[Federal Register Volume 88, Number 96 (Thursday, May 18, 2023)]
[Proposed Rules]
[Pages 31982-32044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10048]
[[Page 31981]]
Vol. 88
Thursday,
No. 96
May 18, 2023
Part IV
Environmental Protection Agency
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40 CFR Part 257
Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Legacy CCR Surface
Impoundments; Proposed Rule
Federal Register / Vol. 88, No. 96 / Thursday, May 18, 2023 /
Proposed Rules
[[Page 31982]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2020-0107; FRL-7814-02-OLEM]
RIN 2050-AH14
Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Legacy CCR Surface
Impoundments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On April 17, 2015, the Environmental Protection Agency (EPA or
the Agency) promulgated national minimum criteria for existing and new
coal combustion residuals (CCR) landfills and existing and new CCR
surface impoundments. On August 21, 2018, the United States Court of
Appeals for the District of Columbia Circuit vacated the exemption for
inactive surface impoundments at inactive facilities and remanded the
issue back to EPA to take further action consistent with the opinion in
Utility Solid Waste Activities Group, et al. v. EPA. The Agency is
proposing to establish regulatory requirements for inactive surface
impoundments at inactive facilities (legacy CCR surface impoundments).
EPA is also proposing to establish groundwater monitoring, corrective
action, closure, and post-closure care requirements for all CCR
management units (regardless of how or when that CCR was placed) at
regulated CCR facilities. EPA is also proposing several technical
corrections to the existing regulations, such as correcting certain
citations and harmonizing definitions.
DATES:
Comments due: Comments must be received on or before July 17, 2023.
Public Hearing: EPA will hold an in-person public hearing on June
28, 2023 and a virtual public hearing on July 12, 2023. Please refer to
the SUPPLEMENTARY INFORMATION section for additional information on the
public hearing.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2020-0107, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Land and Emergency Management (OLEM) Docket, Mail
Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
Hand Delivery or Courier (by scheduled appointment only):
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.
FOR FURTHER INFORMATION CONTACT: For questions concerning this
proposal, contact Michelle Lloyd, Office of Resource Conservation and
Recovery, Materials Recovery and Waste Management Division,
Environmental Protection Agency, 1200 Pennsylvania Avenue NW, MC:
5304T, Washington, DC 20460; telephone number: (202) 566-0560; email
address: [email protected]. For more information on this
rulemaking please visit https://www.epa.gov/coalash.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
A. Written Comments
B. Participation in In-Person Public Hearing
C. Participation in Virtual Public Hearing
II. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
D. What are the incremental costs and benefits of this action?
III. Background
A. 2015 CCR Rule
B. 2018 USWAG Decision
C. 2020 Advance Notice of Proposed Rulemaking
IV. What is EPA proposing?
A. Legacy CCR Surface Impoundment Requirements
B. CCR Management Unit Requirements
C. Technical Corrections
V. Effect on State CCR Permit Programs
VI. The Projected Economic Impact of This Action
VII. Statutory and Executive Order Reviews
Regulatory Text
List of Acronyms
ACM Assessment of Corrective Measures
ANPRM Advance Notice of Proposed Rulemaking
ASD alternative source demonstration
CAA Clean Air Act
CBI Confidential Business Information
CCR coal combustion residuals
CCRMU coal combustion residuals management unit
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act
CFR Code of Federal Regulations
CWA Clean Water Act
EAP Emergency Action Plan
EJ environmental justice
ELG Effluent Limitation Guidelines
EPA Environmental Protection Agency
EPRI Electric Power Research Institute
FR Federal Register
GWMCA groundwater monitoring and corrective action
GWPS groundwater protection standard
HQ hazard quotient
HSWA Hazardous and Solid Waste Amendments
ICR Information Collection Request
LEAF Leaching Environmental Assessment Framework
MCL maximum contaminant level
NAICS North American Industry Classification System
NPDES National Pollution Discharge Elimination System
NPL National Priorities List
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PM particulate matter
PRA Paperwork Reduction Act
PUC Public Utility Commission
QA/QC quality assurance/quality control
RCRA Resource Conservation and Recovery Act
RIA Regulatory Impact Analysis
SSI statistically significant increase
SSL statistically significant level
TDS total dissolved solids
TSCA Toxic Substances Control Act
TSDF Transportation Storage and Disposal Facility
USGS U.S. Geological Survey
USWAG Utility Solid Waste Activities Group
WIIN Water Infrastructure Improvements for the Nation
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2020-
0107, 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. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at https://www.regulations.gov 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.
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The written comment is considered the official comment and should
include discussion of all points you wish to make. 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. Participation in In-Person Public Hearing
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
on EPA's CCR website (https://www.epa.gov/coalash) or contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
register to speak at the hearing. The last day to pre-register to speak
at the hearing will be June 26, 2023. On June 27, 2023, EPA will post a
general agenda for the hearing on EPA's CCR website (https://www.epa.gov/coalash).
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings 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. 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. EPA encourages commenters to provide EPA with a copy of
their oral testimony electronically by emailing it to the person listed
in the FOR FURTHER INFORMATION CONTACT section. EPA also recommends
submitting the text of your oral comments as written comments to the
rulemaking docket. If EPA is anticipating a high attendance, the time
allotment per testimony may be shortened to no shorter than three (3)
minutes per person to accommodate all those wishing to provide
testimony and who have pre-registered. While EPA will make every effort
to accommodate all speakers who do not preregister, opportunities to
speak may be limited based upon the number of pre-registered speakers.
Therefore, EPA strongly encourages anyone wishing to speak to
preregister. Participation in the public hearing does not preclude any
entity or individual from submitting a written comment.
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.
Please note that any updates made to any aspect of the hearing are
posted online at EPA's CCR website at https://www.epa.gov/coalash.
While EPA expects the hearing to go forward as set forth above, please
monitor our website or contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to determine if there are any updates. EPA
does not intend to publish a document in the Federal Register
announcing updates.
If you require the services of an interpreter or special
accommodations such as audio transcription, please pre-register for the
hearing with the person listed in the FOR FURTHER INFORMATION CONTACT
section and describe your needs by June 14, 2023. EPA may not be able
to arrange accommodations without advance notice.
C. Participation in Virtual Public Hearing
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
on EPA's CCR website (https://www.epa.gov/coalash) or contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
register to speak at the virtual hearing. The last day to pre-register
to speak at the hearing will be July 10, 2023. On July 11, 2023, EPA
will post a general agenda for the hearing on EPA's CCR website at:
https://www.epa.gov/coalash.
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be taken the day of the hearing
according to the procedures specified on EPA's CCR website (https://www.epa.gov/coalash) for this hearing. The Agency 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. EPA encourages commenters to provide the EPA with a copy of
their oral testimony electronically (via email) by emailing it to
person listed in the FOR FURTHER INFORMATION CONTACT section. If EPA is
anticipating a high attendance, the time allotment per testimony may be
shortened to no shorter than three (3) minutes per person to
accommodate all those who wish to provide testimony and have pre-
registered. While EPA will make every effort to accommodate all
speakers who do not preregister, opportunities to speak may be limited
based upon the number of preregistered speakers. Therefore, EPA
strongly encourages anyone wishing to speak to preregister.
Participation in the virtual public hearing does not preclude any
entity or individual from submitting a written comment.
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 hearings and written statements will be included in the docket for
the rulemaking.
Please note that any updates made to any aspect of the hearing is
posted online on EPA's CCR website at https://www.epa.gov/coalash.
While the EPA expects the hearing to go forward as set forth above,
please monitor our website or contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to determine if there are any
updates. EPA does not intend to publish a document in the Federal
Register announcing updates.
If you require the service of a translator, please pre-register for
the hearing and describe your needs by June 28, 2023. If you require
special accommodations such as audio transcription or closed
captioning, please pre-register for the hearing and describe your needs
by June 28, 2023. We may not be able to arrange accommodations without
advance notice. Registrants should notify the person listed in the FOR
FURTHER INFORMATION CONTACT section and indicate on the registration
form any such needs when they pre-register to speak.
II. General Information
A. Does this action apply to me?
This rule applies to and may affect all CCR generated by electric
utilities and independent power producers that fall within the North
American Industry Classification System (NAICS) code
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221112. The reference to NAICS code 221112 is not intended to be
exhaustive, but rather provides a guide for readers regarding entities
likely to be regulated by this action. This discussion lists the types
of entities that EPA is now aware could potentially be regulated by
this action. Other types of entities not described here could also be
regulated. To determine whether your entity is regulated by this
action, you should carefully examine the applicability criteria found
in 40 CFR 257.50 of title 40 of the Code of Federal Regulations. If you
have questions regarding the applicability of this action to a
particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.
B. What action is the Agency taking?
EPA is proposing to amend the regulations governing the disposal of
CCR in landfills and surface impoundments, codified in subpart D of
part 257 of Title 40 of the Code of Federal Regulations (CFR) (CCR
regulations). Specifically, the Agency is proposing to establish
regulatory requirements for inactive CCR surface impoundments at
inactive utilities (``legacy CCR surface impoundment'' or ``legacy
impoundment''). This action is being proposed in response to the August
21, 2018, opinion by the U.S. Court of Appeals for the District of
Columbia Circuit in Utility Solid Waste Activities Group v. EPA, 901
F.3d 414 (D.C. 2018) (``USWAG decision'' or ``USWAG'') that vacated and
remanded the provision exempting legacy impoundments from the CCR
regulations. This action includes adding a definition for legacy CCR
surface impoundments and other terms relevant to this rulemaking. It
also proposes to require that legacy CCR surface impoundments comply
with certain existing CCR regulations with tailored compliance
deadlines.
While this action is responsive to the D.C. Circuit's order, it is
also driven by the record, which clearly demonstrates that regulating
legacy CCR surface impoundments will have significant quantified and
unquantified public health and environmental benefits. As EPA concluded
in 2015, the risks posed by unlined CCR surface impoundments are
substantial, and the risks from legacy impoundments are at least as
significant. EPA's 2014 Risk Assessment concluded that the cancer risks
from unlined surface impoundments ranged from 3x10 -4 for
trivalent arsenic to 4x10-5 for pentavalent arsenic. Non-
cancer risks from these same units also significantly exceeded EPA's
level of concern, with estimated Hazard Quotients (HQ) of two for
thallium, three for lithium, four for molybdenum and eight for
trivalent arsenic. In addition, as described in Unit IV.B.1 of this
preamble, information obtained since 2015 indicates that the risks for
legacy CCR surface impoundments are likely to be greater than EPA
originally estimated. Finally, based on the demographic composition and
environmental conditions of communities within one and three miles of
legacy CCR surface impoundments, these proposals will reduce existing
disproportionate and adverse effects on economically vulnerable
communities, as well as those that currently face environmental
burdens. For example, in Illinois the population living within 1 mile
of legacy CCR surface impoundment sites is over three times as likely
compared to the state average to have less than a high school education
(35.66% compared to 10.10%, see RIA exhibit ES.14), and that population
already experiences higher than average exposures to particulate
matter, ozone, diesel emissions, lifetime air toxics cancer risks, and
proximity to traffic, Superfund sites, Risk Management Plan sites, and
hazardous waste facilities (see RIA exhibit ES.15). Following on the
significant progress EPA has made over many decades to reduce dangerous
pollution from coal-fired electric utilities' stack emissions and
effluents, this proposed rule will help EPA further ensure that the
communities and ecosystems closest to coal facilities are sufficiently
protected from harm from groundwater contamination, surface water
contamination, fugitive dust, floods and impoundment overflows, and
threats to wildlife.
EPA is also proposing to establish requirements to address the
risks from currently exempt solid waste management that involves the
direct placement of CCR on the land.\1\ EPA is proposing to extend a
subset of the existing requirements in part 257, subpart D to CCR
surface impoundments and landfills that closed prior to the effective
date of the 2015 CCR Rule, inactive CCR landfills, and other areas
where CCR is managed directly on the land. In this proposal, EPA refers
to these as CCR management units, or CCRMU. This proposal would apply
to all existing CCR facilities and all inactive facilities with legacy
CCR surface impoundments subject to this proposed rule.
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\1\ Regulated CCR units consist of new and existing landfills
and surface impoundments, including any lateral expansion of these
units, as well as inactive CCR surface impoundments and legacy CCR
surface impoundments.
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Finally, EPA is proposing a number of technical corrections to the
existing regulations, such as correcting certain citations and
harmonizing definitions.
EPA intends that the provisions of the rule be severable. In the
event that any individual provision or part of the rule is
invalidated., EPA intends that this would not render the entire rule
invalid, and that any individual provisions that can continue to
operate will be left in place.
In this proposal, EPA is not reconsidering, proposing to reopen, or
otherwise soliciting comment on any other provisions of the existing
CCR regulations beyond those specifically identified in this proposal.
For the reader's convenience, EPA has provided a background description
of existing requirements in several places throughout this preamble. In
the absence of a specific request for comment and proposed change to
the identified provisions, these descriptions do not reopen any of the
described provisions. EPA will not respond to comments submitted on any
issues other than those specifically identified in this proposal, and
such comments will not be considered part of the rulemaking record.
C. What is the Agency's authority for taking this action?
EPA is publishing this notice under the authority of sections
1008(a), 2002(a), 4004, and 4005(a) and (d) of the Solid Waste Disposal
Act of 1970, as amended by the Resource Conservation and Recovery Act
of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments
of 1984 (HSWA) and the Water Infrastructure Improvements for the Nation
(WIIN) Act of 2016, 42 U.S.C. 6907(a), 6912(a), 6944, 6945(a) and (d).
RCRA section 1008(a) authorizes EPA to publish ``suggested
guidelines for solid waste management.'' 42 U.S.C. 6907(a). RCRA
defines solid waste management as ``the systematic administration of
activities which provide for the collection, source separation,
storage, transportation, transfer, processing, treatment, and disposal
of solid waste.'' 42 U.S.C. 6903(28).
Pursuant to section 1008(a)(3), the guidelines are to include the
minimum criteria to be used by the states to define the solid waste
management practices that constitute the open dumping of solid waste or
hazardous waste and are prohibited as ``open dumping'' under section
4005. Only those requirements promulgated under the authority of
[[Page 31985]]
section 1008(a)(3) are enforceable under section 7002 of RCRA.
RCRA section 4004(a) generally requires EPA to promulgate
regulations containing criteria distinguishing ``sanitary landfills,''
which may continue to operate, from ``open dumps,'' which are
prohibited. 42 U.S.C. 6944(a); see id. 6903(14), (26); 6945(a). The
statute directs that, ``at a minimum, the criteria are to ensure that
units are classified as sanitary landfills only if there is no
reasonable probability of adverse effects on health or the environment
from disposal of solid wastes at such facility.'' 42 U.S.C. 6944(a).
RCRA section 4005(a), entitled ``Closing or upgrading of existing
open dumps,'' prohibits any solid waste management practices or
disposal of solid waste that does not comply with EPA regulations
issued under RCRA section 1008(a) and 4004(a). 42 U.S.C. 6945(a). See
also 42 U.S.C. 6903(14) (definition of ``open dump''). This prohibition
takes effect ``upon promulgation'' of any rules issued under section
1008(a)(3) and is enforceable either through a citizen suit brought
pursuant to section 7002, or through an EPA enforcement action brought
pursuant to section 4005(d)(4)(A). See 42 U.S.C. 6945(a), (d)(4)(A)
(authorizing EPA to use the authority under RCRA section 3008(a) to
enforce the open dumping prohibition for CCR). RCRA section 4005 also
directs that open dumps (i.e., facilities out of compliance with EPA's
criteria), must be ``closed or upgraded.'' Id.
RCRA section 4005(d)(3) specifies that the regulations in 40 CFR
part 257, subpart D ``(or successor regulations promulgated pursuant to
sections 6907(a)(3) and 6944(a) of this title), shall apply to each CCR
unit'' unless a permit issued by an approved state or by EPA is in
effect. Similarly, section 4005(d)(6) \2\ provides that:
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\2\ 42 U.S.C. 6945(d)(6).
a CCR unit shall be considered to be a sanitary landfill for
purposes of this chapter, including subsection (a), only if the coal
combustion residuals unit is operating in accordance with [a permit
issued by EPA or an approved State] or the applicable criteria for
coal combustion residuals units under part 257 of title 40, Code of
Federal Regulations (or successor regulations promulgated pursuant
to sections 6907(a)(3) and 6944(a) of this title).
1. Regulation of Solid Wastes Under RCRA Subtitle D
Solid wastes that are neither a listed or characteristic hazardous
waste are subject to the requirements of RCRA subtitle D. Subtitle D of
RCRA establishes a framework for federal, state, and local government
cooperation in controlling the management of nonhazardous solid waste.
The federal role is to establish the overall regulatory direction by
providing minimum nationwide standards that will protect human health
and the environment. States may, but are not required to, adopt these
requirements into their state programs.
Under RCRA section 4005(a), upon promulgation of criteria under
section 1008(a)(3), any solid waste management practice or disposal of
solid waste that constitutes the ``open dumping'' of solid waste is
prohibited. The federal standards apply directly to the facility (are
self-implementing) and facilities are directly responsible for ensuring
that their operations comply with these requirements.
RCRA section 4005(d) establishes an additional regulatory
structure, applicable exclusively to the solid waste management of CCR,
that builds on the provisions in sections 1008(a)(3), 4004, and
4005(a), without restricting the scope of EPA's authority under those
sections. See, 42 U.S.C. 6945 (d)(7). Under 4005(d), states may seek
EPA approval of a state permitting program under which individualized
facility permits would ``operate in lieu of [EPA] regulation of coal
combustion residuals units in the State.'' 42 U.S.C. 6945(d)(1)(A). EPA
is also directed to ``implement a permit program,'' which would operate
in absence of an approved state program. 42 U.S.C. 6945(d)(2). However,
the statute makes clear that facilities must continue to comply with
the federal regulations until a permit issued by either EPA or an
approved state is in effect. 42 U.S.C. 6945(d)(3), (6).
RCRA sections 1008(a)(3) and 4004(a) delegate broad authority to
EPA to establish regulations governing the management of solid waste.
Under section 4004(a) EPA is charged with establishing requirements to
ensure that facilities will be classified as sanitary landfills and not
an open dump ``only if there is no reasonable probability of adverse
effects on health or the environment from the disposal of solid waste''
at the facility. Or in other words, under section 4004(a) EPA is
charged with issuing regulations to address all ``reasonable
probabilities of adverse effects'' (i.e., all reasonably anticipated
risks) to health and the environment from the disposal of solid waste.
Section 1008(a)(3) expands EPA's authority to address the risks from
any of the listed activities. Specifically, EPA is authorized to
establish requirements applicable to ``storage, transportation,
transfer, processing, treatment, and disposal of solid waste.'' (42
U.S.C. 6907(a), 6903(28)). Under RCRA, EPA sets these requirements
without taking cost into account as a factor. See USWAG et al. v. EPA,
901 F.3d 414, 448-49 (D.C. Cir. 2018) (citing RCRA Section 4004(a)).
The statute is clear that EPA is authorized to issue regulations to
address the current risks from previous solid waste management
activities. EPA explained at length the basis for this conclusion as
part of the Agency's rationale for regulating inactive impoundments.
See, 80 FR 21344-21345. See also USWAG, et al. v. EPA, 901 F.3d 414
(D.C. Cir. 2018). Among other provisions, the statutory definition of
an ``open dump'' conclusively resolves the question. RCRA defines an
``open dump'' as ``any facility or site where solid waste is disposed
of . . . .'' 42 U.S.C. 6903(14). As the D.C. Circuit explained,
Importantly, while the ``is'' retains its active present tense,
the ``disposal'' takes the form of a past participle (``disposed'').
In this way, the disposal itself can exist (it ``is''), even if the
act of disposal took place at some prior time . . . . Properly
translated then, an open dump includes any facility (other than a
sanitary landfill or hazardous waste disposal facility), where solid
waste still ``is deposited,'' ``is dumped,'' ``is spilled,'' ``is
leaked,'' or ``is placed,'' regardless of when it might have
originally been dropped off. See 42 U.S.C. 6903(3), (14). In other
words, the waste in inactive impoundments ``is disposed of'' at a
site no longer receiving new waste in just the same way that it ``is
disposed of'' in at a site that is still operating.
901 F.3d at 440. See also In re Consolidated Consol. Land Disposal
Regulation Litig., 938 F.2d 1386, 1389 (D.C. Cir. 1991) (EPA's reading
of the term ``disposal'' in RCRA's Subtitle C, 42 U.S.C. 6924, to
include ``the continuing presence of waste'' was reasonable); USWAG,
901 F.3d at 453-54 (Henderson, J., concurring) (same). By the same
logic, these provisions would authorize EPA to regulate closed units
that continue to pose risks to health or the environment, for example
by requiring the owners and operators of such units to remediate any
contamination from these units, or to take action to prevent such
contamination.
The 2016 amendments further confirm EPA's authority over these
activities. In section 4005, Congress incorporated the 2015 regulations
into the statute, and expressly stated that the amendments in 4005(d)
were not intended to limit or restrict the authority already provided
under sections 1008(a)(3) and 4004(a). See, 42
[[Page 31986]]
U.S.C. 6945(d)(3), (6), (7). EPA also considers that with these
amendments, Congress has affirmed the Agency's authority to impose the
kind of requirements established in part 257 (e.g., corrective action
to remediate groundwater contamination). Moreover, Congress made clear
that EPA retains the authority to modify or expand these requirements
as necessary to ensure that the standard in section 4004(a) will
continue to be met. See, e.g., 42 U.S.C. 6945(d)(1)(A)(i), (3), (6)
(referencing ``or successor regulations promulgated pursuant to
sections 6907(a)(3) and 6944(a) of this title'').
EPA interprets the standard in section 4004(a) to apply equally to
criteria issued under sections 1008(a)(3) and 4004(a); namely that the
criteria must ensure that a facility is to be classified as a sanitary
landfill, and thus allowed to continue to operate, ``only if there is
no reasonable probability of adverse effects on health or the
environment'' from either the disposal or other solid waste management
practices at the facility. Thus, under the combined authority conferred
by sections 1008(a)(3) and 4004(a), a facility is an ``open dump'' if
it engages in any activity involving the management of solid waste that
does not meet the standard in section 4004(a); or in other words, any
activity involved with the management of solid waste that presents a
reasonable probability of causing adverse effects on health or the
environment. EPA also interprets these provisions to authorize the
establishment of criteria that define the manner in which facilities
upgrade or close, consistent with the standard in section 4004(a), to
ensure there will be no reasonable probability of adverse effects on
health or the environment.
D. What are the incremental costs and benefits of this action?
As noted previously, EPA establishes the requirements under RCRA
sections 1008(a)(3) and 4004(a) without taking cost into account. See,
USWAG, 901 F.3d at 448-49. This action is expected to result in costs
amounting to between $356 million and $413 million per year when
discounting at 3% and 7% respectively.
Of the $413 million per year estimated at a 7% discount rate, $237
million is attributable to the requirements for legacy CCR surface
impoundments, which are subject to the D.C. Circuit's order in USWAG,
$170 million is attributable to the requirements for CCRMU, and $6
million is attributable to requirements for landfills. Of the $356
million per year estimated at a 3% rate, $204 million is attributable
to the requirements for legacy CCR surface impoundments, $146 million
is attributable to the requirements for CCRMU, and $6 million is
attributable to requirements for landfills. The costs of this proposed
rule are discussed further in the RIA, and include the costs of unit
closure, corrective action, fugitive dust controls, structural
integrity inspections, and recordkeeping and reporting. These cost
estimates are subject to a number of limitations and uncertainties, and
EPA has, for example, made the conservative assumption that all
closures will be by removal, which is a simplified but higher-cost
compliance option.
This action is expected to result in monetized benefits amounting
to between $77 million and $49 million per year when discounting at 3%
and 7% respectively, as well as a variety of unquantified benefits of
unknown magnitude. Of the $49 million in annualized monetized benefits
estimated at a 7% discount rate, $30 million is attributable to the
requirements for legacy CCR surface impoundments, $16 million is
attributable to the requirements for CCRMU, and $3 million is
attributable to requirements for landfills. Of the $77 million in
annualized monetized benefits estimated at a 3% discount rate, $47
million is attributable to the requirements for legacy CCR surface
impoundments, $25 million is attributable to the requirements for
CCRMU, and $5 million is attributable to requirements for landfills.
The monetized benefits of this proposed rule are discussed further in
the RIA, and includes partial estimates of the benefits from reduced
incidents of cancer, avoided intelligence quotient (IQ) losses from
mercury and lead exposure and the subsequent reduced need for
specialized education, non-market benefits of water quality
improvements, and the protection of threatened and endangered species.
EPA also monetized the benefits of avoided impoundment failures,
including both ``catastrophic'' failures and smaller-volume releases.
One example of a severe impoundment failure is the Dan River Steam
Station failure which occurred in 2014, when a stormwater drainage pipe
under the inactive surface impoundments at the Dan River Steam Station
caused the inadvertent release of 39,000 tons of CCR directly into the
nearby Dan River. The result high-end estimate of the costs of this
impoundment failure is $300 million. EPA requests comment and data on
other examples of CCR releases from inactive CCR impoundments.
EPA's benefits estimates are subject to a number of limitations and
uncertainties, and many key categories of benefits could not be
quantified or monetized. Unquantified benefits may be of equal or
greater magnitude than quantified benefits but are difficult to
quantify because sufficient data or adequate methodologies are not
available. For example, EPA was only able to quantify the subset of
human health effects for which established dose-response relationships
have been studied and accepted for economic analyses. Consequently, EPA
was unable to quantify most of the human health and ecological benefits
associated with the proposed rule. Specifically, EPA was only able to
quantify the benefits associated with: (1) Reduced incidence of two
kinds of skin cancer \3\ from exposure to arsenic III and V in drinking
water from private wells, and (2) With reduced neurologic and cognitive
damages from exposure to lead and mercury from fish consumption.
However, arsenic is also correlated with liver, lung, bladder, and
kidney cancer,\4\ all of which are associated with higher costs and
higher rates of mortality than the skin cancers used in the quantified
benefits assessments. Similarly, toxins such as thallium, molybdenum,
and lithium are commonly present in CCR,\5\ and as discussed in Unit
IV.B.2 of this preamble, have been detected at statistically
significant levels at several utilities, but because EPA lacks the data
to create dose-response relationships between ingestion rates and
specific health endpoints, EPA could not quantify the associated
benefits in the RIA. A broad overview of specific contaminants and
their likely health effects can be found in Chapter 4 of the RIA and in
Appendix B.
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\3\ EPA evaluated basal cell carcinoma and squamous cell
carcinoma, but was unable to quantify costs associated with Bowen's
disease (or carcinoma in situ), another of the most common forms of
skin cancer.
\4\ U.S. Environmental Protection Agency (2014, December). Human
and ecological risk assessment of coal combustion residuals.
Regulation Identifier Number: 2050-AE81, citing U.S. EPA. IRIS
Chemical Assessment Summary for arsenic, inorganic; CASRN 7440-38-2.
Last updated December 3, 2002.
\5\ Id.
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Another unquantified benefit arises from the expected increase in
severe weather events due to climate change. Many legacy impoundments
and CCRMU are located along rivers or the coast, where they are at risk
of leaking waste and possibly failing when severe weather causes the
units to flood and overtop. The proposed rule will address this
baseline risk by requiring closure
[[Page 31987]]
and corrective action at legacy units and CCRMU. This reduction in risk
yields potentially significant benefits, however the data and
methodology to quantify the base rate and post-rule rate of unit
leakage and failure due to weather related flooding and overtopping are
not available. Thus, this benefit category is unquantified.
Finally, another significant source of unquantified benefits comes
from the protection and remediation of the groundwater contaminated by
a legacy CCR surface impoundment or CCRMU as at many sites this
groundwater is a potential future source of drinking water or other
uses. This is distinct from the benefits associated with reducing the
risks from contaminants migrating into drinking water wells or surface
waters, reduced risks that rely on the presence of a receptor. As EPA
explained in the preamble to the original 1979 regulations, sources of
drinking water are finite, and future users' interests must also be
protected. See, 44 FR 53445-53448.
In the United States, groundwater is the source of drinking water
for about half the total population; it is about 33% of the water that
County and city water departments supply to households and businesses.
It provides drinking water for more than 90% of the rural population
who do not get their water delivered to them from a county/city water
department or private water company.\6\ It also provides over 50
billion gallons per day for agricultural needs. The volume of available
and useable groundwater is decreasing in many areas of the United
States.\7\ A significant number of legacy CCR surface impoundments and
CCRMU are located in areas that, according to the U.S. Geological
Survey (USGS), are experiencing significant groundwater decline and
depletion.\8\ For example, EPA estimates that 8 potential legacy CCR
surface impoundments are located in Iowa, and 20 potential CCRMU are
located in Illinois (12) and Minnesota (8); USGS has estimated that
these areas experienced 10-25 cubic kilometers of cumulative annual
groundwater depletion between 1900 and 2008.\9\ Simply stated, the
resource is becoming more scarce. Commensurately, the value of
groundwater as a resource for agriculture, drinking water, and other
purposes is increasing. In the context of such widespread declines in
the overall availability of this critical resource, this proposed
rule--which will increase the supply of potable water by requiring the
remediation of groundwater contaminated by CCRMU and legacy CCR surface
impoundments, and by preventing further reductions in the supply of
useable groundwater from degradation and contamination from CCRMU or
legacy CCR surface impoundments--is expected to provide significant and
substantial benefits.
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\6\ U.S. Department of the Interior, U.S. Geological Survey,
https://www.usgs.gov/special-topics/water-science-school/science/groundwater-decline-and-depletion.
\7\ Id. at https://www.usgs.gov/special-topics/water-science-school/science/groundwater-decline-and-depletion.
\8\ U.S. Department of the Interior, U.S. Geological Survey,
Groundwater Depletion in the United States (1900-2008), available at
https://pubs.usgs.gov/sir/2013/5079/SIR2013-5079.pdf.
\9\ Id. at 12.
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Neighborhoods located near legacy CCR surface impoundments and
CCRMU are disproportionately occupied by people already vulnerable to
elevated environmental risks. These vulnerable communities face risks
of impoundment failure, groundwater contamination, and fugitive air
emissions. EPA expects these communities would be afforded substantial
protection from the proposed rule. In addition, CCR units, built
without liners and other precautionary measures, may depress property
values in nearby neighborhoods. Improvements in home values resulting
from the proposed rule has the potential to bestow welfare gains to
homeowners located near legacy CCR surface impoundments and CCRMU.
Although EPA has designed its proposal based on its statutory factors
and court precedent and has not relied on this benefit-cost analysis in
the selection of its proposed alternative, EPA believes that after
considering all unquantified and distributional effects, the public
health and welfare gains that will result from the proposed alternative
would justify the rule's costs.
Further information on the economic effects of this action can be
found in Unit VII of this preamble.
III. Background
A. 2015 CCR Rule
On April 17, 2015, EPA finalized national minimum criteria for the
disposal of CCR as solid waste under Subtitle D of RCRA titled,
``Hazardous and Solid Waste Management System; Disposal of Coal
Combustion Residuals from Electric Utilities'' (80 FR 21302) (2015 CCR
Rule). The 2015 CCR Rule, codified in 40 CFR part 257, subpart D,
established regulations for existing and new CCR landfills, as well as
existing and new CCR surface impoundments (including all lateral
expansions of CCR units). The criteria consist of location
restrictions, design and operating criteria, groundwater monitoring and
corrective action requirements, closure and post-closure care
requirements, recordkeeping, notification, and internet posting
requirements.
The 2015 CCR Rule also imposed requirements on inactive surface
impoundments at active facilities. A CCR surface impoundment is a
natural topographic depression, man-made excavation, or diked area,
which is designed to hold an accumulation of CCR and liquids, and
treats, stores, or disposes of CCR. The 2015 CCR Rule defined an
``inactive CCR surface impoundment'' as ``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.'' 40 CFR
257.53. The rule defined ``active facility or active electric utilities
or independent power producers'' as ``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.'' 40
CFR 257.53.
The 2015 CCR Rule did not impose any requirements on inactive
facilities. EPA explained that this was consistent with past decisions
under subtitle C, in which EPA declined to extend permitting
obligations to closed and inactive disposal facilities in light of
specific language in RCRA sections 3004 and 3005, and the practical
difficulties in applying those requirements to inactive facilities
(e.g., the difficulty in identifying owners or other responsible
parties, and in implementing requirements in the absence of an entity
currently engaged in disposal). 80 FR 21344 (April 17, 2015). EPA
further raised concerns that the present owner of the land on which an
inactive site was located might have no connection (other than present
ownership of the land) with the prior disposal activities. Id.
Consequently, EPA exempted those units at Sec. 257.50(e).
B. 2018 USWAG Decision
The 2015 CCR Rule was challenged by several parties, including
coalitions of regulated entities and environmental organizations
(``Environmental Petitioners''). Environmental Petitioners raised two
challenges that are relevant to this proposal. First, they challenged
the provision that allowed existing, unlined surface impoundments to
continue to operate until they exceeded
[[Page 31988]]
the groundwater protection standard. See Sec. 257.101(a)(1). They
contended that EPA failed to show how continued operation of unlined
impoundments met RCRA's baseline requirement that any solid waste
disposal site pose, ``no reasonable probability of adverse effects on
health or the environment.'' 42 U.S.C. 6944(a). Second, Environmental
Petitioners challenged the exemption for inactive surface impoundments
at inactive power plants (i.e., ``legacy ponds''). Environmental
Petitioners argued that legacy ponds are at risk of unmonitored leaks
and catastrophic structural failures.
On August 21, 2018, the U.S. Court of Appeals for the D.C. Circuit
upheld most of the 2015 CCR Rule but decided in favor of Environmental
Petitioners on these two claims. The Court held that EPA acted
``arbitrarily and capriciously and contrary to RCRA'' in failing to
require the closure of unlined surface impoundments \10\ and in
exempting inactive surface impoundments at inactive power plants from
regulation. The Court vacated these provisions and remanded the matter
back to the Agency for further action consistent with its opinion.
USWAG et al. v. EPA, 901 F.3d 414 (D.C. Cir. 2018).
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\10\ The closure of unlined CCR surface impoundments was
addressed in a separate regulatory action that was published on
August 28, 2020 (85 FR 53516).
---------------------------------------------------------------------------
In overturning the exemption for legacy ponds, the Court evaluated
the evidence in the rulemaking record and reached specific conclusions
about the risks that legacy ponds pose. The Court pointed to evidence
that legacy ponds are most likely to be unlined and unmonitored and
that such units have been shown to be more likely to leak than units at
utilities still in operation. 901 F.3d at 432. The Court also
determined that legacy ponds:
. . . pose the same substantial threats to human health and the
environment as the riskiest Coal Residuals disposal methods,
compounded by diminished preventative and remediation oversight due
to the absence of an onsite owner and daily monitoring. See 80 FR at
21343 through 21344 (finding that the greatest disposal risks are
``primarily driven by the older existing units, which are generally
unlined''). Notably, this very Rule was prompted by a catastrophic
legacy pond failure that resulted in a ``massive'' spill of 39,000
tons of coal ash and 27 million gallons of wastewater into North
Carolina's Dan River.
. . .
[T]here is no gainsaying the dangers that unregulated legacy
ponds present. The EPA itself acknowledges the vital importance of
regulating inactive impoundments at active facilities. That is
because, if not properly closed, those impoundments will
``significant[ly]'' threaten ``human health and the environment
through catastrophic failure'' for many years to come. 75 FR at
35,177; see also 80 FR at 21,344 n. 40.
The risks posed by legacy ponds are at least as substantial as
inactive impoundments at active facilities. See 80 FR at 21,343-21,
344 (finding ``no [ ] measurabl[e] differen[ce]'' in risk of
catastrophic events between active and inactive impoundments). And
the threat is very real. Legacy ponds caused multiple human and
environmental disasters in the years leading up to the Rule's
promulgation. See 75 FR at 35,147 (proposed rule discusses multiple
serious incidents). For example, a pipe break at a legacy pond at
the Widows Creek plant in Alabama caused 6.1 million gallons of
toxic slurry to deluge local waterways. Id. Another legacy pond in
Gambrills, Maryland caused the heavy metal contamination of local
drinking water. Id. And the preamble to the Rule itself specifically
points to the catastrophic spill at the Dan River legacy pond in
North Carolina. 80 FR at 21,393-21,394.
Id. at 432-433. Relying on this evidence, the Court concluded there was
no logical basis for distinguishing between the inactive impoundments
at active facilities that were regulated and the legacy impoundments
that were exempt. Id. at 434. Consequently, the Court vacated the
provision of the 2015 CCR Rule that specifically exempted inactive
impoundments at inactive facilities from regulation and remanded the
matter back to EPA for further action consistent with its opinion. See
Sec. 257.50(e). Notwithstanding the vacatur of Sec. 257.50(e), until
EPA amends the regulations to effectuate the Court's order, facilities
are not legally obliged to take any action to comply with the federal
CCR regulations. This is because, as currently drafted, Sec. 257.50 of
the federal CCR regulations is not applicable to inactive surface
impoundments at inactive facilities.
C. 2020 Advance Notice of Proposed Rulemaking
On October 14, 2020, EPA published an Advance Notice of Proposed
Rulemaking (ANPRM) (85 FR 65015). In that action, EPA requested
information related to ``legacy'' CCR surface impoundments to inform a
future rulemaking. The Agency requested input on its regulatory
authority, input on a potential definition of a legacy CCR surface
impoundment and specific information on the types of inactive surface
impoundments at inactive facilities that might be considered legacy CCR
surface impoundments. Specifically, EPA requested information on how
many of these units exist, the current status of these units (e.g.,
capped, dry, closed according to state requirements, still holding
water), and the names, locations, and closure dates of former power
plants that may have these units. Finally, the Agency took comment on
which CCR regulations should apply to legacy CCR surface impoundments
and on suggestions for compliance deadlines.
During the 60-day public comment period, the Agency received over
15,000 comments from environmental groups, four states, one tribe,
individual utilities, and industry trade associations. The topics
raised in comments included a potential definition of a legacy CCR
surface impoundment, EPA's regulatory authority, the scope and
applicability of the legacy impoundment rule, and regulatory
requirements to propose. Moreover, the comments generally agreed that
EPA must prescribe timeframes for coming into compliance with the
regulations and they recommended timeframes that are shorter than
compliance timeframes in the 2015 CCR Rule. The remaining comments
received are discussed in subsequent units of this preamble.
As noted, EPA took comment on whether, in light of the Court's
opinion in USWAG, the Agency could reconsider whether it has the
authority to regulate inactive impoundments under RCRA subtitle D. 85
FR 65017-65018 (Oct 14, 2020). The general consensus from commenters on
the ANPRM was that, because the Court resolved the question based on
the plain meaning of the statute, EPA does not have the discretion to
reinterpret its authority. In addition, no commenter identified a
factual basis for not regulating legacy CCR surface impoundments that
addressed the Court's concern about the risks these units pose. Id. at
65018. Consequently, EPA is not revisiting the question of whether it
may regulate inactive or legacy CCR surface impoundments.
IV. What is EPA Proposing?
In response to the USWAG decision, EPA is proposing to include a
provision at Sec. 257.50(e), specifying that inactive surface
impoundments at inactive facilities (``legacy CCR surface
impoundments'') are subject to 40 CFR part 257, subpart D. EPA is also
proposing that owners and operators of legacy CCR surface impoundments
comply with all the appropriate requirements applicable to inactive CCR
surface impoundments at active facilities. Specifically, EPA is
proposing that owners and operators of legacy CCR surface impoundments
comply with the following existing requirements in the CCR regulations:
structural stability assessments, air criteria, inspections,
[[Page 31989]]
groundwater monitoring and corrective action, closure and post-closure
care, recordkeeping, and notification and publicly accessible internet
site requirements. EPA is further proposing to establish different
compliance deadlines for these newly applicable regulatory requirements
to ensure the owners and operators of these units have time to come
into compliance.
In addition to the revisions EPA is proposing to address the USWAG
decision, EPA is proposing to establish requirements to address the
risks from currently exempt solid waste management that involves the
direct placement of CCR on the land.\11\ EPA is proposing to extend a
subset of the existing requirements in part 257, subpart D to CCR
surface impoundments and landfills that closed prior to the effective
date of the 2015 CCR Rule, inactive CCR landfills, and other areas
where CCR is managed directly on the land. In this proposal, EPA refers
to these as CCR management units, or CCRMU. This proposal would apply
to all existing CCR facilities and all inactive facilities with legacy
CCR surface impoundments subject to this proposed rule.
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\11\ Regulated CCR units consist of new and existing landfills
and surface impoundments, including any lateral expansion of these
units, as well as inactive CCR surface impoundments and legacy CCR
surface impoundments.
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Lastly, EPA is proposing to make several technical corrections to
the CCR regulations. These are (1) to clarify the definitions of
``feasible'' and ``technically feasible''; (2) to correct the CFR
reference in the definition of wetlands at Sec. 257.61(a); (3) to
correct a reference in the groundwater monitoring scope section; (4) to
standardize the references to CCR websites throughout the CCR
regulations; and (5) EPA is taking comment on extending the period for
document retention and posting.
A. Legacy CCR Surface Impoundment Requirements
The Agency is proposing that the existing requirements of the CCR
regulations in 40 CFR part 257, subpart D that apply to inactive CCR
impoundments at active facilities would apply to legacy CCR surface
impoundments, except for the location restrictions and liner design
criteria. EPA is also proposing to establish new requirements to
address issues specific to legacy CCR surface impoundments. Finally,
EPA is proposing to establish new compliance deadlines for legacy CCR
surface impoundments.
1. Scope--Definition of Legacy CCR Surface Impoundments
EPA received numerous comments on three options for defining legacy
CCR surface impoundments in the ANPRM. The Agency considered those
comments, as well as the other information available to EPA in the
record and the USWAG decision in developing this proposal. Based on
EPA's review, the Agency is proposing to define a legacy CCR surface
impoundment as ``a surface impoundment that is located at a power plant
that ceased generating power prior to October 19, 2015, and the surface
impoundment contained both CCR and liquids on or after the effective
date of the 2015 CCR Rule (i.e., October 19, 2015).'' This Unit of the
preamble also responds to comments questioning how EPA intends to
interpret ``contains liquids and CCR'' and ``inactive facility.''
a. Legacy CCR Surface Impoundment--Date for Determining Applicability.
As previously explained, the 2015 CCR Rule exempted ``inactive
surface impoundments at an inactive facility'' and provided definitions
of an ``inactive CCR surface impoundment'' and an ``active facility or
active electric utility.'' See 80 FR 21469-21471. Thus, in developing a
definition of a legacy CCR surface impoundment two separate components
need to be addressed: (1) The definition of an ``inactive CCR surface
impoundment,'' and (2) The definition of an ``inactive facility or
electric utility.'' EPA relied on the existing definitions of an
inactive CCR surface impoundment and an active facility or active
electric utility, as well as the USWAG decision to inform the options
provided in the ANPRM. See 80 FR 21469-21471. Specifically, both terms
establish applicability based in part on the effective date of the 2015
CCR Rule--a unit is an ``inactive CCR surface impoundment'' if it does
not receive CCR on or after October 19, 2015, and still contains both
CCR and liquids on October 19, 2015, and an ``active facility or active
electric utilities or independent power producers'' is only active if
it was in operation on October 19, 2015. 40 CFR 257.53. Thus, the ANPRM
sought comment on whether to define a legacy CCR surface impoundment
as: A surface impoundment that is located at a power plant that ceased
generating power prior to October 19, 2015, and
Option 1--the surface impoundment contained both CCR and
liquids on the effective date of the 2015 CCR Rule (i.e., October 19,
2015); or
Option 2--the surface impoundment contained both CCR and
liquids on the date the Court issued its mandate for the August 21,
2018, court decision (i.e., October 15, 2018); or
Option 3--the surface impoundment contains both CCR and
liquids on the date EPA issues a final rule bringing legacy CCR surface
impoundments under the federal regulations.
i. Description of the ANPRM Options
Option 1 was based on October 19, 2015, which is the effective date
of the 2015 CCR Rule. Under this approach a CCR surface impoundment at
an inactive facility or electric utility that contained both CCR and
liquids on October 19, 2015, would be regulated as a legacy CCR surface
impoundment. Impoundments that contained both CCR and liquids prior to
October 19, 2015, but not after this date, would not be subject to the
new requirements under this option (e.g., the facility took actions
prior to October 19, 2015, to permanently remove liquids from the
unit).
The first option is based on the Court's finding in the USWAG
decision that there was no basis in the record on which to
differentiate between legacy CCR surface impoundments and inactive CCR
surface impoundments at active facilities in the 2015 CCR Rule. In the
decision, the Court concluded there was no logical basis for
distinguishing between inactive impoundments at active facilities that
were regulated and inactive impoundments at inactive facilities that
were exempt, and therefore vacated the exemption for legacy CCR surface
impoundments in Sec. 257.50(e). In the regulations, an inactive CCR
surface impoundment at an active facility is defined as 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.''
Thus, under Option 1 the date the unit contained both CCR and liquids
used in the definition of a legacy CCR surface impoundment would be
identical to that used for inactive impoundments at active facilities,
that is, October 19, 2015.
Option 2 was based on October 15, 2018, which is the date the Court
issued the mandate for the USWAG decision that vacated and remanded the
regulatory provision exempting legacy CCR surface impoundments from the
CCR regulations. Under this approach a CCR surface impoundment at an
inactive facility or electric utility that contained both CCR and
liquids on October 15, 2018, would be regulated as
[[Page 31990]]
a legacy CCR surface impoundment. Impoundments that contained both CCR
and liquids prior to October 15, 2018, but not after this date, would
not be subject to the new requirements under this option (e.g., the
facility took actions prior to October 15, 2018, to permanently remove
liquids from the unit).
Option 3 was based on the effective date of a final rule bringing
legacy CCR surface impoundments under the federal CCR regulations.
