[Federal Register Volume 76, Number 197 (Wednesday, October 12, 2011)]
[Proposed Rules]
[Pages 63252-63257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26086]


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ENVIRONMENTAL PROTECTION AGENCY

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

[EPA-HQ-RCRA-2011-0392; FRL-9476-6]
RIN 2050-AE81


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Data Availability and Request for Comment.

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SUMMARY: This Notice announces and invites comment on additional 
information obtained by the Environmental Protection Agency (Agency or 
EPA) in conjunction with the proposed rule: Hazardous and Solid Waste 
Management System: Identification and Listing of Special Wastes; 
Disposal of Coal Combustion Residuals From Electric Utilities that was 
published in the Federal Register on June 21, 2010 (75 FR 35127). This 
information is generally categorized as: Chemical constituent data from 
coal combustion residuals (CCRs); Facility and waste management unit 
data; Information on additional alleged damage cases; Adequacy of State 
programs; and Beneficial Use. In addition, EPA is considering a variety 
of possible approaches to update and enhance the risk assessment and 
the regulatory impact analysis (RIA) supporting the development of the 
final rule. EPA is specifically soliciting comments on the validity and 
propriety of the use of all new information, data, and potential 
analyses being noticed today. The Agency is only requesting comment on 
the information either specifically identified in this Notice or 
located in the docket for this Notice and is not reopening any other 
aspect of the proposal or the underlying support documents that were 
previously available for comment. Comments submitted on any issues 
other than those specifically identified in this Notice will be 
considered ``late comments,'' and EPA will not respond to such 
comments, nor will they be

[[Page 63253]]

considered part of the rulemaking record.

DATES: Submit comments on or before November 14, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2011-0392, by one of the following methods:
    (1) http://www.regulations.gov: Follow the online instructions for 
submitting comments.
    (2) E-mail: Comments may be sent by electronic mail (e-mail) to 
rcra-docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA-2011-0392. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    (3) Fax: Comments may be faxed to 202-566-9744. Attention Docket ID 
No. EPA-HQ-RCRA-2011-0392.
    (4) Mail: Send two copies of your comments to Hazardous and Solid 
Waste Management System: Identification and Listing of Special Wastes; 
Disposal of Coal Combustion Residuals From Electric Utilities: Notice 
of Data Availability and Request for Comment, Environmental Protection 
Agency, Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460. Attention Docket ID No. EPA-HQ-RCRA-2011-0392.
    (5) Hand Delivery: Deliver two copies of your comments to the 
Hazardous and Solid Waste Management System: Identification and Listing 
of Special Wastes; Disposal of Coal Combustion Residuals From Electric 
Utilities: Notice of Data Availability and Request for Comment Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC 20460. Attention Docket ID No. EPA-HQ-RCRA-2011-0392. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2011-0392. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available on-line 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI), or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Hazardous and 
Solid Waste Management System: Identification and Listing of Special 
Wastes; Disposal of Coal Combustion Residuals From Electric Utilities: 
Notice of Data Availability and Request for Comment Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The Docket telephone number is (202) 
566-0270. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Steve Souders, Office of Resource 
Conservation and Recovery (5304P), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, 
telephone (703) 308-8431, e-mail address souders.steve@epa.gov or Jason 
Mills, Office of Resource Conservation and Recovery (5305P), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, 
Washington, DC 20460-0002, telephone (703) 305-9091, e-mail address 
mills.jason@epa.gov. For more information on this rulemaking, please 
visit: www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ccr-rule/index.htm.

SUPPLEMENTARY INFORMATION: 

I. How should I submit CBI to the agency?

    Do not submit information that you consider to be CBI 
electronically through http://www.regulations.gov or by e-mail. Send or 
deliver information identified as CBI only to the following address: 
RCRA CBI Document Control Officer, Office of Resource Conservation and 
Recovery (5305P), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, 
DC 20460, Attention Docket ID No. EPA-HQ-RCRA-2011-0392. You may claim 
information that you submit to EPA as CBI by marking any part or all of 
that information as CBI (if you submit CBI on disk or CD-ROM, mark the 
outside of the disk or CD-ROM as CBI and then identify electronically 
within the disk or CD-ROM the specific information that is CBI). 
Information so marked will not be disclosed, except in accordance with 
procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD-ROM, mark the outside 
of the disk or CD-ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please contact: 
LaShan Haynes, Office of Resource Conservation and Recovery (5305P), 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460-0002,

[[Page 63254]]

telephone (703) 605-0516, e-mail address haynes.lashan@epa.gov.

