[Federal Register Volume 80, Number 127 (Thursday, July 2, 2015)]
[Rules and Regulations]
[Pages 37988-37992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15913]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-RCRA-2015-0331; FRL-9928-44-OSWER]
RIN-2050-AE81


Technical Amendments to the Hazardous and Solid Waste Management 
System; Disposal of Coal Combustion Residuals From Electric Utilities--
Correction of the Effective Date

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
taking action to amend the final rule regulating the disposal of coal 
combustion residuals (CCR) as solid waste under subtitle D of the 
Resource Conservation and Recovery Act (RCRA). After publication in the 
Federal Register, inconsistencies resulting from typographical errors 
established two different effective dates in the regulatory text for 
the final CCR rule. This action corrects these inconsistencies and 
revises the Code of Federal Regulations (CFR) so that it accurately 
reflects the statutory effective date of six months

[[Page 37989]]

from the publication date of the rule, coinciding with a date of 
October 19, 2015. Consistent with Federal requirements, the EPA is also 
correcting dates for certain provisions that fall on January 18, 2016, 
which is a Federal holiday, to the next succeeding Federal business 
day, which is January 19, 2016.

DATES: This final rule is effective on October 19, 2015. Effective July 
2, 2015, the effective date of the final CCR rule published on April 
17, 2015 at 80 FR 21302 is corrected from October 14, 2015 to October 
19, 2015.

ADDRESSES: The EPA has established a docket for this regulatory action 
under Docket ID No. EPA-HQ-RCRA-2015-0331. All documents in this docket 
are available at http://www.regulations.gov. Although listed in the 
index, some information is not publicly available, e.g., Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in http://www.regulations.gov or in 
hard copy at the OSWER Docket, EPA/DC, WJC West Building, Room 3334, 
1301 Constitution Ave. NW., Washington, DC 20460. 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, and the telephone number for the OSWER Docket 
is 202-566-0276.

FOR FURTHER INFORMATION CONTACT: For more information on this 
rulemaking, contact Steve Souders, Materials Recovery and Waste 
Management Division, Office of Resource Conservation and Recovery (MC 
5304 P), U.S. Environmental Protection Agency, telephone number: (703) 
308-8431; fax number: (703) 605-0595; email address: 
[email protected].
    For more information on this rulemaking please visit: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/index.htm.

SUPPLEMENTARY INFORMATION: 

The Contents of This Preamble Are Listed in the Following Outline

I. General Information
II. Statutory Authority
III. Corrections Made to the Regulatory Text Regarding the Effective 
Date
IV. Statutory and Executive Order Reviews

I. General Information

A. Does this action apply to me?

    This rule applies to all coal combustion residuals (CCR) generated 
by electric utilities and independent power producers that fall within 
the North American Industry Classification System (NAICS) code 221112 
and may affect the following entities: Electric utility facilities and 
independent power producers that fall under the NAICS code 221112. The 
industry sector(s) identified above may not be exhaustive; other types 
of entities not listed could also be affected. The Agency's aim is to 
provide a guide for readers regarding those entities that potentially 
could be affected by this action. If you have any questions regarding 
the applicability of this action to a particular entity, consult the 
person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. Why are these amendments being issued as a final rule?

    Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(3)(B), provides that, when an Agency for good cause finds that 
notice and public procedures are impracticable, unnecessary or contrary 
to the public interest, the Agency may issue a final rule without 
providing notice and an opportunity for public comment. Similarly, 
section 553(d) authorizes an Agency to establish an effective date for 
a rule that is sooner than 30 days from its publication, ``as otherwise 
provided by the agency for good cause found and published with the 
rule.''
    This final rule only revises the CFR to be consistent with the 
requirements in RCRA section 4004(c) and the Office of the Federal 
Register (OFR) regulation at 1 U.S.C. 18.17(b). The EPA is issuing this 
rule solely to ensure that the CFR accurately reflects the date by 
which, under current law, the provisions of the rule become effective. 
Consequently, the EPA has determined that there is good cause for 
making the technical amendments in this final rule without prior 
proposal and opportunity for comment, because notice and public comment 
would be unnecessary. For the same reasons, the EPA has concluded that 
good cause exists for making the corrections in this final rule 
effective July 2, 2015.
1. Different Effective Dates
    After publication in the Federal Register, inconsistencies 
resulting from typographical errors established two different effective 
dates for the final CCR rule, one that accurately reflects the 
statutory effective date, and a second, inaccurate date (80 FR 21302, 
April 17, 2015). This action corrects these inconsistencies in the CFR, 
so that it accurately reflects the effective date under RCRA section 
4004(c) of six months from the publication date of the rule, i.e., 
October 19, 2015.
    Section 4004 (c) of RCRA generally establishes a six month 
effective date for rules issued under subtitle D, providing that ``the 
prohibition contained in subsection (b) shall take effect on the date 
six months after the date of promulgation of regulations under 
subsection (a).'' 42 U.S.C. 6944(c). In other words, RCRA requires that 
six months after promulgation of a rule under section 4004(a), solid 
waste can only be managed in a manner that complies with the 
requirements of the rule.
    Under RCRA, promulgation of a rule occurs upon signature and 
publication in the Federal Register. Horsehead Resource Development Co, 
Inc., v. EPA, 130 F.3d 1090, 1094-1095 (D.C. Cir. 1997) (``We hold . . 
. at least in the absence of a contrary agency regulation, 
``promulgation'' as used in section [7006(a)(1) of RCRA] means the date 
of Federal Register publication.''). Thus by operation of law, the 
requirements in the final CCR rule go into effect six months from the 
date of its publication in the Federal Register, or October 19, 2015. 
Based on the rule published in the Federal Register (80 FR 21302, April 
17, 2015), the CFR inaccurately reflects the current date by which 
facilities must be in compliance with certain requirements. This action 
merely corrects the CFR to accurately reflect these existing legal 
obligations; it does not alter or affect them in any way, but merely 
ensures that the public will not be confused by inaccuracies. The EPA 
has therefore determined that further public comment on this action is 
unnecessary and that good cause exists for making the corrections in 
this final rule without prior publication or public comment.
2. Inconsistency With Other Federal Regulations
    The EPA is also correcting dates for certain provisions that fall 
on January 18, 2016, which is a Federal holiday. According to 1 CFR 
18.07(b), ``where the final count would fall on a Saturday, Sunday, or 
holiday, the date certain will be the next succeeding Federal business 
day.'' To be consistent with 1 CFR 18.07(b), that date needs to be 
revised to the next Federal business day, or January 19, 2016. Based on 
the final CCR rule published in Federal Register (80 FR 21302), the CFR 
inaccurately reflects the current date by which

[[Page 37990]]

facilities must be in compliance with these requirements. This action 
merely corrects the CFR to ensure that the public will not be confused. 
The EPA has therefore determined that further public comment on this 
action is unnecessary and that good cause exists for making the 
corrections in this final rule without prior publication or public 
comment.

II. Statutory Authority

    This regulation is established under the authority of sections 
1008(a), 2002(a), 3001, 4004, and 4005(a) of the Solid Waste Disposal 
Act of 1970, as amended by the Resource Conservation and Recovery Act 
of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984 
(HSWA), 42 U.S.C. 6906(b), 6907(a), 6912(a), 6944 and 6945(a).

