[Federal Register Volume 85, Number 246 (Tuesday, December 22, 2020)]
[Proposed Rules]
[Pages 83478-83484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27525]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 /
Proposed Rules
[[Page 83478]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2020-0463; FRL-10015-45-OLEM]
RIN 2050-AG98
Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Reconsideration of
Beneficial Use Criteria and Piles; Notification of Data Availability
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule; notice of data availability; request for
comment.
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SUMMARY: The Environmental Protection Agency (EPA) is announcing the
availability of new information and data pertaining to the agency's
August 14, 2019 proposed rule Federal Register publication. EPA is
seeking public comment on whether this additional information may
inform the Agency's reconsideration of the beneficial use definition
and provisions for coal combustion residuals (CCR) accumulations.
Moreover, the Agency will accept additional information and data from
the public that may further help inform the Agency's reconsideration of
these two issues. The Agency is requesting comment only on those two
issues. EPA is not reopening any other aspect of the proposal, the CCR
regulations, or the underlying support documents that were previously
available for comment.
DATES: Comments must be received on or before February 22, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2020-0463, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
Instructions: All submissions received must include the Docket ID
No. EPA-HQ-OLEM-2020-0463 for this rulemaking. Comments received may be
posted without change to https://www.regulations.gov/, including any
personal information provided. For detailed instructions on sending
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document. Out of an abundance of caution for members of
the public and our staff, the EPA Docket Center and Reading Room are
closed to the public, with limited exceptions, to reduce the risk of
transmitting COVID-19. Our Docket Center staff will continue to provide
remote customer service via email, phone, and webform. We encourage the
public to submit comments via https://www.regulations.gov/ or email, as
there may be a delay in processing mail and faxes. Hand deliveries and
couriers may be received by scheduled appointment only. For further
information on EPA Docket Center services and the current status,
please visit us online at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: For questions concerning this
document, contact Rita Chow, Office of Resource Conservation and
Recovery, Resource Conservation and Sustainability Division,
Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Mail Code
5306-P, Washington DC 20460; telephone number: (703) 308-6158; email
address: Chow.Rita@epa.gov. For more information on this action please
visit https://www.epa.gov/coalash.
SUPPLEMENTARY INFORMATION:
I. Public Participation
A. Docket
EPA has established a docket for this action under Docket ID No.
EPA-HQ-OLEM-2020-0463. EPA has previously established dockets for the
April 17, 2015, CCR final rule (80 FR 21302) under Docket ID No. EPA-
HQ-RCRA-2009-0640; and for the August 14, 2019, CCR proposed rule (84
FR 40353) under Docket ID No. EPA-HQ-OLEM-2018-0524. All documents in
the docket are listed in an index at https://www.regulations.gov/ under
Docket ID No. EPA-HQ-OLEM-2018-0524. Publicly available docket
materials are available electronically at https://www.regulations.gov/
or in hard copy at the EPA Docket Center. The EPA Docket Center hours
of operation are 8:30 a.m.-4:30 p.m., Monday through Friday (except
Federal Holidays). The telephone number for the EPA Docket Center is
(202) 566-1742.
The EPA is suspending its Docket Center and Reading Room for public
visitors, with limited exceptions, to reduce the risk of transmitting
COVID-19. Our Docket Center staff will continue to provide remote
customer service via email, phone, and webform. We encourage the public
to submit comments via https://www.regulations.gov/ as there may be a
delay in processing mail and faxes. Hand deliveries or couriers will be
received by scheduled appointment only. For further information and
updates on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets.
The EPA continues to carefully and continuously monitor information
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and our Federal partners so that we can respond
rapidly as conditions change regarding COVID-19.
B. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2020-
0463 at https://www.regulations.gov/ (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment
[[Page 83479]]
received to its public docket. Do not submit electronically any
information you consider to be CBI or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. Comments submitted on any issues other than
those specifically identified in this document will be considered
``late comments,'' and EPA will not respond to them, nor will they be
part of the administrative record.
