Monday
August 9, 1093
Part V


Environmental

Protection  Agency

40 CFR Part 261
Final Regulatory Determinatioh on Four
Large-Volume Wastes From the
Combustion of Coal  by Electric Utility
Power Plants; Final Rule

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  42466    Federal Register /Vol. 58, No.  151 7 Monday, August 9,  1993 / Rules and Regulations
  ENVIRONMENTAL PROTECTION _
  AGENCY

  40 CFR Part 261
  [530-2-93-009; FRL-4689-S]

  Final Regulatory Determination on
  Four Larga-Volume Waatea From the
  Combustion of Coal by Electric Utility
  Powor Plants

  AGENCY: Environmental Protection
  Agency.
  ACTtON; Final regulatory determination.

  SUMMARY: Today's action presents the
  Agency's final regulatory determination
  required by Section 3001(b)(3)(C) of the
  Resource Conservation and Recovery
  Act (RCRA) on four large-volume fossil-
  fuel combustion (FFC) waste streams—
  fly ash, bottom ash, boiler slag, and flue
  gas emission  control waste—studied in
  the Agency's  February 1988, Report to
  Congress; Wastes from the Combustion
  of Coal by Electric Utility Power Plants
  (RTC). EPA has concluded that
 regulation under Subtitle C of RCRA is
 Inappropriate for, the four waste streams
 that were studied because of the limited
 risks posed by them and the existence
 of generally adequate State and Federal
 regulatory programs. The Agency also
 believes that the potential for damage
 from these wastes is most often
 determined by site- or region-specific
 factors and that the current State
 approach to regulation is thus
 appropriate. Therefore, the Agency will
 continue to exempt these wastes from
 regulation as hazardous wastes under
 RCRA Subtitle C. However, EPA
 believes that industry and the States
 should continue to review the
 appropriate management of these
 wastes. EPA will consider these wastes
 during the Agency's ongoing assessment
 of industrial non-hazardous wastes
 under RCRA Subtitle D.
  EPA plans to make a final regulatory
 determination on the remaining FFC
 waste streams  (beyond the four listed
 above) subject to Section 3001(b)(3) of
 RCRA by April 1,1998.
 EFFECTIVE DATE: September 2,1993.
 FOR FURTHER INFORMATION CONTACT: For
 further information on the regulatory
 determination, contact the RCRA/
 Superfund hotline at (800) 424-9346 or
 (703) 412-9810, or Patti Whiting at (703)
 308-8421.
 SUPPLEMENTARY INFORMATION:
Tabla of Content!
1. Background                 	
  A. Statutory Authority       '-."...
  B. History of the Combustion Waste
    Exclusion
  COvondaw of tho Report to Congress  >
    1. Scope of the Report
    2. Study Factors
    3. Preliminary Findings
    a. Large-Volume Wastes
    b. Low-Volume Wastes
 •   c. Waste Utilization
    4. Public Comment Process
    D. Supplemental Analysis and Notice of
     Data Availability
  H Scope of the Regulatory Determination
    A. As-Generated Large-Volume Wastes
    B. As-Managed Large-Volume Wastes
  III. Factors Considered in Making the
     Regulatory Determination
  IV. Regulatory Determination for Four Large-
     Volume Coal-Fired Utility Wastes
  V. Regulatory Flexibility Act
  VI. Regulatory Determination Docket
  Appendix A—Analysis of and Responses to
     Public Comments on the Report to
     Congress
  Appendix B—Analysis of and Responses to
     Public Comments on the Notice of Data
     Availability

 I. Background

 A. Statutory Authority
    Today's notice is issued under the
 authority of Section 3001(b)(3)(C) of
 RCRA, which requires that after .
 completion of the Report to Congress
 mandated by Section 8002 (n) of RCRA,
 the Administrator must determine
 whether Subtitle C regulation of fossil
 fuel combustion wastes is warranted.

 B. History of the Combustion Waste
 Exclusion

   In December 1978, EPA proposed the
 first regulations to implement Subtitle C
 of RCRA. At that time, the Agency
 recognized that certain large-volume
 wastes, including wastes from the
 combustion of fossil fuels, might  •
 warrant special treatment. However, the
 Agency had very little information
 regarding the nature of and risks posed
 by these large-volume wastes.
 Additionally, the Agency had no data
 on the costs and effectiveness of
 technologies for managing these wastes.
 In light of these uncertainties, EPA
 proposed a limited set of regulations for
 the management of these wastes (43 FR -
 58946, 59015, December 18,1978).
   On May 19,1980, EPA promulgated
 the initial regulations implementing
 Subtitle C. By then, however, Congress
 was debating RCRA^authorization and
 both Houses had passed bills restricting
 EPA's authority to regulate large-volume
 wastes under Subtitle C of RCRA.
 Anticipating the enactment of
 legislation amending RCRA Section
 3001, EPA excluded fossil fuel
 combustion wastes from these
 regulations (45 FR 33084, 33089, May
 19,1980).
  In October 1980, Congress passed the
 Solid Waste Disposal Act Amendments.
Among other things, the amendments
   temporarily exempted from regulation
   as hazardous wastes certain large-
   volume wastes generated primarily from
   the combustion of coal or other fossil
   fuels (RCRA Section 3001(b)(3)(A)(i)).
   These large-volume wastes include fly
   ash waste, bottom ash waste, boiler slag
   waste, and flue gas emission control (or
   flue gas desulfurization) waste. In RCRA
   Section.8002(n), Congress directed EPA
   to conduct a detailed and
   comprehensive study based on eight
   study factors (discussed in detail below)
  and to submit a Report to Congress on
  "the adverse effects on human health
  and the environment, if any, of the
  disposal and utilization of fly ash waste,
  bottom ash waste, slag waste, flue gas
  emission control waste, and other
  byproduct materials generated primarily
  from the combustion of coal or other
  fossil fuels."
    Finally, in RCRA Section
  3001(b)(3)(C), Congress directed that
  within 6 months of submitting the
  report, EPA must, after public hearings  .
  and opportunity for comment, decide
  whether regulation of the management
  of the temporarily exempt FFC wastes as
  hazardous wastes under Subtitle C is
  warranted. Once the decision is made,
  the Administrator must publish the
  Agency's regulatory determination in
  the Federal Register.
    In 1981, EPA provided an
  interpretation of the RCRA regulations
  regarding the exclusion of fossil-fuel
  combustion wastes from regulation
  under Subtitle Ci. EPA stated that,
  pending the results of the Report to
  Congress, the Agency would interpret
  the following to be exempt from RCRA
  Subtitle C pending further study: (1) Fly
  ash, bottom ash, boiler slag, and flue gas
  emission control wastes resulting from:
  the combustion solely of coal, oil, or
  natural gas, the combustion of any
  mixture of these fossil fuels, and the
  combustion of any mixture of coal and
  other fuels 2 where coal makes up at
  least 50 percent of the mixture, and (2)
 wastes-produced in conjunction with
 the combustion of fossil fuels that are
 necessarily associated with the
 production of energy and that have been
 and are mixed with and co-disposed or
 co-treated with fly ash, bottom ash,
 boiler slag, or flue gas emission control
 wastes from coal combustion.
   RCRA was amended again in 1984 by
 the Hazardous and Solid Waste
 Amendments (HSWA) (Pub. L. No. 98-
 616, 98 Stat. 3221). These amendments
.  i Letter from G. Dietrich, U.S. EPA, to P,. Emler,
 Utility Solid Waste Activities Group, January 13,
 1981, Report to Congress: Wastes from the
 Combustion of Coal by Electric Utility Power
 Plants, February 1988, Appendix A.,
  2 See discussion below on page 10.

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           Federal Register / Vol. 58> No. 151 /Monday; August 9,  1993 / Rules  and Regulations     42467
added Section 3004(x), which gave EPA
the flexibility to promulgate regulations
under Subtitle C that considered the
unique characteristics of some large-
volume wastes, including FFC wastes.
Specifically, if EPA determined that
some or all of the wastes from fossil-fuel
combustion should: be regulated as
hazardous waste, it could modify
certain HSWA requirements to take into
account the special characteristics of the
wastes, the practical difficulties of
implementing the standards, and site-
specific characteristics, as long as the
modifications still protected human
health and the environment.
  In February 1988, EPA submitted its
Report to Congress: Wastes from the
Combustion of Coal by Electric Utility
Power Plants, as required under RCRA
Section 8002(n). Because coal-fired
electric utilities generate a large
majority of all fossil-fuel combustion
wastes, the RTG focused on wastes
generated by coal-fired electric utilities.
The document does not address wastes
generated by utilities burning other
fossil fuels or wastes from non-utility
boilers burning any type of fossil fuel
(the Agency deferred study of these j
waste streams until a later date). The
report provided the Agency's analysis of
available data considering the eight
study factors listed in Section 8002(n) of
RCRA and presented the Agency's
tentative determination regarding large-
volume-wastes from coal-fired electric •
utilities. Following the release of the
RTC, the Agency provided a notice and
comment period that extended through
May 16,1988, and held a public hearing
in Denver, Colorado,, on April 26,1988.
Appendix A summarizes the comments
received on the RTC.    ,
  Because of Other priorities, the
Agency did not publish the regulatory
determination for fossil-fuel combustion
wastes within the timeframe established
in Section 3001(b)(3)CC), As a result, a
suit was filed on behalf of the Bull Run
Coalition (an Oregon citizens group),
with the Edison Electric Institute
intervening as plaintiffs.^ On June 30,
1992, the Agency entered into a Consent
Decree that established a schedule for
the Agency to complete the regulatory
determinations for all fossil-fuel
combustion wastes. The Consent Decree
divides FFC wastes into two categories:
(1) Fly ash, bottom ash, boiler slag, and
'flue gas emission control waste from the
combustion of coal by electric utilities
^and, (2) all remaining wastes subject to
RCRA Sections'3001(b) and 8002(n).
Separate schedules are provided in the
 • 'Frank Gearhatt. eta/, v. Willidmk Beilly etaJ„
No. 91-2435 (D.D.C.}
 Consent Decree for each category of
 waste.  •   \ • • •  '"./'.  ..:•.;••  "  -. :-•'--'. ..
   Inaccordance with the requirements
 of the Consent Decree, the Agency
 notified the parties to the litigation on
 December 1,1892, that a regulatory
 determination for fly ash, bottom ash,
 slag, and flue gas emission control waste
 from the; combustion of coal by electric
 utilities would be made by August 2,
 1993. For the remaining FFC wastes, the
 Agency indicated that further study was
 required and that a regulatory
 determination would be completed for
 these wastesby April 1,1998.
   In preparing the regulatory      "•
 determination, EPA collected and
 reviewed recent information on wastes
 from coal-fired electric utility power
 plants. On February 12,1993, EPA
, published a Notice of Data Availability
 in the Federal Register, soliciting
 comments on these data (58 FR 827,3),
 In the notice, EPA also requested
 comments on a proposed methodology
 to be used in making the final regulatory
 determination. This three-step
 analytical approach was recently used
 in making the June 13,1991, regulatory
 determination for special wastes from
 mineral processing (56 FR 27300).
 Comments on the newly available data
 and on the proposed methodology are
.discussed in Appendix B of today's
 notice.
   Today's decision is based on the RTC
 and the data and analyses that underlie
 the report, comments on the RTC,
 supplemental information gathered after
 the RTC, and comments, on that newly
 available information.
 C, Overview of the Report to Congress

 1. Scope of the Report
   EPA published the RTC m 1988, The
 RTC documents EPA's study of special
 wastes from coal-fired utilities
 temporarily excluded from regulation
 under RCRA Subtitle C, EPA did not
 include within the1 scope of the RTG oil-
. and gas-fired utility wastes, as well as
 industrial FFC wastes. The study
 presents EPA's understanding of the
 generation, management, .disposal, and
 reuse of wastes from coal combustion
 for electricity generation.
 2. Study Factors       •
   The RTG addressed the following,
 eight study factors required under
 Section 8002(n) of RCRA:
 1. Sources and volumes of such     /
   materials generated per year,
 2. Present disposal and utilization   ;
   practices,                .'.'".  ~- •_
 3. Potential danger, if any, to human
   health and the environment from the
   disposal and reuse of such materials,
4. Documented cases in which danger to?
 ;  human health or the environment"
   from surface runoff or leachate has
 ,  beenprqyed, •  -         .:""•":
5. Alternatives to current disposal
   methods,    ' -•-.-',' •••-.,     .  .,
6. Costs of such alternatives,    .-..>.<
7. Impact of those alternatives on the ,-
   use of coal and other natural
   resources', and    ,          ,     ;
8. Current and potential utilization of
   such materials.-
   In preparing the RTC, EPA addressed
these eight study factors as. they apply
to coal-fired combustion wastes
generated by electric utilities. The RTC
is divided into six sections that address
these factors. The first section provides
an overview of the U.S. electric utility
industry, including the structure,
economic and environmental
regulations, and describes the
importance of coal to the electric utility  ,
industry. The second section examines
the amounts and,types of wastes
generated. The third section discusses
current waste management and disposal
practices used by the electric utility
industry and possible alternatives to
these practices. The fourth section
reviews the potential arid documented
impacts of these wastes on human
health and the environment, and the
fifth section evaluates costs associated,
with current waste disposal practices
and additional costs that could be
incurred under a variety of alternative
waste management practices. The final
section summarizes the RTC's tentative
' findings and provides recommendations
for a regulatory determination,
3. Preh'minary Findings            .
   Using the RTC findings, EPA
developed three preliminary        '.-'.'-
recommendations for such wastes. A
summary of these recommendations is ;
provided below.         .'•".•-.;
  '\a. Large-volume, wastes. The RTC   •
found that while the majority of the
materials present in the four large   '..-_•'..
volume wastes—fly ash, bottom ashr
boiler slag, and flue dust—are not of  '
major concern (e.g,, more than 95
percent of the ash is composed of oxides
of silicon, aluminum, iron, and
.calcium), trace constituents in the
wastes, including arsenic, barium,
cadmium, chromium, lead, mercury,
and selenium, may present risks to
human health and.the environment.
However, the data also indicates that
these wastes generally do not exhibit the
RGRA hazardous waste characteristics.
In particular, a review of the extiacjtiqn,; .
procedure (EP) test data indicated that
metals are generally not found in     :
leachate at levels above the hazardous •
waste toxicity characteristic. Only three

