[Federal Register Volume 84, Number 125 (Friday, June 28, 2019)]
[Proposed Rules]
[Pages 30977-30982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13907]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2018-0533; FRL-9995-82-OLEM]


Georgia: Approval of State Coal Combustion Residuals Permit 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Announcment of availability; request for comment.

-----------------------------------------------------------------------

SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA 
or the Act), the Environmental Protection Agency (EPA) is proposing to 
partially approve the Georgia Coal Combustion Residuals (CCR) state 
permit program. After reviewing the state permit program application, 
submitted by the Georgia Environmental Protection Division (GA EPD), 
EPA has preliminarily determined that Georgia's CCR state permit 
program meets the standard for partial approval under RCRA. If 
approved, Georgia's CCR state permit program will operate in lieu of 
the Federal CCR program, with the exception of certain provisions noted 
below. The State's CCR state permit program requirements and resulting 
permit provisions will also be subject to EPA's information gathering 
and enforcement authorities under RCRA and other applicable statutory 
and regulatory provisions as discussed below. This document announces 
that EPA is seeking comment on this proposal during a 60-day public 
comment period and will be holding a public hearing on EPA's 
preliminary approval of Georgia's CCR state permitting program.

DATES: Comments must be received on or before August 27, 2019. Public 
Hearing: A public hearing will be held on August 6, 2019, 8 a.m. to 
5:30 p.m.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OLEM-2018-0533. All documents in the docket are 
listed in the https://www.regulations.gov index. Publicly available 
docket materials are available either electronically at https://www.regulations.gov or in hard copy at the EPA Docket Center. The 
Public Reading Room is open from 8:30 a.m. to

[[Page 30978]]

4:30 p.m., Monday through Friday, excluding holidays. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the EPA Docket Center is (202) 566-1742. You may send 
comments, identified by Docket ID. No. EPA-HQ-2018-0533, by any of the 
following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     U.S. Environmental Protection Agency, EPA Docket Center, 
Docket No. EPA-HQ-OLEM-2018-0533, Mail Code 28221T, 1200 Pennsylvania 
Ave. NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.
    The public hearing will be held at GA EPD Tradeport Training Room 
located at 4244 International Parkway, Suite 116, Atlanta, GA 30354-
3906. The hearing will convene at 8:00 a.m. local time and conclude at 
5:30 p.m. (local time). For additional information on the public 
hearing see the ``Public Participation'' heading of the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Michelle Long, Office of Resource 
Conservation and Recovery, Materials Recovery and Waste Management 
Division, U.S. Environmental Protection Agency, 1200 Pennsylvania 
Avenue NW, MC: 5304P, Washington, DC 20460; telephone number: (703) 
347-8943; email address: [email protected]. For more information on 
this announcement please visit https://www.epa.gov/coalash.

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

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2018-
0533, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. 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 additional submission 
methods, 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.