C. Submitting CBI
Do not submit information that you consider to be CBI
electronically through https://www.regulations.gov/ or email. Send or
deliver information identified as CBI to only the following address:
ORCR Document Control Officer, Mail Code 5305-P, Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
Attn: Docket ID No. EPA-HQ-OLEM-2020-0463.
Clearly mark the part or all of the information that you claim to
be CBI. For CBI information in a disk or a CD-ROM that you mail to EPA,
mark the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. If you submit a CD-ROM or disk that
does not contain CBI, mark the outside of the disk or CD-ROM clearly
that it does not contain CBI. Information marked as CBI will not be
disclosed except in accordance with procedures set forth in 40 Code of
Federal Regulations (CFR) part 2.
II. General Information
1. Does this document apply to me?
This document applies to the electric utilities and independent
power producers that fall within the North American Industry
Classification System (NAICS) code 221112 that generate CCR for
disposal and beneficial use, and it may affect the following entities:
Electric utility facilities and independent power producers that fall
under the NAICS code 221112; Concrete batch plant manufacturing
facilities under NAICS codes 327320, 32733, and 327390; Cement kiln
manufacturing facilities under NAICS code 327310; Highway construction
projects under NAICS code 237310; and Wallboard manufacturing plants
under NAICS code 327420. It also may be of interest to CCR beneficial
use stakeholders such as coal ash marketers and the agricultural
industry; public interest groups, and citizens potentially impacted by
CCR disposal and beneficial use. This list is not intended to be
exhaustive, but rather provides a guide for readers regarding entities
likely to be interested in this document. This list includes the types
of entities that EPA is now aware could potentially be interested in
this document. Other types of entities could also be interested. To
determine whether your entity is potentially impacted by this document,
you should carefully examine this document, as well as the
applicability criteria found in Sec. 257.50 of title 40 of the Code of
Federal Regulations. If you have questions regarding the applicability
of this action to a particular entity, consult the person listed in the
FOR FURTHER INFORMATION CONTACT section.
2. What is the purpose of this NODA?
With this document, EPA is accepting comment on data and
information EPA received during the comment period on the ``Hazardous
and Solid Waste Management System: Disposal of Coal Combustion
Residuals From Electric Utilities; Enhancing Public Access to
Information; Reconsideration of Beneficial Use Criteria and Piles'' (84
FR 40353, Aug., 14, 2019) (hereinafter referred to as ``August 2019
proposed rule'') and in follow-up meetings held with stakeholders
between the end of May 2020 and August 2020, which may inform the
Agency's reconsideration of the beneficial use definition in 40
CFR.257.53 and the provisions for CCR accumulations. In this document,
EPA uses the phrase ``CCR accumulations'' to capture any and all such
accumulations, including those with CCR destined for beneficial use or
disposal, and those that constitute disposal (such as a ``CCR pile or
pile'' as defined in 40 CFR 257.53).\1\ In making a decision on the
beneficial use definition and provisions for CCR accumulations, EPA may
consider information received as part of the initial comment period for
the August 2019 proposed rule, information obtained after the close of
the initial comment period in stakeholder meetings and added to the
docket, and future information that may be submitted to EPA as a result
of this document.
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\1\ During the development of the 2019 proposed rule, the Agency
had not considered the compliance websites mandated by the 2015 CCR
rule as a potential data and information source for EPA's
reconsideration of the provisions for CCR accumulations. However,
several of the public comments EPA received on the August 2019
proposed rule referred to data on the utility CCR compliance
websites.
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Some of the information included in this document was received
during the comment period for the August 2019 proposed rule, such as
information about the CCR compliance websites mandated by the rule
titled, ``Hazardous and Solid Waste Management System; Disposal of Coal
Combustion Residuals from Electric Utilities,'' (80 FR 21302) (``2015
CCR rule'' or ``CCR rule'') being a potential data source. Other
information included in this document was obtained after the close of
the comment period, such as information from stakeholder meetings EPA
held between the end of May 2020 and August 2020. Therefore, the
information about the compliance websites mandated by the 2015 CCR rule
as a data source and information from stakeholder meetings was not
available for public comment during the initial comment period on the
August 2019 proposed rule.\2\ EPA is placing that information in the
docket for this document and making it available for public comment.