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 $2468  .   Federal Register / Vol. 58, No. 151 / Monday, August 9, 1993,1. Rules ^d Regulations
 metals—cadmium, chromium, and
 arsenic—were detected in any ash or
 sludge samples above toxicity
 characteristic levels and then only
 infrequently.
   In addition, the report tentatively
 concluded that current waste
 management practices appear to be
 adequate for protecting human health
 and the environment. For example,
 while groundwater monitoring data
 showed that waste management units
 can cause releases of pollutants to
 underlying groundwater, the frequency
 and magnitude of exceedences of
 Primary Drinking Water Standards
 (PDWSs) were found to be relatively
 low—about 5 percent of all samples
 showed exceedences of PDWS, with
 exceedences less than 20 times the
 applicable standard in all cases.
 Additionally, human populations
 generally are not directly.exposed to
 groundwater in the vicinity ofcoal-fired
 utility waste management sites; public
 drinking water intakes are usually at
 least several kilometers from the sites.
   Furthermore, the RTC indicated that
 as of 1988, coal-fired electric utilities
 spent about $800 million per year for
 the disposal of coal combustion wastes.
 If all utility large-volume wastes from
 coal combustion were regulated as
 hazardous wastes, the cost of disposal
 practices, excluding corrective action
 costs or higher recycling costs, could
 increase to $3.7 billion per year. Costs
 would approach $5 billion annually if
 all existing facilities were capped and
 closed and new facilities were
 constructed  with liners, leachate
 collection systems, flood protection, and
 groundwater monitoring. Based on these
 findings, the RTC tentatively concluded
 that regulation of these wastes under
 Subtitle C was not warranted.
   b. Low-Volume Wastes. The RTC
 identified a number of wastes other than
 the large-volume wastes that are
 typically generated in lower volumes by
 coal-fired electric utilities. These "low-
 volume wastes" include, but are not
 limited to, boiler blowdown, coal pile
 runoff, cooling tower blowdown,
 demineralizer regenerant and rinses,
 metal and boiler cleaning wastes,
 pyrites, and  sump effluents. The report
 indicated that several low-volume
 wastes may exhibit the hazardous waste
 characteristics of corrosivity and EP
 toxicity.
  Data in the RTC showed that waste
 streams produced during equipment
 maintenance (e.g., boiler chemical
 cleaning wastes) occasionally exceeded
hazardous waste toxicity characteristics
for chromium and lead. Boiler chemical
cleaning wastes were  also, in limited
instances, found to exhibit the
 characteristic of corrosivity. No
 exceedences of toxicity characteristics
 were observed for other low-volume
 wastes, but available data were limited.
 In addition, the Agency concluded that
 data on these low-volume wastes that
 are co-disposed with the four large.-
 volume waste streams were insufficient
 to determine the potential contribution
 of particular wastes to environmental
 risk and that additional study of low-
 volume wastes was warranted. Because
 of these findings, the Agency indicated
 that it was considering removing the
 exemption for low-volume wastes.
  c. Waste utilization. EPA noted in the
 RTC that waste utilization practices
 appeared to be conducted in an
 environmentally safe manner. The
 Agency encouraged the utilization of
 coal combustion wastes as one method
 for reducing the amount of these wastes
 requiring disposal and supported
 voluntary efforts by industry to
 investigate new possibilities for
 utilizing coal combustion wastes..

 4. Public Comment Process

  With the publication of the RTC, EPA
 established a comment period that
 ended May 16,1988 (See 53 FR 9976,
 March 28,1988). In addition, the
 Agency held a public hearing on the
 RTC in Denver, Colorado, on April 26,
 1988 (53 FR 14839). A second hearing
 was scheduled but subsequently
 cancelled. EPA received 24 sets of "
 written comments prior to the close of
 the comment period. All individual
 comments and a transcript from the
 public hearing are available for public
 inspection in the RTC docket (Docket
 No. F-88-PATA-FFFFF). The docket
 also contains a summary of all the
 comments presented at the hearing or
 submitted in writing. EPA's responses to
 those comments are provided in the
 docket, as well as in Appendix A to this
 regulatory determination.

 D. Supplemental Analysis and Notice of
 Data Availability

  Supplemental data were collected and
 analyzed for the large-volume and some
low-volume wastes addressed by the
RTC. A Notice of Data Availability
 (Notice), which announced the
availability of this information, was
published in the Federal Register on
February 12,1993. In the Notice, EPA
also made available for comment the
proposed methodology to be used in ,
making a final regulatory determination
for fly ash, bottom ash, slag, and flue gas
emission control wastes. The Agency
provided a 45-day public comment
period, which closed on March 29,
 1993.
   The supplemental data provided in
 the Notice were obtained by EPA from
 various EPA offices and other Federal
 agencies, State agencies, and the electric
 utility industry. In addition, literature
 searches were performed to identify
 recently published materials on fly ash,
 bottom ash, boiler slag, and flue gas   '
 emission control waste generated by
 coal-fired electric utilities. Information
 in the Notice included:
   • Published and unpublished
 materials obtained from State arid
 Federal agencies, utilities and trade
 industry groups, and other
 knowledgeable parties on the volumes
 and characteristics of fly and bottom
 ash, slag, and flue  gas emission control
 waste..  , ,     .
   • Published and unpublished
 materials on management practices
 (including co-disposal and reutilization)
 associated with fly and bottom ash, slag,
 and flue gas emission control waste.
   • Published and unpublished
 .materials on the potential,
 environmental impacts associated with
 fly and bottom ash, slag, and flue gas
 emission control waste management.'
   • Published and unpublished
 materials on trends in utility plant
 operations that may affect waste
 volumes and characteristics. Specific
 information was sought on innovations
 in scrubber use and the potential
 impacts of the 1990 Clean Air Act
 Amendments on waste volumes and
 characteristics.
   • Energy Information Agency (EIA),
 Department of Energy, 1990 data on
 utility operations and waste generation
 obtained from EIA's Form 767 database.
 These data are submitted to EIA
 annually by electric utilities.
   • Site visit reports and accompanying
 facility submittals  for five power plants
 visited by EPA during fall of 1992.
   •  Materials obtained from public files
 maintained by State regulatory agencies
 in Virginia, North Dakota, Texas,
 Indiana, Colorado, Wisconsin, Ohio,
' and Pennsylvania. These materials focus
 on waste characterization and
 . environmental monitoring data, along
 'with supporting background
 information.
   EPA received 14 written comments
 addressing the Notice. All of the
 comments are available for public
 inspection in Docket No. F-93-FFCA-
 FFFFF. EPA's response to the comments
 are provided in the docket and in
 Appendix B to this regulatory
 determination.

 II. Scope of the Regulatory
 Determination
   This section describes the wastes that
 are and are not affected by this

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          - -Federal Register / Vol. 58, No.  151 /Monday, .August 9, 1993  /Rules and Regulations  ' 42469
 regulatoryxletermination. The
. discussion addresses the affected .--
 generators, the status of wastes
- generated from those utilities that co-
 bum fossil fuels with non-coal fossil.
 fuels or other materials, and the effect
 of co-management of the four large-
 volume wastes with low-volume coal
 combustion wastes on the regulatory
 status of the large-volume wastes.
   The Consent Decree divided the
 universe of fossil-fuel combustion
 wastes into two categories: large-volume
 wastes from coal-fired electric utilities
 referenced in RCRA Section 3001(b}(3)
 (fly ash, bottom ash, boiler slag, and flue
 gas emission control wastes) and      :
 "remaining wastes" (these wastes must
 still be studied according to RCRA
 Section 8002(n)). Each category has
 separate schedules for making the
 regulatory determination. Today's
 action only affects fly ash, bottom ash,
 boiler slag, and flue gas emission
 control waste from coal-fired electric
 utilities. All remaining wastes are
 outside the scope of this determination.
 Because a waste stream which is
 categorized as a large-volume waste as
 generated may become a remaining
 waste as a result of the manner in which
 it is managed, this section explains the
 universe of as-generated and as-
 managed large-volume wastes affected
 by today's action.
 A. .As-Generated large-Volume Wastes
   The universe of wastes affectedrby
 this action is limited to the large-volume
 wastes generated by coal'fired units at;
 steam electric utility power plants in the
 United States, including independent .
 power producers not engaged hi any
 other industrial activity (this latter
 group'was included because the Agency
 has no reason to believe that its wastes
 and practices are any different than
 those of larger  power plants). These
 wastes are subject to the regulatory
 determination  only when managed
 separately from other FFC wastes.  "
 Further, the population is limited to
 wastes from those facilities for which.
 coal is almost the sole fossil-fuel feed.
   Information on electric utilities
 collected since publication of the Report
 to Congress demonstrates that nearly all
 coal-fired boilers occasionally burn
 small amounts of natural gas and/or
 fossil-fuel oil for boiler startup or flame
 stabilization. While oil ash is a
 remaining waste outside the scope of
 today's action, the Agency believes,
 based on published literature and
 information collected during site visits,
 that the burning of oil for startup and
 flame stabilization results in a de
 minimis contribution to the total
 volume of combustion by-products
 generated by the boiler during normal
• operations. Similarly, natural gas
 combustion for boiler startup or flame
 stabilization results in de minimis ash
 formation relative to the volume of by-
 products generated from coal
 combustion. Accordingly, the total
 volume of fly ash, bottom ash, slag, and
 flue gas emission control waste
 generated by a coal-fired plant that
 burns oil or natural gas in small
 ^quantities for start-up or flame   '
 stabilization shall be considered a large-
 volume waste subject to this
 determination.              ,
   The information collected following
 publication of the RTC also indicates
 that some operators occasionally burn
 materials other than coal in utility
 boilers, some of which are considered
 hazardous wastes under RCRA
 (operators may do so and their residues
 continue to remain exempt under the
 Bevill exemption as long as 50 percent
 of the feed is coal and the residue passes
 the BIF two-part test if they burn
 hazardous waste). This practice maybe
 conducted for the purposes of disposal
 or energy recovery. Wastes from the co-
 burning of materials were not studied in
 the RTC,  and very limited information
 regarding their generation,
 characteristics, and management has
 been collected to date. The Agency
 recognizes that the burning of such
 materials, when practiced in an
 environmentally sound manner, can be
'•' an effective waste management or  ;
 energy recovery strategy. However, EPA
 has insufficient data to determine the^
 amount of material burned or the
 potential influence of burning such
 materials on the characteristics of the
 four large-volume wastes. The Agency
 intends to study the co-burning issue
 further at a later date, as appropriate.
 Thus,, the-large-volume wastes which.   '
 result from any such burning (with the
 exception of co-burning with hazardous
 waste) are outside the scope of this
 determination. The following paragraph
 discusses the special case of co-burning
 hazardous waste and coal.
   The residues from those facilities  that
 burn hazardous wastes are subject to the
 Boiler arid Industrial Furnace (BIF) rule
 under RCRA (40 CFR 266.112).« Under
 the BIF rule, facilities must conduct
 site-specific sampling and analysis of
  «Tha 19S1 interpretation at footnote I abova
 states that the residues from co-burning enjoy tho
 temporary exemption only when the non-coal
 material in the faed-is burned for its fuel value, this
 condition, however, was removed for co-burners of
 hazardous waste in the BIF rule (see preamble
 discussions at 56 FR 7196-7200, Feb. 21,1991). For
 the same reasons cited during that rulemaking, and
 as a matter of consistency, the Agency no longer
 imposes such a condition when {he non-coal   -
 material is not a hazardous waste.
 waste-derived residues to document that
ihazardpus waste burning has not.v;
 significantly increased concentrations of
 hazardous constituents in the residues;
 Because this testing ensures that such
,wastes are similar to those studied in
 the RTG, thus making further study of
 these Wastes unnecessary, residues that
 pass the test are within die scope of
 today's regulatory determination.
   Finally, for the purposes of this
 action, large-volume wastes from coal-
 fired electric utilities do not include
 wastes generated from fluidized bed
 combustion (FBC) boiler units. FBC is a
 relatively new combustion technology
 that allows for the removal of sulfur'   :•
 without an end-pf-pipe scrubber. The
 wastes generated; by this technology
 were not studied in the RTC, and only
 limited information regarding their
 characteristics and management has
 been collected to date. The information
 that is available has not provided EPA
 with enough evidence to conclude that
 waste generated from FBC units is
 substantially similar to conventional
 boiler wastes. Some sources maintain
 that FBCrunits that bum solely coal as
 ajfossil-fuel source generate fly ash and
 spent bed material that is substantially
 different from conventional boiler
 wastes.5 This is because In FBCr coal is
 burned in the presence of limestone. ,
 The differences in the FBC wastes are
 defined by a presence of sulfur
 compounds and high amounts of
 residual alkalinity. On the other hand,
 industry representatives believe that the
 wastes are very-similar to;the fly ash
 waste and flue gas emission control
 wastes studied in the RTC.       -:  -
   The information does indicate that the
 u§e of FBC technology in the electric
 utility industry may be increasing.
 Because of the current lack of data, the
 potential  of the co-firing of limestone to
 have a significant effect on the
 characteristics of the wastes produced,
 and the potential for increased
 utilization of the technology, the,
 Agency has decided to defer a decision
 on these wastes until further
 information from the growing number of
 facilities can be examined. Therefore,
 the Agency considers these wastes
 "remaining wastes," which are outside
 the scope of today's regulatory
 determination.          .         •••.•'•

 B As-Managed Large-Volume Wastes
   As described above, large-volume
 wastes include fly ash, bottom ashr slag,
 and flue gas emission control wastes
•, s United States Environmental Protection Agency,
 Office of Research and Development, Fhridized-Bed
 Combustion Technology Overview, EPA-600/7-81-
 074,April 1981.  .    -•:.   .    :   ' :

