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CCR Webinar Transcript, August 12, 2010


Betsy Devlin
Mark Eads
Richard Benware
Alex Livnat

Betsy's Presentation

Betsy Devlin: Okay, thank you.  Sorry for the delay.  Again, we'll start now.  We're here to discuss EPA's proposal for coal combustion residuals.  The purpose of this webinar is to provide a summary of the co-proposal, to highlight the key issues on which we are requesting comment, and to give tips on how to comment effectively. And we want to answer basic clarifying questions about the proposed regulatory requirements.  And this webinar is not really a forum to take official comments on the rule.  However, we are taking questions and we will be putting it in the docket and we'll respond to them as we do our final rule.

If you have a question at any time during the webinar, simply type it in using the questions feature.  Technical difficulties, we'll get back to you immediately.  Others we will answer at the end of the presentation as the time allows.  We are taking questions that will assist you in understanding the proposal and the topics on which we're soliciting comments.  And there may be issues we're not going to be able to answer, and again, these are particularly--if you give us very detailed questions, very detailed implementation questions or fact-specific situations, we're really not going to be able to answer those questions and we would ask--tell you that it would be best for you to submit those to us when you submit an official comment.  And again, we will answer as many questions as time allows. 

Okay.  Now, I'm going to try to do a brief overview of the major pieces of this rule.  Coal combustion residuals are byproducts from the combustion of coal, consisting of fly ash, bottom ash, boiler slag, and flue gas desulphurization materials.  These residuals can contain constituents that are of concern to us, which may leach into groundwater or get into the surface water.  Contaminants are things such as mercury, cadmium, arsenic, lead, in some cases.  Why--and so, why are we concerned about them?  In addition, currently in 2008 in the U.S. we generated more than 136 million tons of coal combustion residuals, so it makes it one of our largest waste streams, which makes it very important that we manage it properly.  And if we look at how it's being managed currently, about 34% or 46 million tons is being land filled, 22% is being disposed of in surface impoundments, nearly 37% is being beneficially used, and nearly 8% is being placed in mines.  And our next slide shows--next bullet shows we have an aging infrastructure on some of our facilities - 75 % of our impoundments that manage CCRs are greater than 25 years old, with 10% greater than 50 years old. 

And just the universe - we have approximately 300 CCR landfills and approximately 584 surface impoundments in use at about 495 coal power plants.  So you can see while it concerns a very large waste stream, you have a large number of facilities managing the waste stream.

Now, what do we propose?  On June 21, EPA issued--EPA proposed two approaches for regulating the disposal of CCRs under RCRA.  We proposed a Subtitle C approach and we proposed a Subtitle D approach.  And it's important to note that our proposal covers CCRs that are generated from the combustion of coal at electric utilities and independent power producers.  It does not cover those coal-fired electric plants that are used captively by industries or universities.  And I know you had questions before saying if my facility generates electricity for my use, am I covered?  The answer is not by this regulation.

The engineering requirements in both of our proposals, meaning things like liners and groundwater monitoring, are very similar in our Subtitle C and our Subtitle D approach.  The differences, which we'll get into, are primarily in the areas of enforcement and implementation.  And again, we'll be describing those in detail in a few minutes.  Another key point is under both of our proposed alternative, the Bevill exemption remains in place for beneficial uses of CCRs.  So we are not proposing regulations for benefit use.  They do--they remain exempt from regulation under our proposal.  And mine filling is not covered by this proposal.

Okay.  Now, having sort of given you an overview, I'm really going to turn to the specifics of each of our alternatives under Subtitle C and under Subtitle D.  But before I do this, I want to mention that a large--the first part of our preamble discusses some prior regulatory determinations that EPA made, particularly our 2000 regulatory determination.  We explained the fact that we are now revisiting that determination.  We give you a number of factors that we're evaluating, including new information, requesting comment on a number of things and on our analysis.  And while I'm not going to go into that at this webinar, it is important that you read that and understand that part and submit comments to us on some of our analysis.  That piece does form the basis for a lot of the things that we do talk about and for our regulatory analysis.