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\2\ During the development of the 2019 proposed rule, the Agency
had not considered the compliance websites mandated by the 2015 CCR
rule as a potential data and information source for EPA's
reconsideration of the provisions for CCR accumulations. However,
several of the public comments EPA received on the August 2019
proposed rule referred to data on the utility CCR compliance
websites.
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EPA is still in the process of evaluating information contained in
the docket for this document as potentially relevant to the two issues
that the Agency is reconsidering--the beneficial use definition and
provisions for CCR accumulations destined for beneficial use or
disposal. Therefore, EPA cannot definitively state whether this
information will provide support in the reconsideration of the
beneficial use definition or the provisions for CCR accumulations or
that the Agency has determined that it is appropriate to rely on this
information to inform the Agency's decision-making process on these
issues. In addition, the specific
[[Page 83480]]
information contained in the docket for this document may not
necessarily reflect all potentially relevant information available to
support the Agency's reconsideration of the two issues. However, the
Agency's intent is to ensure that the public has had a full and
complete opportunity to comment on the information contained in the
docket for this document, which EPA identified has the potential to be
considered by the Agency. Therefore, EPA is, in this document,
accepting the public's comment on the validity and suitability of using
the information and data contained in the docket for this document.
Moreover, through this document the Agency will accept additional data
and information from the public that may help inform the
reconsideration of the beneficial use definition and provisions for CCR
accumulations destined for beneficial use or disposal.
In sum, by this action, EPA is providing public notice of
information the Agency received in response to the initial comment
period for the August 2019 proposed rule, providing notice of
information that EPA obtained after the close of the initial comment
period from stakeholder meetings, and accepting additional data and
information that the public has that may help inform the
reconsideration of the beneficial use definition and provisions for CCR
accumulations destined for beneficial use or disposal. EPA is not
reopening any existing regulations through this document.
3. What is the Agency's authority for taking this action?
EPA is publishing this document under the authority of sections
1008(a), 2002(a), 4004, and 4005(a) and (d) of the Solid Waste Disposal
Act of 1970, as amended by the Resource Conservation and Recovery Act
of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments
of 1984 (HSWA) and the Water Infrastructure Improvements for the Nation
(WIIN) Act of 2016, 42 U.S.C. 6907(a), 6912(a), 6944, and 6945(a) and
(d).
III. Background
On April 17, 2015, in the CCR rule EPA finalized national
regulations to regulate the disposal of CCR as solid waste under
subtitle D of the Resource Conservation and Recovery Act (RCRA). The
CCR rule established national minimum criteria for existing and new CCR
landfills, existing and new CCR surface impoundments, and all lateral
expansions of these types of CCR units that are codified in Subpart D
of Part 257 of Title 40 of the Code of Federal Regulations (CFR). The
2015 CCR rule also established a beneficial use definition to
distinguish legitimate beneficial use from disposal. The beneficial use
definition is comprised of four criteria, with criterion 4 establishing
a requirement to perform an environmental demonstration to address any
potential risks associated with unencapsulated uses of CCR that are in
excess of 12,400 tons. See 80 FR 21351-52 (April 15, 2015). The 2015
CCR rule also provided provisions for piles and CCR that is currently
being used beneficially off-site. For example, the CCR rule provided a
definition of ``CCR pile or pile,'' as well as provided that CCR that
is beneficially used off-site is not a CCR pile. However, the CCR being
used off-site must be stored temporarily and comply with all of the
criteria in the beneficial use definition. See 80 FR 21356. The rule
also provided that a CCR landfill as defined in 40 CFR 257.53, includes
CCR piles.