II. Purpose of This Notice

    With this Notice, EPA is reopening the comment period on the 
proposed rule: Hazardous and Solid Waste Management System; 
Identification and Listing of Special Wastes; Disposal of Coal 
Combustion Residuals from Electric Utilities (75 FR 35127, June 21, 
2010), herein referred to as the ``2010 proposed rule,'' for the 
limited purpose of obtaining public comment on additional information 
that may be relevant to the development of a final rule. Some of the 
information includes data or analyses that were received during the 
comment period for the 2010 proposed rule and that could have the 
potential to play a role in support for decisions in the final rule. It 
also includes information obtained based on further EPA research 
conducted both during and after the close of the comment period, and 
which was therefore not available for public comment during the prior 
comment period on the proposed rule. The NODA describes several general 
categories of information and data. In addition, this Notice describes 
some new information and data we have received that could be used in 
potential updates and enhancements to the risk assessment and RIA for 
the final rule.\1\ Note, however, that the NODA does not provide an 
exhaustive presentation of all of the information and data that EPA is 
placing in the associated docket and seeking comment on. All the 
information subject to this notice can be accessed as described in Unit 
III of this notice.
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    \1\ The cited risk assessment, ``Draft: Human and Ecological 
Risk Assessment of Coal Combustion Wastes,'' April 2010 (EPA-HQ-
RCRA-2009-0640-0002), and RIA, ``Regulatory Impact Analysis for 
EPA's Proposed RCRA Regulation Of Coal Combustion Residues (CCR) 
Generated by the Electric Utility Industry, '' April 2010 (EPA-HQ-
RCRA-2009-0640-0003) are available in the docket for the 2010 
proposed rule.
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    EPA is still in the process of evaluating this information and 
deliberating the provisions of a final rule. Therefore EPA cannot 
definitively state whether this information will provide support for 
any provision of the final rule, or that the Agency has determined that 
it is appropriate to rely on this information in developing the final 
rule. In addition, it should not be assumed that the specific 
information identified in this Notice is the full sum of information 
received in comments that will be considered or that will influence the 
Agency's decisions in this rulemaking. However, in the interests of 
ensuring that the public has had a full and complete opportunity to 
comment on the information that EPA has so far identified as having the 
potential to weigh in EPA's decisions on the final rule, EPA is 
reopening the comment period for the limited purpose of allowing the 
public to comment on the validity and propriety of using this 
information, data, and potential analyses in developing the final rule. 
EPA will also review this information to ensure the data is of 
sufficient quality before relying on it in deliberations on the final 
rule.\2\ EPA will use its Information Quality Guidelines, as 
appropriate, to evaluate information to be used in the Risk Assessment 
as well as all other information which supports the regulatory 
determination.\3\ In addition, EPA will also rely on the EPA Science 
Policy Council Assessment Factors Guidance to evaluate the quality and 
relevance of scientific and technical information.\4\
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    \2\ The Agency's Guidelines for Ensuring and Maximizing the 
Quality, Objectivity, Utility, and Integrity of Information 
Disseminated by the Environmental Protection Agency contain EPA's 
policy and procedural guidance for ensuring and maximizing the 
quality of information that the Agency disseminates. They were 
developed in response to guidelines issued by the Office of 
Management and Budget (OMB) under Section 515(a) of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Public 
Law 106-554; H.R. 5658). The EPA Information Quality Guidelines are 
available at: http://epa.gov/quality/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf.
    \3\ Specific evaluation criteria are outlined in the Agency's 
Data Quality Assessment: A Reviewer's Guide (EPA/240/B-06/002, 
February 2006) and in the checklist provided at http://www.epa.gov/quality/qs-docs/cklist-secondary.pdf
    \4\ Available at http://www.epa.gov/OSA/spc/pdfs/assess2.pdf.
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    As noted above, all of the information on which EPA is requesting 
comment is either specifically identified in this Notice or is located 
in the docket supporting this Notice. EPA is not reopening the comment 
period on any other aspect of the proposed rule. This is not an 
opportunity for the public to supplement their comments on the proposed 
rule, or to raise issues that could have been raised during the 
original comment period. The only issues on which the Agency is 
soliciting comment relate to the information in the docket supporting 
this Notice, EPA-HQ-RCRA-2011-0392, or the potential revisions to the 
risk assessment specifically described in this Notice. Comments 
submitted on any issues other than those specifically identified in 
this Notice will be considered ``late comments'' on the proposed rule. 
EPA will not respond to such comments, and they will not be considered 
part of the rulemaking record.

