 
This level is uninfluenced by groundwater pumping or other engineered 
activities.
    Organosilanes are organic compounds containing at least one carbon 
to silicon bond, and are typically used to promote adhesion.
    Potential damage case means those cases with documented MCL 
exceedances that were measured in ground water beneath or close to the 
waste source. In these cases, while the association with CCRs has been 
established, the documented exceedances had not been demonstrated at a 
sufficient distance from the waste management unit to indicate that 
waste constituents had migrated to the extent that they could cause 
human health concerns.
    Pozzolanic material means primarily vitreous siliceous materials, 
such as many types of CCRs that, when combined with calcium hydroxide 
and in the presence of water, exhibit cementitious properties.
    Proven damage case means those cases with (i) Documented 
exceedances of primary maximum contaminant levels (MCLs) or other 
health-based standards measured in ground water at sufficient distance 
from the waste management unit to indicate that hazardous constituents 
have migrated to the extent that they could cause human health 
concerns, and/or (ii) where a scientific study provides documented 
evidence of another type of damage to human health or the environment 
(e.g., ecological damage), and/or (iii) where there has been an 
administrative ruling or court decision with an explicit finding of 
specific damage to human health or the environment. In cases of co-
management of CCRs with other industrial waste types, CCRs must be 
clearly implicated in the reported damage.
    Sand and gravel pit, and/or quarry means an excavation for the 
commercial extraction of aggregate for use in construction projects. 
CCRs have historically been used to fill sand and gravel pits and 
quarries. CCRs are not known to be used to fill metal mines.
    Secondary Drinking Water Standards are non-enforceable federal 
guidelines regarding cosmetic effects (such as tooth or skin 
discoloration) or aesthetic effects (such as taste, odor, or color) of 
drinking water.
    Special Wastes means any of the following wastes that are managed 
under the modified subtitle C requirements: CCRs destined for disposal.
    Surface Water means all water naturally open to the atmosphere 
(rivers, lakes, reservoirs, ponds, streams, impoundments, seas, 
estuaries, etc.).
    Uniquely associated wastes means low-volume wastes other than those 
defined as CCRs that are related to the coal combustion process. 
Examples of uniquely associated wastes are precipitation runoff from 
coal storage piles at the electric utility, waste coal or coal mill 
rejects that are not of sufficient quality to burn as a fuel, and 
wastes from cleaning boilers used to generate steam.

CCPs Coal Combustion Products
CCRs Coal Combustion Residuals
CFR Code of Federal Regulations
CERCLA Comprehensive Environmental Response, Compensation, and 
Liability Act
EPA U.S. Environmental Protection Agency
EPCRA Emergency Planning and Community Right-to-Know Act
MCL Maximum Contaminant Level
m/L milligrams per liter
NPDES National Pollutant Discharge Elimination System
NRC National Response Center
PDWS Primary Drinking Water Standard
OSM Office of Surface Mining Reclamation and Enforcement, U.S. 
Department of the Interior
RCRA Resource Conservation and Recovery Act (42 USCA 6901)
RQ Reportable Quantity
SDWS Secondary Drinking Water Standard
SMCRA Surface Mining Control and Reclamation Act
[mu]g/L micrograms per liter
WQC Federal water quality criteria