Under this approach a CCR surface impoundment at an inactive facility
or electric utility that contained both CCR and liquids on the
effective date of the final rule would be regulated as a legacy CCR
surface impoundment. Impoundments that contained both CCR and liquids
prior to the effective date of the final rule, but not after this date,
would not be subject to the new requirements.
Underpinning Option 3 is the concept that it may be difficult for
some owners and operators of inactive facilities to determine whether a
legacy CCR surface impoundment at its facility previously contained
both CCR and liquids at a specific point in the past. For example,
under Options 1 and 2, the demarcation date in the definition will be
approximately nine and six years in the past, respectively, at the time
the final rule is anticipated to be published and effective.
Furthermore, the third option could eliminate possible regulatory
confusion for legacy CCR surface impoundments that contained liquids
and CCR on the demarcation date specified in the definition (e.g.,
October 19, 2015, under Option 1) but are subsequently closed by the
effective date of the final rule. An example of this situation using a
cutoff date based on Option 1 would be a legacy CCR surface impoundment
that was closed by removal of CCR in 2020. Under Option 3 the legacy
CCR surface impoundment in this example would not be subject to the new
rulemaking requirements because it did not contain both CCR and liquids
on or after the effective date of the legacy CCR surface impoundment
final rule.
Of the three options discussed in the ANPRM, EPA believes that
Option 1 is arguably the most consistent with the USWAG decision and
the most protective option. As discussed in the preceding Unit, the
Court expressly found that EPA's record for the 2015 CCR Rule
demonstrated that legacy ponds ``pose the same substantial threats to
human health and the environment as the riskiest Coal Residuals
disposal methods, compounded by diminished preventative and remediation
oversight due to the absence of an on-site owner and daily
monitoring.'' 901 F.3d at 432. Under Option 1 there would be no
distinction between legacy CCR surface impoundments and the currently
regulated inactive impoundments at active facilities. In addition, the
intended effect of a vacatur is to restore the status quo, to what it
would have been if the vacated provision had never existed. Here, that
means legacy CCR surface impoundments would have been regulated by the
2015 CCR Rule. By choosing to vacate the provision, rather than
remanding it back to the Agency, the Court made clear that its intent
was for these units to immediately be subject to regulation. The fact
that the vacatur did not achieve that does not change the court's
intent.
ii. What comments did EPA receive on the options?
Summary of Comments on Option 1. Some commenters stated that
inactive surface impoundments at inactive facilities should be treated
no differently than active and inactive surface impoundments at active
facilities. These commenters therefore supported Option 1 and explained
that the regulations should similarly apply to inactive impoundments at
inactive facilities containing CCR and liquids on October 19, 2015.
Other commenters opposed Option 1 because they considered that it would
represent the retroactive application of regulations and, in some
cases, the application of fundamentally inapplicable requirements to
units that are no longer surface impoundments because they no longer
contain CCR and/or liquids. These commenters identified impoundments
that have been dewatered, excavated, and closed pursuant to state
oversight as an example of impoundments that would not be appropriate
candidates for subsequent regulatory requirements because these units
are no longer functioning as impoundments based on actions taken by
facilities since October 19, 2015.
Other commenters stated that the definition for Option 1 (as well
as Options 2 and 3) was too narrow and fails to address the universe of
inactive impoundments at inactive facilities that pose a reasonable
probability of adverse effects on health or the environment from the
disposal of CCR. According to the comments, this is because Option 1
conditions regulation of legacy CCR surface impoundments on arbitrary
dates on which the impoundments contained both CCR and liquids. These
commenters stated that the definition must include high-risk
impoundments (such as impoundments located in floodplains and unstable
areas and units with bases inundated by groundwater), regardless of age
or condition, because of the likelihood that they are causing or will
cause adverse effects to health and the environment, including
impoundments located in floodplains and unstable areas and units with
bases inundated by groundwater. In addition, the commenters state that
the definition of a legacy CCR surface impoundment must include units
that were not closed in a manner consistent with the regulations
because a unit without a sufficient final cover system will allow
precipitation into the unit and will produce leachate.
Summary of Comments on Option 2. No commenters exclusively
supported Option 2 over the other two options discussed in the ANPRM.
Commenters disfavoring Option 2 did so for the same reasons as
summarized for Option 1, largely stating that Option 2 ignores the
current status of legacy CCR surface impoundments, inaccurately
assesses current risks from these units, and disregards work and
actions taken by facilities since August 21, 2018 (e.g., removal of
waste from the units, closure of the units). In addition, other
commenters stated that Option 2 fails to meet the RCRA protectiveness
standard for reasons discussed under Option 1.
Summary of Comments on Option 3. Several commenters supporting
Option 3 stated that the definition of legacy CCR surface impoundments
should be based on the scope of units identified in the 2018 USWAG
decision. These commenters explained that the Court was concerned with
the risks associated with lack of regulatory oversight over inactive
CCR surface impoundments that contain impounded water, and therefore
EPA's definition of a legacy CCR surface impoundment should similarly
be those impoundments containing CCR and liquids on the effective date
of the legacy CCR surface impoundment final rule. Finally, commenters
stated that it is both impractical and unnecessary to look backwards to
determine the historic regulatory status of a unit (e.g., to determine
whether the impoundment contained CCR and liquids at a particular
time), or to require impoundments that have already closed to re-close
under this rulemaking.
Some commenters said that Option 3 would avoid inclusion of
effectively dry impoundments that are similar to inactive CCR
landfills, which are not regulated under the 2015 CCR Rule. Another
commenter stated that units maintained by its members provide good
examples of units that it believed
[[Page 31991]]
would not be appropriate candidates for new federal CCR regulation as
legacy CCR surface impoundments. For instance, the commenter pointed to
the units at the Riverbend Steam Station in Mount Holly, North
Carolina, which the commenter stated underwent dewatering from 2014
through 2019 as part of the excavation process. In accordance with the
facility's NPDES permit, the water was pumped to the on-site wastewater
treatment facility for eventual discharge to the adjacent waterbody.
Ash removal began in 2015 and was completed in 2019. The two ash basins
at the Riverbend Steam Station have been excavated, and the dams for
the facility's primary and secondary ash basins have been removed.
According to the commenter, groundwater monitoring subject to state
regulations and state-approved closure plans is ongoing. Finally, the
commenter stated that the site has been regraded and seeded with grass.
The commenter also pointed to Scholz Electric Generating Plant in
Sneads, Florida, which has a 40-acre unit that was retired in April
2015 and ceased receipt of waste in 2015. According to the commenter,
the facility is currently in its third year of closure construction and
is subject to a June 2015 court-approved settlement agreement for
closure as well as an August 2016 closure plan approved by the Florida
Department of Environmental Protection.
The commenter also referenced the ash slurry settling ponds at the
active Coronado Generating Station located in Saint Johns, Arizona.
According to the commenter, the ponds, which are approximately 87 acres
in size, were constructed in the mid-2000s and operated until early
2010 when the facility ceased placement of CCR material in the ponds.
When in use, the ponds were utilized for CCR and non-CCR waste
disposal, non-recyclable plant wastewater, scrubber sludge, and fly
ash, all of which were wet sluiced to the ponds. The commenter stated
that closure of the ponds was completed in April 2019 in accordance
with all applicable State of Arizona Aquifer Protection Permitting
(APP) rules, and all required CCR and APP documentation have been
posted to the CCR public website and submitted to the Arizona
Department of Environmental Quality (ADEQ). The commenter also stated
that the ponds are currently in post-closure care in accordance with
ADEQ APP regulations, including groundwater monitoring and reporting
that will continue for 30 years from the date of closure. According to
the commenter, none of these units are currently functioning as ponds,
and therefore regulating these types of units at inactive plants would
represent a retroactive application of inapplicable and redundant
requirements. The commenter further stated that many utilities are in
the process of dewatering and closing additional legacy CCR surface
impoundments as part of a comprehensive, fleetwide ash basin closure
program.
iii. Response to Comments and Proposed Option
As noted above, the Agency is proposing to define a legacy CCR
surface impoundment, in part, as a surface impoundment that contained
both CCR and liquids on or after October 19, 2015. Of the three options
discussed in the ANPRM, EPA believes that Option 1 is the most
consistent with the USWAG decision. As discussed in the preceding Unit,
the Court expressly found that EPA's record for the 2015 CCR Rule
demonstrated that legacy ponds ``pose the same substantial threats to
human health and the environment as the riskiest Coal Residuals
disposal methods, compounded by diminished preventative and remediation
oversight due to the absence of an on-site owner and daily
monitoring.'' 901 F.3d at 432. Under Option 1 there would be no
distinction between legacy CCR surface impoundments and the currently
regulated inactive impoundments at active facilities. In addition, the
intended effect of a vacatur is to restore the status quo, to what it
would have been if the vacated provision had never existed. Here, that
means legacy CCR surface impoundments would have been regulated by the
2015 CCR Rule. By choosing to vacate the provision, rather than
remanding it back to the Agency, the Court made clear that its intent
was for these units to immediately be subject regulation. The fact that
the vacatur did not achieve that does not change the Court's intent.
In addition, EPA is not persuaded by the commenters' objections to
this option. EPA disagrees that reliance on the effective date of the
2015 CCR Rule would constitute a retroactive application of law. For a
regulation to be retroactive, it must change the prior legal status or
consequences of past behavior. See Landgraf v. USI Film Products, 511
U.S. 244, 269, n.4 (1994) (A rule ``is not made retroactive merely
because it draws upon antecedent facts for its operation.''); Treasure
State Resource Industry Ass'n v. E.P.A., 805 F.3d 300, 305 (D.C. Cir.
2015). By contrast, here EPA is merely proposing to rely on a past fact
to support the future application of regulations. And because EPA is
proposing to establish future compliance dates, no facility would be
subject to penalties solely because one of its legacy CCR surface
impoundments was out of compliance with the regulatory requirements
prior to the effective date of a rule finalizing this proposal.
EPA also disagrees that the proposed requirements fail to account
for the current characteristics of some of these units. The fact that
some utilities have begun to close, or even completed closure does not
necessarily resolve the risks these units can pose to groundwater. The
record shows that significant numbers of CCR surface impoundments were
constructed such that the base of the unit intersects with groundwater,
and that many ``closed'' impoundments, even those closed in accordance
with state permits, continue to impound water below the water table
(i.e., contain liquid). The risks associated with such closures can be
substantial (see Unit IV.B.1.b of this preamble for more information).
Also, as discussed below in further detail, EPA is proposing that units
that can demonstrate that they have met the performance standards for
closure by removal in Sec. 257.102(c) would be subject to no further
requirements.
Finally, EPA recognizes that in some instances it may take some
work to determine whether a surface impoundment previously contained
both CCR and liquids on or after October 19, 2015. However, owners and
operators of inactive power plants will be able to rely on operating
records from when the power plant was operational, such as aerial
photography, construction or inspection reports, groundwater monitoring
data and employee testimonials to determine whether the impoundment
contained both CCR and liquids on October 19, 2015.
Nevertheless, EPA also continues to consider, as an alternative,
defining a legacy CCR surface impoundment as a CCR surface impoundment
that no longer receives CCR but contains both CCR and liquids on or
after the effective date of the final rule. This option would be the
easiest to implement. Based on the Agency's interpretation of what it
means ``to contain liquid'' this option would at most only exclude the
29 units \12\ that may have completed clean closure in accordance with
the performance standards in Sec. 257.102(c) or have taken steps to
remove all free
[[Page 31992]]
liquids, including groundwater, and address infiltration. and would
therefore be equivalent to inactive landfills. While the latter
category could still present the risk of contaminating groundwater, it
is possible those risks could potentially be addressed by the proposed
expansion of groundwater monitoring, corrective action, and closure
obligations applicable to CCR management units. EPA therefore requests
further comment on this option.
---------------------------------------------------------------------------
\12\ This information can be found in the document titled
``Potential Legacy CCR Surface Impoundments'' in the docket for this
action.
---------------------------------------------------------------------------
b. Legacy CCR Surface Impoundment--Contains Both Liquid and CCR
In response to EPA's ANPRM, some commenters stated that the phrase
``contain[ing] both CCR and liquids'' is impermissibly vague. These
commenters believe that while it is clear that impoundments that
currently contain visible, standing water would fit this definition,
they are concerned that arguments can be made that the definition does
not include those units whose bases are in contact with groundwater or
that no longer have standing water at the surface. Other commenters
stated that more clarity is required regarding the definition of a
legacy CCR surface impoundment. Finally, several commenters argued that
EPA should not limit its regulation to units that contain water, but
should expand the regulation to apply to all CCR units.
i. What does it mean to contain liquid?
The ANPRM suggested that EPA would only revisit the date on which
the determination would be made as to whether the impoundment contains
both CCR and liquids. EPA did not indicate that the Agency intended to
propose to limit or revise the existing requirement that in order to be
considered an inactive CCR surface impoundment, the unit must contain
both liquid and CCR. 40 CFR 257.53. However, as noted above, commenters
have raised concerns that the existing definition is ambiguous and have
raised questions about how these existing regulations apply to a number
of factual scenarios. Specifically, commenters questioned whether the
term ``liquids'' includes free water, porewater, standing water, and
groundwater in CCR units.
The part 257 regulations do not include a definition of the term
``liquids.'' 40 CFR 257.53. Neither does RCRA define the term. See, 42
U.S.C. 6903. EPA therefore relies upon dictionary definitions to
interpret the regulation. For example, Merriam-Webster defines it as
``a fluid (such as water) that has no independent shape but has a
definite volume and does not expand indefinitely and that is only
slightly compressible.'' Similarly, liquid (in physics) can be defined
as one of the three principal states of matter, intermediate between
gas and solid. The most obvious physical properties of a liquid are its
retention of volume and its conformity to the shape of its container.
Liquid can flow, and when a liquid substance is poured into a container
or vessel, it takes the shape of that vessel, and will remain that way
if conditions are unchanged (e.g., the substance stays in the liquid
state). Furthermore, when a liquid is poured from one vessel to
another, it retains its volume (if there is no vaporization or change
in temperature) but not its shape. These properties serve as useful
criteria for distinguishing the liquid state from the solid and gaseous
states.
In the realm of CCR surface impoundments, several types of liquids
may be present in a CCR unit. For example, among others, this may
include water that was sluiced into the impoundment along with the CCR,
which may be found as free water ponded above the CCR or porewater
intermingled with the CCR, or surface water and groundwater that has
migrated into the impoundment due to the construction of the unit.
Based on the regulatory terms, the structure, and context in which the
terms are employed, as well as the dictionary definitions of
``liquid,'' above, and the fact that nothing in the regulatory
definition limits the source of the liquid, EPA considers free water,
porewater, standing water, and groundwater to be liquids under the
existing regulation. Moreover, the source of the liquid is not
important with respect to its basic and fundamental designation as a
liquid. It therefore does not matter whether the liquid in the surface
impoundment comes from the rain, waters the facility deliberately
places in the unit, floodwaters from an adjacent river, or from
groundwater--all are liquids, and once present in the unit, they have
the same potential to create leachate (another type of liquid), as well
as to contribute to hydraulic head and drive flows driven by hydraulic
gradients.
Commenters questioned whether the existing definition of an
inactive CCR surface impoundment would cover a surface impoundment
where, prior to October 19, 2015, the facility has decanted the surface
water, but, because the base of the impoundment intersects with the
aquifer, water continues to flow through the impoundment and permeate
the waste in the base of the unit. Commenters also questioned whether
any of the following would also be covered: (a) Impoundments that
contained CCR and liquids in the past but are now closed, (b)
Impoundments that contained CCR and liquids in the past but will be in
the process of closing by the effective date of the legacy rulemaking,
and (c) Impoundments that once contained CCR and liquids but have been
fully dewatered and are now maintained so as to not contain liquid.
The critical issue in these questions is whether on or after the
relevant date in the regulation these units ``contain'' liquid.
``Contains'' means ``to have or hold (someone or something) within''
(e.g., Oxford English Dictionary, Merriam-Webster). Accordingly, an
impoundment ``contains'' liquid if there is liquid in the impoundment,
even if the impoundment does not prevent the liquid from migrating out
of the impoundment. In other words, it ``contains'' water if it has
water within, even if it does not completely restrain the water within
the unit.
A surface impoundment that, on or after October 19, 2015, has only
decanted the surface water would normally still contain liquid if waste
is saturated with water. To the extent the unit still contains liquids,
it would be covered by the existing definition of an inactive
impoundment. Under this proposed rule, such units would also be
considered legacy CCR surface impoundments when located at inactive
facilities. This would apply whether the unit is considered ``closed''
under state law, is in the process of closing, or whether at some
subsequent point, the unit is fully dewatered and no longer contains
liquid.
To determine whether an impoundment has only been partially
dewatered, EPA relies on the dewatering requirement found in the
closure performance standard at Sec. 257.102(d)(2)(i) (``Free liquids
must be eliminated by removing liquid wastes or solidifying the
remaining wastes and waste residues''). Both the definition of an
inactive CCR surface impoundment and the closure performance standard
are designed to address the same issues (the presence or removal of
liquid wastes) and are designed for the same purpose (to ensure the
risks from the co-management of CCR and liquid are adequately
addressed). Under the closure performance standard, a facility must
eliminate both the standing liquid in the surface of the impoundment
and the separable porewater in any sediment located in the base of the
impoundment. Free liquids are defined at Sec. 257.53 to mean ``liquids
that readily separate from the solid portion of a waste under ambient
temperature and pressure.'' This definition encompasses both
[[Page 31993]]
standing liquids in the impoundment as well as porewater in any
sediment or CCR. The regulation does not differentiate between the
sources of the liquid in the impoundment (e.g., surface water
infiltration, sluice water intentionally added, groundwater intrusion).
This is further supported by the fact that the performance standard at
Sec. 257.102(d)(2)(i) was modeled on the regulations that apply to
interim status hazardous waste surface impoundments, which are codified
at Sec. 265.228(a)(2)(i). Available guidance on these interim status
regulations clarifies that these regulations require both the removal
of standing liquids in the impoundment as well as sediment dewatering.
See ``Closure of Hazardous Waste Surface Impoundments,'' publication
number SW-873, September 1982. See also, Final Decision on Request For
Extension of Closure Date Submitted by Gavin Power, LLC, 87 FR 72989
(November 15, 2022).
Accordingly, units that contain both CCR and liquids from any
source, including those specifically identified above, after the
relevant date would be considered inactive CCR impoundments, consistent
with the existing regulations. Although EPA considers that the term
``liquids'' is sufficiently clear that a definition is not necessary,
EPA requests comment on whether it would be useful to include a
regulatory definition of liquids.
Under the existing regulations, an impoundment that did not contain
liquids prior to the effective date of the 2015 CCR Rule, whether
because it was closed in accordance with existing state requirements or
for other reasons, is not an inactive impoundment. Similarly, a unit
that still contains CCR and liquid after the relevant effective date
would still be considered an inactive unit even if it was closed in
accordance with the requirements in effect at the time (e.g., has a
cover). EPA is not proposing to revise this for inactive impoundments,
and for consistency, EPA is proposing that the same would hold true for
legacy CCR surface impoundments, whatever date EPA ultimately selects
for the definition.
However, EPA also received comments in response to the ANPRM
stating that available groundwater monitoring data demonstrates that
CCR landfills (whether active or inactive) are just as likely to
contaminate groundwater as CCR surface impoundments (legacy or
otherwise). Accordingly, the commenters argue that EPA should regulate
all CCR units, without regard to whether they contain liquid.
EPA is not proposing to expand the definition of a legacy CCR
surface impoundment to include units that contain no liquid. Units that
contain liquid present different risks than those that do not, and the
applicable requirements should differentiate among them accordingly on
that basis. While EPA acknowledges that inactive landfills can still
present the risk of contaminating groundwater, it is possible those
risks could potentially be addressed by this rule's proposed expansion
of groundwater monitoring, corrective action, and closure obligations
to CCR management units. EPA acknowledges that its current proposal
would not regulate every inactive CCR landfill, e.g., it would not
address any inactive landfill located at an inactive utility that did
not also have an inactive CCR surface impoundment, but it is unclear
how many of such units exist, and whether there are any reasons that
the risks from these units may differ from those that EPA is proposing
to regulate. EPA therefore requests comment on these issues.
i. What does it mean to ``contain'' CCR?
Under the existing regulation, an inactive CCR surface impoundment
must contain CCR to be subject to the rule. 40 CFR 257.53. EPA is not
proposing to revise that aspect of the term's definition. Consequently,
EPA is proposing that a legacy impoundment that has closed by removal
in accordance with the performance standards in Sec. 257.102(c) before
the relevant date would not be considered an inactive CCR surface
impoundment. EPA is proposing that facilities with such a unit would
only be required to post documentation that they have met the existing
standard for closure by removal in Sec. 257.102(c) on their CCR
website. EPA is also proposing, however, that an impoundment at an
inactive facility still undergoing closure by removal on the relevant
date would be considered a legacy CCR surface impoundment subject to
the final rule requirements. Depending on when the impoundment
completes closure, some individual requirements may no longer be
applicable to the legacy CCR surface impoundment (i.e., when the
compliance date in the final rule falls after the date closure is
completed for the impoundment); but EPA has no basis for concluding
that a legacy CCR surface impoundment that is still in the process of
closing poses no risk.
A commenter asserted that EPA's authority under RCRA only extends
to those impoundments where solid waste is still being ``disposed of''
at such inactive sites. According to the commenter, EPA's authority
ends once the solid waste is removed from the inactive impoundment. The
commenter cites the USWAG decision to support this interpretation,
noting that the Court states that an impoundment regulated under RCRA
includes:
any facility . . . where solid waste still ``is deposited,'' ``is
dumped,'' ``is spilled,'' ``is leaked,'' or ``is placed,''
regardless of when it might have originally been dropped off.'' See
42 U.S.C. 6903(3), (14). . . A site where garbage ``is disposed of''
is the place where garbage is dumped and left. The status of the
site does not depend on whether or not more garbage is later piled
on top. A garbage dump is a garbage dump until the deposited garbage
is gone.
The commenter concludes that, following the Court's logic, a legacy
CCR surface impoundment is regulated under RCRA because CCR is
currently deposited and stored at the site, but it remains an
impoundment regulated under RCRA only during the time CCR is actually
being stored at the site. According to the commenter, once all the CCR
is removed from the impoundment and the impoundment site has achieved
clean closure status according to state regulators, no CCR is being
disposed as a solid waste at the site and consequently the impoundment
is no longer subject to federal CCR regulation under Subtitle D of
RCRA. By contrast, another commenter relied on the USWAG decision to
conclude that EPA must regulate all legacy CCR surface impoundments
unless the facility demonstrates that the unit has complied with the
requirements in Sec. 257.102(c). According to the commenter, the Court
explained that ``the statute creates a binary world: A facility is a
permissible sanitary landfill, or it is an impermissible open dump. The
EPA regulates both. The timing or continuation of disposal is
irrelevant.''
EPA agrees that it no longer has jurisdiction over a former unit
that has closed by removal in accordance with Sec. 257.102(c). Once
those standards have been met, no CCR ``still `is deposited,' `is
dumped,' `is spilled,' `is leaked,' or `is placed.''' This is
consistent with EPA's proposal to require the owner or operator to
document that the unit has closed in accordance with Sec. 257.102(c),
but to impose no requirements on such units.
Nevertheless, EPA is unable to accept the suggestion that EPA
exempt legacy CCR surface impoundments that have met state requirements
for clean closure. The commenter did not provide any information about
any of the state requirements they reference, or otherwise provide
information that would allow EPA to evaluate how the
[[Page 31994]]
individual state requirements compare to Sec. 257.102(c). Based on the
current record EPA can only support a determination that units that
have clean closed since 2015 under a state CCR permit program meet the
closure requirements in Sec. 257.102(c) for those facilities operating
under a permit issued pursuant to one of the three approved state CCR
permit programs (Oklahoma, Georgia, and Texas). Moreover, in RCRA
section 4005(d)(1) Congress established specific standards and mandated
the process for EPA to determine that state requirements should operate
in lieu of the federal. Under those provisions, a state can apply to
obtain authorization from EPA to operate its program (either in whole
or in part) in lieu of the federal requirement by demonstrating that
either of the standards in RCRA section 4005(d)(1)(B) has been met.
Relying on that congressionally mandated process, rather than this
rulemaking, is the appropriate route to address the commenters'
concerns about duplication between federal and state requirements.
EPA acknowledges that since the 2015 CCR Rule and the USWAG
decision some units have closed or have begun to close in accordance
with state permits. The Agency is also aware of units that closed on
their own initiative in response to the D.C. Circuit's ruling. In
response to the ANPRM, EPA received information that since October 19,
2015, 22 surface impoundments at inactive facilities have closed by
removal, and 27 surface impoundments have closed with waste in place,
either with oversight from a state agency or on their own initiative in
response to the USWAG decision. A number of commenters claimed that
their units are heavily vegetated or developed and that reopening or
other removal/remediation activities may disrupt current use of the
land. It may well be that some old units are heavily vegetated.
However, no commenter submitted any data or analysis to demonstrate
that, over the long term, removal or remediation activities would be
more detrimental to health and the environment than either cleaning up
the contaminated groundwater or taking measures to prevent the legacy
CCR surface impoundment from contaminating groundwater.
Moreover, the fact that some impoundments have become heavily
vegetated or redeveloped does not resolve the risks these unlined
legacy CCR surface impoundments continue to pose. At a minimum, the
record shows that significant numbers of CCR surface impoundments were
constructed such that the base of the unit intersects with groundwater,
and that many inactive, or even ``closed,'' impoundments continue to
impound water below the water table (i.e., contain liquid). The risks
associated with such closures can be substantial. See Unit IV.B.1.b of
this preamble for more information. Consequently, based on the current
record, EPA could not support an exemption for units that still contain
both liquid and CCR even if the closure or remediation may disrupt the
current use of the land.
c. Inactive Facility
Consistent with USWAG, EPA is proposing to regulate all inactive
CCR surface impoundments at inactive utilities. To support this
decision, EPA is proposing to define an inactive utility (or inactive
facility) as one that ceased producing electricity prior to October 19,
2015. This date is the effective date of the 2015 CCR Rule. This is
also the same date currently used in the regulation to define ``active
facility,'' and that EPA originally used to define the exempted units.
Use of this date would mean that the same universe of units that were
subject to the original exemption would be regulated. This is
consistent with the Court's vacatur, as vacatur is intended to restore
the status quo ante, as though the vacated provision never existed.
This definition is important to identify which facilities have
legacy CCR surface impoundments and therefore are subject to these
proposed regulations. EPA is relying on the existing rulemaking record
and provisions in Sec. 257.50(b) to draw conclusions about the
production of power such that an inactive facility contains ``units
that dispose or otherwise engage in solid waste management of CCR
generated from the combustion of coal at electric utilities and
independent power producers,'' and from Sec. 257.50(c), which says
``electric utilities or independent power producers, regardless of the
fuel currently used at the facility to produce electricity.'' EPA is
also relying on the existing definition of ``facility'' which means
``all contiguous land, and structures, other appurtenances, and
improvements on the land, used for treating, storing, disposing, or
otherwise conducting solid waste management of CCR. A facility may
consist of several treatment, storage, or disposal operational units
(e.g., one or more landfills, surface impoundments, or combinations of
them).''
Ownership and the ability to identify those responsible for
complying with these regulations is a key consideration for the
proposed definition of an inactive facility. EPA analyzed the list of
inactive CCR facilities provided in the ANPRM comments and conducted
additional research to determine the owner of those facilities. To
identify the owners of legacy CCR surface impoundments, EPA conducted a
two-tiered research process. First, EPA conducted a general search that
included desktop research, with a focus on news articles and trade
publications regarding plant closures and ownership transfers, to
identify the most recent identified owner of each former plant. Where
possible, EPA confirmed the findings with utility websites, which often
contain information on retired or converted plants, and often have
corporate timelines that identify transfer of properties to other
parties. In addition, where possible, when EPA identified an owner, the
Agency attempted to confirm that the property or plant was listed on
the owner's website. If information could not be confirmed, EPA
continued researching until all other entities that could potentially
currently own the plant could be ruled out. Second, EPA ran these
identified owners through the Dun & Bradstreet Hoover's database to
identify the ultimate corporate parent of the identified owner. The 156
legacy CCR surface impoundments on the list are associated with 37
different unique corporate parents. Of the 156, the vast majority, 126,
are owned by a set of 23 companies the Agency knows own facilities
regulated by the CCR regulations. The remaining 30 units are owned by
14 different companies, with each company generally having just one
location/site with legacy CCR surface impoundments (with one exception,
that owns two sites). Therefore, it appears that most of the inactive
facilities are owned by companies that are already regulated by the CCR
regulations. Some of them are owned by a company that is not currently
regulated by the CCR regulations, but the company has at least one
facility with potential legacy CCR surface impoundments. EPA has not
identified any facilities where the owner cannot be determined.
In the ANPRM, EPA solicited comments about innocent owners of
inactive facilities, but several commenters said that unlike the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), RCRA does not contain an ``innocent owner'' concept, and
there is therefore no statutory basis for uniformly excluding these
owners from any RCRA regulations applicable to
[[Page 31995]]
legacy CCR surface impoundments. The same commenter said the owner
should be the owner at the time of rule promulgation and that owner
would be in a position to make decisions and act in response to new
regulatory requirements applicable to the legacy CCR surface
impoundments. Based on EPA's analysis of inactive facility ownership,
EPA has no factual basis to establish an innocent owner provision and
therefore is not proposing one.
A commenter suggested that EPA should use the phrase ``permanently
ceased generating,'' because plants can exist in various stages of
generation, including seasonal mothball status, depending on the market
conditions and the needs of the independent system operators. EPA
disagrees that this is necessary or appropriate, as any facility that
generates power after October 19, 2015, is considered an ``active
facility,'' that is covered under the existing regulations. See, 40 CFR
257.53 (defining Active facility). Under Sec. 257.50(c), the
regulations apply to ``inactive CCR surface impoundments at active
electric utilities or independent power producers, regardless of the
fuel currently used at the facility to produce electricity.'' 40 CFR
257.50(c).
The question has been raised whether the phrase ``regardless of the
fuel currently used to produce electricity'' in Sec. 257.50(c)
indicates that EPA meant to limit the rule to facilities that combust
fossil fuels; but the provision does not state or even imply that
limitation. The definition of an active facility does not include any
limitation related to how the facility generates electricity, including
fuel use. Nor does the clause, ``regardless of the fuel currently used
to produce electricity'' in Sec. 257.50(c) add a fuel use limitation
into that definition, or otherwise create a fuel use limitation in the
scope of the rule. The plain language of the clause states the
opposite; that coverage applies without regard to the fuel used to
produce electricity. Or in other words, without regard to the type of
fuel used or indeed whether any fuel is used to produce electricity.
Nevertheless, to avoid any further confusion, EPA is proposing to amend
the provision to specify that the subpart also applies to inactive CCR
surface impoundments at active electric utilities or independent power
producers, regardless of how electricity is currently being produced at
the facility.
Finally, EPA requested comment as to whether the Agency's
regulation of inactive CCR surface impoundments should be limited to
only units at former power plants that sold electric power to the grid
or whether it should also reach units at former power plants that
provided power to a single site or facility. In response, some
commenters said that EPA should regulate all inactive impoundments
without regard to whether those impoundments are located at power
plants that once sold electric power to the grid or supplied it only to
a single site or facility. They said it is not the location of the
impoundment, but rather the presence of coal ash, that controls. Other
commenters said this could also prove to be a thorny factual issue, as,
in many cases, the same power plant might have served a single site or
facility for some period of time as well as served the grid at other
times.
For the same reasons that EPA did not include CCR generated by non-
utility boilers in the 2015 CCR Rule, EPA is not proposing to regulate
units at former power plants that provided power to a single site or
facility. See, 80 FR 21340. EPA lacks critical data about such
facilities needed to determine whether and how to regulate such
facilities. These facilities are primarily engaged in business
activities, such as agriculture, mining, manufacturing, transportation,
and education. These industries, and the manufacturing industries in
particular, generate other types of wastes that are often mixed or co-
managed with the CCR at least at some facilities. As a result, the
chemical composition of the co-managed waste is likely to be
fundamentally different from the chemical composition of CCR generated
by electric utilities or independent power producers. EPA requests
comment on the likely chemical composition of other types of wastes
generated by these industries that were co-managed with any CCR
generated at such facilities. Insufficient information is also
available on such facilities to determine whether a regulatory
flexibility analysis will be required under the Regulatory Flexibility
Act, and to conduct one if it is necessary. EPA therefore requests
comment on whether the Agency should continue to pursue this issue by
seeking to obtain the information necessary to determine whether
regulation of such facilities is warranted.
d. Conclusions Related to Scope of Coverage
After considering all of this information, EPA is proposing to
define a legacy CCR surface impoundment as: A surface impoundment that
is located at a power plant that ceased generating power prior to
October 19, 2015, and the surface impoundment contained both CCR and
liquids on or after October 19, 2015. EPA considers this definition to
be the most protective of human health and the environment for the
reasons provided herein.
Alternatively, EPA solicits comments on defining a ``legacy CCR
surface impoundment'' as: A CCR surface impoundment at a power plant
that ceased generating power prior to October 19, 2015, and the surface
impoundment contains both CCR and liquids on or after the effective
date of the legacy CCR surface impoundment final rule.
2. Applicable Requirements for Legacy CCR Surface Impoundments and
Compliance Deadlines
This Unit of the preamble first provides a general overview of how
EPA determined the applicable requirements and compliance deadlines for
legacy CCR surface impoundments. Then, EPA will walk through each of
the existing requirements for CCR surface impoundments and explain (1)
Why EPA is proposing to apply them (or not) to legacy CCR surface
impoundments, and (2) The rationale for the compliance deadline EPA is
proposing for each requirement.
a. General Overview
i. Applicable Requirements
Based on the record compiled for the 2015 CCR Rule, EPA concluded
that ``there is little difference between the potential risks of an
active and inactive surface impoundment; both can leak into
groundwater, and both are subject to structural failures that release
the wastes into the environment, including catastrophic failures
leading to massive releases that threaten both human health and the
environment.'' (80 FR 21343). As discussed in Unit III.B of this
preamble, the D.C. Circuit concurred, and on that basis, vacated the
exemption for legacy CCR surface impoundments. See, USWAG at 901 F.3d
at 434. EPA received no information in response to the ANPRM that would
support a conclusion that legacy CCR surface impoundments present fewer
risks than other inactive CCR impoundments. Based on this record and on
the specificity of the D.C. Circuit's findings in USWAG, EPA considers
that it has limited discretion to establish requirements for legacy CCR
surface impoundments that are significantly different than those
currently applicable to inactive CCR impoundments. Accordingly, EPA is
proposing that, in most cases the existing requirements in 40 CFR part
257, subpart D applicable to inactive CCR surface impoundments would
apply to legacy CCR surface
[[Page 31996]]
impoundments. EPA is proposing to make one revision to the existing
groundwater monitoring requirements. In addition, EPA is proposing to
establish two new requirements specific to legacy CCR surface
impoundments: a reporting requirement and a new security requirement to
restrict public access to these sites. Finally, EPA is proposing that
legacy CCR surface impoundments would not be subject to either the
location restrictions at Sec. Sec. 257.60 through 257.64, or the liner
design criteria at Sec. 257.71. EPA is proposing to exclude these
requirements because EPA believes they will not be necessary if EPA
takes final action on the proposed requirement that all legacy CCR
surface impoundments initiate closure no later than 12 months after the
effective date of the final rule.
Some commenters on the ANPRM said that all provisions currently
required for CCR surface impoundments at active power plants (or those
that were operating as of the effective date of the rule), are just as
necessary--if not more so--at legacy CCR surface impoundments to ensure
satisfaction of the RCRA section 4004(a) protectiveness standard. Other
commenters said the only applicable requirements should be groundwater
monitoring, closure, post-closure care, and related recordkeeping
requirements. Several of these commenters also said that the 2015 CCR
rulemaking record is not directly applicable to the universe of units
that are located at inactive power plants and still contain CCR and
liquids. They said the 2014 CCR Risk Assessment used to develop the
2015 CCR Rule was limited to current disposal practices and did not
consider units that had stopped receiving waste or historically
disposed of CCR by facilities that no longer operate. According to
these commenters, the Agency must first accurately identify the
universe of legacy CCR surface impoundments, the specific
characteristics of risk for those impoundments, and then analyze
whether other authorities are sufficient to address any risk from these
legacy CCR surface impoundments.
Finally, some commenters requested that EPA include a mechanism for
legacy CCR surface impoundment owner(s) and/or operator(s) to
demonstrate that, in such cases, additional CCR requirements would be
unnecessary. The commenters stated that this would be similar to the
case-by-case determinations established under the Holistic Approach to
Closure Parts A and B final rules (85 FR 53516 and 85 FR 72506) that
provided a mechanism for the Agency to issue variances for plants that
could successfully make the required demonstration.
ii. Compliance Deadlines
EPA is proposing to establish new compliance dates for legacy CCR
surface impoundments. The compliance deadlines in the 2015 CCR Rule
were generally based on the amount of time determined to be necessary
to implement the requirements. To determine what was feasible, EPA
accounted for the fact that some of the new requirements involved
numerous activities, many of which must occur sequentially (e.g., the
groundwater monitoring requirements in Sec. Sec. 257.90 through
257.95), as well as concerns about shortages of contractor and lab
resources resulting from the fact that those numerous facilities would
need to come into compliance at the same time. EPA also accounted for
other Agency rulemakings that could have affected the owners or
operators of CCR units, namely the 2015 Effluent Limitation Guidelines
(ELG) and Standards for the Steam Electric Power Generating Point
Source Category and the Carbon Pollution Commission Guidelines for
Existing Stationary Sources: Electric Utility Generating Units. In
establishing the proposed deadlines for legacy CCR surface
impoundments, EPA adopted the same approach, and is proposing deadlines
based on the amount of time determined to be necessary to implement the
requirements. But some of the factors considered in the 2015 rulemaking
are not relevant for legacy CCR surface impoundments; for example,
there is no longer a need to coordinate with the ELG compliance
deadlines. In addition, most facilities are already familiar with these
requirements as they have already implemented them for other units at
their active sites, so the timeframes need not account for the time
that would be needed for a facility to understand the regulations and
develop strategies for compliance. Finally, there will be fewer
facilities and units that will need to come into compliance, and EPA no
longer has concerns about shortages of contractors and lab resources.
Consequently, EPA is generally proposing expedited timeframes for
legacy CCR surface impoundments to comply with the regulations, based
on the shortest average amount of time needed to complete the
activities involved in meeting the requirements. Overall, comments
submitted in response to the ANPRM acknowledged these differences and
most supported the establishment of shorter deadlines than were
established in the 2015 CCR Rule.
Note that all deadlines herein are framed by reference to the
effective date of the rule and have been proposed based on an effective
date that is six months from publication of the final rule. The Agency
has included a document in the docket \13\ for this rule that
summarizes the proposed compliance deadlines. EPA requests comment on
the compliance deadlines and the feasibility to meet the proposed
compliance timeframes for legacy CCR surface impoundments.
---------------------------------------------------------------------------
\13\ This information can be found in the document titled
``Proposed Compliance Deadlines for Legacy CCR Surface Impoundments
and CCR Management Units'' in the docket for this action.
Table 1--Proposed Compliance Timeframes for Legacy CCR Surface Impoundments in Months After Effective Date of
the Final Rule
----------------------------------------------------------------------------------------------------------------
Description of Proposed deadline (months
40 CFR part 257, subpart D requirement to be after effective date of the Notes
requirement completed final rule)
----------------------------------------------------------------------------------------------------------------
Applicability Documentation (Sec. Applicability 0.............................. Prerequisite
257.100). Documentation for requirements:
the legacy CCR Establish CCR
surface impoundment. website.
Subsequent
requirements:
History of
construction;
Initial structural
stability
assessment; Initial
safety factor
assessment.
Design Criteria (Sec. 257.73)... Install permanent 0..............................
marker.
Site Security (Sec. Implement site 0..............................
257.100(f)(3)(iii)). security measures.
[[Page 31997]]
Operating Criteria (Sec. 257.80) Prepare fugitive dust 0.............................. Subsequent
control plan. requirements:
Initial annual
fugitive dust
report.
Operating Criteria (Sec. 257,80, Initiate weekly 0.............................. Subsequent
257.82, 257.83). inspections of the requirements:
CCR unit. Initial annual
inspection of the
CCR unit.
Operating Criteria (Sec. 257,80, Initiate monthly 0.............................. Subsequent
257.82, 257.83). monitoring of CCR requirements:
unit instrumentation. Initial annual
inspection of the
CCR unit.
Internet Posting (Sec. 257.107). Establish CCR website 0.............................. Subsequent
requirements:
Applicability
report; all
recordkeeping.
Design Criteria (Sec. 257.73)... Compile a history of 3.............................. Prerequisite
construction. requirements:
Applicability
report.
Subsequent
requirements:
Hazard potential
classification;
Emergency Action
Plan; Initial
hazard
classification
assessment; Initial
structural
stability
assessment; Initial
safety factor
assessment; Initial
annual inspection;
Groundwater
monitoring system.
Design Criteria (Sec. 257.73)... Complete initial 3.............................. Prerequisite
hazard potential requirements:
classification Applicability
assessment. report; History of
construction.
Subsequent
requirements:
Emergency Action
Plan.
Design Criteria (Sec. 257.73)... Complete initial 3.............................. Prerequisite
structural stability requirements:
assessment. Applicability
report; History of
construction.
Subsequent
requirements:
Emergency Action
Plan.
Design Criteria (Sec. 257.73)... Complete initial 3.............................. Prerequisite
safety factor requirements:
assessment. Applicability
report; History of
construction.
Subsequent
requirements:
Emergency Action
Plan.
Operating Criteria (Sec. 257,80, Complete the initial 3.............................. Prerequisite
257.82, 257.83). annual inspection of requirements:
the CCR unit. History of
construction;
Weekly inspections
of the CCR unit;
Monthly monitoring
of CCR unit
instrumentation.
GWMCA (Sec. 257.91)............. Install the 6.............................. Prerequisite
groundwater requirements:
monitoring system. Applicability
report; History of
construction.
Subsequent
requirements:
Groundwater
sampling and
analysis program;
Initiate detection
and assessment
monitoring; Annual
GWMCA report;
Written closure
plan; Initiate
closure.
GWMCA (Sec. 257.93)............. Develop the 6.............................. Prerequisite
groundwater sampling requirements:
and analysis program. Install the
groundwater
monitoring system.
Subsequent
requirements:
Initiate detection
monitoring and
assessment
monitoring.
GWMCA (Sec. 257.90(e)).......... Annual GWMCA report.. January 31 of the year Prerequisite
following GWM system install. requirements:
Groundwater
monitoring system;
Groundwater
sampling and
analysis plan.
Design Criteria (Sec. 257.73)... Prepare Emergency 9.............................. Prerequisite
Action Plan. requirements:
History of
construction;
Hazard potential
classification;
Initial structural
stability
assessment; Initial
safety factor
assessment.
Operating Criteria (Sec. 257.82) Prepare initial 9.............................. Prerequisite
inflow design flood requirements:
control system plan. History of
construction;
Hazard potential
classification.
Operating Criteria (Sec. 257.80) Prepare initial 12............................. Prerequisite
annual fugitive dust requirements:
report. Fugitive dust plan.
Closure (Sec. Sec. 257.100- Prepare written 12............................. Subsequent
257.101). closure plan. requirements:
Initiate closure.
Post-Closure Care (Sec. 257.104) Prepare written post- 12............................. Prerequisite
closure care plan. requirements:
Written closure
plan.
Closure and Post-Closure Care Initiate closure..... 12............................. Prerequisite
(Sec. 257.101). requirements:
Written closure
plan.
GWMCA (Sec. Sec. 257.90-257.95) Initiate the 24............................. Prerequisite
detection monitoring requirements:
and assessment Groundwater
monitoring. Begin monitoring system;
evaluating the Groundwater
groundwater sampling and
monitoring data for analysis plan.
SSI over background
levels and SSL over
GWPS.
----------------------------------------------------------------------------------------------------------------
[[Page 31998]]
b. New Requirements Specific to Legacy CCR Surface Impoundments
i. Legacy CCR Surface Impoundment Applicability Documentation
EPA is proposing to require the owner and operator of a legacy CCR
surface impoundment to prepare an applicability documentation for any
legacy CCR surface impoundment at that facility no later than the
effective date of the final rule. This requirement would apply to all
legacy CCR surface impoundments, including incised impoundments and
impoundments that do not meet the height and storage volume cutoffs
specified in Sec. 257.73(b). See, proposed regulatory text at Sec.
257.100(f)(1)(i). EPA is proposing that this applicability
documentation would include information to identify the unit, delineate
the unit boundaries, include a figure of the facility and where the
unit is located at the facility, the size of the unit, its proximity to
surface water bodies, and the current site conditions. For impoundments
that are incised or for those not meeting the height and storage volume
thresholds specified in Sec. 257.73(b), the applicability report must
document these conditions so that stakeholders can understand what
structural integrity requirements will apply to the legacy CCR surface
impoundment. EPA is also proposing that the applicability report
include the facility address, latitude and longitude, and contact
information of the owner and/or operator of the legacy CCR surface
impoundment with their phone number and email address. EPA is also
proposing that the owner or operator of the legacy CCR surface
impoundment notify the Agency of the establishment of the facility's
CCR website and the applicability of the rule, using the procedures
currently in Sec. 257.107(a) via the ``contact us'' form on EPA's CCR
website.
ii. Site Security for Legacy CCR Surface Impoundments
Active facilities generally have guards and fencing to control
access to the facility, but inactive CCR facilities may not have such
security controls in place at the facility. To minimize that risk, EPA
is proposing that owners and operators establish security controls to
restrict access to legacy CCR surface impoundments. The proposed
security requirements are written in terms of a performance standard,
as opposed to a prescriptive set of technical standards, such as
specific signage, barriers and fencing, or surveillance techniques. EPA
chose this approach because it would allow the owner or operator to
identify the most appropriate means for providing site security for the
impoundment based on site-specific circumstances.
