[Federal Register Volume 83, Number 10 (Tuesday, January 16, 2018)]
[Proposed Rules]
[Pages 2100-2104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00474]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2017-0613; FRL-9972-95-OLEM]


Oklahoma: Approval of State Coal Combustion Residuals State 
Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability; request for comment.

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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA 
or Act), the Environmental Protection Agency (EPA) is proposing to 
approve the application submitted by the Oklahoma Department of 
Environmental Quality to allow the Oklahoma Coal Combustion Residuals 
(CCR) state permit program to operate in lieu of the Federal CCR 
program. EPA has preliminarily determined that Oklahoma's program meets 
the standard for approval under RCRA. Once approved, the State program 
requirements and resulting permit provisions will be subject to EPA's 
inspection and enforcement authorities under RCRA and other applicable 
statutory and regulatory provisions as discussed below. This notice 
also announces that EPA is seeking comment on this proposal during a 
45-day public comment period, and is providing an opportunity to 
request a public hearing within the first 15 days of this comment 
period.

DATES: Comments must be received on or before March 2, 2018. In 
addition, a public hearing request must be submitted on or before 
January 31, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2017-0613, at https://www.regulations.gov or by mail to: EPA 
Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 
Pennsylvania Ave. NW, Washington, DC 20460. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mary Jackson, Office of Resource 
Conservation and Recovery, Environmental Protection Agency; telephone 
number: (703) 308-8453; email address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. General Information

A. Overview of Proposed Actions

    EPA is proposing to approve Oklahoma's CCR state permit program 
application, pursuant to RCRA 4005(d)(1)(B). Oklahoma's proposed 
program would allow the Oklahoma Department of Environmental Quality 
(ODEQ) to enforce rules promulgated under its solid waste statute 
related to CCR activities in non-Indian Country, as well as to handle 
permit applications and to enforce permit violations. If approved, 
Oklahoma's CCR permit program will operate in lieu of the Federal CCR 
program, codified at 40 CFR part 257, subpart D.
    This notice also announces that EPA is seeking comment on this 
proposal, and providing an opportunity to request a public hearing on 
whether the State's program is at least as protective as the federal 
program. If there is significant interest shown in holding a public

[[Page 2101]]

hearing EPA will then hold a public hearing. Please submit any request 
for a public hearing within the first 15 days of the public comment 
period through the Contact Us form on the following web page: (https://www.epa.gov/coalash). If the desire for a public hearing is 
demonstrated EPA will hold the hearing at the Oklahoma Department of 
Environmental Quality building located at 707 N Robinson Ave., Oklahoma 
City, OK on February 13, 2018 starting at 9 a.m. EPA will post a 
confirmation of the public hearing in the docket and on the EPA CCR 
website (https://www.epa.gov/coalash) providing information for the 
hearing.
    EPA has also engaged federally-recognized Tribes within the State 
of Oklahoma in consultation and coordination regarding the program 
authorizations for ODEQ. EPA has established opportunities for formal 
as well as informal discussion throughout the consultation period, 
beginning with an initial conference call on October 19, 2017. Tribal 
consultation will be conducted in accordance with the EPA policy on 
Consultation and Coordination with Indian Tribes (https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf).

B. Background

    CCR are generated from the combustion of coal, including solid 
fuels classified as anthracite, bituminous, subbituminous, and lignite, 
for the purpose of generating steam for the purpose of powering a 
generator to produce electricity or electricity and other thermal 
energy by electric utilities and independent power producers. CCR 
includes fly ash, bottom ash, boiler slag, and flue gas desulfurization 
materials. CCR can be sent off-site for disposal or beneficial use or 
disposed in on-site landfills or surface impoundments.
    On April 17, 2015, EPA published a final rule, creating 40 CFR part 
257, subpart D, that established a comprehensive set of minimum 
requirements for the disposal of CCR in landfills and surface 
impoundments (80 FR 21302). The rule created a self-implementing 
program which regulates the location, design, operating criteria, and 
groundwater monitoring and corrective action for CCR disposal, as well 
as regulating the closure and post-closure care of CCR units and 
requiring recordkeeping and notifications for CCR units. The 
regulations do not cover the ``beneficial use'' of CCR as that term is 
defined in Sec.  257.53.