On August 14, 2019, EPA proposed a rule to address two provisions
of the 2015 CCR rule remanded back to EPA on August 21, 2018, by the
U.S. Court of Appeals for the District of Columbia Circuit: The 12,400-
ton threshold in the beneficial use definition for unencapsulated uses;
and the requirements for piles located on-site of a utility and off-
site but destined for beneficial use. With respect to the mass-based
numerical threshold, EPA proposed to eliminate the 12,400-ton numerical
threshold and replace it with specific location-based criteria for CCR
disposal units. In addition, EPA accepted comment on whether to retain
a mass-based numerical threshold, and if so, what the appropriate
threshold should be; whether a combination of the mass-based threshold
and location-based criteria would be an appropriate trigger to require
an environmental demonstration for unencapsulated uses; and whether the
environmental demonstration required under the beneficial use
definition's criterion 4 should be conducted for all unencapsulated CCR
uses. For piles, EPA proposed a single approach to consistently address
the potential environmental and human health issues associated with
piles, regardless of the location of the pile and whether the CCR is
destined for disposal or beneficial use. For more information on the
history of EPA's CCR beneficial use definition and requirements for
piles on-site and off-site, please refer to the August 2019 proposed
rule and 2015 CCR rule.
Responding to concerns raised about the proposed rule during the
public comment period by industry, environmental groups, private
citizens and states, EPA is continuing to reconsider these issues by
evaluating existing data and accepting additional information.
IV. What information has EPA received to date that is potentially
relevant to reconsidering the definition of beneficial use and its
provisions for CCR accumulations destined for beneficial use or
disposal?
EPA is considering whether to use the following additional
information sources in support of the reconsideration of the beneficial
use definition and provisions for CCR accumulations destined for
beneficial use or disposal: Select 2019 proposed rule data and comments
and information obtained in stakeholder meetings. The information that
EPA is noticing for comment can be found in EPA's annotated
bibliography titled, ``U.S. Environmental Protection Agency Beneficial
Use and Accumulations of Coal Combustion Residuals Rulemaking, Notice
of Data Availability: Annotated Bibliography of Information Being
Noticed,'' which is in the docket supporting this document, EPA-HQ-
OLEM-2020-0463. Some documents listed or referenced in the annotated
bibliography are also in the docket, while others can be accessed from
websites at internet addresses provided in the bibliography.
A. 2019 Proposed Rule Data and Comments Received
Several of the public comments EPA received on the August 2019
proposed rule referred to data on the utility CCR compliance websites.
Other comments referred to a court case related to a CCR accumulation
at the Midwest Generation Utility, LLC (Powerton Station in Tazewell
County, Illinois) as well as a case study about CCR accumulations on-
site at Duke Energy in Noblesville, Indiana.
1. Comments on Using Publicly Accessible Data From the Utility CCR
Compliance Websites on the Management of CCR Accumulations and
Potential Environmental Releases
The Agency has been and continues to be interested in obtaining
information about the management of CCR accumulations and data about
environmental releases from CCR accumulations. The management of CCR
accumulations includes any practices which provide for the staging and
storage of CCR destined for beneficial use or disposal, onsite or
offsite, including the accumulation size, duration and recurrence;
designs related
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to placement and mounding of CCR; and practices related to dust control
or minimization of releases to soil, groundwater and surface water.
Data about environmental releases from CCR accumulations of different
size, duration, recurrence and practices to control releases to soil,
groundwater and surface water may aid the Agency in identifying the
measures sufficient to protect human health and the environment. EPA
intends to review and use the information on the utility compliance
websites to obtain data on the management of CCR accumulations and
instances of environmental releases from the CCR accumulations.
EPA has reviewed the documents posted on utility CCR compliance
websites linked from the Agency's CCR compliance web page (https://www.epa.gov/coalash/list-publicly-accessible-internet-sites-hosting-compliance-data-and-information-required) to identify electric
utilities and independent power producers that manage CCR
accumulations. EPA's review focused on the following documents:
Fugitive dust control plans;
Annual CCR landfill inspection reports;
CCR landfill run-on/run-off control system reports; and
Annual groundwater monitoring and corrective action
reports (sometimes power plant-wide, sometimes specific to individual
CCR units at the facility).
Based on that review, EPA identified the presence of CCR
accumulations at several power plants.