D. The Contents of This Preamble Are Listed in the Following Outline

I. Background
    A. Why is EPA proposing two options?
    1. Basis of Why EPA Is Proceeding With Today's Co-Proposals
    2. Brief Description of Today's Co-Proposals
    3. Summary of Estimated Regulatory Costs and Benefits
    B. What is the statutory authority for this action?
    C. Regulation of Wastes Under RCRA Subtitle C
    D. Regulation of Solid Wastes Under RCRA Subtitle D
    E. Summary of the 1993 and 2000 Regulatory Determinations
    F. What are CCRs?
    1. Chemical Constituents in CCRs
    2. Recent EPA Research on Constituent Leaching From CCRs
    G. Current Federal Regulations or Standards Applicable to the 
Placement of CCRs in Landfills and Surface Impoundments
II. New Information on the Placement of CCRs in Landfills and 
Surface Impoundments
    A. New Developments Since the May 2000 Regulatory Determination
    B. CCR Risk Assessment
    C. Damage Cases
III. Overview and Summary of the Bevill Regulatory Determination and 
the Proposed Subtitle C and Subtitle D Regulatory Options
    A. Summary of Subtitle C Proposal
    B. Summary of Subtitle D Proposal
IV. Bevill Regulatory Determination Relating to CCRs From Electric 
Utilities
    A. Basis for Reconsideration of May 2000 Regulatory 
Determination
    B. RCRA Section 8002(n) Study Factors Environmental Benefits
    C. Preliminary Bevill Conclusions and Impact of Reconsideration
    D. EPA Is Not Reconsidering the Regulatory Determination 
Regarding Beneficial Use
    1. Why is EPA not proposing to change the determination that 
CCRs that are beneficially used do not warrant federal regulation?
    2. What constitutes beneficial use?
    3. Disposal of CCRs in Sand and Gravel Pits and Large Scale Fill 
Operations Is Not Considered a Beneficial Use
    4. Issues Associated With Unencapsulated Beneficial Uses
    E. Placement of CCRs in Minefilling Operations
    F. EPA Is Not Proposing To Revise the Bevill Determination for 
CCRs Generated by Non-Utilities
V. Co-Proposed Listing of CCRs as a Special Waste Under RCRA 
Subtitle C and Special Requirements for Disposal of CCRs Generated 
by Electric Utilities
    A. What is the basis for listing CCRs as a special waste?
    1. Criteria for Listing CCRs as a Special Waste and Background 
on 2010 Risk Assessment
    B. Background on EPA's 2010 Risk Assessment
    1. Human Health Risks
    2. Ecological Risks
    C. Consideration of Individual Listing Criteria
    1. Toxicity--Factor (i)
    2. Concentration of Constituents in Waste--Factor (ii)
    3. Migration, Persistence, Degradation, and Bioaccumulation--
Factors (iii), (iv), (v), and (vi)
    4. Plausible Types of Mismanagement, Quantities of the Waste 
Generated, Nature and Severity of Effects From Mismanagement--
Factors (vii), (viii) and (ix)
    5. Action Taken by Other Governmental Agencies or Regulatory 
Programs Based on the Health or Environmental Hazard Posed by the 
Waste or Waste Constituent--Factor (x)
    6. Other Factors--Factor (xi)
VI. Summary of the Co-Proposed Subtitle C Regulations
    A. Special Waste Listing
    B. Proposed Special Requirements for CCRs

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    1. Modification of Technical Standards Under 3004(x)
    i. Modification of CCR Landfills and Surface Impoundments From 
the Section 3004(o) Liner and Leak Detection Requirements
    ii. Fugitive Dust Controls
    iii. Special Requirements for Stability of CCR Surface 
Impoundments
    iv. Wet-Handling of CCRs, Closure, and Interim Status for 
Surface Impoundments
    v. Proposed Land Disposal Restrictions
    2. Proposed Treatment Standards for Non-Wastewaters (Dry CCRs)
    3. Proposed Treatment Standards for Wastewaters (Wet-Handled 
CCRs)
    4. Effective Date of the LDR Prohibitions
    C. Applicability of Subtitle C Regulations
    D. CERCLA Designation and Reportable Quantities
    1. Reporting Requirements
    2. Basis for RQs and Adjustments
    3. Application of the CERCLA Mixture Rule to Listed CCR
    4. Correction of Table of Maximum Observed Constituent 
Concentrations Identified by EPA
    E. Listing of CCR as Special Wastes To Address Perceived Stigma 
Issue
VII. How would the proposed subtitle C requirements be implemented?
    A. Effective Dates
    B. What are the requirements with which facilities must comply?
    1. Generators and Transporters
    2. Treatment, Storage, and Disposal Facilities (TSDs)
    C. RCRA Section 3010 Notification
    D. Permit Requirements
    1. Facilities Newly Subject to RCRA Permit Requirements
    2. Existing Interim Status Facilities
    3. Permitted Facilities
    E. Requirements in 40 CFR Parts 264 and 265
VIII. Impacts of a Subtitle C Rule on State Authorization
    A. Applicability of the Rule in Authorized States
    B. Effect on State Authorization
IX. Summary of the Co-Proposal Regulating CCRs Under Subtitle D 
Regulations
    A. Overview and General Issues
    1. Regulatory Approach
    2. Notifications
    B. Section-by-Section Discussion of RCRA Subtitle D Criteria
    1. Proposed Modifications to Part 257, Subpart A
    2. General Provisions
    3. Definitions
    4. Location Restrictions
    5. Design Requirements
    6. Operating Requirements
    7. Ground Water Monitoring/Corrective Action
    8. Closure and Post-Closure Care
    9. Financial Assurance
    10. Off-Site Disposal
    11. Alternative RCRA Subtitle D Approaches
X. How would the proposed subtitle D regulations be implemented?
    A. Effective Dates
    B. Implementation and Enforcement of Subtitle D Requirements
XI. Impact of a Subtitle D Regulation on State Programs
XII. Impacts of the Proposed Regulatory Alternatives
    A. What are the economic impacts of the proposed regulatory 
alternatives?
    B. Benefits Not Quantified in the RIA
    1. Non-Quantified Plant and Wildlife Protection Benefits
    2. Non-Quantified Surface Water Protection Benefits
    3. Non-Quantified Ambient Air Protection Benefits
    C. Comparison of Costs to Benefits for the Regulatory 
Alternatives
    D. What are the potential environmental and public health 
impacts of the proposed regulatory alternatives?
    1. Environmental and Public Health Impacts Estimated in the RIA
    2. Environmental and Public Health Impacts Not Estimated in the 
RIA
XIII. Other Alternatives EPA Considered
XIV. Is the EPA soliciting comments on specific issues?
XV. Executive Orders and Laws Addressed in This Action
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
APPENDIX to the Preamble: Documented Damages From CCR Management 
Practices