Some commenters on the ANPRM agreed that such requirements are
necessary because legacy CCR impoundments are located at inactive power
plants, unlike impoundments at operating power plants, they almost
certainly lack the oversight and protection afforded by significant
numbers of on-site personnel. Consequently, the integrity of
impoundments and berms and the safety of nearby residents depend on
robust security measures to ensure that people are not--whether
intentionally or unknowingly--entering the site and taking actions
(such as ATV driving, dirt biking, or similar activities) that endanger
the integrity of the impoundment or expose trespassers to health risks.
The proposed site security performance standard would require the
owner or operator to prevent the unknowing entry of people onto the
legacy CCR surface impoundment and to minimize the potential for the
unauthorized entry of people or livestock onto the impoundment. See
proposed regulatory text in Sec. 257.100(f)(3)(iii). The Agency
generally modeled the proposed requirements on existing regulations
that apply to interim status hazardous waste surface impoundments,
which are codified at Sec. 265.14(a). EPA recognizes that some
facilities may have facility-wide access controls in place, and in this
case, the facility-wide controls would satisfy the proposed requirement
to limit public access to the legacy CCR surface impoundment. The
Agency is proposing to require the facility to restrict access to the
area containing the legacy CCR surface impoundment no later than the
effective date of the final rule. See, proposed regulatory text at
Sec. 257.100(f)(3)(iii).
iii. Certification of Closure by Removal for Legacy CCR Surface
Impoundments
As discussed in Unit IV.A.1.b.ii of this preamble, where a legacy
CCR surface impoundment has completed closure of the CCR unit by
removal of waste in accordance with the performance standards in Sec.
257.102(c) prior to the effective date of the final rule, EPA is
proposing that the owner and operator of an inactive facility post
documentation that they have met the existing standard for closure by
removal in Sec. 257.102(c) on their CCR website. If such a
demonstration cannot be made, the CCR surface impoundment would be
regulated as a legacy CCR surface impoundment. EPA is proposing to
require that the closure certification be certified by a qualified
professional engineer (P.E.). EPA is proposing to require certification
by a qualified professional engineer even though the Agency now has
authority to enforce the part 257 regulations. This is because the
certification is not intended as a substitute for EPA's oversight, but
as a supplement to ensure that the regulated community properly
understands and implements the regulations. As EPA explained in 2015,
the purpose of requiring certification was to ensure that qualified
individuals verify that the technical provisions of the rule have been
properly applied and met, not to delegate regulatory oversight to the
engineer, or to serve as a shield against judicial enforcement. See 80
FR 21335. Consistent with the original 2015 requirements, the
performance standards that EPA is proposing to establish are
independent requirements and would remain enforceable regardless of
whether a P.E. certification has been obtained.
EPA is proposing to require that the certified demonstration be
completed and posted on the facility website no later than the
effective date of the final rule. See proposed regulatory text at Sec.
257.100(f)(1)(ii). Because the closure of the unit will have been
already completed, the information on which to base the demonstration
should be readily available. Consequently, EPA believes that requiring
completion of this requirement, if applicable, by the effective date of
the final rule provides sufficient time for such a task.
c. Location Restrictions and Liner Design Criteria
The CCR regulations require existing CCR surface impoundments that
cannot demonstrate compliance with the location restrictions for
placement of CCR above the uppermost aquifer, in wetlands, within fault
areas, in seismic impact zones, or in unstable areas (specified in
Sec. Sec. 257.60 through 257.64) to cease receipt of waste and
retrofit or close. The purpose of these requirements is largely to
ensure that units located in particularly problematic areas cease
operation. By definition, legacy CCR surface impoundments are not
operating, and because it appears that all legacy CCR surface
impoundments are unlined and will therefore be required to close, EPA
believes that requiring compliance with the location restrictions would
be largely redundant. Commenters on the ANPRM largely supported not
requiring location restrictions or liner demonstrations on the grounds
that location restrictions and operating and
[[Page 31999]]
design criteria are not relevant to this class of units, as these
requirements primarily sought to ensure active units operated safely.
Other commenters raised concern that requiring compliance with one or
more location restrictions would provide information that would be
``critical'' to designing unit closure and any necessary corrective
action. EPA agrees that this information would be useful but believes
the same information will be captured by compliance with the history of
construction requirement, the closure plan, or in the development of
the groundwater monitoring system.
EPA is also proposing that the requirement to document whether the
impoundment was constructed with a composite liner or alternative
composite liner under Sec. 257.71(a)(1) is not warranted for legacy
CCR surface impoundments. The original purpose of this provision was to
determine whether the unit was unlined, and consequently subject to
closure. However, the available information indicates that legacy CCR
surface impoundments were largely constructed well before composite
liners systems were typically installed. For this reason, EPA expects
legacy CCR surface impoundment to be unlined and, therefore, EPA is
proposing to require all legacy CCR surface impoundments to close. As a
consequence, EPA believes that requiring facilities to compile the
information required by Sec. 257.71(a)(1) would not provide useful
information or otherwise be necessary.
d. Design Criteria for Structural Integrity for Legacy CCR Surface
Impoundments
To help prevent damages associated with structural failures of CCR
surface impoundments, existing surface impoundments must meet specified
structural integrity criteria in Sec. 257.73 as part of the design
criteria. EPA is proposing that all existing structural integrity
requirements be applicable to legacy CCR surface impoundments without
revision.
i. Installation of a Permanent Marker for Legacy CCR Surface
Impoundments
Consistent with the existing requirements for CCR surface
impoundments, EPA is proposing that owners or operators of legacy CCR
surface impoundments, except for ``incised CCR surface impoundments''
as defined in Sec. 257.53, comply with Sec. 257.73(a)(1), which
requires the placement of a permanent identification marker, at least
six feet high on or immediately adjacent to the CCR unit with the name
associated with the CCR unit and the name of the owner or operator.
See, proposed regulatory text at Sec. 257.100(f)(2)(i).
EPA is proposing that placement of the permanent marker must be
completed by the owner or operator of the legacy CCR surface
impoundment by the effective date of the final rule. By comparison,
installation of a permanent marker was required two months after the
effective date of the 2015 CCR Rule. The proposed deadline is expedited
for the reasons described in Unit IV.A.2.a.ii of this preamble and
accounts for sufficient time for survey work, and review of records in
facility deeds or other records.
ii. History of Construction for the Legacy CCR Surface Impoundments
Under the existing regulations, CCR surface impoundments that
either have: (1) A height of five feet or more and a storage volume of
20 acre-feet or more; or (2) Have a height of 20 feet or more, must
document the design and construction of the CCR surface impoundment. 40
CFR 257.73(b) and (c). See also 80 FR 21379-21380, April 17, 2015. EPA
is proposing that owners or operators of legacy CCR surface
impoundments that meet this size threshold would be required to comply
with the existing requirements to compile the construction history of
the legacy CCR surface impoundment. See proposed regulatory text in
Sec. 257.100(f)(2)(ii).
Some commenters on the ANPRM agreed that the history of
construction is critical to an evaluation of the long-term stability of
legacy CCR surface impoundments, which must be considered to determine
if the closure performance standards for closure in place can be met at
the impoundment and whether a given corrective action meets the
requirement to select a safe, protective remedy. The history of
construction is also critical in the event of any failure of the
impoundment: emergency response personnel must have access to that
information to determine how to halt further failure, and further
release of CCR, as quickly as possible.
For legacy CCR surface impoundments, EPA acknowledges that much of
the construction history of the surface impoundment may be unknown or
lost to time. The Agency conducted assessments of impoundments across
the country starting in 2009 (herein referred to as 2009-2014
Assessment Program). For information about these assessments and how
the results impacted the 2015 CCR Rule, see 80 FR 21313-21318 (April
17, 2015). The results from the 2009-2014 Assessment Program confirmed
that many owners or operators of CCR units did not possess
documentation on the construction history or operation of the CCR unit.
80 FR 21380. Information regarding construction materials, expansions
or contractions of units, operational history, and history of events
was frequently difficult for the owners or operators to obtain.
Therefore, consistent with the existing regulations, the owner or
operator would only need to provide information on the history of
construction to the extent that such information is reasonably and
readily available.
To complete the history of construction report, typically, the
owner and operator first enlist a contractor to generate the history of
construction report. Contracting typically involves the owner and
operator issuing a request for proposal, contractors responding to the
request, and the owner and operator evaluating the bids and selecting a
contractor (estimate 1-2 weeks). Following selection and onboarding of
a contractor, a data inventory, compilation, and review of existing
documents is completed by the owner and operator and contractor to meet
the requirements in Sec. 257.73(c)(1)(i) through (xi) (estimate 4-6
weeks). Examples of documents compiled may include the CCR unit's
design drawings and construction documents, such as construction
reports, quality assurance, as-built records, and historic boring log
reviews (e.g., subsurface investigation used for original CCR unit
design, post-construction subsurface investigations, geotechnical
studies). Data from external sources may also be needed such as the
U.S. Geological Survey (USGS) 7.5-minute or 15-minute topographic
quadrangle maps (Sec. 257.73(c)(1)(ii)) or National Hydrography
Datasets (Sec. 257.73(c)(1)(iv)). The compiled data must then be
reviewed, analyzed, and documented in reports (estimate 3-4 weeks).
Examples of analyses may include maximum CCR depths, area-capacity
curves, spillway capacities, and the maximum pool surface elevation
following peak discharge from the inflow design flood. This estimate
assumes that no new extensive analyses are needed, and that all
necessary information can be derived from existing reports (e.g.,
hydraulic and hydrologic reports). If new analyses are needed (e.g.,
maximum CCR depth), they are assumed to be minor with data inputs for
performing these analyses existing and readily available such as field
surveys (e.g., historic site preparation surveys, post-construction/as-
built surveys, periodic surveys,
[[Page 32000]]
bathymetric surveys). Based on these assumptions, the time required to
generate a history of construction report is 8-12 weeks or 2-3 months.
Therefore, EPA is proposing to require the history of construction
report to be compiled no later than 3 months after the effective date
of the final rule.
Expediting this timeframe compared to the 2015 CCR Rule timeframe
is important for the reasons described above in Unit IV.A.2.a.ii of
this preamble and because several additional requirements depend on the
information that would be obtained by compliance with these
requirements. For example, available geologic subsurface information
from history of construction is typically necessary to determine the
number, spacing and location of monitoring wells for the installation
of a groundwater monitoring system that meets the criteria of Sec.
257.91. Another example is that Sec. 257.73(c)(1)(xi) requires
reporting any record or knowledge of structural instability of the CCR
unit; this information is also needed for the initial and periodic
structural stability assessments required under Sec. 257.73(d).
iii. Initial Hazard Potential Classification for Legacy CCR Surface
Impoundments
Consistent with the existing regulations, EPA is proposing that
owners or operators of legacy CCR surface impoundments, except for
incised CCR surface impoundments as defined in Sec. 257.53, must
complete the initial periodic hazard potential classification
assessment required under Sec. 257.73(a)(2). See, proposed regulatory
text at Sec. 257.100(f)(2)(iii).
Hazard potential classification assessments require activities that
can be summarized as data/documentation review, a site visit, and
report generation. As stated above, acquiring a contractor may take 1-2
weeks. The contractor would then perform a site visit and review
available hazard documents such as existing state or federal dam hazard
potential classification documents or any previous structural stability
or safety factor documentation. The contractor then generates a P.E.-
certified report stating the hazard classification determination and
basis for the findings. The site visit is estimated to take 1 week. The
data/documentation review and report generation are expected to take a
total of 4-6 weeks. Based on these estimates, the total time needed to
conduct the initial hazard potential classification assessment is 6-9
weeks. Accordingly, EPA is proposing the initial hazard potential
classification assessment be due no later than 3 months after the
effective date of the final rule. The proposed deadline provides
sufficient time to complete the activities necessary to satisfy this
requirement, while allowing time (3-6 six weeks) for reasonable delays,
such as weather delaying a site visit or difficulty obtaining pertinent
documentation. This timeframe is expedited from the deadline in the
2015 CCR Rule by 9 months for the reasons described above in Unit
IV.A.2.a.ii of this preamble.
iv. Initial Structural Stability Assessment and Initial Safety Factor
Assessment for Legacy CCR Surface Impoundments
Under the existing regulations, CCR surface impoundments that meet
the size thresholds in Sec. 257.73(b) and (c), must conduct two
different types of technical assessments: (1) A structural stability
assessment; and (2) A safety factor assessment. See 40 CFR 257.73(b),
(d), (e), and (f). See also 80 FR 21380-21386, April 17, 2015. EPA is
proposing that owners or operators of legacy CCR surface impoundments
that meet the same thresholds also comply with the requirements to
conduct an initial structural stability assessment and an initial
safety factor assessment. See, proposed regulatory text at Sec.
257.100(f)(2)(iv).
Some commenters on the ANPRM said structural stability assessments
and safety factor assessments must apply to legacy CCR surface
impoundments since the risks from such units are likely greater at
legacy CCR surface impoundments, given the age of such units; the
higher percentage of legacy ponds (as compared to operating ash ponds)
that were neither designed by, nor built under the supervision of, a
P.E.; and the higher percentage of legacy CCR surface impoundments
determined to be in ``poor'' or ``fair'' condition.
The Agency conducted assessments of impoundments across the country
starting in 2009 in the 2009-2014 Assessment Program. For information
about these assessments and how the results impacted the 2015 CCR Rule,
see 80 FR 21313-21318 (April 17, 2015). EPA analyzed the results of the
2009-2014 Assessment Program and found that 97 impoundments \14\
assessed during the Program are located at inactive CCR facilities. Of
those impoundments, EPA found that six impoundments are classified as
high hazard potential, and 41 impoundments are classified as
significant hazard potential meaning that failure or mis-operation of
the dam will probably cause loss of human life or can cause economic or
environmental losses. This further supports EPA's conclusion that these
requirements are needed for legacy CCR surface impoundments.
---------------------------------------------------------------------------
\14\ This information can be found in the document titled
``Potential Legacy CCR Surface Impoundment Universe'' in the docket
for this action.
---------------------------------------------------------------------------
Activities required to conduct the initial structural stability
assessment include reviewing historic documents, conducting a site
investigation (if needed), and generating a P.E.-certified report.
Typically, owners or operators hire a contractor who is a certified
P.E., which, as detailed above, may take one to two weeks. The
contractor would then compile and review historic documents to
determine if the design, construction, operation, and maintenance of
the CCR unit are consistent with good engineering practices, which may
take 2-3 weeks. These documents likely overlap with those already
compiled for the history of construction and may include the design
drawings, construction reports, quality assurance documentation, as-
built records, subsurface investigations, geotechnical studies, and
site inspections. Stability of the CCR unit's embankment and foundation
may be demonstrated through slope stability analyses. Because slope
stability analyses are typically required to satisfy safety factor
assessments, no additional time is considered necessary to satisfy the
requirements under Sec. 257.73(d). Although site inspections would
likely already have occurred by the effective date of the final rule
pursuant to Sec. 257.83(a) or Sec. 257.83(b), it may be necessary for
the qualified P.E. to perform a site inspection to certify the CCR unit
meets the requirements as set forth in Sec. 257.73(d). Therefore, 1
week for the site inspection is factored into the estimated time to
complete these assessments. Finally, generating a P.E.-certified report
may take 4-6 weeks. The total estimated time to meet this requirement
is 8-12 weeks.
Activities required to complete the initial safety factor
assessment may include hiring a contractor that is a qualified P.E.,
which may take 1-2 weeks and conducting slope stability analyses of
critical cross sections, as defined in Sec. 257.73(e)(1). For the
initial assessment, it is anticipated that no new field work will be
required to gather this data and that the input parameters required for
the analysis (e.g., soil geotechnical properties, seasonal high-water
table) are available in historic documents such as the subsurface
investigation used for the original CCR unit design, post-construction
subsurface investigations, and/or geotechnical studies. Compilation and
[[Page 32001]]
review of this data is estimated to take 2-3 weeks, followed by 5-7
weeks for data analysis and reporting. The total estimated time needed
to meet requirements for completion of the safety factor assessment is
8-12 weeks.
The activities for the initial structural stability and initial
safety factor assessments can be conducted concurrently and based on
the estimates above, should take a total of 8-12 weeks (2-3 months).
Therefore, as stated above, EPA is proposing both the initial
structural stability assessment and the initial safety factors
assessments be completed no later than 3 months after the effective
date of the final rule. These timeframes are expedited by 15 months
from the 2015 CCR Rule deadline. EPA believes the expedited timeframe
is important to address the risks posed by legacy CCR surface
impoundments, as described in this Unit and in Unit IV.A.2.a.ii of this
preamble.
v. Preparation of an Emergency Action Plan for Legacy CCR Surface
Impoundments
Section 257.73(a)(3) requires any CCR surface impoundment that is
determined by the owner or operator, with the certification by a P.E.,
to be either a high hazard potential or a significant hazard potential
CCR surface impoundment to prepare and maintain a written Emergency
Action Plan (EAP). EPA is proposing that the owners or operators of
legacy CCR surface impoundments that have been identified as having
either a high hazard potential or a significant hazard potential would
be required to comply with the same requirements to prepare and
maintain an EAP that are currently required under Sec. 257.73. See
proposed regulatory text at Sec. 257.100(f)(2)(v).
An EAP is a document that identifies potential emergency conditions
at a CCR surface impoundment and specifies actions to be followed to
minimize loss of life and property damage. To prepare an EAP, the owner
or operator must accurately and comprehensively identify potential
failure modes and at-risk developments. See also 80 FR 21377-21379,
April 17, 2015. Satisfying EAP requirements is primarily a desktop
exercise that requires information on site conditions, some analyses,
and assessments that are proposed to be completed earlier. Typically,
the owner and operator enlist a contractor to generate the EAP, which,
as described above may take 1-2 weeks. Once onboard, it is assumed that
the contractor would review site-specific documents, assessments, and
analyses that were completed earlier and that may have an impact on
development of an EAP. These documents and assessments may include the
history of construction, initial structural stability assessment,
initial safety factor assessment, initial hazard potential
classification, hydraulic and hydrologic analyses for inundation maps
and potential impact areas, and the first annual inspection. Assuming
all analyses discussed in the preceding sections are completed by the
proposed deadlines of 3 months after the effective date of the final
rule, the review of existing documents and assessments is estimated to
take 4-6 weeks. Additional analyses, such as dam breach analyses or
inundation evaluations, may be needed to define events or circumstances
that may represent a safety emergency. If needed, these analyses may
take 3-6 weeks). The contractor would then prepare the EAP including
describing procedures to follow in an emergency, gathering emergency
responder contact information and defining responsible persons,
assigning responsibilities, and detailing notification procedures. This
may take 6-8 weeks because the required coordination with community or
government entities. Based on these assumptions, the time required to
complete an EAP is 3-6 months. Therefore, EPA is proposing a deadline
of 9 months after the effective date for this requirement. This
timeline is sufficient to review previously prepared documents,
complete additional analyses and prepare the EAP while accounting for
the 3 months allotted for the prerequisite assessments.
e. Operating Criteria for Legacy CCR Surface Impoundments
The operating criteria in Sec. Sec. 257.80, 257.82, and 257.84
include air criteria for all CCR units, hydrologic and hydraulic
capacity requirements for CCR surface impoundments, and periodic
inspection requirements for CCR surface impoundments. These criteria
address the potential risks from the day-to-day operations of CCR units
and are established to prevent health and environmental impacts from
CCR units. CCR surface impoundments are subject to hydrologic and
hydraulic capacity requirements to ensure the unit can safely handle
flood flows, which will help prevent uncontrolled overtopping of the
unit or erosion of the materials used to construct the surface
impoundment. The CCR regulations also require periodic inspections of
CCR units to identify any appearance of structural weakness or other
conditions that are not consistent with recognized and generally
accepted good engineering standards. EPA is proposing that legacy CCR
surface impoundments comply with these existing requirements without
revision.
i. Fugitive Dust Control Plan for Legacy CCR Surface Impoundments
EPA is proposing that owners or operators of legacy CCR surface
impoundments must complete a fugitive dust control plan. See, proposed
regulatory text at Sec. 257.100(f)(3)(i). The existing regulations
require the owner or operator of a CCR unit to adopt measures that will
effectively minimize CCR from becoming airborne at the facility,
including CCR fugitive dust originating from CCR units, roads, and
other CCR management and material handling activities. 40 CFR
257.80(b). To meet this requirement, the owner or operator of the CCR
unit must prepare and operate in accordance with a fugitive dust
control plan. Id. See also 80 FR 21386-21388, April 17, 2015. EPA
considers that fugitive dust controls are warranted because closure
activities can produce significant quantities of dust. For the same
reason, most commenters on the ANPRM agreed that legacy CCR surface
impoundments should be subject to these requirements.
The primary activities associated with this requirement are hiring
a contractor who is a qualified P.E., having the contractor develop a
plan based on daily operations at the unit and site conditions, and
certification of the plan by a P.E. Little to no field-based activities
are required to complete the fugitive dust control plan, so EPA is
proposing that the owner or operator comply with the existing
requirements by the effective date of the final rule. This timeline is
commensurate with the timeline proposed in the 2015 CCR Rule for
fugitive dust control plans.
ii. Initial Fugitive Dust Control Report for Legacy CCR Surface
Impoundments
EPA is proposing to require the initial annual fugitive dust report
to be due 12 months after the effective date of the final rule. See,
proposed regulatory text at Sec. 257.100(f)(3)(vi). Consistent with
the existing regulations, the report must document all actions taken to
control CCR fugitive dust, a record of all citizen complaints, and a
summary of any corrective measures taken in the previous year. As this
report is primarily a summary of owner or operator activities related
to fugitive dust control and does not require a P.E. certification, the
report may be completed by the owner or operator without the need for a
contractor. Therefore, the deadline of 12 months after effective date
of rule is sufficient for this requirement. This deadline is
[[Page 32002]]
expedited by 2 months from the 2015 CCR Rule deadline for the reasons
described above in Unit IV.A.2.a.ii of this preamble. Because EPA is
proposing that the fugitive dust control plan would be due on the
effective date of the final rule, this would mean that the first annual
report would be due one year after the plan is developed. The owner or
operator has completed the annual CCR fugitive dust control report when
the plan has been placed in the facility's operating record.
iii. Weekly Inspections of the Legacy CCR Surface Impoundment and
Monthly Monitoring of the CCR Unit's Instrumentation
EPA is proposing that owners and operators of legacy CCR surface
impoundments must initiate the inspection requirements set forth in
Sec. 257.83(a) no later than the effective date of the final rule.
See, proposed regulatory text at Sec. 257.100(f)(3)(ii). Under Sec.
257.83(a), all CCR surface impoundments must be examined by a qualified
person at least once every seven days for any appearance of actual or
potential structural weakness or other conditions that are disrupting
or that have the potential to disrupt the operation or safety of the
CCR unit. The results of the inspection by a qualified person must be
recorded in the facility's operating record. Weekly inspections are
intended to detect, as early as practicable, signs of distress in a CCR
surface impoundment that may result in larger more severe conditions.
Inspections are also designed to identify potential issues with
hydraulic structures that may affect the structural safety of the unit
and impact its hydraulic and hydrologic capacity. Section 257.83(a)
also requires the monitoring of all instrumentation supporting the
operation of the CCR unit to be conducted by a qualified person no less
than once per month. See also 80 FR 21394-21395 (April 17, 2015).
EPA recognizes that field work may be necessary prior to initiating
weekly inspections, such as hiring a contractor to perform vegetative
clearing and establishing inspection routes. If necessary, these
activities may take 2-4 weeks. EPA also acknowledges that
instrumentation may already be installed as part of dam safety or other
programs under state regulations. However, if instrumentation is not
currently installed, 4-6 weeks may be needed for the installation of
piezometers or other equipment. Based on these estimates, EPA's
proposed deadline for the initiation of weekly inspections and monthly
monitoring of no later than the effective date of the final rule is
sufficient for the completion of these activities. The proposed
timeframe is the same as the 2015 CCR Rule deadline.
iv. Initial Annual Inspection for Legacy CCR Surface Impoundments
EPA is proposing that owners and operators of legacy CCR surface
impoundments must conduct the initial annual inspection no later than 3
months after the effective date of the final rule. See, proposed
regulatory text at Sec. 257.100(f)(3)(iv). Existing CCR surface
impoundments exceeding the height and storage volume thresholds in
Sec. 257.73(b) and (c), are required to conduct annual inspections of
the CCR unit throughout its operating life (Sec. 257.83(b)). These
inspections are focused primarily on the structural stability of the
unit and must ensure that the operation and maintenance of the unit is
in accordance with recognized and generally accepted good engineering
standards. Each inspection must be conducted and certified by a P.E.
See also 80 FR 21395, April 17, 2015.
Annual inspections include documentation review, a visual
inspection of the CCR unit, and a visual inspection of any hydraulic
structures underlying the base of the CCR unit or passing through the
CCR unit's dike. Documentation reviewed as part of the annual
inspection include operating records, previous structural stability
assessments, and the results of previous weekly, monthly, and annual
inspections and can overlap with reviews needed to complete the initial
structural stability assessment.
EPA is proposing that owners and operators must prepare the initial
inspection report for legacy CCR surface impoundments within the same
timeframe--no later than 3 months from the effective date of the final
rule--as was required for existing CCR surface impoundments in the 2015
CCR Rule. The Agency believes this timeframe to prepare the initial
annual inspection is similarly appropriate for legacy CCR surface
impoundments as for existing impoundments. As discussed in the preamble
to the 2015 CCR Rule, the 3-month timeframe was based on EPA's
experience with its CCR Assessment Program to evaluate the structural
stability and safety of existing impoundments throughout the nation.
Specifically, EPA found that 3 months would be adequate to complete the
tasks supporting an annual inspection, including retaining the services
of a P.E., reviewing relevant information in the facility's operating
record, conducting the field inspection, and completing the inspection
report. See 80 FR 21395 (April 17, 2015).
v. Initial Inflow Design Flood Control System Plan for Legacy CCR
Surface Impoundments
EPA is proposing that owners and operators of legacy CCR surface
impoundments must prepare the inflow design flood control system plan 9
months after the effective date of the final rule. See, proposed
regulatory text at Sec. 257.100(f)(3)(v). Owners or operators of all
CCR surface impoundments are required to design, construct, operate,
and maintain hydraulic and hydrologic capacity to adequately manage
flow both into and from a CCR surface impoundment during and after the
peak discharge resulting from the inflow design flood, which is based
on the Hazard Potential Classification of the CCR surface impoundment
(Sec. 257.82(a)). The regulation also requires the preparation of an
initial inflow design flood control system plan (Sec. 257.82(c)). See
also 80 FR 21390-21392, April 17, 2015.
The primary activities associated with developing an inflow design
flow control system can be summarized as document review, a site visit,
hydrologic and hydraulic analyses (as needed), and report generation.
Typically, owners and operators hire a P.E.-certified contractor,
which, as described above, may take 1-2 weeks. The contractor would
then perform a site visit (estimated to take one week) and review
available pertinent documentation, such as topographical maps, aerial
images, areal hydrological data, the unit's design drawings, the unit's
construction reports, as-builts for the unit, previous area-capacity
curves, and surface elevation data. EPA anticipates that many of these
documents overlap with documents necessary for the history of
construction report, hazard potential classification assessment,
structural stability assessment, safety factor assessment, and annual
inspection requirements, all of which are due no later than 3 months
after the effective date of the final rule. Assuming all preceding
analyses required by this rule are completed by their deadlines of 3
months after the effective date of the final rule, the review is
estimated to take 4-6weeks. Additional analyses, such as site-specific
flood modeling and hydrologic and hydraulic (H/H) capacity
calculations, may be needed to determine site-specific hydrological
conditions or determine if the current H/H capacity is sufficient.
These additional analyses are estimated to take
[[Page 32003]]
4-6 weeks. Finally, the contractor would generate the P.E.-certified
inflow design flood control system plan documenting the design and
construction of the flood control system, which may take another 4-6
weeks. Based on these estimates, the total time needed to prepare an
initial inflow design control system plan is 14 to 21 weeks. Therefore,
EPA is proposing a deadline of 9 months after the effective date of the
final rule for this requirement. EPA believes this timeline is
sufficient to develop the plan while accounting for the three months
allotted for the prerequisite assessments. This is expedited from the
deadline in the 2015 CCR Rule by three months for reasons described
here in Unit IV.A.2.a.ii of this preamble.
f. Groundwater Monitoring and Corrective Action Criteria for Legacy CCR
Surface Impoundments
The existing groundwater monitoring criteria in Sec. Sec. 257.90
through 257.95 require an owner or operator of a CCR unit to install a
system of monitoring wells and specify procedures for sampling these
wells. Further, it sets forth methods for analyzing the groundwater
data collected to detect hazardous constituents (e.g., toxic metals)
and other monitoring parameters (e.g., pH, total dissolved solids)
released from the units. 40 CFR 257.93. Once a groundwater monitoring
system and groundwater monitoring program have been established for a
CCR unit the owner or operator must conduct groundwater monitoring and,
if the monitoring demonstrates an exceedance of the groundwater
protection standards for identified constituents in Appendix IV of part
257, corrective action is required. These requirements apply throughout
the active life and post-closure care period of the CCR unit.
There was widespread agreement among the commenters on the ANPRM
that groundwater monitoring requirements would be appropriate for
legacy CCR surface impoundments. However, some commenters argued that
federal requirements would be duplicative and unnecessary. They
suggested that EPA should allow facilities to demonstrate (through EPA
review and approval) that the federal groundwater monitoring
requirements are not necessary because existing groundwater monitoring
systems established under state requirements meet the RCRA subtitle D
protectiveness standard. These commenters said that overlapping federal
and state groundwater monitoring and corrective action requirements
would create regulatory uncertainty, potentially interfering with site-
specific plans designed to protect the environment and would ultimately
delay work.
EPA is proposing to require legacy CCR surface impoundments to
comply with the existing groundwater monitoring and corrective action
requirements with one revision, described below, to require sampling
and analysis of constituents listed in Appendix IV at the same time as
those listed in Appendix III. The existing groundwater monitoring and
corrective action requirements are essentially the same requirements
that have been applied to both hazardous waste and municipal solid
waste disposal units for decades, and with the one exception discussed
below, there is nothing about legacy units that makes them distinct
enough to warrant separate requirements. EPA disagrees that it would be
appropriate as part of this rulemaking to allow facilities to
demonstrate (through EPA review and approval) that existing groundwater
monitoring systems established under different state requirements could
substitute for federal requirements. As EPA has previously explained,
in RCRA section 4005(d), Congress established specific standards and
mandated the process for EPA to determine that state requirements
should operate in lieu of the federal. Under those provisions, a State
can apply to obtain authorization from EPA to operate its program
(either in whole or in part) in lieu of the federal requirement by
demonstrating that either of the standards in RCRA section
4005(d)(1)(B) has been met. Relying on that congressionally mandated
process, rather than a separate process created in this rulemaking, is
the appropriate route to address the commenters concerns about
duplication between federal and state requirements.
i. Design and Installation of the Groundwater Monitoring System for
Legacy CCR Surface Impoundments
EPA is proposing that owners and operators of legacy CCR surface
impoundments install the groundwater monitoring system as required by
Sec. 257.91 no later than six months from the effective date of the
final rule. See, proposed regulatory text at Sec. 257.100(f)(4)(i).
Existing monitoring wells can be used as a part of that system provided
that they meet the federal criteria. Commenters on the ANPRM explained
that in some states, the state may require the owner or operator to
receive state approval before they can install a groundwater monitoring
system. Therefore, the commenters said that one year is inadequate to
conduct these activities and two years is a more reasonable timeframe
in which to carry out these activities. EPA disagrees that 12 months
from the publication date (i.e., 6 months from the effective date)
would provide an insufficient amount of time to install groundwater
monitoring wells. In the 2015 CCR Rule, EPA allotted 36 months total
(from publication) for facilities to both install the wells and
complete their baseline sampling. Based on the amount of time most
facilities needed to complete or to collect baseline sampling, EPA
calculates that facilities were able to install wells within a single
year.
To complete the installation of the groundwater monitoring system,
the first activity to meet Sec. 257.91(f) may include hiring a
contractor that is a qualified P.E. (estimate 1-2 weeks). The next
activity may be to develop a workplan that determines the number,
location, and depths of monitoring wells, which assumed to be developed
based on available historic site characterization information including
hydrogeologic setting, engineering design of the CCR unit or other
information that may already be compiled in the history of construction
requirement (Sec. 257.73(c)(1)) (estimate 7-9 weeks). Note that any
additional site characterization is assumed to occur concurrently with
the monitoring well installation. Subsequently, site reconnaissance may
be performed along with vegetative clearing and utility locating, and
the workplan may be modified to adjust for field conditions as needed
(estimate 2 weeks when considering the installation of 10 monitoring
wells). The next activity is to drill to depth, install and develop the
10 monitoring wells. The time to drill to depth can vary widely based
on the drilling technique, subsurface lithology, site-specific
conditions, weather, and other factors. It is estimated that a 100 foot
well can be drilled to depth in 5 days at the rate of 20 feet/day. For
10 monitoring wells, the time to drill to depth is assumed to take 10
weeks. The monitoring wells must then be properly installed and
constructed in accordance with Sec. 257.91(e) and other requirements.
Monitoring well development is assumed to take 3 days per well or 30
days for all 10 wells. The last activity is to develop documentation
that records the design, installation, and development of the
monitoring wells, subject to P.E. certification and submit monitoring
well construction records to the appropriate state and federal agencies
(estimate 4-6 weeks). Based on these assumptions, the total time
[[Page 32004]]
estimated for installation of a groundwater monitoring system is
approximately 27-32 weeks, or 7-8.5 months. This deadline includes an
additional 3.5-month buffer to adjust for delays in the field,
installation of new additional wells, additional site characterization
of newly discovered pertinent subsurface features (e.g., faults, karst
features) or other modifications to the workplan based on site-specific
information gained during the monitoring well installation. Thus, EPA
is proposing to require the installation of the groundwater monitoring
system no later than 6 months after the effective date of the final
rule.
ii. Development of the Groundwater Sampling and Analysis Program for
Legacy CCR Surface Impoundments
EPA is proposing to require owners and operators of legacy CCR
surface impoundments to comply with the existing groundwater sampling
and analysis program requirements for CCR surface impoundments,
including the selection of the statistical procedures that will be used
for evaluating groundwater monitoring data. 40 CFR 257.93. See,
proposed regulatory text at Sec. 257.100(f)(4)(ii).
Recommendations and information on how to comply with many of the
requirements for the groundwater sampling and analysis program (e.g.,
analytical procedures, QA/QC controls, sampling protocol) can be found
in the following EPA guidance documents (e.g., RCRA Groundwater
Monitoring: Draft Technical Guidance, 1992, EPA/530/R-93/001; Low-Flow
(Minimal Drawdown) Ground-Water Sampling Procedures, 1996, EPA/540/S-
95/504). To develop the groundwater sampling and analysis program, the
first steps would be to hire a contractor (1 to 2 weeks), review the
groundwater monitoring system installation and other pertinent records
(2 to 4 weeks), and develop the groundwater sampling and analysis
program (4 to 6 weeks). Sometimes in complex hydrogeological settings
(e.g., groundwater flow reversals surrounding CCR units adjacent to a
large river), additional information from synoptic groundwater
elevations may be necessary to refine the sampling program (e.g.,
establish upgradient/downgradient wells) (estimate 2 weeks). Based on
these assumptions, the total time estimated to develop a groundwater
sampling and analysis program is 9 to 14 weeks. The groundwater
sampling and analysis program must include the list of monitoring wells
to be sampled (e.g., sampling network). However, the list of monitoring
wells to be sampled can only be determined after installation of the
groundwater monitoring system which is estimated to take 7 to 8.5
months. If it is assumed that the sampling and analysis program is
developed (~2 to 3.5 months) only after the installation of the
monitoring network (7.5 to 8 months), the total time needed to meet
this requirement is estimated at approximately 9.5 to 11.5 months.
Therefore, building in some buffer time to account for any possible
delays due to complex hydrogeological settings, EPA is proposing that
the sampling and analysis program can be developed no later than 6
months after the effective date of the final rule.
iii. Detection Monitoring Program and Assessment Monitoring Program
Combined
To expedite groundwater monitoring and the initiation of corrective
measures, EPA is proposing to require sampling and analysis of
constituents listed in Appendix IV at the same time as those listed in
Appendix III. The combined sampling and analysis of all Appendices III
and IV constituents will expedite the initiation of corrective
measures, where needed, by at least 6 months.
The existing CCR regulations establish a phased groundwater
monitoring program, consisting of a separate detection monitoring
program, assessment monitoring program, and corrective action program.
Groundwater monitoring begins with detection monitoring by conducting
statistical comparisons between (1) the background level of a
constituent measured in one or more upgradient wells and (2) the level
of that same constituent in a downgradient well. The constituents
monitored in detection monitoring are listed in Appendix III and are
generally constituents that are designed to provide early evidence of a
potential release (e.g., are highly mobile). If the concentration of
the constituent in the downgradient well is higher than the background
concentration by a statistically significant amount, (i.e., a
statistically significant increase (SSI) over background has been
detected), this provides evidence of a potential release from the unit.
If an SSI is detected, the owner or operator must proceed to the
next step, assessment monitoring. Assessment monitoring requires
sampling and analysis for the full list of constituents included in
Appendix IV. In assessment monitoring, concentrations of each Appendix
IV constituent at downgradient wells are compared to a groundwater
protection standard established for each constituent (either a
background level or a regulatory limit). Whenever assessment monitoring
results indicate a statistically significant level (SSL) exceeding the
groundwater protection standard has been detected at a downgradient
well for any of the Appendix IV constituents, the facility must start
the process for cleaning up the contamination by characterizing the
nature and extent of the release and of site conditions that may affect
the cleanup, and by initiating an assessment of corrective measures.
EPA is proposing to require that facilities simultaneously initiate
sampling and analysis of all Appendix III and IV constituents at legacy
CCR surface impoundments to expedite the cleanup of contamination from
these abandoned unlined impoundments. EPA is proposing no other
revisions to the existing groundwater monitoring requirements in
Sec. Sec. 257.90 through 257.95.
Although in 2015 EPA applied the same groundwater monitoring
requirements to both existing and new CCR units, the phased approach to
groundwater monitoring is best suited to situations where there is
little likelihood of pre-existing contamination, such as for new units.
A phased approach provides for a graduated response over time to the
problem of groundwater contamination as the evidence of such
contamination increases. This allows for proper consideration of the
transport characteristics of CCR constituents in groundwater, while
protecting human health and the environment. In contrast, at sites
where the unit has potentially been leaking for a long period of time,
these advantages are outweighed by the need to protect human health and
environment by quickly detecting the constituents of concern in
Appendix IV to expedite any necessary corrective action. See, USWAG 901
F.3d at 427-30. Moreover, there is good reason to believe that many
legacy CCR surface impoundments are contaminating groundwater, given
the large number of presently regulated CCR surface impoundments that
have been found to be leaking.
iv. Detection Monitoring Program and Assessment Monitoring Program--
Deadline for Collection and Analyses of Eight Independent Samples for
Legacy CCR Surface Impoundments
EPA is proposing that no later than 24 months after the effective
date of the final rule, owners or operators of legacy CCR surface
impoundments initiate the detection monitoring program by
[[Page 32005]]
completing sampling and analysis of a minimum of eight independent
samples for each background and downgradient well, as required by Sec.
257.94(b). See proposed regulatory text at Sec. 257.100(f)(4)(iii).
Within 90 days after that, they must identify any SSIs over background
levels for the constituents listed in Appendix III, as required by
Sec. 257.94. To expedite the time to initiate any required corrective
action, EPA is also proposing that by this same deadline they initiate
the assessment monitoring program by establishing groundwater
protection standards and beginning the evaluation of the groundwater
monitoring data for an SSL over groundwater protection standards for
the constituents listed in Appendix IV as required by Sec. 257.95.
Then, if an SSL over a groundwater protection standard (GWPS) for any
of the constituents listed in Appendix IV is found, the owner or
operator of the legacy CCR surface impoundment must perform any
required corrective action in accordance with Sec. Sec. 257.96 through
257.98.
Several commenters on the ANPRM stated that it would be appropriate
to have a fully operational groundwater monitoring systems in place and
begin detection monitoring two years from the rule's effective date and
then to follow the same groundwater monitoring requirements as units
subject to the 2015 CCR Rule. These commenters said that as important
as it is to begin detecting and addressing releases to groundwater, it
is equally important that these complex systems be designed and
installed correctly. According to the commenters, the design and
installation of a groundwater monitoring system generally entails a
number of activities, many of which must occur sequentially, including
determining the uppermost aquifer, deciding whether to install a single
or multiunit monitoring system, collecting and evaluating
hydrogeological information that can be used to model the site,
characterizing the site geology, characterizing the groundwater flow
beneath the site, determining the flow direction and hydraulic
gradient, establishing horizontal and vertical flow direction,
determining hydraulic conductivity, determining groundwater flow rate,
determining the monitoring wells' placement, selecting the drilling
method, designing the monitoring wells, developing sampling and
analysis procedures, choosing a statistical method for evaluating the
data, and beginning detection monitoring.
v. Initial Groundwater Monitoring and Corrective Action Report for
Legacy CCR Surface Impoundments
EPA is proposing to apply the existing requirements in Sec.
257.90(e) to legacy CCR surface impoundments and that owners and
operators of legacy CCR surface impoundments comply no later than
January 31 of the year following the calendar year a groundwater
monitoring system has been established (and annually thereafter). See
proposed regulatory text at Sec. 257.100(f)(4)(iv). This requires the
preparation of an annual groundwater monitoring and corrective action
report. The report must contain specific information identified in the
regulations, including but not limited to maps; aerial images or
diagrams showing the CCR unit and all upgradient (background) and
downgradient wells; identification of any monitoring wells installed or
decommissioned in the previous year; monitoring data collected under
Sec. Sec. 257.90 through 257.98, and a narrative discussion of any
transition between monitoring programs (i.e., detection and assessment
monitoring). Since EPA is proposing to expedite the baseline monitoring
initiation of detection monitoring, and initiation of assessment
monitoring, the requirement to prepare and post the first annual
groundwater monitoring and corrective action report should also be
expedited. This will allow the public to review the groundwater
monitoring results.
g. Closure and Post-Closure Care Criteria for Legacy CCR Surface
Impoundments
The existing closure and post-closure care criteria in Sec. Sec.
257.101 through 257.104 establish specific performance standards
relating to the closure and the subsequent monitoring and maintenance
of CCR units. These criteria are essential to ensuring the long-term
safety of closing CCR units. A brief overview of the existing
requirements is presented in Unit IV.A.2.f.i of this preamble.
The regulations currently provide two options for closing a CCR
unit: closure by removal and closure with waste in place. See Sec.
257.102(a). Each option establishes specific performance standards that
must be met in their entirety. See Sec. 257.102(c) and (d). If the
performance standards for each option can both be met, the regulations
allow a facility to select either of the options. However, a facility
must meet all of the performance standards for the closure option it
has selected, and if it cannot meet all of the performance standards
for one option, then it must select the other option and meet all of
the performance standards for that option. See Sec. 257.102(a).
The existing CCR regulations also include timeframes to initiate
and complete closure activities, as well as criteria under which owners
or operators may obtain time extensions due to circumstances beyond the
facility's control. See Sec. Sec. 257.101 through 257.102. Finally,
owners and operators are required to prepare closure and post-closure
care plans describing these activities. See Sec. Sec. 257.102(b),
257.104(d). EPA is proposing to make the existing regulations
applicable to legacy CCR surface impoundments as discussed specifically
below.
First, based on the data gathered since 2015 from the currently
regulated CCR unit universe, the Agency considers it highly unlikely
that any legacy CCR surface impoundment has a composite liner that
meets the requirements of Sec. 257.71. EPA analyzed the list of
inactive CCR facilities provided in the ANPRM comments and knows that
almost all these facilities were opened prior to 1990 (one facility
opened in 1996) before composite liner systems were typically
installed. Unless legacy CCR surface impoundments are very different
than impoundments at active facilities, EPA expects units of this age
to be unlined as defined by Sec. 257.71. Consistent with the USWAG
decision and the existing regulations in Sec. 257.101(a) mandating
that all unlined (including clay-lined) impoundments must close, EPA is
proposing to explicitly require that all legacy CCR surface
impoundments initiate closure within 12 months of the effective date of
final rule, rather than simply relying on the existing provision in
Sec. 257.101(a). See, proposed regulatory text at Sec. 257.101(e).
Legacy CCR surface impoundments pose unacceptable risks because they
continue to impound liquid, even if closure has been initiated or a
cover system has been installed.
Second, EPA is proposing to explicitly state that the alternative
closure demonstration provisions in Sec. 257.103(f) would not be
applicable to legacy CCR surface impoundments. As a legacy CCR surface
impoundment, by definition, is an inactive impoundment at an inactive
facility, EPA does not believe that any facility will need to continue
to use the unit. Because a continued need to use the disposal unit is a
critical component of the alternative closure demonstrations, it
appears that no legacy CCR surface impoundment could qualify under the
existing provisions. Accordingly, EPA does not believe these provisions
are relevant to legacy CCR surface impoundments.
[[Page 32006]]
i. ANPRM Comments Regarding Closure
Commenters on the ANPRM generally agreed that closure requirements
are appropriate for legacy CCR surface impoundments. However, they
disagreed on the precise requirements that would be appropriate. Some
commenters said a legacy CCR surface impoundment that has been closed
in place must be required to re-close if not closed in a manner that
meets or exceeds the 2015 CCR Rule's provisions for closure in place.