III. Corrections Made to the Regulatory Text Regarding the Effective 
Date

    In drafting the final CCR rule, the Agency used the following two 
bracketed ``instructions'' when referring to the effective date of the 
CCR rule: (1) [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN 
THE Federal Register]; and (2) [INSERT DATE SIX MONTHS AFTER THE DATE 
OF PUBLICATION IN THE Federal Register]. These ``instructions'' 
provided direction to the OFR for computing and inserting a specified 
date, in this case, the effective date of the rule.
    On April 17, 2015, the CCR rule was published in the Federal 
Register (80 FR 21302). After publication, the EPA discovered that the 
two ``instructions'' used to calculate the effective date had resulted 
in the computing and inserting of two different effective dates, rather 
than single effective date established under RCRA 4004(c). The first 
``instruction'' used in the CCR rule for the effective date exactly 
mirrored the statutory language, i.e., [INSERT DATE 6 MONTHS AFTER DATE 
OF PUBLICATION IN THE Federal Register], which resulted in a date of 
October 19, 2015. By contrast, the second ``instruction,'' paraphrased 
the statute, i.e., [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION 
IN THE Federal Register], which resulted in a date of October 14, 2015. 
In order to correct this error, the EPA is issuing this final rule to 
revise the CFR so that it accurately reflects the existing effective 
date for the CCR rule established by RCRA section 4004 (c), i.e., 
October 19, 2015, which is consistent with the ``instruction'' of: 
[INSERT DATE SIX MONTHS AFTER THE DATE OF PUBLICATION IN THE Federal 
Register].
    In addition at Sec.  257.83(b)(3) and Sec.  257.84(b)(3)(i) 
(Inspection requirements for CCR surface impoundments and CCR landfills 
respectively) the instructions for calculating and inserting dates in 
these two sections of the CCR rule were: [INSERT DATE NINE MONTHS AFTER 
THE DATE OF PUBLICATION IN THE Federal Register]. After publication, 
the EPA discovered that the computed and inserted date for these 
provisions was January 18, 2016, which is a Federal holiday. According 
to 1 CFR 18.07(b) ``where the final count would fall on a Saturday, 
Sunday, or holiday, the date certain will be the next succeeding 
Federal business day when a date falls on a weekend or a Federal 
holiday, the [Office of Federal Register] uses the next Federal 
business day.'' To be consistent with 1 CFR 18.07(b), that date needs 
to be revised to the next Federal business day, or January 19, 2016. 
Based on the rule published in the Federal Register, the CFR 
inaccurately reflects the current date by which facilities must be in 
compliance with these requirements.
    In order to aid the public, the following table identifies those 
sections of the rule which contained particular dates that the EPA is 
correcting in this action, as well as those sections where no 
correction is needed. The first column of the following table 
identifies those sections of the CCR rule where the date of October 14, 
2015 was inserted. These sections of the rule are being corrected in 
this final rule to establish the correct date of October 19, 2015. The 
second column of the table identifies those rule provisions where the 
date of January 18, 2016, a Federal holiday, was inserted. These 
sections of the rule are being corrected to establish the correct date 
of January 19, 2016. The third column of the table identifies those 
sections of the regulatory text where the correct effective date of 
October 19, 2015 was inserted. These sections will not be changed.

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   Rule provisions with an    Rule provisions with  Rule provisions with
 October 14, 2015 effective     a date of January    the correct October
date that will be changed to   18, 2016 that will    19, 2015 effective
      October 19, 2015            be changed to             date
-----------------------------   January 19, 2016   ---------------------
                             ----------------------
       Regulatory cite           Regulatory cite       Regulatory cite
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Sec.   257.53 (Definitions)   Sec.   257.83(b)(3)   Sec.   257.50(d) and
 ``active facility'' or        (Inspection           (e) (Scope and
 ``active electric utilities   requirements for      purpose).
 or independent power          CCR surface
 producers'' ``existing CCR    impoundments).
 landfill'' ``existing CCR
 surface impoundment''
 ``inactive CCR surface
 impoundment'' ``lateral
 expansion'' ``new CCR
 landfill'' ``new CCR
 surface impoundment''.
                              Sec.                  Sec.   257.51
                               257.84(b)(3)(i)       (Effective date of
                               (Inspection           this subpart).
                               requirements for
                               CCR landfills).
                                                    Sec.   257.80(b)(5)
                                                     (Air criteria).
                                                    Sec.   257.83(a)(2)
                                                     (Inspection
                                                     requirements for
                                                     CCR surface
                                                     impoundments).
                                                    Sec.   257.84(a)(2)
                                                     (Inspection
                                                     requirements for
                                                     CCR landfills).
                                                    Sec.   257.91(d)(2)
                                                     (Multiunit
                                                     groundwater
                                                     monitoring
                                                     systems).
                                                    Sec.   257.101(a)(1)
                                                     (Closure of unlined
                                                     impoundments).
------------------------------------------------------------------------