I. Background

A. Why is EPA proposing two options?

1. Basis of Why EPA Is Proceeding With Today's Co-Proposals
    EPA is revisiting its regulatory determination for CCRs under the 
Bevill amendment. This decision is driven in part by the failure of a 
surface impoundment retaining wall in Kingston, TN in December 2009. 
Deciding upon the appropriate course of action to address over 100 
million tons per year of CCRs is an extremely important step. In 
developing this proposal, EPA conducted considerable data gathering and 
analysis. While the public was able to comment on significant portions 
of our analyses in August 2007, as part of a Notice of Data 
Availability, there are differing views regarding the meaning of EPA's 
information and what course of action EPA should take. In part, the 
differing views are fueled by the complex data, analyses, legislation, 
implications of available options, possible unintended consequences, 
and a decision process, all of which pose considerations that could 
justify EPA selecting a RCRA subtitle C approach or selecting a RCRA 
subtitle D approach.
    Deciding whether or not to maintain the Bevill exemption for CCRs, 
entails an evaluation of the eight RCRA Section 8002(n) study factors:
     Source and volumes of CCRs generated per year
     Present disposal and utilization practices
     Potential danger, if any, to human health and the 
environment from the disposal and reuse of CCRs
     Documented cases in which danger to human health or the 
environment from surface runoff or leachate has been proved
     Alternatives to current disposal methods
     The cost of such alternatives
     The impact of the alternatives on the use of coal and 
other natural resources
     The current and potential utilization of CCRs

Ultimately, the approach selected will need to ensure that catastrophic 
releases such as occurred at the Tennessee Valley Authority's (TVA's) 
Kingston, Tennessee facility do not occur and that other types of 
damage cases associated with CCR surface impoundments and landfills are 
prevented. Thus, this process requires EPA to balance the eight 
factors, which ultimately rests on a policy judgment. This is further 
complicated in this case because the facts identified under each of the 
individual factors are even subject to widely varying perspectives. For 
example, in considering the alternatives to current disposal methods, 
some claim that RCRA subtitle C would significantly lessen beneficial 
use while others see beneficial use expanding as disposal becomes more 
costly; some see damage cases as substantial, while others note very 
few incidences of significant off-site contamination.
    Given the inherently discretionary nature of the decision, the 
complexities of the scientific analyses, and the controversy of the 
issue, EPA wants to ensure that the ultimate decision is based on the 
best available data, and is taken with the fullest possible extent of 
public input. As discussed in section IV in greater detail, there are a 
number of issues on which additional or more recent information would 
be useful in