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 42470     Federal Register / Vol. 58, No. 151 / Monday, August 9,  1993  /  Rules and Regulations
 from coal-fired electric utility boilers.
 However, the Consent Decree defines
 lares-volume wastes that are "mixed
 with, co-disposed, co-treated, or
 otherwise co-managed with other wastes
 generated in conjunction with the
 combustion of coal or other fossil-fuels
 * *  *" as remaining wastes. As a result,
 a waste that may be categorized as large-
 volume as generated may become a
 remaining waste by virtue of the
 circumstances of its management.
 Remaining wastes are outside the scope
 of this regulatory determination.
 (Although these wastes are not covered
 by today's regulatory determination,
 these wastes remain exempt from RCRA
 Subtitle C until April 1,1998, at the
 latest.)
   The RTC found that the level of "co-
 mixing, co-treatment, co-disposal or co-
 management" practiced at utility waste
 disposal sites varies considerably. At
 one extreme, many or most liquid
 wastes generated at the plant may be
 handled along with ash in a single
 impoundment system. At the other
 extreme, all large-volume wastes may be
 discharged to units receiving no other
 materials of any kind. In practice, most
 utility disposal sites operate somewhere
 between these extremes,  with large-
 volume wastes discharged into units
 receiving certain other materials.
 Depending on the specific materials
 commingled in a particular management
 unit,  the resulting mixture may be a
 remaining waste and hence fail outside
 of the scope of today's action.
  The Agency recognizes that many
 plant operators use process waters (e.g.,
 non-contact cooling water and low-
 pressure service water) in ash handling
 or FGD systems, Because of the
 continuous use of these process waters,
 the Agency does not consider them to be
 wastes. In any event, the  use of these
 process waters as foedwater for emission
 control systems or for ash transport
 generally will not increase the
 environmental risks associated with the
 wastes relative to the risks derived from
 utilization of fresh water for the same
 purposes. Discouraging such practices
 may lead to an increased usage of fresh
 water for the same purposes, thereby
 increasing the total volume of water
 exposed to the large-volume wastes as
well as the total volume of waste
generated. The Agency feels that this
would be an undesirable outcome of
 today's action. For these reasons, the
Agency does not consider the practice of
using these non-contact process waters
 hi ash sluicing systems or as makeup
water for FGD systems to constitute co-
managoment. The four large-volume
wastes, therefore, that are transported/
mixed with these process waters do not
 become "remaining wastes." Instead,
 they are within the scope of this
 Regulatory Determination. These waters
 are limited to ash hopper seal water, ash
 hopper cooling water, and other non-  .
 contact cooling waters.
  The Agency emphasizes that co-
 management of low-volume wastes and
 large-volume wastes makes the
 combined waste stream a remaining
 waste. Given below is a list of
 management practices that result in
 combined waste streams that are
 remaining wastes; This list, which is not
 exhaustive, includes those activities
 observed or believed to occur at
 operating FFC waste disposal facilities
 that involve the "mixing, co-treatment,
 co-disposal, or co-management" of_
 large-volume wastes with low-volume
 wastes. Remaining wastes as managed
 include:
  •  Discharge of boiler blowdown to a
 large-volume waste impoundment,
  «  Discharge of demineralizer
 regenerant to a large-volume waste
 impoundment,
  •  Discharge of metal cleaning wastes
 to a  large-volume waste impoundment,
  •  Discharge of boiler chemical
 cleaning wastes to a large-volume waste
 impoundment,
  •  Discharge of plant wastewater
 treatment effluent to" a large-volume
 waste impoundment,
  •  Discharge of coal mill rejects to a
 large-volume waste impoundment,
  •  Disposal of oil ash in a large-
 volume waste landfill or impoundment,
  •  Disposal of plant wastewater
 treatment sludge in a  large-volume
 waste landfill,
  o  Disposal of coal mill rejects in a
 large-volume waste landfill, and
  e  Reuse of metal cleaning
 wastewatera in a FGD feedwater system.
  EPA recognizes that it may not have
 provided a clear understanding of what
 constitutes co-management since
 offering the 1981 interpretation of the
 exemption cited above. Therefore, the
 Agency may propose a definition of co-
 management in the future. This is
 important because low-volume wastes
 are within the Bevill Exemption only if
 they are co-managed with large volume
waste. Low-volume wastes that are
 independently managed are not and
have never been within the scope of the
Bevill Exemption.o

ED. Factors Considered in Making the
Regulatory Determination
  RCRA, as amended, directs EPA to
make a regulatory determination
generally based upon the RTC and
 "Industry comments on both the RTC and Notice
generally agreed with this interpretation.
 comments received from interested
 parties. The statute contains the eight
 study parameters identified hi Section
 I.C.2., Study Factors. In addition, RCRA
 Section 8002(n) suggests that EPA
 review relevant studies and other
 actions of other Federal and State
 agencies and invite participation by
 other concerned parties, including
 industry and other Federal and State
 agencies, with a view toward avoiding
 duplication of effort.
  EPA complied with the congressional
 mandate in developing, in 1988, the
 required RTC. In conducting this study,
 EPA relied upon the analysis of the
 eight study factors noted above! The
 Agency has expanded the data base
 through the collection of additional data
 referenced in the February 12,1993,
 Notice. The Notice also made available,
 in the RCRA docket, the three-step
 methodology the Agency was
 considering using in making this
 regulatory determination. This basic
 analytical approach was used in making
 the regulatory determination for mineral
 processing wastes (56 FR 27300, June
 13,1991). EPA modified the
 methodology in this case/however, so
 that it best fit the available information
 on the nature and management of the
 coal-fired electric utility wastes at issue
 in this determination. The method
 involves answering a series of questions
 covering the potential hazards of the
 wastes, the existing management and
 regulatory controls that affect the
 hazards that may be presented, and the
 potential impacts of regulating the
 wastes as hazardous under RCRA
 Subtitle C. This approach allows EPA to
 make a systematic evaluation of the
 information presented in the RTC and
 other information collected pursuant to
 the Notice. EPA has solicited and
 incorporated comments on the RTC, the
 data described in the Notice, and the
 three-step methodology in making
 today's regulatory determination. EPA
 believes that this approach is consistent
 with congressional intent.             ~
  EPA received no comments that
 disagreed with any aspect of the three-
 step methodology. Therefore, no
 changes have been  made in the
 approach. The decision process outlined
below presents a series of questions and
 sub-questions that were addressed in
the order posed. If the Agency
 determined the response to Step 1 for a
waste to be affirmative (e.g., "Yes,
management of this waste does pose
human health/environmental problems,
 or might cause problems in the future"),
then the analysis proceeded to Step 2
for the waste and constituent(s) of
concern, If, however, the answer to Step
 1 was negative, then the analysis

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Federal Register
                                                                              > fetes* an
                           indicate that the waste could pose
                           significant risk to human health or the  .;•
                           environment at any sites, that generate it
                           (or in offsite use), under either current
                           management practices or plausible  "•
                           mismanagement scenarios?
                             Substep 3. Does the waste exhibit any
                           of the characteristics of hazardous
                           waste?1" :    , • .    ••"-,  :    -"•''
                             As described above, the Agency first
                           determined whether each waste may
                           pose human health/environmental
                           problems by examining whether the
                           waste has caused documented human
                           health or environmental damages in the
                           past, whether each waste* as managed,,
                           may pose signiScantrisk to human
                           health or the environment, and whether
                           each waste exhibits any of the
                           characteristics of hazardous waste. If
                           each of the questions in Step 1 resulted!
                           in a negative response, no further
                           review would be performed for that  ,
                           waste, and the Agency would determine
                           that regulation under Subtitle C of   "
                           RCRA is not warranted. However, as
                           .with the Regulatory Determination for
                           Mineral Processing Special Wastes (56
                           FR 27305,June 13;,1991)K an affirmative
                           response to any one of the three sub-
                           questions above did not necessarily
                           trigger further analysis, under Step  2 of
                           the methodology. Rather, the Agency
                           answered each, of the three, questions
                           separately and then considered the
                           combined responses as a whole in
                           •deciding whether further evaluation was
                           necessary. In that consideration, the
                           certainty and weight of evidence  ,
                           supporting an affirmative response to
                           one question was. taken into account in
                           the Agency's decision to proceed to Step
                           2. If the Agency determined that
                           additional review was warranted for a
                           particular waste, additional review
                           under Step 2* was limited to those waste
                           characteristics or waste management
                           practices for which significant potential:
                           ; for risk was identified fn Step 1.
                             The* first question the Agency
                           addressed under Step? 1 was whether
                           coal combustion waste has: caused .
                           documented human health1 impacts or
                           ' environmental damage. Tb; determine .
                           this,, the Agency first considered
                           existing damage case information
                           presented: in the RTC, EPA examined
                           additional' damage case information to
                           determine whether there; was further
                           evidence of negative impacts: to-human
                           health or the environment. The Agency ;
                           requires that each relevant ease--satisfy
                           at least one-of the following three  ,
                           conditions: scientific investigation
                           concluding that damages occurred,
                           administrative ruling concluding that
                           damages occurred, or court decision' or
                           6ut-o£court settlement concluding that
 damages-occurred. Ideally, damages
 would dearly be the result of the large-
 volume coal, combustion wastes.
   In the Agency's analysis, damage to .
 human health or. the environment was;
 considered as follows: Threat to human
 health included both acute and chronic
 effects (e.g,, exeeedences of primary
 drinking water standards, directly
 observed health effects,, such as elevated
 blood contaminant levels or loss of HfeJ
 associated with management of coal-
 fired electric utility wastes, while
 danger to the environment included j (1)
 Impairment of natural resources- (e.g..
 .contamination of any; source of drinking
 water reasonably/ expected to be used),
 (2) ecological, effects resulting in
 impairment of the structure' or function
 of natural ecosystems and habitats* and
 (3) effects on wildlife resulting in
 impairment of terrestrial or aquatic.
 fauna (e.g., reduction in species
 diversity/ or density, impairment of
 reproduction).           ,        '.
   To address the second question—
 "could the waste pose significant risk to
 human health and the environment
 under either current management
 practices; or plausible! mismanagement
 scenarios* the Agency performed a two-
 part assessment of the potential foe risk
 presented by/the waste,
  : First, the Agency conducted & risk
 screen of intrinsic hazard of the wastes;,
 comparing, waste characterization data
 with conservativesCTeening criteria
 developed for four exposure pathways?
 groundwater, surface water, inhalation P
 and ingestion,Thepurpose:of tfierisk
 screen was to identifyifhe waste
 constituents and exposure: pathways1.
 that have: the potential to present threats
 to "human health and the environment.
 Exceedences of the screening criteria
' .indicate the need for further study•, but
 do not in themselves "demonstrate that
 the wastes pose a significant hazard.
   Second, for each waste" constituent.
 found to exceed the screening Criteria,
 the Agency evaluated the potential for
 release, transport, and exposure of that
 constituent for specific pathways. The
 three exposure^ pathways evaluated for
 human' health-risk were1 groundwater
 ingestion, particulate inhalation, and
 sTbilingestion. The fourth pathway,,
 surface water, was evaluated for ^      •
 ecological risk., The Agency solicited:
 comment in the Notice on excluding;
 from1 consideration another pathway;
 radiation exposure, because of
 insufficient information to perform;the
 required analysfs; No comments or-
 supplemental data were received   '
 regarding the proposed exclusion.
 Therefore,; EFA did not consider  '•'....
 radiation exposure in the analysis;

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 42472     Federal Register / Vol, 58, No.  151 / Monday, August 9,  1993 / Rules and Regulations
   To address the third question of Step
 1, the Agency reviewed available waste
 characterization data to determine
 whether fly and bottom ash, slag, and
 FGD sludge exhibit any of the hazardous
 characteristics. In evaluating toxicity
 data, the Agency considered both
 Extraction Procedure (EP) arid Toxicity
 Characteristic Leaching Procedure
 CTCLP) data, since much of the currently
 available data on toxicity predates the
 use of the TCLP.
   Several commenters on the RTC
 claimed that the EP toxicity test is not
 a valid indication of hazards associated
 with utility wastes since the test was
 designed to mimic conditions in acidic
 municipal landfills rather than
 homogeneous monofills used by electric
 utilities. Those commenters concluded
 that data from the EP test significantly
 overstate potential risks.
   As discussed further hi Appendix A
 to this preamble, EPA has developed the
 methodology to take into account the
 eight study factors (Section 8002(n)) set
 forth in the Bevill Exemption to
 determine whether hazardous waste
 regulation is warranted for FFC wastes.
 While waste characterization data,
 including both the results of EP toxicity
 testing and those of other leaching
 procedures (TCLP, ASTM. etc.), are
 considered in the decision, they are not
 the sole basis for determining whether
 to regulate fossil-fuel combustion wastes
 under RCRA Subtitle C. The
 methodology focuses on the risks posed
 by fossil-fuel combustion wastes as
 managed (and some ash is currently
 managed in Subtitle D landfills). EPA
 therefore believes that consideration of
 EP toxicity data, in conjunction with the
 results of other leaching studies and
 data on the actual environmental
 impacts of waste management practices,
 is appropriate.
  EPA receive^ limited additional data
 from commenters to the Notice. The few
 EP and TCLP results provided were
 consistent with other samples collected
 for the purposes of the RTC and the
 Notice. None of the additional data
 supplied during the comment period
 exceeded the hazardous waste criteria.
  Step 2. Is more stringent regulation
 necessary or desirable?
  If the Agency determined in Step 1
 that the management of fly or bottom
ash, slag, or FGD sludge from coal-fired
utilities has caused or may potentially
cause human health or environmental
impacts, then the Agency would
proceed to Step 2. In evaluating the
need for more stringent controls to
address the potential risks associated
with the management of these wastes,
EPA asked the following questions:
  1. Are current practices adequate to
     limit contaminant release and
     associated risk?
   2. Are current Federal and State
     regulatory controls adequate to
     address the management of the
     wastes?
   3. Will Subtitle C effectively address
     problems associated with the waste
     without imposing significant
     unnecessary controls that are
     inconsistent with the special status
     of the waste?
   In Step 2, the Agency looked at waste
 management practices and existing
 regulations to examine the potential for
 release and exposure under current
 practices. If current management
 practices or existing regulatory controls
 were found to be adequate  or if Subtitle
 C was found to be an ineffective or
 inappropriate regulatory alternative,
 then the Agency would determine that
 the waste should not be regulated under
 Subtitle C. If, on the other hand, current
 practices or existing regulatory controls
 were found to be inadequate in
 controlling potential and actual risks
 and if Subtitle C would be effective, the
 Agency would proceed to Step 3.
   Step 3. What would be the operational
 and economic consequences of a
 decision to regulate a special waste
 under Subtitle C?
   If, based upon the previous two steps,
 the Agency found that a waste presents
 significant risk despite current
 management practices and  existing
 regulatory controls and that Subtitle C
 regulation would be effective and
 appropriate in reducing those risks
 without imposing unnecessary controls,
 the Agency would then evaluate the
 costs and impacts associated with
 regulating this waste under Subtitle C
 and, possibly, other regulatory
 scenarios. Costs and impacts would be
 evaluated in terms of the estimated
 affected population of generators, the
 ability of generators to pass on costs of
 compliance to customers or suppliers,
 the effect of regulation on domestic
 energy supply and capacity, and the
 effect of regulation on beneficial use of
 the affected waste.
  With cases in.which the Subtitle C
 scenarios would impose widespread
 and significant impacts on facilities,
reduce domestic capacity or supply,
 and/or deter safe and beneficial use of
the waste, EPA might conclude that
regulation under Subtitle C is
 inappropriate. However, EPA might
 determine that regulation of the waste
under Subtitle C is warranted if, in the
Agency's judgement, the reduction in
risk that would result from  such
regulation would justify the operational
and economic consequences to the
industry and the economy as a whole.
 The Agency invited commenters to the
 Notice to submit information regarding
 cost data.