    In addition to the inconsistencies in the regulatory text, the 
preamble to the final CCR rule also contained several incorrect 
effective dates: (1) 80 FR 21302: The DATES section in the preamble 
states that the effective date of the rule is October 14, 2015 (180 
days from the publication date) instead of the correct date of October 
19, 2015; and (2) 80 FR 21467: EPA included a sentence in the 
Congressional Review Act Executive Order stating that the CCR

[[Page 37991]]

rule ``will be effective 180 days after publication in the Federal 
Register'' which equates to October 14, 2015, instead of stating that 
the CCR rule ``will be effective six months after publication in the 
Federal Register'' which equates to October 19, 2015. While the Agency 
is not correcting the CCR rule preamble language, it is presenting 
these additional inconsistencies to provide the reader with a complete 
accounting of the error.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action is not a significant regulatory action and does not 
impose an information collection burden under the PRA. The changes made 
to the regulations as a result of this action impose no new or 
different reporting requirements on regulated parties.

C. Regulatory Flexibility Act

    This action does not modify existing legal requirements applicable 
to any entity. As such, I certify that this action will not have a 
significant economic impact on a substantial number of small entities 
under the RFA. In making this determination, the impact of concern is 
any significant adverse economic impact on small entities. An agency 
may certify that a rule will not have a significant economic impact on 
a substantial number of small entities if the rule relieves regulatory 
burden, has no net burden or otherwise has a positive economic effect 
on the small entities subject to the rule. This action corrects a 
typographical error that resulted in the calculation of an incorrect 
effective date in some sections of the regulation. This action merely 
corrects that error so that the CFR will reflect the existing effective 
date for the CCR rule of October 19, 2015, established by section 4004 
(c) of RCRA. This action also corrects the dates in two provisions of 
the CCR rule, which, as published, fall on a Federal holiday. This 
action corrects the error and revises the CFR to reflect that, 
consistent with 1 CFR 18.07(b), the correct the date for these two 
provisions is the next Federal business day after the holiday or 
January 19, 2016. The impacts on small businesses were already 
addressed in the rule promulgated on April 17, 2015 (80 FR 21302); and 
this rule will not impose any requirements on small entities beyond 
those that have previously been analyzed. We have therefore concluded 
that this action will have no net regulatory burden for small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action implements mandates specifically and 
explicitly set forth in the Resource Conservation and Recovery Act 
without the exercise of any policy discretion by the EPA.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175. This action merely corrects typographical errors 
that resulted in the calculation of an incorrect effective date in some 
sections of the CCR rule. Thus Executive Order 13175 does not apply to 
this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets E.O. 13045 as applying only to those regulatory 
actions that concern environmental health or safety risks that the EPA 
has reason to believe may disproportionately affect children, per the 
definition of ``covered regulatory action'' in section 2-202 of the 
Executive Order. This action is not subject to Executive Order 13045 
because does not establish an environmental standard intended to 
mitigate health or safety risks. This action merely corrects 
typographical errors that resulted in the calculation of incorrect 
effective dates in some sections of the CFR.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This rule merely corrects errors in dates and does not concern an 
environmental health or safety risk. Therefore, Executive Order 12898 
does not apply.

K. Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of Congress and to the Comptroller General of the 
United States. This action is not a ``major rule'' as defined by U.S.C. 
804(2).

List of Subjects in 40 CFR Part 257

    Environmental protection, Beneficial use, Coal combustion products, 
Coal combustion residuals, Coal combustion waste, Disposal, Hazardous 
waste, Landfill, Surface impoundment.