III. Where can the information identified in this notice be found?

    Most of the information that EPA is noticing today, including the 
specific comments, can be found in the docket supporting this Notice, 
EPA-HQ-RCRA-2011-0392. Otherwise, the information is available from 
websites at internet addresses provided in this notice. For example, 
laboratory CCR leachate reports, included in Maryland Department of the 
Environment Coal Combustion Byproducts Reporting Requirements which are 
being noticed below are available at:  http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts/Pages/Programs/LandPrograms/Solid_Waste/ccbs/index.aspx. In addition, to further 
assist the reader, we are also providing, where appropriate, the docket 
number of the comment as it is identified in the docket supporting the 
2010 proposed rule, EPA-HQ-RCRA-2009-0640. The docket number can be 
found directly following the comment in a parenthetical. For example, 
Southern Company provided an Electric Power Research Institute (EPRI) 
report titled ``Characterization of Field Leachates at Coal Combustion 
Product Management Sites,'' EPRI report 1012578 (attachment two of 
document No. EPA-HQ-RCRA-2009-0640-6300). With this additional 
information the reader can also use the proposed rule docket to access 
the noticed information.
    Finally, most documents are available from the docket for viewing 
and downloading through http://www.regulations.gov; however, 
copyrighted documents are only available for viewing by visiting the 
docket for the proposed rule (EPA-HQ-RCRA-2009-0640) at 
regulations.gov.

IV. What new chemical constituent data are being noticed?

    EPA is soliciting comment on chemical constituent data on coal 
combustion residuals (CCRs) provided by commenters, which include total 
concentrations, pore water, and leaching test results for various types 
of CCRs, i.e., bottom ash, fly ash, flue gas desulfurization (FGD) 
gypsum, FGD sludge, fly ash cenospheres, boiler slag, and combined 
waste streams. The following documents identify the new CCR constituent 
data on which EPA is seeking comment.
    1. Southern Company provided an Electric Power Research Institute 
(EPRI) report titled ``Characterization of Field Leachates at Coal 
Combustion Product Management Sites,'' EPRI Report 1012578 (attachment 
two of document

[[Page 63255]]