B. Public Hearing

    EPA will hold the public hearing at the GA EPD Tradeport Training 
Room located at 4244 International Parkway, Suite 116, Atlanta, GA 
30354-3906, on August 6, 2019, from 8 a.m. through 5:30 p.m. EPA will 
begin pre-registering speakers for the hearing upon publication of this 
document in the Federal Register. To register to speak at the hearing, 
please use the online registration form available at https://www.epa.gov/coalash/forms/public-hearing-georgias-coal-combustion-residuals-permit-program. The last day to pre-register to speak at the 
hearing will be July 31, 2019. On August 2, 2019, the EPA will post a 
general agenda for the hearing at https://www.epa.gov/coalash/forms/public-hearing-georgias-coal-combustion-residuals-permit-program.
    EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearing to run either ahead of schedule or behind schedule. 
Additionally, requests to speak will be taken the day of the hearing at 
the hearing registration desk. The EPA will make every effort to 
accommodate all speakers who arrive and register, although preferences 
on speaking times may not be able to be fulfilled.
    Each commenter will have five (5) minutes to provide oral 
testimony. The EPA encourages commenters to provide the EPA with a copy 
of their oral testimony electronically (via email) or in hard copy 
form. If EPA is anticipating a high attendance, the time allotment per 
testimony may be shortened to no shorter than three (3) minutes in 
order to accommodate all those wishing to provide testimony who have 
pre-registered. While EPA will make every effort to accommodate all 
speakers who arrive and register the day of the hearing, opportunities 
to speak may be limited based upon the number of preregistered 
speakers. Therefore, EPA strongly encourages anyone wishing to speak to 
preregister.
    The EPA may ask clarifying questions during the oral presentations 
but will not respond to the presentations at that time. Written 
statements and supporting information submitted during the comment 
period will be considered with the same weight as oral comments and 
supporting information presented at the public hearing. Verbatim 
transcripts of the hearing and written statements will be included in 
the docket for the rulemaking.
    Please note that any updates made to any aspect of the hearing will 
be posted online at https://www.epa.gov/coalash/forms/public-hearing-georgias-coal-combustion-residuals-permit-program. While the EPA 
expects the hearing to go forward as set forth above, please monitor 
our website to determine if there are any updates. The EPA does not 
intend to publish a document in the Federal Register announcing 
updates.
    If you require the service of a translator or special 
accommodations such as audio description, please pre-register for the 
hearing and describe your needs by July 30, 2019. We will not be able 
to arrange accommodations without advanced notice.

II. General Information

A. Overview of Proposed Action

    EPA is proposing to approve Georgia's CCR state permit program, in 
part, pursuant to RCRA 4005(d)(1)(B). 42 U.S.C. 6945(d)(1)(B). The fact 
that Georgia is seeking a partial program approval does not mean it 
must subsequently apply for a full program approval. However, Georgia 
could apply for a revised partial program approval or a full program 
approval at some point in the future if it chooses to do so. If 
approved, Georgia's CCR state permit program would operate in lieu of 
the Federal CCR program, codified at 40 CFR part 257, subpart D,\1\ 
with the exception of the provisions specifically identified below for 
which the state is not seeking approval. However, even for the approved 
provisions, EPA would

[[Page 30979]]

retain its inspection and enforcement authorities under RCRA sections 
3007 and 3008, 42 U.S.C. 6927 and 6928. See 42 U.S.C. 6945(d)(4)(B).
---------------------------------------------------------------------------

    \1\ Unless otherwise specified, all references to part 257 and 
part 239 in this document are to title 40 of the Code of Federal 
Regulations (CFR).
---------------------------------------------------------------------------

    There are no federally recognized tribes within the State of 
Georgia, nor any federally recognized tribal lands/reservations 
adjacent to Georgia's boundaries with neighboring states. Thus, EPA has 
not consulted with any Federal tribes in connection with this proposed 
Action.

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 to power a generator to produce 
electricity or electricity and other thermal energy by electric 
utilities and independent power producers. CCR, commonly known as coal 
ash, include fly ash, bottom ash, boiler slag, and flue gas 
desulfurization materials. CCR can be sent offsite 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 Federal 
requirements for the disposal of CCR in landfills and surface 
impoundments (80 FR 21302, April 17, 2015) (``Federal CCR 
regulations''). 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 the 
closure and post-closure care of CCR units. It also requires 
recordkeeping and notifications for CCR units. The Federal CCR 
regulations do not apply to activities that meet the definition of 
``beneficial use'' of CCR, as that term is defined in Sec.  257.53.