They also said that EPA must not exempt legacy CCR surface impoundments
from closure requirements unless the impoundment was closed in full
compliance with either the closure mandate for removal set out at Sec.
257.102(c), or the closure performance standards, drainage and
stabilization directives, and cover system requirements set out at
Sec. 257.102(d).
Other commenters on the ANPRM agreed that closure and post-closure
requirements would be appropriate for legacy CCR surface impoundments
but stated that the requirements should account for distinctive
elements of some legacy CCR surface impoundments. According to these
commenters, over decades, some legacy CCR surface impoundments have
become ecosystems that support protected species or feature wetlands.
These commenters raised concern that closure activities could
compromise these ecosystems or species whereas leaving the environment
undisturbed is preferable. These commenters stated that if EPA requires
closure of these units, owners should not be required to obtain
necessary approvals or mitigate impacts to aquatic resources or
protected species under other laws. One commenter on the ANPRM said EPA
should not require legacy CCR surface impoundments completing closure
by removal to meet the groundwater performance standards.
Some commenters said EPA should rely on RCRA section 1006(b) to
include a provision in any final rule addressing legacy CCR surface
impoundments that any closure plan for a legacy CCR surface impoundment
approved by a state or federal agency prior to the effective date of
any new regulations would be considered compliant with the new
regulations. According to these commenters, many units are or will be
in the process of closing impoundments pursuant to consent orders,
agreements, and/or state regulatory programs, and forcing units that
are in active closure or that have completed closure to comply with a
new set of requirements risks undoing the careful planning that has
already occurred with state or federal agencies. These commenters
further stated that ``such redundant and retroactive regulation also
risks delaying the closure process and requiring closure work to be
redone.'' According to these commenters, confirming that units
implementing closure plans approved by a state or federal agency would
be deemed compliant with the final legacy CCR surface impoundment
regulations (or that the underlying units are otherwise exempt from the
final regulations) would avoid duplicative, retroactive regulation of
such units, and would allow the regulated community and impacted states
to rely on the closure plans already in place, and would prevent any
delay in completion of closure activities that could be attributed to
uncertainty of the application of requirements for the final rule.
Although several commenters alleged that the closure of legacy CCR
surface impoundments would itself present greater risks than leaving
the disposal unit in its existing state, no commenter presented any
data or analysis to support their claims. EPA also lacks a factual
basis to exempt legacy CCR surface impoundments in the process of
completing closure by removal from the requirement to meet the
groundwater performance standards. In the absence of any record to
support a conclusion that these suggestions meet the statutory standard
in RCRA section 4004(a), EPA cannot adopt them. EPA invites comments
from those with concrete data or analysis, if any, about any specific
legacy CCR surface impoundments as it relates to these questions.
EPA also disagrees that it would be appropriate to establish an
exemption for facilities that are currently in the process of closing
under state requirements. The commenters provided no factual record of
the various state information regarding particular state requirements,
but merely generically reference the existence of state requirements.
This is insufficient information for the Agency to evaluate how the
state requirements compared to the federal requirements. Such a factual
record would be necessary to support any kind of exemption or other
action pursuant to RCRA section 1006(b). More to the point, as
discussed previously, the appropriate mechanism to address concerns
about potentially duplicative state and federal requirements is through
Congressionally-mandated process in RCRA section 4005(d), under which a
state seeks approval to operate its permit program in lieu of the
federal program, rather than this rulemaking.
ii. Preparation of a Written Closure Plan for Legacy CCR Surface
Impoundments
EPA is proposing that owners and operators of legacy CCR surface
impoundments comply with the existing requirements of Sec. 257.102(b)
requiring the preparation of a written closure plan. See proposed
regulatory text at Sec. 257.100(f)(5)(i). The closure plan describes
the steps necessary to close a CCR unit at any point during the active
life of the unit based on recognized and generally accepted good
engineering practices. 40 CFR 257.102(b)(1). The plan must set out
whether the closure of the CCR unit will be accomplished by leaving CCR
in place or through closure by removal and include a written narrative
describing how the unit will be closed in accordance with the section,
or in other words, how the closure will meet all the performance
standards in the regulations. 40 CFR 257.102(b)(1)(i). If the CCR is
left in place, the closure plan must include a description of the final
cover system and how the final cover system will achieve the regulatory
performance standards. If the base of the impoundment intersects with
groundwater, the closure plan would need to discuss the engineering
measures taken to ensure that the groundwater had been removed from the
unit prior to the start of installing the final cover system, as
required by Sec. 257.102(d)(2)(i). The closure plan would also need to
describe how the facility plans to meet the requirements in Sec.
257.102(d)(1) to ``control, minimize or eliminate, to the maximum
extent feasible, post-closure infiltration of liquids into the waste
and releases of CCR, leachate, or contaminated run-off to the ground or
surface waters.'' This could include for example, the installation of
engineering controls that would address the post-closure infiltration
of liquids into the waste from all directions, as well as any post-
closure releases to the groundwater from the sides and bottom of the
unit. The written closure plan must also provide a schedule for
completing all activities necessary to satisfy the closure criteria of
the rule. See also 80 FR 21410-21425, April 17, 2015.
Some commenters said EPA should provide phased and reasonable
compliance deadlines for the development of closure plans prior to
initiation of any groundwater monitoring or closure work. Other
commenters acknowledged the Agency provided 18 months from promulgation
of the 2015 CCR Rule for plants to develop their closure and post-
closure plans and that the amount of time was
[[Page 32007]]
partly dictated by the Agency's commitment to harmonizing the 2015 CCR
Rule with the ELG Rule. Commenters shared that consideration of new ELG
requirements would not be an issue for legacy CCR surface impoundments;
therefore, a shorter planning horizon is reasonable for legacy CCR
surface impoundments such as 6 months from the effective date of a
legacy CCR surface impoundment rule. The commenters further said that
planning is only the first step while unit closure itself can take
years depending on factors such as the size and type of unit. Legacy
CCR surface impoundments would likely require similar closure
timeframes, and possibly additional time if site-specific
accommodations are required such as the presence of a listed or
endangered species. Some commenters agreed that the closure timeframe
provided in the 2015 CCR Rule may be reasonable for legacy CCR surface
impoundments. Other commenters said six months should be the bare
minimum for owners to develop any closure and post-closure care plans
for legacy CCR surface impoundments as closure activities cannot begin
until the closure plan is in place.
When preparing the closure plan, the owner or operator would first
need to hire a contractor to complete the report (1-2 weeks). Next, it
is assumed that the contractor will need to review site-specific
documents, assessments, and analyses that were completed earlier to
meet requirements for other parts of the rule that may impact the
closure plan. Examples of existing documents and assessments reviewed
may include history of construction, initial structural stability
assessment, initial safety factor assessment, initial hazard potential
classification, hydraulic and hydrologic analyses for inundation maps
and potential impact area, annual inspections, groundwater monitoring
system, and groundwater sampling and analysis reports. Assuming all
preceding analyses are completed by their deadlines of 6 months after
the effective date of the final rule, the next step is to review
existing documents and assessments (estimate 4-6 weeks). The next step
is to prepare the written closure plan with the requirements in Sec.
257.102(b) through (j). Since the listed activities are primarily
desktop-related and depend on predecessor requirements, EPA is
proposing a deadline of 12 months after the effective date of the rule
to complete the closure plan. EPA is expediting this deadline for the
reasons described above in Unit IV.A.2.a.ii of this preamble.
iii. Preparation of a Written Post-Closure Care Plan for Legacy CCR
Surface Impoundments
EPA is proposing that owners and operators of legacy CCR surface
impoundments would be required to comply with the existing requirement
in Sec. 257.104(d) regarding the preparation of a written post-
closure. See, proposed regulatory text at Sec. 257.100(f)(5)(ii).
Section 257.104(d) requires that an owner or operator of a CCR unit
prepare a written post-closure plan. The content of the plan includes
among other things, a description of the monitoring and maintenance
activities required for the unit and the frequency that these
activities will be performed.
When developing the post-closure care plan, EPA assumes the
contents of the P.E.-certified plan are stated in the rule Sec.
257.104(d)(1)(i) through (iii) and can be summarized as planned
monitoring and maintenance activities, contact information during post-
closure care period and planned uses of the property. The steps to
prepare the post-closure care plan are assumed to be the same as the
closure plan, with different analysis needed for the post-closure care
period. Since the listed activities are primarily desktop-related and
depend on a number of predecessor requirements, described in Unit
IV.A.2.g.i of this preamble, related to the closure plan, EPA is
proposing to require the post-closure care plan no later than 12 months
after the effective date of the final rule. EPA is expediting this
deadline for the reasons described above in Unit IV.A.2.a.ii of this
preamble.
iv. Initiation of Closure for Legacy CCR Surface Impoundments
As discussed above, the current record indicates that legacy CCR
surface impoundments are largely, if not entirely, unlined, and
therefore, EPA is proposing that they be subject to the existing
requirement to initiate closure that are applicable to other unlined
CCR surface impoundments. See 40 CFR 257.101. Specifically, EPA is
proposing that owners and operators of legacy CCR surface impoundments
initiate closure no later than 12 months after the effective date of
the final rule. See proposed regulatory text at Sec. 257.101(e)(1).
This is 30 months sooner than the earliest date under the 2015 CCR Rule
that owners or operators of CCR units were required to initiate closure
and is expedited for the reasons described above in Unit IV.A.2.a.ii of
this preamble. EPA considered requiring initiation of closure sooner
but believes that 12 months is the minimum amount of time necessary to
collect the information needed to determine whether to close the unit
in place or close by removal. Such information would include the
identification and delineation of the legacy CCR surface impoundment,
the structural stability of the unit, the hydrogeology of the site, and
other site characteristics of the site, and whether any of the
uppermost aquifer has been contaminated, as well as any other relevant
engineering information needed to design the closure. Because many of
the legacy CCR surface impoundments have not been monitored for some
time, this information may not be currently available. However, most of
this information can be obtained through compliance with the
groundwater monitoring and corrective action requirements that EPA is
proposing to establish, as discussed above. Twelve months will provide
sufficient time to complete the steps necessary to obtain this
information. Once the owner and/or operator has the necessary
information, they can develop a closure plan and initiate closure.
One commenter said there should be no mechanism to extend the time
to initiate closure. EPA agrees and, consistent with the existing
requirements for inactive unlined impoundments in Sec. 257.101(a), the
Agency is not proposing to establish a mechanism to extend the deadline
to initiate closure.
Finally, as an alternative to requiring the closure of a legacy CCR
surface impoundment, the Agency solicits comment on whether the
regulations should provide owners and operators the option to retrofit
a legacy CCR surface impoundment in accordance with the retrofit
requirements in Sec. 257.102(k).
v. Deadline To Complete Closure for Legacy CCR Surface Impoundments
The existing CCR regulations currently require (at Sec.
257.102(f)) an owner or operator of existing and new CCR surface
impoundments generally to complete closure activities within five years
from initiating closure. The regulations also establish the conditions
for extending this deadline, as necessary, including documentation
requirements. EPA is proposing that owners and operators of legacy CCR
surface impoundment comply with the existing closure completion
timeframes in Sec. 257.102(f). Most commenters agreed that units
should be provided the same amount of time to complete closure as in
the existing provisions.
[[Page 32008]]
vi. Post-Closure Care for Legacy CCR Surface Impoundments
The existing post-closure care criteria require the monitoring and
maintenance of units that have closed in place for at least 30 years
after closure has been completed. 40 CFR 257.104. During this post-
closure period, the facility would be required to continue groundwater
monitoring and corrective action, where necessary. EPA is proposing to
apply these existing requirements to legacy CCR surface impoundments
without revision. These criteria are essential to ensuring the long-
term safety of legacy CCR surface impoundments.
h. Recordkeeping, Notification, and Internet Posting Criteria for
Legacy CCR Surface Impoundments
The 2015 CCR Rule required at Sec. Sec. 257.105 through 257.107
for owner or operators of CCR units to record certain information in
the facility's operating record. In addition, owners and operators are
required to provide notification to states and/or appropriate Tribal
authorities when the owner or operator places information in the
operating record, as well as to maintain a CCR website for this
information. Commenters on the ANPRM agreed that recordkeeping,
notification and website reporting requirements are appropriate for
legacy CCR surface impoundments.
EPA is proposing that owners and operators of legacy CCR surface
impoundments be subject to the existing recordkeeping, notification and
website reporting requirements in the CCR regulations. The CCR
regulations require the owner or operator of a CCR unit(s) to maintain
files of all required information (e.g., demonstrations, plans,
notifications, and reports) that supports implementation and compliance
with the rule. Each file must be maintained in the operating record for
a period of at least five years following submittal of the file into
the operating record. Submittal into the operating record is required
at the time the documentation becomes available or by the specific
compliance deadline. Section 257.105 contains a comprehensive listing
of each recordkeeping requirement.
Owners or operators are also required to notify State Directors
and/or the appropriate Tribal authority when specific documents have
been placed in the operating record and on the owner's or operator's
CCR website. In most instances, these reports must be certified by a
P.E. and may, in certain instances, be accompanied by additional
information or data supporting the notification. Notification
requirements can be found at Sec. 257.106, and are required for
location criteria, design criteria, operating criteria, groundwater
monitoring, corrective action, closure, and post-closure care.
Commenters on the ANPRM agreed that owners or operators of CCR
facilities should be required to establish a publicly accessible
website where facilities are required to post relevant information
demonstrating compliance with all applicable requirements. They agreed
the website should not be hosted by the state or EPA. They also said
the website should be required to be activated by the effective date of
the final rule.
EPA is proposing that owners and operators of legacy CCR surface
impoundments are also required to establish and maintain a website
titled, ``CCR Rule Compliance Data and Information.'' Unless provided
otherwise in the rule, information posted to the publicly accessible
internet site must be available for a period no less than 5 years from
the initial posting date for each submission. Posting of information
must be completed no later than 30 days from the submittal of the
information to the operating record. EPA is proposing that owners and
operators of legacy CCR surface impoundments have 30 days from the
effective date of the final rule to post applicable information on
their CCR website.
B. CCR Management Unit Requirements
EPA is proposing to establish requirements to address the risks
from currently exempt solid waste management of CCR that involves the
direct placement of CCR on the land. Information obtained since 2015
demonstrates that these exempt solid waste management practices are
currently contaminating groundwater at many sites, and at others, have
the potential to pose risks commensurate with the risks associated with
currently regulated activities. The specific solid waste management
activities at issue are: CCR disposal in surface impoundments and
landfills that closed prior to the effective date of the 2015 CCR Rule,
disposal in inactive CCR landfills, and any solid waste management that
involves the placement or receipt of CCR directly on the land.
As discussed in more detail below, EPA estimates that these solid
waste management practices could pose lifetime cancer risks from
arsenic as high as 2 x 10-5 to 1 x 10-3 (i.e., 2
to 100 cases of cancer for every 100,000 individuals exposed),
depending on the specific management practice. In addition, EPA has
identified recent damage cases, described in Unit IV.B.2 of this
preamble, indicating that these management practices have contaminated
groundwater at currently regulated facilities,\15\ through releases of
constituents commonly found in CCR, such as arsenic, lithium and
molybdenum.
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\15\ Under part 257, subpart D, new and existing CCR landfills
and surface impoundments, including any lateral expansions of these
units, as well as inactive CCR surface impoundments are currently
regulated.
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Based on these data, EPA is proposing to establish a new category
of units that would be subject to a set of requirements tailored to the
characteristics of such units and the risks that they present. These
requirements would include the existing criteria in the CCR regulations
for groundwater monitoring, corrective action, closure, and post-
closure care.
1. Risk Analysis of CCR Management Units
a. Summary of 2014 Risk Record
EPA conducted a national-scale, probabilistic analysis in 2014
titled, Human and Ecological Risk Assessment of Coal Combustion
Residuals (2014 Risk Assessment),\16\ that characterized potential
risks to human and ecological receptors associated with leakage from
CCR surface impoundments and landfills in operation at that time. A
combination of models was used to predict fate and transport of
contaminants through the environment, receptor exposures, and the
resulting risks to human and ecological receptors. The specific
exposure routes evaluated were: (1) Human inhalation of particulate
matter blown from open management units, (2) Human ingestion of crops
and livestock raised on nearby fields, (3) Human ingestion of
groundwater used as a source of drinking water, (4) Human ingestion of
fish caught from freshwater streams, and (5) Ecological contact with
and ingestion of surface water and sediment. Site-specific data were
used where available, supplemented by regional and national data to
fill data gaps, to capture the variability of waste management
practices, environmental conditions, and receptor behavior. EPA
reported risks for both highly exposed individuals and more moderately
exposed individuals. Risks to highly exposed individuals represent a
reasonable maximum estimate that members of the general population
might be exposed to, which were
[[Page 32009]]
calculated as the 90th percentiles of all probabilistic model results.
Risks to moderately exposed individuals represent a more typical
estimate that members of the general population might be exposed to,
which were calculated as the 50th percentiles of all probabilistic
model results.
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\16\ U.S. EPA. 2014. ``Human and Ecological Risk Assessment of
Coal Combustion Residuals.'' RIN 2050-AE81. Office of Solid Waste
and Emergency Response. Washington, DC. December.
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Under RCRA, EPA typically relies on a risk range to determine the
point at which regulation is appropriate. EPA uses as an initial cancer
risk ``level of concern'' a calculated risk level of 1 x
10-5 (one in one hundred thousand) or a hazard quotient (HQ)
above 1.0 for any noncarcinogenic risks. For example, wastestreams for
which the calculated high end individual cancer-risk level is 1 x
10-5 or higher generally are considered candidates for
regulation. Wastestreams whose risks are calculated to be 1 x
10-4 (one in ten thousand) or higher generally will be
considered to pose a substantial present or potential hazard to human
health and the environment and generally will be regulated.
Wastestreams for which these risks are calculated to be 1 x
10-6 (one in one million) or lower, and lower than 1.0 HQ or
environmental risk quotients for any noncarcinogens, generally will be
considered not to pose a substantial present or potential hazard to
human health and the environment and generally will not be regulated.
See 80 FR 21449; 59 FR 66075-66077, December 22, 1994.
EPA first evaluated national-scale risks, as documented in the 2014
Risk Assessment, which provide a snapshot in time of potential risks
across the country. This was accomplished by weighting risks from
individual management practices in proportion to the anticipated
prevalence of those practices. National-scale risks provide important
context as to whether risks are a systemic issue that warrant national
regulations or are limited in scope and better addressed through more
targeted actions. The Agency's evaluation found that the management
practices that EPA believed were generally in current use at surface
impoundments and landfills were likely to pose risks to human health
through groundwater exposure within the range that EPA typically
considers warranting regulation. For highly exposed individuals, the
cancer risks from arsenic due to the operation of surface impoundments
were as high as 2 x 10-4 and noncancer risks from both
lithium and molybdenum were as high as an HQ of 2, while the cancer
risks associated with the operation of landfills were estimated to be
as high as 5 x 10-6 from the ingestion of arsenic-
contaminated drinking water. In contrast, all risks for moderately
exposed individuals fell below EPA's risk range. This was largely
attributed to the fact that many facilities are located next to major
water bodies and so contaminant plumes were frequently intercepted by
these water bodies before they could reach private wells.
EPA next evaluated the risks associated with individual management
practices at surface impoundments and landfills. This was accomplished
by filtering the national-scale model runs to focus only on those that
included the practice of interest and using the filtered set of runs to
calculate risks associated with that specific practice. These
individual risks provide important context about the range of
contaminants and practices that could pose risk at individual sites.
The Agency's evaluation identified two specific management practices
that could lead to risks higher than those identified in the national
risk estimates.
The first practice EPA evaluated was the disposal of CCR in unlined
and clay-lined units. Management in unlined surface impoundments
resulted in cancer risks for arsenic up to 3 x 10-4, as well
as noncancer risks for lithium up to an HQ of 3, molybdenum up to an HQ
of 4, and thallium up to an HQ of 2. Management in unlined landfills
resulted in cancer risks for arsenic up to 2 x 10-5. The
larger increase in arsenic risks identified for unlined landfills above
those for national-scale landfills (2 x 10-5 vs. 5 x
10-6) compared to unlined and national-scale impoundments (3
x 10-4 vs. 2 x 10-4) is because a larger
proportion of landfills nationwide were initially modeled as having a
liner. Since promulgation of the 2015 CCR Rule, it has become clear
that more landfills are unlined than originally estimated. Thus, it is
anticipated that national-scale risks for landfills would actually be
closer to those for unlined units (2 x 10-5), rather than
the lower estimates reported in the 2014 Risk Assessment.
Although clay-lined units tended to have lower risks than unlined
units, they still had potential to result in risks within the range
that EPA considers for regulation under RCRA. Management in clay-lined
impoundments with a liner thickness of three feet resulted in cancer
risks for arsenic of up to 7 x 10-6 and noncancer risks for
lithium up to an HQ of 2, while management in similarly lined landfills
resulted in cancer risks for arsenic up to the 1 x 10-5. The
larger increase in arsenic risks for unlined impoundments above those
for clay-lined impoundments (1 x 10-5 vs. 7 x
10-6) compared to unlined and clay-lined landfills (2 x
10-5 vs. 1 x 10-5) is because the layer of low
conductivity clay counteracts the hydraulic head in impoundments that
would otherwise freely drive greater volumes of leachate into the
subsurface.\17\ In contrast, leachate generation in both types of
landfills is limited far more by the rate of precipitation. As a
result, EPA further considered how reducing the modeled clay liner
thickness of impoundments to the minimum allowable standard of two feet
would affect arsenic risk and found it would increase to as high as 2 x
10-5.
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\17\ The somewhat higher risks identified for clay-lined
landfills compared to similarly lined impoundments are likely
related to site-specific conditions, such as where in the country
these units are located.
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The second practice evaluated was the management of wastes with an
extreme pH. In particular, empirical porewater data revealed that co-
management of CCR with other wastes in surface impoundments had the
potential to result in a highly acidic pH, cancer risks for arsenic up
to 1 x 10-3, and noncancer risks for cobalt and mercury up
to an HQ of 13 and 5, respectively. Laboratory leaching test data also
indicated that highly acidic and basic CCR wastes have the potential to
leach similarly high arsenic concentrations, up to an order of
magnitude higher than under more neutral conditions. Only a small
number of previous landfill model runs considered acidic conditions
based on the information available about conditions in active units;
identified risks for these units were driven by more basic conditions.
Thus, to the extent that at conditions at either extreme of the pH
scale are more prevalent than previously estimated, it is likely that
overall risks from disposal in both surface impoundments and landfills
would be even higher than modeled.
EPA acknowledged in the 2014 Risk Assessment that there were some
additional management practices that may result in higher risk at
individual sites, but that could not be quantitatively modeled with the
data available at the time. One specific example provided was of CCR
disposal below the water table. EPA was unable to quantitatively model
the associated risks as there was little data on how common this
practice was or the extent to which it could affect groundwater
chemistry. Because EPA could not quantitatively model these management
practices (and because the Agency had no information to indicate that
it was a current, widespread management practice), EPA noted only that,
based on its review of damage cases, the damage from the placement of
CCR in sand and
[[Page 32010]]
gravel pits was almost always associated with CCR being placed in
contact with water, which indicated that the placement of CCR in
contact with water can lead to higher risks than from dry disposal. 80
FR 21352, April 17, 2015. EPA further explained that ``in this
situation, the sorption that occurs in the unsaturated zone of the risk
assessment model does not occur in the field. This and other site-
specific risk factors could lead to additional contamination beyond
what was modeled nationwide.'' 2014 Risk Assessment at pages 5-48. As a
consequence, EPA specifically included sand and gravel pits that
received CCR in the definition of CCR landfills covered by the
regulations. 80 FR 21354.
EPA believes the groundwater data that have since been collected
from monitoring systems installed around surface impoundments and
landfills generally validates the findings of the 2014 Risk Assessment.
For example, one limited analysis from 2019 of the groundwater data
collected as part of the required facility monitoring programs found
arsenic, molybdenum, and lithium are the constituents most likely to be
found at concentrations above GWPS in compliance wells.\18\ These data
broadly confirm that these three constituents, which were identified as
the primary risk drivers by national-scale modeling, are among those
found most frequently at elevated levels in site groundwater monitoring
wells.
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\18\ Environmental Integrity Project. 2019. ``Coal's Poisonous
Legacy: Groundwater Contaminated by Coal Ash Across the U.S.''
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b. Risks From Historical Disposal Units
The 2014 Risk Assessment could not directly model risks associated
with disposal units that had previously closed or become inactive, as
there was little to no information available about the numbers,
locations, and characteristics of these historical units. However,
based on information obtained since 2015, EPA now expects that risks
posed by the management of CCR in inactive or closed landfills and
closed surface impoundments at electric utilities could pose risks to
nearby receptors that are, at a minimum, similar to the levels and
kinds of risks posed by the currently regulated universe of CCR
landfills and surface impoundments.
The unregulated units contain similar types of ash and are located
on the same facilities, often in close proximity to and sometimes
underneath the currently regulated units. Therefore, the risks
associated with historical impoundments and landfills are expected to
be similar to those modeled for the currently regulated units. Even if
the historical impoundments have subsequently been at least partially
dewatered or have undergone some kind of closure, the current absence
of impounded water does not negate the releases that occurred during
operation of the unit. In addition, if precipitation can continue to
freely migrate into the unit, (e.g., because it lacks an effective
cover system), any leachate generated as a result would be a potential
ongoing source of contamination, particularly where the unit is already
leaking or in contact with groundwater. In general, it is expected that
these historical units have been present for longer than the currently
operating units at the same sites and so would have had more time to
leak. As a result, previous and ongoing releases from these historical
units could potentially be greater and have migrated further from the
unit than releases from the currently regulated universe of units.
Furthermore, as described below, there are a number of additional
reasons to believe that the potential magnitude of releases from
historical disposal is even greater than EPA modeled in 2014 for the
currently regulated units.
First, many facilities have historically disposed of CCR in
landfills and surface impoundments that lack adequate liner systems.
Based on surveys conducted by EPA between 2009 and 2010 (hereafter
``EPA surveys''), EPA estimated in the 2014 Risk Assessment that 33% of
landfills and 17% of impoundments had composite liners.\19\ It has
since become clear that even fewer units are lined. EPA's review of
liner demonstration documents posted on facilities' CCR websites found
that only 8% of landfills and 6% of impoundments in operation attest to
having a standard or alternative composite liner. It is unlikely that
historical units were lined at higher rates, particularly those
constructed prior to the promulgation of minimum standards for disposal
in RCRA subtitle D landfills in 1991. See, 40 CFR part 257, subpart A
and part 258. Most of the coal-fired utilities in the United States
were constructed before 1990.\20\ Therefore, the risks associated with
historical disposal units are likely to be at least as high as 2 x
10-5 based on the estimates of the risks associated with the
management of CCR in unlined landfills in the 2014 Risk Assessment.
This risk estimate for historical landfills would be almost an order of
magnitude higher than the national-scale risks associated with the
management of CCR in landfills modeled in the 2014 Risk Assessment.
This risk estimate would also be twice the level of risk that EPA
typically considers for regulation and is the same level of risk as
those associated with the clay-lined CCR surface impoundments that the
D.C. Circuit required to close.
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\19\ U.S. EPA. 2014. ``Human and Ecological Risk Assessment of
Coal Combustion Residuals.'' RIN 2050-AE81. Office of Solid Waste
and Emergency Response. Washington, DC. December.
\20\ United Stated Energy Information Administration. 2017.
``Most Coal Plants in the United States were Built Before 1990.''
Accessed online at: https://www.eia.gov/todayinenergy/detail.php?id=30812.
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Second, some facilities conduct coal preparation activities prior
to combustion. These activities may include coal handling by conveyor
systems, coal washing for removing mineral matter, and coal ``sizing''
to reduce the average particle size of coal. The wastes generated from
coal preparation activities are collectively referred to as ``coal
refuse.'' Some facilities have been known to dispose of coal refuse
together with CCR. Such co-disposal can have a pronounced effect on the
leaching behavior of CCR because of the potential for the refuse to
make the overall waste pH far more acidic. Available Leaching
Environmental Assessment Framework (LEAF) leaching data considered in
the 2014 Risk Assessment show that multiple Appendix IV constituents
are most soluble at an acidic pH and thus able to leak at higher rates.
As a result, EPA found modeled risks were often highest when CCR was
disposed with coal refuse. For example, the modeled cancer risks for
the co-disposal of ash and coal refuse (pH 1.7-8.2) in surface
impoundments ranged between 1 x 10-3 for trivalent arsenic
to 4 x 10-4 for pentavalent arsenic. Non-cancer risks were
similarly high, ranging between and an HQ of 13 for cobalt and HQ of 14
for pentavalent arsenic to 26 for trivalent arsenic, based on the
ingestion of contaminated drinking water.
The practice has declined over time. A survey conducted by Electric
Power Research Institute (EPRI) in 1995 showed 34 percent of unlined
landfills and 68 percent of unlined surface impoundments actively
managed CCR with coal refuse.\21\ In contrast, EPA surveys indicated
that, by 2014 this management practice had declined to around 5% of all
operating units. EPA's 2014 national-scale modeling was based on the 5%
reported in the EPA surveys, and as a consequence, this practice had
minimal influence on the overall
[[Page 32011]]
nationwide risk estimates in the 2014 Risk Assessment. However, it is
clear from the EPRI data that management of CCR with coal refuse used
to be far more common. Therefore, the risks associated with historical
disposal units, such as closed units or inactive landfills, are likely
to be higher than the national-scale risks reported in the 2014 Risk
Assessment.
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\21\ EPRI. 1997. ``Coal Combustion By-Products and Low-Volume
Wastes Comanagement Survey.'' Palo Alto, CA. June.
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Finally, it is known that facilities have disposed of CCR in units
that either have been constructed beneath the water table or have since
become inundated with groundwater. EPA's review of the location
restriction demonstrations posted on facilities' CCR websites found
that approximately 31% of operating impoundments have waste below the
water table; similar data are not available for landfills. EPA
previously identified disposal below the water table as a management
practice that could result in higher risks than those modeled in the
2014 Risk Assessment. Since promulgation of the 2015 CCR Rule, it has
become apparent that the practice of disposing of CCR below the water
table is more common than previously understood. Given that most
historical landfills and impoundments are located on the same sites as
the currently operating units, and are therefore located in the same
hydrogeologic environments, there is good reason to believe that such
units at some of these sites were constructed in contact with the water
table or have since become inundated with groundwater.
The greater prevalence of this management practice has significant
implications for the risks associated with CCRMU. First, a CCR landfill
saturated with water during operation, either continuously or
intermittently, would have behaved more like an operating CCR surface
impoundment, even though such a unit would not have the hydraulic head
from ponded water present in an operating impoundment. The hydraulic
head from the ponded water in an operating impoundment unit allows for
continual leaching of contaminants from the CCR and drives the
resulting leachate into underlying soils and potentially into the
underlying aquifer. However, where any part of the unit is actually
constructed below the water table, the conditions caused by the
continuous saturation of the CCR by the groundwater flowing in and out
of the unit allow the contaminants in the unit to continuously leach
directly into the nearby ground and surface waters, even without any
downward pressure from hydraulic head pushing leachate out of the unit.
Second, for the same reasons, closed units and inactive landfills that
continue to be saturated by groundwater will continue to present these
same risks, even though no additional CCR will have been added to the
unit.
Further there are several ways in which disposal below the water
table can result in higher risks than EPA originally estimated in 2014.
One of these is that it has the potential to alter groundwater
chemistry in ways that increase either the solubility or mobility of
CCR contaminants. This is due to the residual, unburnt organic matter
in CCR serving as a carbon source (i.e., substrate, electron donor) for
bacteria in the soil. Bacteria preferentially use any dissolved oxygen
(O2) for oxidation of organic matter (i.e., electron
transfer from the organic matter to oxygen) because this yields the
greatest energy returns for the bacteria. With a sufficient source of
biodegradable organic matter, bacterial consumption of oxygen can
outpace replenishment of dissolved oxygen that occurs through diffusion
from the atmosphere and infiltration of precipitation. Depletion of
oxygen is more likely to occur in saturated soils because the constant
presence of water allows biological activity to proceed unimpeded by
periods of drying, the relatively slow flow rate of groundwater does
not transport dissolved oxygen from the upgradient side of the unit
fast enough to outpace consumption across the footprint of the unit,
and sustained saturation of the soil limits oxygen exchange with the
atmosphere. In the absence of oxygen, bacteria will instead use
nitrate, manganese, iron, sulfate, and other compounds for reduction of
organic matter (i.e., electron transfer to organic matter from other
compounds). Such reducing conditions will not affect all constituents
equally, serving to mobilize some and immobilize others. However,
reducing conditions can mobilize arsenic, the primary source of risks
identified in the 2014 Risk Assessment, in two primary ways. First, the
transformation of iron, sulfur, and other minerals in the ash and soil
can free arsenic that was either complexed with or sorbed onto these
minerals. Second, reducing conditions can change the dominant oxidation
state of arsenic (i.e., how many electrons the atom has gained or lost
in its present state), resulting in a more mobile form that is not
retained as well on the soil surface.
Research conducted since the 2014 Risk Assessment has better
documented the potential effects of disposal below the water table on
leakage from CCR units. Studies published in 2022 examined, among other
things, the degree to which environmental conditions can differ within
the same closed impoundment, both above and below the water
table.22 23 Specifically, arsenic concentrations measured in
the water intermingled with CCR collected from beneath the water table
were as high as 4,100 [micro]g/L due to the presence of reducing
conditions and a near neutral pH of 8. That concentration is
substantially higher than 20 [micro]g/L, measured from the same ash
with LEAF Method 1313 at a similar pH, or 780 [micro]g/L, which is the
90th percentile of all impoundment porewater measurements previously
compiled by EPA. Altogether this indicates that the 2014 Risk
Assessment, which relied on data from these two sources, may have
underestimated the potential magnitude of leakage from CCR units under
reducing conditions. Data collected using LEAF methods, like all
standardized leaching tests, tend to reflect oxidizing conditions due
to contact between the sample and the atmosphere during sample
collection and laboratory analysis. It has since been recognized that
further analysis of leachate data with geochemical speciation models
may be warranted when field conditions diverge from those present in
the laboratory setting (e.g., reducing conditions).\24\ Data from the
Agency's empirical porewater dataset may reflect reducing conditions to
some degree because the ash in these units remains saturated. Yet,
there are reasons to believe that reducing conditions would not be as
common or extreme in operating impoundments. Operating impoundments are
open to the air, frequently have new water sluiced into them, and may
be periodically dredged. These conditions introduce oxygen into the
impoundment far faster and more frequently than a closed and capped
impoundment. For all these reasons, it is likely that long-term
disposal of CCR below the groundwater table, whether in a closed or
partially dewatered impoundment, a closed or inactive landfill, or
other method of management, can pose risks
[[Page 32012]]
similar to or even greater than previously modeled for operating
surface impoundments.
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\22\ Wang, X., A.C. Garrabrants, Z. Chen, H.A. van der Sloot,
K.G. Brown, Q. Qiu, R.C. Delapp, B. Hensel, and D.S. Kosson. 2022.
``The Influence of Redox Conditions on Aqueous-Solid Partitioning of
Arsenic and Selenium in a Closed Coal Ash Impoundment.'' Journal of
Hazardous Materials. 428:128255.
\23\ Wang, X, H.A. van der Sloot, K.G. Brown, A.C. Garrabrants,
Z. Chen, B. Hensel, and D.S. Kosson. 2022. ``Application and
Uncertainty of a Geochemical Speciation Model for Predicting
Oxyanion Leaching from Coal Fly Ash under Different Controlling
Mechanisms.'' Journal of Hazardous Materials. 438:129518.
\24\ U.S. EPA. 2019. ``Leaching Environmental Assessment
Framework (LEAF) How-To Guide: Understanding the LEAF Approach and
How and When to Use It.'' Office of Land and Emergency Management.
Washington, DC. May.
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Based on the various lines of evidence outlined above and confirmed
by the damage cases discussed in the next Unit of the preamble,
historical disposal practices for CCR diverge from current practices in
several material ways. Each of these practices individually have the
potential to result in risks even higher than those previously modeled
for the currently operating universe of CCR units, and a combination of
these practices could push risks even higher.
2. Damage Cases
EPA has a long history of considering damage cases in its
regulatory decisions under RCRA. RCRA specifically directs EPA, when
making a Regulatory Determination for CCR, to consider ``documented
cases in which danger to human health and the environment from surface
run-off or leachate has been proved,'' demonstrating that such
information is to carry great weight in decisions of whether and how to
regulate such wastes. 42 U.S.C. 6982(n)(4). See also 42 U.S.C.
6982(n)(3). In addition, damage cases are among the criteria EPA must
consider under its regulations for determining whether to list a waste
as a ``hazardous waste.'' See 40 CFR 261.11(a)(3)(ix). EPA also relied
on damage cases to develop the specific requirements for CCR in part
257, subpart D. See, 80 FR 21452-21459.
Damage cases generally provide direct evidence of both the extent
and nature of the potential risks to human health and the environment
that have resulted from actual waste management practice. For example,
in the 2015 CCR Rule, EPA relied on damage cases to identify actual
management practices that resulted in harm above and beyond that
already identified through modeling. Based on the damage cases, EPA
identified several additional constituents (antimony, barium,
beryllium, chromium, selenium, and lead) that were added to the
Appendix IV list for groundwater monitoring. For CCRMU, EPA is relying
on the damage cases to further support the results of the modeling
discussed in the preceding Unit of this preamble and to better
understand the characteristics of the sites and units, as well as the
management practices, in order to develop appropriate requirements.
a. Data Sources Reviewed
In response to the ANPRM, EPA received comments that contained
information stating that groundwater contamination was occurring at
many sites from federally unregulated units such as inactive landfills,
closed landfills, and fill. Additionally, EPA received comments,
reports, and data from states, nongovernmental organizations, citizen
groups, and other stakeholders, regarding groundwater contamination
from currently unregulated CCR sources. EPA also reviewed comments
received on the ANPRM. One commenter, Earthjustice et al., said:
EPA only regulates CCR landfills that were active after October
2015, which leaves hundreds of coal ash landfills [to] escape all
closure, source control, and remediation requirements. Commenters
now know that these coal ash landfills are currently causing serious
groundwater contamination. The analysis of the Ashtracker \25\ data
presented in these comments shows that the vast majority of CCR
landfills threaten human health and the environment. Data indicate
that distinctions based on landfill type or the date that the unit
ceased operation are effectively meaningless from a risk
perspective. Unless EPA addresses the threats posed by inactive
landfills, the CCR Rule will continue to fall short of the RCRA
protectiveness standard. Serious and ongoing harm caused by coal ash
will never be resolved, until EPA applies its regulatory oversight
to these toxic open dumps.
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\25\ Ashtracker provides public access to industry-reported data
from state and company records about groundwater contamination at
coal ash dumps. It can be accessed at https://www.ashtracker.org.
Earthjustice et al., also provided a list of 47 potential inactive
landfills \26\ identified in EPA Information Request Responses from
Electric Utilities,\27\ EPA Human and Ecological Risk Assessment of
Coal Combustion Residuals (Dec. 2014),\28\ and U.S. Energy Information
Administration (EIA) Monthly Electric Generator Inventory (``EIA
860M'').\29\
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\26\ EPA-HQ-OLEM-2020-0107-0073.
\27\ Database Results (Excel) 04-12-12 at https://archive.epa.gov/epawaste/nonhaz/industrial/special/fossil/web/html/index-3.html and Summary Table for Impoundment Reports (.xls)--July
31, 2014, at https://archive.epa.gov/epawaste/nonhaz/industrial/special/fossil/web/html/index-4.html. Available at EPA-HQ-OLEM-2020-
0107-0003.
\28\ U.S. EPA. 2014. ``Human and Ecological Risk Assessment of
Coal Combustion Residuals.'' RIN 2050-AE81. Office of Solid Waste
and Emergency Response. Washington, DC. December. Docket ID No. EPA-
HQ-RCRA-2009-0640-11993.
\29\ https://www.eia.gov/electricity/data/eia860m/.
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EPA reviewed these data and found the information used to support
the 2015 CCR Rule included EIA data that estimated which power plants
disposed of CCR either wet (in CCR surface impoundments) or dry (in CCR
landfills) to estimate the number of CCR units on-site. These 2014
estimates of CCR units were not always verified at the time, nor did
the data contain actual unit names or exact numbers of units on-site,
nor were the commenters data unit specific with unit names or other
identifying features. However, since 2016,\30\ the Agency has been
reviewing the documents posted on facilities' CCR websites for
compliance with CCR regulations. Specifically, EPA has reviewed
groundwater monitoring reports, assessment of corrective measures
reports, corrective measures progress reports, remedy selection
reports, history of construction reports, closure plans and reports,
and fugitive dust control plans for facilities with CCR websites from
2018, 2019, 2020, and 2021. Through the review of information posted by
facilities on CCR websites and implementation of the 2015 CCR Rule, EPA
has better estimates of the different types of units at regulated
facilities. Some of the differences between the 2014 Risk Assessment
data, 2014 Regulatory Impact Analysis (RIA), and the current known
universe of regulated facilities are due to differences in reporting
between cells versus units, general assumptions about the number of
wet/dry units at a facility, changes in unit names over time due to
different waste management practices, and inclusion of storage
impoundments that were later determined to not contain CCR and
therefore were not CCR surface impoundments.
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\30\ In December 2016, the Water Infrastructure Improvements for
the Nation (WIIN) Act gave EPA enforcement authority under RCRA
sections 3007 and 3008 for the CCR regulations. See RCRA section
4005(d).
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Through review of groundwater monitoring and corrective action
reports, EPA found many instances where the owners or operators of CCR
facilities claimed that the detection of an SSI or SSL in
concentrations of Appendix III or IV constituents in groundwater came
from a CCRMU rather than the monitored regulated CCR unit. Whenever a
facility determines that there is an SSI over background levels for one
or more of the constituents in Appendix III at a monitoring well at the
downgradient waste boundary, the regulations allow the facility an
opportunity to complete an alternative source demonstration (ASD)
showing that a source other than the unit (i.e., an alternative source)
was the cause of the SSI. Section 257.94(e)(2). The regulations provide
a similar opportunity whenever assessment monitoring results indicate
that an SSL exceeding the GWPS has been detected at a downgradient well
for any of the Appendix IV constituents. 40 CFR 257.95(g)(3). If a
successful ASD for an SSL is not completed within 90 days, corrective
action must be initiated.
[[Page 32013]]
Specifically, EPA found in reviewing groundwater monitoring and
corrective action reports that 42 ASDs or assessments of corrective
measures (ACMs) concluded that a federally unregulated CCR source was
responsible for the SSI or SSL. In Unit IV.B.2.b and c of this preamble
are several examples (i.e., damage cases) where owners or operators of
CCR facilities claimed that an SSI or SSL is attributable to a CCR
source rather than the federally regulated CCR unit.
In addition to reviewing the groundwater monitoring and corrective
action reports, EPA also reviewed the history of construction reports,
closure plans and reports, and fugitive dust control plans for
facilities with CCR websites from 2018, 2019, 2020, and 2021. These
documents contained either site maps, which identified currently
regulated units, and in some cases, inactive or closed units at the
facility, or narrative discussions of the site history, which included
identification of where CCR were previously disposed or managed at the
facility. Through this review, EPA found 65 references to CCR that are
managed or disposed outside federally regulated CCR units; however, EPA
was not able to find additional information about these units including
whether groundwater monitoring has been conducted.
Given the available data about CCR facilities, the Agency reviewed
the records for evidence of inactive landfills at active CCR facilities
and inactive CCR facilities. EPA reviewed the available data and found
clear, written documentation of about 34 inactive or closed CCR
landfills at 22 CCR facilities. In addition, EPA evaluated those
verified inactive or closed CCR landfills and found evidence from ASD
reviews that eight landfills were identified as contaminating
groundwater. Some of the landfills are adjacent to a federally
regulated CCR unit and some are below federally regulated CCR units but
are not considered part of the regulated unit. This is the available
information that the Agency has regarding inactive CCR landfills and
EPA has no information to suggest a different situation regarding
inactive CCR landfills.
After reviewing all of this information, EPA identified a total of
134 areas at 82 active facilities \31\ where CCR is being managed, but
which remain exempt under existing federal CCR regulations. These areas
include inactive CCR landfills, closed CCR landfills, closed CCR
surface impoundments, and other solid waste management areas of CCR.
Through further investigation, EPA found 42 federally unregulated units
with documentation that the units are potentially contaminating
groundwater. Of those, EPA found evidence that eight were associated
with closed CCR landfills, one related to an inactive CCR landfill, 22
pertained to closed CCR surface impoundments, three involved CCR
disposed below the regulated CCR unit, and eight related to CCR
disposed or managed in other solid waste management areas. A subset of
examples of these 42 federally unregulated units are briefly summarized
below; first for facilities that attributed an SSL associated with a
federally regulated landfill or impoundment to the federally
unregulated unit and second where SSIs are attributed to a federally
unregulated unit. Although some of these units are being regulated or
addressed by states, it does not negate the need to expand the federal
CCR regulations to address contamination and potential risks from CCRMU
across the nation.
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\31\ This information can be found in the document titled
``Potential CCR Management Units'' in the docket for this action.
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b. Examples of CCRMU With Identified SSLs
Under the existing CCR regulations, when a facility determines
there is an SSL for one or more Appendix IV constituents and completes
a successful ASD showing that a source other than the regulated unit is
the cause of the SSL(s), the facility is not required to initiate
corrective action for that particular constituent. Through ASD reviews,
EPA identified several areas at active facilities where CCR was managed
outside of a regulated unit and was identified as a source of one or
more Appendix IV SSL(s). The following facilities are examples of
situations in which potential CCRMU have been identified as the source
of an SSL and demonstrate the need to expand the federal CCR
regulations as EPA is proposing in this preamble.