No. EPA-HQ-RCRA-2009-0640-6300). This report provides field leachate 
results for bottom ash, fly ash, and FGD solids in Table A-1 of 
Appendix A. The same report was provided by EPRI in their comments on 
the proposed rule (EPA-HQ-RCRA-2009-0640-7776 and attachment four of 
document No. EPA-HQ-RCRA-2009-0640-9765). The report is copyrighted and 
not available through regulations.gov. The report may be viewed by 
visiting the docket reading room or can be obtained at no charge from 
EPRI at www.epri.com by searching on the document number or title in 
the search bar.
    2. The Alaska Department of Environmental Conservation (ADEC) 
provided a table of total metals, toxicity characteristic leaching 
procedure (TCLP), and synthetic precipitation leaching procedure (SPLP) 
results for a bottom ash and a fly ash sample from an electric utility, 
and from a non-utility. These data are provided in Appendix A of ADECs 
comments on the proposed rule (attachment one of document No. EPA-HQ-
RCRA-2009-0640-6409).
    3. The Michigan Department of Natural Resources and Environment (MI 
DNRE) provided a summary table of TCLP data, ``Leach Results from 
Evaluation of Ninety Coal Combustion Residuals Samples.'' These data 
are provided in Attachment 1 of MI DNRE's comments (attachment three of 
document No. EPA-HQ-RCRA-2009-0640-6815). MI DNRE has subsequently 
provided individual TCLP results for 102 CCR samples and 12 FGD gypsum 
samples, and two landfill leachate samples. These data are available in 
the docket supporting this Notice.
    4. Sunflower Electric Power Corporation provided a table of SPLP 
leach test results for a fly ash sample, a bottom ash sample, and four 
composite sludge samples. The results are provided in a table on page 
41 of the report ``Volume 2: Site Hydrogeologic Assessment, Waste 
Characterization, and Fate and Transport Modeling, Holcomb Common 
Facilities Industrial Landfill, July 27, 2007.'' (attachment three of 
document No. EPA-HQ-RCRA-2009-0640-6912).
    5. The University of North Dakota Energy & Environmental Research 
Center, on behalf of the Coal Ash Resources Research Consortium, 
provided the following:
    a. A report titled ``Evaluation of Leaching Potential of Solid Coal 
Combustion Wastes, Final Report'' (attachment two of document No. EPA-
HQ-RCRA-2009-0640-6996) which includes tables in Appendix D of totals 
concentrations and leaching test procedure results for two fly ash 
samples, a fly ash sludge, a filter cake sludge sample, and a poz-o-tec 
(a mixture of fly ash, FGD sludge, and quicklime (calcium oxide)) 
sample.
    b. A report titled ``Mercury and Air Toxic Element Impacts of Coal 
Combustion By-Product Disposal and Utilization'' (attachment two of 
document No. EPA-HQ-RCRA-2009-0640-6997) which includes tables in 
Appendix M of leaching test results for 58 fly ash, five FGD, and four 
FGD gypsum samples using various leaching methods, but not TCLP, and 
TCLP mercury results for 15 fly ash samples.
    c. Appendix E of the report titled ``Demonstration of Coal Ash for 
Feedlot Surfaces'' (attachment five of document No. EPA-HQ-RCRA-2009-
0640-6998) which includes tables of leaching test results for five fly 
ash and two bottom ash samples using 18-hr, 30-day, and 60-day leach 
methods, plus bulk and trace element data for five fly ash samples, two 
bottom ash samples, and one slag sample.
    6. In their comments on the proposed rule, EPRI provided the 
following:
    a. Tables of total metals and TCLP results summary statistics for 
32 FGD gypsum and 11 mined gypsum samples (attachment one of document 
No. EPA-HQ-RCRA-2009-0640-9765, page 81). EPRI has since provided EPA 
with individual TCLP results for the gypsum samples. These data are 
available in the docket supporting this Notice.
    b. A report titled ``Characterization of Field Leachates at Coal 
Combustion Product Management Sites; Arsenic, Selenium, Chromium, and 
Mercury Speciation,'' EPRI Report 1012578, (EPA-HQ-RCRA-2009-0640-7776 
and attachment four of document No. EPA-HQ-RCRA-2009-0640-9765) which 
includes in Table A-1 of Appendix A, trace elements of field leachates 
from bottom ash, fly ash, and FGD sludge collected at 15 impoundments 
and 17 landfills. (This is the same report and data provided by the 
Southern Company described above.)
    7. The Boiler Slag Consortium provided laboratory reports with 
total metals and TCLP results for boiler slag fines samples (attachment 
one of document No. EPA-HQ-RCRA-2009-0640-7787, attachment two of 
document No. EPA-HQ-RCRA-2009-0640-7787, and attachment three of 
document No. EPA-HQ-RCRA-2009-0640-7787).
    8. Senator David Vitter provided laboratory reports with total 
metals and TCLP results for boiler slag fines samples (attachment two 
of document No. EPA-HQ-RCRA-2009-0640-6958, attachment three of 
document No. EPA-HQ-RCRA-2009-0640-6958, and attachment four of 
document No. EPA-HQ-RCRA-2009-0640-6958). These are the same data 
provided by the Boiler Slag Consortium (attachment one of document No. 
EPA-HQ-RCRA-2009-0640-7787 and attachment three of document No. EPA-HQ-
RCRA-2009-0640-7787).
    9. The Gypsum Association provided tables of total metals and TCLP 
results for FGD gypsum (attachment one of document No. EPA-HQ-RCRA-
2009-0640-8227, pages 15 through 19 and Exhibit 2).
    10. TCLP results for five fly ash cenosphere samples were provided 
by Sphere One, Inc. (attachment one of document No. EPA-HQ-RCRA-2009-
0640-8245, pages 4 through 6).
    11. Congresswoman Michele Bachmann provided laboratory reports with 
total metals and TCLP results for boiler slag fines samples (attachment 
three of document No. EPA-HQ-RCRA-2009-0640-8262 and attachment four of 
document No. EPA-HQ-RCRA-2009-0640-8262). These are the same data 
provided by the Boiler Slag Consortium (attachment one of document No. 
EPA-HQ-RCRA-2009-0640-7787 and attachment three of document No. EPA-HQ-
RCRA-2009-0640-7787).
    12. U.S. Minerals provided a copy of draft comments from Harsco 
Minerals which includes a table of TCLP results for 34 slag samples 
(attachment one of document No. EPA-HQ-RCRA-2009-0640-8271, pages 11 
and 12). Twenty five of the 34 samples were also provided by Harsco 
Minerals in their comments dated November 19, 2010 (see number 14 
below). Only 24 of the 34 samples are from electric utilities.
    13. The American Coal Ash Association (ACAA) provided the following 
in their comments on the 2010 proposed rule (EPA-HQ-RCRA-2009-0640-
10486):
    a. A report titled ``Leaching of Inorganic Constituents from Coal 
Combustion By-Products under Field and Laboratory Conditions,'' EPRI, 
1998 (TR-111773-V1) which includes tables of summary statistics for 
pore water concentrations from eight landfills and 12 surface 
impoundments for coal ash on page 3-2 and for FGD sludge on page 3-3, 
and tables of summary SPLP and TCLP results for CCRs from 10 surface 
impoundments on page 4-4 and 4-5. This report was provided by ACAA on a 
CD and is available for viewing by visiting the docket reading room. 
The report may also be obtained at no charge from EPRI at: http://www.epri.com by searching on the document number or title in the search 
bar.
    b. A paper titled ``Leachability of Trace Metal Elements from Fly 
Ashes,