C. Statutory Authority

    EPA is issuing this proposed action pursuant to sections 4005(d) 
and 7004(b)(1) of RCRA. See 42 U.S.C. 6945(d) and 6974(b)(1). Section 
2301 of the 2016 Water Infrastructure Improvements for the Nation 
(WIIN) Act amended section 4005 of 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 an 
application for a state CCR permit program to EPA for approval.
    Under RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), states 
seeking approval must submit to the Administrator ``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.'' EPA shall approve a state permit 
program if the Administrator determines that the state program meets 
the standard in RCRA section 4005(d)(1)(B), 42 U.S.C. 6945(d)(1)(B), 
i.e., that it will require each CCR 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). The Administrator must make a final determination, after 
providing for public notice and an opportunity for public comment, 
within 180 days of receiving a state's complete submittal of the 
information in RCRA section 4005(d)(1)(A). See 42 U.S.C. 6945(d)(1)(B). 
EPA may approve a CCR state permit program in whole or in part. Id. 
Once approved, the state permit program operates in lieu of the Federal 
requirements. See 42 U.S.C. 6945(d)(1)(A). In a state with partial 
approval, only the state requirements that have been approved operate 
in lieu of the Federal requirements, and facilities remain responsible 
for compliance with all remaining requirements in 40 CFR part 257.
    Once a program is approved, the Administrator must review the 
approved CCR state permit program at least once every 12 years, as well 
as no later than three years after a revision to an applicable section 
of 40 CFR part 257, subpart D, or one 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 an approved 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 state permit program, EPA may 
commence administrative or judicial enforcement actions under section 
3008 of RCRA, 42 U.S.C. 6928, if the state requests assistance or if 
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 state's permit program. See 42 U.S.C. 6945(d)(4). EPA may also 
exercise its inspection and information gathering authorities under 
section 3007 of RCRA, 42 U.S.C. 6927.

II. Georgia's Application

    On April 13, 2018, Georgia EPD submitted its initial CCR State 
Permit Program application to EPA Region 4. After receiving comments 
from EPA, Georgia provided revisions to its 2018 application on March 
6, 2019 and May 23, 2019. In its February 27, 2019, revised cover 
letter, Georgia requested partial approval of the State's CCR permit 
program.\2\ EPA determined that Georgia's State CCR Permit Program 
Application was complete and notified Georgia of its determination by 
letter dated June 19, 2019. Georgia's application and EPA's 
completeness determination letter are available in the docket 
supporting this preliminary determination.
---------------------------------------------------------------------------

    \2\ The revised narrative application, dated May 22, 2019, shall 
be substituted for the original narrative, dated March 19, 2018, and 
the addendum to the part 257 Checklist for CCR Surface Impoundments 
and CCR Landfills, submitted on March 6, 2019, shall be added to the 
part 257 Checklist provided with the original submission in the 2018 
Application. All other documents submitted as part of the 2018 
Application remain unchanged.
---------------------------------------------------------------------------

    Georgia's CCR Permit Program is codified at Ga. Comp. R. and Regs. 
391-3-4-.10, which adopts by reference nearly all of the technical 
criteria contained in 40 CFR part 257, subpart D.\3\ Georgia's CCR Rule 
is included in Appendix C of Georgia's application and is available in 
the docket supporting this preliminary determination. Georgia's CCR 
Permit Program covers a broader universe of CCR units than are covered 
under the Federal CCR regulations. While Georgia's general 
applicability section mirrors that of the Federal CCR regulations (See 
Ga. Comp. R. and Regs. 391-3-4-.10(1)(a)1. and 40 CFR 257.50(b)), and 
the State's definition of ``CCR Unit'' matches the Federal definition 
(See Ga. Comp. R. and Regs. 391-3-4-.01(11) and 40 CFR 257.53), the 
Georgia CCR regulation defines ``CCR Landfills'' and ``CCR Surface 
Impoundments'' differently. Specifically, the State's definitions for 
these units include dewatered surface impoundments, National Pollutant 
Discharge Elimination System (NPDES)-CCR surface impoundments 
(inactive, but not dewatered, surface impoundments at inactive 
facilities), and inactive CCR landfills. See Ga. Comp. R. and Regs. 
391-3-4-.01(9) and (10). These units are, in turn, defined at Ga. Comp. 
R. and Regs. 391-3-4-.10(2)(a)1.-3. These types of CCR units are not 
covered by the Federal CCR regulations. See 40 CFR 257.50(d) and

[[Page 30980]]