First of all, for regulation under Subtitle C, CCRs being disposed would be listed as a special waste subject to Subtitle C.  And we give them the code of S001.  Once the material is listed as a special waste, it will be subject to all of the existing subtitle C requirements and they include the generator requirements, transporter requirements, permitting, ground water monitoring, correct action, financial assurance, land disposal restrictions, treatment standards.  Basically, it's the full cradle to grave set of requirements that we currently have under Subtitle C.  We have a couple of modifications to those requirements, which are allowed to do under our authority.  We will--we are requiring a single composite liner for landfills as opposed to double and based on our risk analysis the single composite liner is protected and we would be allowing five years for surface impoundments to come into compliance with the requirements that there would be no requirements for annual dredging.

Subtitle C also contains structural stability requirements, namely these are inspections and engineering requirements to ensure that our impoundments are structurally stable.  Existing landfills have to install groundwater monitoring within a year of the effective date of the rule, but they do not need to install composite liners.  New landfills or lateral expansions of existing landfills have to install composite liners and groundwater monitoring before the landfill begins operation.  Surface impoundments have to meet the LDRs and the liner requirements within five years of the effective date of the rule or close within an additional two years.  And we believe that the LDR requirements and the liner requirements have the practical effect of phasing out surface impoundments under Subtitle C.

Okay, with that brief overview of our Subtitle C requirements we now turn to the proposed requirements under Subtitle D.  Under Subtitle D, CCRs remain classified as a non-hazardous waste.  We would be proposing or we are proposing national minimum criteria governing the facilities disposing of CCRs.  And that is a key point our D regulations cover only those facilities.  They don't cover things like transportation or generator requirements.  It's only the disposal facility.  Many of the engineering requirements in our Subtitle D proposal are very similar to the Subtitle C option - groundwater monitoring, liners, structural stability, but under our Subtitle D approach the requirements are self-implementing.  You don’t have requirements at the central level for permits under this program.  And under Subtitle D, the owner and operator is required to do such things as obtain certifications by independent professional engineers.  That requirement's being met and we specific qualification requirements for those who make the certifications.  The owner/operator also has to document how various standards are met and these documentations have to be kept in the operating record and the state has to be notified.  And their owner/operator has to maintain a website that's available to the public that contains the documentation that the standard is being met. 

Okay.  Now that you sort of have a broad overview of the alternatives, I'd like to spend some time focusing on this chart because we're trying to highlight the key differences between our Subtitle C and our Subtitle D options.  And again, you'll see again that they're primarily in the areas of implementation and enforcement, and these are the areas, of course, on which we are soliciting comment.  One of the first key differences between Subtitle C and Subtitle D is that of the effective date.  In a Subtitle C rule, the effective date varies from state to state as each state is going to have to adopt the rule.  That can take one to two years, possibly more.  This will be a requirement under RCRA that an authorized program must adopt this rule, but it will take time.  Under Subtitle D, however, the rule can be effective or would be effective six months after it is promulgated.  We may have a longer compliance date for some of the provisions, but the rule is effective six months after promulgation. 

Another key difference between Subtitle C and Subtitle D is that of enforcement.  Under Subtitle C, we have state and federal enforcement and we have a robust--we have robust federal enforcement authorities for administrative and civil actions and emergency authorities.  Under Subtitle D at the federal level we do not have those authorities.  And so, enforcement at the federal level would be primarily through citizen suits.  States can always act as citizens.  States can always enforce their own rules, but EPA doesn't have a large role in enforcement in Subtitle D.  Corrective action, again, on a Subtitle C--we have corrective action in both Subtitle C and Subtitle D, but in Subtitle C it's monitored very closely by the authorized states and by EPA.  Under Subtitle D corrective action is self implementing.

Financial Assurance - under Subtitle D we have financial--under Subtitle C, rather, we have financial assurance requirements.  Under Subtitle D we are considering a subsequent rule perhaps using our authority under Subrule 108(b).  So that's a key difference.

Permit Issuance - under Subtitle C there is a federal requirement for permits that would be issued by the authorized state of the EPA where we run the program.  Under Subtitle D there is no requirement at the federal level for permits to be issued.  This does not mean that states are not issuing permits.  They can.  They just would not be required to as part of this rule.

Requirements for storage, including containers, tanks, containment building, under Subtitle C, yes, you have those requirements because those requirements exist in the Subtitle C scheme as it exists today.  Under Subtitle D, no, again, our authority is to the disposal unit itself, not to the other parts of the operation.  For surface impoundments that are built before the rule is finalized, surface impoundments will have to remove solids and meet land disposal restrictions, retrofit with a liner within five years of the effective date of the rule.  And again, we believe that under Subtitle C this would effectively phase out these existing surface impoundments.  Under Subtitle D, the surface--they would still have to remove solids and retrofit with a composite liner or cease receiving CCRs within five years of the effective date and close the unit.