 IV. Regulatory Determination for Four
 Large-Volume Coal-Fired Utility Wastes
   The following discussion presents
 EPA's conclusions regarding the
 regulatory status of large-volume coal-
 fired utility wastes under RCRA. The
 determination as to whether regulation1
 of such wastes under Subtitle C is
 warranted is based upon the February
 1988 Report to Congress, comments on
 the Report to Congress including
 comments received at the public hearing
 held in Denver on April 26,1988, the
 information collected for the February
 12,1988, Notice, and comments
 received on the Notice.
   Based on all of the available
.information, EPA has concluded that
 regulation of the four large-volume
 fossil-fuel combustion wastes as
 hazardous waste under RCRA Subtitle C
 is unwarranted. Below are the Agency's
 responses to each step of the decision
 methodology.
   Step 1. Does the management of this
 waste pose human health/
 environmental problems? Might current
 practices cause problems in the future?
 The Agency has determined that the
 answer to this question is yes.
   Substep 1. Has the waste, as currently
 managed, caused documented human
 health impacts or environmental
 damage?
   Response: The Agency has
 determined that the waste has caused
 documented impacts, but at a very
 limited number of sites.
   In accordance with the methodology
 described above, EPA first addressed
 whether the management of this waste
 currently poses human health/
 environmental problems and whether
 current practices could cause problems
 in the future. In its examination of
 potential/actual cases in which danger
 to human health or the environment
 could be attributed to the management
 of fossil-fuel combustion wastes, the
 RTC included information from several
 studies that documented occasional
 exceedences of primary and secondary
 drinking water standards in
 groundwater underlying fossil-fuel
 waste management sites. To supplement
 the RTC data, EPA conducted State file
 reviews in States selected for their
 geographical representation and large
 coal-fired electricity generation
 capacity. Overall, both efforts indicate
 that the extent of actual damage cases/
 environmental harm associated with
 large volume FFC waste management
 appears limited.

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           Federal Register / VqL 58, No, 151 / Monday, August 9, 1993;/  Rules and Regulations    42473,
   EPA used the "test of proof'
 developed to support the Report to
 Congress on Mineral Processing Wastes
 to evaluate the potential damage cases.
 As described in Chapter 2 of that report,
 the test of proof requires that a case
 satisfy at least one of three conditions:
 scientific investigation concluding that
 damages occurred, administrative ruling,
 concluding that damages occurred, or
 court decision or dut-of-court settlement
 concluding that damages occurred. For
 the six damage cases described below,
 scientific investigation was the measure
 of proof satisfied, since, the data, most
 supported application of this measure.
   In applying the test, EPA first
 considered whether actual
 documentation exists that shows thai
 human health or environmental harm,
 occurred (e.g., contaminated
 ground water in a water supply well,
 observed impacts on wildlife). Only a
 limited number of large-volume FFC
 waste management sites actually meet
 this criterion and can be considered
 proven damage cases. These cases
 include the two sites identified in the
 RTC, as well as four additional sites
 identified during recent data collection
 efforts. EPA notes; that of these six, cases,
 only one case can: clearly be: attributed ,
 to fly ash management alone. The
 remaining: five cases are. associated with  :
 the co-management of the large-volume
 wastes with other wastes. Because co-
 management of large and low-volume
 wastes is the predominant waste
 management practice, limited
 information exists on independently
 managed large-volume wastes.
   The RTC described a site that
 involved A dike failure that caused an
 accidental release from a fly ash
 disposal lagoon to a river. This case
 resulted^ in substantial damage to river
 organisms; The other case described in
 the RTC involved co-management. In
 this case, a release occurred from a fly
 ash and petroleum coke waste disposal
 site that resulted in the contamination
 of drinking water wells with selenium
 and vanadium; This site is ranked on
 the CERCLA (Superfund) National,
 Priority List Site.
   EPA's more recent data collection
 efforts; resulted, in the identification of
 four additional sites that are considered
 proven cases of damage (see the
 Supplemental Analysis of Potential
 Risks to Human Health and the
 Environment from Large-Volume Coal
 Combustion Waste, found in Docket no>
 F-93-FFCA-FFFFFJ^ Each case involves
 co-management of wastes at older,
 unlined waste management units. These
 incidents involved ground water
. contamination and/or vegetative, '
damages due to releases from waste
management units.
  In summary, there is minimal
documentation of impacts on drinking
water sources in the vicinity of coal-
fired utilities'. In addition, it is
important to note that the damage case
sites were chosen for study because of
known releases and cannot necessarily
be extrapolated to the general' universe.
Also, most releases have been from
unlined units at older sites that in many
States are now subject to more stringent
design and operating criteria.'
Furthermore, actual cases of harm to
human health or the environment may
be limited to a few sites, often with
other contributing, factors, including
additional pollutant sources attributed
to the co-management with other FFC
and non-FFC wastes. The review of such
cases of co-management will be reserved
for the "remaining waste" study. *    .
  The FFC waste damage case/
environmental data collected to date
indicate, therefore, that although the
extent appears limited, damage to the
environment has occurred. Although the
releases are often confined to the
vicinity of the units and have not
reached environmental/human
receptors, the potential for exposure
necessitates further analysis in Substep
2V which examines the potential risks
posed by these wastes.
  Substep 2. Does EPA's analysis
indicate that the waste could pose:
significant risk to human health or the
environment at any sites that generate
coal combustion wastes, under either
current management practices or
plausible mismanagement scenarios?
  Responses: Groundwater
contamination and surface water
contamination through groundwater
recharge are possible under some
plausible conditions (unlined units).
Available information on the       ,
environmental conditions of the sites
indicates ecological and natural
resource damages are of most concern,,
because potential for human exposure is
limited.
  The RTC containsconsiderable
information on the four large-volume
coal combustion wastes (fly ash, bottom
ash, slag, and flue gas desulfurization
(FGD) sludge). Information includes
waste characteristics and management
practices, environmental factors
affecting human exposure potential at
disposal sites, and evidence of •
ecological damage at coal combustion
  7 The percentage of units required to meat more
stringent design and operating criteria' will increase
as older units reach capacity (assuming a typical
lifetime fo 15 years) and new units come on-line
(and are subject to these more stringent
requirements}.,          -,
 sites. In addition, EPA collected -
 supplemental •information from various
• EP& offices and, other Federal agencies,,
 State agencies, and the. electric utility'
 industry on waste characterization,
 management, and potential impacts..   -;
 This supplemental information
 included groundwater monitoring data
 for 43 coal combustion waste sites
 collected from State regulatory agencies
 and from EPA site visit reports- All data
 used in this supplemental analysis are
 available for public, inspection in the
 docket No. F-93-FFGA-FFFFF. A
 bibliography of the sources used in the
 risk analysis is found in Appendix A of
 the Supplemental Analysis of Potential
 Risks to Human Health and the
 Environment from Large-Volume Coal
 Combustion Waste, also found in Pocket
 no, F^-93HFFGA-EFFFF.
   The first step; of the methodology was
 to evaluate constituents of concern    ;
 (identified by waste characterization  :
 data) using a risk screen. A risk screen
 analysis is a process which applies a
 conservative and simplified    '   '
 methodology to the constituents.and    .
 pathways to determine if they are of
 concern. The risk screen compared
 waste characterization data with
 screening-level criteria1. "The screening;
 criteria were developed to identify :   :
 wastes, constituents, and pathways
 requiring further analysis; thai is, wastes
 captured by the screen mayor may not
 be; of concern. Criteria for 23
 constituents: (primarily metals)were
 developed for groundwater, surface  ,
 water, ingestion, and inhalation
 exposure pathways using a methodology
 similar to that used in the mineral
 processing regulatory determination. (In;
 the, cases where the Agency regulatory
 levels had changed since the mineral
 processing RTC, the screening criteria
 were also updated.)            •-    ;
   Groundwater exposure criteria were
 developed using the MCLs set by the    ,
 Agency to protect drinking, water. If no;
 primary MCL had been established for
 a particular parameter, then a health-
 based level (HBL) was calculated using,
 Agency cancer slope factors or non-
 cancer reference doses (RfDs) from
 IRIS.* In instances where the calculated
'HBL was: less than corresponding MCL,
 both values were considered in the
 screening.  -    ,            •
   Screening; criteria based on primary
 MCLs were derived! by multiplying the
 MCL by a factor of 10 to simulate
 scenarios where only limited dilution of
 waste? leachate occurs prior to exposure,
 HBLs were derived: from IRIS» drinking

   »U.S. Environmental Protection Agency. .   •
 Integrated Rist Information System (IRIS). (IRIS,  ' •
 November 1992 update).                 ;
            "        ''         ''   ''

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'42474     Federal Register  / Vol.  58,  No. 151 7  Monday, August 9, 1993 / Rules and Regulations
 water or oral cancer slope factors (CSFs)
 representing a IxlO-s lifetime cancer
 risk, or RfDs. Calculation of the HBLs
 relied on the following conservative
 assumptions; the maximally exposed 70
 kg individual drinking 2 liters of water
 per day, 365 days per year, for a lifetime
 duration of 70 years. (The 70-year
 exposure duration was chosen to
 maintain comparability with the MCLs;
 this approach is consistent with that
 taken in the mineral processing
 regulatory determination.) These
 assumptions yield the following general
 equations:
 HBLcsr-(n)g/l) - (lxlO-')(70 y){70 kg)/{(CSF
    (mg/kg/d)-«X2l/d)(70y)}
 HBum (rng/1) - (RED rng/kg/day)(70 kg)/(2 V
    day)
   As with the MCL-based criteria, the
 HBLs were multiplied by a factor of 10
 to simulate a scenario where only
 limited dilution of waste leacnate
 occurs prior to exposure. Groundwater
 exposure criteria were compared with
 waste EP Toxlcity and TCLP analysis
 results for each of the four waste steams.
   The surface water exposure criteria
 were selected to represent potential
 harm to aquatic organisms exposed to
 surface water releases of wastes or waste
 leachate, The criteria were  derived by
 multiplying the freshwater chronic
 Ambient Water Quality Criteria (AWQC)
 for non-human effects by a factor of 100
 to simulate a scenario where only
 limited dilution occurs. Surface water
 exposure criteria were compared with
 waste EP Toxicity and TCLP analysis
 results for the four waste streams.
   The ingestion screening criteria were
 derived from IRIS oral RfDs and oral
 CSFs, assuming incidental ingestion of
 solid waste materials. Exposure
 assumptions are an ingestion rate of 200
 mg/day from ages  1 to 6, and 100 mg/
 day from ages 7 to 31 (resulting in an
 average of 0.114 g soil/day), an adult
 receptor weight of 70 kg and an
 exposure of 350 days/year for 30 years.
 For CSF-derived values, a life-time
.averaging 70 years was assumed. These
 assumptions were then used to calculate
 the concentration of a constituent in a
 waste that would result in an exposure
 equivalent to the RID or the
 concentration corresponding to a
 lifetime cancer risk of IxlO-s. The
 equations for RID- and CSF-based
 criteria are shown below.
 Criterion.^) (mg/g)« RfD (mg/kg/d) {(70
    kg)(365 d/y)(30 y)}/ {(350 d/y)(30
    y){0.114 g soil/d)}
 Criterionejsj (mg/g)« {10-»/CSF (mg/kg/
    dH}(70 kg](365 d/y)(70 y)}/ {(350 d/
    y){30yX0.1l4gsoil/d)}
   No dilution factor was employed in
 deriving the criteria for solid samples.
 The exposure pathway assumes
 exposure to participate whole waste
 material. Ingestion exposure criteria
 were compared with waste total  •
 constituent analysis results for the four
.•waste steams.
   The exposure assumptions used in
 deriving inhalation exposure criteria
 include: 50 ug/m3 airborne dust
 concentration;^ adult inhalation
 volume of 20 m3/d; 70 kg body weight;
 exposure frequency of350 days per
 year; exposure duration of 30 years; and,
 for CSF-derived values, 70 year lifespan
 (or averaging time) and 1x10-* risk of
 cancer. Note that 50 ug/m3x20 mVd
 results in a soil exposure rate of 1 mg/  -
 d. The equations used to derive the
 criteria from both inhalation RfDs and
 inhalation CSFs are shown below:
            g/g) = RfD (mg/kg/d) {(70
    kg)(365 d/y)(30 y)}/ {(350 d/y)(30
    y)(0.001 g soil/d)}
 CriteriacsH (mg/g) = {IxlO-'/CSF (mg/kg/d)-'}
    {(70 kg)(36S d/y)(70 y)}/ {(350 d/y)(30
    yKO.OOl g soil/d)}
   Again, no dilution factor was
 employed in deriving the criteria for
 solid samples. The exposure pathway
 assumes exposure to particulate whole
 waste material. Inhalation exposure
 criteria were compared with waste total
 constituent analysis results for the four
 waste steams.
   The screening criteria described above
 were then compared to EP, TCLP, and
 total constituent data from the RTC and
 subsequent data collection efforts. For
 all waste constituents that exceeded a
 screening-level criterion at more than 10
 percent of the sites sampled, or
 exceeded the criteria by more than a
 factor of 10, further analysis was
 conducted. A summary of screening
 criteria exceedences, reported by waste
 type and by exposure pathway, can be
 found in Appendix C of the
 Supplemental Analysis of Potential
 Risks to Human Health and the
 Environment from Large- Volume Coal
 Combustion Waste.
   The 'results of the risk screening
 suggest that of the large-volume wastes,
 fly ash and FGD sludge are of most
 concern. The risk screen also identified
 groundwater, surface water, and
 inhalation as exposure pathways
 needing further analysis. The
 constituents needing further analysis
 included arsenic, cadmium, chromium,
 lead, mercury, nickel, Ph, selenium, and
 silver.,
   The Agency then evaluated the
 release, transport, and exposure
 potential of those constituents, wastes,
 and pathways for which the risk screen
                                         1050 Jig/m3 is the National Ambient Air Quality
                                       Standard for annual exposure to participates.
 indicated that further analysis was
 necessary. When available, monitoring
 data were used to determine the
 potential for human and environmental
 exposure. In'other cases, information on
 the physical setting of coal combustion
 waste sites and'on the waste
 management practices was used to
 evaluate exposure potential. In the case
 of the inhalation pathway, the potential
 •for human health risk was evaluated
 using an atmospheric fate and transport
 model. For the inhalation pathway, the
 potential for human health" risk, when
 evaluated using an atmospheric fate and
 transport model, was found to be
 negligible. For more information on the
 air pathway analysis, please consult the
 Supplemental Analysis of Potential
 Risks to Human Health  and the
 Environment from Large-Volume Coal
 Combustion Waste. Further analyses of
 the groundwater and surface water
 pathway are summarized below.
   Groundwater monitoring data were
 used in both the groundwater and.
 surface water exposure pathway
 analyses. A summary table of the
 groundwater monitoring sites is in
 Appendix D of the Supplemental
 Analysis of Potential Risks to Human
 Health and the Environment from Large-
 Volume Coal Combustion Waste found
 in the docket. When interpreting the
 groundwater monitoring data, the
 Agency took several factors into
 account.
   First, many of the sites may have co-
 managed their coal combustion wastes
 with other wastes, such as boiler
 cleaning solution or pyrites. The extent
 to which these other wastes may have
 contributed to groundwater
 contamination could not be
 conclusively determined, because it was
 difficult to assess in many cases
 whether co-management had occurred
 and without this information, it was not
 possible to separate the effects of the
 large-volume.wastes from the other
 wastes. However, at least two site
 operators asserted that they believed
 that co-managed wastes, and not the
 large-volume wastes, were the cause of
 groundwater contamination. The
 Agency took the presence of co-
 managed wastes into account when
 evaluating the risk from the large-
 volume coal combustion wastes.
   Second, some of the sites have other
 possible sources of contamination
 nearby. To the extent that they can be
. determined, these sources are noted in
 the summary table referenced above.
 Finally, in the case of some
 contaminants (e.g., iron), naturally
 occurring levels may be quite high.
- Again, to the extent that naturally
 occurring constituents can be