257.53. However, by regulating inactive impoundments at inactive 
facilities, Georgia's CCR Permit Program aligns with the U.S. Court of 
Appeals decision in Utility Solid Waste Activities Group, et al. v. 
EPA, 901 F.3d 414 (D.C. Cir. 2018), which vacated the exclusion from 
the Federal regulations for inactive impoundments at inactive 
facilities. Since there are no Federal regulations for inactive 
impoundments at inactive facilities, EPA has no Federal criteria to 
compare Georgia's regulations on these units to, which is why Georgia 
is not seeking approval of that part of the permit program. However, 
Georgia intends to regulate inactive surface impoundments at inactive 
facilities as existing CCR units. Georgia's CCR units (existing 
landfills, active surface impoundments, and inactive surface 
impoundments at operating power plants) will all be issued new permits 
under Georgia's CCR regulations. Owners and operators of these units 
submitted permit applications to Georgia. The permits that will be 
issued by the state are considered new permits and thus Georgia will 
follow their public participation procedures for CCR units, detailed on 
page 14 of the narrative in the Application. Georgia CCR units are 
issued permits for the life of the site, with a required review 
(discussed on page 11 of the narrative) every 5 years.
---------------------------------------------------------------------------

    \3\ The Georgia CCR Rule adopts 80 FR 21468 (April 17, 2015), as 
amended at 80 FR 37988 (July 2, 2015) and 81 FR 51807 (August 5, 
2016). See Ga. Comp. R. and Regs. 391-3-4-.10(1)(c).
---------------------------------------------------------------------------

    For more information on the specific facilities covered by 
Georgia's CCR Permit Program, see the Technical Support Document which 
is available in the docket for this document.\4\
---------------------------------------------------------------------------

    \4\ Georgia's application also includes some discussion of 
Municipal Solid Waste Landfills (MSWLs), including Commercial 
Industrial Landfills (CILs), that dispose of CCR. While Georgia 
permits these facilities through its MSWL regulations, MSWLs 
disposing of CCR are exempted from the requirements of 40 CFR 257 
and are outside the scope of the Federal CCR regulations and the 
State's CCR Permit Program. Georgia's discussion of these landfills 
and how it regulates them is included in its application only to 
provide a more inclusive description of CCR disposal activities in 
Georgia.
---------------------------------------------------------------------------

    In addition to the technical criteria in Ga. Comp. R. and Regs. 
391-3-4-.10, CCR units must comply with the permitting requirements in 
Ga. Comp. R. and Regs. 391-3-4-.10(9); the procedural permitting 
requirements in Ga. Comp. R. and Regs. 391-3-4-.02; the financial 
assurance requirements in Ga. Comp. R. and Regs. 391-3-4-.10(10) and 
391-3-4-.13; and the reporting requirements in Ga. Comp. R. and Regs. 
391-3-4-.17.

III. EPA Analysis of Georgia's Application

    As discussed in Unit I.C. of this document, RCRA section 4005(d) 
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 itself (or other system of prior 
approval and conditions). 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 Georgia's State CCR 
Permit Program Application, including a thorough analysis of Ga. Comp. 
R. and Regs. 391-3-4-.10 and its adoption by reference of portions of 
40 CFR part 257, subpart D. As noted, Georgia has requested partial 
program approval of its CCR permit program. The Georgia CCR Rule does 
not adopt by reference 40 CFR 257.52(b), which requires compliance with 
the protections for Threatened and Endangered Species identified in 40 
CFR 257.3-2. Additionally, it adopts by reference portions of the 
Federal CCR regulations that have since been vacated by the U.S. Court 
of Appeals in Utility Solid Waste Activities Group, et al. v. EPA.\5\ 
Accordingly, Georgia is not seeking approval for the following:
---------------------------------------------------------------------------

    \5\ See Utility Solid Waste Activities Group, et al. v. EPA, No. 
15-1219 (D.C. Circuit). On August 21, 2018, the United States Court 
of Appeals for the District of Columbia Circuit vacated and remanded 
the three provisions of the Federal CCR Rule: 40 CFR 257.101(a), 
which allowed unlined impoundments to continue receiving coal ash 
unless they leak; 40 CFR 257.71(a)(1)(i), which classified ``clay-
lined'' impoundments as lined; and 40 CFR 257.50(e), which exempted 
from regulation inactive impoundments at inactive facilities. 
Georgia adopts by reference 40 CFR 257.71(a)(1)(i) and 40 CFR 
257.101(a) at Ga. Comp. R. and Regs. 391-3-4-.10(c), two of the 
three provisions that were vacated.
---------------------------------------------------------------------------