[[Page 35133]]

allowing the Agency to reach a final decision. In the absence of this 
information, EPA has not yet reached a conclusion as to how to strike 
the appropriate balance among these eight factors and so is presenting 
two proposals for federal regulation of CCRs.
    As EPA weighs the eight Bevill study factors to reach our ultimate 
decision, EPA will be guided by the following principles, which are 
reflected in the discussions throughout this preamble. The first is 
that EPA's actions must ultimately be protective of human health and 
the environment. Second, any decision must be based on sound science. 
Finally, in conducting this rulemaking, EPA wants to ensure that our 
decision processes are transparent and encourage the greatest degree of 
public participation. Consequently, to further the public's 
understanding and ability to comment on all the issues facing the 
Agency, within this proposal, EPA identifies a series of scientific, 
economic, and materials management issues on which we are seeking 
comment from the public to strengthen our knowledge of the impact of 
EPA's decision.
    There are three key areas of analyses where EPA is seeking comment: 
The extent of existing damage cases, the extent of the risks posed by 
the mismanagement of CCRs, and the adequacy of State programs to ensure 
proper management of CCRs (e.g., is groundwater monitoring required of 
CCR landfills and surface impoundments). Since the 2007 NODA, EPA 
received new reports from industry and environmental and citizen groups 
regarding damage cases. Industry provided information indicating that 
many of EPA's listed proven damage cases do not meet EPA's criteria for 
a damage case to be proven. Environmental and citizen groups, on the 
other hand, reported that there are additional damage cases of which 
EPA is unaware. EPA's analysis, as well as the additional information 
from industry and environmental and citizen groups, which is in the 
docket for this proposal, needs to undergo public review, with the end 
result being a better understanding of the nature and number of damage 
cases. In addition, as discussed at length in sections II and IV, a 
number of technical questions have been raised regarding EPA's 
quantitative groundwater risk assessment. The Agency would implement 
similar technical controls under RCRA subtitle C or D. Therefore, a 
central issue is the adequacy of State programs. Under either 
regulatory approach, State programs will have key implementation roles. 
This is a very complex area to evaluate. For example, as EPA reports 
that 36% of the States do not have minimum liner requirements for CCR 
landfills, and 67% do not have liner requirements for CCR surface 
impoundments, we also observe that nearly all new CCR landfills and 
surface impoundments are constructed with liners. It should also be 
recognized that while states currently have considerable expertise in 
their State dam safety programs, those programs do not tend to be part 
of State solid waste or clean water act programs, and so, oversight may 
not be adequately captured in EPA's existing data. In several areas, 
there are these types of analytical tensions that warrant careful 
consideration by the public and EPA. This proposal requests states and 
others to provide further information on state programs, including the 
prevalence of groundwater monitoring at existing facilities (an area 
where our information is nearly 15 years old) and why state programs 
may address groundwater monitoring and risks differently for surface 
impoundments located proximate to rivers.
    The results of the risk analysis demonstrate significant risks from 
surface impoundments. A common industry practice, however, is to place 
surface impoundments right next to water bodies. While the Agency's 
population risk assessment analysis accounted for adjacent water 
bodies, the draft risk assessment that presents individual risk 
estimates does not account for the presence of adjacent water bodies in 
the same manner that the population risk assessment did. EPA is 
requesting public comment on the exact locations of CCR waste 
management units so that the Agency can more fully account for water 
bodies that may exist between a waste management unit and a drinking 
water well (and thus, could potentially intercept a contaminated 
groundwater plume). EPA is also requesting comments on how the risk 
assessment should inform the final decision.
    While the Agency believes the analyses conducted are sound, today's 
co-proposal of two options reflects our commitment to use the public 
process fully to ensure the best available scientific and regulatory 
impact analyses are considered in our decision. The final course of 
action will fully consider these legitimate and complex issues, and 
will result in the selection of a regulatory structure that best 
addresses the eight study factors identified in section 8002(n) of 
RCRA, and ensures protection of human health and the environment.
2. Brief Description of Today's Co-Proposals
a. Summary of Subtitle C Proposal
    In combination with its proposal to reverse the Bevill 
determination for CCRs destined for disposal, EPA is proposing to list 
as a special waste, to be regulated under the RCRA subtitle C 
regulations, CCRs from electric utilities and independent power 
producers when destined for disposal in a landfill or surface 
impoundment. These CCRs would be regulated from the point of their 
generation to the point of their final disposition, including during 
and after closure of any disposal unit. This would include the 
generator and transporter requirements and the requirements for 
facilities managing CCRs, such as siting, liners (with modification), 
run-on and run-off controls, groundwater monitoring, fugitive dust 
controls, financial assurance, corrective action, including facility-
wide corrective action, closure of units, and post-closure care (with 
certain modifications). In addition, facilities that dispose of, treat, 
or, in many cases, store, CCRs also would be required to obtain permits 
for the units in which such materials are disposed, treated, and 
stored. The rule would also regulate the disposal of CCRs in sand and 
gravel pits, quarries, and other large fill operations as a landfill.
    To address the potential for catastrophic releases from surface 
impoundments, we also are proposing requirements for dam safety and 
stability for impoundments that, by the effective date of the final 
rule, have not closed consistent with the requirements. We are also 
proposing land disposal restrictions and treatment standards for CCRs, 
as well as a prohibition on the disposal of treated CCRs below the 
natural water table.
b. Summary of Subtitle D Proposal
    In combination with today's proposal to leave the Bevill 
determination in place, EPA is proposing to regulate CCRs disposed of 
in surface impoundments or landfills under RCRA subtitle D requirements 
which would establish national criteria to ensure the safe disposal of 
CCRs in these units. The units would be subject to, among other things, 
location standards, composite liner requirements (new landfills and 
surface impoundments would require composite liners; existing surface 
impoundments without liners would have to retrofit within five years, 
or cease receiving CCRs and close); groundwater monitoring and 
corrective action standards for releases from the unit; closure and 
post-closure care