James H Campbell Power Plant, West Olive, Michigan
The JH Campbell Power Plant, owned and operated by Consumers Energy
Company, is located within a mile of Lake Michigan. The facility has
five regulated CCR units, including three CCR surface impoundments
(Pond A, Bottom Ash Ponds 1-2, and Bottom Ash Pond 3) and two CCR
landfills. The ``wet ash ponds area'' is approximately 267 acres and is
bounded by perimeter dikes with a system of internal dikes separating
the individual ash ponds. In addition to the five regulated CCR units,
there are at least seven other unregulated, unlined ``closed''
impoundments \32\ that ceased placement of waste prior to October 19,
2015, do not have an engineered cap nor vegetative cap, and have a
closure plan that was approved by the State. Based on the groundwater
monitoring report reviews, there were SSIs over background at many
wells at all units and some had an SSL for arsenic and selenium. At
Pond A, which closed with waste in place in 2019, there are SSIs for
boron and sulfate, and SSLs were identified for arsenic (13 [micro]g/L
[MCL of 10 [micro]g/L]) and selenium \33\ (143 [micro]g/L [MCL of 50
[micro]g/L]) for which an assessment of corrective measures was
completed, and the selected remedy is source removal and final cover as
the primary corrective action. In the 2021 Annual Groundwater
Monitoring and Corrective Action Report posted in January 2022,
Consumers Energy concluded there was an ASD for Pond A and said,
``Increases in Appendix III constituents (e.g., boron) and direct
exceedances of the selenium GWPS in JHC-MW-15011, JHC-MW-15010, JHC-MW-
15009, and JHC-MW-15008R that have not yet resulted in a statistically
significant exceedance suggest a detectable influence from the
immediately adjacent, upgradient, closed, pre-existing CCR units on-
site. The closed, preexisting units are not regulated under the RCRA
CCR Rule, but remedial action is being taken under Consent Agreement
WMRPD No. 115-01-2018. A [remedial action plan] for these units was
submitted to [Michigan's Department of Environment, Great Lakes, and
Energy] on September 30, 2021.'' During the 2021 groundwater monitoring
period for Bottom Ash Ponds 1-2, which closed by removal in 2018, SSIs
were identified for boron, calcium, chloride, pH, sulfate, and total
dissolved solids (TDS); also, one SSL was identified for arsenic (38
[micro]g/L [MCL of 10 [micro]g/L]).\34\ An assessment of corrective
measures has been completed for the CCR unit and the primary selected
remedy is source removal and final cover. Consumers Energy also said in
the 2022 semiannual
[[Page 32014]]
progress report that the facility is reevaluating the groundwater
``monitoring system for [Bottom Ash] Ponds 1-2 to more accurately
account for the influence from the closed, pre-existing units.''
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\32\ These ``closed'' impoundments (Pond B, Pond C, Pond D, Pond
F, Pond G (G1 and G2), Pond H, and Pond K) are listed in a figure on
page 12 of the 2021 Annual Groundwater Monitoring and Corrective
Action Report, JH Campbell Power Plant Pond A, January 2022,
Prepared for Consumer's Energy.
\33\ JH Campbell Semiannual Progress Report--Selection of
Remedy, Ponds 1-2 North and 1-2 South, and Pond A, July 30, 2022.
Pages 3-4.
\34\ Annual Groundwater Monitoring and Corrective Action Report,
JH Campbell Power Plant Ponds 1-2 North and 1-2 South, January 2022,
Prepared for Consumers Energy. Page 23.
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New Castle Generating Station, Pennsylvania
GenOn Power Midwest LP (GenOn) operates the New Castle Generating
Station located in West Pittsburg, Pennsylvania. The New Castle
Generating Station has two CCR units subject to the regulations--an
impoundment (North Bottom Ash Pond) and a landfill (New Castle Plant
Ash Landfill). Each of these CCR units has relevance to this proposal
due to other unregulated disposal units located adjacent to the
regulated CCR units.
The North Bottom Ash Pond was used for the management of bottom ash
until 2016 when the facility transitioned from coal to natural gas.
After the transition to natural gas, GenOn initiated closure of the
North Bottom Ash Pond by removing all waste from the impoundment.
Closure of the impoundment was certified in 2019.\35\ Groundwater
monitoring associated with the impoundment while the unit was operating
detected arsenic at SSL above the GWPS in all downgradient monitoring
wells.\36\ In accordance with the procedures in the regulations for CCR
units in 40 CFR 257.94(e)(2), GenOn determined that an alternative
source was responsible for these SSLs of arsenic. Specifically, the ASD
found that a 120-acre unlined CCR surface impoundment located
immediately adjacent to the North Bottom Ash Pond was responsible for
the arsenic concentrations in the downgradient monitoring wells.\37\
According to the 2019 Annual Report prepared by GenOn, there were SSLs
for arsenic (0.087 mg/L [MCL of 10 [micro]g/L]) in the downgradient
monitoring wells.\38\ Consequently, because the SSLs of arsenic were
attributed to another source (i.e., a former unlined CCR surface
impoundment), GenOn concluded it was not required to remediate the
arsenic contamination under the federal CCR regulations.
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\35\ CCR Compliance, Closure Certification Report, Closure by
Removal, New Castle North Bottom Ash Pond. June 2019.
\36\ Id. At 5.
\37\ Id.
\38\ CCR Compliance, Groundwater Monitoring and Corrective
Action Annual Report, New Castle North Ash Pond and Ash Landfill.
January 2020.
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GenOn also determined that there were SSIs above background levels
for multiple analytes at the New Castle Plant Ash Landfill (Ash
Landfill), which is the other regulated CCR unit at the New Castle
Generating Station. In its most recent annual groundwater monitoring
report in 2022, GenOn reported SSIs for boron, calcium, fluoride,
sulfate, and total dissolved solids.\39\ GenOn determined that an
alternative source was responsible for these analyte increases,
specifically pointing to an ``underlying historic ash impoundment and
other closed stages of the landfill.'' \40\ Prior to development of the
60-acre Ash Landfill, CCR was disposed in an impoundment from
approximately 1939 to 1978.\41\ After the impoundment was dewatered in
1978, dry CCR was disposed in this area in several stages of CCR
placement up until the time Ash Landfill began operation. Since 2018,
GenOn has attributed SSIs for boron, calcium, fluoride, sulfate, and
TDS to this historic disposal of CCR.
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\39\ CCR Compliance, Groundwater Monitoring and Corrective
Action Annual Report, New Castle Ash Landfill. December 2022.
\40\ Id. At 3.
\41\ New Castle Plant Ash Landfill--Annual CCR Unit Inspection
Report. January 16, 2018.
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Huntington Power Plant, Utah
The Huntington Power Plant in Huntington, Utah is owned and
operated by PacifiCorp and has one regulated unit, the Huntington CCR
Landfill. While conducting the required groundwater monitoring for the
Huntington CCR Landfill, there were SSLs for chromium, cobalt, lithium,
molybdenum, selenium, fluoride, and arsenic, so the owner and operator
conducted assessment of corrective measures. There is also a former
combustion waste landfill called the Old Landfill, which is located
northwest of the regulated Huntington CCR Landfill. The ACM report \42\
assumes the SSLs are the result of groundwater interactions with both
the Huntington CCR Landfill and the Old Landfill. Both landfills have
stormwater run-on from the area surrounding the landfill. This run-on
is routed around the landfills via diversion ditches and run-off from
the landfills itself is collected and retained in a sediment basin
north of the Huntington CCR Landfill. The facility is implementing a
remedy to address releases only from the regulated CCR Huntington
Landfill, but the remedy selection report \43\ does not appear to
address releases from the Old Landfill.
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\42\ Corrective Measures Assessment CCR Landfill--Huntington
Power Plant Huntington, Utah. May 2019.
\43\ Remedy Selection Report CCR Landfill--Huntington Power
Plant, Huntington, Utah. August 2020.
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J.B. Sims, Grand Haven, Michigan
The J.B. Sims Generating Station, owned and operated by Grand Haven
Board of Light and Power, is located on Harbor Island, north of Grand
Haven, Michigan. Harbor Island is bound to the north, east, and west by
the Grand River and to the south by the South Channel, tributaries of
Lake Michigan. The facility has two federally regulated CCR units (Unit
1 & 2 and Unit 3), both of which are inactive, unlined surface
impoundments. Unit 1 & 2 is approximately 1.2 acres and includes areas
where, prior to October 19, 2015, CCR was placed in unlined
impoundments and used as fill in low-lying areas of adjacent wetlands.
Unit 3 is approximately 0.5 acres and was built on top of historically
placed CCR. The boundary of Unit 1 & 2 was updated in an agreement with
EPA and the State in January 2021,\44\ to include an area that received
CCR prior to 1978. Therefore, the groundwater monitoring network and
closure plan are currently being updated to reflect the new boundary
and better address contamination from historical CCR across the
units.\45\ Additionally, in March 2022, the State issued an enforcement
notice \46\ to J.B. Sims citing inadequate groundwater monitoring and
failure to address all areas where CCR were managed (e.g., stored,
placed) prior to disposal during the unit's operation. As such, the
facility is considering expanding Unit 3's groundwater monitoring
network. The units are often partially flooded, and groundwater
elevations and flow direction are influenced by precipitation and water
levels in the Grand River and the South Channel.
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\44\ The meeting between Grand Haven Board of Light and Power,
the state, and EPA during which the new boundaries for Unit 1 & 2
were agreed to is discussed on page 3 (PDF page 10) of the 2021
Annual Groundwater Monitoring & Corrective Action Report by Golder
Associates. January 28, 2022.
\45\ Letter to Grand Haven Board of Light and Power-Update To
The October 14, 2019 J.B. Sims Generating Station Inactive Units \1/
2\ Impoundment And Unit 3 Closure Plan--Interim Conditions For
Closure. October 22, 2021.
\46\ The State of Michigan, Department of Environment, Great
Lakes, and Energy (EGLE) issued an enforcement notice via email
March 22, 2022, to Grand Haven Board of Light and Power, J.B. Sims.
---------------------------------------------------------------------------
Based on groundwater monitoring report reviews, both units have had
SSIs and SSLs since groundwater monitoring was initiated in 2017.
During 2021, both Unit 1 & 2 and Unit 3 had SSIs for all Appendix III
constituents and SSLs for arsenic (98 [micro]g/L [MCL is 10 [micro]g/
L]), chromium (270 [micro]g/l [MCL is 100 [micro]g/L]), cobalt (22
[micro]g/l [GWPS is 6 [micro]g/L], fluoride (13 mg/L [MCL is 4 mg/L]),
and
[[Page 32015]]
lithium (2800 [micro]g/L [site-specific GWPS is 59 [micro]g/L]).\47\ In
December 2020, J.B. Sims submitted an ASD for Unit 3's 2019 SSLs for
chromium, cobalt, fluoride, lead, and lithium, pointing to the historic
fill across the island as the source of the SSLs.48 49
Furthermore, the Fourth Quarterly 2021 Monitoring Report suggested the
continued SSIs and SSLs at Unit 3 were due to historical CCR fill
beneath the unit, historical fill outside of Unit 1 & 2, and waste
historically placed across the site.\50\ However, until the groundwater
monitoring networks are finalized, the extent of groundwater
contamination and the source of all contamination cannot be determined.
The assessment of corrective measures for both units began in February
2019 and is ongoing, pending finalization of the groundwater monitoring
networks. Based on groundwater monitoring reports, EPA has found that
due to the fluctuations in groundwater elevations in response to
precipitation and nearby surface water levels, portions of the
facility, including Unit 1 & 2, can be inundated or partially in
contact with groundwater.
---------------------------------------------------------------------------
\47\ SSL concentrations can be found in Appendix B (PDF page
512) of the 2021 Groundwater Monitoring & Corrective Action Report
prepared by Golder Associates on behalf of Grand Haven.
\48\ 2020 Alternate Source Demonstration J.B. Sims Generating
Station--Unit 3 Impoundments Submitted to: Grand Haven Board of
Light and Power Submitted by Golder Associates Inc. December 28,
2020.
\49\ Technical Memorandum to Michigan Department of Environment,
Great Lakes, and Energy-Unit 3 Impoundments Alternate Source
Demonstration Response Grand Haven Board Of Light And Power--JB Sims
Power Generating Station. February 12, 2020.
\50\ Memorandum to Michigan Department of Environment, Great
Lakes, and Energy- Fourth Quarter 2021 Monitoring Report, Former JB
Sims Generating Station, Unit 3 A&B Impoundments--Response to
Comments. March 8, 2022.
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c. Examples of CCRMU With Identified SSIs
Under the existing CCR regulations, when a facility determines
there is an SSI for one or more Appendix III constituents and completes
a successful ASD showing that a source other than the regulated unit is
the cause of the SSI(s), the facility is not required to initiate
assessment monitoring for that particular constituent. 40 CFR
257.94(e). Through ASD reviews, EPA identified several areas at active
facilities where CCR was managed outside of a regulated unit and was
identified as a source of one or more Appendix III SSI(s). As such, any
groundwater contamination from these potential CCRMU have not been
investigated under the existing federal CCR regulations. The following
facilities are examples of situations in which potential CCRMU have
been identified as the source of an SSI and demonstrate the need to
expand the federal CCR regulations as EPA is proposing in this
preamble.
Reid Gardner Generating Station, Moapa Valley, Nevada
Reid Gardner Generating Station, owned and operated by NV Energy,
is located adjacent to the Muddy River and the Moapa Band of Paiutes
reservation, approximately 45 miles northeast of Las Vegas. Reid
Gardner has seven regulated CCR units: four unlined inactive surface
impoundments (Pond 4B-1, Pond 4B-2, Pond 4B-3, and Pond E-1), two
active unlined surface impoundments (Pond M-5 and Pond M-7), and one
partially lined landfill (Mesa Landfill). The inactive surface
impoundments covered 47 acres and were closed by removal in 2017.\51\
The inactive surface impoundments were constructed in 2003 (Pond E-1)
and 2006 (Pond 4B-1, Pond 4B-2, and Pond 4B-3) to replace four of the
eleven historical unlined evaporation ponds located at the facility
that made up the evaporation pond complex (Pond 4A, Pond 4B-1, Pond 4B-
2, Pond 4B-3, Pond 4C-1, Pond 4C-2, Pond D, Pond E-1, Pond E-2, Pond F,
and Pond G).\52\ The evaporation pond complex was built within the
Muddy River floodplain and used from approximately 1974 until
approximately 2002 to evaporate CCR and other process wastewaters from
the facility. The two active surface impoundments (Ponds M-5 and M-7)
were constructed in 2010 approximately 0.75 miles south of the
historical evaporation ponds and cover 28 acres. Mesa Landfill was
constructed and operational prior to the 2015 CCR Rule and has a
surface area of roughly 252 acres.
---------------------------------------------------------------------------
\51\ Reid Gardner Generating Station Inactive Coal Combustion
Residual Surface Impoundments Ponds 4B-1, 4B-2, 4B-3, and E-1
Closure Certification, April 2019.
\52\ Construction History, Pond E1, Reid Gardner Generating
Station. April 11, 2018.
---------------------------------------------------------------------------
Based on groundwater monitoring report reviews, the inactive
surface impoundments had no Appendix III SSIs above their established
background concentrations during the detection monitoring event in
2019.53 54 55 56 57 58 However, the inactive surface
impoundments did have Appendix IV constituent concentrations above the
standard GWPS, including arsenic (2.52 mg/L [MCL is 0.01 mg/L]),
cadmium (0.0072 mg/L [MCL is 0.005 mg/L]), cobalt (242 [micro]g/L
[standard GWPS is 6 [micro]g/L]), fluoride (35.4 mg/L [MCL is 4.0 mg/
L]), lithium (27,300 [micro]g/L [standard GWPS is 40 [micro]g/L]),
molybdenum (6,390 [micro]g/L [standard GWPS is 100 [micro]g/L]),
selenium (0.204 mg/L [MCL is 0.05 mg/L]), thallium (0.026 mg/L [MCL is
0.002 mg/L]), and radium 226 & 228 combined (8.02 pCi/L [MCL is 5 pCi/
L]). Ponds M-5 and M-7 and the Mesa Landfill have had SSIs for fluoride
every year of detection monitoring for which ASDs have been performed
pointing to natural variation in groundwater
quality.59 60 61 62 63 64 ASDs were also performed for SSIs
at Mesa Landfill for pH (2019 and 2021) and turbidity (2020 and 2021)
that attributed the SSIs to natural variation in groundwater quality.
Therefore, since ASDs have been performed for all SSIs and the
[[Page 32016]]
active units, Reid Gardner has not moved from detection monitoring to
assessment monitoring. The facility also claims the historical, co-
located evaporation ponds are the source of groundwater contamination
in the area and not the CCR-regulated units. Specifically, in the
closure certification for the inactive surface impoundments, the
facility points to documentation as far back as the 1980s that describe
seepage from Pond D, the historical Pond E-1 and E-2, Pond F, and Pond
G and leakage at an estimated rate of 50 acre-feet/year from Ponds 4C-1
and 4C-2 and historical Ponds 4B-1, 4B-2, and 4B-3.
---------------------------------------------------------------------------
\53\ Reid Gardner Generating Station Inactive CCR Surface
Impoundment E-1. Coal Combustion Residual 209 Annual Groundwater
Monitoring and Corrective Action Report. July 31, 2019.
\54\ Reid Gardner Generating Station Inactive CCR Surface
Impoundments 4B-1, 4B-2, and 4B-3. Coal Combustion Residual 2019
Annual Groundwater Monitoring and Corrective Action Report. Revision
1. May 14, 2020.
\55\ Reid Gardner Generating Station Mesa Impoundments M5 and M7
Coal Combustion Residual 2019 Annual Groundwater Monitoring and
Corrective Action Report and Alternate Source Demonstration. January
31, 2020.
\56\ Reid Gardner Generating Station Mesa Impoundments M5 and M7
Coal Combustion Residual 2020 Annual Groundwater Monitoring and
Corrective Action Report and Alternate Source Demonstration. January
29, 2021.
\57\ Reid Gardner Generating Station Mesa Impoundments M5 and M7
Coal Combustion Residual 2021 Annual Groundwater Monitoring and
Corrective Action Report and Alternate Source Demonstration. January
28, 2022.
\58\ Alternate Source Demonstration and Addendum to the Coal
Combustion Residual 2017 Annual Groundwater Monitoring and
Corrective Action Report Reid Gardner Generating Station Mesa CCR
Surface Impoundments (Ponds M5 and M7). Prepared for NV Energy.
April 13, 2018.
\59\ Reid Gardner Generating Station Mesa Landfill Coal
Combustion Residual 2018 Annual Groundwater Monitoring and
Corrective Action Report and Alternate Source Demonstration. January
31, 2019.
\60\ Reid Gardner Generating Station Mesa Impoundments M5 and M7
Coal Combustion Residual 2018 Annual Groundwater Monitoring and
Corrective Action Report and Alternate Source Demonstration. January
31, 2019.
\61\ Reid Gardner Generating Station Mesa Landfill Coal
Combustion Residual 2019 Annual Groundwater Monitoring and
Corrective Action Report and Alternate Source Demonstration. January
31, 2020.
\62\ Reid Gardner Generating Station Mesa Landfill Coal
Combustion Residual 2020 Annual Groundwater Monitoring and
Corrective Action Report and Alternate Source Demonstration. January
31, 2021.
\63\ Reid Gardner Generating Station Mesa Landfill Coal
Combustion Residual 2021 Annual Groundwater Monitoring and
Corrective Action Report and Alternate Source Demonstration. January
28, 2022.
\64\ Alternate Source Demonstration and Addendum to the Coal
Combustion Residual 2017 Annual Groundwater Monitoring and
Corrective Action Report Reid Gardner Generating Station Mesa
Landfill. Prepared for NV Energy. April 13, 2018.
---------------------------------------------------------------------------
Cooper Station, Somerset, Kentucky
Cooper Station is owned and operated by East Kentucky Power
Cooperative (EKPC) and is located in Somerset, Kentucky. There is one
CCR landfill on-site, and the disposal area covers 96.32 acres in a
total State-permitted area of 315.25 acres. Before construction of the
landfill, CCR was managed in an unlined surface impoundment below the
current landfill location. The facility conducted an ASD in 2018 for
boron, calcium, sulfate, and TDS.\65\ Previous analyses indicate that
karst regions under the historic impoundment may have facilitated the
release of some contamination. ASD results indicate the regulated CCR
landfill is not the source of the release since it is lined but did not
definitively state if the facility determined the unregulated unlined
surface impoundment beneath the landfill as the alternative source. As
such, the facility determined that the current CCR landfill remains in
detection monitoring.
---------------------------------------------------------------------------
\65\ Annual CCR Groundwater Monitoring & Corrective Action
Report, Cooper Landfill, January 31, 2019. The ASD is discussed in
Appendix C of the report.
---------------------------------------------------------------------------
Seminole Electric Cooperative, Florida
Seminole Electric Cooperative (Seminole) operates the Seminole
Generating Station located in Palatka, Florida. For CCR that is not
beneficially used, CCR is disposed at the facility in a landfill
(Increment One Landfill), which is subject to the CCR regulations. This
CCR landfill is a double-lined landfill with a leachate collection
system and, because part of the Increment One Landfill overlaps with
the side-slope of a former, federally unregulated landfill, the liner
system also includes a high-density polyethylene geomembrane where the
two units interface.\66\ Seminole determined there were SSIs above
background levels for multiple analytes in one or more monitoring wells
at the downgradient waste boundary in 2018, including SSIs for boron,
calcium, chloride, sulfate, and TDS. Seminole determined that one or
more alternative sources were responsible for these analyte increases.
These sources include former test cells (i.e., areas where CCR was
placed in the 1980s for purposes of construction evaluations that are
now located beneath the Increment One Landfill), a former CCR landfill
adjacent to the Increment One Landfill, and several process water ponds
next to the Increment One Landfill.\67\ Since 2018, Seminole has
attributed SSIs for these analytes to these alternative sources and
therefore, has not moved from detection monitoring to assessment
monitoring.
---------------------------------------------------------------------------
\66\ Seminole Generating Station Increment One Landfill Annual
Groundwater Monitoring and Corrective Action Report. January 31,
2019.
\67\ Id. at 20.
---------------------------------------------------------------------------
R.M. Schahfer Generating Station, Indiana
The R.M. Schahfer Generating Station, owned and operated by
Northern Indiana Public Service Company, LLC (NIPSCO), has several CCR
units subject to the regulations, including several CCR impoundments
and a CCR landfill consisting of multiple cells or phases of operation
(``Landfill''). The Landfill is of particular relevance to this
proposal because includes three cells subject to federal CCR
regulations (Phases V through VII) and four landfill cells that are not
(Phases I through IV). In the course of conducting the required
groundwater monitoring for the regulated cells of the Landfill, in
January 2018, NIPSCO determined that there were SSIs above background
levels for all seven analytes in Appendix III at one or more monitoring
wells at the downgradient waste boundary of the regulated CCR units.
This included SSIs for boron, calcium, chloride, fluoride, pH, sulfate,
and TDS.\68\ Through procedures laid out in the regulations for
regulated CCR units in 40 CFR 257.94(e)(2), NIPSCO determined that
these groundwater SSI impacts were not due to a release from the
regulated CCR landfill cells, but instead were attributable to another
source. Specifically, NIPSCO has concluded that ``a release from the
non-regulated, unlined portions of the landfill, Phases 1 and II, is
the source of the identified SSIs.'' \69\ Subsequent groundwater
monitoring of the regulated Landfill cells since 2018 continues to
identify SSIs and NIPSCO continues to attribute those impacts to
releases from the unregulated Phase I and II cells.\70\
---------------------------------------------------------------------------
\68\ 2018 Annual Groundwater Monitoring and Corrective Action
Report--Landfill Phase V and Phase VI, NIPSCO R.M. Schahfer
Generating Station. January 31, 2019.
\69\ Northern Indiana Public Service Company, R.M. Schahfer
Generating Station, Wheatfield, Indiana, Schahfer Landfill Phase V
and Phase VI, Alternative Source Demonstration. April 13, 2018.
Begins on PDF page 20 of the 2018 Annual Groundwater Monitoring and
Corrective Action Report--Landfill Phase V and Phase VI. April 13,
2018.
\70\ 2021 Annual Groundwater Monitoring and Corrective Action
Report, Landfill Phase V, Phase VI, and Phase VII, NIPSCO LLC R.M.
Schahfer Generating Station. January 31, 2022.
---------------------------------------------------------------------------
Landfill Phase I is a 20-acre unlined cell that received CCR (flue
gas desulfurization materials and fly ash) between 1984 and 1991 and
subsequently closed with a final cover system in 1999. Phase II of the
Landfill is an unlined 42-acre cell where flue gas desulfurization
materials and fly ash were disposed between 1991 to 1998. The Phase II
cell was closed with a final cover system in 1998. CCR landfills such
as the Phase I and II cells are not regulated by the existing
regulations because the cells have not received CCR on or after October
19, 2015. As a result, NIPSCO has not been required under the existing
federal CCR regulations to investigate further and remediate as
necessary groundwater impacts from the unlined Phase I and II cells.
Waukegan Generating Station, Illinois
An example of CCR used as fill on-site is Midwest Generation's
Waukegan Generating Station in Waukegan, Illinois. There are two CCR
surface impoundments named the East Ash Pond and West Ash Pond, which
were used interchangeably during the facility's operational history and
have a multi-unit groundwater monitoring system. The East Ash Pond has
a surface area of 9.8 acres with a storage capacity of 184,000 cubic
yards. The West Ash Pond has a surface area of 10 acres with a storage
capacity of 223,000 cubic yards. According to the 2018 Annual
Groundwater Monitoring and Corrective Action Report, there was
detection of SSIs over background for Appendix III constituents,
including pH and sulfate.\71\ An ASD was completed that claimed other
potential historic sources were the cause of the SSIs. In the 2019
Annual Groundwater Monitoring and Corrective Action Report, an ASD for
Appendix III constituents identified calcium and TDS with the same
claim that other potential historic sources were the cause of the
SSIs.\72\ The ASDs discuss that the downgradient
[[Page 32017]]
monitoring wells were installed within the berms for the surface
impoundments that consisted of a ``mixture of fill and beneficially
reused coal combustion by-product''.73 74 The 2018 ASD also
notes that a upgradient well, MW-05 which is not a part of the CCR
groundwater monitoring network, has substantially higher sulfate and
boron concentrations than the downgradient wells suggesting an
upgradient source. Furthermore, the 2019 ASD mentions that the
fluctuating TDS concentrations at downgradient well MW-16 are
correlated to fluctuations in TDS at MW-05 further suggesting an
upgradient source. While these ASDs suggest that the sources may be CCR
within the berms and a upgradient source they do not analyze these
potential sources to verify the claims. EPA did verify that the boring
logs for groundwater monitoring wells MW-01 through MW-05 and MW-16
show they were installed within 11 to 20 feet of CCR in the berms
surrounding the surface impoundments.\75\ In addition, construction
drawings in the history of construction show ``existing fill'' or CCR
was used in the construction of the surface impoundment access ramps
and underneath the surface impoundments liners.\76\ The facility
continued to use the ASDs for SSIs in 2020 and 2021, therefore, the
surface impoundments remain in detection monitoring.
---------------------------------------------------------------------------
\71\ 2018 Waukegan Generating Station Annual GWMCA Report,
Appendix B, PDF pg. 100. January 2019.
\72\ 2019 Waukegan Generating Station Annual GWMCA Report,
Appendix B, PDF pg. 100. January 2020.
\73\ 2020 Waukegan Generating Station Annual GWMCA Report.
January 2021.
\74\ 2021 Waukegan Generating Station Annual GWMCA Report.
January 2022.
\75\ Waukegan boring well logs.
\76\ October 2016, Waukegan Generating Station History of
Construction.
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White Bluff Steam Electric Station, Arkansas
The White Bluff Steam Electric Station in Redfield, Arkansas is
owned or operated by Entergy and has three CCR units: two CCR surface
impoundments (A Recycle Pond/South Pond and B Recycle Pond/North Pond);
and one CCR landfill (Existing CCR Landfill Cells 1-4). CCR previously
was disposed in a 20-acre ravine,\77\ which was closed and covered in
accordance with the original facility State-issued permit. The active
landfill was then built on top of, and adjacent to, the unlined, closed
landfill. In 2018, the facility conducted intrawell monitoring of the
groundwater at the facility and SSIs for pH, calcium, TDS, and boron
were detected. An ASD was completed and determined that the sources of
the SSIs were: (1) Releases from portions of the Coal Ash Disposal
Landfill (CADL) closed before the effective date of the CCR Rule
(October 19, 2015); (2) Surface water that has come into contact with
on[hyphen]site CCR and has migrated into the subsurface; and/or (3)
Natural variation in groundwater quality. Therefore, the landfill
remains in detection monitoring.
---------------------------------------------------------------------------
\77\ Entergy Arkansas, LLC White Bluff Steam Electric Station
Landfill Cells 1-4 2021 Annual Groundwater Monitoring and Corrective
Action Report. January 31, 2022.
---------------------------------------------------------------------------
3. Summary of CCR Management Unit Proposal
After considering all of the above data and information, EPA is
proposing to establish a new category of regulated units that would be
subject to a set of requirements tailored to the characteristics of
such units and the risks that they present. EPA is proposing that this
new category of units, called ``CCR management units'' or CCRMU, would
consist of CCR surface impoundments and landfills that have closed
prior to the effective date of the 2015 CCR Rule, inactive CCR
landfills, and any area at a facility where solid waste management
involving the past or present placement or receipt of CCR directly on
the land has or is occurring.
Further, EPA is proposing to require facilities to conduct a
facility evaluation to identify and delineate any CCRMU present at the
facility and document the findings in a report. In addition, EPA is
proposing to require the facility to ensure that all identified CCRMU
comply with the existing requirements in part 257 for groundwater
monitoring, corrective action, closure, and post-closure care
requirements. These requirements are intended to address the risks
posed by any existing releases of CCR or CCR constituents to the
groundwater, regardless of when the CCR was placed in the units and
prevent future releases. Consistent with the existing CCR regulations,
owners and operators of CCRMU would also be required to record
compliance with these requirements in the facility's operating record,
notify the state of certain actions taken and decisions made, and
maintain a publicly accessible website on the internet of compliance
information. The other existing requirements in part 257 are not
necessary for CCRMU. For example, since CCRMU do not contain sufficient
liquids to create a hydraulic head or to otherwise cause the conditions
that might lead to a structural failure, the structural stability
requirements are unnecessary. Furthermore, EPA is proposing that CCRMU,
like legacy CCR surface impoundments, must close, and for the same
reasons that EPA described with respect to legacy CCR surface
impoundments, the location restrictions and liner design criteria are
also unnecessary. This proposal would apply to all CCRMU at active CCR
facilities and at inactive facilities with one or more legacy CCR
surface impoundments, regardless of how or when the CCR was placed in
the CCRMU. All of these proposals are discussed in more detail in this
Unit of the preamble.
Note that all deadlines herein are framed by reference to the
effective date of the rule and have been proposed based on an effective
date that is 6 months from publication of the final rule. The Agency
has included a document in the docket for this rule that summarizes the
proposed compliance deadlines.\78\ EPA requests comment on the
compliance deadlines and the feasibility to meet the proposed
compliance timeframes for CCRMU.
---------------------------------------------------------------------------
\78\ Docket item is titled Proposed Compliance Deadlines for
Legacy CCR Surface Impoundments and CCR Management Units.
Table 2--Proposed Compliance Timeframes for CCRMU in Months After Effective Date of the Final Rule
----------------------------------------------------------------------------------------------------------------
Proposed compliance timeframes for CCRMU
-----------------------------------------------------------------------------------------------------------------
Proposed deadline
40 CFR Part 257, Subpart D Description of (months after
requirement requirement to be effective date of the Notes
completed final rule)
----------------------------------------------------------------------------------------------------------------
Internet Posting (Sec. 257.107).. Establish CCR website. 0..................... Subsequent requirements:
Facility Evaluation
Report; all recordkeeping.
Facility Evaluation (Sec. 257.75) Initiate the facility 0..................... Subsequent requirements:
evaluation. Facility Evaluation
Report.
Facility Evaluation Report (Sec. Complete the Facility 3..................... Prerequisite requirements:
257.75). Evaluation Report. Facility Evaluation,
Establish CCR website.
[[Page 32018]]
GWMCA (Sec. 257.91).............. Install the 6..................... Prerequisite requirements:
groundwater Facility Evaluation
monitoring system. Report.
Subsequent requirements:
Groundwater sampling and
analysis program; Initiate
detection and assessment
monitoring; Annual GWMCA
report.
GWMCA (Sec. 257.93).............. Develop the 6..................... Prerequisite requirements:
groundwater sampling Install groundwater
and analysis program. monitoring system.
Subsequent requirements:
Initiate detection
monitoring and assessment
monitoring; Annual GWMCA
report.
GWMCA (Sec. 257.90(e))........... Annual GWMCA report... January 31 of the year Prerequisite requirements:
following GWM system Install groundwater
install. monitoring system;
Groundwater sampling and
analysis plan.
Closure (Sec. 257.102)........... Prepare written 12.................... Subsequent requirements:
closure plan. Initiate closure.
Post-Closure Care (Sec. 257.104). Prepare written post- 12.................... Prerequisite requirements:
closure care plan. Written closure plan.
Closure and Post-Closure Care (Sec. Initiate closure...... 12.................... Prerequisite requirements:
257.101). Written closure plan.
GWMCA (Sec. Sec. 257.90-257.95). Initiate the detection 24.................... Prerequisite requirements:
monitoring and Install groundwater
assessment monitoring system;
monitoring. Begin Groundwater sampling and
evaluating the analysis plan.
groundwater
monitoring data for
SSI over background
levels and SSL over
GWPS.
----------------------------------------------------------------------------------------------------------------
4. Applicability and Definitions Related to CCR Management Units
EPA is proposing to amend Sec. 257.50 by adding a new paragraph
(j) to specify that subpart D applies to CCRMU. EPA is also proposing
to add a new definition and revise 11 existing definitions in Sec.
257.53 to implement the proposed criteria for CCRMU.
a. Definition of CCR Management Unit
EPA is proposing to define a CCR management unit to capture the
solid waste management practices that have been demonstrated in the
risk assessment and the damage cases to have the potential to
contaminate groundwater. EPA is proposing to define a CCRMU as any area
of land on which any non-containerized accumulations of CCR are
received, placed, or otherwise managed, that is not a CCR unit. This
definition is based on the current definitions of a CCR pile--which is
currently regulated as a CCR landfill--and of a CCR surface
impoundment, which both rely on the concept of ``accumulations of
CCR.'' See, 40 CFR 257.53.
EPA is proposing that CCRMU would include historical solid waste
management units such as CCR landfills and surface impoundments that
closed under then-existing law prior to the effective date of the 2015
CCR Rule, as well as inactive CCR landfills (including abandoned
piles). It would also include any other areas where the solid waste
management of CCR on the ground has occurred, such as structural fill
sites, CCR placed below currently regulated CCR units, evaporation
ponds, or secondary or tertiary finishing ponds that have not been
properly cleaned up, and haul roads made of CCR if the use does not
meet the definition of beneficial use. All of these examples involve
the direct placement of CCR on the land, in sufficient quantities to
raise concern about releases of hazardous constituents, and--in most,
if not all cases--with no measures in place to effectively limit the
contact between the CCR and liquids, and subsequent generation and
release of any leachate.
EPA recognizes that this is a broad definition, but the Agency does
not intend that the placement of any amount of CCR would necessarily
constitute a CCRMU. Accordingly, EPA is proposing that the following
would not be considered CCRMU: consistent with the current regulations,
closed or inactive process water ponds, cooling water ponds, wastewater
treatment ponds, and storm water holding ponds or aeration ponds. These
units are not designed to hold an accumulation of CCR, and in fact, do
not generally contain a significant amount of CCR. See, 80 FR 21357. In
addition, consistent with the existing regulations, neither an area or
unit at which exclusively non-CCR waste is managed, nor any
containerized CCR, such as a silo, would be considered CCRMU. See, Id.
at 21356. Neither of these units present conditions that give rise to
the risks modeled in EPA's assessment or identified in the damage
cases.
For similar reasons, the Agency is proposing that any CCR used in
roadbed and associated embankments would not be considered CCRMU. As
EPA explained in the 2015 rule the methods of application are
sufficiently different from CCR landfills that EPA cannot extrapolate
from the available risk information to determine whether these
activities present similar risks. Roadways are subject to engineering
specifications that generally specify CCR to be placed in a thin layer
(e.g., six to 12 inches) under a road. The placement under the surface
of the road limits the degree to which rainwater can influence the
leaching of the CCR. There are also significant differences between the
manner in which roadways and landfills can potentially impact
groundwater. These include the nature of mixing in the media, the
leaching patterns, and how input infiltration rates are generated.
First, CCR landfills are typically a homogenously mixed system, and as
a result, there are no spatial variations of the chemical and physical
properties of the media (for
[[Page 32019]]
example, bulk density, hydraulic conductivity and contaminant
concentration). By contrast, roadways are generally constructed of
several layers with different material properties (heterogeneity). This
difference affects the hydraulic conductivity of a mass of CCR in a
landfill, as compared to CCR placed in an embankment. Any potential
leaching will tend to spread over the length of the embankment, as
opposed to the leaching in a downward motion that would occur in a
homogenously filled landfill. Finally, EPA is concerned that
groundwater monitoring of a road may not be practicable. However, even
though EPA considers that the available information does not
demonstrate that use in roadbed present sufficient risk to warrant the
suite of requirements applicable to CCRMU, that calculus changes in the
event the CCR in roadbed is contaminating groundwater. Accordingly, EPA
is proposing that if a facility subsequently determines that the CCR in
onsite roadbed is contributing to contamination to the aquifer, the
facility would be required to address the contamination. For example,
if during an on-going corrective action, a facility identifies the
roadbed as an additional source of contamination, it would be required
to address that contamination as part of the ongoing remediation of the
aquifer. In addition, the measures EPA is proposing to require
facilities to take would not be expected to identify truly de minimis
quantities of CCR. As discussed in greater detail in the next section,
EPA is proposing that facilities would only be required to identify
accumulations if there are records to confirm the existence of CCRMU or
visual evidence of CCR placement on the ground.
As a complement to this definition, EPA is proposing to define the
term inactive CCR landfill to mean an area of land or an excavation
that contains CCR but that no longer receives CCR on or after the
effective date of this final rule and that is not a surface
impoundment, an underground injection well, a salt dome formation, a
salt bed formation, an underground or surface coal mine or a cave. For
purposes of this subpart, this term also includes sand and gravel pits
that received CCR, and abandoned CCR piles.
b. Revision to Definition of CCR Unit
EPA is proposing to modify the definition of CCR unit by stating
that CCR management units are not covered by the definition of a CCR
unit. See proposed regulatory text at Sec. 257.53. Under the existing
regulations, CCR units are defined as CCR landfills and CCR surface
impoundments, as well as any lateral expansion of a CCR landfill or CCR
surface impoundment. In addition, the term CCR unit already covers
inactive CCR surface impoundments at active facilities because these
units are CCR surface impoundments. Similarly, because a legacy CCR
surface impoundment is a CCR surface impoundment, these units are a CCR
unit under the regulations.
As currently structured, many regulations specify that they apply
collectively to the owners and operators of ``CCR units,'' rather than
listing out each individual type of unit. As discussed elsewhere in
this preamble, EPA is proposing to extend only a subset of the existing
requirements in part 257, subpart D to CCRMU, consisting of
requirements for groundwater monitoring, corrective action, closure,
post-closure care, and reporting and recordkeeping. However, EPA is not
proposing to apply the part 257 location restrictions, liner design
criteria, structural integrity criteria for impoundments, and operating
criteria to CCRMU. In order to implement this approach with the fewest
revisions to the existing regulations, EPA is proposing to exclude
CCRMU from the definition of CCR unit and propose specific
modifications to those provisions that EPA intends would apply to
CCRMU. To state another way, CCRMU would not be subject to provisions
only applicable to CCR units.
c. Revisions to the Definitions of Owner and Operator
EPA is proposing revisions to the existing definitions of Owner and
Operator. The existing definition of Owner is the ``person(s) who owns
a CCR unit or part of a CCR unit.'' First, EPA is proposing to revise
the definition to incorporate the concept of CCRMU into the existing
definition because CCRMU are excluded from the definition of a CCR unit
as discussed in the preceding Unit of the preamble. This would be
accomplished by adding ``or CCR management unit'' to the existing
definition. See proposed regulatory text at Sec. 257.53. Second, the
Agency is proposing to revise the definition of Owner to include the
owner(s) of the entire facility, which would be achieved by adding ``or
a facility, whether in whole or in part'' to the definition. EPA is not
proposing to revise the definition of a ``facility,'' which under the
existing regulations means ``all contiguous land, and structures, other
appurtenances, and improvements on land, used for treating, storing,
disposing, or otherwise conducting solid waste management of CCR. A
facility may consist of several treatment, storage, or disposal
operational units (e.g., one or more landfills, surface impoundments,
or combinations of them).'' 40 CFR 257.53.
EPA is proposing this revision in part to account for the more
complicated ownership arrangements that exist at some utilities. EPA
has found that there may be multiple owners at the same facility; for
example, one entity may hold title to a single impoundment, while
another entity may own the remaining disposal units at the site.
Moreover, ownership can change over time, as individual units or
portions of the facility are parceled off. This proposal would also
more accurately reflect the nature of the obligations EPA is proposing
to establish for CCRMU. For example, as discussed below, EPA is
proposing to require an investigation of the entire disposal facility
to identify CCRMU. At many sites, this would involve areas other than
those encompassed by the definition of a CCR unit, extending to all
areas where disposal or other solid waste management may be occurring.
Moreover, relying exclusively on the ``owner'' of the CCRMU may be
ambiguous in this context, as at some sites the owner may not yet be
aware that a CCRMU is present (e.g., because it results from the
historic placement or accumulation of CCR). EPA recognizes that this
proposal would apply to currently regulated facilities, but it is not
clear that this revision would actually amend the entities that
currently are liable. EPA expects that most (if not all) utilities
currently operate as though the regulation already required the owner
operator of the facility to take actions; for example, under the
existing regulations owners and operators are required to conduct
corrective action even where the plume has migrated beyond the
footprint of the regulated unit.
For similar reasons, EPA is proposing to revise the definition of
Operator to incorporate the concept of CCRMU into the existing
definition by adding ``or CCR management unit'' to the existing
definition. See proposed regulatory text at Sec. 257.53. In addition,
the Agency is proposing revisions to account for the unique
characteristics of a CCRMU. In cases where the CCRMU is closed (i.e.,
not receiving waste or otherwise in operation) or is a historic
placement or accumulation of CCR, there will not be an entity that
neatly fits the normal concept of an ``operator,'' because there would
be no current or ongoing oversight or activity with respect to the
continued use of the unit. To avoid any ambiguity, EPA is proposing to
revise
[[Page 32020]]
the definition of ``operator'' to clarify that the term Operator
includes those person(s) or parties responsible for disposal or
otherwise actively engaged in solid waste management of CCR. It also
includes those responsible for directing or overseeing groundwater
monitoring, closure, or post-closure activities at a CCR unit or CCRMU.
Because multiple entities may potentially be liable, (owners and
operators) EPA is providing the following guidance. Consistent with
EPA's typical practice, unless otherwise provided in the regulations,
as long as one responsible entity (an owner or operator) has complied
with the requirements, EPA will consider the obligation satisfied as to
all potentially liable parties and will initially rely on owners and
operators to determine among themselves how best to ensure compliance
with the requirements.
d. Conforming Revisions to Other Existing Definitions
EPA is proposing revisions to eight definitions in Sec. 257.53 to
make reference to CCRMU. These definitions currently refer only to CCR
units and the proposed changes would add the words ``or CCR management
unit'' to the definitions so as to incorporate the concept of CCRMU
into the existing definition. The eight definitions for which EPA is
proposing this revision are: Active life or in operation, Active
portion, Closed, CCR landfill or landfill, Qualified person, Qualified
professional engineer, State Director, and Waste boundary. EPA is not
proposing to otherwise revise or reopen the substance of the existing
definitions as they apply to CCR units. Accordingly, the Agency will
not respond to any comments on these definitions as they apply to CCR
units.
5. Facility Evaluation for Identifying CCR Management Units
EPA is proposing that owners and operators of active or inactive
facilities with one or more CCR unit(s) will need to conduct a facility
evaluation. The purpose of the facility evaluation is to confirm
whether any CCRMU exist on-site, and, if so, to delineate the lateral
and vertical extent of the unit(s). In developing this proposal, EPA
relied heavily on the RCRA subtitle C Facility Assessment process for
identifying solid waste management units at a hazardous waste facility.
In addition, EPA accounted for certain existing requirements in the CCR
regulations; for example, under the 2015 CCR Rule, facilities were
required to compile a history of construction for their existing
impoundments. 40 CFR 257.73(c)(1). Facilities were generally able to
obtain all of the information specified in Sec. 257.73(c)(1)(i)
through (ix), even for units constructed decades ago. EPA expects that
facilities will similarly be able to obtain the information that EPA is
proposing would be required in the Facility Evaluation Report
(discussed in Unit IV.B.5.b of this preamble).
EPA is proposing a two-step process for a facility evaluation. The
first step would consist of a thorough review of available records in
combination with a physical facility inspection and any necessary field
work, such as soil sampling, to fill any data gaps from the information
obtained from the review of available records. See proposed regulatory
text at Sec. 257.75(b). The second step of the facility evaluation
would be to generate a Facility Evaluation Report to document the
findings of the facility evaluation. See proposed regulatory text at
Sec. 257.75(c).
a. Facility Evaluation for CCR Management Units
EPA is proposing that during the facility evaluation the owner or
operator of a CCR unit at an active facility or inactive facility would
need to identify and delineate the extent, laterally and vertically, of
any CCRMU at the facility. EPA is proposing a two-step process by which
the facility would make those determinations: the first would be
conducting a facility evaluation and the second would be the drafting
of a Facility Evaluation Report. EPA is proposing that the deadline to
initiate the facility evaluation would be no later than the effective
date of the final rule in Sec. 257.75(b).