    Dated: June 16, 2015.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is amended as follows:

PART 257--CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL 
FACILITIES AND PRACTICES

0
1. The authority citation for part 257 continues to read as follows:

    Authority:  42 U.S.C. 6907(a)(3), 6912(a)(1), 6944(a); 33 U.S.C. 
1345(d) and (e).


0
2. Section 257.53 is amended by revising the definitions of ``Active 
facility or active electric utilities or independent power producers'', 
``Existing CCR landfill'', ``Existing CCR surface impoundment'', 
``Inactive CCR surface impoundment'', ``Lateral expansion'', ``New CCR 
landfill'', and ``New CCR surface impoundment'' to read as follows:

[[Page 37992]]

Sec.  257.53  Definitions.

* * * * *
    Active facility or active electric utilities or independent power 
producers means any facility subject to the requirements of this 
subpart that is in operation on October 19, 2015. An electric utility 
or independent power producer is in operation if it is generating 
electricity that is provided to electric power transmission systems or 
to electric power distribution systems on or after October 19, 2015. An 
off-site disposal facility is in operation if it is accepting or 
managing CCR on or after October 19, 2015.
* * * * *
    Existing CCR landfill means a CCR landfill that receives CCR both 
before and after October 19, 2015, or for which construction commenced 
prior to October 19, 2015 and receives CCR on or after October 19, 
2015. A CCR landfill has commenced construction if the owner or 
operator has obtained the federal, state, and local approvals or 
permits necessary to begin physical construction and a continuous on-
site, physical construction program had begun prior to October 19, 
2015.
    Existing CCR surface impoundment means a CCR surface impoundment 
that receives CCR both before and after October 19, 2015, or for which 
construction commenced prior to October 19, 2015 and receives CCR on or 
after October 19, 2015. A CCR surface impoundment has commenced 
construction if the owner or operator has obtained the federal, state, 
and local approvals or permits necessary to begin physical construction 
and a continuous on-site, physical construction program had begun prior 
to October 19, 2015.
* * * * *
    Inactive CCR surface impoundment means a CCR surface impoundment 
that no longer receives CCR on or after October 19, 2015 and still 
contains both CCR and liquids on or after October 19, 2015.
* * * * *
    Lateral expansion means a horizontal expansion of the waste 
boundaries of an existing CCR landfill or existing CCR surface 
impoundment made after October 19, 2015.
* * * * *
    New CCR landfill means a CCR landfill or lateral expansion of a CCR 
landfill that first receives CCR or commences construction after 
October 19, 2015. A new CCR landfill has commenced construction if the 
owner or operator has obtained the federal, state, and local approvals 
or permits necessary to begin physical construction and a continuous 
on-site, physical construction program had begun after October 19, 
2015. Overfills are also considered new CCR landfills.
    New CCR surface impoundment means a CCR surface impoundment or 
lateral expansion of an existing or new CCR surface impoundment that 
first receives CCR or commences construction after October 19, 2015. A 
new CCR surface impoundment has commenced construction if the owner or 
operator has obtained the federal, state, and local approvals or 
permits necessary to begin physical construction and a continuous on-
site, physical construction program had begun after October 19, 2015.
* * * * *
0
3. Section 257.83 is amended by revising paragraph (b)(3)(i) to read as 
follows:


Sec.  257.83  Inspection requirements for CCR surface impoundments.

* * * * *
    (b) * * *
    (3) * * * (i) Existing CCR surface impoundments. The owner or 
operator of the CCR unit must complete the initial inspection required 
by paragraphs (b)(1) and (2) of this section no later than January 19, 
2016.
* * * * *

0
4. Section 257.84 is amended by revising paragraph (b)(3)(i) to read as 
follows:


Sec.  257.84  Inspection requirements for CCR landfills.

* * * * *
    (b) * * *
    (3) * * * (i) Existing CCR landfills. The owner or operator of the 
CCR unit must complete the initial inspection required by paragraphs 
(b)(1) and (2) of this section no later than January 19, 2016.
* * * * *

[FR Doc. 2015-15913 Filed 7-1-15; 8:45 am]
BILLING CODE 6560-50-P