[[Page 35134]]

requirements; and requirements to address the stability of surface 
impoundments. We are also soliciting comments on requiring financial 
assurance. The rule would also regulate the disposal of CCRs in sand 
and gravel pits, quarries, and other large fill operations as a 
landfill. The rule would not regulate the generation, storage or 
treatment of CCRs prior to disposal. Because of the scope of subtitle D 
authority, the rule would not require permits, nor could EPA enforce 
the requirements. Instead, states or citizens could enforce the 
requirements under RCRA citizen suit authority; the states could also 
enforce any state regulation under their independent state enforcement 
authority.
    EPA is also considering a potential modification to the subtitle D 
option, called ``D prime'' in the following table. Under this option, 
existing surface impoundments would not have to close or install 
composite liners but could continue to operate for their useful life. 
In the ``D prime'' option, the other elements of the subtitle D option 
would remain the same.
3. Summary of Estimated Regulatory Costs and Benefits
    For the purposes of comparing the estimated regulatory compliance 
costs to the monetized benefits for each regulatory option, the 
Regulatory Impact Analysis (RIA) computed two comparison indicators: 
Net benefits (i.e., benefits minus costs), and benefit/cost ratio 
(i.e., benefits divided by costs). Table 1 below provides a summary of 
estimated regulatory costs and benefits for three regulatory options, 
based on the 7% discount rate base case and the 50-year period-of-
analysis applied in the RIA. Furthermore, this benefit and cost summary 
table displays ranges of net benefit and benefit/cost results across 
three different scenarios concerning the potential impacts of each 
option on the future annual beneficial use of CCRs under each option. 
The first scenario presents the potential impact scenario that assumes 
that the increased future annual cost of RCRA-regulated CCR disposal 
will induce coal-fired electric utility plants to increase beneficial 
use of CCRs. The second scenario presents a potential market stigma 
effect under the subtitle C option which will induce a decrease in 
future annual CCR beneficial use. The third scenario assumed that 
beneficial use of CCRs continues according to its recent trend line 
without any future change as a result of any of the regulatory options. 
The RIA estimates both the first and second scenario incrementally in 
relation to the third scenario no change trend line. Table 1 shows the 
range of impacts and associated ranges of net benefits and benefit-cost 
ratios across these three beneficial use scenarios for each regulatory 
option. While each of these three scenario outcomes may be possible, 
EPA's experience with the RCRA program indicates that industrial 
generators of RCRA-regulated wastes are often able to increase 
recycling and materials recovery rates after a subtitle C regulation. 
Section XII in this preamble provides additional discussion of these 
estimates.

    Table 1--Summary Table Comparison of Regulatory Benefits to Costs--Ranging Over All Three Beneficial Use
                                                    Scenarios
      [$Millions @ 2009$ prices and @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
                                      Subtitle C ``Special
                                            waste''                  Subtitle D           Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
    1. Regulatory Costs:.........  $20,349..................  $8,095..................  $3,259.
    2. Regulatory Benefits:......  $87,221 to $102,191......  $34,964 to $41,761......  $14,111 to $17,501.
    3. Net Benefits (2-1)........  ($251,166) to $81,842....  ($6,927) to $33,666.....  ($2,666) to $14,242.
    4. Benefit/Cost Ratio (2/1)..  (11.343) to 5.022........  0.144 to 5.159..........  0.182 to 5.370.
B. Average Annualized Equivalent
 Values:*
    1. Regulatory Costs..........  $1,474...................  $587....................  $236.
    2. Regulatory Benefits:......  $6,320 to $7,405.........  $2,533 to $3,026........  $1,023 to $1,268.
    3. Net Benefits (2-1)........  ($18,199) to $5,930......  ($502) to $2,439........  ($193) to $1,032.
    4. Benefit/Cost Ratio (2/1)..  (11.347) to 5.022........  0.145 to 5.159..........  0.182 to 5.370.
----------------------------------------------------------------------------------------------------------------
\*\ Note: Average annualized equivalent values calculated by multiplying 50-year present values by a 50-year 7%
  discount rate ``capital recovery factor'' of 0.07246.

