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May 22, 2000

Part III

EnvironmentalProtection Agency40 CFR Part 261Regulatory Determination on Wastes fromthe Combustion of Fossil Fuels; FinalRule

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32214 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Part 261

[FRL–6588–1]

RIN 2050–AD91

Notice of Regulatory Determination onWastes From the Combustion of FossilFuels

AGENCY: Environmental ProtectionAgency.ACTION: Regulatory determination.

SUMMARY: This document explainsEPA’s determination of whetherregulation of fossil fuel combustionwastes is warranted under subtitle C ofthe Resource Conservation andRecovery Act (RCRA). Today’s actionapplies to all remaining fossil fuelcombustion wastes other than highvolume coal combustion wastesgenerated at electric utilities andindependent power producing facilitiesand managed separately, which wereaddressed by a 1993 regulatorydetermination. These include: Large-volume coal combustion wastesgenerated at electric utility andindependent power producing facilitiesthat are co-managed together withcertain other coal combustion wastes;coal combustion wastes generated bynon-utilities; coal combustion wastesgenerated at facilities with fluidized bedcombustion technology; petroleum cokecombustion wastes; wastes from thecombustion of mixtures of coal andother fuels (i.e., co-burning); wastesfrom the combustion of oil; and wastesfrom the combustion of natural gas.

The Agency has concluded thesewastes do not warrant regulation undersubtitle C of RCRA and is retaining thehazardous waste exemption underRCRA section 3001(b)(3)(C). However,EPA has also determined nationalregulations under subtitle D of RCRAare warranted for coal combustionwastes when they are disposed inlandfills or surface impoundments, andthat regulations under subtitle D ofRCRA (and/or possibly modifications toexisting regulations established underauthority of the Surface Mining Controland Reclamation Act (SMCRA)) arewarranted when these wastes are usedto fill surface or underground mines.

So that coal combustion wastes areconsistently regulated across all wastemanagement scenarios, the Agency alsointends to make these nationalregulations for disposal in surfaceimpoundments and landfills andminefilling applicable to coalcombustion wastes generated at electric

utility and independent powerproducing facilities that are not co-managed with low volume wastes,.

The Agency has concluded that noadditional regulations are warranted forcoal combustion wastes that are usedbeneficially (other than for minefilling)and for oil and gas combustion wastes.We do not wish to place anyunnecessary barriers on the beneficialuse of fossil fuel combustion wastes sothat they can be used in applicationsthat conserve natural resources andreduce disposal costs. Currently, aboutone-quarter of all coal combustionwastes are diverted to beneficial uses.We support increases in these beneficialuses, such as for additions to cementand concrete products, wastestabilization and use in constructionproducts such as wallboard.DATES: Comments in response to dataand information requests in thisdocument are due to EPA on September19, 2000.ADDRESSES: Public comments andsupporting materials are available forviewing in the RCRA Information Center(RIC). In addition to the data andinformation that was included in thedocket to support the RTC on FFC wasteand the Technical BackgroundDocuments, the docket also includes thefollowing document: Responses toPublic Comments on the Report ToCongress, Wastes from the Combustionof Fossil Fuels. The RIC is located atCrystal Gateway I, First Floor, 1235Jefferson Davis Highway, Arlington, VA.The Docket Identification Number is F–2000–FF2F–FFFFF. The RIC is openfrom 9 a.m. to 4 p.m., Monday throughFriday, excluding federal holidays. Toreview docket materials, we recommendthat the public make an appointment bycalling 703 603–9230. The public maycopy a maximum of 100 pages from anyregulatory docket at no charge.Additional copies cost $0.15/page. Theindex and some supporting materialsare available electronically. See theSUPPLEMENTARY INFORMATION section forinformation on accessing them.

Commenters must send an originaland two copies of their commentsreferencing docket number F–2000–FF2F–FFFFF to: (1) If using regular USPostal Service mail: RCRA DocketInformation Center, Office of SolidWaste (5305G), U.S. EnvironmentalProtection Agency Headquarters (EPA,HQ), Ariel Rios Building, 1200Pennsylvania Avenue, NW.,Washington, DC 20460–0002; or (2) ifusing special delivery, such as overnightexpress service: RCRA DocketInformation Center (RIC), CrystalGateway One, 1235 Jefferson Davis

Highway, First Floor, Arlington, VA22202. Comments may also besubmitted electronically through theInternet to: [email protected] in electronic format shouldalso be identified by the docket numberF–2000–FF2F–FFFFF and must besubmitted as an ASCII file avoiding theuse of special characters and any formof encryption.

Commenters should not submitelectronically any confidential businessinformation (CBI). An original and twocopies of CBI must be submitted underseparate cover to: RCRA CBI DocumentControl Officer, Office of Solid Waste(5305W), U.S. EPA, Ariel Rios Building,1200 Pennsylvania Avenue, NW.,Washington, DC 20460–0002.FOR FURTHER INFORMATION CONTACT: Forgeneral information, contact the RCRAHotline at 800 424–9346 or TDD 800553–7672 (hearing impaired). In theWashington, DC, metropolitan area, call703 412–9810 or TDD 703 412–3323.

For more detailed information onspecific aspects of this regulatorydetermination, contact Dennis Ruddy,Office of Solid Waste (5306W), U.S.Environmental Protection Agency, ArielRios Building, 1200 PennsylvaniaAvenue, NW, Washington, DC 20460–0002, telephone (703) 308–8430, e-mailaddress [email protected] INFORMATION: The indexand several of the primary supportingmaterials are available on the Internet.You can find these materials at <http://www.epa.gov/epaoswer/other/fossil/index.htm.

The official record for this action willbe kept in paper form. Accordingly, EPAwill transfer all comments receivedelectronically into paper form and placethem in the official record, which willalso include all comments submitteddirectly in writing. The official record isthe paper record maintained at theaddress in ADDRESSES at the beginningof this notice.

EPA will not immediately reply tocommenters electronically other than toseek clarification of electroniccomments that may be garbled intransmission or during conversion topaper form, as discussed above.

The contents of today’s notice arelisted in the following outline:1. General Information

A. What action is EPA taking today?B. What is the statutory authority for this

action?C. What was the process EPA used in

making today’s decision?D. What is the significance of ‘‘uniquely

associated wastes’’ and what wastes doesEPA consider to be uniquely associatedwastes?


32215Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

E. Who is affected by today’s action andhow are they affected?

F. What additional actions will EPA takeafter this regulatory determination regardingcoal, oil and natural gas combustion wastes?

2. What Is the Basis for EPA’s RegulatoryDetermination for Coal Combustion Wastes?

A. What is the Agency’s decision regardingthe regulatory status of coal combustionwastes and why did EPA make that decision?

B. What were EPA’s tentative decisions aspresented in the Report to Congress?

C. How did commenters react to EPA’stentative decisions and what was EPA’sanalysis of their comments?

D. What is the basis for today’s decisions?E. What approach will EPA take in

developing national regulations?

3. What Is the Basis for EPA’s RegulatoryDetermination for Oil Combustion Wastes?

A. What is the Agency’s decision regardingthe regulatory status of oil combustion wastesand why did EPA make that decision?

B. What were EPA’s tentative decisions aspresented in the Report to Congress?

C. How did commenters react to EPA’stentative decisions and what was EPA’sanalysis of their comments?

D. What is the basis for today’s decisions?

4. What Is the Basis for EPA’s RegulatoryDetermination for Natural Gas CombustionWastes?

A. What is the Agency’s decision regardingthe regulatory status of natural gascombustion wastes and why did EPA makethat decision?

B. What was EPA’s tentative decision aspresented in the Report to Congress?

C. How did commenters react to EPA’stentative decisions?

D. What is the basis for today’s decisions?

5. What Is the History of EPA’s RegulatoryDeterminations for Fossil Fuel CombustionWastes?

A. On what basis is EPA required to makeregulatory decisions regarding the regulatorystatus of fossil fuel combustion wastes?

B. What was EPA’s general approach inmaking these regulatory determinations?

C. What happened when EPA failed toissue its determination of the regulatorystatus of the large volume utility combustionwastes in a timely manner?

D. When was the Part 1 regulatory decisionmade and what were EPA’s findings?

6. Executive Orders and Laws Addressed inToday’s Action

A. Executive Order 12866—Determinationof Significance.

B. Regulatory Flexibility Act, as amended.C. Paperwork Reduction Act (Information

Collection Requests).D. Unfunded Mandates Reform Act.E. Executive Order 13132: Federalism.

F. Executive Order 13084: Consultationand Coordination with Indian TribalGovernments.

G. Executive Order 13045: Protection ofChildren from Environmental Health Risksand Safety Risks.

H. National Technology Transfer andAdvancement Act of 1995.

I. Executive Order 12898: EnvironmentalJustice.

J. Congressional Review Act.

7. How To Obtain more Information

1. General Information

A. What Action Is EPA Taking Today?

In today’s action, we are determiningthat regulation of fossil fuel combustion(FFC) wastes under subtitle C of theResource Conservation and RecoveryAct (RCRA) is not warranted. Thisdetermination covers the followingwastes:

• Large-volume coal combustionwastes generated at electric utility andindependent power producing facilitiesthat are co-managed together withcertain other coal combustion wastes;

• Coal combustion wastes generatedat non-utilities;

• Coal combustion wastes generatedat facilities with fluidized bedcombustion technology;

• Petroleum coke combustion wastes;• Wastes from the combustion of

mixtures of coal and other fuels (i.e., co-burning of coal with other fuels wherecoal is at least 50% of the total fuel);• Wastes from the combustion of oil;and

• Wastes from the combustion ofnatural gas.

While these wastes remain exemptfrom subtitle C, we have further decidedto establish national regulations undersubtitle D of RCRA (RCRA sections1008(a) and 4004(a)) for coalcombustion wastes that are disposed inlandfills or surface impoundments orused to fill surface or undergroundmines. For coal combustion wastes usedas minefill, we will consult with theOffice of Surface Mining in theDepartment of the Interior andthoroughly assess whether equivalentprotectiveness could be achieved byusing regulatory authorities availableunder the Surface Mining Control andReclamation Act (SMCRA), as well asthose afforded under the ResourceConservation and Recovery Act. We willconsider whether RCRA subtitle D orSMCRA authorities or somecombination of both are most

appropriate to regulate the disposal ofcoal combustion wastes when used forminefill in surface and undergroundmines to ensure protection of humanhealth and the environment. Thesestandards will be developed throughnotice and comment rulemaking and inconsultation with states and otherstakeholders. These regulations will, inEPA’s view, ensure that the trendtowards improved management of coalcombustion wastes over recent yearswill accelerate and will ensure aconsistent level of protection of humanhealth and the environment is put inplace across the United States.

If, as a result of comments in responseto this notice; the forthcoming analysesidentified in this notice; or additionalinformation garnered in the course ofdeveloping these national regulations;we find that there is a need forregulation under the authority of RCRAsubtitle C, the Agency will revise thisdetermination accordingly.

We recognize our decision to developregulations under RCRA subtitle D (or,for minefilling, possibly under SMCRA)for the above-listed coal combustionwastes was not specifically identified asan option in our March 31, 1999 Reportto Congress. Our final determinationreflects our consideration of publiccomments received on the Report toCongress and other analyses that weconducted.

Today’s decision was, in the Agency’sview, a difficult one, given the manycompeting considerations discussedthroughout today’s notice. Afterconsidering all of the factors specifiedin RCRA section 8002(n), we havedecided as discussed further below, thatthe decisive factors are the trends inpresent disposal and utilizationpractices (section 8002 (n)(2)), thecurrent and potential utilization of thewastes (Section 8002 (n)(8), and theadmonition against duplication ofefforts by other federal and stateagencies.

As described in the Report toCongress, the utility industry has madesignificant improvements in its wastemanagement practices over recent years,and most state regulatory programs aresimilarly improving. For example, in theutility industry the use of liners andgroundwater monitoring at landfills andsurface impoundments has increasedsubstantially over the past 15 years asindicated in the following table.



PERCENT OF UTILITY COAL COMBUSTION WASTE MANAGEMENT UNITS WITH CONTROLS IN 1995

Waste management unit

Liners Groundwater monitoring

Percent ofall units

Percent ofnew units *

Percent ofall units

Percent ofnew units *

Landfills ............................................................................................................................ 57 75 85 88Surface Impoundments .................................................................................................... 26 60 38 65

* New units constructed between 1985–1995.Source: USWAG, EPRI 1995.

Public comments and other analyses,however, have convinced us that thesewastes could pose risks to human healthand the environment if not properlymanaged, and there is sufficientevidence that adequate controls may notbe in place—for example, while moststates can now require newer units toinclude liners and groundwatermonitoring, 62% of existing utilitysurface impoundments do not havegroundwater monitoring. This, in ourview, justifies the development ofnational regulations. We note, however,that some waste management units maynot warrant liners and/or groundwatermonitoring, depending on site-specificcharacteristics.

New information we received inpublic comments includes additionaldocumented damage cases, as well ascases indicating at least a potential fordamage to human health and theenvironment. We did not independentlyinvestigate these damage cases; rather,we relied on information contained instate files. While the absolute number ofdocumented damage cases is not large,we have considered the evidence ofproven and potential damage in light ofthe proportion of facilities that lackbasic environmental controls (e.g.,groundwater monitoring). Weacknowledge, moreover, that ourinquiry into the existence of damagecases was focused primarily on a subsetof states—albeit states that account foralmost 20 percent of coal fired utilityelectricity generation capacity. Giventhe volume of coal combustion wastesgenerated nationwide (115 million tons)and the numbers of facilities thatcurrently lack some basic environmentalcontrols, especially groundwatermonitoring, other cases of proven andpotential damage are likely to exist.Because EPA did not use a statisticalsampling methodology to evaluate thepotential for damage, the Agency isunable to determine whether theidentified cases are representative of theconditions at all facilities and, therefore,cannot quantify the extent andmagnitude of damages at the nationallevel.

Since the Report to Congress, we haveconducted additional analyses of thepotential for the constituents of coalcombustion wastes to leach indangerous levels into ground water.Based on a comparison of drinkingwater and other appropriate standardsto leach test data from coal combustionwaste samples, we identified a potentialfor risks from arsenic that we cannotdismiss at this time. This conclusion isbased on possible exceedences of arange of values that EPA is currentlyconsidering for a revised arsenic MCL.Once a new arsenic MCL is established,additional groundwater modeling maybe required to evaluate the likelihood ofexceeding that MCL.

As discussed further below, in light ofcertain comments received on theReport to Congress, we are not relyingon a quantitative groundwater riskassessment to assess potential risks tohuman health or the environment. Inthe absence of a more completegroundwater risk assessment, we areunable at this time to draw quantitativeconclusions regarding the risks due toarsenic or other contaminants posed byimproper waste management. Once wehave completed a review of ourgroundwater model and made anynecessary changes, we will reevaluategroundwater risks and take appropriateregulatory actions. We will specificallyassess new modeling results as theyrelate to any promulgated changes in thearsenic MCL.

We acknowledge that, even withoutfederal regulatory action, many facilitiesin the utility industry have eithervoluntarily instituted adequateenvironmental controls or have done soat the direction of states that regulatethese facilities. In addition, we foundthat for the proven damage cases, thestates (and in two cases, EPA under theSuperfund program) have taken actionto mitigate risk and require correctiveaction. However, in light of the evidenceof actual and potential environmentalreleases of metals from these wastes; thelarge volume of wastes generated fromcoal combustion; the proportion ofexisting and even newer units that donot currently have basic controls in

place; and the presence of hazardousconstituents in these wastes; we believe,on balance, that the best means ofensuring that adequate controls areimposed where needed is to developnational subtitle D regulations. As wedevelop and issue the nationalregulations, we will try to minimizedisruptions to operation of existingwaste management units.

In taking today’s action, we carefullyconsidered whether to develop nationalregulations under RCRA subtitle D orsubtitle C authorities. One approach weconsidered was to promulgateregulations pursuant to subtitle Cauthority, similar to recently proposedregulations applicable to cement kilndust. Under this approach, EPA wouldhave established national managementstandards for coal combustion wastesmanaged in landfills and surfaceimpoundments and used for minefilling,as well as a set of tailored subtitle Crequirements, promulgated pursuant toRCRA section 3004(x). If wastes wereproperly managed in accordance withsubtitle D-like standards, they wouldnot be classified as a hazardous waste.If wastes were not properly managed,they would become listed hazardouswastes subject to tailored subtitle Cstandards. This approach would giveEPA enforcement authority in statesfollowing their adoption of thecontingent management listing.