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           Federal Register / TM. S8» No;, 151 1 Mcrada^ August 9,  1993; / Rufes and Rbgulaltons    42/475
 determined to be adding to            •
 downgradient concentrations, this is
 noted in the summary table.    '
   With these considerations in mind,
 the Agency determined that available
 data from coal combustion waste.
 landfills, and surface impoundments
 demonstrated the existence of potential
 for human, exposure to groundwater .
 contamination,; because coal combustion
 waste constituents identified in the risk
 screen as needing-further study were
 found to be leaching onsite in excess of
 the primary MCLs. Subsequent analyses
 of coal, combustion waste sites suggest,
 however; that potential for actual
 human exposure is very limited.
   For example, nine sites of the fbrty-
,nihe sites with groundwater monitoring
 data had contaminants above the MCL
 that appeared to stem from, coal .      '
 combustion units. (Another ten sites
 had upgradient concentrations equal to,
 downgradient concentrations, other
 possible sources of groundwater
 contamination, or (in two cases! a Iac^
 of upgradrent information, preventing
 any conclusions about the effects of the
 coal combustion units on groundwater
 contemihation.} Constituents with
 exceedences include arsenic, barium,
 cadmium, chromium, fluoride, lead,
 mercury, nickel, and selenium. Of the
 nine sites,, none were completely lined,,
 although one site had a clay-lined
 disposal unit with: air under-draih
 emptying into a series of unlined ponds.
 All nine sites have-older {pre-1975)
 units, four consisting of surface
 impoundments, four consisting of
 landfills, and one with both types of -
 units. Fly ash was the principal waste
 disposed offer all units. Four sites of the
 nine alscr are* known to have accepted
 co-managed' wastes (pyrites;, boiler
 cleaning wastes, demineralizer
 regenerant, oil ash, etc.), and the others
 may have as well.
   Potential fbrliuman exposure to
 groundwater contaminants from coal
 combustion wastes is limited because of
 the location of most coal combustion
 sites. Based on a random study (found
 in the RTC) of one hundred sites, only
 29: percent of the sites have any
 population withhrl kilometer, and only
 3* percent of the sites have public
 drinking water systems within R
 kilometers. Although infiltration and
 transportation of contaminants in
 groundwater varies with site- or
 regional-specific factors (such as depth
 to groundwater, hydraulic conductivityt
_ soil type, and net recharge), exposure to
 coal combustion waste groundwater
 contaminants 5 kilometers from the
 source of contamination is not expected
 to occur., Of the public: drinking water
 systems within 5 kilometers of coal
combustion: waste sites; just, under half
(47 percent); are expected to treat the
groundwater for hardness' (i.e., these1
systems have groundwater with over
240 ppmCaCOs),, which, would tend to
remove co-contaminant metals aswell.
  Coal combustion units also tend to be
near surface water bodies. The same)
RTC study revealed, that 58 percent of
the.sitesare within 500. meters of.as   '
surface water body; The volume and
flow rate of surface water would terid to
dilute and divert the contaminant
plume.
  In addition, groundwater
contamination appears to be attributable
to pastmanagementpractices. As the
Agency's groundwajerr monitoring data
outlines: above, all. of the nine: sites with
a clear indication of groundwater
contamination are older (pre-1975]),
unlined units. (In contrast; of the 13>
lined sites, only one had exceedences of
an MCL, and that site had equal
concentrations upgradient and
'downgradient J
 /Finally,: some of the groundwater
contamination may be attributable to co-
management with, other wastes, such as
pyrites* boilercleaningwasteland
demineralizer, regenerant. Because of the
prevalence of co-management (several
public comments; on the ETC reported
thatthepredominant industrypractice
is to co-dispose of low-volume wastes in
ash or flue gas emission control waste
ponds).thelarge-volume waste may not
"be the sole contributor to; the
groundwater contamination. "Ewo of the;
nine sites report that co-management is
the cause of the contamination.
  In conclusion, hazardous constituents
in coal combustion waste (particularly
in fly ash and flue gas emission control,
waste) have the potential to leach  into
groundwater under, certainconditions*  '
Contaminants of concerns include
arsenic,cadmium, chromium, lead,,.
mercury, and selenium. Available data
suggest* however, that contamination
stems from older,/urilined units :
representing past practices, and that the
"units are not typically located near
populations and drinking water
systems. In addition, the sites within 5.
kilometers of public drinking water
systems, abouthalf have groundwater
wjth over 240 ppm C&Coy and are
therefore expected to treat the water for
hardness, thus, removing; co,-
contaminant metals as well.
Furthermore, at least some of the
groundwater contamination is
attributable to other wastes managed
with the large-volume coal combustion.
wastes; Thus^ potential for human
exposure solely; from the large-volume
coal combustion waste, front current
management practices is limited.
  An examination of the surface water
pathway reveals that, although direct
discharge of untreated coal combustion
waste tosurfacewateriffnot likely
because of Clean Water Act controls, a
few of the coal combustion waste
constituents have the potential in some
instances, to affect nearby vegetation
and aquatic organisms by migration
through shallow groundwater to nearby'
surface waters} This7 was observed'at one
site where migratibnf of borore to a;
nearby wetland was, determined by the;
State to be the cause of vegetative
damage. In many cases, natural
attenuation processes" are expected to;
dilute the contaminants below levels' of
concern;For example, if'contaminants
reach surface waters, the volume of
surface water and its high flow rate
could dilute the contaminants; For those
sites whosenearby water bodies may
have a low flow rate fe-g;, lakes,,
swamps; or marshes), however, coaE
combustion waste may cause local
environmental damages, as was
observed at the above site;.
  Even when contaminated
groundwater does not affect human
health, and the environment,, it may be
considered to have caused impacts that
limit future use of that groundwater. In,
particular,, available: data suggest that
the groundwater at a number of coal
combustion, waste sites is contaminated
,above secondary MCLs. (SMCLs) by such
secondary parameters as iron,
manganese, sulfate, and total dissolved
solids,;although these effects may be
localized through dilution arid
attenuation. The SMCLs are guidelines
generally setto be protective of such
aesthetic considerations as taste,; odor,;
potentfal to stain: laundry, and human:
cosmetic effects such as tooth and skin
•staining,, '                 ,--
  In addition to being disposed of in
landfills and surface impoundments,;
coal combustion ash is often
beneficially used both onsite and offsite.
EPA continues:taencourage flie ..    .-:-
beneficial use of doal combustion
wastes. Because most offsite
applications tend to immobilize the coal
combustion waste (e.g., fly ash used to
make concrete),, adverse impacts; appear
to be unlikely; HbweveriJf fly ash is;
apph" ed directly to agricultural; soil,,
there is some concern; with, metals:-  ,
uptakeby food crops and cattle feed. In
addition, boron: in the; coal ash is; readily,
mobilized and has; a phytotoxic effect on
plants. Although coal ash Is? not      •
frequently used in agriculture,; any

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 42476
Federal Register / Vol. 58, No. 151 / Monday,  August  9, 1993 / Rules  and Regulations
 agricultural use of coal combustion
 •waste should be carefully evaluated."
   Substep 3; Does the waste exhibit any
 of the characteristics of hazardous
 waste?
   Response: The Agency has
 determined that these wastes exhibit the
 characteristics of hazardous waste
 infrequently, from 0 to  7 percent of the
 samples depending on waste type.
   The RTC concludes that although coal
 combustion waste may leach
 contaminants (arsenic, cadmium,
 chromium, lead, and mercury) above
 toxidty characteristic regulatory levels,
 such exceedences are infrequent and the
 average concentrations of constituents
 are below characteristically toxic levels.
 A full bibliography of the sources of EP
 and TCLP data and a summary of the
 results are given in Appendices A and
 B of the Supplemental Analysis  of
 Potential Risks to Human Health and
 the Environment from Large-Volume
 Coal Combustion Waste.
   The results of Step 1 of the analysis
 indicate that the wastes rarely exhibit
 any characteristics of hazardous waste
 and the waste pose very limited  risk to
 human health or the environment under
 certain scenarios, such as unlined units
 sited over shallow groundwater with
 nearby drinking water wells.
 Furthermore, since most releases have
 occurred at unlined older sites, EPA
 recognized that a review of current
 waste management practices and
 regulatory control governing these
 practices was appropriate as outlined in
 Step 2 of the methodology, which
 assesses the need for more stringent
 regulation.
   Step 2: Is more stringent regulation
 necessary or desirable? The  Agency has
 determined that the answer  is no. EPA
 regulation is not necessary or desirable.
   In evaluating the need for more
 stringent controls to address the
 potential risks associated with the
 management of these wastes, EPA first
 evaluated the adequacy of current
 industry waste management practices in
 limiting contaminant release and
 associated risk. The Agency then
 viewed the adequacy of current State
 and Federal regulatory controls
 addressing these wastes. For the
 purposes of this analysis, EPA
 supplemented the data supplied in the
 RTC with site visits, a 1992 EPA study
 under which the Agency obtained and
 reviewed State regulations applicable to
 FFC waste management, the Department
 of Energy's 1991 report  entitled Coal
  » QunctociztOon of Coal Creek Station Fly Ash
for Utilization Potential, Energy and Environmental
fU*»tca C«ptBr,Pabtmiry 1993 (SM Docket No. F-
93-FFCA-FFFFF).
                           Combustion Waste Disposal: Update of
                           State Regulations and Cost Data,
                           dialogue with industry and State
                           representatives, the Electric Power
                           Research Institute's Facility Design and
                           Installation Manual (1991), State file
                           searches, and literature reviews.
                             Substep 1. Are current practices
                           adequate to limit contaminant release
                           and associated risk?
                             Response: The Agency has
                           determined that industry practices are
                           moving toward increased use of control
                           measures (liners, covers, etc.) and
                           groundwater monitoring.
                             The Agency's data on current
                           practices indicate that industry is
                           moving toward an increased use of
                           control measures (e.g., liners, covers)
                           and groundwater monitoring. For
                           example, the RTC noted that before
                           1975, less than 20 percent of units
                           (surface impoundments and landfills) in
                           the United States for which data were
                           available had installed some form of
                           liner. More recent data (EEI's Power
                           Statistics Database, 1989) suggest that 13
                           to 29 percent of surface impoundments
                           for which data are available, have some
                           form of liner and that 41 to 43 percent
                           of landfills have some form of liner. As
                           the damage case and groundwater
                           monitoring information suggests, most
                           of the releases have occurred at older,
                           unlined units. EPA has observed during
                           site visits that newer units are generally
                           lined. Furthermore, most newer utility
                           waste management facilities have
                           groundwater monitoring systems, and
                           many also have leachate collection
                           systems.  Despite the positive trends in
                           management of FFC wastes,  some of
                           these units may be sited with
                           inadequate controls. Therefore, in
                           addition  to viewing industry
                           management practices, EPA  collected
                           and evaluated information on the extent
                           of current State and Federal regulation
                           of coal-fired utility waste management.
                             Substep 2. Are current Federal and
                           State regulatory controls adequate to
                           address the management of the waste?
                             Response: Effluent limitations in the
                           Clean Water Act regulations for steam
                           electric power plants under 40 CFR part
                           423 require no discharge from new fly
                           ash ponds. State programs are generally
                           adequate and are improving, with most
                           State's now requiring permits and
                           minimum design and operating criteria
                           that would address likely risks.
                           Additionally, Federal authorities exist
                           to address site-specific problems posing
                           threats to human health and the
                           environment under RCRA Section 7003
                           and CERCLA Sections 104 and 106.
                             The RTC included information on
                           coal-fired electric utility waste
                           regulation in all 50 States. In updating
this information, EPA conducted a
review of States that were selected
according to the high levels of ash
generated in those States. This .approach
resulted in a study universe of 17 States
that generate approximately 70 percent
of all coal ash in the United States.
  The data show that States have
generally implemented more stringent
regulations for FFC waste since 1983
(when the State regulation review was
conducted for the RTC). Under
developing State industrial solid waste
management programs, coal-fired
utilities are more frequently being
required to meet waste testing
standards, and waste management units
often must comply with design and
operating requirements (e.g., liners and
groundwater monitoring standards).
  Of the 17 States for which EPA
updated the RTC data, 14 regulate coal-
fired utility wastes as solid wastes,
explicitly exempting them from
hazardous waste regulation;*2 16 States
require offsite FFC waste management  ,
units to have some type of operating
permit, with design and operating
criteria varying by State; 12 have
mandatory liner requirements, while
three States provide for discretionary
authority to impose liner requirements
on a site-specific basis; 12 impose
mandatory groundwater monitoring
requirements on FFC waste disposal
sites; and 16 impose final cover
requirements, hi addition, some  States
have been working to reduce the threat
of groundwater and surface water
contamination, by discouraging the use
of wet management in ponds as a
disposal practice (through permitting
requirements and  location restrictions).
On  the Federal level, National Pollutant
Discharge Elimination System permits  ,
under the Clean Water Act regulate all
direct discharges to surface water.
Effluent limitations under 40 CFR part
423 govern steam electric power
generating point sources and require no
(zero) discharge to surface waters from
new source fly ash transport waters (40
CFR 423.15(g)).                    '
  Considering industry's trend toward
more protective waste management
practices, the fact that State regulatory ,
programs are generally adequate, and
because Federal authorities exist that
can address these wastes, EPA has
concluded that current management
practices and regulatory controls are
adequate for managing the four large-
volume FFC wastes.
  "Of the remaining three States, two States
establish requirements based on waste
characteristics and one exempts these wastes bom
their solid and hazardous waste management
program.      ,