EPA intends to confirm the presence of CCR accumulations for
staging or storing CCR on power plant sites identified on the CCR
utility websites, by contacting the state environmental agencies that
correspond to facility locations. Furthermore, EPA expects to review
the utility website documents for information on the characteristics of
identified CCR accumulations, the protective measures taken to prevent
or mitigate releases, and the data about environmental releases
attributable to these CCR accumulations. More specifically, the Agency
intends to review available information on the characteristics of these
accumulations, such as size, duration, recurrence and design;
protective measures, such as dust suppression, compaction, use of
liners and berms; and incidences of environmental releases. The Agency
intends to use such information to analyze the incidences of
environmental releases from the CCR accumulations as a function of the
accumulation characteristics and protective measures used, to inform
the Agency's next steps on the remanded issues. EPA expects this
analysis may indicate the conditions likely to cause environmental
releases and may aid the Agency in identifying the measures/controls/
practices sufficient to protect human health and the environment.
EPA is taking comment on whether the utility compliance websites
should be used as a data source for information and data pertaining to
the management of CCR accumulations. EPA is also seeking comment on
whether environmental release data attributable to CCR accumulations at
utility sites can be used to estimate environmental releases from CCR
accumulations at intermediary (e.g., marketer and retailer) and
beneficial use sites. EPA is also requesting approaches (e.g., surveys)
the public would consider appropriate to understand environmental
releases from intermediary and beneficial use sites if the public finds
the data from the utility compliance websites is not applicable. EPA is
also seeking comment on the Agency's approach to use the information on
the utility compliance websites to identify management of CCR
accumulation practices that could be part of CCR regulations to prevent
a reasonable probability of adverse effects on human health and the
environment. Finally, EPA is requesting comment on other approaches
(e.g., surveys) to collect data on characteristics of CCR accumulations
that are not publicly available.
2. Case Studies and Court Case Related to CCR Accumulations and Fill
Projects
A few comments on the August 2019 proposed rule referenced several
fill projects and cases of environmental releases caused by
unencapsulated CCR.
In response to the August 2019 proposal to change the beneficial
use definition, the Hoosier Environmental Council (Hoosier) referenced
several fill projects that did not incorporate protections for
groundwater and surface water. Hoosier provided these examples to
illustrate that lack of oversight and regulation of CCR beneficial use
can result in CCR disposal being incorrectly characterized as
beneficial use, leading to environmental contamination. Among those
examples, Hoosier included a possible project that, while not executed,
could have resulted in environmental issues had it gone unchallenged by
county officials and nearby residents, because of its proposed
location. Another example that Hoosier referenced relates to the
extensive use of CCR for landscaping and road embankments throughout
the town of Pines, Indiana.
Furthermore, to argue that requirements are needed to prevent
environmental releases from CCR accumulations, Hoosier provided an
example case study of unencapsulated CCR at a Duke Energy site in
Noblesville, Indiana. According to Hoosier, the presence of
unencapsulated CCR in the same location results in groundwater
contamination and impacts on private water wells regardless of the
distance to the groundwater table. Specifically, the presence of
unencapsulated CCR from the start of the facility's operation in the
1950s resulted in impacts despite the groundwater table being more than
15 feet below the surface.
Similarly, Earthjustice provided information to illustrate that
even when present for a short period of time, unencapsulated CCR has
the potential to result in environmental releases. Earthjustice
referenced a court case involving coal ash cinders deposited directly
upon the land \3\ at the Midwest Generation Utility, LLC (Powerton
Station in Tazewell County) identified in a report \4\ prepared for
Earthjustice by Mark Hutson at Geo-Hydro Inc. Specifically, the
Illinois Pollution Control Board found that the coal ash cinders that
were deposited directly upon the land and that were present for two to
three months, contributed to exceedances of state groundwater
standards.
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\3\ See document, Illinois Pollution Control Board Court Order
for Midwest Generation Utility, dated June 20, 2019, in the docket
for this Notice.