For surface impoundments that are built after the rule is finalized, they have--under a Subtitle C option they would have to meet the land disposal restrictions and liner requirements.  Again, we feel that this would effectively phase out the use of new surface impoundments.  Under Subtitle D, they would have to install composite liners for new surface impoundments, but there are no land disposal restrictions.  For landfills built before the rule is finalized, they must install groundwater monitoring under Subtitle C, but there are no liner requirements.  And the same is true under Subtitle D.  We have groundwater monitoring requirements, but existing landfills do not have to install a liner.  For landfills built after the rule is finalized, we have under Subtitle C--under both Subtitle C and Subtitle D we have liner requirements and groundwater monitoring requirements.  And requirements for closure and post closure care under Subtitle C they were monitored very closely by the states and by the EPA, but under Subtitle D it's a self implementing system.  Again, we hope this table tries to summarize or crystallize some of the major differences between our two alternative proposals, and again, we're seeking comment on those approaches.

We did discuss--in our preamble we did discuss some other regulatory options.  We did not propose these, but we discussed these and we are taking comments on these as well.  One option, we call it D Prime, where it's basically the same as the existing Subtitle D proposal.  The only change is that existing surface impoundments would be allowed to operate until the end of their useful life.  They would not need to close within five years or [align].  Another option that we discussed is handling wet-handled CCRs being regulated under Subtitle C and dry-handled under Subtitle D.  We also discussed an option of issuing Subtitle C regulations.  That would be effective only if a state doesn't develop enforceable Subtitle D regulations and submit them to EPA approval.  And under this option, if a state failed to develop a program within two years or if EPA did not approve it within another year, the federal Subtitle C rule would be effective in that state. 

We also take comments on an approach we call the Cement Kiln Dust approach, because it's based on a proposal we did a number of years ago where we would establish detailed management standards under Subtitle D.  And if those--if the facility was in egregious violation of these requirements, then the CCRs would be considered special waste under Subtitle C and the Subtitle C requirements would come into effect.  One final option we discussed simply is to rely on NPDES permits for structural integrity requirements.  And NPDES permits are those permits that are issued under the Clean Water Act for discharges to surface waters.

We have done a detailed cost and benefit analysis and it is in our regulatory impact analysis.  It's quite detailed.  We estimated groundwater protection, avoided cancer cases, avoided future cleanup costs, increased beneficial use, for the next 50 years.  The costs and the benefits of Subtitle C, assuming no reduction in beneficial uses, the cost of the rule would be up to 1.5 billion a year with benefits of up to 7.4 billion a year.  Subtitle D, again, assuming no reductions in beneficial uses, our costs we estimate at 587 million a year with benefits of up to 3 billion a year.  We also estimate that if the full cost of Subtitle C were passed on from the utility companies to consumers, we indicate that--our estimates indicate that electricity prices nationwide could increase by 0.8% on average.  And for Subtitle D, that potential increase is 0.2%. 

Environmental justice - we did do an environmental justice analysis.  We collected demographic data on minority and low income populations by zip code.  We compared the data to the demographic data surrounding those coal fired plants and we estimated that 52% or 256 of the 495 plants had surrounding low income population percentages that exceeded their state low income percentages.  And we also estimated that 138 or the 495 plants, or 28%, had surrounding minority populations, which exceeded their state minority percentages.

Now, a big question and a very key issue for us is how does our proposal address beneficial use.  And we want to start out by saying that EPA supports and encourages safe and environmentally appropriate beneficial use.  And beneficial use (technical difficulty) substitutes mostly in industrial products and other activities.  And examples include cement, asphalt, and concrete.  Now, what is key to remember is that under all of our regulatory options we are proposing to retain the Bevill exemption for beneficial use.  That means we are not proposing regulations for beneficial use.  And while we say that, however, we do recognize that some concerns with some specific uses have been raised to EPA and there is a good deal of ongoing research on beneficial uses.  We have data that shows composition of CCRs are likely to change as a result of more aggressive air pollution controls.  And so, we do request comment on beneficial uses particularly as it relates to unencapsulated uses.