[[Page 63256]]

and from Concrete Incorporating Fly Ashes,'' which includes tables of 
leaching test results for fly ash and fly ash concrete on pages 21 and 
pages 23 through 25. This paper was provided by ACAA on a CD and is 
only available for viewing by visiting the docket reading room.
    c. The paper titled ``Comparative Leaching of Midwestern Fly Ash 
and Cement,'' which includes tables of total metals concentrations and 
leaching test results for fly ash and cement on pages 30-6 through 30-
14. This paper was provided by ACAA on a CD and is only available for 
viewing by visiting the docket reading room.
    14. Harsco Minerals provided the following with their comments on 
the proposed rule (EPA-HQ-RCRA-2009-0640-10489):
    a. A table of TCLP results for 25 boiler slag samples on page 13. 
One sample, source number 24, is from a non-utility.
    b. A table of TCLP results for three boiler slag fines samples on 
page 14.
    c. Laboratory analyses reports for the 25 boiler slag samples in 
(a) above (attachment seven of document No. EPA-HQ-RCRA-2009-0640-
10489, Exhibit 6).
    d. Laboratory reports of total metals and TCLP leaching tests for 
three boiler slag fines samples (attachment seven of document No. EPA-
HQ-RCRA-2009-0640-10489, Exhibit 7). These are the same data provided 
by the Boiler Slag Consortium described in number 7 above.
    e. Laboratory analyses reports of TCLP results for three pre-blast 
and three post-blast boiler slag blasting abrasives (attachment seven 
of document No. EPA-HQ-RCRA-2009-0640-10489, Exhibit 8).
    15. Laboratory CCR leachate reports, included in Maryland 
Department of the Environment Coal Combustion Byproducts Reporting 
Requirements Annual Reports Received for 2008 through 2010:  http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts/Pages/Programs/LandPrograms/Solid_Waste/ccbs/index.aspx. Reports can 
be found under the heading ``CCR Reporting Information'' at the bottom 
of the webpage. EPA is seeking comment specifically on leachate reports 
pertaining to Constellation Energy; Mirant Mid-Atlantic, LLC; AES 
Warrior Run, LLC; and Allegany Energy Supply Company.
    16. EPA's Office of Research and Development (ORD), in coordination 
with Vanderbilt University (VU), has also developed CCR leaching data 
(Leaching Environmental Assessment Framework, or LEAF, data). Some of 
these data considered applicable to the 2010 Risk Assessment were 
already made available in reports placed in the proposed rule docket 
(EPA-HQ-RCRA-2009-0640-0314, 0315, and 0329); further data are being 
made available to the public for the duration of the comment period at: 
http://vanderbilt.edu/leaching. To obtain a free access key, click the 
``License Application'' option under the ``LeachXS Lite'' tab. EPA is 
also providing further documentation of the data and the methodologies 
used at: http://www.epa.gov/nrmrl/pubs/600r10170/600r10170.pdf.