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            Federal Register  / VpL 58, No; 151 7 Monday, August 9, 1993 /Rules  and Regulations'    42477
   Substep 3. Would Subtitle C
 effectively address the problems , -
 associated with the waste without
 imposing significant unnecessary
 controls?
   Response: The Agency has
 determined that it is unlikely that
 Subtitle C would effectively address the
 problems associated with the four large-
 volume fossil-fuel combustion wastes
 without imposing unnecessary controls.
   After reviewing industry practices
, and current State and Federal...
 regulation, EPA reviewed the alternative
 scenario of regulating the four large-
 volume FFC wastes under Subtitle C.
 First, it was recognized that coal
 combustion wastes rarely exceed the
 RCRA characteristics for hazardous
 waste, and therefore, that most coal
" combustion wastes would not be subject
 to Subtitle C controls unless they were
 listed as hazardous wastes.
 Furthermore, it was noted that even if   ,
 these wastes were listed as hazardous,  ,
 and therefore, regulated under Subtitle ~
 C, such an approach would be
 inappropriate for these wastes. A
 Subtitle C system would require coal
 combustion units to obtain a Subtitle C
 permit (which would unnecessarily
 duplicate existing State requirements)
 and would establish a series of waste
 unit design and operating requirements
 for these wastes, which would generally
 be in excess of requirements to protect
 human health and the environment. For
 example, if such wastes were placed in
 the Subtitle C universe, all ash disposal
 units would be required to meet specific
 liner and monitoring requirements.
 Since FFC sites vary widely in terms of
 topographical, geological,
 climatological, and hydrological
 characteristics (e.g., depth to          --
 groundwater, annual .rainfall, distance
 to drinking water sources, soil type) and
 the wastes' potential to leach into the
 groundwater and travel to exposure
 points is linked to such factors, it is
 more appropriate for individual States
 to have flie flexibility necessary to tailor
• specific controls to the site or region
 specific risks posed by these wastes.
   EPA also reviewed the comments
 received in response to the 1988 RTG
 and the Notice. Comments received on  .
 the RTC showed unanimous support for
 EPA's initial recommendation that
 large-volume combustion wastes do not
 warrant regulation under RCRA Subtitle
 C. Specifically, the commenters felt that
 current Subtitle D criteria, together with
 existing State regulations, have proved
' adequate to protect human health and  ;
 the environment. Furthermore, of the,
 respondents to the Notice who
 addressed the recommendation that
 large-volume combustion wastes do not
warrant regulation under Subtitle C, all
agreed that the supplemental data
support this recommendation.
  For these reasons, EPA concludes that
Subtitle C is inappropriate to address
the problems associated with these
wastes and that the site or region
specific State approach is appropriate
for addressing the limited human health
and environmental risks involved with
the disposal df FFC wastes. The Agency
encourages States to continue to
develop and implement site-specific
approaches to these wastes. EPA
believes that industry and the States
should continue to .review the
appropriate management of these
wastes. EPA will also consider these
wastes during the Agency's ongoing
assessment of industrial non-hazardous
wastes under RCRA Subtitle D. Should
the characteristics of the waste streams
change as a result of implementation of
any provisions of the Clean Air Art as
amended in 1990, the Agency .may
choose to reexamine the exemption.
  Step 3. What would be the operational
and economic consequences of a
decision to regulate a special waste
under Subtitle C?
  Although the analysis never reached
this point, EPA's preliminary        :
examination of potential costs under
Subtitle C indicates that'annual costs of
full Subtitle C controls Would range
between $100 and $500 million per
year. This assumes that these wastes
Would be listed as hazardous in RCRA
part 261, subpart D. However, if these
wastes were not listed, the wastes.
would often not be subject to Subtitle C,
since they rarely test characteristically
hazardous pursuant to part 261, subpart
C. Subtitle C controls include     ,.
groundwater monitoring, liners,
leachate collection, closure/covers, dust
control, financial assurance, location
restrictions, and corrective action.
V. Regulatory Flexibility Act :
  The Regulatory Flexibility Act (RFA)
of 1980 (Pub.L. 96-354), requires
FederaLregulatory agencies to consider..
the impact of rulemaking on "small
entities." If a rulemaking will have a
significant impart on small entities,
agencies must consider regulatory
alternatives that minimize economic
impart.                    :
  Today's decision'does not affect any
small entity. Rather, it continues to
exempt the four large-volume wastes
from coal-fired electric utilities from
regulation as hazardous wastes.
Accordingly, this action will not add  .
any economic burdens to any affected _
entities, small or large. Therefore, a
regulatory flexibility analysis is not
required. Pursuant to SectionB05(b) of
the RFA; 5" UJSLC.' 605(b), the
Administrator certifies that this rule
Will not have a significant impact on
small entities.
VI. Regulatory Determination pocket
  Documents related to this regulatory   -
determination are available for    '
inspection at the docket.
  The EPA RCRA docket is located at
the following address: United States
Environmental Protection Agency; EPA
RCRA Docket, room M2427, 401 M
Street SW., Washington, DC 20460.
  The docket is open from 9 a.m. to 4
p.m., Monday through Friday,' except for
Federal holidays. The public must make .
an appointment to review docket   '•'.>••
materials. Call the docket clerk at (202)
260-9327 to make an appointment.
  Dated: August 2, 1993.                 ,
Carol M. Browner,       •       •
Administrator.       .;•  "    ,

Appendix A — Analysis of and
Responses to Public Comments on the
Report to Congress
  The 1988 Report to Congress: Wastes
from the Combustion of Coal by Electric
Utility Power Plants cOncluded-with
three recommendations. Comments on
the RTC were largely organized in ;•'--
response to those recommendations.
The summarized comments and EPA's
response to those comments follow each
recommendation, printed in bold below.
  (1) EPA has concluded that coal
combustion waste streams generally do
not exhibit hazardous characteristics
under current RCRA regulations. EPA
does not intend to regulate under
Subtitle C fly ash, bottom ash, boiler
slag, arid flue gas emission control
wastes.
  All respondents agreed with and
supported the RTC's first
recommendation that high-volume
combustion wastes do not warrant
regulation under Subtitle C. They
concluded-that current Subtitle D
criteria, together with existing State
regulations, have proved adequate to   >
protect human health arid the  '•.-..  ,
environment.
  Several commenters claimed that the
EP toxipity test is not a valid indication
of the hazards associated with utility
wastes since the test was designed to
mimic conditions in acidic municipal
landfills rather than homogeneous
monbfills used by electric utilities. They
claim, therefore, that data from the EP
test significantly overstate potential
              "  '            '   '
              .   .
  As noted in the RTC and by several
commenters, the Bevill Exemption
requires EPA to consider eight factors
(Section 8002(n)) in detenr ining    ',.

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 42478    Federal Register / Vol. 58, No. 151 /  Monday," August 9, 1993 /Rules and Regulations
 whether hazardous waste regulation is
 warranted for fossil-fuel combustion
 wastes. To that end, EPA has developed
 the methodology identified in the
 Notice that takes into account all of
 these factors. While waste
 characterization data, including the
 results of EP toxicity testing as well as
 other leaching procedures (TCLP,
 ASTM, and batch/column) are
 considered in the decision, they are not
 the sola basis for determining whether
 to regulate FFC wastes as hazardous.
 The methodology specifically focuses
 on the risks posed by FFC wastes as
 they are actually managed.
  EPA acknowledges that EP toxicity
 test results may not always represent the
 leaching potential of hazardous
 constituents from FFC wastes. However,
 some ash is (or could be) managed in
 offsite Subtitle D landfills. Furthermore,
 EPA has found significant variability in
 the leaching characteristics of FFC
 wastes, depending on the fossil-fuel
 source and boiler operating conditions.
 Therefore, EPA believes that
 consideration of EP toxicity data, in
 conjunction with the results of other
 leaching studies and data on the actual
 environmental impacts of waste
 management practices, is appropriate.
 Finally, EPA's data show that EP
 toxicity test results for the four large-
 volume wastes are not inconsistent with
 leach tests conducted using ASTM,
 batch/column, and TCLP methods (see
 February, 1988 RTC).
  (2) EPA is concerned that several
 other wastes from coal-fired utilities
 may exhibit the hazardous
 characteristics of corrosivity or EP
 toxicity and merit regulation under
 Subtitle C. EPA intends to consider
 whether these waste streams should be
 regulated under Subtitle C of RCRA
 based on further study and information
 obtained during the public comment
 period.
  Nineteen of the twenty-two
 respondents commented on the RTC's
 second recommendation to study low-
 volume wastes further and consider
 regulating these wastes under RCRA
 Subtitle C. All 19 respondents disagreed
 with the recommendation to regulate
 any low-volume wastes under Subtitle
 C.
  Several commenters claimed that
 insufficient data existed to support a
 Regulatory Determination for low-
volume wastes. EPA concurs with these
 comments. The Agency intends to study
 co-managed low-volume wastes further
to obtain sufficient data to make a
Regulatory Determination. Low-volume
wastes managed independently are
 outside the scope of the Bevill
Exemption.
  Many comments maintained that
Subtitle C regulation is not warranted
for low-volume wastes co-managed with
large-volume coal combustion wastes.
Some commenters claimed that .the
predominant industry practice is to co-
dispose of low-volume wastes in ash or
FGD sludge ponds (several commenters
referenced the 1985 Radian study and
the 1982 Envirosphere report). Such co-
management was claimed to be
practical, effective, and environmentally
sound. The report acknowledges that
this practice may reduce the potential
hazard of low-volume wastes, by
neutralization or dilution. Commenters
emphasized that no adverse
environmental impacts from the co-
disposal of high-volume and low-
volume wastes have been shown in
studies by the electric utility industry
and EPA and that none were cited in the
RTC.
  EPA acknowledges that the RTC
contained very limited information on
the extent and potential environmental
impacts of co-management of low-
volume wastes with ash, slag, and FGD
wastes. In fact, although the Agency has
information verifying that co-
management does occur, there is limited
information clarifying the amounts and
types of co-management. Indeed, this
was the reason EPA reached no tentative
conclusions regarding these practices.
Comprehensive studies were available
for fewer than five of the hundreds of
existing co-management sites. EPA's
efforts to compile more recent data
continue to show limited information
on the effects of co-management.
However, some information suggests
that at several large-volume waste
management sites where groundwater
impacts have been detected (see data in
the RCRA Docket), the operators have
suggested that the cause of the
contamination is co-management with
low-volume wastes. Of specific concern
are pyrites and chemical boiler cleaning
wastes. Further, the Agency has
observed that the general trend in the
industry is to segregate certain low-
volume wastes (i.e., pyrites, boiler
cleaning wastes, and demineralizer
regenerant) from ash, slag, and FGD
sludge.
  The Agency believes that additional
data collection for the low-volume
wastes co-managed with the large-
volume wastes described in the report is
required and is deferring a final
Regulatory Determination for co-
managed wastes, pending completion of
further studies. Co-managed low-
volume wastes remain exempt from
hazardous waste regulation, however,
until such a determination is made; As
required under the Bevill Exemption,
the Agency emphasizes that the
decision'on remaining wastes will be
based on all Section 8002(n) study
factors, not on waste characterization
data alone.
  As discussed in the scope section of
this determination, the Agency does not
consider process waters (e.g., non-
contact cooling water and low-pressure
service water) used in ash handling or
FGD systems to be wastes; Also, the
continuous use of these process waters
as feedwater for emission control
systems or for ash transport generally
will not increase the environmental
risks associated with the wastes relative
to the risks derived from utilization of
fresh water for the same purposes.
Discouraging such practices may lead to
an increased usage of fresh water for the
same purposes, thereby increasing the
total volume of water exposed to the
large-volume wastes as well as the total
volume of waste generated. The Agency
believes that this would be an
undesirable outcome of today's action.
For these reasons, the Agency does not
consider the practice of using these non-
contact process waters in ash sluicing
systems or as makeup water for FGD
systems to constitute co-management.
  One commenter thought that the
limitations applied to discharges of
pollutants from ash disposal facilities
under the National Pollutant Discharge
Elimination System adequately protect
the environment and that additional
regulations would be redundant.
  The Agency does, not concur with the
commenter that meeting NPDES permit
limits at surface water discharge points
alone is necessarily adequate to ensure
groundwater protection. For example,
FFC waste management units may not
have surface water-discharges, and,
therefore, might not be required to have
NPDES permits. Even if NPDES-
permitted, these units may generate
leachate that could affect underlying
groundwater. Although some States may
use Federal NPDES permit requirements
to protect groundwater resources, the
Clean Water Act and the NPDES
program generally focus on protecting
surface water quality.
  One commenter referred to a 1976
study conducted by an electric utility
company in which both bench
(laboratory) and field tests were
conducted. The purpose of the study
was to derr onstrate to EPA, for purposes
of meeting the effluent limitations of a
NPDES permit, that co-disposal of two
boiler cleaning wastes with ash in ash
ponds provided treatment equivalent to
that available  from a dedicated waste
treatment facility. The bench tests
showed 99 percent treatment for metals.
The commenter maintained that the