C. Statutory Authority

    EPA is issuing this proposed determination pursuant to section RCRA 
sections 4005(d) and 7004(b)(1). See 42 U.S.C. 6945(d), 6974(b)(1).
    Section 2301 of the 2016 Water Infrastructure Improvements for the 
Nation (WIIN) Act amended Section 4005 of the Resource Conservation and 
Recovery Act (RCRA), creating a new subsection (d) that establishes a 
Federal permitting program similar to those under RCRA subtitle C and 
other environmental statutes. See 42 U.S.C. 6945(d). Under the WIIN 
Act, states may develop and submit a CCR permit program to EPA for 
approval; once approved the state permit program operates in lieu of 
the Federal requirements. See 42 U.S.C. 6945(d)(1)(A).
    To become approved, the statute requires that a State provide 
``evidence of a permit program or other system of prior approval and 
conditions under State law for regulation by the State of coal 
combustion residuals units that are located in the State.'' See 42 
U.S.C. 6945(d)(1)(A). In addition, the statute directs that the State 
submit evidence that the program meets the standard in section 
4005(d)(1)(B), i.e., that it will require each coal combustion 
residuals unit located in the State to achieve compliance with either: 
(1) The Federal CCR requirements at 40 CFR part 257, subpart D; or (2) 
other State criteria that the Administrator, after consultation with 
the State, determines to be at least as protective as the Federal 
requirements. See 42 U.S.C. 6945(d)(1)(B). EPA has 180 days from 
receiving a complete application to make a final determination, and 
must provide public notice and an opportunity for public comment. See 
42 U.S.C. 6945(d)(1)(B).
    To receive EPA approval, EPA must determine that the state program 
requires each CCR unit located in the state to achieve compliance 
either with the requirements of 40 CFR part 257, subpart D, or with 
state criteria that EPA determines (after consultation with the State) 
to be at least as protective as the requirements of 40 CFR part 257, 
subpart D. See 42 U.S.C. 6945(d)(1)(B). EPA may approve a proposed 
state permit program in whole or in part. Id.
    Once a program is approved, EPA must review the program at least 
every 12 years, as well as no later than 3 years after a revision to an 
applicable section of 40 CFR part 257, subpart D, or 1 year after any 
unauthorized significant release from a CCR unit located in the state. 
See 42 U.S.C. 6945(d)(1)(D)(i)(I)-(III). EPA also must review a program 
at the request of another state alleging that the soil, groundwater, or 
surface water of the requesting state is or is likely to be adversely 
affected by a release from a CCR unit in the approved state. See 42 
U.S.C. 6945(d)(1)(D)(i)(IV).
    In a state with an approved CCR program, EPA may commence 
administrative or judicial enforcement actions under RCRA Sec.  3008 if 
the state requests assistance or if the EPA determines that an EPA 
enforcement action is likely to be necessary to ensure that a CCR unit 
is operating in accordance with the criteria of the permit program. See 
42 U.S.C. 6945(d)(4).

II. Oklahoma's Application

    ODEQ issued a Notice of Rulemaking Intent related to its proposed 
CCR program and accepted public comments from December 1, 2015 through 
January 13, 2016. ODEQ then published an Executive Summary rulemaking 
document that included the public comments received and the ODEQ 
responses.
    In September 2016, ODEQ promulgated Oklahoma Administrative Code 
(OAC) Title 252 Chapter 517 Disposal of Coal Combustion Residuals from 
Electric Utilities, establishing its CCR program. OAC 252:517 
incorporates all of the federal regulations at 40 CFR part 257, subpart 
D, with some minor modifications as discussed below.
    On July 31, 2017 Oklahoma submitted to EPA its initial application. 
The State supplemented its original application on October 18, 2017. 
EPA determined that the application was complete and notified Oklahoma 
of its determination by letter dated December 21, 2017.\1\
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    \1\ ODEQ's initial CCR permit program application, subsequent 
supplementation, and EPA's determination of completeness letter are 
available in the docket supporting this proposal.
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    EPA is aware of six CCR facilities currently in Oklahoma. Approval 
of ODEQ's CCR application would allow the ODEQ regulations to apply to 
those existing CCR units as well as any future CCR units not located in 
Indian country in lieu of the Federal requirements.
    EPA is not aware of any existing CCR units in Indian country within 
Oklahoma, but EPA will maintain sole authority to regulate and permit 
CCR units in Indian country, meaning formal and informal reservations, 
dependent Indian communities, and Indian allotments, whether restricted 
or held in trust by the United States.