    1. Requirements relevant to Endangered Species in 40 CFR 257.3-2;
    2. The exclusion of inactive impoundments at inactive facilities at 
40 CFR 257.50(e), but which has now been vacated;
    3. 40 CFR 257.101(a), which allows unlined impoundments to continue 
receiving coal ash unless they leak, and which has since been vacated; 
and
    4. 40 CFR 257.71(a)(1)(i), which classifies ``clay-lined'' 
impoundments as lined, which has since been vacated.
    Based on this analysis, EPA has preliminarily determined that the 
portions of Georgia's CCR state permit program that have been submitted 
for approval meet the standard in section 4005(d)(1)(A) and (B) of 
RCRA. Georgia's CCR permit program includes all the elements of an 
adequate CCR state permit program as discussed in more detail below. It 
also contains all the technical criteria in 40 CFR part 257, except for 
the provisions specifically discussed below. Consequently, EPA is 
proposing to approve Georgia's permit program ``in part.'' 42 U.S.C. 
6945(d)(1)(B). EPA's analysis and findings are discussed in greater 
detail below and in the Technical Support Document, which is available 
in the docket supporting this preliminary determination.

A. Adequacy of Georgia's Permit Program

    Section 4005(d)(1)(A) of RCRA, 42 U.S.C. 6945(d)(1)(A), requires a 
state seeking CCR state permit 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;'' however, it does not require EPA to promulgate regulations 
governing the process or standard for determining the adequacy of such 
state programs. EPA, therefore, developed the Coal Combustion Residuals 
State Permit Program Guidance Document; Interim Final (82 FR 38685, 
August 15, 2017) (the ``Guidance Document''). The Guidance Document 
provides guidance on a process and standards that states may choose to 
use to apply for EPA approval of their CCR permit programs, based on 
the existing regulations at 40 CFR part 239 and the Agency's experience 
in reviewing and approving state programs in general. EPA evaluated the 
adequacy of Georgia's CCR state permit program using the process and 
statutory and regulatory standards discussed in the Guidance Document. 
EPA's findings are summarized below and provided in more detail in the 
Technical Support Document located in the docket supporting this 
preliminary determination.
1. Public Participation
    Based on section 7004 of RCRA, 42 U.S.C. 6974, and the part 239 
regulations, it is EPA's judgment that an adequate state CCR permitting 
program

[[Page 30981]]