We believe, however, for the reasonsdescribed below, the better approach atthis time to ensuring adequatemanagement of FFC wastes is to developnational regulations under subtitle Drather than subtitle C. EPA has reachedthis conclusion in large part based onconsideration of ‘‘present disposal andutilization practices.’’ RCRA § 8002(n).As noted above, present disposalpractices in landfills and surfaceimpoundments are significantly betterthan they have been in the past in termsof imposing basic environmentalcontrols such as liners and groundwatermonitoring. This trend is the result ofincreasing regulatory oversight by statesof the management of these wastes aswell as voluntary industryimprovements. In the 1980’s, only 11



states had authority to require facilitiesto install liners, and 28 states had theauthority to require facilities to conductgroundwater monitoring at landfills. Asof 1995, these rates were significantlyhigher, with 43 states having theauthority to require liners and 46 stateshaving the authority to requiregroundwater monitoring at landfills.When authority under stategroundwater and drinking waterregulations are considered, somecommenters have suggested that nearlyall states can address the management ofthese wastes. Thus, with the exceptionof relatively few states, the regulatoryinfrastructure is generally in place at thestate level to ensure adequatemanagement of these wastes.

While the trend both in terms of stateregulatory authorities and theimposition of controls at these facilitieshas been positive, between 40 and 70percent of sites lacked controls such asliners and/or groundwater monitoring asof 1995. This gap is of environmentalconcern given the potential for risksposed by mismanagement of coalcombustion wastes in certaincircumstances. Nonetheless, given mostof the states’ current regulatorycapabilities and the evidence that basiccontrols are increasingly being put inplace by the states and facilities (seeRCRA section 8002(n), which directsEPA to consider actions of state andother federal agencies with a view toavoiding duplication of effort), EPAbelieves that subtitle D controls willprovide sufficient clarity and incentivefor states to close the remaining gaps incoverage, and for facilities to ensure thattheir wastes are managed properly.

For minefilling, although we haveconsiderable concern about certaincurrent practices (e.g., placementdirectly into groundwater) we have notyet identified a case where placement ofcoal wastes can be determined to haveactually caused increased damage toground water. In addition, there is afederal regulatory program—SMCRA—expressly designed to addressenvironmental risks associated withcoal mines. Finally, given that stateshave been diligent in expanding andupgrading programs, as they have donefor surface impoundments and landfills,we believe they will be similarlyresponsive in addressing environmentalconcerns arising from this emergingpractice. In short, we arrive at the sameconclusions, for substantially the samereasons, for this practice as we did forlandfills and surface impoundments:that subtitle D controls, or upgradedSMCRA controls or a combination of thetwo, should provide sufficient clarityand incentive to ensure proper handling

of this waste. Having determined thatsubtitle C regulation is not warranted forall other management practices, EPAdoes not see a basis in the record forcarving this one practice out for separateregulatory treatment.

Once these regulations are effective,facilities would be subject to citizensuits for any violation of the standards.If EPA were addressing wastes that hadnot been addressed by the states (or thefederal government) in the past, or anindustry with wide evidence ofirresponsible solid waste managementpractices, EPA may well conclude thatthe additional incentives forimprovement and compliance providedby the subtitle C scheme—the threat offederal enforcement and the stigmaassociated with improper managementof RCRA subtitle C waste—werenecessary. But the record before usindicates that the structure and thesanctions associated with a subtitle Dapproach (or a SMCRA approach if EPAdetermines it is equivalent) should besufficient.

We also see a potential downside topursuing a subtitle C approach. Section8002(n)(8) directs us to consider, amongother factors, ‘‘the current and potentialutilization of such materials.’’ Industrycommenters have indicated that theybelieve subjecting any coal combustionwastes to a subtitle C regime wouldplace a significant stigma on thesewastes, the most important effect beingthat it would adversely impactbeneficial reuse. As we understand it,the concern is that, even thoughbeneficially reused waste would not behazardous under the contemplatedsubtitle C approach, the link to subtitleC would nonetheless tend to discouragepurchase and re-use of the waste. We donot wish to place any unnecessarybarriers on the beneficial uses of thesewastes, because they conserve naturalresources, reduce disposal costs andreduce the total amount of wastedestined for disposal. States andindustry have also expressed concernthat regulation under subtitle C couldcause a halt in the use of coalcombustion wastes to reclaimabandoned and active mine sites. Werecognize that when done properly,minefilling can lead to substantialenvironmental benefits. EPA believesthe contingent management scheme wediscussed should diminish any stigmathat might be associated with thesubtitle C link. Nonetheless, weacknowledge the possibility that theapproach could have unintendedconsequences. We would be particularlyconcerned about any adverse effect onthe beneficial re-use market for thesewastes because more than 23 percent

(approximately 28 million tons) of thetotal coal combustion waste generatedeach year is beneficially reused and anadditional eight percent (nine milliontons) is used for minefilling. EPAbelieves that such reuse whenperformed properly, is by far theenvironmentally preferable destinationfor these wastes, including whenminefilled. Normally, concerns aboutstigma are not a deciding factor in EPA’sdecisions under RCRA, given the centralconcern under the statute for protectionof human health and the environment.However, given our conclusion that thesubtitle D approach here should be fullyeffective in protecting human healthand the environment, and given thelarge and salutary role that beneficialreuse plays for this waste, concern overstigma is a factor supporting ourdecision today that subtitle C regulationis unwarranted in light of our decisionto pursue a subtitle D approach.

Additionally, in a 1993 regulatorydetermination, EPA previouslyaddressed large volume coal combustionwastes generated at electric utility andindependent power producing facilitiesthat manage the wastes separately fromcertain other low volume and uniquelyassociated coal combustion wastes (see58 FR 42466; August 9, 1993). Our 1993regulatory determination maintained theexemption of these large volume coalcombustion wastes from being regulatedas hazardous wastes when managedseparately from other wastes (e.g., inmonofills). We intend that the nationalsubtitle D regulations we develop for thecoal combustion wastes subject totoday’s regulatory determination willalso be applicable to the wastes coveredin the 1993 regulatory determination forthe reasons listed below, so that all coalcombustion wastes are consistentlyregulated for placement in landfills,surface impoundments, and minefills.

• The co-managed coal combustionwastes that we studied extensively inmaking today’s regulatory determinationderive their characteristics largely fromthese large-volume wastes and not fromthe other wastes that are co-managedwith them.

• We believe that the risks posed bythe co-managed coal combustion wastesresult principally from the large-volumewastes.

• These large-volume coalcombustion wastes, account for over20% of coal combustion wastes.

As we proceed with regulationdevelopment, we will also takeenforcement action under RCRA section7003 when we identify cases ofimminent and substantialendangerment. We will also useSuperfund remedial and emergency



1 The consent decree entered into by EPA (FrankGearhart, et al. v. Browner, et al., No. 91–2435(D.D.C.) for completing the studies and regulatorydetermination for fossil fuel combustion wastesused the term ‘‘remaining wastes’’ to differentiatethe wastes to be covered in today’s decision fromthe large-volume utility coal combustion wastesthat were covered in the August 1993 regulatorydetermination (see 58 FR 42466).

response authorities under theComprehensive EnvironmentalResponse Compensation and LiabilitiesAct (CERCLA), as appropriate, toaddress damages that result in risk tohuman health and the environment.

However, as stated above, thisdecision was a difficult one and EPAbelieves that, absent our conclusionsregarding the current trends inmanagement of this waste, the wastemight present sufficient potential threatto human health and the environment tojustify subtitle C regulation. There areseveral factors that might cause us torethink our current determination. First,and perhaps most importantly, ifcurrent trends toward protectivemanagement do not continue, EPA maywell determine that subtitle C regulationis warranted for this waste. As we havestated, we do not believe the currentgaps in the basic controls are acceptable,and our determination that subtitle Cregulation is not warranted is premisedto a large extent on our conclusion thatsubtitle D regulation will be sufficient toclose these gaps. If this conclusion turnsout not to be warranted, we would beinclined to re-examine our currentdecision.

Second, EPA will continue toexamine available information and, as aresult of the ongoing review, mayconclude over the next several monthsthat this decision should be revised. Ourongoing review will includeconsideration of: (1) The extent towhich fossil fuel combustion wasteshave caused actual or potential damageto human health or the environment; (2)the environmental effects of fillingunderground and surface coal mineswith fossil fuel combustion wastes; and(3) the adequacy of existing state and/or federal regulation of these wastes.Finally, the agency will consider theresults of a report of the NationalAcademy of Sciences regarding theadverse human health effects ofmercury, one of the constituents infossil fuel combustion wastes. EPAbelieves that this report will enhanceour understanding of the risks due toexposure to mercury. All of these effortsmay result in a subsequent revision oftoday’s regulatory determination.

Finally, relating to oil combustionwastes, we will work with relevantstakeholders so that any necessarymeasures are taken to ensure that oilcombustion wastes currently managedin the two known remaining unlinedsurface impoundments are managed ina manner that protects human healthand the environment.

B. What Is the Statutory Authority forThis Action?

We are issuing today’s notice underthe authority of RCRA section 3001 (b)(3) (C), as amended. This sectionexempts certain wastes, including fossilfuel combustion wastes, from hazardouswaste regulation until the Agencycompletes a Report to Congressmandated by RCRA section 8002 (n) andmaintains the exemption, unless theEPA Administrator makes adetermination that subtitle C (hazardouswaste) regulation is warranted. RCRAsection 3004 (x) provides the Agencywith flexibility in developing subtitle Cstandards. If appropriate, these formerlyexempted wastes may not be subjectedto full subtitle C requirements in areassuch as treatment standards, linerdesign requirements and correctiveaction.

C. What Was the Process EPA Used inMaking Today’s Decision?

1. What Approach Did EPA Take toStudying Fossil Fuel CombustionWastes?

We conducted our study of wastesgenerated by the combustion of fossilfuels in two phases. The first phase,called the Part 1 determination, coveredhigh volume coal combustion wastes(e.g., bottom ash and fly ash) generatedat electric utility and independentpower producing facilities (non-utilityelectric power producers that are notengaged in any other industrial activity)and managed separately from otherfossil fuel combustion wastes. In 1993,EPA issued a regulatory determinationthat exempted Part 1 wastes fromregulation as hazardous wastes (see 58FR 42466; August 9, 1993). Today’sregulatory determination is the secondphase of our effort, or the Part 2determination. It covers all other fossilfuel combustion wastes not covered inPart 1. This includes high volume,utility-generated coal combustionwastes when co-managed with certainlow volume wastes that are alsogenerated by utility coal burners; coalcombustion wastes generated byindustrial, non-utility, facilities; andwastes from the combustion of oil andgas. Under court order, we are requiredto complete the Part 2 regulatorydetermination by April 25, 2000. 1

2. What Statutory Requirements DoesEPA Have To Meet in Making Today’sRegulatory Determinations?

RCRA section 8002(n) specifies eightstudy factors that we must take intoaccount in our decision-making. Theseare:

1. The source and volumes of suchmaterials generated per year.

2. Present disposal practices.3. Potential danger, if any, to human

health and the environment from thedisposal of such materials.

4. Documented cases in which dangerto human health or the environment hasbeen proved.

5. Alternatives to current disposalmethods.

6. The costs of such alternatives.7. The impact of those alternatives on

the use of natural resources.8. The current and potential

utilization of such materials.Additionally, in developing the

Report to Congress, we are directed toconsider studies and other actions ofother federal and State agencies with aview toward avoiding duplication ofeffort (RCRA section 8002(n)). Inaddition to considering the informationcontained in the Report, EPA is requiredto base its regulatory determination oninformation received in public hearingsand comments submitted on the Reportto Congress (RCRA section3001(b)(3)(C)).

3. What Were the Agency’s Sources ofInformation and Data That Serve as theBasis for This Decision?

We gathered publicly availableinformation from a broad range ofsources, including federal and stateagencies, industry trade groups,environmental organizations, and openliterature searches. We requestedinformation from all stakeholder groupson each of the study factors Congressrequires us to evaluate. For many of thestudy factors, very limited informationexisted prior to this study. We workedclosely with the Edison Electric Institute(EEI), Utility Solid Waste ActivitiesGroup (USWAG), the Electric PowerResearch Institute (EPRI), and theCouncil of Industrial Boiler Owners(CIBO) as those organizations developednew information. Because other ongoingEPA projects currently focus on portionsof the FFC waste generator universe, wealso leveraged data collection effortsconducted for air, industrial waste, andhazardous waste programs. In addition,we obtained information fromenvironmental organizations regardingbeneficial uses of some FFC wastes andmethods for characterizing the risksassociated with FFC wastes.



Specifically, we gathered andanalyzed the following information fromindustry, states and environmentalgroups:

• Published and unpublishedmaterials obtained from state andfederal agencies, utilities and tradeindustry groups, and otherknowledgeable parties on the volumesand characteristics of coal, oil, andnatural gas combustion wastes and thecorresponding low-volume anduniquely associated wastes (see thefollowing section for a description of‘‘uniquely associated wastes’’).

• Published and unpublishedmaterials on waste managementpractices (including co-disposal and re-use) associated with FFC wastes and thecorresponding low-volume anduniquely associated wastes.

• Published and unpublishedmaterials on the potentialenvironmental impacts associated withFFC wastes.

• Published and unpublishedmaterials on trends in utility plantoperations that may affect wastevolumes and characteristics. Wegathered specific information oninnovations in scrubber use and thepotential impacts of the 1990 Clean AirAct Amendments on waste volumes andcharacteristics.

• Energy Information Agency (EIA),Department of Energy, data on utilityoperations and waste generationobtained from EIA’s Form 767 database.These data are submitted to EIAannually by electric utilities.

• Site visit reports and accompanyingfacility submittals for utility and non-utility plants we visited during thestudy.

• Materials obtained from public filesmaintained by State regulatory agencies.These materials focus on wastecharacterization, waste management,and environmental monitoring data,along with supporting backgroundinformation.

We visited five states to gatherspecific information about stateregulatory programs, FFC wastegenerators, waste management practicesand candidate damage cases related tofossil fuel combustion. The five stateswe examined in great detail were:Indiana, Pennsylvania, North Carolina,Wisconsin, and Virginia. These fivestates account for almost 20 percent ofcoal-fired utility electrical generationcapacity.

We also performed a variety ofanalyses, including human health andecological risk assessments, analyses ofexisting federal and state regulatoryprograms, and economic impactanalyses. We discussed and shared

these results with all of ourstakeholders. We also conducted anexternal peer review of our risk analysis.

4. What Process Did EPA Follow ToObtain Comments on the Report toCongress?

RCRA requires that we publish aReport to Congress (RTC) evaluating theabove criteria. Further, within sixmonths of submitting the report, wemust, after public hearings andopportunity for comment, decidewhether to retain the exemption fromhazardous waste requirements orwhether regulation as hazardous wasteis warranted. On March 31, 1999, weissued the required RTC on those fossilfuel combustion wastes (coal, oil andgas) not covered in the Part 1 regulatorydetermination, which are also known asthe ‘‘remaining wastes’’ (see footnote 1).

We asked the public to comment onthe Report and the appropriateness ofregulating fossil fuel wastes undersubtitle C of RCRA. To ensure that allinterested parties had an opportunity topresent their views, we held a publicmeeting with stakeholders on May 21,1999. The April 28, 1999 FederalRegister notice provided a 45-daypublic comment period, until June 14,1999. We received over 150 requests toextend the public comment period byup to six months. However, we wereobligated by a court-ordered deadline toissue our official RegulatoryDetermination by October 1, 1999. (See64 FR 31170; June 10, 1999.) In responseto requests for an extension, we enteredinto discussions with the parties toconsider an extension of the commentperiod to ensure that all interestedmembers of the public had sufficienttime to complete their review andsubmit comments. Subsequently, theplaintiffs in Gearhart v. Reilly moved tomodify the consent decree to reopen thecomment period and to allow EPA untilMarch 10, 2000 to complete theRegulatory Determination. Wesupported the motion, and onSeptember 2, 1999, the Court grantedthe motion. In compliance with thecourt order, on September 20, 1999, weannounced that public comments wouldbe accepted through September 24, 1999(64 FR 50788; Sept. 20, 1999). We havesince received two extensions to thedate for the final determination.Currently, EPA is directed to issue thePart 2 regulatory determination by April25, 2000.

We received about 220 comments onthe RTC from the public hearing and ourFederal Register requests for comments.The docket for this action (Docket No.F–99–FF2P–FFFFF) contains allindividual comments presented in the

public meetings and hearing, and atranscript from the public hearing, andall written comments. The docket isavailable for public inspection. Today’sdecision is based on the RTC, itsunderlying data and analyses, publiccomments, and EPA analyses of thesecomments.

The comments covered a wide varietyof topics discussed in the Report toCongress, such as fossil fuel combustionwaste generation and characteristics;current and alternative practices formanaging FFC waste; documenteddamage cases and potential danger tohuman health and the environment;existing regulatory controls on FFCwaste management; cost and economicimpacts of alternatives to currentmanagement practices; FFC beneficialuse practices; and our review ofapplicable state and federal regulations.

D. What Is the Significance of ‘‘UniquelyAssociated Wastes’’ and What WastesDoes EPA Consider To Be ‘‘UniquelyAssociated Wastes?’

Facilities that burn fossil fuelsgenerate combustion wastes and alsogenerate other wastes from processesthat are related to the main fuelcombustion processes. Often, as ageneral practice, facilities co-disposethese wastes with the large volumewastes that are subject to the RCRAsection 3001 (b) (3) (C) exemption.Examples of these related wastes are:

• Precipitation runoff from the coalstorage piles at the facility.