A facility evaluation would begin with a review of all existing
records and documents readily and reasonably available to or attainable
by the facility, that contain information regarding any past and
present CCR management that resulted in the accumulation of CCR on the
ground. Consistent with the proposed definition of a CCRMU, in this
context EPA considers the terms ``placement'' and ``receipt'' to
include situations in which spilled or released CCR has been left on
the ground. During this first step, the facility would be required to
gather and review information to identify potential locations of CCR
placement, and to determine preliminary boundaries and depths of any
CCRMU. EPA is also proposing that a facility evaluation would include a
physical inspection of the facility. Where necessary, the physical
inspection would include field investigation activities, such as
conducting exploratory soil borings, geophysical assessments, or any
other similar physical investigation confirmation activities to
establish the location and boundaries of identified CCRMU, and to
affirmatively rule out other areas of potential CCR placement at the
facility that were identified during the information review. EPA is
further proposing that the scope of the facility evaluation would be
the entire facility as the term is currently defined in 40 CFR 257.53
and the evaluation would need to include all of the information
specified in the CCRMU Facility Evaluation Report.
As noted, the facility evaluation would begin with a review of all
readily and reasonably available information regarding past and present
placement of CCR on the ground at the facility. In this first stage,
the facility would need to gather all existing information that may be
useful to determine any locations at the facility where CCR may have
been placed (including spilled) on the ground. EPA expects that in this
initial phase, the facility would cast a wide net, and collect all
information that could potentially contain useful information to
identify the potential locations of CCR placement at the facility.
Finally, to complete the information review, the investigatory process
would need to be documented, any data gaps identified, and plans for
conducting a physical inspection of the site to verify locations,
boundaries, and volumes of CCR placement at the facility would need to
be formalized. Each step of this process is described in greater detail
below.
i. Information Gathering
The first step in the facility evaluation process involves the
collection of information that contains any information on whether CCR
was either routinely and systematically placed on the ground, or where
facility activities otherwise resulted in measurable accumulations of
CCR on the ground. The quality and reliability of the information
review will depend greatly on the owner's and operator's ability to
collect relevant information. Information reviews may provide
misleading results when significant sources of information are not
considered. EPA is proposing that the information that must be gathered
during this step would include any documents that contain information
relevant to past facility operations and waste disposal processes. By
the conclusion of the facility evaluation, EPA expects that the
facility would be able to identify the date, locations, durations, and
volumes or estimated quantities of CCR placement.
[[Page 32021]]
EPA expects that the amount of available written information and
documentation that will be available for review during the document
review phase may vary by facility. However, the following documents
developed as part of complying with part 257, which are available to
facilities, would normally contain information that can be useful in
identifying CCRMU: inspection reports; history of construction reports;
fugitive dust control plans; annual groundwater monitoring and
corrective action reports; ASDs; ACM reports or other corrective action
reports; and closure plans and reports. Further, there are other
sources of readily available data that frequently contain information
relevant to past facility operations and waste disposal processes, such
as facility compliance reports produced for non-CCR programs (e.g.,
Toxic Substances Control Act [TSCA]/Occupational Safety and Health
Administration [OSHA]/National Pollutant Discharge Elimination System
[NPDES]/Clean Air Act [CAA]/Clean Water Act [CWA]); permits and permit
applications, including NPDES, solid waste, dam safety, and air
permits; historical and contemporary monitoring and reporting data, and
facility operating logs and maps; and site imagery including available
historical aerial photographs, site photographs, topographic maps, and/
or engineering or construction drawings, including drawings for
physical facility improvement projects, such as surface water control,
water and power infrastructure and utilities, roads, berms, ponds and/
or other physical features at the facility. EPA expects that facilities
would search available records to determine whether they contain
information relevant to the potential existence and locations of CCRMU.
EPA is further proposing to require that owners and operators
gather information by conducting meetings and interviews with current
or former facility personnel and any available state and local
officials familiar with the facility to the extent that those persons
are available and have knowledge about past and/or present facility
operations. The goal of the interview process would be to help gather
any information relevant to the facility operations and waste disposal
processes. EPA's expectation is that a good faith effort be made to
identify key individuals that may have direct knowledge of the
facility's historic CCR management to fill in data gaps and/or verify
existing information. The expectation is qualitative and dependent on
the reasonableness with which individuals can be identified and
contacted. However, the purpose and process for determining the need
for and the extent of employee interviews, or lack thereof, should be
documented in the report. It is in the facility's best interest to
evaluate historic management of CCR at the facility, identify CCR
management units used throughout that duration, and, where gaps exist,
try to identify individuals that may have information or direct
knowledge regarding CCR management during those times. EPA expects
that, when necessary, individuals involved in making decisions
regarding CCR management during historic operations and/or implementing
those decisions in the field would be able to be identified based on
job titles and duties, time and duration of work service, and/or
specific expertise using the facility's human resource records. Most
government offices keep records of complaints, permits, and/or other
correspondence that should be reviewed as part of the site evaluation.
Individual officials in these records may be identified, particularly
where they were involved with issues where CCR was managed or placed on
the ground, or released to the environment through the air, surface
water or groundwater.
It is estimated that the compliance cost associated with meeting
and/or interviewing in-house personnel would be negligible for current
employees, and minimal (less than 8 hours) for former employees since
some effort may be involved with trying to locate and contact them. In
addition to the cost for owners and operators to review state or local
records for the facility during the facility evaluation, it is
estimated that the cost associated with contacting any necessary state
or local officials or offices would be minimal (less than 8 hours)
since it is unlikely they would be the only source of information for
CCR management activities at the facility, and their knowledge of any
CCR management units may be limited.
ii. Information Evaluation
During this stage, EPA is proposing to require that a P.E. review
the documents and information gathered during the initial step of
review to draw conclusions regarding the existence of CCRMU at the
facility. At the end of this stage, EPA expects the facility to
identify: (1) Any areas where the facility can affirmatively conclude
based on the available information that one or more CCRMU are present;
and (2) Any areas where the available information indicates that CCR
may have been either routinely and systematically placed on the ground,
or where facility activities otherwise could have resulted in
measurable accumulations of CCR on the ground (i.e., areas where the
available information indicates that one or more CCRMU may be present).
Each of the information sources discussed above can provide
valuable information that can be used to identify the existence and
locations of CCRMU. Some specific examples are provided below:
Environmental reports for multimedia inspections contain useful
information on site management practices, monitoring data, and unit
conditions. These reports can also describe comprehensive monitoring
evaluations at the site that can indicate where releases or areas of
concern exist. Multimedia permit and permit applications contain large
amounts of information on the facility design, waste management
practices including how wastes were disposed of, and the physical
characteristics of the surrounding area. These documents can contain
old topographic maps, facility figures and drawings, wastestream flow
diagrams, and unit and process descriptions.
If a groundwater monitoring report for a CCR unit indicates that
contaminant levels in groundwater monitoring wells are the result of
CCRMU rather than the monitored CCR unit, this would need to be further
investigated during the facility evaluation process to fully delineate
the locations of areas where CCR was placed on the ground, including
the size of the unit and other related unit details.
Similarly, a review of aerial photographs can identify potential
CCRMU at the facility at locations that have become overgrown or
otherwise hidden over time. When used in conjunction with USGS
topographic maps, owners and operators could look for evidence that may
be indicative of placement of CCR on the ground. As an example, if
aerial photographs and USGS topographic maps indicate the existence of
a pond or dam system at the site, this may be enough to warrant further
investigation of available documents and may require field
investigation depending on the strength of information to determine if
the changes were made to allow placement of CCR on the ground.
Finally, one of the primary purposes of the information review is
to provide an understanding of the CCR management activities at the
facility, allowing for subsequent observations during the physical site
inspection to be focused to the greatest extent practical. While
information obtained during the
[[Page 32022]]
review may be insufficient to support affirmative conclusions regarding
the existence or non-existence of a CCRMU, based on the information
available at most facilities, EPA expects that it will be possible to
determine which areas at the facility would need to be inspected, and
the type of data that would be needed to draw definitive conclusions.
The Agency expects that all of the information gathered in the
information review will be relevant to determining the areas to be
inspected during the physical (visual) site inspection. Further, the
information gathered during the information review would be used to
support any necessary field activities.
iii. Physical Site Inspection
EPA is proposing to require that a facility conduct a physical site
inspection of the entire facility in all cases. The purpose of the
physical site inspection is to visually inspect the entire facility for
evidence of CCR placement on the ground, ensure that all CCRMU have
been identified, and fill any data gaps identified during the initial
information evaluation. To that end, EPA is proposing that the physical
site inspection must consist of a visual inspection of the entire
facility to look for evidence that CCR is currently being managed on
the ground. At a minimum, a facility would be required to visually
inspect the site to confirm the information obtained from the
information review phase and to identify any anomalies that warrant
further investigation, such as an unnatural topographic rise or
depression or an area where unspecified liquid waste was applied over
several years. In addition, EPA is proposing that the facility would be
required to conduct any field work such as soil sampling necessary to
determine whether areas that had been identified as a potential CCRMU
in fact contain CCR and to obtain the information required for the
Facility Evaluation Report.
The complexity of past and current facility operations, combined
with the amount of data that was available for review during the
information review phase would impact how extensive the facility
inspection must be. For example, if facility records are sparse or
contain data gaps, the Agency expects that the facility inspection
would be more thorough than in situations where detailed records exist.
However, even in situations where detailed facility records exist, the
facility must still conduct a visual inspection to ensure that all
CCRMU have been identified, even if those areas were not identified in
the initial document review. In addition, EPA expects that in most
cases, a facility will need to conduct some sampling or other fieldwork
in order to obtain all the information required for the Facility
Evaluation Report. For example, even if the facility had as-built
engineering drawings for an old landfill, EPA expects that in some
cases the facility may still need to conduct some sampling to establish
the lateral and vertical dimensions of the CCRMU. If, after conducting
a thorough document review and a visual inspection, the facility has
found no evidence of any CCRMU, no further testing or sampling would be
required to conclude that there are no CCRMU present at the facility.
EPA is not proposing to require facilities to conduct widespread site
sampling to prove that no CCRMU exist on-site. All recorded
observations and data gathered during the facility evaluation,
including any conclusions regarding the status of each CCRMU at the
facility, must be assembled and incorporated into a Facility Evaluation
Report, which is described in detail below.
b. Facility Evaluation Report for CCR Management Units
After completing the first step of the facility evaluation process,
EPA is proposing to require the owners and operators of active or
inactive facilities with one or more CCR unit(s) to compile and place
in the operating record information pertaining to every CCRMU located
at the facility no later than 3 months after the effective date of the
final rule at Sec. 257.75(c). The Facility Evaluation Report must be
posted to the facility's CCR publicly accessible internet site within
30 days of that date. In developing the list of items to be included in
the Facility Evaluation Report, the Agency considered certain
requirements from existing regulations for History of Construction
reports that must be generated for existing CCR surface impoundments at
Sec. 257.73(c)(1) as well as other requirements necessary to provide
additional information about each CCRMU at the facility. In addition,
the Agency is proposing to require that the Facility Evaluation Report
include a certification from a P.E. stating that the Facility
Evaluation Report meets the requirements at Sec. 257.75(c). See
proposed regulatory text at Sec. 257.75(d). Further, the Agency is
proposing to require that the Facility Evaluation Report include a
certification to be signed by the owner or operator or an authorized
representative similar to the certification that is required at Sec.
257.102(e) and Sec. 257.102(f) for existing units undergoing closure.
See proposed regulatory text at Sec. 257.75(e).
EPA is proposing that the Facility Evaluation Report must contain
the following: (1) The name and address of the person(s) owning and
operating the facility; the unit name associated with any CCR unit and
CCRMU at the facility; and the identification number of each CCR unit
and CCRMU if any have been assigned by the state; (2) The location of
any CCRMU identified on the most recent U.S. Geological Survey (USGS)
7.5-minute or 15-minute topographic quadrangle map, or a topographic
map of equivalent scale if a USGS map is not available, with the
location of each CCR unit at the facility identified; (3) A statement
of the purpose(s) for which each CCRMU at the facility is or was being
used; (4) A description of the physical and engineering properties of
the foundation and abutment materials on which each CCRMU is
constructed; (5) A discussion of any known spills or releases of CCR
from each CCRMU and whether or not the spills or releases were reported
to state or federal agencies; (6) Any record or knowledge of structural
instability of each CCRMU; (7) Any record or knowledge of groundwater
contamination associated or potentially associated with each CCRMU; (8)
Size of each CCRMU, including the general lateral and vertical
dimensions and an estimate of the volume of waste contained within the
unit; (9) Dates when each CCRMU first received CCR and when each CCRMU
ceased receiving CCR; (10) Specification of all CCR wastes that have
been managed in each CCRMU at the facility; (11) A narrative
description, including any applicable engineering drawings or reports
of any closure activities that have occurred; (12) A narrative that
documents the nature and extent of field oversight activities and data
reviewed as part of the facility evaluation process, and that lists all
data and information that was reviewed indicating the absence or
presence of CCRMU at the facility; and (13) Any supporting information
used to identify and assess CCRMU at the facility, including but not
limited to any construction diagrams, engineering drawings, permit
documents, wastestream flow diagrams, aerial photographs, satellite
images, historical facility maps, any field or analytical data,
groundwater monitoring data or reports, inspection reports,
documentation of interviews with current or former facility workers,
and other documents or sources of information used to identify and
assess CCRMU at the facility.
[[Page 32023]]
As stated above, the Agency is proposing that the Facility
Evaluation Report include a certification to be signed by a P.E. and
the owner or operator or an authorized representative. Owners and
operators of active or inactive facilities with one or more CCR unit(s)
that do not contain any CCRMU would need to complete and place in the
operating record a certified Facility Evaluation Report documenting the
steps taken during the facility evaluation to determine the absence of
any CCRMU. The Facility Evaluation Report must be placed in the
facility operating record (Sec. 257.105(f)(25)), submitted to the
appropriate regulating entity (Sec. 257.106(f)(24)), and published on
the facility's website (Sec. 257.107(f)(24)).
While these requirements apply to facilities with one or more CCR
units, owners and operators are required to compile this information
only to the extent available. EPA acknowledges that there may be
certain information or data that may be unknown or lost. Therefore, in
this proposed rule, EPA is using the phrase ``to the extent available''
and clarifying that the term requires the owner or operator to provide
information in the Facility Evaluation Report only to the extent that
such information is reasonably and readily available. EPA intends that
facilities provide relevant information only if documentation exists.
EPA does not expect owners or operators to provide anecdotal or
speculative information regarding the presence or absence of CCRMU.
However, if data gaps exist, owners or operators subject to this
proposed rule may need to collect additional field data to fill the
gaps.
As stated previously, most of the activity needed to complete the
Facility Evaluation and Facility Evaluation Report consists of
reviewing reports and other documentation that already exist as a
consequence of complying with other provisions in part 257, such as the
history of construction, site or unit inspection reports, aerial
imagery, quality assurance reports, groundwater monitoring and
corrective action reports, or historic boring log reviews (e.g.,
subsurface investigations, geotechnical studies). Therefore, EPA
estimates the hiring and onboarding of a contractor, data compilation,
data review, conducting a site inspection, data analyses, and
generation of a P.E.-certified report will take a total of 8 to 12
weeks or 2 to 3 months. See Unit IV.A.2.d. Where new analyses are
needed (e.g., sampling to establish the dimension of a CCRMU), they are
assumed to be minor with data inputs for performing these analyses
existing and readily available and capable of being conducted
concurrently with some of the data review and report generation.
Therefore, EPA believes the proposed deadline for the completion of the
Facility Evaluation Report of no later than 3 months after the
effective date of the final rule will be sufficient for the completion
of these activities.
6. Applicable Existing CCR Requirements for CCR Management Units and
Compliance Deadlines
a. Fugitive Dust Requirements for CCR Management Units
The air criteria in the existing regulations address the pollution
caused by windblown dust, by requiring the owners and operators of CCR
units to minimize CCR from becoming airborne at the facility. 40 CFR
257.80. These requirements apply to the entire facility, which means
that the owner or operator is to minimize CCR fugitive dust originating
not only from the CCR unit, but also from roads and other CCR
management and material handling activities at the facility.
Consequently, under this proposal, CCRMU would already be covered by
the fugitive dust requirements in Sec. 257.80 because CCRMU are
located at facilities with a CCR unit. EPA is therefore only proposing
to make those changes to the fugitive dust requirements in Sec. 257.80
that are necessary to make clear that these requirements also apply to
CCRMU. Specifically, EPA is to add ``CCRMU'' to the list of units
subject to the requirements under Sec. 257.80 and associated
provisions under Sec. Sec. 257.105 through 257.107. EPA solicits
comments on amending Sec. 257.80(b)(6) to include a deadline for
facilities to amend the fugitive dust control plan no later than 30
days following a triggering event, such as the closure of a CCRMU or
change in facility or CCR unit operations.
b. Groundwater Monitoring and Corrective Action Requirements for CCR
Management Units
The existing groundwater monitoring criteria in Sec. Sec. 257.90
through 257.95 require an owner or operator of a CCR unit to install a
system of monitoring wells and specify procedures for sampling these
wells. Further, it sets forth methods for analyzing the groundwater
data collected to detect hazardous constituents (e.g., toxic metals)
and other monitoring parameters in Appendix III or IV (e.g., pH, TDS)
released from the units. 40 CFR 257.93. Once a groundwater monitoring
system and groundwater monitoring program has been established for a
CCR unit the owner or operator must conduct groundwater monitoring and,
if the monitoring demonstrates an exceedance of the groundwater
protection standards for identified constituents in Appendix IV of part
257, corrective action is required. These requirements apply throughout
the active life and post-closure care period of the CCR unit. EPA is
proposing that the same groundwater monitoring and corrective action
requirements that EPA is proposing to establish for legacy CCR surface
impoundments would apply to CCRMU.
The existing groundwater monitoring and corrective action
requirements in Sec. Sec. 257.90 through 257.98 are essentially the
same requirements that have been applied to both hazardous waste and
municipal solid waste disposal units for decades, and with the
exception of the one revision that EPA is proposing for legacy CCR
surface impoundments, there is nothing about CCRMU that makes them
distinct enough to warrant separate requirements. Each of the
individual requirements are discussed in greater detail below.
i. Design and Installation of the Groundwater Monitoring System for CCR
Management Units
EPA is proposing that owners and operators of CCRMU install the
groundwater monitoring system as required by Sec. 257.91 no later than
6 months from the effective date of the rule. See proposed regulatory
text at Sec. 257.90(b)(3)(i). The rationale for this compliance date
is described in Unit IV.A.2.f.i of this preamble.
ii. Development of the Groundwater Sampling and Analysis Plan for CCR
Management Units
EPA is proposing to require that owners and operators of CCRMU
comply with the existing groundwater sampling and analysis program
requirements for CCR units, including the selection of the statistical
procedures, that will be used for evaluating groundwater monitoring
data. 40 CFR 257.93 and 257.91(d)(3). See, proposed regulatory text at
Sec. 257.90(b)(3)(ii). EPA is proposing this requirement to be
completed no later than 6 months after the effective date of the final
rule. The rationale for this compliance date is described in Unit
IV.A.2.f.ii of this preamble.
iii. Detection Monitoring Program and Assessment Monitoring Program
Combined
EPA is proposing to require that facilities simultaneously initiate
sampling and analysis of all Appendix
[[Page 32024]]
III and IV constituents at CCRMU to expedite the detection and cleanup
of contamination from these abandoned unlined impoundments. This is the
only revision to the existing groundwater monitoring requirements in
Sec. Sec. 257.90 through 257.95 that EPA is proposing to make for
CCRMU.
As laid out in Unit IV.B.1, there is good reason to believe that
CCRMU are currently contaminating groundwater. And as is the case with
legacy CCR surface impoundments, at sites where the unit has
potentially been leaking for a long time, the need to protect human
health and environment by quickly detecting the constituents of concern
in Appendix IV warrants expediting any necessary corrective action.
See, USWAG 901 F.3d at 427-30. The rationale for this proposal is
further explained in Unit IV.A.2.f.iii of this preamble.
iv. Collection and Analyses of Eight Independent Samples for CCR
Management Units
EPA is proposing that no later than 24 months after the effective
date of the final rule, owners or operators of CCRMU initiate the
detection monitoring program by completing sampling and analysis of a
minimum of eight independent samples for each background and
downgradient well, as required by Sec. 257.94(b). See proposed
regulatory text at Sec. 257.100(f)(4)(iii). Within 90 days after that,
they must identify any SSIs over background levels for the constituents
listed in Appendix III of this part, as required by Sec. 257.94. EPA
is also proposing that by this same deadline they initiate the
assessment monitoring program by establishing groundwater protection
standards and beginning the evaluation of the groundwater monitoring
data for statistically significant levels over groundwater protection
standards for the constituents listed in Appendix IV of this part as
required by Sec. 257.95. Then, if a statistically significant level
over a groundwater protection standard for any of the constituents
listed in Appendix IV of this part is found, the owner or operator of
the legacy CCR surface impoundment must perform any required corrective
action in accordance with Sec. Sec. 257.96 through 257.98. The
rationales for these deadlines are explained in Unit IV.A.2.f.iv. of
this preamble.
v. Preparation of Initial Groundwater Monitoring and Corrective Action
Report for CCR Management Units
EPA is proposing to apply the existing requirements in Sec.
257.90(e) for preparation of an annual groundwater monitoring and
corrective action report to CCRMU and that owners and operators of
CCRMU comply no later than January 31 of the year following the
calendar year a groundwater monitoring system has been established for
such CCR management unit, and annually thereafter. See proposed
regulatory text at Sec. 257.90(e)(1). The rationale for the components
of this report and the expedited compliance deadline is explained in
Unit IV.A.2.f.v of this preamble.
c. Closure and Post-Closure Care Criteria for CCR Management Units
EPA is proposing to apply the existing closure criteria for CCR
surface impoundments in Sec. Sec. 257.101 and 257.102 to CCRMU. EPA is
also proposing to require that all CCRMU initiate closure, whether or
not they are currently contaminating groundwater. Consistent with the
proposal for legacy CCR surface impoundments, EPA is proposing to
explicitly state that the alternative closure provisions in Sec.
257.103 would not be applicable to CCRMU. Finally, EPA is proposing to
apply the existing post-closure care requirements in Sec. 257.104 to
CCRMU. Each of these proposals are discussed in detail below
i. Criteria for Conducting Closure of CCRMU and Requirement To Close
Requiring the closure of CCRMU in accordance with Sec. Sec.
257.101-257.102 would provide significant risk mitigation. As laid out
in Unit IV.B.1 of this preamble, CCRMU at both inactive and active
facilities pose significant risks to human health and the environment,
at levels that are at least as significant as the risks presented by
legacy CCR surface impoundments and the units currently regulated under
the 2015 CCR Rule. Additionally, this is consistent with the existing
CCR regulations, which require closure of all CCR units that have
ceased receiving waste to mitigate the risks such units pose to human
health and the environment. See, 40 CFR 257.102(e)(1). In particular,
risks identified on a national scale are from releases of arsenic,
lithium and molybdenum to groundwater. Available toxicological profiles
indicate that ingestion of arsenic is linked to increased likelihood of
cancer in the skin, liver, bladder and lungs, as well as nausea,
vomiting, abnormal heart rhythm, and damage to blood vessels; ingestion
of lithium is linked to neurological and psychiatric effects, decreased
thyroid function, renal effects, cardiovascular effects, skin
eruptions, and gastrointestinal effects; and ingestion of molybdenum is
linked to higher levels of uric acid in the blood, gout-like symptoms,
and anemia. 80 FR 21451. To date, groundwater monitoring required by
the 2015 CCR Rule has revealed that at least 40% of currently regulated
surface impoundments and landfills have identified groundwater
contamination and require corrective action to mitigate the associated
risks. This number is expected to increase as more facilities come into
full compliance with the rule. Another 23% of units have identified
evidence of leakage and continue to monitor groundwater to ensure that
contamination does not occur before the unit can be closed and source
controls put in place. In many cases, CCRMU are historical landfills
and surface impoundments. Thus, the relevant release pathways, exposure
routes, and associated harm that can result are the same. As noted
above, the risks associated with these CCRMU are anticipated to be at
least as significant as the universe of currently operating units.
There is further evidence that the risks may be even higher. This is a
result of the fact that: (1) These units have been present onsite for
longer and had more time to leak, and (2) Riskier disposal practices,
such as co-management with coal refuse, were more common in the past.
As the D.C. Circuit explained, RCRA requires EPA to set minimum
criteria for sanitary landfills that prevent harm, not merely to ensure
that contamination is remediated. See, USWAG, 901 F.3d at 430.
Further, EPA does not believe that any facility will need to
continue to use a CCRMU. These units, by definition, are not currently
receiving CCR; any unit currently receiving CCR is regulated under the
existing regulations. Instead CCRMU have been ``closed'' by the
facility, presumably in accordance with whatever state requirements
were in effect at the time, or have been left inactive on-site. Because
a continued need to use the disposal unit is a critical component of
the alternative closure demonstrations (at Sec. 257.103(f)), it
appears that no CCRMU could qualify under the existing provisions.
Accordingly, EPA does not believe these provisions are relevant to
CCRMU.
While EPA is proposing that the CCR unit closure requirements would
apply, EPA requests comment on other approaches to how a facility might
implement the requirement to close at a site where the CCRMU lies
beneath an operating unit. EPA also solicits comments on whether EPA
should not mandate the closure of CCRMU. However, EPA is concerned that
if CCRMU were not required to close, EPA
[[Page 32025]]
would not adequately address the risks from those units that have waste
below the water table. In general, EPA considers that closure is the
most certain way to adequately address the source of any releases from
these units. Although EPA could rely upon the existing corrective
action requirements to achieve source reduction, the Agency is
concerned that this will not adequately prevent harm, as the statute
requires, because these requirements would only apply upon a
determination that the CCRMU has contaminated the aquifer. In addition,
the closure requirements in Sec. 257.102 provide a uniform approach
that EPA is confident will adequately protect human health and the
environment in all situations.
Given the locations of many CCRMU (located in floodplains, or
wetlands, or near large surface water bodies), EPA is concerned that
the base of these units may intersect with the groundwater beneath the
unit. As EPA has previously explained, where the base of a surface
impoundment intersects with groundwater, the facility will typically
need to include engineering measures specifically to address any
continued infiltration of groundwater into the impoundment in order to
close with waste in place consistent with Sec. 257.102(d). See, e.g.,
87 FR 72989 (Nov 28, 2022), 85 FR 12456, 12464 (March 3, 2020). The
same holds true for CCRMU that intersect with groundwater. The existing
requirements in Sec. 257.102(d)(1) and (3) apply to all CCR units and
EPA is proposing that these provisions would also apply to CCRMU
without revision. By contrast, the existing requirements in Sec.
257.102(d)(2), which establish performance standards for drainage and
stabilization of the unit, only apply to CCR surface impoundments.
These performance standards are critical to ensuring that units that
contain liquids are properly and safely closed, and therefore should
apply to any unit, including a CCRMU and a CCR landfill, where the CCR
remains saturated. Accordingly, EPA is proposing to revise Sec.
257.102(d)(2) so that it applies to all CCR units and CCRMU. EPA
provides a background discussion of the existing closure performance
standards below. It is important to note that if there is no liquid in
the unit, the proposed revision would not require the facility to do
anything to meet the performance standards.
The CCR closure requirements applicable to closing with waste in
place include general performance standards and specific technical
standards that set forth individual engineering requirements related to
the drainage and stabilization of the waste and to the final cover
system. The general performance standards and the technical standards
complement each other, and both must be met at every site.
The specific technical standards related to the drainage of the
waste in the impoundment require that, ``free liquids must be
eliminated by removing liquid wastes or solidifying the remaining
wastes and waste residues.'' 40 CFR 257.102(d)(2)(i). Free liquids are
defined as all ``liquids that readily separate from the solid portion
of a waste under ambient temperature and pressure,'' regardless of
whether the source of the liquids is from sluiced water or groundwater.
40 CFR 257.53. Consequently, the directive applies to both the
freestanding liquid in the impoundment and to all separable porewater
in the impoundment, whether the porewater was derived from sluiced
water, stormwater run-off, or groundwater that migrates into the
impoundment. In situations where the waste in the unit is inundated
with groundwater, the requirement to eliminate free liquids thus
obligates the facility to take engineering measures necessary to ensure
that the groundwater, along with the other free liquids, has been
permanently removed from the unit prior to installing the final cover
system. See, 40 CFR 257.102(d)(2)(i).
In addition to the process-specific technical requirements, all
closures must meet the requirements in the general performance standard
to ``control, minimize or eliminate, to the maximum extent feasible,''
both post-closure infiltration of liquids into the waste and releases
of CCR or leachate out of the unit to the ground or surface waters, and
to ``preclude the probability of future impoundment of water, sediment,
or slurry.'' 40 CFR 257.102(d)(1)(i), (ii). EPA construes the word
``infiltration'' in this regulation as a general term that refers to
the migration or movement of liquid into or through a CCR unit from any
direction, including the top, sides, and bottom of the unit. This is
consistent with the plain meaning of the term. For example, Merriam-
Webster defines infiltration to mean ``to pass into or through (a
substance) by filtering or permeating'' or ``to cause (something, such
as a liquid) to permeate something by penetrating its pores or
interstices.'' Similarly, the Cambridge English Dictionary defines
infiltration as ``the process of moving slowly into a substance, place,
system, or organization,'' and provides the following example ``It is
important to manage moisture infiltration into buildings.'' https://dictionary.cambridge.org/us/dictionary/english/infiltration (website
visited 10/22/2022). None of these definitions limit the source or
direction by which the infiltration occurs.
In situations where the groundwater intersects an unlined CCR unit,
water may infiltrate into the unit from the sides and/or bottom of the
unit because the base of the unit is below the water table. In this
scenario, the CCR in the unit will be in continuous contact with water.
This contact between the waste and groundwater provides a potential for
waste constituents to be dissolved and to migrate out of (or away from)
the closed unit. In such a case, the general performance standard also
requires the facility to take measures, such as engineering controls,
that will ``control, minimize, or eliminate, to the maximum extent
feasible, post-closure infiltration of liquids into the waste'' as well
as ``post-closure releases to the groundwater'' from the sides and
bottom of the unit. 40 CFR 257.102(d)(1).
Whether any particular unit can meet these performance standards is
a fact and site-specific determination that will depend on a number of
considerations, such as the hydrogeology of the site, the design and
construction of the unit, and the kinds of engineering measures
implemented at the unit. Accordingly, the fact that prior to closure
the base of a unit intersects with groundwater does not mean that the
unit may not ultimately be able to meet the performance standards in
Sec. 257.102(d) for closure with waste in place. Depending on the site
conditions, a facility may be able to meet these performance standards
by demonstrating that a combination of engineering measures and site-
specific circumstances will ensure that as a consequence of complying
with the closure performance standards, the groundwater will no longer
be in contact with the waste in the closed unit. As one example, where
groundwater intersects with only a portion of an impoundment, the
facility could close that portion of the unit by removing the CCR from
that area of the unit but leaving waste in place in other areas. As
another example, if the entire unit sits several feet deep within the
water table, engineering controls can potentially be implemented to
stop the continued flow of groundwater into and out of the waste. See,
EPA Office of Solid Waste, Closure of Hazardous Waste Surface
Impoundments, SW-873, p 81 (September 1982), Revised Edition.
Concerns have been raised that the existing regulations do not
clearly support the above description. For
[[Page 32026]]
example, some have argued that the term ``infiltration'' only refers to
the movement of water into a unit from the surface through a cover
system, or that the regulations do not require facilities to eliminate
``free liquids'' derived from groundwater. Although EPA strongly
disagrees and considers that the plain text of the regulation already
clearly communicates the positions laid out above, the Agency requests
comment on whether to revise the existing regulatory text so that it
addresses the particular issues that regulated entities have raised.
Specifically, as discussed previously EPA is requesting comments on
whether to include a regulatory definition of the term ``liquids,''
which could specify that the term includes free water, porewater,
standing water, and groundwater. Similarly, EPA requests comment on
whether to adopt a regulatory definition of the term ``infiltration,''
consistent with term's plain meaning and the dictionary definitions
referenced above.
ii. Preparation of a Written Closure Plan for CCR Management Units
EPA is proposing that owners and operators of CCRMU comply with the
existing requirements of Sec. 257.102(b) requiring the preparation of
a written closure plan. See proposed regulatory text at Sec.
257.102(b)(2)(iii). EPA is proposing a deadline of 12 months after the
effective date of the rule to complete the closure plan. The rationale
for the components of this report and for this compliance date is
described in Unit IV.A.2.g.ii of this preamble.
iii. Preparation of a Written Post-Closure Care Plan for CCR Management
Units
EPA is proposing that owners and operators of CCRMU would be
required to comply with the existing requirement in Sec. 257.104(d)
regarding the preparation of a written post-closure. See, proposed
regulatory text at Sec. 257.104(d)(4)(iii). EPA is proposing to
require the post-closure care plan no later than 12 months after the
effective date of the final rule. The rationale for the components of
this report and for this compliance date is described in Unit
IV.A.2.g.iii of this preamble.
iv. Deadline To Initiate Closure for CCR Management Units
EPA is proposing that owners and operators of CCRMU initiate
closure no later than 12 months after the effective date of the final
rule. See proposed regulatory text at Sec. 257.101(f). EPA's rationale
for this timeframe is included in Unit IV.A.2.g.iv and Unit IV.A.2.a.ii
of this preamble.
v. Deadline To Complete Closure for CCR Management Units
The existing CCR regulations currently require (at Sec.
257.102(f)) an owner or operator of a CCR surface impoundment generally
to complete closure activities within five years from initiating
closure. The regulations also establish the conditions for extending
this deadline, upon a showing that additional time is necessary.
EPA is proposing to apply the CCR surface impoundment closure
timeframes because EPA has concluded that CCRMU closure will closely
resemble CCR impoundment closures. First, as discussed in Unit
IV.B.2.a, EPA identified a total of 134 areas where CCR is being
managed, but which remain exempt under existing federal CCR
regulations. Over half of these areas are associated with former,
federally unregulated CCR surface impoundments. For those former
impoundments that will be closed with waste in place, the owner or
operator would need to procure substantial volumes of soil or borrow
material to properly achieve the subgrade elevations needed to support
the final cover system. For some CCRMU this material acquisition will
involve the movement of tens of thousands of truckloads of soil or
borrow material. This situation would also apply to certain CCR fill
placements as well as to inactive CCR landfills where past waste
disposal did not reach the landfill's design capacity (i.e., landfill
airspace was not fully utilized). In these situations, EPA believes the
timeframes to complete closure for existing CCR surface impoundments
are more appropriate (i.e., 5 years) than, for example the 6 months
(and limited time extensions) provided for existing CCR landfills.
Second, EPA is finding through implementation of the existing
regulations that a significant percentage of facilities are electing to
close CCR units by removal of waste. If owners and operators of CCRMU
were to similarly choose this approach to closure, a shorter timeframe
would only be sufficient for smaller-sized CCRMU since removal
operations often require tens of thousands of truckloads to relocate
CCR to a suitable location.
Finally, as discussed in Unit IV.B.6, the Agency is concerned that
the base of at least some CCRMU may intersect with the groundwater
beneath the unit because CCRMU may be located in floodplains or
wetlands, or near large surface water bodies. EPA's experience in
implementing the regulations is that such closures are generally more
complex and take longer to complete. This is because the facility will
typically need to incorporate engineering measures into the closure
activities to ensure that the groundwater will no longer be in contact
with the waste in the unit. EPA thus believes the timeframes to
complete closure of CCRMU should be the same as the timeframes provided
for existing CCR surface impoundments.
In addition, EPA is proposing to make CCRMU eligible for limited
time extensions to complete closure when justified by the owner or
operator. EPA recognizes that there can be unforeseen and extraordinary
circumstances that warrant additional time to close a CCRMU. For
example, these circumstances can include climate of the location.
Weather delays, and the need for coordination with and approvals from
state regulatory agencies. Accordingly, the rule proposes to adopt the
same procedures currently applicable to CCR surface impoundments, which
would allow the owner or operator to obtain additional time to complete
the closure of a CCRMU, provided the owner or operator can make the
prescribed demonstrations. Consistent with the existing requirements
for CCR surface impoundments, the amount of additional time that a
facility could obtain would vary based on the size (using surface area
acreage of the CCR unit as the surrogate of size) of the CCRMU. For
CCRMU 40 acres or smaller, the maximum time extension is 2 years. For
CCRMU greater than 40 acres, the maximum time extension is five 2-year
extensions (10 years), and the owner or operator must substantiate the
factual circumstances demonstrating the need for each 2-year extension.
See proposed regulatory text at Sec. 257.102(f)(2).
vi. Post-Closure Care for CCR Management Units
The existing post-closure care criteria require the monitoring and
maintenance of units that have closed in place for at least 30 years
after closure has been completed. 40 CFR 257.104. During this post-
closure period, the facility would be required to continue groundwater
monitoring and corrective action, where necessary. EPA is proposing to
apply these existing requirements to CCRMU without revision. These
criteria are essential to ensuring the long-term safety of CCRMU.
[[Page 32027]]
d. Recordkeeping, Notification and Internet Posting for CCR Management
Units
As discussed in Unit IV.A.2.h of this preamble, the 2015 CCR Rule
required at Sec. Sec. 257.105 through 257.107 for owner or operators
of CCR units to record certain information in the facility's operating
record. In addition, owners and operators are required to provide
notification to states and/or appropriate Tribal authorities when the
owner or operator places information in the operating record, as well
as to maintain a website for this information. Similar to legacy CCR
surface impoundments, EPA is proposing that owners and operators of
CCRMU be subject to certain recordkeeping, notification, and website
reporting requirements in the CCR regulations. EPA is proposing that
the applicable recordkeeping requirements in Sec. 257.105, the
notification requirements in Sec. 257.106, and posting on a website
requirements at Sec. 257.107 would also apply to CCRMU. EPA is also
proposing changes to add CCRMU to Sec. 257.107(a) to require the
facility to notify the Agency using the procedures for the
establishment of the website no later than the effective date of the
final rule.
C. Technical Corrections
Through the implementation of the 2015 CCR Rule, the Agency
identified an incorrect CFR reference to the definition of technically
feasible, technically infeasible, and wetlands EPA also identified
inconsistencies in how publicly accessible internet sites are
referenced. Therefore, EPA is proposing to amend the CCR regulations so
that the regulations clarify definitions, accurately reference the
definition of wetlands, and use consistent language when referring to
publicly accessible internet sites. The Agency is also proposing to
amend an incorrect reference to Sec. 257.99 in the groundwater
monitoring scope section. Finally, EPA is requesting comment on
extending the period for document retention and posting.
1. Definitions of ``Technically Feasible'' and ``Technically
Infeasible''
EPA is proposing to revise the definition of technically feasible
to clarify that the terms technically feasible and feasible have the
same meaning in the regulations. The existing regulations define
technically feasible as ``possible to do in a way that would likely be
successful.'' EPA codified this definition in 2020 when amending the
alternative closure requirements for landfills and impoundments. 85 FR
53542 (August 28, 2020). As EPA explained, the definition was based on
two dictionary definitions of ``feasible'': ``capable of being done or
carried out''(Merriam website (https://www.merriam-webster.com/dictionary/feasible)) and ``possible to do and likely to be
successful'' (Cambridge English Dictionary (https://dictionary.cambridge.org/us/dictionary/english/feasible)). Id.
However, some rule provisions use the term feasible. It is not the
Agency's intent to distinguish between these terms. Therefore, EPA is
proposing to add the term feasible to the existing definition of
technically feasible to make clear that both terms have the same
meaning in the regulations. This definition revision would be
accomplished by adding ``or feasible'' to the existing definition so
that the definition would read ``Technically feasible or feasible means
possible to do in a way that would likely be successful.'' See proposed
regulatory text at Sec. 257.53.
For similar reasons, EPA is proposing to also revise the definition
of technically infeasible to clarify that the terms technically
infeasible and infeasible have the same meaning in the regulations. See
proposed regulatory text at Sec. 257.53.
2. Wetlands Reference Correction
When the 2015 CCR Rule was finalized in April 2015, Sec. 257.61(a)
referenced Sec. 232.2 which contained a definition of wetlands. An EPA
and United States Army Corps of Engineers joint final rule published
June 29, 2015 (80 FR 37053) amended Sec. 232.2 by removing the
definition of wetlands. However, the reference to Sec. 232.2 in Sec.
257.61(a) of the 2015 CCR Rule was not updated. The proposed amendment
would correct the CFR reference for the wetlands definition by
referring to 40 CFR 230.41(a) (December 24, 1980, 45 FR 85344).
3. Groundwater Monitoring and Corrective Action Applicability
EPA is proposing to correct a typographical error in the initial
applicability paragraph of the groundwater monitoring and corrective
action regulations. In Sec. 257.90(a), the existing regulations refer
to the ``groundwater monitoring and corrective action requirements
under Sec. Sec. 257.90 through 257.99''; however, there are no
requirements codified under Sec. 257.99. This was brought to our
attention by a state interested in permit program approval. To avoid
confusion with the regulations, EPA is proposing to revise the section
references in Sec. 257.90(a) to read ``groundwater monitoring and
corrective action requirements under Sec. Sec. 257.90 through
257.98.''
4. Publicly Accessible Internet Site
EPA is proposing to change several provisions using the term ``CCR
Web site'' to ``CCR website,'' which is the term used in Sec.
257.107(a). The inconsistent spelling of CCR website was brought to our
attention by a state interested in permit program approval. To avoid
confusion with the regulations, EPA is proposing to correct such
references in Sec. Sec. 257.100(e)(1)(iii) and 257.107(b) through (j).
5. Document Retention
EPA is taking comment on extending the period for document
retention and posting found in Sec. Sec. 257.105 and 257.107. The
existing regulations generally require retention of documents in the
operating record for a period of five years (Sec. 257.105(b)) and
posting of documents on the facility publicly accessible CCR website
for five years (Sec. 257.107(c)). The Agency now believes these time
periods may be too short and that relevant information should remain
publicly accessible for a longer time period. Under the existing
requirements, information that is still relevant for CCR units could be
removed from operating records and taken off websites well before the
relevancy of that information has passed and goals of the record
retention and posting requirements have been met. For example, for CCR
unit closure plans that were posted in 2016 in accordance with Sec.
257.102(b), the time periods have run, allowing closure plans to be
removed from operating records and websites. This is true even if the
facility has not initiated closure activity and may not initiate
closure activity for many years. This was not consistent with EPA's
original intent--either for the closure plan itself or for the posted
information more generally--which was that the information should
remain posted for as long as the information was relevant to evaluating
the facility's compliance with the regulations. See, e.g., 80 FR 21335.
The Agency continues to believe that much of the information, including
plans, reports, and monitoring results, subject to the time period
limits will remain relevant and should remain accessible for a much
longer period than the original five years. The Agency is taking
comment on how long these time periods should be extended. The Agency
is considering a general increase in the retention period (e.g.,
fifteen years) or, alternatively, tying the retention period to a
regulatory milestone for each unit (e.g., completion
[[Page 32028]]
of closure, post-closure care, or groundwater corrective action) and is
seeking comment on which of these approaches, if any, the Agency should
adopt. The Agency is considering this extension of retention time for
all documents currently subject to the relevant retention time periods
as all of these documents could remain relevant longer than the current
time periods. Therefore, the goals of information availability and
transparency would remain relevant for the CCR program.
V. Effect on State CCR Permit Programs
The proposed revisions to the CCR regulations would both establish
standards for new types of units and revise existing requirements for
CCR units defined in and subject to the 2015 CCR Rule. For this reason,
if EPA takes final action on all the proposed changes, the requirements
for approval and retention of a state CCR permit program in accordance
with RCRA section 4005(d) will change. How these revisions would affect
states depends on whether the state has received approval for the
provisions that are ultimately included in any final rule and whether
the state is seeking full or partial approval of its permit program.
If EPA has approved a state regulation pursuant to RCRA section
4005(d), that state regulation will continue to operate in lieu of the
federal program, even if EPA subsequently revises the federal analog of
that regulation. See 42 U.S.C. 6945(d)(1)(A), (3). In essence this
means that any federal revisions would not take effect in the approved
state until the state revises the program to adopt them. In order to
maintain approval, the state must revise such a regulation within three
years of any revision to the federal CCR regulation that is more
protective. See, 42 U.S.C. 6945(d)(1)(D)(i)(II). Conversely, where EPA
has not approved a state requirement, the federal requirements continue
to apply directly to the facilities in that state. As a consequence,
any revisions to the federal requirements will take effect in states
without an approved program because the federal requirements continue
to operate.
As discussed in Units IV.A and IV.B of this preamble, EPA is
proposing to establish requirements for legacy CCR surface impoundments
and CCRMU. Because legacy CCR surface impoundments and CCRMU are new
types of federally regulated units, no state is currently approved to
issue state CCR permits to such units in lieu of the federal CCR
regulations. Thus, any state that wants approval to issue permits to
such units will be required to update the state CCR regulations and go
through the state CCR permit program approval process set forth in RCRA
section 4005(d).
As discussed in Units IV.B.9 and IV.C of this preamble, EPA is also
proposing to revise requirements under the existing CCR regulations.
The revised requirements will directly apply to affected facilities
except to the extent EPA has already approved the state to issue
permits for the original requirement. In such a case the state
requirement will apply in lieu of the new federal requirement until the
state program is revised. EPA considers at least one of these proposals
(the proposal to expand Sec. 257.102(d)(2) to landfills that are
inundated with groundwater) to be more stringent than the existing
regulations.