A key point that we make in our proposal is that we do not consider placement in sand and gravel pits or large scale fill operations to be beneficial use.  We consider these disposal and so they would be subject to disposal management standards.  And placing in sand and gravel pits includes the filling of old quarries or landscaping with large quantities of CCRs.  It includes quarries in Gambrills, Maryland where coal ash was filled and we had a lot of contamination of local drinking water wells.  And because of this, this is why we don't consider these things to be beneficial use.  They're much more like disposal.  And we really didn't consider them to be beneficial in our May 2000 regulatory determination and we do not consider it beneficial use into his proposal.

In summary, again, we want to say that we continue to believe that properly performed beneficial use is the environmentally preferable outcome for CCRs and we are very concerned about regulatory decisions that would limit beneficial use.  We know that beneficial use has a lot of benefits and so we don't want to limit.  And again, that's why we are not proposing to modify the existing Bevill exemption.

We do recognize there is a disparity in the quality of state beneficial programs.  There's uncertainty in the future characteristics of CCRs and uncertainty about risks associated with some of the beneficial uses.  Again, as I said, we understand the potential environmental benefits.  So again, we're requesting comment on whether certain uses present risks to human health in the environment, whether certain uses should be addressed differently, how we should address certain uses.

So now that we've had that very, very brief overview of the major parts of the rule, I'd like to tell you a little bit specifically on the things that we are seeking comment on.  And we're seeking comment in three main areas, we're seeking comment on beneficial use, and we're seeking comment on our supporting analyses, our economics, our risk, our damage cases, all of our supporting analyses.

And when I say, first, on all aspects of our proposed regulatory options, where Subtitle C versus Subtitle D, what is the most appropriate regulatory structure for regulating CCRs.  We're asking for comment on the specific elements of each alternative, for example, liners, liner flexibility, the structural stability requirements, specific elements - are they appropriate, should we be designing those elements in somewhat of a different way.  And other alternative regulatory approaches.  Again, we're taking comments on those even though they're not--we didn't propose them, we do take comments.  So we really do see comments on all of that.

On beneficial use, we seek a great deal of comment and information on beneficial uses.  We seek information on new beneficial uses that are or are coming into the marketplace.  We seek comment on incentives EPA could provide that would increase the amount of CCRs that are beneficially used.  We seek information and data on the best means of estimating future quantities and changes in the beneficial use of CCRs.  And we seek information and data on beneficial uses that could present a risk to human health and the environment.

One of the big issues we seek comment on is that of stigma.  There have been allegations or assertions that if we were to regulate disposal of CCRs under Subtitle C there will be stigma and therefore beneficial use would decrease.  And so, we seek a great deal of comment on this topic.  And a question - if EPA were to regulate CCRs as a special waste subject to Subtitle C, what could we do that reduce the stigmatic effects that might arise?  We're also asking for concrete data on actual instances where the stigma has adversely affected beneficial uses of CCRs and, if possible, the causes of these adverse effects.  We seek specific information on how stigma could cause procedural difficulties for state beneficial use programs and measures EPA might adopt to mitigate these effects.  For those who believe that regulating CCRs under Subtitle C would raise liability issues, we ask that you describe the types of liability and the basis for the information on which those claims are made.  And we ask for ideas on how best to estimate stigma effects for purposes of conducting regulatory impact analyses, and if have it, provide data or methods to assist EPA in this analysis.

We're seeking comment on our supporting analyses, specifically on the extent of our existing damage cases, on the extent of risks posed by mismanagement of CCRs, on the adequacy of state programs to ensure proper management of CCRs.  We are requesting details on how the states currently regulate CCRs.  And comments on risk and economic analysis.  And again, we are soliciting comments, as I said, on all aspects of the proposal. We want to have a robust public dialogue on all of these issues so that we can ensure our decisions are based on the best available information and with the full consideration of input from the public.

If you wish to submit comments to the docket, the official comment period currently ends on September 20.  You can submit them on the web.  The website is on your screen.  You can email them to the docket, you can fax them, or you can mail them.  Again, all the addresses are there.  And in addition, we have scheduled seven public hearings and the details are on our website.  Those hearings are in Arlington, Virginia on August 30, in Denver, Colorado on September 2, in Dallas on September 8, in Charlotte, North Carolina on September 14, in Chicago, Illinois on September 16, in Pittsburgh, Pennsylvania on September 21, and in Louisville, Kentucky on September 28.  And again, how to register.  We encourage you to register for these hearings.  If you would like to speak, again, if you go to our website it's quite easy to register for the hearings and the detailed information of the hotel locations again, are all on our website.