• Waste coal or coal mill rejects thatare not of sufficient quality to burn asfuel.

• Wastes from cleaning the boilersused to generate steam.

There are numerous wastes like these,collectively known as ‘‘low-volume’’wastes. Further, when one of these low-volume wastes, during the course ofgeneration or normal handling at thefacility, comes into contact with eitherfossil fuel (e.g., coal, oil) or fossil fuelcombustion waste (e.g., coal ash or oilash) and it takes on at least some of thecharacteristics of the fuel or combustionwaste, we call it a ‘‘uniquely associated’’waste. When uniquely associated wastesare co-managed with fossil fuelcombustion wastes, they fall within thecoverage of today’s regulatorydetermination. When managedseparately, uniquely associated wastesare subject to regulation as hazardouswaste if they are listed wastes or exhibitthe characteristic of a hazardous waste(see 40 CFR 261.20 and 261.30, whichspecify when a solid waste isconsidered to be a hazardous waste).

The Agency recognizes thatdetermining whether a particular waste



is uniquely associated with fossil fuelcombustion involves an evaluation ofthe specific facts of each case. In theAgency’s view, the following qualitativecriteria should be used to make suchdeterminations on a case-by-case basis:

(1) Wastes from ancillary operationsare not ‘‘uniquely associated’’ becausethey are not properly viewed as being‘‘from’’ fossil fuel combustion.

(2) In evaluating a waste from non-ancillary operations, one must considerthe extent to which the waste originatesor derives from the fossil fuels, thecombustion process, or combustionresiduals, and the extent to which theseoperations impart chemicalcharacteristics to the waste.

The low-volume wastes that are notuniquely associated with fossil fuelcombustion would not be subject totoday’s regulatory determination. Thatis, they would not be accorded anexemption from RCRA subtitle C,whether or not they were co-managedwith any of the exempted fossil fuelcombustion wastes. Instead, they wouldbe subject to the RCRA characteristicstandards and hazardous waste listings.The exemption applies to mixtures of anexempt waste with a non-hazardouswaste, but when an exempt waste ismixed with a hazardous waste, themixture is not exempt.

Based on our identification andreview of low volume wastes associatedwith the combustion of fossil fuels, weare considering offering the followingguidance concerning which low volumewastes are uniquely associated with andwhich are not uniquely associated withfossil fuel combustion. Unless there aresome unusual site-specificcircumstances, we would generallyconsider that the following lists of lowvolume wastes are uniquely and non-uniquely associated wastes:

Uniquely Associated• Coal Pile Runoff• Coal Mill Rejects and Waste Coal• Air Heater and Precipitator Washes• Floor and Yard Drains and Sumps• Wastewater Treatment Sludges• Boiler Fireside Chemical Cleaning

Wastes

Not Uniquely Associated• Boiler Blowdown• Cooling Tower Blowdown and

Sludges• Intake or Makeup Water Treatment

and Regeneration Wastes• Boiler Waterside Cleaning Wastes• Laboratory Wastes• General Construction and Demolition

Debris• General Maintenance Wastes

Moreover, we do not generallyconsider spillage or leakage of materials

used in the processes that generate thesenon-uniquely associated wastes, such asboiler water treatment chemicals, to beuniquely associated wastes, even if theyoccur in close proximity to the fossilfuel wastes covered by this regulatorydetermination.

An understanding of whether a wasteis uniquely associated can be importantin one circumstance. If a waste is notuniquely associated and is a hazardouswaste, co-managment with a Bevillwaste will result in loss of the Bevillexemption. As a general matter, thewastes identified above as potentiallynot uniquely associated do not tend tobe hazardous. This issue may thereforenot be critical. The Agency, however,must still define appropriate boundariesfor the Bevill exemption, because thereis no authority to grant Bevill status towastes that are not uniquelyassociated—the exemption was notintended as an umbrella for wastes thatother industries must treat as hazardous.

EPA solicits comment on thisdiscussion of uniquely associatedwastes in the context of fossil fuelcombustion and will issue finalguidance after reviewing and evaluatinginformation we receive as a result of thisrequest.

E. Who Is Affected by Today’s Actionand How Are They Affected?

As explained above, fossil fuelcombustion wastes generated from thecombustion of coal, oil and natural gaswill continue to remain exempt frombeing regulated as hazardous wastesunder RCRA. No party is affected bytoday’s determination to developregulations applicable to coalcombustion wastes when they are landdisposed or used to fill surface orunderground mines because today’saction does not impose requirements.However, if such regulations arepromulgated, they would affect coalcombustion wastes subject to today’sregulatory determination as well aswastes covered by the Part 1 regulatorydetermination when they are disposedin landfills and surface impoundments,or when used to fill surface orunderground mines.

While we do not intend that nationalsubtitle D regulations would beapplicable to oil combustion wastes, weintend to work with relevantstakeholders so that any necessarymeasures are taken to ensure that oilcombustion wastes currently managedin the two known remaining unlinedsurface impoundments are managed ina manner that protects human healthand the environment.

F. What Additional Actions Will EPATake After this RegulatoryDetermination Regarding Coal, Oil andNatural Gas Combustion Wastes?

To ensure that entities who generateand/or manage fossil fuel combustionwastes provide long-term protection ofhuman health and the environment, weplan several actions:

• We will review commentssubmitted in response to today’s noticeon uniquely associated wastes and onthe adequacy of the guidance developedby the utility industry on co-management of mill rejects (pyrites)with large volume coal combustionwastes.

• We will work with the State ofMassachusetts and the owners andoperators of the remaining two oilcombustion facilities that currentlymanage their wastes in unlined surfaceimpoundments to ensure that anynecessary measures are taken so thesewastes are managed in a manner thatprotects human health and theenvironment (described in section 3.D.of this document).

• We are evaluating the groundwatermodel and modeling methods that wereused in the RTC to estimate risks forthese wastes. This review may result ina re-evaluation of the potentialgroundwater risks posed by themanagement of fossil fuel combustionwastes and action to revise our Part 1and Part 2 determinations if appropriate(see section 2.C. of this document).

• There are a number of ongoing andevolving efforts underway at EPA toimprove our understanding of thehuman health impacts of wastes used inagricultural settings. We expect toreceive substantial comments and newscientific information based on a riskassessment of the use of cement kilndust as a substitute for agricultural lime(see 64 FR 45632; August 20, 1999) andother Agency efforts. As a result, wemay refine our methodology forassessing risks related to the use ofwastes in agricultural settings. If theseefforts lead us to a differentunderstanding of the risks posed byfossil fuel combustion wastes whenused as a substitute for agriculturallime, we will take appropriate action toreevaluate today’s regulatorydetermination (see section 2.C. of thisdocument).

• We will review the findings andrecommendations of the NationalAcademy of Sciences upcoming reporton mercury and assess its implicationson risks due to exposure to mercury. Wewill ensure that the regulations wedevelop as a result of today’s regulatorydetermination address any additional



risks posed by these wastes if hazardousconstituent levels exceed acceptablelevels

• We will reevaluate risk posed bymanaging coal combustion solid wastesif levels of mercury or other hazardousconstituents change due to any futureClean Air Act air pollution controlrequirements for coal burning utilities(see section 2.C. of this document).

• We will continue EPA’s partnershipwith the states to finalize voluntaryindustrial solid waste managementguidance that identifies baselineprotective practices for industrial wastemanagement units, including fossil fuelcombustion waste management units.We will use relevant information andknowledge that we obtain as a result ofthis effort to assist us in developingnational regulations applicable to coalcombustion wastes.

2. What Is the Basis for EPA’sRegulatory Determination for CoalCombustion Wastes?

A. What Is the Agency’s DecisionRegarding the Regulatory Status of CoalCombustion Wastes and Why Did EPAMake That Decision?

We have determined at this time thatregulation of coal combustion wastesunder subtitle C is not warranted.However, we have also decided that itis appropriate to establish nationalregulations under non-hazardous wasteauthorities for coal combustion wastesthat are disposed in landfills andsurface impoundments. We believe thatsubtitle D regulations are the mostappropriate mechanism for ensuringthat these wastes disposed in landfillsand surface impoundments are managedsafely.

EPA’s conclusion that some form ofnational regulation is warranted toaddress these wastes is based on thefollowing considerations: (a) Thecomposition of these wastes couldpresent danger to human health and theenvironment under certain conditions,and ‘‘potential’’ damage cases identifiedby EPA and commenters, while notdefinitively demonstrating damage fromcoal combustion wastes, may indicatethat these wastes have the potential topose such danger; (b) we have identifiedeleven documented cases of provendamages to human health and theenvironment by improper managementof these wastes in landfills and surfaceimpoundments; (c) present disposalpractices are such that, in 1995, thesewastes were being managed in 40percent to 70 percent of landfills andsurface impoundments withoutreasonable controls in place,particularly in the area of groundwater

monitoring; and (d) while there havebeen substantive improvements in stateregulatory programs, we have alsoidentified gaps in state oversight.

When we considered a tailoredsubtitle C approach, we estimated thepotential costs of regulation of coalcombustion wastes (including the utilitycoal combustion wastes addressed inthe 1993 Part 1 determination) to be $1billion per year. While large in absoluteterms, we estimate that these costs areless than 0.4 percent of industry sales.To improve our estimates we solicitpublic comment on the potentialcompliance costs to coal combustionwaste generators as well as the indirectcosts to users of these combustion by-products.

We have also decided that it isappropriate to establish nationalregulations under RCRA non-hazardouswaste authorities (and/or possiblymodifications to exiting regulationsestablished under authority of SMCRA)applicable to the placement of coalcombustion wastes in surface orunderground mines. We have reachedthis decision because (a) we find thatthese wastes when minefilled couldpresent a danger to human health andthe environment under certaincircumstances, and (b) there are fewstates that currently operatecomprehensive programs thatspecifically address the uniquecircumstances of minefilling, making itmore likely that damage to humanhealth or the environment could gounnoticed.

With the exception of minefilling asdescribed above, we have decided thatnational regulation under subtitle C orsubtitle D is not warranted for any of theother beneficial uses of coal combustionwastes. We have reached this decisionbecause: (a) We have not identified anyother beneficial uses that are likely topresent significant risks to humanhealth or the environment; and (b) nodocumented cases of damage to humanhealth or the environment have beenidentified. Additionally, we do not wantto place any unnecessary barriers on thebeneficial uses of coal combustionwastes so they can be used inapplications that conserve naturalresources and reduce disposal costs.

B. What Were EPA’s Tentative Decisionsas Presented in the Report to Congress?

On March 31, 1999, EPA indicated apreliminary decision that disposal ofcoal combustion wastes should remainexempt from regulation under RCRAsubtitle C. We also presented ourtentative view that most beneficial usesof these wastes should remain exemptfrom regulation under RCRA subtitle C.

However, in the RTC we identified threesituations where we had particularconcerns with the disposition or uses ofthese wastes.

First, we indicated some concern withthe co-management of mill rejects(‘‘pyrites’’) with coal combustion wasteswhich, under certain circumstances,could cause or contribute to groundwater contamination or other localizedenvironmental damage. We indicatedthat the utility industry responded toour concern by implementing avoluntary education and technicalguidance program for the propermanagement of these wastes. Weexpressed satisfaction with the industryprogram and tentatively concluded thatadditional regulation in this area wasnot necessary. We explained that wewere committed to overseeing industry’sprogress on properly managing pyriticwastes, and would revisit our regulatorydetermination relative to co-management of pyrites with largevolume coal combustion wastes at alater date, if industry progress wasinsufficient in this area.

Second, in the RTC we identifiedpotential human health risks fromarsenic when these wastes are used foragricultural purposes (e.g., as a limesubstitute). To address this risk, weindicated our preliminary view thatSubtitle C regulations may beappropriate for this managementpractice. We explained that an exampleof such controls could includeregulation of the content of thesematerials such that, when used foragricultural purposes, the arsenic levelcould be no higher than that found inagricultural lime. As an alternative tosubtitle C regulation, we indicated thatEPA could engage the industry toimplement a voluntary program toaddress the risk, for example, bylimiting the level of arsenic in coalcombustion wastes when using them foragricultural purposes. Moreover, weindicated that a decision to establishhazardous waste regulations applicableto agricultural uses of co-managed coalcombustion wastes would likely affectthe regulatory status of the Part 1 wastes(i.e., electric utility high volume coalcombustion wastes managed separatelyfrom other coal combustion wastes)when used for agricultural purposes.This is because the source of theidentified risk was the arsenic contentof the high volume coal combustionwastes and not other materials that maybe co-managed with them.

Third, we expressed concern withpotential impacts from the expandingpractice of minefilling coal combustionwastes (i.e., backfilling the wastes intomined areas) and described the



difficulties we had with assessing theimpacts and potential risks of thispractice. We explained that thesedifficulties include:

• Determining if elevatedcontaminants in ground water are due tominefill practices or pre-existingconditions resulting from miningoperations,

• Trying to model situations that maybe more complex than our groundwatermodels can accommodate,

• The lack of long-term experiencewith the recent practice of minefilling,which limits the amount ofenvironmental data for analysis, and

• The site-specific nature of theseoperations.

Accordingly, we did not present atentative decision in the RTC for thispractice. We indicated that subtitle Cregulation would remain an option forminefilling, but that we neededadditional information prior to makinga final decision. Rather, we solicitedadditional information fromcommenters on these and other aspectsof minefilling practices and indicatedwe would carefully consider thatinformation in the formulation oftoday’s decision.

C. How Did Commenters’ React to EPA’sTentative Decisions and What WasEPA’s Analysis of Their Comments?

Commenter’s provided substantialinput and information on severalaspects of our overall tentative decisionto retain the exemption for these wastesfrom RCRA subtitle C regulation. Theseaspects are: modeling and riskassessment for the groundwaterpathway, documented damage cases, thepotential for coal combustion wastecharacteristics to change as a result ofpossible future Clean Air Actregulations, proper management of millrejects (pyrites), agricultural use of coalcombustion wastes, the practice ofminefilling coal combustion wastes, andour assessment of existing Stateprograms and industry wastemanagement practices.

1. How Did Commenters React to theGroundwater Modeling and RiskAssessment Analyses Conducted byEPA To Support its Findings in theReport to Congress?

Comments. Industry and publicinterest group commenters submitteddetailed critiques of the groundwatermodel, EPACMTP, that we used for ourrisk analysis. Industry commentersbelieve that the model will overestimatethe levels of contaminants that maymigrate down-gradient from disposedwastes. Environmental groups expressedthe opposite belief; that is, that the

model underestimates down-gradientchemical concentrations and, therefore,underestimates the potential risk posedby coal combustion wastes.

The breadth and potentialimplications of the numerous technicalcomments on the EPACMTP model aresignificant. Examples of the commentsinclude issues relating to:

• The thermodynamic data that arethe basis for certain model calculations,

• The model’s ability to account forthe effects of oxidation-reductionpotential,

• The model’s ability to account forcompetition between multiplecontaminants for adsorption sites,

• The model’s algorithm for selectingadsorption isotherms,

• The impact of leachate chemistryon adsorption and aquifer chemistry,and

• The model’s inherent assumptionsabout the chemistry of the underlyingaquifer.

EPA’s Analysis of the Comments. Wehave been carefully reviewing all of thecomments on the model. We determinedthat the process of thoroughlyinvestigating all of the comments willtake substantially more time to completethan is available within the courtdeadline for issuing this regulatorydetermination. At this time, we areuncertain of the overall outcome of ouranalysis of the issues raised in thecomments. Accordingly, we havedecided not to use the results of ourgroundwater pathway risk analysis insupport of today’s regulatorydetermination on fossil fuel combustionwastes. As explained below, in makingtoday’s regulatory determination, wehave relied in part on other informationrelated to the potential danger that mayresult from the management of fossilfuel combustion wastes.

Meanwhile, we will continue withour analysis of comments on thegroundwater model and risk analysis.This may involve changing or re-structuring various aspects of the model,if appropriate. It may also includeadditional analyses to determinewhether any changes to the model ormodeling methodology wouldmaterially affect the groundwater riskanalysis results that were reported inthe RTC. If our investigations reveal thata re-analysis of groundwater risks isappropriate, we will conduct theanalysis and re-evaluate today’sdecisions as warranted by the re-analysis.

In addition to our ongoing review ofcomments on the groundwater model,one element of the model—the metalspartitioning component called‘‘MINTEQ’’—has been proposed for

additional peer review. When additionalpeer review is completed, we will takethe findings and recommendations intoaccount in any overall decision to re-evaluate today’s regulatorydetermination.

While not relying on the EPACMTPgroundwater modeling as presented inthe RTC, we have since conducted ageneral comparison of the metals levelsin leachate from coal combustion wastesto their corresponding hazardous wastetoxicity characteristic levels. Fossil fuelwastes infrequently exceed thehazardous waste characteristic. For co-managed wastes, 2% (1 of 51 samples)exceeded the characteristic level. Forindividual wastes streams, 0% of thecoal bottom ash, 2% of the coal fly ash,3% of the coal flue gas desulfurization,and 7% of the coal boiler slag samplesthat were tested exceeded thecharacteristic level. Nevertheless, oncewe have completed a review of ourgroundwater model and made anynecessary changes, we will reevaluategroundwater risks and take appropriateregulatory actions. We will specificallyassess new modeling results as theyrelate to any promulgated changes in thearsenic MCL.