[[Page 2102]]

III. EPA Analysis of Oklahoma's Application

    As discussed in Section I.C. of this notice, the statute requires 
EPA to evaluate two components of a state program to determine whether 
it meets the standard for approval. First, EPA is to evaluate the 
adequacy of the permit program (or other system of prior approval and 
conditions) itself. See 42 U.S.C. 6945(d)(1)(A). Second, EPA is to 
evaluate the adequacy of the technical criteria that will be included 
in each permit, to determine whether they are the same as the federal 
criteria, or to the extent they differ, whether the modified criteria 
are ``at least as protective as'' the federal requirements. See 42 
U.S.C. 6945(d)(1)(B). Only if both components meet the statutory 
requirements may EPA approve the program. See 42 U.S.C. 6945(d)(1).
    On that basis, EPA conducted an analysis of ODEQ's application, 
including a thorough analysis of OAC 252:517 and its adoption of 40 CFR 
part 257, subpart D. Based on this analysis, EPA has preliminarily 
determined that ODEQ's submitted CCR permit program meets the standard 
for approval in section 4005(d)(1)(A) and (B). EPA is therefore 
proposing to approve Oklahoma's application. Oklahoma's program 
contains all the elements of the federal rule, including requirements 
for location restrictions, design and operating criteria, groundwater 
monitoring and corrective action, closure requirements and post-closure 
care, recordkeeping, notification and internet posting requirements. It 
also contains state-specific language, references and state-specific 
requirements that differ from the federal rule, which EPA has 
preliminarily determined to be at least as protective as the Federal 
criteria. EPA's analysis and preliminary findings are discussed in 
greater detail below and in the Technical Support Document.
    Non-substantive changes include language inserts and deletions to 
enable the ODEQ to permit CCR units and enforce the Oklahoma rule. The 
revisions include: The removal of statements regarding national 
applicability; the inclusion of language to require submittal and 
approval of plans to ODEQ; the inclusion of permitting provisions to 
allow the ODEQ to administer the CCR rules in the context of a 
permitting program; the inclusion of state-specific location 
restrictions; the inclusion of procedures for subsurface investigation; 
the inclusion of provisions addressing cost estimates and financial 
assurance.
    Throughout Oklahoma's Chapter 517 rules, references for tribal 
notifications and/or approval that appear in the federal rule have been 
deleted along with the terms ``Indian Country,'' ``Indian Lands,'' and 
``Indian Tribe.'' EPA will retain sole authority to regulate and permit 
CCR units in Indian country as defined in 18 U.S.C. 1151, which 
includes reservations, dependent Indian communities, and Indian 
allotments, whether restricted or held in trust by the United States. 
EPA treats as reservations trust lands validly set aside for the use of 
a tribe even if the trust lands have not been formally designated as a 
reservation. See, e.g., Oklahoma Tax Commission vs. Citizen Band 
Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991).

A. Adequacy of Oklahoma's Permit Program

    RCRA section 4005(d)(1)(A) requires a State seeking program 
approval to submit to EPA an application with ``evidence of a permit 
program or other system of prior approval and conditions under State 
law for regulation by the State of coal combustion residuals units that 
are located in the State.''
    RCRA section 4005(d)(1)(A) does not require EPA to promulgate 
regulations for determining the adequacy of State programs. EPA is 
therefore relying in large measure on the existing regulations in 40 
CFR part 239, Requirements for State Permit Program Determination of 
Adequacy, on the statutory requirements for public participation in 
RCRA Section 7004, and on the Agency's experience in reviewing and 
approving State programs in general. However, in order to aid States in 
developing their programs and to provide a clear statement of how, in 
EPA's judgment, the existing regulations and statutory requirements in 
both 4005(d) and 7004 apply to state CCR programs, on August 15, 2017 
EPA announced the availability of an interim final Guidance for Coal 
Combustion Residuals State Permit Programs (82 FR 38685). This guidance 
outlines the process and procedures EPA generally intends to use to 
review and make determinations on State CCR permit programs. EPA 
evaluated the adequacy of ODEQ's permit program based on the statutory 
requirements and EPA's interpretation of the regulatory requirements. A 
summary of EPA's findings are below, organized by the program elements 
identified in the Part 239 regulations and the guidance document; our 
detailed analysis of the submitted State program can be found in the 
Technical Support Document which is included in the docket for this 
proposal.
1. Permitting Guidelines
    Based on section 7004 and on the part 239 regulations, it is EPA's 
judgment (as expressed in the interim final guidance) that an adequate 
permitting program will provide for public participation by ensuring 
that: Documents for permit determinations are made available for public 
review and comment; final determinations on permit applications are 
made known to the public; and public comments on permit determinations 
are considered.
    All environmental permit and modification applications in Oklahoma 
are subject to the Oklahoma Uniform Environmental Permitting Act (UEPA) 
and the permitting rules promulgated to carry out UEPA. UEPA classifies 
all permit applications into three tiers that determine the level of 
public participation and administrative review the permit application 
will receive. See OAC 252:4-7-2. Oklahoma classifies solid waste 
management applications, including CCR applications, into their 
respective tiers at OAC 252:4-7-58 through 60. All permit documents, 
regardless of tier, are available for review and copying. OAC 252:4-1-
5.
    Oklahoma describes the Tier I program as ``the category for those 
things that are basically administrative decisions which can be made by 
a technical supervisor with no public participation except for the 
landowner.'' OAC 252:4-7-2. The Tier I permit application requires an 
application, notice to the landowner, and Department review. 27A O.S. 
Sec.  2-14-103(9). Only applications for minor modifications, lateral 
expansions within the permit boundary below a certain capacity, and 
approval of technical plans fall within the Tier I category. OAC 252:4-
7-58.
    The Tier II permit application process expands upon the Tier I 
requirements to include published notice of the application filing and 
published notice of the draft permit or denial and opportunity for a 
public meeting. 27A O.S. Sec.  2-14-103(10). The Tier II process covers 
new permits for on-site CCR disposal units and more substantial 
modifications to existing facilities beyond Tier I. OAC 252:4-7-59.
    The Tier III permit application process includes the requirements 
of Tiers I and II and adds notice of an opportunity for a process 
meeting, response to public comments, and notice of an opportunity for 
an administrative permit hearing. 27A O.S. Sec.  2-14-103(11). The Tier 
III process covers new permits for off-site disposal