We ask that you type your questions into the questions feature and we will answer as many clarifying questions as we can before 3:00.  Again, I want to say that this presentation will be on the web later this afternoon.  The recording will be up as soon as possible within a couple of days.  A number of questions have come in on is EPA going to extend the comment period.  EPA has had a number of requests to extend the comment period anywhere from 60 to 120 days.  We are considering those requests and to make a formal announcement on that shortly. 

Okay.  As we did last time, we've gotten a tremendous amount of questions and I think what we're going to do is take a break just to let us organize the questions, and we'll get back to you within five minutes. (Break)

Okay, thank everybody.  We're now back.  This is Betsy Devlin, again.  We've had a number of questions and we've had a number of questions on economics and some questions on risks. So I'm going to turn it over to Mark Eads who conducted our Economic Impact Analysis to have him address some of the economic questions.  And then, we'll have [Richard Benware] address some of the risk questions, and then I'll come back and answer some additional process questions that I know a number of you have.

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Questions for Mark

Mark Eads: Good afternoon.  I hope you can hear me.  I'm using a different microphone than Betsy's microphone.  It looks like we have no problems, so I'll continue.  I'd like to begin by answering two economics related questions that began in last week's Thursday webinar.  I'd like to begin by giving everyone the reference to EPA's economic analysis document in support of this rule, because the answers I'm going to give will be at a relatively general level and there are many details to--behind the economic analysis and some details behind the answers--the general answers that I give.  So if everybody has a pen or pencil could write down the document reference number.  It's EPA-HQ-009-0640-0003.  That's what's called a document ID number.  And if you type that long document ID number into the search box at the federal docket website, you can [see] economic analysis for this proposed rule.  And the website for the federal docket is shown in Betsy's presentation slides.  It's Regulations.gov.

With that information, now I'll get to the (technical difficulty) the assumptions we made in our economic analysis concerning what, if the rule--if the proposed rule--if it's finalized may impact the existing beneficial uses.  And the beneficial uses pertain to--not to disposal of material, but a relatively large fraction of coal ash generated by these utility plants gets transported offsite and used by different types of industries.  According to the American Coal Ash Association there are over 15 different industries that either purchase electric utility plants and use it as industrial ingredients or raw ingredients as a substitute for other materials in making things like cement, concrete, roof tiles, et cetera.

One question is concerning the impact on the rule.  The general answer is that we've made two alternative assumptions in the [RIA].  These assumptions are described in Section 5C of the RIA in more detail, but generally I'll describe them.  The first assumption is our own assumption that in fact as a result of this rule in the future that we anticipate beneficial use will continue to increase as it has been increasing over the last decade in the United States.  And there are essentially three reasons why we made that as our main assumption.  One is that there's been a very powerful increase in the use of this material in different types of industries, as well as new products coming on-stream that will potentially use this material as well.  And according to the ACAA statistics, beneficial use has increased from approximately 30% to the latest statistic we have in the economic analysis for 2008 is almost 45%. 

Looking globally to some of our industrial competitors in Europe, beneficial use, and as well in Japan, has increased to 89% and even 95, 96% I think in Japan recently.  So that illustrates that there is indeed a huge potential market for coal ash for use in industrial as an ingredient in industrial materials.

Secondly, EPA in our experience with prior RCRA Subtitle C rules has also even under the designation--new designation of some materials as hazardous waste, we've seen in fact that the recycling of those materials has increased after the regulation has taken place.  Thirdly, although there've been some claims by industry that there will be potentially a stigmatizing effect of the regulation, we haven't seen any empirical evidence of that in other materials that we've looked at in other markets and industrial [studies] having strong empirical data or evidence support that contention that there could be a stigmatizing effect.

Now those are the general reasons why we've made our main assumption as to a potential increase in beneficial use.  We did at OMB's request, they requested that we also provide a balance scenario whereby we come up with a calculation of a potential worst case decrease in beneficial use as a result of the--if we finalize the Subtitle C option that Betsy described earlier today.  And I won't go into the details.  There are a number of assumptions rather detailed, as well as supporting data that we use to quantify and evaluate that second scenario.  And again, that--both scenarios are described in Section 5(c) of the economic analysis, the regulatory impact analysis.