We also compared leachconcentrations from fossil fuel wastes tothe drinking water MCLs. In the case ofarsenic, we examined a range of valuesbecause EPA expects to promulgate anew arsenic drinking water regulationby January 1, 2001. This range includesthe existing arsenic MCL (50 ug/l), alower health based number presented inthe FFC Report to Congress (RTC) (0.29ug/l), and two assumed values inbetween (10 and 5 ug/l). We examinedthis range of values because of ourdesire to bracket the likely range ofvalues that EPA will be considering inits effort to revise the current MCL forarsenic. The National ResearchCouncil’s 1999 report on Arsenic inDrinking Water indicated that thecurrent MCL is not sufficientlyprotective and should be reviseddownward as soon as possible. For thisreason, we selected the current MCL of50 ug/L for the high end of the rangebecause EPA is now consideringlowering the current MCL and does notanticipate that the current MCL wouldbe revised to any higher value. Weselected the health-based numberpresented in the Report to Congress forthe low end of the range because webelieve this represents the lowestconcentration that would be consideredin revising the current MCL. Because atthis time we cannot project a particularvalue as the eventual MCL, we alsoexamined values in between these low-end and high-end values, a value of 5



2 The Part 1 determination identified six cases ofdocumented damages. Upon further reveiw, wedetermined that two of these cases involve utilitycoal ash monofills which are covered by the Part1 determination. However, the other four casesinvolved remaining wastes that are covered bytoday’s determination.

ug/L and a value of 10 ug/L, for ouranalyses supporting today’s regulatorydetermination. The choice of these mid-range values for analyses does notpredetermine the final MCL for arsenic.

Those circumstances where the leachconcentrations from the wastes exceedthe drinking water criteria have thegreatest potential to cause significantrisks. This ‘‘potential’’ risk, however,may not occur at actual facilities.Pollutants in the leachate of the wastesundergo dilution and attenuation asthey migrate through the ground. Theprimary purpose of models such asEPACMTP is to account for the degreeof dilution and attenuation that is likelyto occur, and to obtain a realisticestimate of the concentration ofcontaminants at a groundwater receptor.To provide a view of potentialgroundwater risk, we tabulated thenumber of occurrences where the wasteleachate hazardous metalsconcentrations were: (a) Less than thecriteria, (b) between 1 and 10 times thecriteria, (c) between 10 and 100 timesthe criteria, and (d) greater than 100times the criteria. Groundwater modelsthat we currently use, when applied tolarge volume monofill sources of metals,frequently predict that dilution andattenuation will reduce leachate levelson the order of a factor of 10 underreasonable high end conditions. Thismultiple is commonly called a dilutionand attenuation factor (DAF). For thisreason and because lower dilution andattenuation factors (e.g., 10) are oftenassociated with larger disposal unitssuch as those typical at facilities wherecoal is burned, we assessed thefrequency of occurrence of leachconcentrations for various hazardousmetals which were greater than 10 timesthe drinking water criteria. Based oncurrent MCLs, there was only oneexceedence (for cadmium). However,when we considered the arsenic healthbased criterion from the RTC, we foundthat a significant percentage (86%) ofavailable waste samples had leachconcentrations for arsenic that weregreater than ten times the health-basedcriterion. Even considering intermediatevalues closer to the current MCL, asignificant percentage of available wastesamples had leach concentrations forarsenic that were greater than ten timesthe criteria (30% when the criterion wasassumed to be 5 ug/l, and 14% when thecriterion was assumed to be 10 ug/l).Similar concerns also occurred whencomparing actual groundwater samplesassociated with FFC waste units andthis range of criteria for arsenic. Webelieve this is an indication of potentialrisks from arsenic.

For the above analysis, we used avalue equal to half the detection level todeal with those situations whereanalyses resulted in ‘‘less thandetection’’ values that exceeded theMCL criteria. The actual concentrationmay be as low as zero or up to thedetection level. To illustrate the impactof this assumption, an analysis wasperformed setting the ‘‘less thandetection’’ values to zero, and an arseniccriteria at 50 ug/l. While 30% of thevalues exceeded 10 times the criteriawhen using half the detection level,exceedences dropped to 13% when‘‘less than detection’’ values were set tozero.

The comparison of the leachate levelsto 10 times MCL criteria is a screeninglevel analysis that supports ourconcerns, which are primarily based ondamage cases and the lack of installedcontrols (liners and groundwatermonitoring). We recognize, however,that prior to issuing a regulation theAgency expects to address the issuesraised on the groundwater model andcomplete a comprehensive groundwatermodeling effort. Furthermore, weanticipate that uncertainty regardingwhether the arsenic MCL will beamended and to what level, will bemore settled prior to regulation of thesewastes. These factors could heighten orreduce concerns with regard to the needfor Federal regulation of fossil fuelcombustion wastes.

2. How Did Commenters React to EPA’sAssessment of Documented DamageCases Presented in the Report toCongress?

Prior to issuing the RTC, we soughtand reviewed potential damage casesrelated to these particular wastes. Theactivities included:

• A re-analysis of the potentialdamage cases identified during the Part1 determination,

• A search of the CERCLAInformation System for instances ofthese wastes being cited as causes orcontributors to damages,

• Contacts and visits to regulatoryagencies in five states with high rates ofcoal consumption to review filematerials and discuss with state officialsthe existence of damage cases,

• A review of information providedby the Utility Solid Waste Act Groupand the Electric Power ResearchInstitute on 14 co-management sites,and

• A review of information providedby the Council of Industrial BoilerOwners on eight fluidized bedcombustion (FBC) facilities.

These activities yielded three damagecase sites in addition to the four cases

initially identified in the Part 1determination.2 Five of the damagecases involved surface impoundmentsand the two other cases involvedlandfills. The waste management unitsin these cases were all older, unlinedunits. The releases in these cases wereconfined to the vicinity of the facilitiesand did not affect human receptors.None of the damages impacted humanhealth. We did not identify any damagecases that were associated withbeneficial use practices.

Comments. Public interest groupcommenters criticized our approach toidentifying damage cases associatedwith the management of fossil fuelcombustion (FFC) wastes, stating thatEPA did not use the same procedureused to identify damage cases for thecement kiln dust (CKD) Report toCongress. These commenters believedthat we were too conservative in ourinterpretation and determination of FFCdamage cases and dismissed cases thatcommenters believe are relevantinstances of damage. For example, thesecommenters indicated that EPA, in theRTC, did not consider cases where theonly exceedences of ground waterstandards were for secondary MCLs(Maximum Contaminant Levels asestablished by EPA for drinking waterstandards). They further indicated thatthe states often require ground watermonitoring only for secondary MCLconstituents and that elevated levels ofthe secondary MCL constituents are anindication of future potential for moreserious, health-based standards to beexceeded for other constituents in thewastes, such as toxic metals.Additionally, these commenters statedthat the Agency’s analysis for damagecases was incomplete and they providedinformation on 59 possible damagecases involving these wastes, mostly atutilities. Additionally, commenterssubmitted seven cases of ecologicaldamage that allege damage to mammals,amphibians, fish, benthic layerorganisms and plants from co-management of coal combustion wastesin surface impoundments.

Industry commenters cited EPA’sfinding of so few damage cases asimportant support for our tentativeconclusion to exempt these wastes fromhazardous waste regulation. Further,some of the industry commentersindicated that the few damage cases thatEPA identified do not represent current



utility industry management practices,but rather reflect less environmentallyprotective management practices atolder facilities that pre-date thenumerous state and federalrequirements that are now in effect formanaging these wastes.

EPA’s Analysis of the Comments.Regarding ecological damage, while wedid not identify any ecological damagecases in the RTC associated withmanagement of coal combustion wastes,we reviewed the information onecological damage submitted bycommenters and agree that four of theseven submitted are documenteddamage cases that involve FFC wastes.All of these involve some form ofdischarge from waste management unitsto nearby lakes or creeks. These confirmour risk modeling conclusions aspresented in the RTC that there could beadverse impacts on amphibians, birds,or mammals if they were subject to theelevated concentrations of selectedchemicals that had been measured insome impoundments. However, noinformation was submitted in commentsthat would lead us to alter ourconclusion that these threats are notsubstantial enough to cause large scale,system level ecological disruptions.These damage cases, attributable torunoff or overflow that is already subjectto Clean Water Act discharge orstormwater regulations, are moreappropriately addressed under theexisting Clean Water Act requirements.

Regarding our assessment of damageto ground water, we believe ourapproach to FFC damage cases in theRTC was consistent with the approachwe used for identifying CKD damagecases. For CKD, we established twocategories of damage cases—‘‘proven’’damage cases and ‘‘potential’’ damagecases. Proven damage cases were thosewith documented MCL exceedences thatwere measured in ground water at asufficient distance from the wastemanagement unit to indicate thathazardous constituents had migrated tothe extent that they could cause humanhealth concerns. Potential damage caseswere those with documented MCLexceedences that were measured inground water beneath or close to thewaste source. In these cases, thedocumented exceedences had not beendemonstrated at a sufficient distancefrom the waste management unit toindicate that waste constituents hadmigrated to the extent that they couldcause human health concerns. We donot believe that it would be appropriateto consider an exceedence directlybeneath a waste management unit orvery close to the waste boundary to bea documented, proven damage case.

State regulations typically use acompliance procedure that relies onmeasurement at a receptor site or inground water at a point beyond thewaste boundary (e.g., 150 meters). Whileour CKD analysis did not distinguishbetween primary and secondary MCLexceedences, most CKD damage casesinvolved a primary MCL constituent.Our principal basis for determining thatCKD when managed in land-based unitswould no longer remain exempt frombeing regulated as a hazardous wastewas our concern about generally poormanagement practices characteristic ofthat industry. Our conclusion wasfurther supported by the extremely highpercentage of proven damage casesoccurring at active CKD sites for whichgroundwater monitoring data wereavailable.

For FFC, we used the same test ofproof to identify possible damage cases.Our FFC analysis drew a distinctionbetween primary and secondary MCLexceedences because we believe thisfactor is appropriate in weighing theseriousness of FFC damage in terms ofindicating risk to human health and theenvironment. For FFC, in the RTC, wereported only the ‘‘proven’’ damage (i.e.,exceedence of a health-based standardsuch as a primary MCL andmeasurement in ground water or surfacewater). As was done in the CKDanalysis, we also identified a number ofpotential FFC damage cases (eleven)which were included in the backgrounddocuments that support the RTC.

Unlike the primary MCLs, secondaryMCLs are not based on human healthconsiderations. (Examples are dissolvedsolids, sulfate, iron, and chloride forwhich groundwater standards have beenestablished because of their effect ontaste, odor, and color.) While somecommenters believe that elevated levelsof some secondary MCL parameterssuch as soluble salts are likelyprecursors or indicators of futurehazardous constituent exceedences thatcould occur at coal combustionfacilities, we are not yet able and willnot be able to test their hypothesis untilwe complete our analysis of allcomments received on our groundwatermodel and risk analysis, which will notbe concluded until next year.

Of the 59 damage cases reported bycommenters, 11 cases appear to involveexceedences of primary MCLs or otherhealth-based standards as measuredeither in off-site ground water or innearby surface waters, the criteria weused in the RTC to identify provendamage cases. Of these eleven cases,two are coal ash monofills which wereincluded in the set of damage casesdescribed by EPA in its record

supporting the Part 1 regulatorydetermination. The remaining ninecases involve the co-management oflarge volume coal combustion wasteswith other low volume and uniquelyassociated coal combustion wastes. Wehad already identified five of these ninecases in the RTC. Thus, only four ofthese eleven damage cases are newlyidentified to us. Briefly, the four newcases involve:

• Exceedence of a state standard forlead in downgradient ground water at acoal fly ash landfill in New York. Therewere also secondary MCL exceedencesfor sulfate, dissolved solids, and iron.

• Primary MCL exceedences forarsenic and selenium in downgradientmonitoring wells for a coal ashimpoundment at a power plant in NorthDakota. There were also secondary MCLexceedences for sulfate and chloride.

• Primary MCL exceedences forfluoride and exceedence of a statestandard for boron in downgradientmonitoring wells at a utility coalcombustion waste impoundment inWisconsin. There was also a secondaryMCL exceedence for sulfate.

• Exceedence of a state standard forboron and the secondary MCL forsulfate and manganese in downgradientmonitoring wells at a utility coalcombustion landfill in Wisconsin.

We found that in nine of the 11proven damage cases (including oneSuperfund site), states took appropriateaction to require or conduct remedialactivities to reduce or eliminate thecause of contamination. EPA took actionin the remaining two cases under theSuperfund program

Nineteen of the candidate damagecases submitted by commenters involveeither on-site or off-site exceedences ofsecondary MCLs, but not primary MCLsor other health-based standards.Consistent with our CKD analysis, weconsider these cases to be indicative ofa potential for damage to occur at thesesites because they demonstrate thatthere has been a release to ground waterfrom the waste management unit.

Regarding the remaining 29 casessubmitted by commenters:

• Six involve primary MCLexceedences, but measurements were inground water either directly beneath thewaste or very close to the wasteboundary, i.e., no off-site ground wateror receptor measurements indicated thatground water standards had beenexceeded. Consistent with our analysisof damage cases for cement kiln dust,we consider these six cases to beindicative of a potential for damage tooccur at these sites because theydemonstrate that there has been a



release to ground water from the wastemanagement unit..

• Eighteen case summarysubmissions contained insufficientdocumentation and data for us to verifyand draw a conclusion about whetherwe should consider these to be potentialor proven damage cases. Of these 18cases, commenters claimed that 11 casesinvolve primary MCL exceedences, andanother two involve secondary MCLs,but not primary MCLs. The other fivecases lacked sufficient information anddocumentation to determine whetherprimary or secondary MCLs areinvolved. Examples of informationcritical to assessing and verifyingcandidate damage cases that was notavailable for these particular casesinclude: Identification of the pollutantscausing the contamination;identification of where or how thedamage case information was obtained(e.g., facility monitoring data, statemonitoring or investigation, third partystudy or analysis); monitoring data usedto identify levels of contaminants; and/or sufficient information to determinewhether the damages were actuallyattributable to fossil fuel combustionwastes; and/or location of the identifiedcontamination (i.e., directly beneath theunit or very close to the waste boundaryor at a point some distant (e.g., 150meters) from the unit boundary).

• Three case submissions are caseswe identified in the Part 1determination and involve monofilledutility coal ash wastes. However, asexplained in the Report to Congress forthe Part 1 determination, EPAdetermined that there was insufficientevidence to consider them to bedocumented damage cases.

• One case did not involve fossil fuelcombustion wastes.

• One case involved coal combustionwastes and other unrelated wastes in anillegal, unpermitted dump site. This sitewas handled by the state as a hazardouswaste cleanup site.

Our detailed analysis of the damagecases submitted by commenters isavailable in the public docket for thisregulatory determination.

In summary, based on damage caseinformation presented in the RTC andour review of comments, we concludethat there are 11 proven damage casesassociated with wastes covered bytoday’s regulatory determination. Weidentified seven of these damage casesin the RTC, so there are four new provendamage cases that were identified bycommenters. All of the sites were atolder, unlined units, with disposaloccurring prior to 1993. For all 11 of theproven damage cases, either the state orEPA provided adequate follow-up to

require or else undertake correctiveaction. Although these damage casesindicate that coal combustion wastescan present risks to human health andthe environment, they also show theeffectiveness of states’ responses whendamages were identified. None of thesecases involved actual human exposure.

Additionally, we determined thatanother 25 of the commenter submittedcases are potential damage cases for thereasons described above. Thus,including the 11 potential damage casesthat we identified in the backgrounddocuments that support the RTC, we areaware of 36 potential damage cases.While we do not believe the latter 36cases satisfy the statutory criteria ofdocumented, proven damage casesbecause damage to human health or theenvironment has not been proven, webelieve that these cases may indicatethat these wastes pose a ‘‘potential’’danger to human health and theenvironment in some circumstances.

In conclusion, while the absolutenumber of documented, proven damagecases is not large, we believe that theevidence of proven and potentialdamage should be considered in light ofthe proportion of new and existingfacilities, particularly surfaceimpoundments, that today lack basicenvironmental controls such as linersand groundwater monitoring.Approximately one-third of coalcombustion wastes are managed insurface impoundments. We note thatcontrols such as liners may not bewarranted at some facilities, due to site-specific conditions. We acknowledge,however, that our inquiry into theexistence of damage cases was focusedprimarily on a subset of states. Giventhe volume of coal combustion wastesgenerated nationwide and the number offacilities that lacked groundwatermonitoring as of 1995, there is at leasta substantial likelihood other cases ofactual and potential damage likely exist.Because we did not use a statisticalsampling methodology to evaluate thepotential for damage, we are unable todetermine whether the identified casesare representative of the conditions atall facilities and, therefore, cannotquantify the extent and magnitude ofdamages at the national level.