B. What is the statutory authority for this action?

    These regulations are being proposed under the authority of 
sections 1008(a), 2002(a), 3001, 3004, 3005, and 4004 of the Solid 
Waste Disposal Act of 1970, as amended by the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6907(a), 6912(a), 6921,6924, 
6925 and 6944. These statutes, combined, are commonly referred to as 
``RCRA.''
    RCRA section 1008(a) authorizes EPA to publish ``suggested 
guidelines for solid waste management.'' 42 U.S.C. 6907(a). Such 
guidelines must provide a technical and economic description of the 
level of performance that can be achieved by available solid waste 
management practices that provide for protection of human health and 
the environment.
    RCRA section 2002 grants EPA broad authority to prescribe, in 
consultation with federal, State, and regional authorities, such 
regulations as are necessary to carry out the functions under federal 
solid waste disposal laws. (42 U.S.C. 6912(a)).
    RCRA section 3001(b) requires EPA to list particular wastes that 
will be subject to the requirements established under subtitle C. (42 
U.S.C. 6921(b)). The regulation listing such wastes must be based on 
the listing criteria established pursuant to section 3001(a), and 
codified at 40 CFR 261.11.
    Section 3001(b)(3)(A) of RCRA established a temporary exemption for 
fly ash waste, bottom ash waste, slag waste, and flue gas emission 
control waste generated primarily from the combustion of coal or other 
fossil fuels, among others, and required the Agency to conduct a study 
of those wastes and, after public hearings and an opportunity for 
comment, determine whether these wastes should be regulated pursuant to 
subtitle C requirements (42 U.S.C. 6921 (b)(3)(A)).
    Section 3004 of RCRA generally requires EPA to establish standards 
applicable to the treatment, storage, and disposal of hazardous waste 
to ensure that human health and the environment are protected. 42 
U.S.C. 6924. Sections

[[Page 35135]]

3004(c) and (d) prohibit free liquids in hazardous waste landfills. 
Sections 3004(g) and (m) prohibit land disposal of hazardous wastes, 
unless, before disposal, those wastes meet treatment standards 
established by EPA that will ``substantially diminish the toxicity of 
the waste or substantially reduce the likelihood of migration of 
hazardous constituents from the waste so that short-term and long-term 
threats are minimized.'' (42 U.S.C. 6924(c), (d), (g), and (m)).
    RCRA section 3004(x) allows the Administrator to tailor certain 
specified requirements for particular categories of wastes, including 
those that are the subject of today's proposal, namely ``fly ash waste, 
bottom ash waste, and flue gas emission control wastes generated 
primarily from the combustion of coal or other fossil fuels'' (42 
U.S.C. 6924(x)). EPA is authorized to modify the requirements of 
sections 3004 (c), (d), (e), (f), (g), (o), and (u), and section 
3005(j), to take into account the special characteristics of the 
wastes, the practical difficulties associated with implementation of 
such requirements, and site-specific characteristics, including but not 
limited to the climate, geology, hydrology and soil chemistry at the 
site. EPA may only make such modifications, provided the modified 
requirements assure protection of human health and the environment. (42 
U.S.C. 6924(x)).
    RCRA section 3005 generally requires any facility that treats, 
stores, or disposes of wastes identified or listed under subtitle C, to 
have a permit. 42 U.S.C. 6925(a). This section also generally imposes 
requirements on facilities that become newly subject to the permitting 
requirements as a result of regulatory changes, and so can continue to 
operate for a period until they obtain a permit--i.e., ``interim status 
facilities.'' 42 U.S.C. 6925(e), (i), (j). Congress imposed special 
requirements on interim status surface impoundments in section 3005(j). 
In order to continue receiving wastes, interim status surface 
impoundments are generally required to retrofit the impoundment within 
4 years, to install a double liner, with a leachate collection system, 
and groundwater monitoring. 42 U.S.C. 6925(j)(6). In addition, wastes 
disposed into interim status surface impoundments must meet the land 
disposal restrictions in EPA's regulations, or the unit must be 
annually dredged. 42 U.S.C. 6925(j)(11).
    RCRA Section 4004 generally requires EPA to promulgate regulations 
containing criteria for determining which facilities shall be 
classified as sanitary landfills (and not open dumps) so that there is 
no reasonable probability of adverse effects on health or the 
environment from disposal of solid wastes at such facilities.