Another question concerning beneficial use is that one questioner asks about the figures that we have assigned to the potential benefits of the Subtitle C regulation.  The question is that whether the $7.4 billion average annualized level of benefits under the Subtitle C option, if that includes our scenario whereby we project an increased benefit for--increased beneficial use. The answer is, yes, it does.  And the corollary part of the question is what--did we have an alternative scenario or assumption as to beneficial use and what would the benefit summary be for that.  And the answer is, yes, as I just described, we had an alternative decreasing beneficial use scenario.  And rather than a 4.4 billion positive annual benefit under Subtitle C under the second scenario where we postulate a future decrease in beneficial use the--there would--the cost of the loss of that--those markets actually would more than offset the benefits of this rule around $16.7 billion net in existing benefits.  So that would actually be an added cost to the regulation.  Those numbers are shown in the Federal Register announcement of June 21 of this year on pages 35,216 and page 35,217, respectively, as well as they're shown in the executive summary of the regulatory impact analysis.

So that concludes the--my answer.  I'll turn it back to--over to my colleague, Richard Benware, who will answer a question.

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Question for Richard

Richard Benware: Okay.  Thank you, Mark.  We good here, [Connie]?  Okay.  So we got a question from [Lisa Rodowsky].  It says, can you explain (technical difficulty) coal ash disposal.  In our 2010 risk assessment, which is also available in the docket, we essentially focused on leaching to groundwater.  In that risk assessment we found two main concerns to human health.  One was leaching to groundwater, which was consumed directly by humans, and the second was the consumption of contaminated fish after the leach had migrated into surface water bodies.  For both of those we found either hazard quotients above one for toxic end points or cancer concerns that were above our risk range of 1 in 100,000.  And then, for environmental risks, we looked at both (technical difficulties) and also leaching to surface water bodies that could affect either aquatic receptors or sediment receptors and we found that it has the potential to also cause harm to these ecological receptors.  So those were the health--the human health environmental risks that we found.  And in addition, since Kingston, we've also examined the potential for catastrophic failures.  And so, these--that concludes generally what we found.  So--.

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Questions for Betsy

Betsy Devlin: Okay.  This is Betsy Devlin, again.  We've had a number of questions on how the hearings are going to take place, how they would be run.  Specifically, on all the public hearings we're planning on running sessions from 10:00 to 12:00, with a break for lunch from 12:00 to 1:00.  And then, we'll run in the afternoon from 1:00 to 5:00.  We'll have a 15-minute break somewhere in the middle of that, and then we'll have a break for dinner from about 5:00 to 6:00.  And then, we'll go from 6:00 to 9:00 or longer depending if we have people who still want to speak.  We're going to try to accommodate all of our speakers.  Helpful to us if you can register, if you can tell us about what you'd like to speak.  Again, that just helps us in our planning.  As we have said, if you register the day of the hearing, we'll try to allow you time to speak, but we can't guarantee it. 

So that's a question.  We also had a question about could a commenter submit multiple comments, because the document is complex.  Yes, of course, you can submit as many comments as you like and as many documents as you like.  However is easiest for you.  We will consider them all.  There was a question about why are there different effective dates.  And again, different effective dates deal with the structure of RCRA.  Under Subtitle (technical difficulty) the effective at six months after promulgation.  Under Subtitle C, the issue is they have to be adopted by the states because it's an amendment to an already authorized program.  So the rule cannot be effective in a state which is authorized for the RCRA until that state actually picks it up.  And so, we have a lag time between the federal effective date and when the states actually adopt the rules.  And that can be anywhere--some states adopt fairly quickly, some states take a bit longer.  So that's the explanation for why there are effective dates. 

There was another question about EPA enforcement until Subtitle D and the way the question was worded is do we have the authority to enforce when there was an endangerment.  Yes, EPA has the authority to act when there is an endangerment.  We tend to--we use our imminent and substantial endangerment authority, which allows us (technical difficulty) in the environment.  So we didn't--under a D rule, should we have a situation like that that arises, you know, we would consider taking actions, consulting the appropriate authorities and take whatever action is necessary in that case.  Right now, we've had a number of--there's more specific questions on the rule.  And I'm going to turn is over to [Alex Whitlock] to answer a couple of questions on that.  And so, Alex. 