\4\ See document, Responses to EPA Solicitation for Comments
Hutson Expert Report Phase II dated 10/14/2019, at https://beta.regulations.gov/document/EPA-HQ-OLEM-2019-0173-0197.
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B. Stakeholder Meetings
From the end of May 2020 to August 2020, EPA held ten stakeholder
meetings with the trade associations and their members, encompassing
utilities, agricultural, wallboard, cement and concrete beneficial
uses; CCR marketers; state environmental and transportation agencies;
environmental organizations and private citizens. EPA and stakeholders
discussed technical information and data on beneficial use applications
and the specific practices facilities use to manage their CCR
accumulations (e.g., the specific practices facilities use to control
CCR releases). These discussions were designed to inform the Agency's
reconsideration of the beneficial use definition and provisions for CCR
accumulations destined for beneficial use or disposal. EPA identified
topics of interest which included:
[[Page 83482]]
Various CCR beneficial use applications,
CCR generation specifically for beneficial use (e.g.,
wallboard-grade flue-gas desulfurization (FGD) gypsum) and any
associated specifications,
CCR accumulation management throughout the CCR
distribution system,
Applicable state beneficial use and storage provisions and
regulations of CCR, and
Environmental and risk data, including documented
environmental and public health impacts.
V. What information is EPA seeking?
As explained, EPA is today noticing the data and information
received from the 2019 proposed rule and the stakeholder discussions
held from the end of May 2020 to August 2020. The Agency will accept
additional data and information that may help inform the
reconsideration of the beneficial use definition and provisions for CCR
accumulations destined for beneficial use or disposal.
Specifically, EPA is today seeking information about how CCR is
beneficially used, including any use of particular measures to control
environmental releases that can help the Agency distinguish among the
different types of beneficial use applications (e.g., structural fill,
flowable fill, waste stabilization and solidification, agricultural
applications, snow and ice control, soil stabilization, fly ash used as
a substitute for portland cement in concrete, flue-gas desulfurization
(FGD) gypsum in wallboard manufacture). EPA is also seeking information
on the management of CCR accumulations at each point in its
distribution system, from its generation at the utility to its
destination, including management at CCR retailers, distributors/
marketers, beneficial use facilities/sites, and landfills. EPA is
seeking information about the use of controls to prevent and minimize
CCR releases from CCR accumulations and environmental data for CCR
accumulations.
As part of this request, EPA is specifically interested in site-
specific information that pertains to the practices used for the
handling of wallboard-grade FGD gypsum. As explained in the 2015 rule
preamble, some FGD gypsum has never been discarded and is treated as a
valuable product throughout its entire lifecycle; when managed in this
way, it is not a waste that would be regulated under part 257. See 80
FR 21348. EPA is interested in obtaining information on: The investment
in special additional systems to generate wallboard-grade FGD gypsum;
the investment in co-location of wallboard manufacturing plants with
utilities; the inventorying and tracking procedures for the transfer
and use of wallboard-grade FGD gypsum in the intended manufacturing
process; the handling of CCR accumulations to prevent the loss of
valuable material; other ways of handling the wallboard-grade FGD
gypsum as a product rather than something that is intended to be
discarded.
Lastly, EPA is seeking specific information on federal, state and
local program provisions and regulations related to CCR beneficial use
applications and provisions for CCR accumulations, such as example
state permits or other beneficial use approvals. EPA is particularly
interested in hearing from regulated entities that comply with the
different regulations and can therefore, provide the full picture of
requirements with which they comply.
A. Beneficial Uses of CCR
EPA is reevaluating CCR beneficial uses that may be considered
encapsulated beneficial use. In the 2015 rule preamble, the Agency
defined encapsulated beneficial use as applications that bind the CCR
into a solid matrix that minimizes mobilization into the surrounding
environment. Examples of encapsulated uses include replacement for, or
raw material used in production of, cementitious components in
concrete; and raw material in wallboard production. See 80 FR at 21328.