C. Regulation of Wastes Under RCRA Subtitle C

    Solid wastes may become subject to regulation under subtitle C of 
RCRA in one of two ways. A waste may be subject to regulation if it 
exhibits certain hazardous properties, called ``characteristics,'' or 
if EPA has specifically listed the waste as hazardous. See 42 U.S.C. 
6921(a). EPA's regulations in the Code of Federal Regulations (40 CFR) 
define four hazardous waste characteristic properties: Ignitability, 
corrosivity, reactivity, or toxicity (See 40 CFR 261.21-261.24). All 
generators must determine whether or not a waste exhibits any of these 
characteristics by testing the waste, or by using knowledge of the 
process that generated the waste (see Sec.  262.11(c)). While not 
required to sample the waste, generators will be subject to enforcement 
actions if found to be improperly managing wastes that exhibit one or 
more of the characteristics.
    EPA may also conduct a more specific assessment of a waste or 
category of wastes and ``list'' them if they meet the criteria set out 
in 40 CFR 261.11. Under the third criterion, at 40 CFR 261.11(a)(3), a 
waste will be listed if it contains hazardous constituents identified 
in 40 CFR part 261, Appendix VIII, and if, after considering the 
factors noted in this section of the regulations, we ``conclude that 
the waste is capable of posing a substantial present or potential 
hazard to human health or the environment when improperly treated, 
stored, transported, or disposed of, or otherwise managed.'' We place a 
chemical on the list of hazardous constituents on Appendix VIII only if 
scientific studies have shown a chemical has toxic effects on humans or 
other life forms. When listing a waste, we also add the hazardous 
constituents that serve as the basis for listing the waste to 40 CFR 
part 261, Appendix VII.
    The regulations at 40 CFR 261.31 through 261.33 contain the various 
hazardous wastes that EPA has listed to date. Section 261.31 lists 
wastes generated from non-specific sources, known as ``F-wastes,'' that 
are usually generated by various industries or types of facilities, 
such as ``wastewater treatment sludges from electroplating operations'' 
(see EPA Hazardous Waste No. F006). Section 261.32 lists wastes 
generated from specific industry sources, known as ``K-wastes,'' such 
as ``Spent potliners from primary aluminum production'' (see EPA 
Hazardous Waste No. K088). Section 261.33 contains lists of commercial 
chemical products and other materials, known as ``P-wastes'' or ``U-
wastes,'' that become hazardous wastes when they are discarded or 
intended to be discarded.
    As discussed in greater detail later in this proposal, EPA is 
considering whether to codify a listing of CCRs that are disposed of in 
landfills or surface impoundments, in a new section of the regulations, 
as ``Special Wastes.'' EPA is considering creating this new category of 
wastes, in part, to reflect the fact that these wastes would be subject 
to modified regulatory requirements using the authority provided under 
section 3004(x) of RCRA (e.g., the modified CCR landfill and surface 
impoundment liner and leak detection system requirements, the effective 
dates for the land disposal restrictions, and the surface impoundment 
retrofit requirements).
    If a waste exhibits a hazardous characteristic or is listed under 
subtitle C, then it is subject to the requirements of RCRA subtitle C, 
and the implementing regulations found in 40 CFR parts 260 through 268, 
parts 270 to 279, and part 124. These requirements apply to persons who 
generate, transport, treat, store or dispose of such waste and 
establish rules governing every phase of the waste's management from 
its generation to its final disposition and beyond. Facilities that 
treat, store or dispose of hazardous wastes require a permit which 
incorporates all of the design and operating standards established by 
EPA rules, including standards for piles, landfills, and surface 
impoundments. Under RCRA subtitle C requirements, land disposal of 
hazardous waste is prohibited unless the waste is first treated to meet 
the treatment standards (or meets the treatment standards as generated) 
established by EPA that minimize threats to human health and the 
environment posed by the land disposal of the waste, or unless the 
waste is disposed in a unit from which there will be no migration of 
hazardous constituents for as long as the waste remains hazardous. In 
addition, RCRA subtitle C facilities are required to clean up any 
releases of hazardous waste or constituents from solid waste management 
units at the facility, as well as beyond the facility boundary, as 
necessary to protect human health and the environment. RCRA subtitle C 
also requires that permitted facilities demonstrate that they have 
adequate financial resources (i.e., financial assurance) for 
obligations, such as closure, post-closure care, necessary