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Question for Alex

Alex Livnat: Thank you, Betsy.  And (technical difficulty).  I understand that due to a technical glitch or whatever I did not come through.  Let me then repeat the answers.  A [Siegfried] colleague asked about where can we learn more about the cement kiln dust approach.  In our website under "Special Waste," there is a tab which is dedicated to cement kiln dust, the proposed rule for 1999, which has extensive information about this approach. 

Do you not consider the use of CCR as [steel] and roadway construction as an official use?  Well, as far as using it for a specific purpose and in measured amounts as a road sub base, yes, we do consider this as beneficial use.  However, frankly, we have not really clearly drawn the boundaries between so called engineering field and other non-encapsulated applications, and this is one of the reasons for feedback we are requesting from stakeholders to inform us on which uses and what volumes of uses have resulted in detrimental impacts.

(Technical difficulty) back to Betsy Devlin.

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More Questions for Betsy

Betsy Devlin: Okay.  There were--a number of questions have come up on what is the Bevill exemption.  And the Bevill exemption is a section under RCRA under which we were required to evaluate certain high volume wastes and we were required to evaluate them and to report Congress and make regulatory determinations on how they should be regulated.  And coal combustion residuals are one of those wastes that are covered by that.  In particular, we have to consider eight factors in our evaluation - source and volume of CCRs generated each year, present disposal and utilization practices, potential danger to human health and the environment, documented cases in which danger to human health or the environment has been proved, alternatives to current disposal methods, the cost of such alternatives, the impact of the alternatives on use of coal and other natural resources, and current and potential utilization of the CCRs.  So we consider those factors when we make a determination.  We made one determination in May of 2000, which said CCRs going for disposal should be regulated under Subtitle D and CCRs being unofficially used did not warrant federal regulation [in] this proposal.  And in our--and a large part of this proposal goes through those eight factors and presents information on why we may be reconsidering what we said in May of 200.  Although as I have said, we are not reconsidering our determination of beneficial use remains exempt from regulation.

We also had a question on what regulations apply to transport.  If the existing Subtitle C requirements for transport, meaning that it has to be prepared appropriately, it has to be manifested, any DOT requirements would apply.  Currently, the only requirements for transport would be anything that DOT regulations would impose and I am not aware of any.  But that--we're not--EPA would not be proposing any requirements for transport.  The requirements for transport would be under a C requirement.

There--okay.  We also had a question on was there a state implementation process for the Subtitle D rule similar to that for municipal solid waste landfills and the answer is no.  Again, the authorities we are looking at for our Subtitle D proposal are not the 250--are not Part 258, which is where our municipal solid waste rules are done under.  These would be done under Part 257, which is a somewhat different statutory requirement or statutory basis for those requirements. 

We are looking back through the questions to see if we--are there additional questions that we have time--that we have time to answer. 

A number of you have submitted very, very good questions and we are looking at them.  A lot of them are actually quite complicated.  And--okay, again we are--we are still--there is a question.  Is there a legal barrier to EPA using 258 authority?  Yes, the statute doesn't allow us to use 258.  258 is specifically for municipal solid waste--for municipal solid waste landfills and conditionally exempt small quantity generators.  So we do have to go with 257, which deals with other solid wastes.  So while it might look like a better fit, we don't have the authority currently to use that. 

The questions that cannot be answered today will--we are placing them in the docket.  We will answer them as appropriate in our response to comments in the final rule.  Again, a number of these are very, very good questions, but they are complicated questions.  There is also a question - is there a chance there'll be a hearing closer to the Kingston site?  No, we are having seven public hearings and at this point we are not planning any additional hearings.  So the closest one is probably Louisville to Kingston. 

Couldn't the legislature give EPA authority under 258 to regulate CCRs?  Yes, Congress could give us the authority to do that.  They have not.  So we are--we have the existing--we have the authority we have at the moment.  So--.

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Will the--no.  I think we're done.  Again, at this point, we have answered all of the questions that we can answer right now.  Again, we will take the comments we haven't answered and put them into the docket and answer them as part of our response to comments.  We thank all of you for your participation.  The website--the slides will be up on the web and a transcript will be up shortly.  And we encourage all of you to submit your comments.  We encourage you to come to the public hearings and submit your comments.

And with that, thank you for your participation.

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