[[Page 2103]]

units and permits for some significant modifications to off-site 
disposal units. OAC 252:4-7-60.
    UEPA provides for public notice and review of permit applications 
and significant permit modifications through its Tier II and III 
programs. Tier II and III programs also provide the opportunity for 
public hearing, and, in the case of Tier III applications, the 
opportunity for an administrative hearing. These programs appear to 
provide adequate opportunities for public participation in the 
permitting process, and the application of UEPA to the CCR permitting 
program is consistent with Oklahoma's practice across environmental 
programs. Permit and modification applications for CCR facilities fall 
under the existing solid waste management application at OAC 252:4-7-58 
through 60, and those classifications are used for Oklahoma's 
authorized Municipal Solid Waste Landfill program.
2. Guidelines for Compliance Monitoring Authority
    Based on the part 239 regulations, it is EPA's judgment (as 
expressed in the interim final guidance), that a state's application 
for permit program approval should demonstrate that the state has the 
authority to gather information about compliance, perform inspections, 
and ensure that information it gathers is suitable for enforcement.
    ODEQ has compliance monitoring authority under 27A O.S. Sec.  2-3-
501, allowing for inspections, sampling, information gathering, and 
other investigation. This authority extends to ODEQ's proposed CCR 
permit program and would provide the authority to adequately gather 
information for enforcement.
3. Guidelines for Enforcement Authority
    Further, based on the part 239 regulations, it is EPA's judgment 
(as expressed in the interim final guidance), that a state's 
application for permit program approval should demonstrate that the 
state has authority to administer RCRA Sec.  4005(c)(1)(B) and (C) 
programs to have adequate enforcement authority to administer those 
programs, including: The authority to restrain any person from engaging 
in activity which may damage human health or the environment, the 
authority to sue to enjoin prohibited activity, and the authority to 
sue to recover civil penalties for prohibited activity.
    ODEQ appears to have adequate enforcement authority for its 
existing programs under 27A O.S. Sec.  2-3-501-507 and that authority 
extends to ODEQ's proposed CCR permit program.
4. Intervention in Civil Enforcement Proceedings
    Based on section 7004 and on the part 239 regulations, it is EPA's 
judgment (as expressed in the interim final guidance) that a state 
application for permit program approval should demonstrate that the 
state provides adequate opportunity for citizen intervention in civil 
enforcement proceedings through the requirements found in 40 CFR 239.9. 
In general, those requirements state that the state must provide 
authority to allow citizen intervention or provide assurance of (1) a 
notice and public involvement process, (2) investigating and providing 
responses about violations, and (3) not opposing intervention when 
permitted by statute, rule, or regulation.
    ODEQ's CCR program appears to satisfy the civil intervention 
requirement (40 CFR 239.9(a)) by allowing intervention by right. (see 
12 OK Stat Sec.  12-2024). In addition, ODEQ's CCR program would 
satisfy the requirements of 40 CFR 239.9(b) by providing a process to 
respond to citizen complaints (see 27A O.S. Sec.  2-3-101,503) and by 
not opposing citizen intervention when allowed by statute (see 27A O.S. 
Sec.  2-7-133). ODEQ in meeting 40 CFR 239.9(b)(2) has an extremely 
robust process for responding to citizen complaints. In 27A O.S. Sec.  
2-3-101-F-1, The complaints program is responsible for intake 
processing, mediation and conciliation of inquiries and complaints 
received by the Department and which shall provide for the expedient 
resolution of complaints within the jurisdiction of the Department. In 
27A O.S. Sec.  2-3-503, if the Department undertakes an enforcement 
action as a result of a complaint, the Department shall notify the 
complainant of the enforcement action by mail. The State program in 27A 
O.S. Sec.  2-3-503 offers the complainant an opportunity to provide 
written information pertinent to the complaint within fourteen (14) 
calendar days after the date of the mailing. The State's program also 
goes further in 27A O.S. Sec.  2-3-104 that the complaints program 
shall, in addition to the responsibilities specified by Section 2-3-101 
of this title, refer, upon written request, all complaints in which one 
of the complainants remains unsatisfied with the Department's 
resolution of said complaint to an outside source trained in mediation. 
It is clear that ODEQ takes public intervention seriously in 
enforcement actions considering the additional elements of the State's 
complaint process.
    EPA has preliminarily determined that these requirements allow a 
minimum necessary level of citizen involvement in the enforcement 
process.