will ensure that: (1) Documents for permit determinations are made 
available for public review and comment; (2) final determinations on 
permit applications are made known to the public; and (3) public 
comments on permit determinations are considered. To meet these 
requirements, Georgia has adopted a policy governing the procedure for 
public comment on draft CCR permits, which is memorialized in its ``CCR 
Draft Permit Public Comment Process'' Memorandum, signed by the 
Director of Georgia EPD on April 13, 2018. This procedure requires that 
Georgia EPD post all draft CCR permits online and concurrently notify 
anyone who has signed up to receive email for coal ash-related 
announcements of the posting. Draft permits and all information 
submitted as part of CCR permit applications will be available for 
review in person at Georgia EPD's Tradeport office. Draft permits will 
be available for public comment for 30 days, and the Director may 
extend this comment period if deemed necessary. Georgia EPD will accept 
comments via email or regular mail. After the comment period ends, 
Georgia EPD will review all comments received and make any necessary 
changes before making a final permit decision. When issuing a final 
permit, Georgia EPD will release a response to comments on the draft 
permit and will notify the public in the same manner as when it 
provided notice of the draft permit. The final permit and response to 
comments will be available for review online. The ``CCR Draft Permit 
Public Comment Process'' Memorandum, a sample transmittal letter to the 
CCR facility owner, and a sample ``Notice of the Opportunity for Public 
Comment'' are included in Appendix D to the 2018 Application and is 
available in the docket supporting this preliminary determination. EPA 
has preliminarily determined that this approach provides adequate 
opportunities for public participation in the permitting process 
sufficient to meet the standard for program approval.
2. Guidelines for Compliance Monitoring Authority
    Based on the 40 CFR part 239 regulations, it is EPA's judgment that 
an adequate CCR state permit program should provide the state with the 
authority to gather information about compliance, perform inspections, 
and ensure that information it gathers is suitable for enforcement. 
Georgia EPD has compliance monitoring authority under O.C.G.A. 
Sec. Sec.  12-8-23.1(a)(4), 12-8-29.1, and 12-8-23.1(20). Specifically, 
O.C.G.A. Sec.  12-8-23.1(a)(4) and O.C.G.A. Sec.  12-8-29.1 give the 
Director of Georgia EPD authority to undertake investigations, 
analysis, and inspections to determine compliance, and to enter 
property to undertake investigations to verify compliance. Further, 
O.C.G.A. Sec.  12-8-23.1(20) grants the Director of Georgia EPD the 
authority to exercise all incidental powers necessary to carry out the 
purposes of applicable state law. Together these authorities provide 
the State with authority to obtain records from an owner or operator to 
determine compliance. EPA has preliminarily determined that these 
compliance monitoring authorities are adequate, and that this aspect of 
the State's CCR state permit program meets the standard for program 
approval.
3. Guidelines for Enforcement Authority
    Based on the 40 CFR part 239 regulations, it is EPA's judgment that 
an adequate CCR state permit program should provide the state with 
adequate enforcement authority to administer its CCR state permit 
program, including the authority to: (1) Restrain any person from 
engaging in activity which may damage human health or the environment, 
(2) sue to enjoin prohibited activity, and (3) sue to recover civil 
penalties for prohibited activity. Georgia EPD has adequate enforcement 
authority for its existing programs under O.C.G.A. sections 12-8-
23.1(a)(9), 12-8-30, 12-8-30.1, 12-8-30.4, and 12-8-30.6, and these 
authorities extend to Georgia's CCR state permit program. For example, 
O.C.G.A. section 12-8-23.1(a)(9) provides the State with authority to 
bring an administrative or civil proceeding to enforce the Georgia 
Comprehensive Solid Waste Management Act and its implementing 
regulations. O.C.G.A. section 12-8-30 provides the State with the 
authority to issue orders requiring corrective action to remedy 
violations. Under O.C.G.A. section 12-8-30.4, the State may sue in 
superior court for injunctions, restraining orders, and other relief 
for activities that violate the State program. Finally, under O.C.G.A. 
section 12-8-30.6, the State has the authority to bring an 
administrative action to assess civil penalties for violations of the 
State's program. EPA has preliminarily determined that this aspect of 
Georgia's CCR state permit program meets the standard for program 
approval.
4. Intervention in Civil Enforcement Proceedings
    Based on section 7004 of RCRA and the 40 CFR part 239 regulations, 
it is EPA's judgment that an adequate CCR state permit program should 
provide adequate opportunity for citizen intervention in civil 
enforcement proceedings. Specifically, the state must either: (a) 
Provide for citizen intervention as a matter of right or (b) have in 
place a process to (1) provide notice and opportunity for public 
involvement in civil enforcement actions, (2) investigate and provide 
responses to citizen complaints about violations, and (3) not oppose 
citizen intervention when permissive intervention is allowed by 
statute, rule, or regulation. In Georgia, citizen intervention is 
possible in the State civil enforcement process as a matter of right 
for interested parties. Pursuant to O.C.G.A. section 12-8-30.2, all 
hearings/reviews of enforcement actions on orders shall be conducted in 
accordance with O.C.G.A. section 12-2-2, which provides that hearings 
shall be conducted in accordance with the Georgia Administrative 
Procedures Act, which provides for intervention by citizens in 
contested cases. See O.C.G.A. section 50-13-14. EPA has preliminarily 
determined that these authorities provide for an adequate level of 
citizen involvement in the enforcement process, and that this aspect of 
the State's CCR state permit program meets the standard for program 
approval.