Accordingly, all states will have to consider whether to update
their state CCR regulations and seek approval to issue permits for
legacy CCR surface impoundments and CCRMU. In addition, states with
approved CCR permit programs will be required to revise their
regulations to address any new requirements applicable to CCR units, to
the extent those requirements are more stringent than the approved
state CCR permit program.\79\ Similarly, states that are currently
working with the Agency to obtain approval of their state CCR permit
program will need to update their state programs to address the new
requirements applicable to CCR units if the state wishes to seek full
program approval and the new requirements are more stringent.\80\
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\79\ Currently the states of Georgia, Oklahoma, and Texas have
approval for state CCR permit programs.
\80\ Currently, EPA is working with the states of Alabama,
Arizona, Florida, Illinois, Indiana, Kansas, Louisiana, Maryland,
Michigan, North Carolina, North Dakota, Pennsylvania, Tennessee,
Utah, Virginia, West Virginia, Wisconsin, and Wyoming on drafting
CCR regulations or a draft CCR permit program.
---------------------------------------------------------------------------
The process for approving modifications is the same as for the
initial program approval: EPA will propose to approve or deny the
program modification and hold a public hearing during the comment
period. EPA will then issue the final program determination within 180
days of determining that the state's submission is complete.
EPA requests comment on the effect of this proposed rule on state
CCR permit programs. EPA specifically requests comment on whether the
proposed revisions to the existing requirements that apply to CCR units
will be more stringent than the existing state CCR permit requirements,
such that the states with approved programs and states currently in the
process of seeking approval would need to revise their state CCR permit
program to retain or obtain approval, respectively.
VI. The Projected Economic Impact of This Action
A. Introduction
EPA estimated the costs and benefits of this action in a Regulatory
Impact Analysis (RIA), which is available in the docket for this
action.
B. Affected Universe
The universe of facilities and units affected by the proposed rule
includes three categories. The first is comprised of facilities with
legacy CCR surface impoundments. The RIA identifies 127 legacy CCR
surface impoundments located at 59 facilities. The second component of
the affected universe is composed of CCRMU. The RIA identifies 134
units at 82 facilities. The final component of the universe is
comprised of CCR landfills that are already regulated under the 2015
CCR final rule, but which have waste in contact with groundwater. The
RIA identifies 19 units.
C. Baseline Costs
The RIA examines the extent to which baseline practices at legacy
CCR surface impoundments and CCRMU address contamination in a manner
consistent with the requirements of the proposed rule. To the extent
that legacy CCR surface impoundments and CCRMU are already sufficiently
addressing contamination, they are assumed to not incur costs or
realize benefits under the proposed rule. To estimate the proportion of
legacy CCR surface impoundments addressing contamination in the
baseline, the RIA examines relevant federal and state programs and
determines that about 5.5% of legacy CCR surface impoundments are
addressing site contamination. To estimate the proportion of CCRMU
addressing contamination, the RIA examines publicly available filings
from owners and operators of regulated coal fired power plants. The RIA
estimates that about 34% of CCRMU are undergoing sitewide corrective
action and closure in a manner sufficient to meet the requirements of
the proposed rule.
D. Costs and Benefits of the Proposed Rule
The RIA estimates that the annualized costs of this action will be
approximately $413 million per year when discounting at 7%. Of this,
$237 million is attributable to the requirements for legacy CCR surface
[[Page 32029]]
impoundments, which are subject to the D.C. Circuit's order in USWAG,
$170 million is attributable to the requirements for CCRMU, and $6
million is attributable to requirements for landfills. The RIA
estimates that the annualized costs of this action will be
approximately $356 million when discounting at 3%. Of this, $204
million is attributable to the requirements for legacy CCR surface
impoundments, $146 million is attributable to the requirements for
CCRMU, and $6 million is attributable to requirements for landfills.
The costs of this proposed rule are discussed further in the RIA and
include the costs of unit closure, corrective action, fugitive dust
controls, structural integrity inspections, and recordkeeping and
reporting.
The RIA estimates that the annualized monetized benefits
attributable to this action will be approximately $49 million per year
when discounting at 7%. Of this, $30 million is attributable to the
requirements for legacy CCR surface impoundments, $16 million is
attributable to the requirements for CCRMU, and $3 million is
attributable to requirements for landfills. The RIA estimates that the
annualized monetized benefits attributable to this action will be
approximately $77 million per year when discounting at 3%. Of this, $47
million is attributable to the requirements for legacy CCR surface
impoundments, $25 million is attributable to the requirements for
CCRMU, and $5 million is attributable to requirements for landfills.
The monetized benefits of this proposed rule are discussed further in
the RIA, and include reduced incidents of cancer from the consumption
of arsenic in drinking water, avoided intelligence quotient (IQ) losses
from mercury and lead exposure, non-market benefits of water quality
improvements, and the protection of threatened and endangered species.
EPA also monetized the benefits of avoided impoundment failures,
including both ``catastrophic'' failures and smaller-volume releases.
One example of a severe impoundment failure is the Dan River Steam
Station failure which occurred in 2014, when a stormwater drainage pipe
under the inactive surface impoundments at the Dan River Steam Station
caused the inadvertent release of 39,000 tons of CCR directly into the
nearby Dan River. The result high-end estimate of the costs of this
impoundment failure is $300 million.
The RIA also describes a number of important benefits that cannot
currently be quantified of monetized due to data limitations or
limitations in current methodologies. These benefits include reducing
the baseline risk of unit leakage and failure attributable to climate-
change driven severe weather events. Many legacy CCR surface
impoundments and CCRMU are situated close to rivers or are located
along the coast. These units are vulnerable to inland or coastal
flooding, which may occur at an increased frequency due to the effects
of climate change. Flooding events may cause these units to overtop or
catastrophically collapse, releasing CCR into the environment, exposing
nearby communities to toxic contamination and necessitating potentially
costly cleanup and remediation. EPA has identified 36 legacy CCR
impoundments at medium or high risk from climate change driven
flooding, and 27 CCRMU at medium or high risk from climate change
driven flooding.
Another set of benefits outside the scope of quantification include
reducing the instance of negative human health impacts such as
cardiovascular mortality, neurological effects, and cancers (separate
from the quantified cancer benefits) brought on by exposure to toxins
found in coal ash. Either through leaking impoundment sites or release
events, many pollutants from legacy CCR surface impoundments are likely
to contaminate nearby water bodies, affecting surface waters, local
fish populations, and drinking water reservoirs. Because known
transport pathways exist between these release events and human heath
endpoints, EPA expects the proposed rule to cause risk reductions for
various categories that are not yet quantifiable. Toxins such as
thallium, molybdenum, and lithium, while all present in CCR, lack the
data to create dose-response relationships between ingestion rates and
specific health endpoints, and thus precludes EPA from quantifying
associated benefits.
The RIA describes several surface water quality benefits such as
the improved health of ecosystems proximate to CCR disposal units, and
the avoided costs of treating public drinking water impacted by CCR
contamination. EPA expects leakages or releases of effluent from any
CCR surface impoundment site to contaminate nearby surface waters and
environments. Introduction of arsenic, selenium, and other heavy metals
associated with CCR surface impoundment contents are shown to
accumulate in sediments of nearby stream and lake beds, posing risks
and injury to organisms and consequently ecosystems. Although surface
waters are broadly protected from high levels of contaminants under
EPA's regulations and Water Quality Criteria (WQC), complex
interactions from trace amounts of heavy metals and other toxins known
to be released from legacy CCR surface impoundment sites have displayed
measurable impact to aquatic animals and ecosystems.\81\
---------------------------------------------------------------------------
\81\ Brandt, Jessica E., et al. ``Beyond selenium: coal
combustion residuals lead to multielement enrichment in receiving
lake food webs.'' Environmental science & technology 53.8 (2019):
4119-4127.
---------------------------------------------------------------------------
The proposed rule may result in avoided drinking water treatment
costs and drinking water quality improvements at public water systems.
First, by reducing the risk of CCR leakage events and impoundment
failures, the proposed rule will help avoid costs of water quality
treatment at public intake sources. Second, by preventing release
events the proposed rule has the potential to reduce the incidence of
eutrophication in source waters for public drinking supplies.
Eutrophication is primarily caused by an overabundance of nitrogen and
phosphorus. It causes foul tastes and odors, which require additional
treatment, and commensurate expenditure, to remove.
The RIA discusses potential impacts on the market for the
beneficial use of CCR as a substitute for virgin materials. Future uses
of CCR are unknown. Research on the recovery of rare earth elements and
yttrium from coal fly ash is ongoing but currently only at laboratory
scale. It is possible that in the future, the availability of
additional CCR may reach an equilibrium price that encourages demand,
particularly as coal plants retire and the supply of ``new'' CCR falls.
However, the quality of CCR in legacy CCR surface impoundments and
CCRMU may limit their value. Older, closed impoundments or other CCR
storage areas are less likely to have CCR material of a known and
reliable composition.
The RIA also discusses potential reductions in fugitive dust
emanating from legacy CCR surface impoundments, which will benefit
fence line communities by reducing the amount of resuspended ash from
legacy CCR surface impoundments that could otherwise lead to
respiratory health hazards for communities surrounding a given legacy
surface impoundment.
The RIA discusses the benefits of improved property values near
closed and remediated sites. Neighborhoods located near hazardous waste
sites often experience depressed property values due to health risks
posed by contaminant exposure pathways, potential reductions in
ecological services, unsightly aesthetics of the
[[Page 32030]]
disposal unit site, and potential stigma associated with proximity to a
disposal site. Almost a million households, and over 2.5 million people
are located within 3 miles of legacy CCR surface impoundments and
CCRMU. Approximately 75,000 households and 200,000 people are located
within a mile. Improvements in home values resulting from the proposed
rule have the potential to bestow welfare gains to homeowners located
near legacy CCR units and CCR management units.
The RIA also discusses the value of reusing land formerly occupied
by legacy CCR surface impoundments, and CCRMU. Once legacy CCR surface
impoundments and CCRMU are closed by removal, or landfills are properly
capped, or corrective action activities are completed, the land is more
likely to move into alternative, economically productive purposes. For
example, these land reuse projects might include industrial
redevelopment or implementation of green energy generation which can
utilize the existing electricity grid infrastructure.
Finally, based on the demographic composition and environmental
conditions of communities within one and three miles of legacy CCR
surface impoundments, these proposals will reduce existing
disproportionate and adverse effects on economically vulnerable
communities, as well as those that currently face environmental
burdens. For example, in Illinois the population living within 1 mile
of legacy CCR surface impoundment sites is over three times as likely
compared to the state average to have less than a high school education
(35.66% compared to 10.10%, see RIA exhibit ES.14), and that population
already experiences higher than average exposures to particulate
matter, ozone, diesel emissions, lifetime air toxics cancer risks, and
proximity to traffic, Superfund sites, Risk Management Plan sites, and
hazardous waste facilities (see RIA exhibit ES.15).
The RIA also discusses the interaction of the CCR rules with Air
rules governing emissions at power plants. Following on the significant
progress EPA has made over many decades to reduce dangerous pollution
from coal-fired electric utilities' stack emissions and effluents, this
proposed rule will help EPA further ensure that the communities and
ecosystems closest to coal facilities are sufficiently protected from
harm from groundwater contamination, surface water contamination,
fugitive dust, floods and impoundment overflows, and threats to
wildlife. The volume and toxicity of CCR at many sites persisted or
increased over past decades even as coal-fired units' air and water
emissions decreased, and this proposed rule will help EPA fulfill the
promise of substantial public health and welfare gains from its full
suite of regulations aimed at reducing the harms from coal-combustion
pollution.
As noted previously, EPA establishes the requirements under RCRA
sections 1008(a)(3) and 4004(a) without taking cost into account. See,
USWAG, 901 F.3d at 448-49. Although EPA has accordingly designed its
proposal based on its statutory factors and court precedent and has not
relied on this benefit-cost analysis in the selection of its proposed
alternative, EPA believes that after considering all unquantified and
distributional effects, the public health and welfare gains that will
result from the proposed alternative would justify the rule's costs.
Under section 3(f)(1) of Executive Order 12866, this action is
considered a significant action.
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Under section 3(f)(1) of Executive Order 12866, this action is a
significant regulatory action that was submitted to the Office of
Management and Budget (OMB) for review. Any changes made in response to
recommendations received as part Executive Order 12866 review have been
documented in the docket. EPA prepared an analysis of the potential
costs and benefits associated with this action. This analysis,
Regulatory Impact Analysis: Hazardous and Solid Waste Management
System: Disposal of Coal Combustion Residuals from Electric Utilities;
Legacy CCR Surface Impoundments, is available in the docket. and is
briefly summarized in section VII.
B. Paperwork Reduction Act (PRA)
The information collection activities in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the PRA. The Information Collection Request (ICR) document
that the EPA prepared has been assigned EPA ICR number 2761.01. You can
find a copy of the ICR in the docket for this rule, and it is briefly
summarized here.
The proposed rule requires legacy CCR surface impoundments to
comply with the reporting and recordkeeping requirements already in
place for regulated CCR units. Many of these requirements are one-time
requirements that will occur soon after the promulgation of the rule,
while several are ongoing. The proposed rule also requires legacy CCR
surface impoundments to submit an applicability report, unique to this
universe of units, which will provide stakeholders with essential site
characteristic and contact information for the unit.
Respondents/affected entities: Inactive coal fired electric utility
plants with inactive CCR surface impoundments (legacy CCR surface
impoundments), coal-fired electric utility plants with CCRMU, and coal-
fired electric utility plants with landfills already subject to
regulation under the 2015 final CCR rule, but which have waste in
contact with groundwater.
Respondent's obligation to respond: The recordkeeping,
notification, and posting are mandatory as part of the minimum national
criteria promulgated under Sections 1008(a), 2002(a), 4004, and 4005(a)
and (d) of RCRA.
Estimated number of respondents: 273.
Frequency of response: one-time and annually.
Total estimated burden: 70,700 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $24.4 million (per year), includes $20.4
million annualized capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule. The EPA will respond to any ICR-related
comments in the final rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs using the
interface at www.reginfo.gov/public/do/PRAMain. One may find this
particular information collection by selecting ``Currently under
Review--Open for Public Comments'' or by using the search function. OMB
must receive comments no later than July 17, 2023.
[[Page 32031]]
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. The
small entities subject to the requirements of this action are owners
and operators of coal fired electric utility plants in NAICS code
221112 and firms that own property on which an inactive/retired coal
fired power plant is located. The Agency has identified 11 small
entities subject to the proposed rule. The Agency estimates that the
average annual cost to a small entity that owns CCRMU will be
approximately $2.8 million, and the average annual cost to a small
entity that owns legacy CCR surface impoundments will be about $2.1
million. EPA makes two assumptions about how small entities will comply
with the rule. First, EPA assumes that the units owned by small
entities will all require corrective action, and will undergo closure
by removal. Second, EPA assumes that small entities will not be able to
pass on any compliance costs to ratepayers. These assumptions, in EPA's
opinion, constitute a high-end scenario. Eight small entities are
estimated to own CCRMU, for an annual cost of approximately $23
million. Three small entities are estimated to own legacy CCR surface
impoundments for an annual cost of approximately $6.5 million. In total
small entities are estimated to incur approximately $29.5 million in
annual costs. The Agency has determined that one small entity may
experience an impact above 1% of annual revenues but below 3% of annual
revenues, and one small entity may experience an impact greater than 3%
of annual revenues. Details of this analysis are presented in the
Regulatory Impact Analysis, which can be found in the docket for this
action.
D. Unfunded Mandates Reform Act (UMRA)
This action contains a federal mandate under UMRA, 2 U.S.C. 1531-
1538, that may result in expenditures of $100 million or more for
state, local and tribal governments, in the aggregate, or the private
sector in any one year. Accordingly, the EPA has prepared a written
statement required under section 202 of UMRA. The statement is included
in the docket for this action and briefly summarized here.
The RIA estimates that the proposed rule may affect 127 legacy CCR
surface impoundments at 59 facilities, 134 CCRMU at 82 facilities, and
29 landfills already regulated under the 2015 final rule. The proposed
rule will extend the existing requirements of the 2015 CCR final rule,
found in 40 CFR part 257, subpart D, to these units.
In preparing the 2015 CCR final rule, and consistent with the
intergovernmental consultation provisions of section 204 of the UMRA,
EPA initiated pre-proposal consultations with governmental entities
affected by the rule. In developing the regulatory options for the 2015
CCR Rule, EPA consulted with small governments according to EPA's UMRA
interim small government consultation plan developed pursuant to
section 203 of UMRA. The details of this consultation can be found in
the preamble to the 2015 CCR final rule. Consistent with section 205 of
UMRA, EPA identified and considered a reasonable number of regulatory
alternatives, and adopted the least-costly approach (i.e., a modified
version of the ``D Prime'' least costly approach presented in the 2010
proposed CCR rule). The proposed rule merely extends the provisions of
the 2015 final rule to three additional classes of facilities.
This action is not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. The threshold
amount established for determining whether regulatory requirements
could significantly affect small governments is $100 million annually.
The RIA estimates annual average costs of $5 million total for the two
local governments identified as owning units subject to the proposed
rule. These estimates are well below the $100 million annual threshold
established under UMRA. There are no known tribal owner entities of
facilities that would incur substantial direct costs under the proposed
rule.
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. For the ``Final Rule: Hazardous and Solid Waste
Management System; Disposal of Coal Combustion Residuals from Electric
Utilities'' published April 17, 2015 (80 FR 21302), EPA identified
three of the 414 coal-fired electric utility plants (in operation as of
2012) as being located on tribal lands. To the extent that these plants
contain CCRMU subject to the proposed rule, the impacts to tribes will
be limited to document review and walking the site. As these are not
substantial direct costs, this action does not impose substantial
direct compliance costs or otherwise have a substantial direct effect
on one or more Indian tribes, to the best of EPA's knowledge. Neither
will it have substantial direct effects on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is subject to E.O. 13045 (62 FR 19885, April 23, 1997)
because it is a significant regulatory action under section 3(f)(1) of
E.O. 12866, and EPA believes that the environmental health or safety
risks addressed by this action may have a disproportionate effect on
children. Accordingly, EPA evaluated the environmental health or safety
effects of CCR constituents of potential concern on children. The
results of this evaluation are contained in the Human and Ecological
Risk Assessment of Coal Combustion Wastes available in the docket for
this action.
As ordered by E.O. 13045 Section 1-101(a), EPA identified and
assessed environmental health risks and safety risks that may
disproportionately affect children in the revised risk assessment.
Pursuant to U.S. EPA's Guidance on Selecting Age Groups for Monitoring
and Assessing Childhood Exposures to Environmental Contaminants,
children are divided into seven distinct age cohorts: 1 to <2 yr, 2 to
<3 yr, 3 to <6 yr 6 to <11 yr, 11 to <16 yr, 16 to <21 yr, and infants
(<1 yr). Using exposure factors for each of these cohorts, EPA
calculated cancer and non-cancer risk results in both the screening and
probabilistic phases of the assessment. In general, risks to infants
tended to be higher than other childhood cohorts, and also higher than
risks to adults. However, for drinking water cancer risks, the longer
exposures for adults led to the highest risks. Screening risks exceeded
EPA's human health criteria for children exposed to contaminated air,
soil, and food resulting from fugitive dust emissions and run-off.
Similarly, 90th percentile child cancer and non-cancer risks exceeded
the human health
[[Page 32032]]
criteria for the groundwater to drinking water pathway under the full
probabilistic analysis (Table 5-17 in the Human and Ecological Risk
Assessment of Coal Combustion Wastes). The closure, groundwater
monitoring and corrective action required by the rule will reduce risks
from currently unregulated legacy CCR surface impoundments, and waste
management units. Thus, EPA believes that this rule will be protective
of children's health.
In general, because the pollution control requirements under the
CCR rule will reduce health and environmental exposure risks at all
coal-fired electric utility plants, the CCR rule is not expected to
create additional or new risks to children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. Because the proposed rule addresses
management of CCR and pertains solely to inactive CCR units (legacy CCR
surface impoundments at inactive facilities and CCR management units at
facilities already regulated under the 2015 CCR rule), this proposed
rule will have no effect on the production of crude oil, coal, fuel, or
natural gas. In addition, the proposed rule will have no direct effect
on electricity production, generating capacity, or on foreign imports
or exports of energy.
Electricity price effects on the price of energy are only possible
because in some cases, utilities may attempt to pass the costs of
managing CCR under the proposed rule on to ratepayers in the form of
increased electricity rates through Public Utility Commissions (PUCs).
As a result, the proposed rule may indirectly affect electricity prices
within the energy sector. To estimate what the electricity price
effects of this proposed rule may be on a national level, EPA compared
the expected costs of this rule to the expected costs and effects
resulting from three previously conducted IPM runs for three previous
RIAs, the 2015 CCR Rule, the 2015 ELG Rule (which included the costs of
the 2015 CCR Rule in its baseline), and the 2019 ELG Rule, which was a
deregulatory rule. Extrapolating from these IPM runs, EPA estimates
that the effect of the current action on electricity prices will be
between 0.042% and 0.125%. Since these effects fall below the 1%
threshold, EPA concludes that this rule is not expected to generate
significant adverse energy effects. The full energy impacts analysis is
available in the Regulatory Impact Analysis that accompanies this
action.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking involves technical standards. EPA has decided to
use the following technical standards in this rule: (1) RCRA Subpart D,
Section 257.70 liner design criteria for new CCR landfills and any
lateral expansion of a CCR landfill includes voluntary consensus
standards developed by ASTM International and EPA test methods such as
SW-846, (2) Section 257.71 liner design criteria for existing CCR
surface impoundments includes voluntary consensus standards developed
by ASTM International and EPA test methods such as SW-846, (3) Section
257.72 liner design criteria for new CCR surface impoundments and any
lateral expansion of a CCR surface impoundment includes voluntary
consensus standards developed by ASTM International and EPA test
methods such as SW-846, and (4) Section 257.73 structural stability
standards for new and existing surface impoundments use the ASTM D 698
and 1557 standards for embankment compaction.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice (EJ) part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of their programs,
policies, and activities on communities with environmental justice
concerns.
EPA believes that the human health or environmental conditions that
exist prior to this action result in or have the potential to result in
disproportionate and adverse human health or environmental effects on
communities with environmental justice concerns.
EPA conducted a demographic screening analysis for all legacy CCR
surface impoundments and CCRMU to determine the composition of
populations living within one and three miles of facilities with these
units. Specifically, EPA looked at the percentages of the relevant
populations that are identified as minority/people of color, households
below the federal poverty level, population with less than high school
education (among those 25 years and older), and populations
characterized by linguistic isolation. EPA chose to look at radii of
one and three miles because they represent the areas most likely to be
affected by groundwater contamination from legacy CCR surface
impoundments and CCRMU. EPA compared the demographic profile within
these radii to national averages to assess the extent to which
marginalized groups are disproportionately affected by contamination
from legacy CCR surface impoundments and CCRMU in the baseline. EPA
found that the following demographic and socioeconomic indicators were
more highly represented within one and three miles of sites containing
legacy CCR surface impoundments than the U.S. national averages:
minority/people of color, Black population, Native American population,
Hispanic ethnicity, households below the poverty level, less than high
school education, and linguistic isolation. EPA found that the
following demographic and socioeconomic indicators were more highly
represented within one and three miles of CCRMU: Black population,
``Other'' racial groups, households below the poverty level, and less
than high school education. EPA also compared a subset of three
population indicators, minority status, less than high school education
and linguistic isolation, around legacy CCR surface impoundments and
CCRMU against state level population characteristics. In eight of the
25 states (32%) containing legacy CCR surface impoundments affected by
the proposed rule, at least one of these three demographic indicators
for populations within one mile of the facility was above twice the
state average value. In five of the 28 states (18%) containing CCRMU
affected by the proposed rule, at least one of the three demographic
indicators for populations within one mile of the facility was above
twice the state average value.
EPA also examined the cumulative environmental impacts that exist
around facilities in the affected universe. EPA looked at the following
eight environmental indicators, PM 2.5, O3, Diesel PM, Lifetime Cancer
Risk, Traffic Proximity, National Priorities List (NPL) Proximity, Risk
Management Plan (RMP) Proximity, and Transportation Storage and
Disposal Facility (TSDF) proximity within one mile of facilities in the
affected universe. Because environmental indicators are not available
at the national level, EPA confined this analysis to states where at
least one facility registered twice the
[[Page 32033]]
state average on any of the eight environmental indicators. Nine states
contain such facilities, and in six of them at least half of the
environmental indicators within a mile of facilities containing legacy
units were higher than state averages. At the state level, therefore,
environmental issues seem to cluster, uniquely impacting communities
living within a mile of legacy and management units.
Based on the results of these demographic screening analyses, EPA
believes that the human health or environmental conditions that exist
prior to this action result in or have the potential to result in
disproportionate and adverse human health or environmental effects on
communities with environmental justice concerns.
EPA believes that this action is likely to reduce existing
disproportionate and adverse effects on communities with environmental
justice concerns. Neighborhoods located near legacy CCR surface
impoundments and CCR management units are disproportionately occupied
by communities with environmental justice concerns. These vulnerable
communities face risks of impoundment failure, groundwater
contamination, and fugitive air emissions. If such failures or
contamination occur, nearby residents will face risks to their health,
both cancer and noncancer. Other risks include damage to ecosystem
services and environmental amenities. These communities are likely to
face existing environmental burdens that put them at greater cumulative
risk from the environmental impacts associated with proximity to legacy
units. EPA believes that the proposed rule is likely to incrementally
reduce baseline disproportionate and adverse effects on communities
with environmental justice concerns by requiring closure and corrective
action at legacy CCR surface impoundments and CCRMU, thereby reducing
the risks of exposure to contamination from CCR faced by these
populations. The analyses above examining the demographic composition
and environmental conditions of communities within one and three miles
of legacy CCR surface impoundments and CCRMU highlight the higher
potential incidence of EJ issues in more demographically vulnerable
communities. They demonstrate that the proposed rule is likely to
improve conditions for nearby communities from the baseline, as these
communities are more likely than the national average to be more
vulnerable to environmental harms due to their demographics and
economic vulnerability and are currently facing existing environmental
burdens. It is important to note that proximity to traffic could remain
a significant EJ issue and in fact be exacerbated by the proposed rule
if removal of CCR from plants with legacy units is undertaken using
heavy-duty vehicles and routes that run through residential areas. EJ
concerns related to traffic will need to be assessed at a site-by-site
level in conversation with nearby communities as EPA implements the
proposed rule.
The information supporting this Executive Order review is contained
in the accompanying Regulatory Impact Analysis, which can be found in
the docket for this action.
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.
Michael S. Regan,
Administrator.
For the reasons set out in the preamble, EPA proposes to amend 40
CFR part 257 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, 6945(a) and
(d); 33 U.S.C. 1345(d) and (e).
0
2. Amend Sec. 257.1 by revising paragraph (c)(12) to read as follows:
Sec. 257.1 Scope and purpose.
* * * * *
(c) * * *
(12) Except as otherwise specifically provided in subpart D of this
part, the criteria in subpart A of this part do not apply to CCR
landfills, CCR surface impoundments, lateral expansions of CCR units,
and CCR management units, as those terms are defined in subpart D of
this part. Such units are instead subject to subpart D of this part.
Subpart D [AMENDED]
0
3. Amend subpart D by remove the phrase ``Web site'' and adding in its
place the word ``website'' everywhere it appears.
0
4. Amend Sec. 257.50 by revising paragraph (c), (d), and (e) to read
as follows:
Sec. 257.50 Scope and purpose.
* * * * *
(c) This subpart also applies to inactive CCR surface impoundments
at active electric utilities or independent power producers, regardless
of how electricity is currently being produced at the facility.
(d) This subpart applies to CCR management units located at active
or inactive facilities with a CCR unit.
(e) This subpart applies to electric utilities or independent power
producers that have ceased producing electricity prior to October 19,
2015 and that have a legacy CCR surface impoundment.
* * * * *
0
5. Revise Sec. 257.52 to read as follows:
Sec. 257.52 Applicability of other regulations.
(a) Compliance with the requirements of this subpart does not
affect the need for the owner or operator of a CCR landfill, CCR
surface impoundment, lateral expansion of a CCR unit, or CCR management
unit to comply with all other applicable federal, state, tribal, or
local laws or other requirements.
(b) Any CCR landfill, CCR surface impoundment, lateral expansion of
a CCR unit, or CCR management unit continues to be subject to the
requirements in Sec. Sec. 257.3-1, 257.3-2, and 257.3-3.
0
6. Amend Sec. 257.53 by:
0
a. Revising the definitions of ``Active life or in operation'',
``Active portion'', ``Closed'', and ``CCR landfill or landfill'';
0
b. Adding the definition of ``CCR management unit'' in alphabetical
order;
0
c. Revising the definitions of ``CCR unit'';
0
d. Adding the definition of ``Inactive CCR landfill'' in alphabetical
order;
0
e. Revising the definition of ``Inactive CCR surface impoundment'';
0
f. Adding the definitions of ``Inactive facility or inactive electric
utility or independent power producer'' and ``Legacy CCR surface
impoundment'' in alphabetical order; and
0
g. Revising the definitions of ``Operator'', ``Owner'', ``Qualified
person'', ``Qualified professional engineer'', ``State Director'',
``Technically feasible or feasible'', ``Technically infeasible or
infeasible'', and ``Waste boundary''.
The revisions and additions read as follows:
Sec. 257.53 Definitions.
* * * * *
Active life or in operation means the period of operation beginning
with the initial placement of CCR in the CCR unit or CCR management
unit and ending at completion of closure activities in accordance with
Sec. 257.102.
[[Page 32034]]
Active portion means that part of the CCR unit or CCR management
unit that has received or is receiving CCR or non-CCR waste and that
has not completed closure in accordance with Sec. 257.102.
* * * * *
Closed means placement of CCR in a CCR unit or CCR management unit
has ceased, and the owner or operator has completed closure of the CCR
unit or CCR management unit in accordance with Sec. 257.102 and has
initiated post-closure care in accordance with Sec. 257.104.
* * * * *
CCR landfill or landfill means an area of land or an excavation
that receives CCR and which is not a surface impoundment, a CCR
management unit, an underground injection well, a salt dome formation,
a salt bed formation, an underground or surface coal mine, or a cave.
For purposes of this subpart, a CCR landfill also includes sand and
gravel pits and quarries that receive CCR, CCR piles, and any practice
that does not meet the definition of a beneficial use of CCR.
CCR management unit means any area of land on which any non-
containerized accumulation of CCR is received, placed, or otherwise
managed at any time, that is not a CCR unit. This includes inactive CCR
landfills and CCR units that closed prior to October 17, 2015.
* * * * *
CCR unit means any CCR landfill, CCR surface impoundment, or
lateral expansion of a CCR unit, or a combination of more than one of
these units, based on the context of the paragraph(s) in which it is
used. This term includes both new and existing units, unless otherwise
specified. This term does not include CCR management units.
* * * * *
Inactive CCR landfill means an area of land or an excavation that
contains CCR but that no longer receives CCR on or after the effective
date of the final rule and that is not a surface impoundment, an
underground injection well, a salt dome formation, a salt bed
formation, an underground or surface coal mine, or a cave. For purposes
of this subpart, this term also includes sand and gravel pits that
received CCR, and abandoned CCR piles.
Inactive CCR surface impoundment means a CCR surface impoundment
located at an active facility that no longer receives CCR on or after
October 19, 2015, and still contains both CCR and liquids on or after
October 19, 2015.
Inactive facility or inactive electric utility or independent power
producer means any facility with a legacy CCR surface impoundment
subject to the requirements of this subpart that ceased operation prior
to October 19, 2015. An electric utility or independent power producer
is no longer in operation if it has ceased generating electricity
provided to electric power transmission systems or to electric power
distribution systems before October 19, 2015. An inactive facility does
not include an off-site disposal facility that ceased operation prior
to October 19, 2015.
* * * * *
Legacy CCR surface impoundment means a CCR surface impoundment that
no longer receives CCR but contained both CCR and liquids on or after
October 19, 2015, and that is located at an inactive electric utility.
* * * * *
Operator means the person(s) responsible for the overall operation
of a CCR unit or CCR management unit. This term includes those
person(s) or parties responsible for disposal or otherwise actively
engaged in the solid waste management of CCR. It also includes those
responsible for directing or overseeing groundwater monitoring, closure
or post-closure activities at a CCR unit or CCR management unit.
* * * * *
Owner means the person(s) who owns a CCR unit or CCR management
unit or part of a CCR unit or CCR management unit, or a facility,
whether in full or in part.
* * * * *
Qualified person means a person or persons trained to recognize
specific appearances of structural weakness and other conditions which
are disrupting or have the potential to disrupt the operation or safety
of the CCR unit or CCR management unit by visual observation and, if
applicable, to monitor instrumentation.
Qualified professional engineer means an individual who is licensed
by a state as a Professional Engineer to practice one or more
disciplines of engineering and who is qualified by education, technical
knowledge and experience to make the specific technical certifications
required under this subpart. Professional engineers making these
certifications must be currently licensed in the state where the CCR
unit(s) or CCR management unit is located.
* * * * *
State Director means the chief administrative officer of the lead
state agency responsible for implementing the state program regulating
disposal in CCR landfills, CCR surface impoundments, all lateral
expansions of a CCR unit, and CCR management units.
* * * * *
Technically feasible or feasible means possible to do in a way that
would likely be successful.
Technically infeasible or infeasible means not possible to do in a
way that would likely be successful.
* * * * *
Waste boundary means a vertical surface located at the
hydraulically downgradient limit of the CCR unit or CCR management
unit. The vertical surface extends down into the uppermost aquifer.
0
7. Amend Sec. 257.61 by revising the introductory text of paragraph
(a) to read as follows:
Sec. 257.61 Wetlands.
(a) New CCR landfills, existing and new CCR surface impoundments,
and all lateral expansions of CCR units must not be located in
wetlands, as defined in Sec. 230.41(a) of this chapter, unless the
owner or operator demonstrates by the dates specified in paragraph (c)
of this section that the CCR unit meets the requirements of paragraphs
(a)(1) through (5) of this section.
* * * * *
0
8. Add Sec. 257.75 to subpart D to read as follows:
Sec. 257.75 Requirements for identifying CCR management units.
(a) Applicability. The requirements of this section apply to owners
and operators of active or inactive facilities with one or more CCR
unit(s).
(b) Facility evaluation. Upon the effective date of the final rule,
the owner or operator of an active facility or inactive facility with
one or more CCR unit(s) must initiate a facility evaluation to identify
all CCR management units at the facility. At a minimum, the presence or
absence of CCR management units at the facility must be confirmed and
documented through a thorough evaluation of available records that
contain the information needed to prepare the Facility Evaluation
Report required by paragraph (c) of this section. The facility
evaluation must include a physical inspection of the facility. Where
necessary, the physical inspection must additionally include field
investigation activities to fill data gaps, such as conducting
exploratory soil borings, geophysical assessments, or any other similar
physical investigation activities to establish the location and
boundaries of identified CCR management units, and to affirmatively
rule out other areas of potential CCR placement at the facility that
were identified during the information
[[Page 32035]]
review. The facility evaluation must identify all CCR management units
at the facility regardless of when the CCR management unit came into
existence.
(c) Facility evaluation report. No later than 3 months after the
effective date of the final rule, the owner or operator of an active or
inactive facility that contains CCR units regulated under this subpart
must prepare a Facility Evaluation Report, which shall contain, to the
extent available, the information specified in paragraphs (c)(1)
through (13) of this section. The owner or operator has prepared the
Facility Evaluation Report when the report has been placed in the
facility's operating record as required by Sec. 257.105(f)(25).
(1) The name and address of the person(s) owning and operating the
facility; the unit name associated with any CCR unit and CCR management
unit at the facility; and the identification number of each CCR unit
and CCR management unit if any have been assigned by the state.
(2) The location of any CCR management unit identified on the most
recent U.S. Geological Survey (USGS) 7 1-2 minute or 15-minute
topographic quadrangle map, or a topographic map of equivalent scale if
a USGS map is not available. The location of each CCR unit at the
facility must also be identified.
(3) A statement of the purpose(s) for which each CCR management
unit at the facility is or was being used.
(4) A description of the physical and engineering properties of the
foundation and abutment materials on which each CCR management unit is
constructed.
(5) A discussion of any known spills or releases of CCR from each
CCR management unit and whether the spills or releases were reported to
state or federal agencies.
(6) Any record or knowledge of structural instability of each CCR
management unit.
(7) Any record or knowledge of groundwater contamination associated
with each CCR management unit.
(8) Size of each CCR management unit, including the general
dimensions and an estimate of the volume of waste contained within the
unit.
(9) Dates when each CCR management unit first received CCR and when
each CCR management unit ceased receiving CCR.
(10) Specification of all CCR wastes that have been managed in each
CCR management unit at the facility.
(11) A narrative description, including any applicable engineering
drawings or reports of any closure activities that have occurred.
(12) A narrative that documents the nature and extent of field
oversight activities and data reviewed as part of the facility
evaluation process, and that lists all data and information that was
reviewed indicating the absence of CCR management units at the
facility.
(13) Any supporting information used to identify and evaluate CCR
management units at the facility, including but not limited to any
construction diagrams, engineering drawings, permit documents,
wastestream flow diagrams, aerial photographs, satellite images,
historical facility maps, any field or analytical data, groundwater
monitoring data or reports, inspection reports, documentation of
interviews with current or former facility workers, and other documents
used to identify and assess CCR management units at the facility.
(d) The owner or operator of any facility regulated under this
subpart must obtain a certification from a qualified professional
engineer stating that the Facility Evaluation Report meets the
requirements of paragraph (c) of this section.
(e) The owner or operator of any facility regulated under this
subpart must certify the Facility Evaluation Report required by
paragraph (c) of this section with the following statement signed by
the owner or operator or an authorized representative:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this demonstration
and all attached documents, and that, based on my inquiry of those
individuals immediately responsible for obtaining the information, I
believe that the submitted information is true, accurate, and
complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and
imprisonment.
(f) The owner or operator of any facility regulated under this
subpart that does not contain any CCR management unit must submit a
Facility Evaluation Report documenting the steps taken during the
facility evaluation to determine the absence of any CCR management
unit. The Facility Evaluation Report must include the certifications
required under paragraphs (d) and (e) of this section.
(g) The owner or operator of the CCR management unit must comply
with the recordkeeping requirements specified in Sec. 257.105(f)(25),
the notification requirements specified in Sec. 257.106(f)(24), and
the internet requirements specified in Sec. 257.107(f)(24).
0
9. Amend Sec. 257.80 by revising paragraphs (a), (b) introductory
text, (b)(6), the first sentence of (c), and (d) to read as follows:
Sec. 257.80 Air criteria.
(a) The owner or operator of a CCR landfill, CCR surface
impoundment, any lateral expansion of a CCR unit, or CCR management
unit must adopt measures that will effectively minimize CCR from
becoming airborne at the facility, including CCR fugitive dust
originating from CCR units, roads, and other CCR management and
material handling activities.
(b) CCR fugitive dust control plan. The owner or operator of the
CCR unit or CCR management unit must prepare and operate in accordance
with a CCR fugitive dust control plan as specified in paragraphs (b)(1)
through (7) of this section. This requirement applies in addition to,
not in place of, any applicable standards under the Occupational Safety
and Health Act.
* * * * *
(6) Amendment of the plan. The owner or operator subject to the
requirements of this section may amend the written CCR fugitive dust
control plan at any time provided the revised plan is placed in the
facility's operating record as required by Sec. 257.105(g)(1). The
owner or operator must amend the written plan whenever there is a
change in conditions that would substantially affect the written plan
in effect, such as the construction and operation of a new CCR unit.
* * * * *
(c) Annual CCR fugitive dust control report. The owner or operator
of a CCR unit or a CCR management unit must prepare an annual CCR
fugitive dust control report that includes a description of the actions
taken by the owner or operator to control CCR fugitive dust, a record
of all citizen complaints, and a summary of any corrective measures
taken. * * *
(d) The owner or operator of the CCR unit or a CCR management unit
must comply with the recordkeeping requirements specified in Sec.
257.105(g), the notification requirements specified in Sec.
257.106(g), and the internet requirements specified in Sec.
257.107(g).
0
10. Amend Sec. 257.90 by:
0
a. Revising paragraph (a);
0
b. Adding paragraph (b)(3); and
0
c. Revising paragraphs (c), (d), (e) introductory text, (e)(1), (e)(6)
introductory text, (e)(6)(i), (ii), (e)(6)(iii)(B), (e)(6)(iv)(B), (C),
(D), and (f).
The revisions and addition read as follows:
[[Page 32036]]
Sec. 257.90 Applicability.
(a) Applicability. All CCR landfills, CCR surface impoundments,
lateral expansions of CCR units, and CCR management units are subject
to the groundwater monitoring and corrective action requirements under
Sec. Sec. 257.90 through 257.98, except as provided in paragraph (g)
of this section.
(b) * * *
(3) CCR management units. The owner or operator of the CCR
management unit must be in compliance with the following groundwater
monitoring requirements by the dates specified in paragraphs (b)(3)(i)
through (iv) of this section:
(i) Groundwater monitoring system installation. No later than 6
months after the effective date of the final rule, install the
groundwater monitoring system as required by Sec. 257.91.
(ii) Groundwater monitoring sampling and analysis program. No later
than 6 months after the effective date of the final rule, develop the
groundwater sampling and analysis program to include selection of the
statistical procedures to be used for evaluating groundwater monitoring
data as required by Sec. 257.93.
(iii) Initiation of detection monitoring and assessment monitoring.
No later than 24 months after the effective date of the final rule, be
in compliance with the following groundwater monitoring requirements:
(A) Initiate the detection monitoring program to include obtaining
a minimum of eight independent samples for each background and
downgradient well, as required by Sec. 257.94(b).
(B) Begin evaluating the groundwater monitoring data for
statistically significant increases over background levels for the
constituents listed in appendix III of this part, as required by Sec.
257.94.
(C) Begin evaluating the groundwater monitoring data for
statistically significant levels over groundwater protection standards
for the constituents listed in appendix IV of this part as required by
Sec. 257.95.
(c) Once a groundwater monitoring system and groundwater monitoring
program has been established at the CCR unit or a CCR management unit
as required by this subpart, the owner or operator must conduct
groundwater monitoring and, if necessary, corrective action throughout
the active life and post-closure care period of the CCR unit or a CCR
management unit.
(d) In the event of a release from a CCR unit or a CCR management
unit, the owner or operator must immediately take all necessary
measures to control the source(s) of releases so as to reduce or
eliminate, to the maximum extent feasible, further releases of
contaminants into the environment. The owner or operator of the CCR
unit or a CCR management unit must comply with all applicable
requirements in Sec. Sec. 257.96, 257.97, and 257.98.
(e) For existing CCR landfills and existing CCR surface
impoundments, no later than January 31, 2018, and annually thereafter,
the owner or operator must prepare an annual groundwater monitoring and
corrective action report. For new CCR landfills, new CCR surface
impoundments, and all lateral expansions of CCR units, the owner or
operator must prepare the initial annual groundwater monitoring and
corrective action report no later than January 31 of the year following
the calendar year a groundwater monitoring system has been established
for such CCR unit as required by this subpart, and annually thereafter.
For CCR management units, the owner or operator must prepare the
initial annual groundwater monitoring and corrective action report no
later than January 31 of the year following the calendar year a
groundwater monitoring system has been established for such CCR
management unit as required by this subpart, and annually thereafter.
For the preceding calendar year, the annual report must document the
status of the groundwater monitoring and corrective action program for
the CCR unit or the CCR management unit, summarize key actions
completed, describe any problems encountered, discuss actions to
resolve the problems, and project key activities for the upcoming year.
For the purposes of this section, the owner or operator has prepared
the annual report when the report is placed in the facility's operating
record as required by Sec. 257.105(h)(1). At a minimum, the annual
groundwater monitoring and corrective action report must contain the
following information, to the extent available:
(1) A map, aerial image, or diagram showing the CCR unit or the CCR
management unit and all background (or upgradient) and downgradient
monitoring wells, to include the well identification numbers, that are
part of the groundwater monitoring program for the CCR unit or the CCR
management unit;
* * * * *
(6) A section at the beginning of the annual report that provides
an overview of the current status of groundwater monitoring and
corrective action programs for the CCR unit or the CCR management unit.
At a minimum, the summary must specify all of the following:
(i) At the start of the current annual reporting period, whether
the CCR unit or the CCR management unit was operating under the
detection monitoring program in Sec. 257.94 or the assessment
monitoring program in Sec. 257.95;
(ii) At the end of the current annual reporting period, whether the
CCR unit or the CCR management unit was operating under the detection
monitoring program in Sec. 257.94 or the assessment monitoring program
in Sec. 257.95;
(iii) * * *
(B) Provide the date when the assessment monitoring program was
initiated for the CCR unit or the CCR management unit.
(iv) * * *
(B) Provide the date when the assessment monitoring program was
initiated for the CCR unit or the CCR management unit.
(C) Provide the date when the public meeting was held for the
assessment of corrective measures for the CCR unit or the CCR
management unit; and
(D) Provide the date when the assessment of corrective measures was
completed for the CCR unit or the CCR management unit.
* * * * *
(f) The owner or operator of the CCR unit or the CCR management
unit must comply with the recordkeeping requirements specified in Sec.
257.105(h), the notification requirements specified in Sec.
257.106(h), and the internet requirements specified in Sec.
257.107(h).
* * * * *
0
11. Amend Sec. 257.91 by revising paragraphs (a) introductory text,
(a)(1) introductory text, (a)(1)(i), (a)(2), (c)(2), (d), (e)(1), and
(g) to read as follows:
Sec. 257.91 Groundwater monitoring systems.