B. Adequacy of Technical Criteria

    EPA has preliminarily determined that ODEQ's submitted CCR permit 
program generally meets the standard for approval in RCRA section 
4005(d)(1)(B)(i), as it will require each CCR unit located in Oklahoma 
to achieve compliance with the applicable criteria for CCR units under 
40 CFR part 257. To make this preliminary determination, EPA compared 
ODEQ's proposed CCR permit program to 40 CFR part 257 to determine 
whether it differed from the federal requirements, and if so, whether 
those differences met the standard for approval in RCRA section 
4005(d)(1)(B)(ii) and (C).
    Oklahoma has adopted all of the technical criteria at 40 CFR part 
257, subpart D into its regulations at OAC Title 252 Chapter 517. While 
ODEQ's CCR permit program also includes some modification of 40 CFR 
part 257, subpart D, the majority of ODEQ's modifications were merely 
those that were needed to allow the State to implement the part 257 
criteria through a permit process. As mentioned above, the 40 CFR part 
257, subpart D rules were meant to be implemented directly by the 
regulated facility, without the oversight of any regulatory authority, 
such as a state permitting program. For example, ODEQ removed 40 CFR 
257.61(a)(2)(iv), which references the Marine Protection, Research, and 
Sanctuaries Act requirements because Oklahoma does not have any coastal 
or ocean environments which apply under the MPRSA regulations. EPA 
considers these revisions to be ministerial, and as such, they do not 
substantively modify the federal technical criteria.
    ODEQ also made a few minor changes to the 40 CFR 257, Subpart D 
criteria. These changes reflect the integration of the CCR rules with 
the responsibilities of other state agencies or state specific 
conditions. There are a few minor changes that were made inadvertently 
that will be changed by the State through another rulemaking, including 
a typographic error in Chapter 517-9-4(g)(5) and removal of the words 
``and the leachate collection and removal'' from 40 CFR 257.70(e). The 
State has acknowledged these differences and has plans to correct any 
errors. Additional changes include removal of the web link to EPA 
publication SW-846 under the definition ``Representative Sample'' in 40 
CFR 257.53; and the replacement of 40 CFR 257.91(e) with a reference to 
the

[[Page 2104]]

Oklahoma Water Resources Board (OWRB) Section 785:35-7-2. After review 
of this OWRB regulation, an EPA groundwater expert finds the Oklahoma 
rules to be more stringent than the requirements under 40 CFR 
257.91(e). EPA preliminarily finds these changes to be minor because 
the key aspects of the CCR program including requirements for location 
restrictions, design and operating criteria, groundwater monitoring and 
corrective action, closure requirements and post-closure care, 
recordkeeping, notification and internet posting requirements are not 
substantially changed or reduced by the Oklahoma revisions and in one 
example is more stringent. These changes do not keep the overall 
program from being at least as protective as 40 CFR part 257, subpart 
D. EPA's full analysis of Oklahoma's CCR permit program can be found in 
the Technical Support Document (TSD) located in the docket for this 
notice.

IV. Proposed Action

    In accordance with 42 U.S.C. 6945(d), EPA is proposing to wholly 
approve ODEQ's CCR permit program application.

    Dated: January 3, 2018.
Barry N. Breen,
Principal Deputy Assistant Administrator, Office of Land and Emergency 
Management.
[FR Doc. 2018-00474 Filed 1-12-18; 8:45 am]
 BILLING CODE 6560-50-P