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Statement of Need: EPA's regulatory determination for fossil fuel combustion wastes (65 FR 32214, May 22, 2000) concluded that these wastes do not require management as hazardous wastes. However, EPA determined that certain of the coal combustion wastes have been managed improperly as indicated by identified damage cases. Although all of the proven damage cases involved past waste management practices and were appropriately addressed by either State or Federal authorities, we are concerned about the potential risks posed via the groundwater pathway from improper management of the wastes, and lack of groundwater monitoring at more than half of the active coal combustion waste management units. While most States can now require newer waste management units to include liners and groundwater monitoring, 62 percent of existing utility surface impoundments, for example, do not have groundwater monitoring. Although not all sites may warrant the same measures, the Agency believes that the lack of groundwater monitoring and liners justifies the development of national regulations. Therefore, the Agency is initiating this action to develop and issue appropriate management regulations under subtitle D of RCRA for these wastes.

Summary of the Legal Basis: This action is not required by statute or court order.

Alternatives: The Agency considered the need for more stringent hazardous waste management requirement for these wastes, but rejected the option. Rather, the Agency believes that any management and performance standards issued under nonhazardous waste authorities (RCRA subtitle D) would adequately protect human health and the environment.

Anticipated Costs and Benefits: EPA has not yet developed a regulatory approach to address coal combustion wastes. Therefore, costs and benefits of potential management and performance standards have not been quantified. The costs of any regulation could be high, given the large amount of coal combustion wastes generated per year. However, those costs could be mitigated by ongoing trends in industry management and State oversight of these wastes. As EPA develops national regulations, the Agency will try to minimize disruptions to operation of existing waste management units.

Risks: For EPA's regulatory determination for fossil fuel combustion wastes, we did not rely on a quantitative groundwater risk assessment to assess potential risks to human health or the environment. We are unable at this time to draw quantitative conclusions regarding the risks due to arsenic or other contaminants posed by improper waste management. EPA is currently reviewing its groundwater model and plans to reevaluate groundwater risks after any necessary changes to the model are completed. Based on a screening analysis that compared drinking water standards to leach test data from coal combustion waste samples, the Agency identified a potential for risks from arsenic that cannot be dismissed at this time. An EPA ecological risk assessment found the potential for risk to various fauna.