V. What new facility and waste management data are being noticed?

    The Agency is considering whether to use the following additional 
information sources in support of the final rule.
    1. U.S. Department of Energy/Energy Information Agency (DOE/EIA): 
``2009: EIA-923 January--December Final, Nonutility Energy Balance and 
Annual Environmental Information Data.'' This database is available on-
line at a U.S. Department of Energy/U.S. Energy Information 
Administration Web site at:  http://www.eia.doe.gov/cneaf/electricity/page/eia906_920.html under the heading ``Downloads'' at the bottom of 
the webpage. This database identifies facility data that may be 
considered in the development of the final rule.
    2. On October 21, 2010, EPA issued a NODA (75 FR 64974) seeking 
public comment on the responses to Information Collection Requests that 
EPA sent to electric utilities on their CCR surface impoundments, as 
well as reports and materials related to the site assessments EPA has 
conducted on a subset of these impoundments. Additional responses and 
site assessment materials have been posted to EPA's website since that 
time and this NODA addresses and solicits comment on this information, 
including:
    a. The Information Request Responses to EPA's Information Request 
Letter to Electric Utilities available at: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/index.htm
    b. EPA's Coal Combustion Residuals Impoundment Assessment Reports 
available at: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/index.htm

VI. What reports regarding alleged damage cases from the management of 
CCRs are being noticed?

    The Agency is noticing several reports received in comments to the 
2010 proposed rule, relating to alleged CCR management damage cases:
    1. A new report of alleged damage cases was released February 24, 
2010, by the Environmental Integrity Project and Earthjustice titled 
``Out of Control: Mounting Damages From Coal Ash Waste Sites,'' which 
presents 31 alleged CCR damage cases that were not included or were not 
recognized as damage cases in EPA's July 2007 report (EPA-HQ-RCRA-2006-
0796-0015) titled ``Coal Combustion Waste Damage Case Assessments.'' 
The report is available from the docket to this Notice.
    2. In late 2009, EPRI submitted to EPA two draft reports titled 
``Evaluation of Coal Combustion Product Damage Cases: Volume 1: Data 
Summary and Conclusions'' (finalized in July 2010), and ``Evaluation of 
Coal Combustion Product Damage Cases: Volume 2: Case 
Summaries''(finalized in September 2010). In these reports EPRI claimed 
that the EPA was inconsistent in applying its own `test of proof' 
criteria to determine which of the damage cases included in EPA's July 
2007 report qualify as CCRs-related proven damage cases. These reports 
are available from the docket to the proposed rule (EPA-HQ-RCRA-2009-
0640-0326, and EPA-HQ-RCRA-2009-0640-0327, respectively). These are 
copyrighted reports and are not available for viewing on-line. The 2010 
final reports are also copyrighted and are only available for viewing 
by visiting the docket to this Notice. They are also available on-line 
from EPRI at: http://my.epri.com/portal/server.pt?open=512&objID=413&&PageID=230509&mode=2&cached=true.
    3. A report released August 26, 2010, by the Environmental 
Integrity Project, Earthjustice, and the Sierra Club titled ``In Harm's 
Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 
Environment,'' which presents 39 alleged CCR damage cases. The report 
is available from the docket to this Notice.