In addition, the Agency provided examples of unencapsulated uses to
include: Flowable fill; structural fill; waste stabilization/
solidification; and use in agriculture as a soil amendment. See 80 FR
at 21353. The Agency is considering revising the designation of
flowable fill and waste stabilization from unencapsulated to
encapsulated uses and therefore, redefining the scope of beneficial
uses that are subject to compliance with criterion 4 of the beneficial
use definition which applies to unencapsulated uses. EPA is further
considering whether criterion 4 should apply only to a subset of
remaining unencapsulated uses. For example, as appropriate, certain
uses could potentially be excluded if there are sufficient regulations
at the federal, state, and local level that provide for engineering
controls of the beneficial use application. Such beneficial uses may
include agricultural applications. Other options the Agency is
considering include developing guidance such as a best practice guide
for using CCR in fill, structural fill, or other unencapsulated uses.
To help inform EPA's next steps, the Agency is seeking comments, data
and information on the following:
What are the different types of CCR?
What are the environmental and economic tradeoffs among
the CCR beneficial use and its alternatives, e.g., disposal?
What are the typical beneficial use applications for each
type of CCR?
How much CCR is used per typical beneficial use
application?
What are the chemical and physical characteristics of the
CCR that make it suitable for beneficial use application?
What is the virgin material the CCR is replacing?
What are the product specifications and design standards
the CCR must meet?
What are examples of measures used to control releases for
CCR destined for beneficial use?
For structural fill projects, what are the site and
location characteristics and the design and construction requirements
for CCR used in such projects?
What state and local policies/regulations pertain to
specific unencapsulated uses of CCR for beneficial use?
How do state and local policies/regulations distinguish
beneficial use from disposal?
What data, documented damage cases, or other information
pertaining to beneficial use applications have become available since
2010?
What are the environmental and economic tradeoffs among
CCR beneficial use applications, e.g., agricultural use vs. roadway
use?
B. CCR Distribution System
EPA is seeking information on the generation and management of CCR
at each point in its distribution system, from the utility, to any
intermediaries or final destinations, such as CCR retailers,
distributors/marketers, beneficial use facilities, sites, or landfills.
EPA is considering developing a best practice guide on the appropriate
environmental controls that should be utilized for various storage and
staging situations. EPA is also specifically interested in site-
specific information and data demonstrating how utilities and
beneficial use facilities manage wallboard-grade FGD gypsum as a
valuable product. The Agency is considering whether to incorporate into
the regulations a specific exemption for wallboard-grade FGD gypsum
that has not been discarded and is continually managed as a valuable
product from the point of generation at the utility to the
manufacturing of the wallboard. EPA is also considering whether to
develop
[[Page 83483]]
additional guidance on the specific indicators to demonstrate when
wallboard-grade FGD gypsum is not discarded and therefore not subject
to regulation under the 2015 rule.
To help inform the Agency's reconsideration of the beneficial use
definition and provisions for CCR accumulations, EPA is seeking the
following information pertaining to the generation and on-site
management of CCR accumulations at the electric utility:
How is the CCR generated and processed if it is destined
for beneficial use?
What are the specifications to which the CCR is processed?
What type of testing is performed on the CCR (e.g., to
meet the required specifications) and which entity performs the
testing?
What material safety data sheets are available for CCR
destined for beneficial use?
What are the design and engineering standards for CCR
accumulations, e.g., shape, slope, circumference, height?
What controls are utilized to manage environmental
releases from on-site CCR accumulations?
How is CCR destined for beneficial use staged compared to
CCR destined for disposal?
How is CCR destined for beneficial use accumulated, e.g.,
continuously replenished; first spent and then resupplied; etc.?
How long does a CCR accumulation stay on the utility
property before it is disposed of or transferred for beneficial use?
What is the average size of a CCR accumulation before it
is disposed of or transferred for beneficial use?
Which entity is responsible for the transfer of CCR,
either for beneficial use or disposal?
What additional environmental monitoring data are
available for on-site CCR accumulations?
If in the past there have been on-site environmental
releases that exceeded state limits, what corrective actions were
implemented?