3. What Concerns Did CommentersExpress About the Impact of PotentialFuture Regulation of Hazardous AirPollutants Under the Clean Air Act onToday’s Regulatory Determination?

Comments. In both public hearingtestimony and written comments, publicinterest groups expressed concern aboutpotential changes in the characteristicsof these wastes when new air pollution

controls are established under the CleanAir Act. The commenters referred to thepossible future requirement forhazardous air pollutant controls at coalburning electric utility power plants,which could result in an increased levelof metals and possibly other hazardousconstituents in coal combustion wastes.The commenters indicated that theseincreased levels, in turn, could haveserious implications for cross-mediaenvironmental impacts such as leachingto groundwater and volatilization to theair. The commenters argued that theAgency should include these factors inits current decision making on theregulatory status of coal combustionunder the Resource Conservation andRecovery Act.

EPA’s Analysis of the Comments. Wehave carefully considered the issue ofcross-media impacts and thecommenters’ specific concerns thatfuture air regulations could have anadverse impact on the characteristics ofcoal combustion wastes. We haveconcluded that it is premature toconsider the possible future impact ofsuch new air pollution controls on thewastes that are subject to today’sregulatory determination. The Agencyplans to issue a regulatorydetermination in the latter part of 2000regarding hazardous air pollutant (HAP)controls at coal-burning, powergenerating facilities. If EPA decides toinitiate a rulemaking process, finalrulemaking under the Clean Air Act isprojected to occur in 2004. Thus, nofinal decision has been made on what,if any, constituents will be regulated byfuture air pollution controlrequirements. Additionally, theregulatory levels of the those specificpollutants that might be controlled andthe control technologies needed toattain any regulatory requirements havenot yet been identified. Therefore, webelieve there is insufficient informationat this time for evaluating thecharacteristics and potentialenvironmental impacts of solid wastesthat would be generated as a result ofnew Clean Air Act requirements.

When any rulemaking under theClean Air Act proceeds to a point wherewe can complete an assessment of thelikely changes to the character of coalcombustion wastes, we will evaluate theimplications of these changes relative totoday’s regulatory determination andtake appropriate action.

4. How Did Commenters React to theFindings Presented in the Report toCongress Related to Proper Managementof Mill Rejects (Pyrites)?

The RTC explained that we identifiedsituations where pyrite-bearing



materials such as mill rejects (a lowvolume and uniquely associated waste)that are co-managed with coalcombustion wastes may cause orcontribute to risks or environmentaldamage if not managed properly. Thesematerials when managed improperlywith exposure to air and water cangenerate acid. The acid, in turn, canmobilize metals contained in the co-managed combustion wastes. The RTCalso explained that the Agency engagedthe utility industry in a voluntaryprogram to ensure appropriatemanagement of these wastes. Theindustry responded by developingtechnical guidance and a voluntaryindustry education program on propermanagement of these wastes.

Comments. Utility industrycommenters supported our tentativedecision to continue the exemption forcoal combustion wastes co-managedwith mill rejects from regulation as ahazardous waste. Their position is basedprimarily on the industry’s voluntaryimplementation of an educationprogram and technical guidance on theproper management of these wastes, asdescribed in the RTC.

Public interest groups and othercommenters disagreed with ourtentative decision, explaining theirbelief that such voluntary controls orprograms are inadequate. Theyindicated that coal combustion wastesshould be subject to hazardous wasteregulations.

EPA’s Analysis of the Comments. Weremain encouraged by the utilityindustry program to educate and informits members by implementing guidanceon the proper management of coal millrejects. However, as pointed out bycommenters, there is no assurance thatfacilities where coal combustion wastesco-managed with pyritic wastes willfollow the guidance developed byindustry. In light of the number ofdemonstrated and potential damagecases identified to date, we areconcerned that simply relying onvoluntary institution of necessarycontrols would not adequately ensurethe protection of human health and theenvironment. At this time, to ensurethat we are aware of all stakeholdersviews on the adequacy of the controlapproaches described in the guidance toprotect human health and theenvironment, we are soliciting publiccomment on the final version of theindustry coal mill rejects guidance. Thisguidance is available in the docketsupporting today’s decisions.

5. How Did Commenters React to theFindings Presented in the Report toCongress Related to Agricultural Use ofCoal Combustion Wastes?

In the RTC, we presented findings onthe human health risks associated withagricultural use of coal wastes as anagricultural lime substitute. Thepathway examined embodies risks fromingestion of soil and inhalation, andfrom ingestion of contaminated dairy,beef, fruit and vegetable products. Theresultant ‘‘high end’’ cancer riskreported in the RTC was 1 × 10¥5 (onein one hundred thousand exposedpopulation), for the child of a farmer.The variables held at high end for thiscalculation were contaminantconcentration and children’s soilingestion. With all variables set tocentral tendency values, the risk wascalculated to be 1 × 10¥7 (one in tenmillion exposed population). We didnot identify the presence of any non-cancer hazard of concern. Based on thehigh end risk, the Agency raised thepossibility in the RTC of developingSubtitle C controls or seekingcommitments from industry to avoluntary program.

Comments. A number of industry,academic, and federal agencycommenters disagreed with ourtentative conclusion that some level ofregulation may be appropriate for coalcombustion wastes when used as anagricultural soil supplement. Theyindicated that EPA used unrealisticallyconservative levels for four key inputsused in our risk analysis and that use ofa realistic level for any one of theseinputs would result in a risk level lessthan 1 × 10¥6. The four inputsidentified by the commenters are:application rate of the wastes to theland, the rate of soil ingestion bychildren, the bioavailability of arsenicand the phytoavailability of arsenic.

These commenters furtherrecommended that EPA not regulate, butrather encourage voluntary restrictionsbecause:

• Agricultural use of coal combustionwastes creates no adverseenvironmental impacts and EPAidentified no damage cases associatedwith this practice;

• Agricultural use of these wastes hassignificant technical and economicbenefits;

• Federal controls would beunnecessarily costly and would create abarrier for research and development onthe practice;

• Existing regulatory programs aresufficient to control any risks from thispractice; and

• The limits suggested in the RTC forarsenic levels in coal combustion wastes

are inconsistent with limits applied toother materials used in agriculture.

Public interest groups stated theirbelief that a voluntary approach wouldnot be sufficiently protective of humanhealth and the environment. Theybelieve the Agency should applyrestrictions on the use of these wastes inagriculture because the Agency’sanalyses of the risks and benefits of thispractice were inadequate. They furtherrecommended that EPA should prohibitthe land application of coal combustionwastes generated by conventionalboilers, and make the arsenic limitationof EPA’s sewage sludge land applicationregulations applicable to the landapplication of coal combustion wastesgenerated by fluidized bed combustors,which add lime as part of thecombustion process.

EPA’s Analysis of Comments. Afterreviewing these comments andsupporting information provided by thecommenters, we concluded that arevised input into the model forchildren’s soil ingestion rate isappropriate. Based on further review ofthe Agency’s Exposure FactorsHandbook (EFH), we decided to modela children’s soil ingestion rate of 0.4grams per day instead of the 1.4 gramsper day that underlay the results givenin the RTC.

Many studies have been conducted toestimate soil ingestion by children.Early studies focused on dirt present onchildren’s hands. More recently, studieshave focused on measuring traceelements in soil and then in feces as afunction of internal absorption. Thesemeasurements are used to estimateamounts of soil ingested over a specifiedtime period. The EFH findings forchildren’s soil ingestion are based onseven key studies and nine otherrelevant studies that the Agencyreviewed on this subject. These studiesshowed that mean values for soilingestion ranged from 39 mg/day to 271mg/day with an average of 146 mg/day.These results are characterized forstudies that were for short periods withlittle information reported for picabehavior. To account for longer periodsof time, the EFH reviewed the upperpercentile ranges of the data studied andfound ingestion rates that ranged from106 mg/day to 1,432 mg/day with anaverage of 383 mg/day for soil ingestion.Rounding to one significant figure, theEFH recommended an upper percentilechildren’s soil ingestion rate of 400 mg/day. The Agency believes that thisrecommendation is the best availableinformation to address children’sexposure through the soil ingestionroute. Reducing the ingestion rate to theEFH handbook recommended level of



400 mg/day reduced the calculated riskto 3.4 × 10–6 for this one child risksituation and suggests that agriculturaluse of FFC wastes does not cause a riskof concern.

EPA believes its inputs forphytoavailability are accurate, althoughthere are studies that suggestphytoavailability will decrease overtime. Arsenic bioavailability is afunction of all sources of arsenic andEPA believes it has characterized thisaccurately. However, as notedelsewhere, arsenic toxicity is now beingstudied by the Agency in conjunctionwith a proposed new arsenic MCL andmay necessitate re-visiting today’sjudgement on agricultural use.

Our technical analysis that resulted inrevised risk is explained in a documenttitled Reevaluation of Non-groundwaterPathway Risks from Agricultural Use ofCoal Combustion Wastes, which isavailable in the docket for this action.

The comment on inappropriateness ofapplication frequency was caused by amisunderstanding of the language in theRTC. The rate used was actually everytwo or three years, not two or threetimes per year.

Two ongoing studies of wastes ofpotential use as agricultural soilsupplements relate to the use of FFCwastes for this purpose. Although thesedid not play a direct role in EPA’sdecision regarding FFC wastes, they aresummarized below and may play a rolein any future review of today’s decision.

(1) On August 20, 1999, the agencyproposed risk-based standards forcement kiln dust when used as a limingagent (see 64 FR 45632; August 20,1999). This analysis was completed in1998 just prior to our completion of theanalysis of FFC wastes when used asagricultural supplements. The CKDanalysis underwent a special peerreview by a standing committee that isused by the Department of Agriculture.We were not able to respond to the peerreview comments in either the CKDproposal or in our assessment for fossilfuel combustion wastes prior topublication of today’s regulatorydetermination. The comment period forthe CKD proposal closed on February17, 2000, and we will soon begin ourreview and analyses of the public andpeer review comments.

(2) In December 1999, EPA proposednew risk based standards for the use ofmunicipal sewage sludge under section503 of the Clean Water Act (the ‘‘503standards’’). It is important to note thatmunicipal sludge has unique properties,application rates, and uses. This makesit inappropriate to transfer the 503standards directly. Even though thestandards cannot be used directly, there

may be interest in the risk assessmentmethodologies used to support thedevelopment of these standards. Wedisagree that it is appropriate toestablish an arsenic limitation for coalcombustion ash when used foragricultural purposes equivalent to thatcontained in the EPA sewage sludgeland application regulations. Theorganic nature of sewage sludge makesit behave very differently from inorganicwastes such as coal combustion wastes.

We conclude at this time that arseniclevels in coal combustion wastes do notpose a significant risk to human healthwhen used for agricultural purposes. Weexpect to continue to review and refinethe related risk assessments notedabove, and will consider comments onthe Agency’s CKD and municipal sludgeproposals, as well as new scientificdevelopments related to this issue suchas additional peer review of the EPAMINTEQ model that was used as acomponent of our risk analysis. If theseefforts lead us to a differentunderstanding of the risks posed by coalcombustion wastes when used as asubstitute for agricultural lime, we willtake appropriate action to reevaluatetoday’s regulatory determination.

6. How Did Commenters React to theFindings Presented in the Report toCongress Related to Minefilling of CoalCombustion Wastes?

In the RTC, we explained that we hadinsufficient information to adequatelyassess the risks associated with the useof coal combustion wastes to fill surfaceand underground mines, whether themines are active or abandoned.Accordingly, we did not present atentative conclusion in the RTC withrespect to the use of coal combustionwastes for disposal in active mines orfor reclamation of mines. However, wedid indicate that regulation ofminefilling under hazardous wasterulemaking authority would remain anoption for minefilling, but that weneeded additional information prior tomaking a final decision. Thus, wesolicited additional information onspecific minefilling techniques,problems that may be inherent in thismanagement practice, risks posed bythis practice, existing state regulatoryrequirements, and environmentalmonitoring data. We indicated that wewould consider any comments and newinformation on minefilling received incomments and would address thismanagement practice in today’sregulatory determination.

Comments. A number of commentersresponded to our request by providingreports on individual case studies,including minefilling in underground as

well as in surface mines, descriptions ofcurrent state regulatory requirementsthat address this practice, monitoringdata, and information about riskanalysis techniques.

Industry commenters and one federalagency supported our decision to studythe issue further and not attempt toestimate the risks posed by this practiceusing existing methods. Further,numerous industry, academic, stateagency, and federal agency commentersencouraged EPA not to adopt nationalregulations or voluntary restrictions onminefilling because: (a) Nationwidestandards would not be conducive tothe site-specific evaluations needed toappropriately control these operations;(b) minefilling creates no adverseenvironmental impacts and EPAidentified no damage cases associatedwith this practice; (c) existing state andfederal regulatory programs andindustry practices are sufficient tocontrol any risks from this practice, and(d) federal standards would be anunreasonable interference with states’authorities.

Additionally, several industryrepresentatives, legislators, and statemining and environmental agenciesmentioned that this practice, when usedto remediate abandoned mine lands,will produce considerably greaterenvironmental benefits than risks.Further, they maintained thatminefilling is a relatively inexpensivemeans to stop or even reverse theenvironmental damage caused by oldmining practices. They indicated thatthrough remediation by minefilling,these lands frequently can be returnedto productive use. These commentersrecommended no additional regulationof this practice.

Public interest groups and othersbelieve we should regulate minefillingunder RCRA subtitle C or prohibit it forseveral reasons including weaknesses inexisting state and federal regulatoryprograms, the poor practices andperformance at existing minefillingoperations, and potential impacts onpotable water sources. Commentersstated that state programs effectivelyallow open dumps without any designor construction standards. Forminefilling, one commenter urged EPAto defer to state regulations only if theAgency specifically found existing stateregulations to be adequate.

EPA’s Analysis of Comments. Weagree with commenters that it isinappropriate to estimate the risksposed by minefilling using the existingmethods that we employed to conductrisk analyses for disposal of coalcombustion wastes in landfills andimpoundments. We found that the



groundwater models available to us areunsuitable for estimating risks fromminefills because, for example, they arenot able to account for conditions suchas fractured flow that are typical of thehydrogeology associated with miningoperations. In addition, as explainedabove, EPA’s primary groundwatermodel, EPACMTP, is now undergoingcareful review on the basis of commentsreceived on the Report to Congress.

We are aware that the use of coalcombustion wastes to conductremediation of mine lands can improveconditions caused by mining activities.We also recognize that this often is thelowest cost option for conducting theseremediation activities. We generallyencourage the practice of remediatingmine lands with coal combustion wasteswhen minefilling is conducted properlyand when there is adequate oversight ofthe remediation activities. We are alsoaware that relatively few states currentlyoperate regulatory or other programsthat specifically address minefilling,and that many states where this practiceis occurring do not have programs inplace. Based on our review ofinformation on existing state minefillprograms, we find serious gaps such asa lack of adequate controls andrestrictions on unsound practices, e.g.,no requirement for groundwatermonitoring and no control orprohibitions on waste placement in theaquifer.

At this time, we cannot reachdefinitive conclusions about theadequacy of minefilling practicesemployed currently in the United Statesand the ability of government oversightagencies to ensure that human healthand the environment are beingadequately protected. For example, it isoften impossible to determine if existinggroundwater quality has been impactedby previous mining operations or as aresult of releases of hazardousconstituents from the coal combustionwastes used in the minefillingapplications. Additionally, data andinformation submitted during the publiccomment period indicate that if thechemistry of the mine relative to thechemistry of the coal combustion wastesis not properly taken into account, theaddition of coal combustion wastes tocertain environmental settings can leadto an increase in hazardous metalsreleased into the environment. Thisphenomena has been substantiated bydata available to the Agency that showwhen pyrites, which can cause acidgeneration, have been improperly co-managed with coal combustion wastes,high levels of metals, especially arsenic,have leached from the wastes.

Finally, we concluded in our recentstudy of disposal of cement kiln dustthat placement of cement kiln dustdirectly in contact with ground waterled to a substantially greater release ofhazardous metal constituents than wepredicted would occur when suchplacement in ground water did notoccur. We are aware of situations wherecoal combustion wastes are being placedin direct contact with ground water inboth underground and surface mines.This could lead to increased releases ofhazardous metal constituents as a resultof minefilling. Thus, if the complexitiesrelated to site-specific geology,hydrology, and waste chemistry are notproperly taken into account whenminefilling coal combustion wastes, webelieve that certain minefilling practiceshave the potential to degrade, ratherthan improve, existing groundwaterquality and can pose a potential dangerto human health and the environment.Subsequent impacts on human healthwould depend in part on the proximityof drinking water wells, if any, toelevated levels of metals in the water.To date we are unaware of any provendamage cases resulting from minefillingoperations.