VII. What new analyses of state programs are being noticed?

    1. EPA is noticing the comments on the 2010 proposed rule, 
submitted by Earthjustice, Environmental Integrity Project, Sierra 
Club, Natural Resources Defense Council, Southern Alliance for Clean 
Energy, Southern Environmental Law Center, and Physicians for Social 
Responsibility (attachment one of document No. EPA-HQ-RCRA-2009-0640-
6315), addressing gaps in state government regulatory programs 
applicable to the management of CCRs (pgs. 17-63).
    2. The Agency is also noticing comments addressing state programs

[[Page 63257]]

submitted by the Association of State and Territorial Solid Waste 
Management Officials (attachment one of document No. EPA-HQ-RCRA-2009-
0640-3936 and EPA-HQ-RCRA-2009-0640-8787), the Environmental Council of 
the States (attachment one of document No. EPA-HQ-RCRA-2009-0640-4003 
and EPA-HQ-RCRA-2009-0640-8854) and 36 states. All of the states' 
comments are available in the docket to the proposed rule.

VIII. What new materials on beneficial uses are being noticed?

    The Agency received a significant amount of additional data and 
other factual information relating to the beneficial reuse of CCR, such 
as the use in concrete, bricks and wallboard, during the comment 
period. EPA also obtained additional data as a result of further 
research. EPA is requesting comment on whether this information should 
be considered in the development of the final rule. All of these 
documents are available from the docket to this Notice.

IX. What new information and potential modeling analyses to update and 
enhance the risk assessment are being noticed?

    EPA is considering updating its risk assessment prepared in support 
of the 2010 proposed rule based upon public comments and additional 
information made available since the publication of the proposed rule. 
The 2010 Risk Assessment, ``Draft: Human and Ecological Risk Assessment 
of Coal Combustion Wastes,'' April 2010 (``2010 Risk Assessment'') is 
available in the docket to the proposed rule (EPA-HQ-RCRA-2009-0640-
0002). As noted previously, EPA is requesting comment only for the 
narrow purposes described in Unit II--i.e., on the validity and 
propriety of using the information, data, and analyses associated with 
this notice. As also noted previously, although EPA is singling out the 
information and data specifically listed below and in the docket for 
further public comment, it should not be assumed that this information/
data is the full sum of the information/data received in comments that 
will be considered or that will influence the Agency's decisions in 
this rulemaking.
    1. EPA is considering updating its pore water data by adding pore 
water data submitted by public commenters (previously discussed in 
Section IV). EPA is also considering the use of alternative statistical 
analysis, such as the use of quartiles or bootstrapping, in place of 
site averages for pore water data in order to retain intra-site 
variability in these data while not biasing results from the sites with 
greater numbers of sampling points.
    2. EPA is considering using the latitude and longitude data 
(obtained from additional information sources discussed in Section V) 
to estimate the distances from CCR waste management units to human and 
ecological receptors. EPA is considering updating its estimated 
distances to groundwater wells based on modeled population estimates 
discussed in the Agency's RIA for the proposed rule. Further 
documentation and the modeled population estimates based on synthesized 
population data sets are accessible at: ftp://ftp.epa.gov/coal-combustion-residues/NODA-1.
    3. EPA is considering updating the estimated distances from CCR 
waste management units to the nearest surface water bodies, based on 
the new latitude and longitude data (obtained from additional 
information sources discussed in Section V).
    4. EPA is considering modeling both landfills and surface 
impoundments throughout the operational life of the waste management 
unit and post-closure using the same modeling approach utilized in the 
2010 Risk Assessment.
    5. EPA is considering revisiting its screening assessment based on 
the new data and analyses above. EPA is also considering the use of the 
peer reviewed models, AERSCREEN and AERMOD, to evaluate fugitive dust 
(http://www.epa.gov/ttn/scram/dispersion_prefrec.htm#aermod). 
Depending on screening results, EPA may consider CCR fugitive dust and 
other above-ground exposure pathways from the open CCR waste management 
units for further modeling.

    Dated: September 30, 2011.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 2011-26086 Filed 10-11-11; 8:45 am]
BILLING CODE 6560-50-P