The Agency is also interested in information pertaining to the off-
site management of CCR, such as at CCR distribution/marketer centers,
beneficial use construction projects, agricultural retail facilities;
wallboard, cement, and concrete manufacturing sites; and other
beneficial use sites. Specifically, the Agency is seeking information
on:
What additional testing is performed by intermediaries or
beneficial users on the CCR to ensure it meets the required
specifications?
What happens to deliveries rejected by beneficial users
and what entity is responsible for them?
What are the types of units used for the staging of CCR by
intermediaries and beneficial users?
What are the design and engineering standards for CCR
accumulations at intermediaries and beneficial users, e.g., shape,
slope, circumference, height?
What controls are utilized by intermediaries and
beneficial users to manage environmental releases from CCR
accumulations? How long does the CCR accumulation stay at the
intermediaries before it is transferred for beneficial use?
How is CCR accumulated at beneficial use sites, e.g.,
continuously replenished; first spent and then resupplied; etc.?
How long does the CCR accumulation stay at the beneficial
use site before it gets beneficially used?
What state and local policies/regulations pertain to one-
time short-term storage at intermediaries and beneficial use sites?
What state and local policies/regulations pertain to
indefinite recurring storage at intermediaries and beneficial use
sites?
What environmental monitoring data are available for CCR
accumulations at intermediaries and beneficial use sites?
If in the past there have been environmental releases that
exceeded state limits at intermediaries and beneficial use sites, what
corrective actions were implemented?
What material safety data sheets are available for CCR
being used in the manufacturing process and the products incorporating
it?
What are the inventorying and tracking procedures for the
transfer and use of CCR in the intended manufacturing process or for
beneficial use?
What additional business or financial information is
available to show that the CCR is a valuable commodity for the intended
manufacturing process or beneficial use?
C. Applicable and Relevant Federal, State, and Local Programs and
Provisions
The Agency is reviewing federal, state and local requirements and
provisions for CCR beneficial use applications and CCR accumulations to
consider whether those standards could inform the Agency's
reconsideration of the beneficial use definition and provisions for CCR
accumulations. The Agency is also considering whether, and which,
particular beneficial use applications are sufficiently regulated at
the federal, state or local levels (e.g., by the United States
Department of Agriculture or state departments of transportation), such
that additional federal regulation under RCRA would not be required for
these applications. Furthermore, the Agency is seeking detailed
information on whether the management of CCR accumulations is uniformly
and sufficiently regulated at all points in the CCR distribution
system, by existing federal, state and local regulations (e.g., Clean
Air Act, Clean Water Act, etc.), such that additional provisions under
RCRA would not be required. Specifically, the Agency is seeking
detailed and specific information about facilities and sites to which
existing regulations apply (e.g., cement and concrete manufacturing
plants, wallboard manufacturing plants, agricultural retail facilities
and farms, or utilities). The Agency is also seeking specific examples
of these regulations and requirements (e.g., leachate controls, surface
water runoff sampling, area groundwater monitoring in the form of
permits, beneficial use determinations, or other documentation of
compliance).
VI. What are the next steps EPA will take?
EPA intends to carefully review all the comments and information
received in response to this document specific to the beneficial use
definition and provisions for CCR accumulations destined for beneficial
use or disposal. EPA may also consider any previously collected and
assembled information pertaining to the two specific issues addressed
in this NODA. In determining how to proceed with reconsidering the
beneficial use definition and provisions for CCR accumulations destined
for beneficial use or disposal, EPA may consider any relevant
information and data available to the Agency. Future action with
respect to the Agency's reconsideration of the 2019 proposed rule on
the beneficial use definition and provisions for CCR accumulations
destined for beneficial use or disposal will be made through notice-
and-comment rulemaking.
List of Subjects in 40 CFR Part 257
Environmental protection, Coal combustion products, Coal combustion
residuals, Coal combustion waste,
[[Page 83484]]
Beneficial use, Disposal, Hazardous waste, Landfill, Surface
impoundment.
Peter Wright,
Assistant Administrator, Office of Land and Emergency Management.
[FR Doc. 2020-27525 Filed 12-21-20; 8:45 am]
BILLING CODE 6560-50-P