7. How Did Commenters React to EPA’sTentative Reliance on State Programsand Voluntary Industry Implementationof Improved Management Practices ToMitigate Potential Risks From CoalCombustion Waste Management?

In the RTC, EPA considered retainingthe exemption for coal combustionwastes disposed in surfaceimpoundments and landfills and formill rejects (pyrites) that are managedwith those wastes. The Agency cited areliance on state programs that haveimproved substantially over the past 10to 15 years and continue to improve,combined with voluntary industryimplementation of guidance forimproved management practices tomitigate risk. In addition, we stated thatwe would continue to work withindustries and states to promote andmonitor improvements.

To assess the adequacy of stateprograms and the potential for voluntaryimplementation of improved practices,we looked at the current number offacilities with liners and groundwatermonitoring (which may reflectvoluntary industry upgrading as well asstate requirements), and the number ofstate programs that currently haveauthority to require a broad range ofenvironmental controls. For unitsoperating as of 1995, we found thatamong utilities, slightly more than halfof the disposal units were surfaceimpoundments. Of these

impoundments, 38 percent hadgroundwater monitoring and 26 percenthad liners. Eighty-five percent of theutility landfills had groundwatermonitoring and 57 percent had liners.For non-utility landfills, 94 percent hadgroundwater monitoring, and between16 percent and 52 percent had liners.Between 1985 and 1995, 75 percent ofnew landfills and 60 percent of newsurface impoundments within theutility sector had been lined. We haveno information regarding the percentageof units built since 1995 (the date whenthe study we have relied on ended) thathave liners or groundwater monitoringprograms.

In looking at state programs, we foundthat for landfills, more than 40 stateshave the authority to require permits,siting restrictions, liners, leachatecollection, groundwater monitoring,closure controls, and cover/dustcontrols. Forty-three states can requireliners and 46 can require groundwatermonitoring compared to 11 and 28states, respectively, in the 1980’s. Forsurface impoundments, more than 40states have authority to require permits,siting restrictions, liners, groundwatermonitoring, and closure control; 33 canrequire leachate collection (there is noearlier comparison data for surfaceimpoundments). Forty-five states canrequire liners and 44 can requiregroundwater monitoring forimpoundments.

Comments. Industry and state agencycommenters generally stated that theAgency presented an accurate andcomprehensive analysis of stateprograms and that existing stateregulations are adequate. Public interestcommenters raised many concernsabout the adequacy of state programs:Either they do not have provisions tocover all elements of a protectiveprogram; they do not consistentlyimpose the requirements for which theyhave authority; and/or enforcement islax. Evidence commenters cited for theinadequacy of state programs includedgrandfathering for older managementunits and an apparent lack of controlsfor surface impoundments. For thesereasons, some found EPA’s review ofstate programs inaccurate or incomplete.

Public interest commenters were alsoskeptical of programs or efforts that relyon voluntary industry implementationbecause adherence to guidance is notguaranteed. Several commenters,primarily from industry, urged theAgency not to regulate pyrite co-management because of the voluntary,industry-developed guidance.

EPA’s Analysis of Comments. Webelieve that state programs have, in fact,substantially improved over the last 15



years or so. A high percentage of stateshave authority to impose protectivemanagement standards on surfaceimpoundments and landfills, especiallyfor groundwater monitoring, liners, andleachate collection, which mitigatepotential risks posed by these units.Over 40 states today have theseauthorities (33 states have authority torequire leachate collection in surfaceimpoundments). When authority understate groundwater and drinking waterregulations are considered, somecommenters have suggested that nearlyall states can address the management ofthese wastes. In addition, we believethat the trend to line and installgroundwater monitoring for new surfaceimpoundments and landfills is positive.However, as some commenters noted,we acknowledge that our state programreview looked at the authoritiesavailable to states and their overallregulatory requirements, not the specificrequirements applied to given facilities,which could be more or less stringent.In addition, we recognize thatindividual state programs may havesome gaps in coverage, as indicatedbelow, so that some controls may notnow be required at coal combustionwaste impoundments and landfills. Wewould expect to see some differences inthe application of requirements,depending on site-specific conditions.

One consistent trend that raisesconcern for the Agency is that controlsare much less common at surfaceimpoundment than at landfills. Even fornewer units at utilities (constructedbetween 1985 and 1995), liners are usedat 75 percent of landfills and only 60percent of surface impoundments. Alsoat newer units, groundwater monitoringis implemented at 88 percent of landfillsand at only 65 percent of surfaceimpoundments. Approximately one-third of coal combustion wastes weremanaged in surface impoundments in1995. Hydraulic pressure in a surfaceimpoundment increases the likelihoodof releases. We believe that groundwatermonitoring, at a minimum, in existingas well as new impoundments, is areasonable approach to monitorperformance of the unit and a criticalfirst step to addressing groundwaterdamage that may be caused by the unit.As of 1995, 38 percent of currentlyoperating utility surface impoundmentshad groundwater monitoring and only26 percent had liners.

While liners and groundwatermonitoring are applied more frequentlyat landfills, there are still many utilityand non-utility landfills that do nothave liners. In addition, 15 percent ofutility landfills do not havegroundwater monitoring, and some six

percent of non-utility landfills do nothave groundwater monitoring, based ona limited survey.

The utility industry through its tradeassociations has demonstrated awillingness to work with EPA todevelop protective managementpractices, and individual companieshave committed to upgrading their ownpractices. However, the Agencyrecognizes that participation involuntary programs is not assured. Also,individual facilities and companies maynot implement protective managementpractices and controls, for a variety ofreasons, in spite of their endorsement byindustry-wide groups.

We see a trend toward significantlyimproving state programs and voluntaryindustry investment in liners andgroundwater monitoring that we believecan mitigate potential risks over time.However, we identified significant gapsin controls already in place and, inparticular, requirements that may belacking in some states, either inauthority to impose the requirements orpotentially in exercising that authority.In response to comments, we furtheranalyzed risks posed by coalcombustion wastes taking into accountwaste characteristics and potential andactual damage cases. Based on theseanalyses, we concluded that coalcombustion wastes, in certaincircumstances, could unnecessarilyincrease risks to human health and theenvironment, and that a number ofproven damages have been documented,and that more are likely if we had beenable to conduct a more thorough searchof available state records and ifgroundwater monitoring data wereavailable for all units. We recognizethere will probably continue to be somegaps in practices and controls and areconcerned at the possibility that thesewill go unaddressed. We also believethe time frame for improvement ofcurrent practices is likely to be longer inthe absence of federal regulations.

D. What Is the Basis for Today’sDecisions?

Based on our collection and analysisof information reflecting the criteria insection 8002(n) of RCRA that EPA mustconsider in making today’s regulatorydetermination, materials developed inpreparing the RTC and supportivebackground materials, existing state andfederal regulations and programs thataffect the management of coalcombustion wastes, and commentsreceived from the public on the findingswe presented in the RTC, we haveconcluded the following:

1. Beneficial Uses

To the extent coal combustion wastesare used for beneficial purposes, webelieve they should continue to remainexempt from being regulated ashazardous wastes under RCRA.Beneficial purposes include wastestabilization, beneficial constructionapplications (e.g., cement, concrete,brick and concrete products, road bed,structural fill, blasting grit, wall board,insulation, roofing materials),agricultural applications (e.g., as asubstitute for lime) and otherapplications (absorbents, filter media,paints, plastics and metals manufacture,snow and ice control, wastestabilization). For the reasons presentedin section 3 below, we are separatelyaddressing the use of coal combustionwastes to fill surface or undergroundmines.

For beneficial uses other thanminefilling, we have reached thisdecision because: (a) We have notidentified any beneficial uses that arelikely to present significant risks tohuman health or the environment; and(b) no documented cases of damage tohuman health or the environment havebeen identified. Additionally, we do notwant to place any unnecessary barrierson the beneficial use of coal combustionwastes so that they can be used inapplications that conserve naturalresources and reduce disposal costs.

Disposal can be burdensome and failsto take advantage of beneficialcharacteristics of fossil fuel combustionwastes. About one-quarter of the coalcombustion wastes now generated arediverted to beneficial uses. Currently,the major beneficial uses of coalcombustion wastes include:Construction (including buildingproducts, road base and sub-base,blasting grit and roofing materials)accounting for approximately 21%;sludge and waste stabilization and acidneutralization accounting forapproximately 3%; and agricultural useaccounting for 0.1%. Based on ourconclusion that these beneficial uses ofcoal combustion wastes are not likely topose significant risks to human healthand the environment, we supportincreases in these beneficial uses of coalcombustion wastes.

Off-site uses in construction,including wallboard, present low riskdue to the coal combustion wastes beingbound or encapsulated in theconstruction materials or because thereis low potential for exposure. Use inwaste and sludge stabilization and inacid neutralization are either regulated(under RCRA for hazardous wastestabilization or when placed in



municipal solid waste landfills, orunder the Clean Water Act in the caseof municipal sewage sludge orwastewater neutralization), or appear topresent low risk due to low exposurepotential. While in the RTC, weexpressed concern over risks presentedby agricultural use, we now believe ourprevious analysis assumedunrealistically high-end conditions, andthat the risk, which we now believe tobe on the order of 10–6, does not warrantnational regulation of coal combustionwastes that are used in agriculturalapplications.

In the RTC, we were not able toidentify damage cases associated withthese types of beneficial uses, nor do wenow believe that these uses of coalcombustion wastes present a significantrisk to human health or theenvironment. While some commentersdisagreed with our findings, no data orother support for the commenters’position was provided, nor was anyinformation provided to show risk ordamage associated with agricultural use.Therefore, we conclude that none of thebeneficial uses of coal combustionwastes listed above pose risks ofconcern.

2. Disposal in Landfills and SurfaceImpoundments

In this section, we discuss availableinformation regarding the potential risksto human health and the environmentfrom the disposal of coal combustionwastes into landfills andimpoundments. In sum, our conclusionis these wastes can pose significant riskswhen mismanaged and, whilesignificant improvements are beingmade in waste management practicesdue to increasing state oversight, gaps inthe current regulatory regime remain.

We have determined that theestablishment of national regulations iswarranted for coal combustion wasteswhen they are disposed in landfills andsurface impoundments, because: (a) Thecomposition of these wastes has thepotential to present danger to humanhealth and the environment under somecircumstances and ‘‘potential’’ damagecases identified by EPA andcommenters, while not definitivelydemonstrating damage from coalcombustion wastes, lend support to ourconclusion that these wastes have thepotential to pose such danger; (b) wehave identified eleven cases of provendamage to human health and theenvironment by improper managementof these wastes when land disposed; (c)while industry management practiceshave improved measurably in recentyears, there is sufficient evidence thesewastes are currently being managed in

a significant number of landfills andsurface impoundments without propercontrols in place, particularly in thearea of groundwater monitoring; and (d)while there have been substantiveimprovements in state regulatoryprograms, we have also identifiedsignificant gaps either in states’regulatory authorities or in theirexercise of existing authorities.Moreover, we believe that the costs ofcomplying with regulations thatspecifically address these problems,while large in absolute terms, are onlya small percentage of industry revenues.

When we considered a tailoredsubtitle C regulatory approach, weestimated the potential costs ofregulation of coal combustion wastes(including the utility coal combustionwastes addressed in the 1993 Part 1determination) to be $1 billion per year.While large in absolute terms, weestimate that these costs are less than0.4 percent of industry sales. Ourpreliminary estimate of impact onprofitability is a function of facility size,among other factors. For the largerfacilities, we estimate that reported pre-tax profit margins of about 13 percentmay be reduced to about 11 percent. Forsmaller facilities, margins may bereduced from about nine percent toabout seven percent.

We identified that the constituents ofconcern in these wastes are metals,particularly hazardous metals. Wefurther identified that leachate fromvarious large volume wastes generatedat coal combustion facilitiesinfrequently exceed the hazardouswaste toxicity characteristic, for one ormore of the following metals: arsenic,cadmium, chromium, lead, andmercury. Additionally, when wecompared waste leachate concentrationsfor hazardous metals to theircorresponding MCLs (or potential MCLsin the case of arsenic), we found thatthere was a potential for risk as a resultof arsenic leaching from these wastes.The criteria we examined included theexisting arsenic MCL, a lower healthbased number presented in the RTC,and two assumed values in between. Weexamined this range of values because,as explained earlier in this notice, EPAis in the process of revising the currentMCL for arsenic to a lower value as aresult of a detailed study of arsenic indrinking water and we wanted to assessthe likely range of values that would beunder consideration by EPA. Once wehave completed a review of ourgroundwater model and made necessarychanges, we will reevaluate thepotential risks from metals in coalcombustion wastes and compare any

projected groundwater contamination tothe MCLs that exist at that time.

We also identified situations wherethe improper management of millrejects, a low volume and uniquelyassociated waste, with high volume coalcombustion wastes has the potential tocause releases of higher quantities ofhazardous metals. When these wastesare improperly managed, the mill rejectscan create an acidic environment whichenhances leachability and can lead tothe release of hazardous metals in highconcentrations from the co-managedwastes to ground water or surfacewaters. Thus, our analysis of thecharacteristics of coal combustionwastes leads us to conclude that thesewastes have the potential to pose risk tohuman health and the environment. Wealso plan to address such wastemanagement practices in oursubsequent rulemaking.

Additionally, we identified 11 provendamage cases that documented disposalof coal combustion wastes in unlinedlandfills or surface impoundments thatinvolved exceedences of primary MCLsor other health-based standards inground water or drinking water wells.Three of the proven damage cases wereon the EPA Superfund NationalPriorities List. Although these damagecases indicate that coal combustionwastes can present risks to humanhealth and the environment, they alsoshow the effectiveness of states’responses when damages wereidentified. All of the sites were at older,unlined units, with disposal occurringprior to 1993. None of these casesinvolved actual human exposure. Giventhe large number of facilities that do notnow conduct groundwater monitoring,we have a concern that additional casesof damage may be undetected.

As detailed in the RTC and explainedearlier in this notice, we identified thatthe states and affected industry havemade considerable progress in recentyears toward more effectivemanagement of coal combustion wastes.We also identified that the ability formost states to impose specific regulatorycontrols for coal combustion wastes hasincreased almost three-fold over the past15 years. Forty-three states can nowimpose a liner requirements at landfillswhereas 15 years ago, 11 had the sameauthority. In addition to regulatorypermits, the majority of states now haveauthority to require siting controls,liners, leachate collection, groundwatermonitoring, closure controls, and othercontrols and requirements for surfaceimpoundments and landfills.

Nonetheless, we have concluded thatthere are still gaps in the actualapplication of these controls and



requirements, particularly for surfaceimpoundments. While most states nowhave the appropriate authorities andregulations to require liners andgroundwater monitoring that wouldreduce or minimize the risks that wehave identified, we have also identifiednumerous situations where thesecontrols are not being applied. Forexample, only 26 percent of utilitysurface impoundments and 57 percentof utility landfills have liner systems inplace. We have insufficient informationto determine whether the use of thesecontrols is significantly different fornon-utility disposal units, due to a smallsample size.

While many of these unlined unitsmay be subject to grandfatheringprovisions that allow them to continueto operate without being lined, or maynot need to be lined due to site-specificconditions, we are especially concernedthat a substantial number of units do notemploy groundwater monitoring toensure that if significant releases occurfrom these unlined units, they will bedetected and controlled. In 1995,groundwater was monitored at only 38percent of utility surfaceimpoundments. While monitoring ismore frequent at landfills, there are stillmany units at which releases ofhazardous metals could go undetected.For example, of the approximately 300utility landfills, 45 newer landfills(15%) do not monitor ground water. Weare concerned that undetected releasescould cause exceedences of drinkingwater or other health-based standardsthat may threaten public health orgroundwater and surface waterresources. Thus, we conclude thatnational regulations would lead tosubstantial improvements in themanagement of coal combustion wastes.

3. MinefillingWe have determined that the

establishment of national regulations iswarranted for coal combustion wasteswhen they are placed in surface orunderground mines because: (a) Wewind that these wastes when minefilledhave the potential to present a danger tohuman health and the environment, (b)minefilling of these wastes has been anexpanding practice and there are fewstates that currently operatecomprehensive programs thatspecifically address the uniquecircumstances of minefilling, making itmore likely that any damage to humanhealth or the environment would gounnoticed or unaddressed, and (c) webelieve that the cost of complying withregulations that address these potentialdangers may not have a substantialimpact on this practice because

minefilling continues to grow in thosefew states that already havecomprehensive programs.

We recognize that at this time, wecannot quantify the nature of damagethat may be occurring or may occur inthe future as a result of using coalcombustion wastes as minefill. It isoften impossible to determine if existinggroundwater quality has been impactedby previous mining operations or as aresult of releases of hazardousconstituents from the coal combustionwastes used in minefilling applications.We have not as yet identified provendamage cases resulting from the use ofcoal combustion wastes for minefilling.