(a) Performance standard. The owner or operator of a CCR unit or a
CCR management unit must install a groundwater monitoring system that
consists of a sufficient number of wells, installed at appropriate
locations and depths, to yield groundwater samples from the uppermost
aquifer that:
(1) Accurately represent the quality of background groundwater that
has not been affected by leakage from a CCR unit or a CCR management
unit. A determination of background quality may include sampling of
wells that are not hydraulically upgradient of the CCR management area
where:
(i) Hydrogeologic conditions do not allow the owner or operator of
the CCR unit or the CCR management unit to
[[Page 32037]]
determine what wells are hydraulically upgradient; or
* * * * *
(2) Accurately represent the quality of groundwater passing the
waste boundary of the CCR unit or the CCR management unit. The
downgradient monitoring system must be installed at the waste boundary
that ensures detection of groundwater contamination in the uppermost
aquifer. All potential contaminant pathways must be monitored.
* * * * *
(c) * * *
(2) Additional monitoring wells as necessary to accurately
represent the quality of background groundwater that has not been
affected by leakage from the CCR unit or the CCR management unit and
the quality of groundwater passing the waste boundary of the CCR unit
or the CCR management unit.
(d) The owner or operator of multiple CCR units or CCR management
units may install a multiunit groundwater monitoring system instead of
separate groundwater monitoring systems for each CCR unit or CCR
management unit.
(1) The multiunit groundwater monitoring system must be equally as
capable of detecting monitored constituents at the waste boundary of
the CCR unit or CCR management unit as the individual groundwater
monitoring system specified in paragraphs (a) through (c) of this
section for each CCR unit or CCR management unit based on the following
factors:
(i) Number, spacing, and orientation of each CCR unit or CCR
management unit;
(ii) Hydrogeologic setting;
(iii) Site history; and
(iv) Engineering design of the CCR unit or CCR management unit.
(2) [Reserved]
(e) * * *
(1) The owner or operator of the CCR unit or the CCR management
unit must document and include in the operating record the design,
installation, development, and decommissioning of any monitoring wells,
piezometers and other measurement, sampling, and analytical devices.
The qualified professional engineer must be given access to this
documentation when completing the groundwater monitoring system
certification required under paragraph (f) of this section.
* * * * *
(g) The owner or operator of the CCR unit or the CCR management
unit must comply with the recordkeeping requirements specified in Sec.
257.105(h), the notification requirements specified in Sec.
257.106(h), and the internet requirements specified in Sec.
257.107(h).
0
12. Amend Sec. 257.93 by revising paragraphs (a) introductory text,
(c), (d), (f) introductory text, (f)(6), (g)(1), (h), and (j) to read
as follows:
Sec. 257.93 Groundwater sampling and analysis requirements.
(a) The groundwater monitoring program must include consistent
sampling and analysis procedures that are designed to ensure monitoring
results that provide an accurate representation of groundwater quality
at the background and downgradient wells required by Sec. 257.91. The
owner or operator of the CCR unit or the CCR management unit must
develop a sampling and analysis program that includes procedures and
techniques for:
* * * * *
(c) Groundwater elevations must be measured in each well
immediately prior to purging, each time groundwater is sampled. The
owner or operator of the CCR unit or the CCR management unit must
determine the rate and direction of groundwater flow each time
groundwater is sampled. Groundwater elevations in wells which monitor
the same CCR management area must be measured within a period of time
short enough to avoid temporal variations in groundwater flow which
could preclude accurate determination of groundwater flow rate and
direction.
(d) The owner or operator of the CCR unit or the CCR management
unit must establish background groundwater quality in a hydraulically
upgradient or background well(s) for each of the constituents required
in the particular groundwater monitoring program that applies to the
CCR unit as determined under Sec. 257.94(a) or Sec. 257.95(a).
Background groundwater quality may be established at wells that are not
located hydraulically upgradient from the CCR unit or the CCR
management unit if it meets the requirements of Sec. 257.91(a)(1).
* * * * *
(f) The owner or operator of the CCR unit or the CCR management
unit must select one of the statistical methods specified in paragraphs
(f)(1) through (5) of this section to be used in evaluating groundwater
monitoring data for each specified constituent. The statistical test
chosen shall be conducted separately for each constituent in each
monitoring well.
* * * * *
(6) The owner or operator of the CCR unit or the CCR management
unit must obtain a certification from a qualified professional engineer
or approval from the Participating State Director or approval from EPA
where EPA is the permitting authority stating that the selected
statistical method is appropriate for evaluating the groundwater
monitoring data for the CCR management area. The certification must
include a narrative description of the statistical method selected to
evaluate the groundwater monitoring data.
(g) * * *
(1) The statistical method used to evaluate groundwater monitoring
data shall be appropriate for the distribution of constituents. Normal
distributions of data values shall use parametric methods. Non-normal
distributions shall use non-parametric methods. If the distribution of
the constituents is shown by the owner or operator of the CCR unit or
the CCR management unit to be inappropriate for a normal theory test,
then the data must be transformed or a distribution-free (non-
parametric) theory test must be used. If the distributions for the
constituents differ, more than one statistical method may be needed.
* * * * *
(h) The owner or operator of the CCR unit or the CCR management
unit must determine whether or not there is a statistically significant
increase over background values for each constituent required in the
particular groundwater monitoring program that applies to the CCR unit
or the CCR management unit, as determined under Sec. 257.94(a) or
Sec. 257.95(a).
* * * * *
(j) The owner or operator of the CCR unit or the CCR management
unit must comply with the recordkeeping requirements specified in Sec.
257.105(h), the notification requirements specified in Sec.
257.106(h), and the internet requirements specified in Sec.
257.107(h).
0
13. Amend Sec. 257.94 by revising paragraphs (a), (b) and (f) to read
as follows:
Sec. 257.94 Detection monitoring program.
(a) The owner or operator of a CCR unit or a CCR management unit
must conduct detection monitoring at all groundwater monitoring wells
consistent with this section. At a minimum, a detection monitoring
program must include groundwater monitoring for all constituents listed
in appendix III to this part.
(b) Except as provided in paragraph (d) of this section, the
monitoring frequency for the constituents listed in appendix III to
this part shall be at least semiannual during the active life of the
CCR unit or the CCR management unit and the post-closure period. For
existing CCR landfills and existing CCR surface impoundments, a minimum
of eight
[[Page 32038]]
independent samples from each background and downgradient well must be
collected and analyzed for the constituents listed in appendix III and
IV to this part no later than October 17, 2017. For new CCR landfills,
new CCR surface impoundments, and all lateral expansions of CCR units,
a minimum of eight independent samples for each background well must be
collected and analyzed for the constituents listed in appendices III
and IV to this part during the first six months of sampling. For CCR
management units, a minimum of eight independent samples from each
background and downgradient well must be collected and analyzed for the
constituents listed in appendix III and IV to this part no later than
24 months after effective date of the final rule.
* * * * *
(f) The owner or operator of the CCR unit or the CCR management
unit must comply with the recordkeeping requirements specified in Sec.
257.105(h), the notification requirements specified in Sec.
257.106(h), and the internet requirements specified in Sec.
257.107(h).
0
14. Amend Sec. 257.95 by revising paragraphs (b), (e), (g)
introductory text, (g)(1) introductory text, the first sentence of
(g)(3)(ii), paragraphs (g)(4), (h) introductory text, and (i) to read
as follows:
Sec. 257.95 Assessment monitoring program.
* * * * *
(b)(1) Within 90 days of triggering an assessment monitoring
program, and annually thereafter:
(i) The owner or operator of the CCR unit must sample and analyze
the groundwater for all constituents listed in appendix IV to this
part.
(ii) The owner or operator of a CCR management unit must sample and
analyze the groundwater for all constituents listed in appendix IV to
this part no later than 24 months after effective date of the final
rule.
(2) The number of samples collected and analyzed for each well
during each sampling event must be consistent with Sec. 257.93(e) and
must account for any unique characteristics of the site, but must be at
least one sample from each well.
* * * * *
(e) If the concentrations of all constituents listed in appendices
III and IV to this part are shown to be at or below background values,
using the statistical procedures in Sec. 257.93(g), for two
consecutive sampling events, the owner or operator may return to
detection monitoring of the CCR unit or the CCR management unit. The
owner or operator must prepare a notification stating that detection
monitoring is resuming for the CCR unit or the CCR management unit. The
owner or operator has completed the notification when the notification
is placed in the facility's operating record as required by Sec.
257.105(h)(7).
* * * * *
(g) If one or more constituents in appendix IV to this part are
detected at statistically significant levels above the groundwater
protection standard established under paragraph (h) of this section in
any sampling event, the owner or operator must prepare a notification
identifying the constituents in appendix IV to this part that have
exceeded the groundwater protection standard. The owner or operator has
completed the notification when the notification is placed in the
facility's operating record as required by Sec. 257.105(h)(8). The
owner or operator of the CCR unit or the CCR management unit also must:
(1) Characterize the nature and extent of the release and any
relevant site conditions that may affect the remedy ultimately
selected. The characterization must be sufficient to support a complete
and accurate assessment of the corrective measures necessary to
effectively clean up all releases from the CCR unit or the CCR
management unit pursuant to Sec. 257.96. Characterization of the
release includes the following minimum measures:
* * * * *
(3) * * *
(ii) Demonstrate that a source other than the CCR unit or the CCR
management unit caused the contamination, or that the statistically
significant increase resulted from error in sampling, analysis,
statistical evaluation, or natural variation in groundwater quality. *
* *
(4) If a successful demonstration has not been made at the end of
the 90 day period provided by paragraph (g)(3)(ii) of this section, the
owner or operator of the CCR unit or the CCR management unit must
initiate the assessment of corrective measures requirements under Sec.
257.96.
* * * * *
(h) The owner or operator of the CCR unit or the CCR management
unit must establish a groundwater protection standard for each
constituent in appendix IV to this part detected in the groundwater.
The groundwater protection standard shall be:
* * * * *
(i) The owner or operator of the CCR unit or the CCR management
unit must comply with the recordkeeping requirements specified in Sec.
257.105(h), the notification requirements specified in Sec.
257.106(h), and the internet requirements specified in Sec.
257.107(h).
0
15. Amend Sec. 257.96 by revising paragraphs (a), (b), and (f) to read
as follows:
Sec. 257.96 Assessment of corrective measures.
(a) Within 90 days of finding that any constituent listed in
Appendix IV to this part has been detected at a statistically
significant level exceeding the groundwater protection standard defined
under Sec. 257.95(h), or immediately upon detection of a release from
a CCR unit or a CCR management unit, the owner or operator must
initiate an assessment of corrective measures to prevent further
releases, to remediate any releases and to restore affected area to
original conditions.
(b) The owner or operator of the CCR unit or the CCR management
unit must continue to monitor groundwater in accordance with the
assessment monitoring program as specified in Sec. 257.95.
* * * * *
(f) The owner or operator of the CCR unit or the CCR management
unit must comply with the recordkeeping requirements specified in Sec.
257.105(h), the notification requirements specified in Sec.
257.106(h), and the internet requirements specified in Sec.
257.107(h).
0
16. Amend Sec. 257.97 by revising paragraphs (c) introductory text,
(d) introductory text, and (e) to read as follows:
Sec. 257.97 Selection of remedy.
* * * * *
(c) In selecting a remedy that meets the standards of paragraph (b)
of this section, the owner or operator of the CCR unit or the CCR
management unit shall consider the following evaluation factors:
* * * * *
(d) The owner or operator must specify as part of the selected
remedy a schedule(s) for implementing and completing remedial
activities. Such a schedule must require the completion of remedial
activities within a reasonable period of time taking into consideration
the factors set forth in paragraphs (d)(1) through (6) of this section.
The owner or operator of the CCR unit or the CCR management unit must
consider the following factors in determining the schedule of remedial
activities:
* * * * *
(e) The owner or operator of the CCR unit or the CCR management
unit must comply with the recordkeeping requirements specified in Sec.
257.105(h), the notification requirements specified
[[Page 32039]]
in Sec. 257.106(h), and the internet requirements specified in Sec.
257.107(h).
0
17. Amend Sec. 257.98 by revising paragraphs (a)(3) introductory text,
(b), (c)(1), and (f) to read as follows:
Sec. 257.98 Implementation of the corrective action program.
(a) * * *
(3) Take any interim measures necessary to reduce the contaminants
leaching from the CCR unit or the CCR management unit, and/or potential
exposures to human or ecological receptors. Interim measures must, to
the greatest extent feasible, be consistent with the objectives of and
contribute to the performance of any remedy that may be required
pursuant to Sec. 257.97. The following factors must be considered by
an owner or operator in determining whether interim measures are
necessary:
* * * * *
(b) If an owner or operator of the CCR unit or the CCR management
unit, determines, at any time, that compliance with the requirements of
Sec. 257.97(b) is not being achieved through the remedy selected, the
owner or operator must implement other methods or techniques that could
feasibly achieve compliance with the requirements.
(c) * * *
(1) The owner or operator of the CCR unit or the CCR management
unit demonstrates compliance with the groundwater protection standards
established under Sec. 257.95(h) has been achieved at all points
within the plume of contamination that lie beyond the groundwater
monitoring well system established under Sec. 257.91.
* * * * *
(f) The owner or operator of the CCR unit or the CCR management
unit must comply with the recordkeeping requirements specified in Sec.
257.105(h), the notification requirements specified in Sec.
257.106(h), and the internet requirements specified in Sec.
257.107(h).
0
18. Amend Sec. 257.100 by revising the section heading and paragraph
(a), and adding paragraph (f) to read as follows:
Sec. 257.100 Inactive CCR surface impoundments and Legacy CCR surface
impoundments.
(a) Inactive CCR surface impoundments and legacy CCR surface
impoundments are subject to all of the requirements of this subpart
applicable to existing CCR surface impoundments.
* * * * *
(f) Timeframes for legacy CCR surface impoundments--(1) Legacy CCR
surface impoundment applicability documentation. (i) Excepted as
provided in paragraph (f)(1)(ii) of this section, owners and operators
of legacy CCR surface impoundments must prepare documentation for each
legacy CCR surface impoundment subject to the requirements of this
subpart no later than the date the final rule is effective. At a
minimum, the documentation for each legacy CCR surface impoundment must
contain:
(A) Information to identify the legacy CCR surface impoundment and
delineate the unit boundaries, including a figure of the facility and
where the unit is located at the facility.
(B) The name associated with the legacy CCR surface impoundment.
(C) The identification number of the legacy CCR surface impoundment
if one has been assigned by the state.
(D) Size of the legacy CCR surface impoundment (in acres).
(E) A description of the current site conditions, including the
current use of the inactive facility.
(F) The proximity (in feet, or miles, if appropriate) of the legacy
CCR surface impoundment to the closest surface water body.
(G) The name and address of the person(s) owning and operating the
legacy CCR surface impoundment with their phone number and email
address.
(H) The owner or operator of the legacy CCR surface impoundment
must notify the Agency of the establishment of the facility's CCR
website and the applicability of the rule, using the procedures in
Sec. 257.107(a) via the ``contact us'' form on EPA's CCR website.
(ii) For owners and operators of legacy CCR surface impoundments
that completed closure of the CCR unit by removal of waste prior to the
effective date of the final rule, no later than the effective date of
the final rule, complete a closure certification documenting that all
closure requirements in Sec. 257.102(c) have been met.
(2) Design criteria. The owner or operator of a legacy CCR surface
impoundment must:
(i) Except for legacy CCR surface impoundments that are incised, no
later than the date the final rule is effective, place on or
immediately adjacent to the CCR unit the permanent identification
marker as set forth by Sec. 257.73(a)(1).
(ii) Except for legacy CCR surface impoundments that do not exceed
the height and/or storage volume thresholds under Sec. 257.73(b), no
later than three months after the date the final rule is effective,
compile a history of construction as set forth by Sec. 257.73(c).
(iii) Except for legacy CCR surface impoundments that are incised,
no later than three months after the date the final rule is effective,
complete the initial hazard potential classification assessment as set
forth by Sec. 257.73(a)(2) and (f).
(iv) Except for legacy CCR surface impoundments that do not exceed
the height and/or storage volume thresholds under Sec. 257.73(b), no
later than three months after the date the final rule is effective,
complete the structural stability and safety factor assessments as set
forth by Sec. 257.73(d), (e), and (f).
(v) Except for legacy CCR surface impoundments that are incised, no
later than nine months after the date the final rule is effective,
prepare and maintain an Emergency Action Plan as set forth by Sec.
257.73(a)(3).
(3) Operating criteria. The owner or operator of the legacy CCR
surface impoundment must:
(i) No later than the date the final rule is effective, prepare the
initial CCR fugitive dust control plan as set forth in Sec. 257.80(b).
(ii) No later than the date the final rule is effective, initiate
the inspections by a qualified person as set forth by Sec. 257.83(a).
(iii) No later than the date the final rule is effective, prevent
the unknowing entry, and minimize the possibility for the unauthorized
entry, of persons or livestock onto the legacy CCR surface impoundment.
(iv) No later than three months after the date the final rule is
effective, complete the initial annual inspection by a qualified
professional engineer as set forth by Sec. 257.83(b).
(v) No later than nine months after the date the final rule is
effective, prepare the initial inflow design flood control system plan
as set forth in Sec. 257.82(c).
(vi) No later than 12 months after the date the final rule is
effective, prepare the initial annual fugitive dust control report as
set forth in Sec. 257.80(c).
(4) Groundwater monitoring and corrective action. The owner or
operator of the legacy CCR surface impoundment must:
(i) No later than six months after the date the final rule is
effective, install the groundwater monitoring system as required by
Sec. 257.91.
(ii) No later than six months after the date the final rule is
effective, develop the groundwater sampling and analysis program,
including the selection of the statistical procedures, that will be
used for evaluating groundwater monitoring data as required by Sec.
257.93.
(iii) No later than 24 months after the date the final rule is
effective, be in compliance with the following groundwater monitoring
requirements:
(A) Initiate the detection monitoring program to include obtaining
a minimum of eight independent samples
[[Page 32040]]
for each background and downgradient well, as required by Sec.
257.94(b).
(B) Begin evaluating the groundwater monitoring data for
statistically significant increases over background levels for the
constituents listed in appendix III of this part, as required by Sec.
257.94.
(C) Begin evaluating the groundwater monitoring data for
statistically significant levels over groundwater protection standards
for the constituents listed in appendix IV of this part as required by
Sec. 257.95.
(iv) No later than January 31 of the year after the groundwater
monitoring system is established, prepare the initial groundwater
monitoring and corrective action report as set forth in Sec.
257.90(e).
(5) Closure and post-closure care. The owner or operator of the
legacy CCR surface impoundment must:
(i) No later than 12 months after the date the final rule is
effective, prepare an initial written closure plan as set forth in
Sec. 257.102(b); and
(ii) No later than 12 months after the date the final rule is
effective, prepare an initial written post-closure care plan as set
forth in Sec. 257.104(d).
0
19. Amend Sec. 257.101 by adding paragraphs (e) and (f) to read as
follows:
Sec. 257.101 Closure or retrofit of CCR units and CCR management
units.
* * * * *
(e) The owner or operator of a legacy CCR surface impoundment is
subject to the requirements of paragraphs (e)(1) and (2) of this
section.
(1) No later than 12 months after the date the final rule is
effective, an owner or operator of a legacy CCR surface impoundment
must initiate the closure of the legacy CCR surface impoundment in
accordance with the requirements of Sec. 257.102.
(2) An owner or operator of a legacy CCR surface impoundment that
closes in accordance with paragraph (e)(1) of this section must include
a statement in the notification required under Sec. 257.102(g) that
the legacy CCR surface impoundment is closing under the requirement of
paragraph (e)(1) of this section.
(f) The owner or operator of a CCR management unit is subject to
the requirements of paragraphs (f)(1) and (2) of this section.
(1) No later than 12 months after the date the final rule is
effective, an owner or operator of a CCR management unit must initiate
the closure of the CCR management unit in accordance with the
requirements of Sec. 257.102.
(2) An owner or operator of a CCR management unit that closes in
accordance with paragraph (f)(1) of this section must include a
statement in the notification required under Sec. 257.102(g) that the
CCR management unit is closing under the requirements of paragraph
(f)(1) of this section.
0
20. Amend Sec. 257.102 by:
0
a. Revising paragraphs (a), (b)(1), and (b)(2)(iii);
0
b. Adding paragraph (b)(2)(iv);
0
c. Revising paragraphs (b)(3)(ii)(A), (b)(3)(iii), (b)(4), (c), (d)(1)
introductory text, (d)(1)(iv), (d)(2) introductory text, (d)(3)
introductory text, (d)(3)(i)(B), (d)(3)(iii), (e) introductory text,
and (f)(1) introductory text;
0
d. Adding paragraph (f)(1)(iii); and
0
e. Revising paragraphs (f)(2)(i) introductory text, (f)(2)(i)(B), and
(C);
0
f. Adding paragraphs (f)(2)(ii)(D) and (E); and
0
g. Revising paragraphs (f)(2)(iii), (f)(3), (g), (h), (i)(1),
(i)(2)(i), (i)(4), and (j).
The revisions and additions read as follows:
Sec. 257.102 Criteria for conducting the closure or retrofit of CCR
units and closure of CCR management units.
(a) Closure of a CCR landfill, CCR surface impoundment, any lateral
expansion of a CCR unit, or a CCR management unit must be completed
either by leaving the CCR in place and installing a final cover system
or through removal of the CCR and decontamination of the CCR unit or
CCR management unit, as described in paragraphs (b) through (j) of this
section. Retrofit of a CCR surface impoundment must be completed in
accordance with the requirements in paragraph (k) of this section.
(b) * * *
(1) Content of the plan. The owner or operator of a CCR unit or a
CCR management unit must prepare a written closure plan that describes
the steps necessary to close the CCR unit or the CCR management unit at
any point during the active life of the CCR unit or CCR management unit
consistent with recognized and generally accepted good engineering
practices. The written closure plan must include, at a minimum, the
information specified in paragraphs (b)(1)(i) through (vi) of this
section.
(i) A narrative description of how the CCR unit or CCR management
unit will be closed in accordance with this section.
(ii) If closure of the CCR unit or CCR management unit will be
accomplished through removal of CCR from the CCR unit or CCR management
unit, a description of the procedures to remove the CCR and
decontaminate the CCR unit or CCR management unit in accordance with
paragraph (c) of this section.
(iii) If closure of the CCR unit or CCR management unit will be
accomplished by leaving CCR in place, a description of the final cover
system, designed in accordance with paragraph (d) of this section, and
the methods and procedures to be used to install the final cover. The
closure plan must also discuss how the final cover system will achieve
the performance standards specified in paragraph (d) of this section.
(iv) An estimate of the maximum inventory of CCR ever on-site over
the active life of the CCR unit or CCR management unit.
(v) An estimate of the largest area of the CCR unit or CCR
management unit ever requiring a final cover as required by paragraph
(d) of this section at any time during the CCR unit's active life.
(vi) A schedule for completing all activities necessary to satisfy
the closure criteria in this section, including an estimate of the year
in which all closure activities for the CCR unit or CCR management unit
will be completed. The schedule should provide sufficient information
to describe the sequential steps that will be taken to close the CCR
unit or CCR management unit, including identification of major
milestones such as coordinating with and obtaining necessary approvals
and permits from other agencies, the dewatering and stabilization
phases of CCR surface impoundment or CCR management unit closure, or
installation of the final cover system, and the estimated timeframes to
complete each step or phase of CCR unit or CCR management unit closure.
When preparing the written closure plan, if the owner or operator of a
CCR unit or CCR management unit estimates that the time required to
complete closure will exceed the timeframes specified in paragraph
(f)(1) of this section, the written closure plan must include the site-
specific information, factors and considerations that would support any
time extension sought under paragraph (f)(2) of this section.
(2) * * *
(iii) CCR management units. No later than 12 months after effective
date of the final rule, the owner or operator of the CCR management
unit must prepare an initial written closure plan consistent with the
requirements specified in paragraph (b)(1) of this section.
(iv) The owner or operator has completed the written closure plan
when the plan, including the certification required by paragraph (b)(4)
of this section, has been placed in the facility's operating record as
required by Sec. 257.105(i)(4).
(3) * * *
(ii) * * *
[[Page 32041]]
(A) There is a change in the operation of the CCR unit or CCR
management unit that would substantially affect the written closure
plan in effect; or
* * * * *
(iii) The owner or operator must amend the closure plan at least 60
days prior to a planned change in the operation of the facility, CCR
unit, or CCR management unit or no later than 60 days after an
unanticipated event requires the need to revise an existing written
closure plan. If a written closure plan is revised after closure
activities have commenced for a CCR unit or a CCR management unit, the
owner or operator must amend the current closure plan no later than 30
days following the triggering event.
(4) The owner or operator of the CCR unit or the CCR management
unit must obtain a written certification from a qualified professional
engineer or approval from the Participating State Director or approval
from EPA where EPA is the permitting authority that the initial and any
amendment of the written closure plan meets the requirements of this
section.
(c) Closure by removal of CCR. An owner or operator may elect to
close a CCR unit or a CCR management unit by removing and
decontaminating all areas affected by releases from the CCR unit or the
CCR management unit. CCR removal and decontamination of the CCR unit or
CCR management unit are complete when constituent concentrations
throughout the CCR unit or the CCR management unit and any areas
affected by releases from the CCR unit or CCR management unit have been
removed and groundwater monitoring concentrations do not exceed the
groundwater protection standard established pursuant to Sec. 257.95(h)
for constituents listed in appendix IV to this part.
(d) * * *
(1) General performance standard. The owner or operator of a CCR
unit or CCR management unit must ensure that, at a minimum, the CCR
unit or CCR management unit is closed in a manner that will:
* * * * *
(iv) Minimize the need for further maintenance of the CCR unit or
the CCR management unit; and
* * * * *
(2) Drainage and stabilization of CCR units and CCR management
units. The owner or operator of any CCR unit or CCR management unit
must meet the requirements of paragraphs (d)(2)(i) and (ii) of this
section prior to installing the final cover system required under
paragraph (d)(3) of this section.
* * * * *
(3) Final cover system. If a CCR unit or CCR management unit is
closed by leaving CCR in place, the owner or operator must install a
final cover system that is designed to minimize infiltration and
erosion, and at a minimum, meets the requirements of paragraph
(d)(3)(i) of this section, or the requirements of the alternative final
cover system specified in paragraph (d)(3)(ii) of this section.
(i) * * *
(B) The infiltration of liquids through the closed CCR unit or CCR
management unit must be minimized by the use of an infiltration layer
that contains a minimum of 18 inches of earthen material.
* * * * *
(iii) The owner or operator of the CCR unit or the CCR management
unit must obtain a written certification from a qualified professional
engineer or approval from the Participating State Director or approval
from EPA where EPA is the permitting authority that the design of the
final cover system meets the requirements of this section.
(e) Initiation of closure activities. Except as provided for in
paragraph (e)(4) of this section and Sec. 257.103, the owner or
operator of a CCR unit must commence closure of the CCR unit no later
than the applicable timeframes specified in either paragraph (e)(1) or
(2) of this section. CCR management units are subject to the
requirements of paragraph (e)(3) of this section.
* * * * *
(f) * * *
(1) Except as provided for in paragraph (f)(2) of this section, the
owner or operator must complete closure of the CCR unit or the CCR
management unit:
* * * * *
(iii) For CCR management units, within five years of commencing
closure activities.
(2) * * *
(i) Extensions of closure timeframes. The timeframes for completing
closure of a CCR unit or a CCR management unit specified under
paragraphs (f)(1) of this section may be extended if the owner or
operator can demonstrate that it was not feasible to complete closure
of the CCR unit or the CCR management unit within the required
timeframes due to factors beyond the facility's control. If the owner
or operator is seeking a time extension beyond the time specified in
the written closure plan as required by paragraph (b)(1) of this
section, the demonstration must include a narrative discussion
providing the basis for additional time beyond that specified in the
closure plan. The owner or operator must place each completed
demonstration, if more than one time extension is sought, in the
facility's operating record as required by Sec. 257.105(i)(6) prior to
the end of any two-year period. Factors that may support such a
demonstration include:
* * * * *
(B) Time required to dewater a surface impoundment or a CCR
management unit due to the volume of CCR contained in the CCR unit or
the characteristics of the CCR in the unit;
(C) The geology and terrain surrounding the CCR unit or the CCR
management unit will affect the amount of material needed to close the
CCR unit or the CCR management unit; or
* * * * *
(ii) * * *
(D) CCR management units of 40 acres or smaller may extend the time
to complete closure by no longer than two years.
(E) CCR management units larger than 40 acres may extend the
timeframe to complete closure of the CCR management unit multiple
times, in two-year increments. For each two-year extension sought, the
owner or operator must substantiate the factual circumstances
demonstrating the need for the extension. No more than a total of five
two-year extensions may be obtained for any CCR management unit.
(iii) In order to obtain additional time extension(s) to complete
closure of a CCR unit or a CCR management unit beyond the times
provided by paragraph (f)(1) of this section, the owner or operator of
the CCR unit or the CCR management unit must include with the
demonstration required by paragraph (f)(2)(i) of this section the
following statement signed by the owner or operator or an authorized
representative:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this demonstration
and all attached documents, and that, based on my inquiry of those
individuals immediately responsible for obtaining the information, I
believe that the submitted information is true, accurate, and
complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and
imprisonment.
(3) Upon completion, the owner or operator of the CCR unit or the
CCR management unit must obtain a certification from a qualified
professional engineer or approval from the Participating State Director
or approval from EPA where EPA is the
[[Page 32042]]
permitting authority verifying that closure has been completed in
accordance with the closure plan specified in paragraph (b) of this
section and the requirements of this section.
(g) No later than the date the owner or operator initiates closure
of a CCR unit or CCR management unit, the owner or operator must
prepare a notification of intent to close a CCR unit or CCR management
unit. The notification must include the certification by a qualified
professional engineer or the approval from the Participating State
Director or the approval from EPA where EPA is the permitting authority
for the design of the final cover system as required by Sec.
257.102(d)(3)(iii), if applicable. The owner or operator has completed
the notification when it has been placed in the facility's operating
record as required by Sec. 257.105(i)(7).
(h) Within 30 days of completion of closure of the CCR unit or CCR
management unit, the owner or operator must prepare a notification of
closure of a CCR unit or CCR management unit. The notification must
include the certification by a qualified professional engineer or the
approval from the Participating State Director or the approval from EPA
where EPA is the permitting authority as required by Sec.
257.102(f)(3). The owner or operator has completed the notification
when it has been placed in the facility's operating record as required
by Sec. 257.105(i)(8).
(i) * * *
(1) Except as provided by paragraph (i)(4) of this section,
following closure of a CCR unit or CCR management unit, the owner or
operator must record a notation on the deed to the property, or some
other instrument that is normally examined during title search.
(2) * * *
(i) The land has been used as a CCR unit or CCR management unit;
and
* * * * *
(4) An owner or operator that closes a CCR unit or CCR management
unit in accordance with paragraph (c) of this section is not subject to
the requirements of paragraphs (i)(1) through (3) of this section.
(j) The owner or operator of the CCR unit or CCR management unit
must comply with the closure recordkeeping requirements specified in
Sec. 257.105(i), the closure notification requirements specified in
Sec. 257.106(i), and the closure internet requirements specified in
Sec. 257.107(i).
* * * * *
0
21. Amend Sec. 257.104 by revising paragraphs (a), (b) introductory
text, (b)(2), (c), (d)(1), (2), (d)(3)(ii)(A), (d)(3)(iii), (d)(4),
(e), and (f) to read as follows:
Sec. 257.104 Post-closure care requirements.
(a) Applicability. (1) Except as provided by paragraph (a)(2) of
this section, Sec. 257.104 applies to the owners or operators of CCR
landfills, CCR surface impoundments, all lateral expansions of CCR
units, and CCR management units that are subject to the closure
criteria under Sec. 257.102.
(2) An owner or operator of a CCR unit or a CCR management unit
that elects to close a CCR unit or a CCR management unit by removing
CCR as provided by Sec. 257.102(c) is not subject to the post-closure
care criteria under this section.
(b) Post-closure care maintenance requirements. Following closure
of the CCR unit or the CCR management unit, the owner or operator must
conduct post-closure care for the CCR unit or the CCR management unit,
which must consist of at least the following:
* * * * *
(2) If the CCR unit or the CCR management unit is subject to the
design criteria under Sec. 257.70, maintaining the integrity and
effectiveness of the leachate collection and removal system and
operating the leachate collection and removal system in accordance with
the requirements of Sec. 257.70; and
* * * * *
(c) Post-closure care period. (1) Except as provided by paragraph
(c)(2) of this section, the owner or operator of the CCR unit or the
CCR management unit must conduct post-closure care for 30 years.
(2) If at the end of the post-closure care period the owner or
operator of the CCR unit or the CCR management unit is operating under
assessment monitoring in accordance with Sec. 257.95, the owner or
operator must continue to conduct post-closure care until the owner or
operator returns to detection monitoring in accordance with Sec.
257.95.
(d) * * *
(1) Content of the plan. The owner or operator of a CCR unit or a
CCR management unit must prepare a written post-closure plan that
includes, at a minimum, the information specified in paragraphs
(d)(1)(i) through (iii) of this section.
(i) A description of the monitoring and maintenance activities
required in paragraph (b) of this section for the CCR unit or the CCR
management unit, and the frequency at which these activities will be
performed;
(ii) The name, address, telephone number, and email address of the
person or office to contact about the facility during the post-closure
care period; and
(iii) A description of the planned uses of the property during the
post-closure period. Post-closure use of the property shall not disturb
the integrity of the final cover, liner(s), or any other component of
the containment system, or the function of the monitoring systems
unless necessary to comply with the requirements in this subpart. Any
other disturbance is allowed if the owner or operator of the CCR unit
or the CCR management unit demonstrates that disturbance of the final
cover, liner, or other component of the containment system, including
any removal of CCR, will not increase the potential threat to human
health or the environment. The demonstration must be certified by a
qualified professional engineer or approved by the Participating State
Director or approved from EPA where EPA is the permitting authority,
and notification shall be provided to the State Director that the
demonstration has been placed in the operating record and on the owners
or operator's publicly accessible internet site.
(2) Deadline to prepare the initial written post-closure plan--(i)
Existing CCR landfills and existing CCR surface impoundments. No later
than October 17, 2016, the owner or operator of the CCR unit must
prepare an initial written post-closure plan consistent with the
requirements specified in paragraph (d)(1) of this section.
(ii) New CCR landfills, new CCR surface impoundments, and any
lateral expansion of a CCR unit. No later than the date of the initial
receipt of CCR in the CCR unit, the owner or operator must prepare an
initial written post-closure plan consistent with the requirements
specified in paragraph (d)(1) of this section.
(iii) CCR Management Units. No later than 12 months after effective
date of the final rule, the owner or operator of a CCR management unit
must prepare an initial written post-closure care plan as set forth in
paragraph (d)(1) of this section.
(iv) The owner or operator has completed the written post-closure
plan when the plan, including the certification required by paragraph
(d)(4) of this section, has been placed in the facility's operating
record as required by Sec. 257.105(i)(4).
(3) * * *
(ii) * * *
(A) There is a change in the operation of the CCR unit or the CCR
management unit that would substantially affect the written post-
closure plan in effect; or
* * * * *
[[Page 32043]]
(iii) The owner or operator must amend the written post-closure
plan at least 60 days prior to a planned change in the operation of the
facility or CCR unit, or CCR management unit, or no later than 60 days
after an unanticipated event requires the need to revise an existing
written post-closure plan. If a written post-closure plan is revised
after post-closure activities have commenced for a CCR unit or a CCR
management unit, the owner or operator must amend the written post-
closure plan no later than 30 days following the triggering event.
(4) The owner or operator of the CCR unit or the CCR management
unit must obtain a written certification from a qualified professional
engineer or an approval from the Participating State Director or an
approval from EPA where EPA is the permitting authority that the
initial and any amendment of the written post-closure plan meets the
requirements of this section.
(e) Notification of completion of post-closure care period. No
later than 60 days following the completion of the post-closure care
period, the owner or operator of the CCR unit or the CCR management
unit must prepare a notification verifying that post-closure care has
been completed. The notification must include the certification by a
qualified professional engineer or the approval from the Participating
State Director or the approval from EPA where EPA is the permitting
authority verifying that post-closure care has been completed in
accordance with the closure plan specified in paragraph (d) of this
section and the requirements of this section. The owner or operator has
completed the notification when it has been placed in the facility's
operating record as required by Sec. 257.105(i)(13).
(f) The owner or operator of the CCR unit or the CCR management
unit must comply with the recordkeeping requirements specified in Sec.
257.105(i), the notification requirements specified in Sec.
257.106(i), and the internet requirements specified in Sec.
257.107(i).
0
22. Amend Sec. 257.105 by:
0
a. Revising paragraphs (a), (b), (c), (d) and (f) introductory text;
0
b. Adding paragraph (f)(25);
0
c. Revising paragraphs (g) introductory text, (h) introductory text,
(i) introductory text, (i)(7), and (8): and
0
d. Adding paragraph (k).
The revisions and additions read as follows:
Sec. 257.105 Recordkeeping requirements.
(a) Operating Record. Each owner or operator of a CCR unit or CCR
management unit subject to the requirements of this subpart must
maintain files of all information required by this section in a written
operating record at their facility.
(b) Document Retention. Unless specified otherwise, each file must
be retained for at least five years following the date of each
occurrence, measurement, maintenance, corrective action, report,
record, or study.
(c) Recordkeeping for multiple CCR units or CCR management units.
An owner or operator of more than one CCR unit or CCR management unit
subject to the provisions of this subpart may comply with the
requirements of this section in one recordkeeping system provided the
system identifies each file by the name of each CCR unit. The files may
be maintained on microfilm, on a computer, on computer disks, on a
storage system accessible by a computer, on magnetic tape disks, or on
microfiche.
(d) State Director and/or appropriate Tribal authority
notification. The owner or operator of a CCR unit or CCR management
unit must submit to the State Director and/or appropriate Tribal
authority any demonstration or documentation required by this subpart,
if requested, when such information is not otherwise available on the
owner or operator's publicly accessible internet site.
* * * * *
(f) Design criteria. The owner or operator of a CCR unit or CCR
management unit subject to this subpart must place the following
information, as it becomes available, in the facility's operating
record:
* * * * *
(25) The Facility Evaluation Report as required by Sec. 257.75(c).
(g) Operating criteria. The owner or operator of a CCR unit or CCR
management unit subject to this subpart must place the following
information, as it becomes available, in the facility's operating
record:
* * * * *
(h) Groundwater monitoring and corrective action. The owner or
operator of a CCR unit or CCR management unit subject to this subpart
must place the following information, as it becomes available, in the
facility's operating record:
* * * * *
(i) Closure and post-closure care. The owner or operator of a CCR
unit or CCR management unit subject to this subpart must place the
following information, as it becomes available, in the facility's
operating record:
* * * * *
(7) The notification of intent to close a CCR unit or CCR
management unit as required by Sec. 257.102(g).
(8) The notification of completion of closure of a CCR unit or CCR
management unit as required by Sec. 257.102(h).
* * * * *
(k) Legacy CCR surface impoundments. In addition to the information
specified in paragraphs (e) through (j) of this section, the owner or
operator of a legacy CCR surface impoundment subject to this subpart
must place the following information, as it becomes available, in the
facility's operating record:
(1) The applicability documentation required by Sec.
257.100(f)(1)(i).
(2) The completion of closure by removal certification as specified
under Sec. 257.100(f)(1)(ii).
0
23. Amend Sec. 257.106 by:
0
a. Revising paragraphs (a), (b), (c), (d), and (f) introductory text;
0
b. Adding paragraph (f)(24);
0
c. Revising paragraphs (g) introductory text, (h) introductory text,
(h)(5), (i) introductory text, (i)(7), and (8); and
0
d. Adding paragraph (k).
The revisions and additions read as follows:
Sec. 257.106 Notification requirements.
(a) Deadline to submit notification to the relevant State Director
and/or appropriate Tribal authority. The notifications required under
paragraphs (e) through (i) of this section must be sent to the relevant
State Director and/or appropriate Tribal authority before the close of
business on the day the notification is required to be completed. For
purposes of this section, before the close of business means the
notification must be postmarked or sent by electronic mail (email). If
a notification deadline falls on a weekend or federal holiday, the
notification deadline is automatically extended to the next business
day.
(b) Notifications to Tribal authority. If any CCR unit or CCR
management unit is located in its entirety within Indian Country, the
notifications of this section must be sent to the appropriate Tribal
authority. If any CCR unit or CCR management unit is located in part
within Indian Country, the notifications of this section must be sent
both to the appropriate State Director and Tribal authority.
(c) Combining notifications. Notifications may be combined as long
as the deadline requirement for each notification is met.
(d) Notification deadline after placement in operating record.
Unless
[[Page 32044]]
otherwise required in this section, the notifications specified in this
section must be sent to the State Director and/or appropriate Tribal
authority within 30 days of placing in the operating record the
information required by Sec. 257.105.
* * * * *
(f) Design criteria. The owner or operator of a CCR unit or CCR
management unit subject to this subpart must notify the State Director
and/or appropriate Tribal authority when information has been placed in
the operating record and on the owner or operator's publicly accessible
internet site. The owner or operator must:
* * * * *
(24) Provide notification of the availability of the Facility
Evaluation Report as specified by Sec. 257.105(f)(25).
(g) Operating criteria. The owner or operator of a CCR unit or CCR
management unit subject to this subpart must notify the State Director
and/or appropriate Tribal authority when information has been placed in
the operating record and on the owner or operator's publicly accessible
internet site. The owner or operator must:
* * * * *
(h) Groundwater monitoring and corrective action. The owner or
operator of a CCR unit or CCR management unit subject to this subpart
must notify the State Director and/or appropriate Tribal authority when
information has been placed in the operating record and on the owner or
operator's publicly accessible internet site. The owner or operator
must:
* * * * *
(5) Provide notification that the CCR unit or CCR management unit
is returning to a detection monitoring program specified under Sec.
257.105(h)(7).
* * * * *
(i) Closure and post-closure care. The owner or operator of a CCR
unit or CCR management unit subject to this subpart must notify the
State Director and/or appropriate Tribal authority when information has
been placed in the operating record and on the owner or operator's
publicly accessible internet site. The owner or operator must:
* * * * *
(7) Provide notification of intent to close a CCR unit or CCR
management unit specified under Sec. 257.105(i)(7).
(8) Provide notification of completion of closure of a CCR unit or
CCR management unit specified under Sec. 257.105(i)(8).
* * * * *
(k) Legacy CCR surface impoundments. In addition to the information
specified in paragraphs (e) through (j) of this section, the owner or
operator of a legacy CCR surface impoundment subject to this subpart
must notify the State Director and/or appropriate Tribal authority when
information has been placed in the operating record and on the owner or
operator's publicly accessible internet site. The owner or operator
must:
(1) Provide notification of the availability of the applicability
documentation as specified under Sec. 257.105(k)(1).
(2) Provide notification of the availability of the completion of
closure by removal certification as specified under Sec.
257.105(k)(2).
0
24. Amend Sec. 257.107 by:
0
a. In paragraph (a) adding a paragraph heading and revising the first
sentence;
0
b. Revising paragraphs (b), (c), (d), and (f) introductory text;
0
c. Adding paragraph (f)(24);
0
d. Revising paragraphs (g) introductory text, (h) introductory text and
(h)(5);
0
e. Revising paragraphs (i) introductory text, (i)(7), and (8); and
0
f. Adding paragraph (k).
The revisions and additions read as follows:
Sec. 257.107 Publicly accessible internet site requirements.
(a) CCR website requirement. Each owner or operator of a CCR unit
or CCR management unit subject to the requirements of this subpart must
maintain a publicly accessible internet site (CCR website) containing
the information specified in this section. * * *
(b) CCR website for multiple units. An owner or operator of more
than one CCR unit or CCR management unit subject to the provisions of
this subpart may comply with the requirements of this section by using
the same CCR website for multiple CCR units or CCR management units
provided the CCR website clearly delineates information by the name or
identification number of each unit.
(c) Document retention on a CCR website. Unless otherwise required
in this section, the information required to be posted to the CCR
website must be made available to the public for at least five years
following the date on which the information was first posted to the CCR
website.
(d) Website posting deadline after placement in operating record.
Unless otherwise required in this section, the information must be
posted to the CCR website within 30 days of placing the pertinent
information required by Sec. 257.105 in the operating record.
* * * * *
(f) Design criteria. The owner or operator of a CCR unit or CCR
management unit subject to this subpart must place the following
information on the owner or operator's CCR website:
* * * * *
(24) The Facility Evaluation Report as specified under Sec.
257.105(f)(25).
(g) Operating criteria. The owner or operator of a CCR unit or CCR
management unit subject to this subpart must place the following
information on the owner or operator's CCR website:
* * * * *
(h) Groundwater monitoring and corrective action. The owner or
operator of a CCR unit or CCR management unit subject to this subpart
must place the following information on the owner or operator's CCR
website:
* * * * *
(5) The notification that the CCR unit or CCR management unit is
returning to a detection monitoring program specified under Sec.
257.105(h)(7).
* * * * *
(i) Closure and post-closure care. The owner or operator of a CCR
unit or CCR management unit subject to this subpart must place the
following information on the owner or operator's CCR website:
* * * * *
(7) The notification of intent to close a CCR unit or CCR
management unit specified under Sec. 257.105(i)(7).
(8) The notification of completion of closure of a CCR unit or CCR
management unit specified under Sec. 257.105(i)(8).
* * * * *
(k) Legacy CCR surface impoundments. In addition to the information
specified in paragraphs (e) through (j) of this section, the owner or
operator of a legacy CCR surface impoundment subject to this subpart
must place the following information on the owner or operator's CCR
website:
(1) The applicability documentation as specified under Sec.
257.105(k)(1).
(2) The completion of closure by removal certification as specified
under Sec. 257.105(k)(2).
[FR Doc. 2023-10048 Filed 5-17-23; 8:45 am]
BILLING CODE 6560-50-P