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S federal Register '•/ Vol; 58, No. 151  / Mbiaday, August^, J1993' I
                                                                                                          42479
 few-volume wastes were effectively
 treated without any increase in risk
 from the high-volume wastes (and the
 waste management unit) into which
 they were added.
   SPA acknowledges that the referenced
 study does demonstrate that a level of
 Ph.adjustment can be achieved over a
 period of time so that NPDES permit
 limits can be met. However, the study
 does not address protection of the
 grouridwater underlying the
 impoundment. Further, the study
 provides data for only two types of
 boiler cleaning solution mixed with ash
 from a single plant. Because of the
 variability in types of boiler cleaning
 solutions and ash characteristics and the
 relative paucity of data on low-volume
 wastes and co-management in general
 (and the consequent uncertainty related
 to the environmental impacts of co-
 management), the Agency believes that
 further study is required..
   Several commenters claimed that EPA
 appeared to have selectively included
 data from EP test results for boiler
 cleaning wastes and other low-volume
 waste streams in the RTC (Exhibits 5-
 5 and 5-6). Exhibit 5-5 (talcen from the
! 1985 Radian study) presents test results
 for two treated and three untreated    -. ;
 boiler cleaning waste streams. The
 commenters noted that the  Radian study
 sets forth data for four .untreated and  _--••
 four treated waste streams.  None of the
 results for the streams omitted in the
 report exceeds the EP toxicity limits, to
 the extent that only the untreated waste
 streams for which ah exceedence was
 shown are included in the report, the
 qommenters maintained that
 observations on those results are
 overstated.                  ..
   In addition, the commenters felt that
 the report was similarly selective in "
 reporting "EP Toxicity Test Results for
 Liquid Low-Volume Wastes" (taken
 from the 1987 Radian study) shown in
 Exhibit 5^B. Where the original data
 included 17 boiler cleaning wastes and
 7 waterside rinse tests, the report
included only 10 boiler cleaning wastes
 and 3 waterside wastes in Exhibit 5-6.
 Additionally, by omitting the "less
 than" sign next to many of the values,
 there was concern that the report gives
 a false impression that a reading is a
 positive value, when actually the value
 was below the detection limit. It was
. also pointed out that this omission
 factors into the calculation of the
 geometric mean for the samples.
   EPA acknowledges the comments. .
 The intent was not to overstate or
•overemphasize the frequency or
 magnitude of observed concentrations of
 constituents in leachate. Rather, EPA
 was attempting simply to present data
                            that illustrated the concentrations that
                            could be observed, hi its Regulatory
                            Determination on the wastes, EPA
                            considered all data (including non-
                            detects), rather than only selected
                            observations.           .     ;
                              One commenter noted that the boiler
                            cleaning wastewaters from the initial
                            acid wash stage and subsequent rinses
                            should not be considered separately
                            because they are typically combined
                            and managed together as a single waste
                            stream. The commenter noted that the
                            report shows these fluids as separate
                            waste streams and includes data for
                            each stream in Exhibit 5-6. If the data
                            were collected on these fluids as a
                            'unified stream, the commenter claimed
                            that the resulting boiler cleaning waste
                            would likely not, exceed any of the
                            current limits for EP toxicity.
                              The commenter went on to say that
                            even if certain boiler cleaning wastes
                            may, in certain circumstances, test
                            hazardous as generated, this fact should
                            not trigger Subtitle C regulation. The
                            commenter emphasized that co-
                            disposed boiler cleaning waste does not
                            present a hazard and that this critical
                            fact is^acknowledged in the RTC.
                              The Agency has found that some
                            utilities do manage the wastes generated
                            during different stages of the waterside
                            boiler tube cleaning operations
                            separately, at least for some period of
                            time. Therefore, the Agency believes'
                            that it is appropriate to consider waste
                            characterization data for the distinct
                            streams  (as well as for combined
                            streams). As  noted previously, the
                            Agency does not believe that the RTC
                            and other currently available ''.-'.-
                            information provide sufficient data to
                            complete a Regulatory Determination for
                            boiler chemical cleaning wastes, co-
                            managed with large-volume wastes at
                            this time.
                              One commenter cited data on 17   .
                            untreated waterside boiler cleaning
                            wastes (whfch include ethylene-
                            diamine-triacetic acid (EDTA),
                            hydroxyacetic-fonnic acid, and
                            ammoniated bromate and hydrochloric
                            acid). Only one sample (or 5.8 per cent)
                            showed an exceedence of the EP limits,
                            for total lead with a concentration of
                            6.67 mg/1. The average lead
                            concentration for all 17 samples was
                            1.43 mg/1 with a median value of 0.5
                            mg/1. None of the 17 waterside boiler
                            cleaning waste samples was corrosive.
                            .  Another, commenter cited company  -
                            data for 69 samples of waterside boiler;
                            cleaning wastes (which include EDTA,
                            hydroxyacetic-fonnic acid, and citric
                            acid). Among these samples, only 15 (or
                            22 percent) showed exceedences of the
                            EP limits. Thirteen of these exceedences
                            were for total chromium and two were
 for total lead. The average total    .,
 chromium concentration for all 69
 samples was 3.41 mg/1 with a median
 Value of 2.08 mg/1. The average total
 lead concentration was 1.23 mg/1 xwith
 a median value of 0.56 mg/1. The  -
 commenter emphasized that these
 values were all considerably less, than
 those cited in the RTC.         .
   In addition, the company tested
 several of the same waterside Boiler
 cleaning wastes for hexavalent
 chromium under the EP toxicity test
 procedure. Of the 16 samples so tested,
 only 1 showed a concentration of
 hexavalent chromium above the
 detection limit of 0.02 mg/1. Two of the
 16 tested samples, exceeded 5.0 mg/1 for
 total chromium concentrations. All 17
 of the other samples showed
 concentrations of hexavalent chromium
 below the detection limit.: '
   EPA acknowledges these comments
 and would welcome the opportunity to
 review any additional data. The
 averages for lead and chromium cited by--
 the commenters are indeed lower than
 those cited in the RTC. However,
 because some boiler cleaning chemicals
 appear to exhibit hazardous waste
 characteristics and the data on the
 impacts of their management with large- .'
 volume wastes are limited, the Agency
 believes further study is necessary
 before a final regulatory determination
 is made.       •
 ;  Several commenters claimed that the
 costs of managing low-volume wastes
 under Subtitle G would be very high.
 Some commenters felt that such
 management would necessitate
 transporting these wastes offsite,
 thereby posing risks of environmental
 releases without  significant
 environmental benefit, Other         '
 commenters observed that continuing to
 manage these wastes onsite would
• require that the disposal facilities
 become treatment, storage, or disposal
 facilitiesi        '.•••'..    .
 ,  As noted previously, EPA is deferring
-a final determination on low-volume    :
 wastes co-managed with the four large-
 volume wastes, pending additional data
 collection. As necessary and-in  .     ,
 accordance with  the Section 8002(n)
 study factors, EPA will consider the
 potential cost impacts in making a
 determination for these wastes. Low-
 volume wastes managed independently  •
 are not and never have been within the
 scope of the  Bevill Exemption.
   The Agency also recognizes that '
 transporting hazardous wastes may pose
 risks of environmental releases.
 However, regulations have been
 developed to ensure that hazardous
 wastes are transported hi a manner

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42480    Federal Register / Vol. 58, No. 151 / Monday. August 9, 1993 / Rules and Regulations
sufficient to protect human health and
the environment (see 40 CFR § 263).
  Many commenters stated that when
low-volume wastes are co-managed with
high-volume wastes, the Bevill
Amendment forbids EPA from
regulating them until the Agency
addresses each of tha Section 8002(n) (
factors in its study and bases its
determination on all of those factors.
These commenters maintained that EPA
may not rely solely on tha outcome of
a waste characteristic test as the basis of
its Regulatory Determination regarding
these wastes and this management
process. They went on to say that the
record assembled in tha Report to
Congress presents no evidence of
environmental risk associated either
with this co-management practice or
with the co-disposed wastes and
contains no information or findings as
to many of the remaining Section
8002(n) factors.
  For the reasons died above, the data
are insufficient to assess fully the
potential risks associated with present
co-disposal practices. As discussed,
EPA does not intend to rely solely on
waste characterization data as the basis
of its Regulatory Determination for
remaining wastes. The Agency
acknowledges that many of the 8002(n)
study factors have not been considered
for low-volume wastes co-managed with
high-volume wastes. EPA plans to
address these study factors before we
make * final regulatory determination
on thes« wastes.
  (3) EPA encourages the utilization of
coal combustion wastes as one method
for reducing the amount of these wastes
that need to be disposed to the extent
that such utilization can be done in an
environmentally safe manner.
  While all respondents agreed with the
RTC'c third recommendation
encouraging coal combustion waste
utilization, several qualifying comments
were received.
  One commenter noted that, while the ,
RTC is correct in requiring that
utilization to be done in an
environmentally safe manner, Congress
needs to be equally concerned that
waste utilization is done in a
structurally safe manner. This
commenter claimed that the RTC's
assertion, "all types of coal ash are
appropriate for usa as construction
materials, as cement additives, and for
several other uses," is entirely
erroneous. Tha commenter stated that
the RTC contradicts this statement
further on by delineating some of the
reasons why some fly ashes are not
appropriate for use in construction. All
materials used in engineering
construction work are required to
comply with appropriate ASTM
standards. Regarding utilization in
concrete, the commenter felt that the
RTC must cite the appropriate ASTM
Standard C618.
  EPA acknowledges and agrees with
the comment However, it is not within
EPA's authority to mandate structural
requirements, except where they may
affect the potential for environmental
impacts.
  In a recommendation on utilization,
one commenter pointed out that the
RTC encourages this practice "to the
extent that it can be done in an
environmentally safe manner." The
commenter cited the report's statement
that "current waste utilization practices
appear to be done in an environmentally
safe manner." The commenter claims
that there is no delineation between
practices that are environmentally safe
and ones that are not environmentally
safe.
  To date, and using the limited data
available, the Agency has not found any
environmental damages associated with
the utilization of large-volume coal-fired
utility wastes. However, the Agency
agrees with the commenter that
utilization of coal combustion wastes
should be done in a manner fully
protective of the environment and
consistent with existing Federal and
State regulations.  •
  Several commenters disagreed with
the RTC where it stated that the
potential for significantly increasing the
amount of waste utilization may be
limited. Given current utilization
techniques, the report predicts that the
major portion of coal combustion wastes
will continue to be land disposed. Some
commenters felt that reluctance toward
waste utilization is largely due to the
stigma of classifying the by-products as
"waste" and that EPA should remove
"beneficially used coal ash" from the
definition of "solid waste".
  Some commenters also noted that in
enacting RCRA, Congress intended that
EPA take a more active role in resource
conservation and recovery. They
thought EPA should give stronger
support for additional use and market
development with the emphasis placed
on large-volume utilization. It was noted
that some States have exempted ash for
reuse from their solid waste programs
and recommended that the Agency
support State efforts to  authorize the use
of coal combustion by-products.
  These commenters claimed that
considerable attention was directed to
limited cases of adverse impact in the
RTC. They maintained that EPA should
acknowledge in its Regulatory
Determination that a selective ash
characterization program coupled with
 good engineering practice would ensure
 environmental acceptability of large-
 volume ash applications. The Agency
 should take a leadership role by issuing
 procurement guidelines related to the
 use of coal ash in high-volume
 applications within the transportation
 and construction industries. Such high-
 volume applications would include the
'use of coal ash as structural fills, road
 embankments, and backfills.
  The Agency notes that Congress
 specifically mandates in RCRA Section
 8002(n) that the Agency consider the
 cases of adverse impact. The Agency
 encourages utilization of coal
 combustion byproducts and supports
 State efforts to promote utilization in an
 environmentally beneficial manner.
 EPA notes that the Agency has issued a
 procurement guideline to encourage the
 use of fly ash in cement and concrete in
 Federal projects (see 48 FR 4230,
 January 28,1984). The Agency prefers to
             ie individual states are in
 the best position to determine what
 types of utilization are appropriate for
 their environmental settings.