We also acknowledge that when thecomplexities related to site-specificgeology, hydrology, waste chemistryand interactions with the surroundingmatrix, and other relevant factors areproperly taken into account, coalcombustion wastes used as minefill canprovide significant benefits. However,when not done properly, minefilling hasthe potential to contaminate groundwater to levels that could damagehuman health and the environment.Based on materials submitted during thepublic comment period, coalcombustion wastes used as minefill canlead to increases in hazardous metalsreleased into ground water if the aciditywithin the mine overwhelms thecapacity of the coal combustion wastesto neutralize the acidic conditions. Thisis due to the increased leaching ofhazardous metals from the wastes. Thepotential for this to occur is furthersupported by data showing thatmanagement of coal combustion wastesin the presence of acid-generatingpyritic wastes has caused metals toleach from the combustion wastes atmuch higher levels than are predictedby leach test data for coal combustionwastes when strongly acidic conditionsare not present. Such strongly acidicconditions often exist at mining sites.

Although we have identified nodamage cases involving minefilling, weare also aware of situations where coalcombustion wastes are being placed indirect contact with ground water in bothsurface and underground mines. Weconcluded in our recent study of cementkiln dust management practices thatplacement of cement kiln dust in directcontact with ground water led to asubstantially greater release ofhazardous metals than we predictedwould occur when the waste was placedabove the water table. For this reason,we find that there is a potential forincreased releases of hazardous metalsas a result of placing coal combustionwastes in direct contact withgroundwater. Also, there are damage

cases associated with coal combustionwastes in landfills. The Agency believesit is reasonable to be concerned whensimilar quantities of coal combustionwastes are placed in mines, which oftenare not engineered disposal units and insome cases involve direct placement ofwastes into direct contact with groundwater.

We are concerned that governmentoversight is necessary to ensure thatminefilling is done appropriately toprotect human health and theenvironment, particularly sinceminefilling is a recent, but rapidlyexpanding use of coal combustionwastes. Government oversight has notyet ‘‘caught up’’ with the practiceconsistently across the country. Thereare some states that have programs thatspecifically address minefillingpractices. We are likely to find that theirprograms or certain elements of theirprograms could serve as the basis for acomprehensive, flexible set of nationalmanagement standards that ensureprotection of human health and theenvironment. We also believe that thesestate programs will provide valuableexperience in coordinating with SMCRAprogram requirements. However, at thistime, few of the programs arecomprehensive. Commenters pointedout, and we agree, there are significantgaps in other states. We believe thatadditional requirements for long-termgroundwater monitoring, and controlson wastes placed directly intogroundwater might be prudent.

E. What Approach Will EPA Take inDeveloping National Regulations?

We will not promulgate anyregulations for beneficial uses otherthan minefilling. We do not wish toplace any unnecessary barriers on thebeneficial use of fossil fuel combustionwastes so that they can be used inapplications that conserve naturalresources and reduce disposal costs.

Once we concluded there is a need forsome form of national regulation of coalcombustion wastes disposed in landfillsand surface impoundments and used asminefill, we considered two approaches.One approach would involvepromulgating subtitle D regulations,pursuant to sections 1008 and 4004(a) ofRCRA, that would contain criteriadefining landfills and impoundmentsthat would constitute ‘‘sanitarylandfills.’’ Any facility that failed tomeet the standards would constitute anopen dump, which is prohibited bysection 4005(a) of RCRA. Suchstandards would set a consistentbaseline for protective managementthroughout the country. We would alsowork with the Department of Interior,



Office of Surface Mining to evaluatewhether equivalent protectiveness forminefilling could be afforded by relyingon revision of existing SMCRAregulations or by relying on acombination of RCRA and SMCRAauthorities.

The second approach was topromulgate regulations pursuant toSubtitle C of RCRA, that would havebeen similar to our recent proposedregulation of cement kiln dust.Following this approach, EPA woulddevelop national management standardsbased on the Subtitle D open dumpcriteria as discussed above, as well as aset of tailored Subtitle C requirementspromulgated pursuant to RCRA section3004(x). If the wastes were properlymanaged in accordance with the subtitleD-like standards, they would not beclassified as hazardous wastes. Whenthey were not properly managed, theywould become listed hazardous wastessubject to tailored subtitle C standards.This scheme would be effective in eachstate authorized for the hazardous wasteprogram when that state modified itshazardous waste program to incorporatethe listing.

Under this approach, after states haveadopted the contingent listing, facilitiesthat have egregious or repeatedviolations of the management standardswould be moved into the subtitle Cprogram (subject to the tailored RCRA3004 (x) requirements, rather than to thefull set of subtitle C requirements).Thus, EPA would have authority toenforce the management standards.

The decision whether to establishregulations under subtitle C or D ofRCRA for disposal of coal combustionwastes in landfills and surfaceimpoundments and when minefilledwas a difficult one. EPA believes that,in this case, either approach wouldensure adequate protection of publichealth and the environment. Eithersubtitle C or D provides EPA with theauthority to prescribe protectivestandards for the management of thesewastes. Moreover, as described above,the standards that EPA would adoptunder either regime, because of theflexibility provided by section 3004 (x),would be substantively the same. Also,under either approach, a facility thatfails to comply with the standards is inviolation of RCRA—in the case ofsubtitle C, the facility would be inviolation of the tailored standardspromulgated under section 3004(x). Inthe case of subtitle D, the facility wouldbe in violation of the prohibition insection 4005(a) of RCRA against ‘‘opendumping.’’ The prohibition against opendumping is, however, enforceable onlyby private citizens and states, not EPA.

Management standards establishedunder the authority of subtitle C(including tailored section 3004(x)standards) are also enforceable by EPA.It appears that more than 40 statesalready have sufficient authority toimplement most, if not all of thenational standards we contemplatewould be appropriate for surfaceimpoundments and landfills. Onedifference between the two regimes maybe that states could cite revised subtitleD standards as a basis for exercisingtheir existing authorities morevigorously, potentially promotingswifter adoption of appropriate controlsfor surface impoundments and landfills.In addition, subtitle D standards wouldbe applicable and enforceable bycitizens as soon as the federal rulebecomes effective. subtitle C standardsin contrast, would not apply untilincorporated into state subtitle Cprograms. For minefilling, we wouldalso explore SMCRA as a possiblemechanism to speed implementation,even if we relied on subtitle D toestablish protective standards, becauseminefilling operations already aresubject to SMCRA permitting authority.

Taking into account the common anddistinct features of these alternativeapproaches, EPA believes at this time,based on the current record, that subtitleD regulations are the more appropriatemechanism for a number of reasons. Inview of the very substantial progressthat states have made in regulatingdisposal of fossil fuel combustionwastes in surface impoundments andlandfills in recent years, as well as theactive role that this industry has playedrecently in facilitating responsible wastedisposal practices, EPA believes thatsubtitle D controls will providesufficient clarity and incentive for statesto close the remaining gaps in coverage,and for facilities to ensure that theirwastes are managed properly.

For minefilling, although we haveconsiderable concern about certaincurrent practices (e.g., placementdirectly into groundwater), we have notyet identified a case where placement ofcoal wastes can be determined to haveactually caused increased damage toground water. In addition, there is afederal regulatory program—SMCRA—expressly designed to addressenvironmental risks associated withcoal mines. Finally, given that stateshave been diligent in expanding andupgrading programs for surfaceimpoundments and landfills, we believethey will be similarly responsive inaddressing environmental concernsarising from this emerging practice. Inshort, we arrive at the same conclusions,for substantially the same reasons, for

this practice as we did for landfills andsurface impoundments: that subtitle Dcontrols, or upgraded SMCRA controlsor a combination of the two, shouldprovide sufficient clarity and incentiveto ensure proper handling of this wastewhen minefilled. Having determinedthat subtitle C regulation is notwarranted for all other managementpractices, EPA does not see a basis inthe record for carving this one practiceout for separate regulatory treatment.

Once these subtitle D regulations areeffective, facilities would be subject tocitizen suits for any violation of thestandards. If EPA were addressingwastes that had not been addressed bythe states (or the federal government) inthe past, or an industry with wideevidence of irresponsible solid wastemanagement practices, EPA may wellconclude that the additional incentivesfor improvement and complianceprovided by the subtitle C scheme—thethreat of federal enforcement and thestigma associated with impropermanagement of RCRA subtitle C waste—were necessary. But the record before usindicates that the structure and thesanctions associated with a subtitle Dapproach (or a SMCRA approach if EPAdetermines it is equivalent) should besufficient.

We also see a potential downside topursuing a subtitle C approach. Section8002(n)(8) directs us to consider, amongother factors, ‘‘the current and potentialutilization of such materials.’’ Industrycommenters have indicated that theybelieve subjecting any coal combustionwastes to a subtitle C regime wouldplace a significant stigma on thesewastes, the most important effect beingthat it would adversely impactbeneficial reuse. As we understand it,the concern is that, even thoughbeneficially reused waste would not behazardous under the contemplatedsubtitle C approach, the link to subtitleC would nonetheless tend to discouragepurchase and re-use of the wastes orproducts made from the wastes. We donot wish to place any unnecessarybarriers on the beneficial uses of thesewastes, because they conserve naturalresources, reduce disposal costs andreduce the total amount of wastedestined for disposal. States andindustry have also expressed concernthat regulation under subtitle C couldcause a halt in the use of coalcombustion wastes to reclaimabandoned and active mine sites. If thiswere to occur, it would be unfortunatein that when done properly, werecognize this practice can lead tosubstantial environmental benefits. EPAbelieves the contingent managementscheme we discussed should diminish



any stigma that might be associated withthe subtitle C link. Nonetheless, weacknowledge the possibility that theapproach could have unintendedconsequences. We would be particularlyconcerned about any adverse effect onthe beneficial re-use market for thesewastes because more than 23 percent(approximately 28 million tons) of thetotal coal combustion waste generatedeach year is beneficially reused and anadditional eight percent (nine milliontons) is used for minefilling. EPAbelieves that such reuse whenperformed properly, is by far theenvironmentally preferable destinationfor these wastes, including whenminefilled. Normally, concerns aboutstigma are not a deciding factor in EPA’sdecisions under RCRA, given the centralconcern under the statute for protectionof human health and the environment.However, given our conclusion that thesubtitle D approach here should be fullyeffective in protecting human healthand the environment, and given thelarge and salutary role that beneficialreuse plays for this waste, concern overstigma is a factor supporting ourdecision today that subtitle C regulationis unwarranted in light of our decisionto pursue a subtitle D approach.

As we proceed with regulationdevelopment, we will also takeenforcement action under RCRA section7003 when we identify cases ofimminent and substantialendangerment. We will also useSuperfund remedial and emergencyresponse authorities under theComprehensive EnvironmentalResponse Compensation and LiabilitiesAct (CERCLA), as appropriate, toaddress damages that result in risk tohuman health and the environment. Wewill also take into account newinformation as it becomes available. Weare awaiting a National Academy ofSciences report scheduled to be releasedin June 2000. This report will present acomprehensive review of mercury andrecommendations on appropriateadverse health effects levels for thisconstituent. We believe that this reportwill enhance our understanding of therisks due to exposure to mercury, andwe will review and assess itsimplications for today’s decision onfossil fuel combustion wastes. Theseefforts may result in a re-evaluation ofthe risks posed by managing coalcombustion wastes.

3. What Is the Basis for EPA’sRegulatory Determination for OilCombustion Wastes?

A. What Is the Agency’s DecisionRegarding the Regulatory Status of OilCombustion Wastes and Why Did EPAMake This Decision?

We have determined that it is notappropriate to issue regulations undersubtitle C of RCRA applicable to oilcombustion wastes because: (a) We havenot identified any beneficial uses thatare likely to present significant risks tohuman health or the environment; and(b) except for a limited number ofunlined surface impoundments, wehave not identified any significant risksto human health and the environmentassociated with any waste managementpractices.

We intend to work with the State ofMassachusetts and the owners andoperators of the remaining two oilcombustion facilities that currentlymanage their wastes in unlined surfaceimpoundments to ensure that theirwastes are managed in a manner thatprotects human health and theenvironment.

B. What Were EPA’s Tentative Decisionsas Presented in the Report to Congressand Why Did EPA Make That Decision?

In the Report to Congress, we statedthat the only management scenario forwhich we found risks posed bymanagement of oil combustion wasteswas when oil combustion wastes aremanaged in unlined surfaceimpoundments. The Report to Congressfurther explained that we wereconsidering two approaches to addressthese identified risks. One approach wasto regulate using RCRA subtitle Cauthority. The other approach was toencourage voluntary changes so that nooil combustion wastes are managed inunlined surface impoundments. Thisvoluntary approach is based on recentindustry and state regulatory trends toline oil combustion waste disposal unitsand implement groundwatermonitoring.

We also tentatively decided that theexisting beneficial uses of oilcombustion wastes should remainexempt from RCRA subtitle C. There arefew existing beneficial uses of thesewastes, which include use in concreteproducts, structural fill, roadbed fill,and vanadium recovery. We determinedthat no significant risks to human healthexist for the beneficial uses of thesewastes. For the case of facilities thataccept these wastes to recover vanadiumfrom them, we explained that if thewastes resulting from the metal recoveryprocesses are hazardous, they will be

subject to existing hazardous wasterequirements.

We found in most cases that OCW,whether managed alone or co-managed,are rarely characteristically hazardous.Additionally, we identified nosignificant ecological risks posed byland disposal of OCW. We identifiedonly one documented damage caseinvolving OCW in combination withcoal combustion wastes, and it did notaffect human receptors.

Although most of the disposed oilcombustion wastes are managed in linedsurface impoundments, we did identifysix utility sites where wastes aremanaged in unlined units. Weexpressed particular concern withmanagement of these wastes in unlinedsettling basins and impoundments thatare designed and operated to dischargethe aqueous portion of the wastes toground water. Our risk analysisindicated that, in these situations, threemetals—arsenic, nickel, andvanadium—may pose potential risk bythe groundwater pathway.

C. How Did Commenters React to EPA’sTentative Decisions and What WasEPA’s Analysis of Their Comments?

Because we were able to identify sofew unlined surface impoundments, theonly management scenario for which wefound risks, the primary focus of thecomments regarding oil combustionwastes was on the six unlined surfaceimpoundments that we identified. Inaddition, there were extensivecomments on our modeling and riskassessment methodology for thegroundwater pathway that areapplicable to our assessment of risksposed by oil combustion wastes.

1. How Did Commenters React to theSix Unlined Oil Combustion WasteSurface Impoundments That WeIdentified?

Comments. Industry commenterssupported the approach to encouragevoluntary changes in industry practiceson a site-specific basis, and explainedwhy they believed hazardous wasteregulations are unnecessary. Theenvironmental community supportedthe development of hazardous wasteregulations.

EPA’s Analysis of Comments. In theRTC, we identified that our onlyconcern about oil combustion wasteswas based on the potential for migrationof arsenic, nickel, and vanadium fromunlined surface impoundments. Werequested information on this issue anddid not receive any additional data and/or information to refute our tentativefinding stated in the RTC that these



unlined surface impoundments couldpose a significant risk.

As stated in the RTC, there are onlysix sites involving two companies thathave unlined surface impoundments.Four of the sites are in Florida and areoperated by one company. The companyoperating the four unlinedimpoundments in Florida isundertaking projects to mitigatepotential risks posed by their unlinedmanagement units. At a May 21, 1999public hearing, the company announcedits plans to remove all the oil ash andbasin material from its unlinedimpoundments and to line or close theunits. The company informed us inJanuary 2000 that it had completed thelining of all the units. Based on thisinformation, we do not believe thatthese units pose a significant risk tohuman health and the environment.

The other two sites with unlinedimpoundments are operated by oneutility in Massachusetts. Both sites arepermitted under Massachusetts’ groundwater discharge permit program andhave monitoring wells around theunlined basins. Arsenic is monitored forcompliance with state regulations.Although the company expressed noplans to line their impoundments, theyare preparing to implement monitoringfor nickel and vanadium in groundwater around the waste managementunits. We have been working with theState and the company to obtainadditional information to evaluate thesetwo management units. We willcontinue this effort and will work withthe company and the State to ensurethat any necessary measures are takenso that these wastes are managed in amanner that protects human health andthe environment.

2. How Did Commenters React to theGroundwater Modeling and RiskAssessment Analyses Conducted byEPA to Support Its Findings in theReport to Congress?

Comments. Industry and publicinterest group commenters submitteddetailed critiques of the ground watermodel, EPACMTP, that we used for ourrisk analysis. Industry commentersbelieve that the model will overestimatethe levels of contaminants that maymigrate down-gradient from disposedwastes. Environmental groups expressedthe opposite belief; that is, that themodel underestimates down-gradientchemical concentrations and, therefore,underestimates the potential risk posedby oil combustion wastes.

EPA’s Analysis of the Comments. Weare carefully reviewing all of thecomments on the model and havedetermined that the process of

thoroughly investigating all of thecomments will take substantially moretime to complete than is availablewithin the court deadline for issuingthis regulatory determination. At thistime, we are uncertain of the overalloutcome of our analysis of the issuesraised in the comments. Accordingly,we have decided not to use the resultsof our ground water pathway riskanalysis in support of today’s regulatorydetermination on fossil fuel combustionwastes. As explained above, we believethat actions have been taken or areunder way by specific companies and/or the State of Massachusetts to addresspotential risks at the six impoundmentsthat we have been able to identify.Therefore we believe that furthergroundwater analysis is unnecessary atthis time.