B. Adequacy of Technical Criteria

    EPA has preliminarily determined that the portions of Georgia's CCR 
permit program that were submitted for approval meet the standard for 
approval under RCRA section 4005(d)(1)(B)(i), 42 U.S.C. 
6945(d)(1)(B)(i). To make this preliminary determination, EPA compared 
the technical requirements in Georgia's CCR regulations to 40 CFR part 
257 to determine whether they differed from the Federal requirements, 
and if so, whether those differences met the standard in RCRA sections 
4005(d)(1)(B)(ii) and (C), 42 U.S.C. 6945(d)(1)(B)(ii) and (C). 
Georgia's CCR regulations are contained in Ga. Comp. R. and Regs. 391-
3-4-.10, where Georgia adopts by reference portions of 40 CFR part 257, 
subpart D, and also spells out certain provisions. Specifically, in 
addition to what is required by 40 CFR part 257, the Georgia CCR 
regulations contain additional state-specific requirements for new and 
lateral expansions of CCR landfills in Ga. Comp. R. and Regs. 391-3-
4-.10(3)(c)-(e); operating criteria in Ga. Comp. R. and Regs. 391-3-
4-.10(5)(c); groundwater monitoring and corrective action in Ga. Comp. 
R. and Regs. 391-3-4-.10(6)(b)-(g); closure and post-closure care in 
Ga. Comp. R. and Regs. 391-3-4-.10(7)(c)-(g); and

[[Page 30982]]

recordkeeping, notification, and posting of information to the internet 
in Ga. Comp. R. and Regs. 391-3-4-.10(8)(a)1.
    The following table sets forth the Georgia regulations that 
encompass the technical criteria of the State's CCR Permit Program.

Table 1--Comparison of Federal and Georgia's Proposed CCR Permit Program
                              Requirements
------------------------------------------------------------------------
                                 State citation/
         Description                 analog          Federal requirement
------------------------------------------------------------------------
Scope and Purpose...........  Ga. Comp. R. and      Sec.   257.50.
                               Regs. 391-3-4-
                               .10(1)(a) and (b).
Effect of other regulations.  Ga. Comp. R. and      Sec.   257.52(a).
                               Regs. 391-3-4-
                               .04(11).
                              Ga. Comp. R. and      Sec.   257.52(b)
                               Regs. 391-3-4-.05     (cross-referencing
                               (1)(d) and 391-3-4-   Sec.   257.3-1
                               10(9)(c)1.(ii).       (Floodplains)).
                              No State Analog.....  Sec.   257.52(b)
                                                     (cross-referencing
                                                     Sec.   257.3-
                                                     2(Endangered
                                                     Species).
                              Ga. Comp. R. and      Sec.   257.52(b)
                               Regs. 391-3-4-        (cross-referencing
                               .10(5)(a) and 391-3-  Sec.   257.3-3
                               4-.04(1).             Surface Water).
Definitions.................  Ga. Comp. R. and      Sec.   257.53.
                               Regs. 391-3-4-
                               .10(2)(a) and 391-3-
                               4-.01.
Location Restrictions.......  Ga. Comp. R. and      Sec.  Sec.   257.60
                               Regs. 391-3-4-        through 257.64.
                               .10(1)(c) and 391-3-
                               4-.10(3).
Design Criteria.............  Ga. Comp. R. and      Sec.  Sec.   257.70
                               Regs. 391-3-4-        through 257.74.
                               .10(1)(c) and 391-3-
                               4-.10(4).
Operating Criteria..........  Ga. Comp. R. and      Sec.  Sec.   257.80
                               Regs. 391-3-4-        through 257.84.
                               .10(1)(c) and 391-3-
                               4-.10(5).
Groundwater Monitoring and    Ga. Comp. R. and      Sec.  Sec.   257.90
 Correction Action.            Regs. 391-3-4-        through 257.98.
                               .10(1)(c) and 391-3-
                               4-.10(6).
Closure and Post-Closure      Ga. Comp. R. and      Sec.  Sec.   257.100
 Care.                         Regs. 391-3-4-        through 257.104.
                               .10(1)(c) and 391-3-
                               4-.10(7).
Record Keeping,               Ga. Comp. R. and      Sec.  Sec.   257.105
 Notification, and Posting     Regs. 391-3-4-        through 257.107.
 of Information to the         .10(1)(c) and 391-3-
 Internet.                     4-.10(8).
Constituents for Detection    Ga. Comp. R. and      Appendix III to part
 Monitoring.                   Regs. 391-3-4-        257.
                               .10(6)(b).
Constituents for Assessment   Ga. Comp. R. and      Appendix IV to part
 Monitoring.                   Regs. 391-3-4-        257.
                               .10(6)(b).
------------------------------------------------------------------------