 Appendix B—^Analysis of and
 Responses to Public Comments on the
 Notice of Data Availability
  Chi February 12,1993, the Agency
 issued a Notice of Data Availability.
 (Notice) requesting comment on
 additional data on fossil-fuel
 combustion (FFC) wastes. These data
 are intended to update and supplement
 the materials presented in the 1988
 Report to Congress on Wastes from the
 Combustion of Coal by Electric Utility
 Power Plants (RTC). Da addition, the
 Notice solicited comment on the
 proposed methodology to be used in
 completing the August 1993 regulatory
 determination.           '  '
  Comments were received from 14
 parties. Several commenters also
 submitted additional published
 materials on FFC waste characteristics
 and management/treatment techniques.
 The Agency considered these materials
 in completing the regulatory
 determination^ as appropriate.
  The following discussion briefly
 summarizes the comments received on
 the additional data and the proposed
 methodology. The Agency's responses
 are also provided. The comments and
 responses have been grouped according
 to general topic areas.
  Methodology; Several commenters
 supported the use of EPA's proposed
 three-step methodology for completing
 the FFC waste regulatory determination.
 No commenters disagreed with any
 aspect of the methodology.

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            Federal Register / Vol. 58^ No. 151 / Monday, August 9,  1993 /Rules and Regulations    42481
   Fly Ash, Bottom Ash, Boiler Slag, and
 FGD Waste: Nearly all respondents •     ';
 indicated that the Notice documents
 supported the 1988 RTC's
 recommendation that large-volume
 combustion wastes dp not warrant
 regulation under Subtitle C. No
 coniriferiters'disagreed with this
 .^commendation.
   The Agency concurs with the
 commenters that the information   .
' contained in the docket does not
• contradict the data presented in the
 RTG. The Notice documents update and
 supplement the RTC by providing
 additional data on waste characteristics,
 environmental monitoring, and ~
 environmental impacts.
   Several commenters noted that State
 regulation of FFC waste management
 has become more stringent since the
 1988 RTC. More stringent solid waste
 regulations? including waste testing
 requirements and design-and
 performance-based standards, were
 specifically cited.
   The Department of Energy and the -
 EPA have recently completed separate  ~
 studies of the current level of State
 regulation of FFC wastes. Proceeding  .
 from the findings of these studies, the.
 Agency concurs with the commenters  ,
 that State requirements have generally
 become more stringent since 1983
 (when the data cited in the 1988 RTC
 were collected). EPA supplemented the
 1983 data  for all 50 States with an
 updated analysis of 17 States    •
 representing all geographic regions of .
• the United States an.d generating
 approximately 70 percent of the
 Nation's coal ash. As noted in.the
 preamble to the regulatory   ;
 determination, this study showed that
 States are imposing additional controls
 to ensure the proper management of
 these wastes.               •
   One commenter felt that there is the
 potential for groundwater degradation
 from these coal combustion residues as
 a result of their leaching potential,
 although regulation of these'wastes
 under Subtitle C is not appropriate. The
 inherent high permeability of materials
 landfilled without the benefit of,
 stabilization or liners could allow a
 large volume of percolation to occur,
 resulting in potential groundwater
 contamination. The commenter urged:
 the Agency to eliminate questionable
 coal combustion waste impoundments
 and suggested that regulations  similar to
 40 CFR part 258 (requirements for
 municipal solid waste landfills) would
 be appropriate for FFb Waste'
 management units.   .
   While the Agency believes that design
 and operating requirements similar to
 part 258 may be appropriate for some
 FFG waste management units, the risks
 posed by FFC waste management are
 site-specific. Although groundwater •:
 contamination has occurred at certain
 coal combustibn waste sites,
 contamination has been due to a limited
 number of constituents, which are likely
 to attenuate and dilute to safe levels
 before reaching an exposure point,iThis
 is in contrast to municipal solid waste
 landfills that are subject to 40 CFR part
 258. The leachate at these sites often ,
 contains elevated levels of a wide range
 of toxic pollutants,-and numerous
 damages have been observed. Therefore, .,
' the Agency believes that the level of    .
 protection provided by the part 258
 criteria may not need to be universally
 applied to allEFC waste management
 units. It is therefore appropriate to allow
 the States to retain the flexibility to
 tailor requirements to site-specific or
 regional factors rather than establish
 broad Federal minimum requirements.
 It should be noted that many States have
 adopted regulatory requirements for
 FFC waste management units
 comparable to the part 258 criteria. EPA
 will consider these wastes as part of the
 Agency's ongoing assessment .of
 industrial non-hazardous wastes under
 RCRA Subtitle D.
  Low-Volume Wastes and Co- •. •:- •  •
 Management: Five of the,fourteen
 respondents supported permanently
 retaining the exemption for low-volume
 coal-fired utility Wastes co-managed^
 with large-volume wastes. These
 commenters indicated that the 1988
 RTC and Notice data show that co-
 management'is an environmentally
 sound management practice. One
 commenter specifically cited two .'.-..  -....
 Electric Power Research Institute (EPRI)
 studies completed since 1988 as
 demonstrating that co-managed wastes
 should be'excluded. .
 , EPA's efforts to compile more recent
 data continue to show limited
 information on the effects of co-
 management. However, some          :
 information included  in the Notice
 docket suggests that at several large-   "
 volume waste management sites where
 groundwater impacts have been    -
 detected, the operators have suggested
 that the cause of the contamination is
 co-management with low-volume
 wastes. Of specific concern to the
 Agency is co-management of ash, slag,
 and FGD waste with pyrites and/or'. •_
 chemical boiler cleaning wastes.
  The Agency does not believe that the
 two recent co-management studies cited
 by the commenter are conclusive or
 sufficiently representative of the entire „'
 universe of co-management sites. For
'example, at one site, EPRI findings  "  •
 indicate that a release is occurring
because of pyrite co-disposal. The   -•'"'.,':
release is localized by site-specific
conditions (i.e., alkaline soils) that may
not be found at every facility. Similarly,
a release is also occurring at the second
site. While migration of constituents
with primary drinking water standards
is limited, boron and sulfate have been
detected in downgradient wells.
  Low-volume wastes, co-managed with
large-volume wastes remain exempt
pending additional study. Separately
managed low-volume wastes are outside
the scope of the exemption, as noted by
one commenter representing a large part
of the industry. The same commenter in
responding to the RTC cited RCRA
Section 3001(b)(3)(i) and a January 13,
1981, letter from G. Dietrich. U.S. EPA,  ,
to P. Emler, Utility Solid Waste
Activities Group, as indicating that the
Bevill Exemption applies, only to low-
volume wastes when they are co-
managed with the four large-volume."
  However, the Agency cautions that
the limited data available to date
indicate that co-management of some
large-volume wastes with pyrites and
chemical boiler cleaning wastes can
cause adverse environmental impacts. ,
Pending the  study of low-volume wastes
co-managed  with large-volume wastes,
the Agency will continue to rely on its
authorities pursuant to RCRA Section
7003 as well as its Superfund    -.
authorities under CERGLA Sections 104  "
and 106, to address any human health  •
and environmental threats associated
with the co-management of these
wastes.   -                    ' .  .,-
  Several commenters emphasized that
low-volume  wastes are typically cp-     •
managed with ash, slag, and FGD  •
wastes.  .'..-.'"-        '            ;
  The Agency has observed that the
general trend in the industry is to
segregate certain low-volume wastes,
(e.g., boiler chemical cleaning wastes)
from ash, slag, and FGD wastes. At some
plants, low-volume wastes, such as
pyrites and chemical boiler cleaning
wastes, are now being disposed of
separately. As indicated above, the
Agency believes that additional study is
required to evaluate the risks posed by  ,
co-management of the low-volume
•wastes with  the large-volume wastes.
  Reutilization: One commenter noted
that in enacting RCRA, Congress
intended that EPA take an active role in
resource conservation and recovery. The
commenter indicated that some States
have developed overly stringent
regulatory requirements that have
  "Comments dated May 16,1988, received from
USWAG on the RTC and comments dated March • -
29,1993, received from USWAG on the Notice (sea
Docket numbers F-^BB-^PATA-FFFFF and F-93- ••'
FFCA-FFFFF).              -  ;:   .--.-'•

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42412    FexJer«l Regfrter A Vol. 58, No.  151 /Monday. August 9> 199S / Rules and Regulations
discouraged reuse of FFC wastes.
Several commenters recommended that,
in the Regulatory Determination, EPA
should recognize coal combustion
byproduct* as beneficial resources
rathec than a* waste materials.
  Because, according to the RTC, the
majority of coal combustion byproducts
are currently managed at waste* rather
than re-used (because, in part, of market
condition* as well a* regulatory status),
the Agency believe* it is appropriate to
consider them waste materials.
However, the Agency continues to
encourage reutilization of coal
combustion byproducts and supports
State efforts to promote reutilization in
an environmentally beneficial manner.
In term* of exempting coal combustion
wastes from the definition of solid
waste, because this determination is
confined to the issue of whether to
regulate those waste* as hazardous, this
request I* outside the scope of today's
action. The Agency, however, is
currently engaging in an effort to revise
the definition of solid waste. In April
1993. EPA's Definition of Solid Waste
Task Force held a public meeting in
Washington, DC The task force plans to
hold a series of monthly open meetings
from July through November 1993,
which will provide a forum for the
public to provide input on the
definition of solid waste.
Comments Related to Specific
Documents:
  Two commenters suggested that three
documents in the docket addressing the
Gavin Power Plant were added in error
and should not be considered in the
regulatory determination because they
deal with the investigation of
groundwater constituents (volatile
organic compounds (VOCs)) that are
unrelated to the management of coal
combustion byproducts.
  The Agency recognizes that the source
of the VOC contamination at the Gavin
site is unlikely to have been coal
combustion wastes. These documents
were Included in the docket only to
provide a complete understanding of
groundwater conditions, including
background levels, at the site.
  Site Visit Reports: One commenter
provided comments on EPA's site visit
report for the Cayuga Power Station, PSI
Energy, Incorporated. The commenter's
specific remarks and the Agency's
responses are summarized below:
  One commenter noted that the Cayuga
site visit report incorrectly assumes that
ail data in Table 5 are from
downgradient wells. The commenter
suggest* that the maximum arsenic and
vanadium values above background
                                      were actually detected in an ash well
                                      (PZ-14), rather than with a soil core
                                      system. Because of this, the commenter
                                      concludes that no adverse impact on
                                      groundwater has occurred.
                                       In response, CPZ-14 is specifically
                                      identified in EPRI's Report on the
                                      Cayuga site (see Comanagoment of Coal
                                      Combustion By-product and Low-
                                      Volume Wastes: Midwestern Sites, EPRI
                                      Report EN-7545J as a downgradient
                                      well, and arsenic and vanadium were
                                      found above background levels in the
                                      sediments immediately underlying the
                                      ash pond. The Agency acknowledges
                                      that any release of these constituents is
                                      limited because they were not found in
                                      other wells. It should further be noted
                                      that other constituents, including sulfate
                                      and boron, have consistently been found
                                      above  background levels in several
                                      downgradient wells.
                                       One commenter stated that the
                                      Cayuga site visit report overemphasizes
                                      the lack of background groundwater
                                      monitoring data, because the actual
                                      downgradient groundwater data show
                                      no adverse impacts.
                                       The report only indicates which
                                      parameters appear to be above
                                      background levels and notes that the
                                      limited background data make any data
                                      analysis difficult. The site visit report
                                      does not comment on whether the data
                                      show any adverse impacts associated
                                      with the ash management unit.
                                       One commenter noted that total
                                      constituent and hydroxylamine
                                      extraction coal ash data presented in the
                                      EPRI study and the Cayuga site visit
                                      report should not be used to consider
                                      the actual leaching potential.
                                       These data were included in the site
                                      visit report because they were the only
                                      waste  characterization data available for
                                      the Cayuga site (no other leaching
                                      studies were performed). The Agency
                                      recognizes that the hydroxylamine
                                      extraction test provides a "worst case"
                                      estimate of the potential for constituent
                                      mobilization and would likely
                                      overestimate actual teachability. The
                                      Agency emphasizes that the proposed
                                      three-step methodology not only
                                      considers waste characterization
                                      information, but also the actual risks
                                      posed by a waste in its "as managed"
                                      state.
                                       One commenter noted that the new
                                      groundwater monitoring data included
                                      in the  Notice docket show few   "
                                      exceedences of primary drinking water
                                      standards. Most exceedences of primary
                                      drinking water  standards occurred at
                                      older sites that are atypical of current
                                      sites. Exceedences of Secondary
                                      Drinking Water Standards occur more
                                      frequently, but  the percentage of sites
involved is still low. The commenter
noted that exceedences of SDWSs are
not violations of a Federal standard
requiring enforcement or of most State
standards, since SDWSs are guidelines.
Further, exceedences would likely not
occur if the relevant point of
compliance were set further from the
site (e.g., 150 meters downgradient as in
the municipal solid waste landfill
rules). Finally, the commenter indicated
that many elevated constituent levels
could be attributable to natural or other
non-coal ash related sources (data were
cited from several sites). Another
commenter suggested that, the data show
that the potential exists for groundwater
degradation through migration of
constituents with SDWSs (e.g., iron,
sulfates, chlorides, and other soluble
salts).
  The Agency disagrees that the new
docket materials show alow percentage
of exceedences of both PDWSs and
SDWSs. Of the 49 individual sites with
groundwater monitoring information
(summarized in Appendix D of the  ,
Supplemental'Analysis of Potential
Risks to Human Health and the
Environment from Large-Volume Coal
Combustion Waste, found in the
docket), 19 had at least one exceedence
of a PDWS, and 42 had at least one
exceedence of a SDWS,
  The Agency concurs that some of
these exceedences of PDWSs could be
due to contamination from other sources
and that dilution and attenuation would
tend to reduce contaminant
concentration below levels of concern at
receptors. While the Agency recognizes
that SDWS exceedences are not always
considered violations, elevated levels of
secondary parameters can cause adverse
impacts. Therefore, the Agency has
considered the mobility of these
parameters in determining the risks
posed by FFC waste management.
Acknowledging the results of this
analysis, the Agency concurs that many
newer units have been designed to
prevent releases (i.e., with liners),
releases are frequently localized by site-
specific conditions such that
contaminants do not reach receptors,
and exceedences are sometimes caused
by natural or non-coal ash related
sources (often for chlorides, iron, and
manganese}. Finally, although much of
• the data is from older sites, many of
these sites are currently active;
therefore, they cannot be regarded as
categorically atypical.
(FR Doc. 93-18975 Filed 8-6-93; 8:45 am)
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