Meanwhile, we will continue withour analysis of comments on thegroundwater model and risk analysis.This may involve changing orrestructuring various aspects of themodel, if appropriate. It may alsoinclude additional analyses todetermine whether any changes to themodel or modeling methodology wouldmaterially affect the groundwater riskanalysis results that were reported inthe RTC. If our investigations reveal thata reanalysis of groundwater risks isappropriate, we will conduct theanalysis and reevaluate today’sdecisions as appropriate.

In addition to our ongoing review ofcomments on the groundwater model,one element of the model—the metalspartitioning component called‘‘MINTEQ’’—has been proposed foradditional peer review. When thisadditional peer review is completed, wewill take the findings andrecommendations into account in anyoverall decision to re-evaluate today’sregulatory determination.

D. What Is the Basis for Today’sDecisions?

We have determined that it is notappropriate to establish nationalregulations applicable to oil combustionwastes because: (a) We have notidentified any beneficial uses that arelikely to present significant risks tohuman health or the environment; and(b) except for two remaining unlinedsurface impoundments, we have notidentified any significant risks to humanhealth and the environment associatedwith any waste management practices.As explained in the previous section,we intend to work with the State ofMassachusetts and the owners andoperators of the remaining two oilcombustion facilities that currentlymanage their wastes in unlined surface

impoundments to ensure that anynecessary measures are taken so thattheir wastes are managed in a mannerthat protects human health and theenvironment. Given the limited numberof sites at issue and our ability toadequately address risks from thesewaste management units through site-specific response measures, we see noneed for issuing regulations undersubtitle C or D of RCRA.

4. What Is the Basis for EPA’sRegulatory Determination for NaturalGas Combustion Wastes?

A. What Is the Decision Regarding theRegulatory Status of Natural GasCombustion Wastes?

For the reasons described in theReport to Congress (pages 7–1 to 7–3),EPA has decided that regulation ofnatural gas combustion wastes ashazardous wastes under RCRA subtitleC or D is not warranted. The burning ofnatural gas generates virtually no solidwaste.

B. What Was EPA’s Tentative Decisionas Presented in the Report to Congress?

The Agency’s tentative decision wasto retain the subtitle C exemption fornatural gas combustion becausevirtually no solid waste is generated.

C. How Did Commenters React to EPA’sTentative Decision?

No commenters on the RTC disagreedwith EPA’s findings or its tentativedecision to continue the exemption fornatural gas combustion wastes.

Specific comments on this issuesupported our tentative decision toretain the exemption for natural gascombustion waste. One industryassociation encouraged us to foster theuse of natural gas as a substitute forother fossil fuels. While some publicinterest group commenters disagreedbroadly with our tentative conclusionsto retain the exemption for fossil fuelcombustion wastes, they did notspecifically address natural gascombustion wastes.

D. What Is the Basis for Today’sDecision?

The burning of natural gas generatesvirtually no solid waste. We, therefore,believe that there is no basis for EPAdeveloping subtitle C or D regulationsapplicable to natural gas combustionwastes.



5. What Is the History of EPA’sRegulatory Determinations for FossilFuel Combustion Wastes?

A. On What Basis Is EPA Required ToMake Regulatory DeterminationsRegarding the Regulatory Status ofFossil Fuel Combustion Wastes?

Section 3001(b)(3)(C) of the ResourceConservation and Recovery Act (RCRA)as amended requires that, aftercompleting a Report to Congressmandated by section 8002(n) of RCRA,the EPA Administrator must determinewhether Subtitle C (hazardous waste)regulation of fossil fuel combustionwastes is warranted.

B. What Was EPA’s General Approachin Making These RegulatoryDeterminations?

We began our effort to make ourdetermination of the regulatory status offossil fuel combustion wastes bystudying high volume coal combustionwastes managed separately from otherfossil fuel combustion wastes that aregenerated by electric utilities. InFebruary 1988, EPA published theReport to Congress on Wastes from theCombustion of Coal by Electric UtilityPower Plants. The report addressed fourlarge-volume coal combustion wastesgenerated by electric utilities andindependent power producers whenmanaged alone. The four wastes are flyash, bottom ash, boiler slag, and flue gasdesulfurization (FGD) wastes. Thereport did not address co-managedutility coal combustion wastes(UCCWs), other fossil fuel wastesgenerated by utilities, or wastes fromnon-utility boilers burning any type offossil fuel. Because of other priorities atthe time, we did not immediatelycomplete a determination of theregulatory status of these large-volumecoal combustion wastes.

C. What Happened When EPA Failed ToIssue Its Determination of theRegulatory Status of the Large VolumeUtility Combustion Wastes in a TimelyManner?

In 1991, a suit was filed against EPAfor not completing a regulatorydetermination on fossil fuel combustionwastes (Gearhart v. Reilly, Civil No. 91–2345 (D.D.C.)). On June 30, 1992, theAgency entered into a Consent Decreethat established a schedule for us tocomplete the regulatory determinationfor all fossil fuel combustion wastes intwo phases:

• The first phase covers fly ash,bottom ash, boiler slag, and flue gasemission control wastes from thecombustion of coal by electric utilitiesand independent commercial power

producers. These are the four largevolume wastes that were the subject ofthe 1988 Report to Congress describedabove. We refer to this as the Part 1regulatory determination.

• The second phase covers all of the‘‘remaining’’ fossil fuel combustionwastes not covered in the Part 1regulatory determination. We refer tothis as the Part 2 regulatorydetermination, which is the subject oftoday’s action. Under the current court-order, EPA was directed to issue thePart 2 regulatory determination by April25, 2000.

D. When Was the Part 1 RegulatoryDecision Made and What Were EPA’sFindings?

In 1993, EPA issued the Part 1regulatory determination, in which weretained the exemption for Part 1 wastes(see 58 FR 42466; August 9, 1993). Thefour Part 1 large-volume utility coalcombustion wastes (UCCWs) are alsoaddressed in the Part 2 regulatorydetermination when they are co-managed with low-volume fossil fuelcombustion wastes not covered in thePart 1 determination.

6. Executive Orders and LawsAddressed in Today’s Action

A. Executive Order 12866—Determination of Significance

Under Executive Order 12866, (58 FR51735, Oct. 4, 1993) we must determinewhether the regulatory action is‘‘significant’’ and therefore subject toreview by the Office of Management andBudget (OMB) and the requirements ofthe Executive Order. The Order defines‘‘significant regulatory action’’ as onethat is likely to result in a rule that may:

• Have an annual effect on theeconomy of $100 million or more oradversely affect in a material way theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local, or tribal governments orcommunities;

• Create a serious inconsistency orotherwise interfere with an action takenor planned by another agency;

• Materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs or the rights andobligations of recipients thereof; or

• Raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesin the Executive Order.’’

Under Executive Order 12866, this isa ‘‘significant regulatory action.’’ Thus,we have submitted this action to OMBfor review. Changes made in response toOMB suggestions or recommendationsare documented in the public record.

B. Regulatory Flexibility Act (RFA), asAmended by the Small BusinessRegulatory Enforcement Fairness Act of1996 (SBREFA), 5 U.S.C. 601 et seq.

Today’s action is not subject to theRFA, which generally requires anagency to prepare a regulatory flexibilityanalysis for any rule that will have asignificant economic impact on asubstantial number of small entities.The RFA applies only to rules subject tonotice-and-comment rulemakingrequirements under the AdministrativeProcedure Act (APA) or any otherstatute. This action is not subject tonotice and comment requirementsunder the APA or any other statute.Today’s action is being taken pursuantto section 3001(b)(3)(C) of the ResourceConservation and Recovery Act. Thisprovision requires EPA to make adetermination whether to regulate fossilfuel combustion wastes after submissionof its Report to Congress and publichearings and an opportunity forcomment. This provision does notrequire the publication of a notice ofproposed rulemaking and today’s actionis not a regulation. See AmericanPortland Cement Alliance v. E.P.A., 101F.3d 772 (D.C.Cir. 1996).

C. Paperwork Reduction ActInformation Collection Requests

Today’s final action contains noinformation collection requirements.

D. Unfunded Mandates Reform Act

Today’s action is not subject to therequirements of sections 202 and 205 ofthe Unfunded Mandates Reform Act of1995 (UMRA), Public Law 104–4. TitleII of UMRA establishes requirements forfederal agencies to assess the effects oftheir regulatory actions on state, local,and tribal governments and the privatesector. Under section 202 of the UMRA,EPA generally must prepare a writtenstatement, including a cost-benefitanalysis, for proposed and final ruleswith ‘‘federal mandates’’ that may resultin expenditures to state, local, and tribalgovernments, in the aggregate, or to theprivate sector, of $100 million or morein any one year.

Before we issue a rule for which awritten statement is needed, section 205of the UMRA generally requires us toidentify and consider a reasonablenumber of regulatory alternatives andadopt the least costly, most cost-effective, or least burdensomealternative that achieves the rule’sobjectives. Section 205 doesn’t applywhen it is inconsistent with applicablelaw. Moreover, section 205 allows us toadopt an alternative other than the leastcostly, most cost-effective, or least



burdensome alternative if the final ruleexplains why that alternative was notadopted. Before we establish anyregulatory requirements that maysignificantly affect small governments,including tribal governments, we musthave developed under section 203 of theUMRA a small-government-agency plan.The plan must provide for notifyingpotentially affected small governments,enabling them to have meaningful andtimely input in the developing EPAregulatory proposals with significantfederal intergovernmental mandates,and informing, educating, and advisingsmall governments on compliance withthe regulatory requirements.

Today’s final action contains nofederal mandates (under the regulatoryprovisions of Title II of the UMRA) forstate, local, or tribal governments or theprivate sector. Today’s final actionimposes no enforceable duty on anystate, local or tribal governments or theprivate sector.

In addition, we have determined thisaction contains no federal mandate thatmay result in expenditures of $100million or more for state, local, andtribal governments, in the aggregate, orthe private sector in any one year.

E. Executive Order 13132: FederalismExecutive Order 13132, entitled

Federalism (64 FR 43255, August 10,1999) requires us to develop anaccountable process to ensuremeaningful and timely input by stateand local officials in the development ofregulatory policies that have federalismimplications. The executive orderdefines policies that have federalismimplications to include regulations thathave substantial direct effects on thestates, on the relationship between thenational government and the states, oron the distribution of power andresponsibilities among the variouslevels of government.

Under section 6 of Executive Order13132, we may issue a regulation thathas federalism implications, thatimposes substantial direct compliancecosts, and that isn’t required by statute,only if the federal government providesfunds the direct compliance costsincurred by state and local governments,or if EPA consults with state and localofficials early in the development of theproposed regulation. Also, EPA mayissue a regulation that has federalismimplications and that preempts statelaw, only if we consult with state andlocal officials early in the developmentof the proposed regulation.

If EPA complies by consulting,Executive Order 13132 requires us toprovide OMB, in a separately identifiedsection of the rule’s preamble, a

federalism summary impact statement(FSIS). The FSIS must describe theextent of our prior consultation withstate and local officials, summarizingthe nature of their concerns and ourposition supporting the need for theregulation, and state the extent to whichthe concerns of state and local officialshave been met. Also, when we transmita draft final rule with federalismimplications to OMB for review underExecutive Order 12866, our federalismofficial must include a certification thatEPA has met the requirements ofExecutive Order 13132 in a meaningfuland timely manner.

Today’s final action does not havefederalism implications. It will not havea substantial direct affect on the States,on the relationship between the nationalgovernment and the States, or on thedistribution of power andresponsibilities among the variouslevels of government, as specified inExecutive Order 13132. This is becauseno requirements are imposed by today’saction, and EPA is not otherwisemandating any state or local governmentactions. Thus, the requirements ofsection 6 of the Executive Order do notapply to this final action.

F. Executive Order 13084: Consultationand Coordination With Indian TribalGovernments

Under Executive Order 13084, EPAmay take an action that isn’t required bystatute, that significantly or uniquelyaffects the communities of Indian tribalgovernments, and that imposessubstantial direct compliance costs onthose communities, only if the federalgovernment provides the fundsnecessary to pay the direct compliancecosts incurred by the tribal governmentsor EPA consults with thosegovernments. If EPA complies byconsulting, Executive Order 13084requires us to describe in a separatelyidentified section of the preamble to therule the extent of our prior consultationwith representatives of affected tribalgovernments, summarizing of the natureof their concerns, and state the need forthe regulation. Also, Executive Order13084 requires EPA to develop aneffective process permitting electedofficials and other representatives ofIndian tribal governments ‘‘to providemeaningful and timely input in thedevelopment of regulatory policies onmatters that significantly or uniquelyaffect their communities.’’

Today’s final action does notsignificantly or uniquely affect thecommunities of Indian tribalgovernments. This is because today’saction by EPA involves no regulationsor other requirements that significantly

or uniquely affect Indian tribalgovernments. So, the requirements ofsection 3(b) of Executive Order 13084do not apply to this action.

G. Executive Order 13045: Protection ofChildren From Environmental HealthRisks and Safety Risks

‘‘Protection of Children fromEnvironmental Health Risks and SafetyRisks’’ (62 FR 19885, April 23, 1997)applies to any rule that: (1) Is‘‘economically significant’’ as definedunder Executive Order 12866, and (2)concerns an environmental health orsafety risk that EPA has reason tobelieve may have a disproportionateeffect on children. If the regulatoryaction meets both criteria, we mustevaluate the environmental health orsafety effects of the planned rule onchildren and explain why the plannedregulation is preferable to otherpotentially effective and reasonablyfeasible alternatives considered by theAgency.

Today’s final action isn’t subject tothe Executive Order because it is noteconomically significant as defined inExecutive Order 12866, and because wehave no reason to believe theenvironmental health or safety risksaddressed by this action present adisproportionate risk to children. Riskswere thoroughly evaluated during thecourse of developing today’s decisionand were determined not todisproportionately affect children.

H. National Technology Transfer andAdvancement Act of 1995

As noted in the proposed rule, section12(d) of the National TechnologyTransfer and Advancement Act of 1995(‘‘NTTAA’’), Public Law. No. 104–113,section12(d) (15 U.S.C. 272 note) directsEPA to use voluntary-consensusstandards in its regulatory activitiesunless doing so would be inconsistentwith applicable law or otherwiseimpractical. Voluntary-consensusstandards are technical standards (suchas materials specifications, testmethods, sampling procedures, andbusiness practices) that are developed oradopted by voluntary-consensusstandards bodies. The NTTAA directsus to explain to Congress, through OMB,when we decide not to use available andapplicable voluntary-consensusstandards.

Today’s final action involves notechnical standards. So, EPA didn’tconsider using any voluntary-consensusstandards.



I. Executive Order 12898:Environmental Justice

EPA is committed to addressingenvironmental justice concerns and isassuming a leadership role inenvironmental justice initiatives toenhance environmental quality for allpopulations in the United States. TheAgency’s goals are to ensure that nosegment of the population, regardless ofrace, color, national origin, or incomebears disproportionately high andadverse human health or environmentalimpacts as a result of EPA’s policies,programs, and activities, and that allpeople live in safe and healthfulenvironments. In response to ExecutiveOrder 12898 and to concerns voiced bymany groups outside the Agency, EPA’sOffice of Solid Waste and EmergencyResponse formed an EnvironmentalJustice Task Force to analyze the arrayof environmental justice issues specificto waste programs and to develop anoverall strategy to identify and address

these issues (OSWER Directive No.9200.317).

J. Congressional Review Act

The Congressional Review Act, 5U.S.C. 801 et seq., as added by the SmallBusiness Regulatory EnforcementFairness Act of 1996, does not applybecause this action is not a rule forpurposes of 5 U.S.C. 804(3). Rather, thisaction is an order as defined by 5 U.S.C.551(6).

7. How To Obtain More Information

Documents related to this regulatorydetermination, including EPA’sresponse to the public comments, areavailable for inspection in the docket.The relevant docket numbers are: F–99–FF2D–FFFFF for the regulatorydetermination, and F–99–FF2P–FFFFFfor the RTC. The RCRA DocketInformation Center (RIC), is located atCrystal Gateway I, First Floor, 1235Jefferson Davis Highway, Arlington, VA.

The RIC is open from 9 a.m. to 4 p.m.,Monday through Friday, excludingFederal holidays. To review docketmaterials, it is recommended that thepublic make an appointment by calling703-603–9230. The public may copy amaximum of 100 pages from anyregulatory docket at no charge.Additional copies cost $0.15/page. Theindex and some supporting materialsare available electronically. See theSupplementary Information section forinformation on accessing them.

List of Subjects in 40 CFR Part 261

Fossil fuel combustion waste, Coalcombustion, Gas combustion, Oilcombustion, Special wastes, Bevillexemption

Dated: April 25, 2000.Carol M. Browner,Administrator.[FR Doc. 00–11138 Filed 5–19–00; 8:45 am]BILLING CODE 6560–50–U