    As noted above, the Georgia CCR regulations do not adopt by 
reference Sec.  257.52(b), which requires compliance with the 
protections for Threatened and Endangered species identified in Sec.  
257.3-2, and do not otherwise contain provisions with equivalent 
protections for Threatened and Endangered species. For this reason, and 
because the Georgia CCR regulations adopt by reference portions of 40 
CFR part 257 that have since been vacated,\6\ EPA is proposing to 
partially approve Georgia's CCR permit program. Specifically, EPA is 
proposing to approve all of Georgia's program except for the following 
four provisions:
---------------------------------------------------------------------------

    \6\ Georgia adopts by reference Sec. Sec.  257.71(a)(1)(i) and 
257.101(a) at Ga. Comp. R. and Regs. 391-3-4-.10(c).
---------------------------------------------------------------------------

    1. Requirements relevant to Threatened and Endangered species at 40 
CFR 257.3-2;
    2. The exclusion of inactive impoundments at inactive facilities at 
40 CFR 257.50(e);
    3. 40 CFR 257.101(a), which allows unlined impoundments to continue 
receiving coal ash unless they leak; and
    4. 40 CFR 257.71(a)(1)(i), which classifies ``clay-lined'' 
impoundments as lined.
    With the exception of the four provisions noted above, the Georgia 
CCR regulations contain all of the technical elements of the Federal 
CCR regulations, including requirements for location restrictions, 
design and operating criteria, groundwater monitoring and corrective 
action, closure requirements and post-closure care, recordkeeping, 
notification and publicly accessible website posting requirements. The 
Georgia CCR permit program also contains State-specific language, 
references, definitions, and State-specific requirements that differ 
from the Federal CCR regulations, but which EPA has determined to be 
``at least as protective as'' the Federal criteria. The effect of 
granting a partial approval with respect to the four provisions above 
is that facilities will remain responsible for compliance with the 
Federal requirements for Threatened and Endangered species in 40 CFR 
257.3-2. Facilities must also comply with the Federal requirements for 
inactive impoundments at inactive facilities, unlined impoundments, and 
clay-lined impoundments, once established by EPA. However, as 
previously noted, the Georgia CCR Permit Program already regulates 
inactive impoundments at inactive facilities. Further, any future 
regulations with respect to unlined impoundments and clay-lined 
impoundments are not expected to have any practical impact in Georgia 
because all unlined impoundments in the State are scheduled to cease 
receiving CCR by 2020 (i.e., no unlined impoundments will continue to 
receive CCR after that date) and because no clay-lined impoundments 
exist in Georgia.
    EPA's full analysis of Georgia's CCR permit program, and how 
Georgia's regulations differ from the Federal requirements, can be 
found in the Technical Support Document located in the docket 
supporting this preliminary determination.

IV. Proposed Action

    EPA has preliminarily determined that Georgia's CCR permit program 
meets the statutory standard for partial approval. Accordingly, in 
accordance with 42 U.S.C. 6945(d), EPA is proposing to partially 
approve Georgia's CCR permit program.

    Dated: June 21, 2019.
Andrew R. Wheeler,
Administrator.
[FR Doc. 2019-13907 Filed 6-27-19; 8:45 am]
BILLING CODE 6560-50-P