[[Page 35136]]

clean up, and any liability from facility operations.
    The RCRA subtitle C requirements are generally implemented under 
state programs that EPA has authorized to operate in lieu of the 
federal program, based upon a determination that the state program is 
no less stringent than the federal program. In a state that operates 
under an authorized program, any revisions made to EPA requirements are 
generally effective as part of the federal RCRA program in that state 
only after the state adopts the revised requirement, and EPA authorizes 
the state requirement. The exception applies with respect to 
requirements implementing statutory provisions added to subtitle C by 
the 1984 Hazardous and Solid Waste Amendments to RCRA; such 
requirements are immediately effective in all states, and are enforced 
by EPA.
    All RCRA hazardous wastes are also hazardous substances under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), as defined in section 101(14)(C) of the CERCLA statute. This 
applies to wastes listed in Sec. Sec.  261.31 through 261.33, as well 
as any wastes that exhibits a RCRA hazardous characteristic. Table 
302.4 at 40 CFR 302.4 lists the CERCLA hazardous substances along with 
their reportable quantities (RQs). Anyone spilling or releasing a 
hazardous substance at or above its RQ must report the release to the 
National Response Center, as required in CERCLA Section 103. In 
addition, Section 304 of the Emergency Planning and Community Right-to-
Know Act (EPCRA) requires facilities to report the release of a CERCLA 
hazardous substance at or above its RQ to State and local authorities. 
Today's rule proposes an approach for estimating whether released CCRs 
exceed an RQ. Wastes listed as special wastes will generally be subject 
to the same requirements under RCRA subtitle C and CERCLA as are 
hazardous wastes, although as discussed elsewhere in this preamble, EPA 
is proposing to revise certain requirements under the authority of 
section 3004(x) of RCRA to account for the large volumes and unique 
characteristics of these wastes.

D. Regulation of Solid Wastes Under RCRA Subtitle D

    Solid wastes that are neither a listed and/or characteristic 
hazardous waste are subject to the requirements of RCRA subtitle D. 
Subtitle D of RCRA establishes a framework for Federal, State, and 
local government cooperation in controlling the management of 
nonhazardous solid waste. The federal role in this arrangement is to 
establish the overall regulatory direction, by providing minimum 
nationwide standards for protecting human health and the environment, 
and to providing technical assistance to states for planning and 
developing their own environmentally sound waste management practices. 
The actual planning and direct implementation of solid waste programs 
under RCRA subtitle D, however, remains a state and local function, and 
the act authorizes States to devise programs to deal with State-
specific conditions and needs. That is, EPA has no role in the planning 
and direct implementation of solid waste programs under RCRA subtitle 
D.
    Under the authority of sections 1008(a)(3) and 4004(a) of subtitle 
D of RCRA, EPA first promulgated the Criteria for Classification of 
Solid Waste Disposal Facilities and Practices (40 CFR part 257) on 
September 13, 1979. These subtitle D Criteria establish minimum 
national performance standards necessary to ensure that ``no reasonable 
probability of adverse effects on health or the environment'' will 
result from solid waste disposal facilities or practices. Practices not 
complying with the criteria constitute ``open dumping'' for purposes of 
the Federal prohibition on open dumping in section 4005(a). EPA does 
not have the authority to enforce the prohibition directly (except in 
situations involving the disposal or handling of sludge from publicly-
owned treatment works, where Federal enforcement of POTW sludge-
handling facilities is authorized under the CWA). States and citizens 
may enforce the prohibition on open dumping using the authority under 
RCRA section 7002. EPA, however, may act only if the handling, storage, 
treatment, transportation, or disposal of such wastes may present an 
imminent and substantial endangerment to health or the environment 
(RCRA 7003). In addition, the prohibition may be enforced by States and 
other persons under section 7002 of RCRA.
    In contrast to subtitle C, RCRA subtitle D requirements relate only 
to the disposal of the solid waste, and EPA does not have the authority 
to establish requirements governing the generation, transportation, 
storage, or treatment of such wastes prior to disposal. Moreover, EPA 
would not have administrativ