[Federal Register Volume 88, Number 218 (Tuesday, November 14, 2023)]
[Proposed Rules]
[Pages 77941-77944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24941]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2020-0107; FRL-7814-05-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: Notice of data availability (NODA).
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
announcing the availability of new information and data pertaining to
the Agency's May 18, 2023 proposed rulemaking on the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities; Legacy CCR Surface
Impoundments. EPA is seeking public comment on this additional
information, which may affect the Agency's decisions as it develops a
final rule. EPA is not reopening any other aspect of the proposal, the
CCR regulations, or the underlying support documents that were
previously available for comment.
DATES: Comments must be received on or before December 11, 2023.
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, OLEM Docket, Mail Code 28221T, 1200 Pennsylvania Avenue 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. to 4:30 p.m., Monday through Friday (except
Federal Holidays).
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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 notice
of data availability, 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:
I. Public Participation
A. Docket
EPA has established a docket for this action under Docket ID No.
EPA-HQ-OLEM-2020-0107. All documents in the docket are listed in the
https://www.regulations.gov index. Publicly available docket materials
are available either electronically at https://www.regulations.gov or
in hard copy at the EPA Docket Center. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.
The telephone number for the Public Reading Room is (202) 566-1744, and
the telephone number for the EPA Docket Center is (202) 566-1742.
B. 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 electronically
any information you consider to be Confidential Business Information
(CBI) or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. 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). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment
policy; information about DBI, PBI, or multimedia submissions; and
general guidance on making effective comments.
II. General Information
A. Does this action apply to me?
This document 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 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 is the purpose of this NODA?
With this document, EPA is reopening the comment period on the
proposed rule: Hazardous and Solid Waste Management System: Disposal of
Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface
Impoundments (88 FR 31982, May 18, 2023), herein referred to as the
``2023 proposed rule,'' for the limited purpose of obtaining public
comment on additional information that may be relevant to the
development of a final rule. Some of the information includes data or
analyses that were received during the comment period for the 2023
proposed rule and that could have the potential to play a role in
support of decisions in the final rule. It also includes information
obtained based on further EPA research conducted both during and after
the close of the comment period, and which was therefore not available
for public comment during the prior comment period on the 2023 proposed
rule. This document describes some new information and data that EPA
has received and new analyses that have been conducted. All the
information subject to this document can be accessed as described in
Unit II.C of this document.
EPA is still in the process of evaluating this information and
deliberating the provisions of a final rule. Therefore, EPA cannot
definitively state whether this information will provide support for
any provision of the final rule, or that the Agency has determined that
it is appropriate to rely on this information in developing the final
rule. In addition, it should not be assumed that the specific
information identified in this document is the full sum of information
received in comments that will be considered or that will influence the
Agency's decisions in this rulemaking. However, in the interests of
ensuring that the public has had a full and complete opportunity to
comment on the information that EPA has so far identified as having the
potential to weigh in EPA's decisions on the final rule, EPA is
reopening the comment period for the limited purpose of allowing the
public to comment on the validity and propriety of using this
information, data, and potential analyses in developing the final rule.
EPA is not reopening the comment period on any other aspect of the
proposed rule. This is not an opportunity for the public to supplement
their comments on the proposed rule, or to raise issues that could have
been raised during the original comment period. The only issues on
which the Agency is soliciting comment relate to the information in the
docket supporting this document. Comments submitted on any issues other
than those specifically identified in this document will be considered
``late comments'' on the proposed rule. EPA will not respond to such
comments, and they will not be considered part of the rulemaking
record.
C. Where can the information identified in the document be found?
Most documents are available from the docket for viewing and
downloading through http://www.regulations.gov; however, copyrighted
documents are only available for viewing by visiting EPA's Docket
Center.
D. What is the Agency's authority for taking this action?
EPA is publishing this document 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
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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, and 6945(a) and (d).
III. Background
On April 17, 2015, EPA finalized national minimum criteria for the
disposal of CCR as solid waste under Subtitle D of the Resource
Conservation and Recovery Act (RCRA) in a rule titled, ``Hazardous and
Solid Waste Management System; Disposal of Coal Combustion Residuals
from Electric Utilities,'' (80 FR 21302) (2015 CCR rule or CCR
regulations). The 2015 CCR rule, codified in subpart D of part 257 of
Title 40 of the Code of Federal Regulations, established regulations
for existing and new CCR landfills and existing and new CCR surface
impoundments and 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 imposed requirements on inactive surface
impoundments \1\ at active facilities,\2\ but did not impose
requirements on inactive surface impoundments at inactive facilities.
The preamble to the 2015 CCR rule (80 FR 21344, April 17, 2015)
explained that inactive units at inactive facilities were not covered
by the rule in part due to possible complications that were specific to
inactive or closed facilities: the concern 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. For that reason, EPA exempted those units at Sec.
257.50(e). On August 21, 2018, the U.S. Court of Appeals for the
District of Columbia Circuit issued its opinion in the case of Utility
Solid Waste Activities Group, et al. v. EPA (``USWAG''), which vacated
and remanded the provision that exempted inactive impoundments at
inactive facilities from the CCR regulations.
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\1\ An ``inactive CCR surface impoundment'' is defined at Sec.
257.53 as a CCR surface impoundment that no longer received CCR on
or after October 19, 2015 and still contains both CCR and liquids on
or after October 19, 2015.
\2\ An ``active facility or active electric utilities or
independent power producers'' is defined at Sec. 257.53 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.
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On May 18, 2023, EPA proposed revisions to the CCR regulations (88
FR 31982). These revisions included establishing regulations specifying
that inactive surface impoundments at inactive facilities (``legacy CCR
surface impoundments'') are subject to 40 CFR part 257, subpart D and
requiring owners and operators of legacy CCR surface impoundments to
comply with all the appropriate requirements applicable to inactive CCR
surface impoundments at active facilities. In addition, EPA proposed to
establish requirements to address the risks from currently exempt solid
waste management that involves the direct placement of CCR on the land.
EPA proposed to extend a subset of the existing requirements in 40 CFR
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 the proposal, EPA referred 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. Lastly, EPA
proposed 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
requested comment on extending the period for document retention and
posting.
The Agency received over 33,500 comments on the proposed rule, with
over 600 unique comments. Commenters included individual electric
utilities and independent power producers, national trade associations,
state agencies, public interest and environmental groups, and entities
involved with the beneficial use of CCR. All public comments submitted
in response to the proposal can be found in the docket for the proposed
rule.
IV. What information is EPA seeking?
A. Risk Analysis
In response to public comments and additional information made
available since publication of the 2023 proposed rule, EPA has prepared
a supplemental risk assessment in support of the 2023 proposed rule.
This risk assessment builds on the findings of the previous 2014 Risk
Assessment \3\ and better quantifies the specific risks that may result
from placement of CCR in legacy CCR surface impoundments and CCRMU. To
accomplish this task, EPA used mathematical models to estimate the rate
at which constituents may escape into surrounding media, the fate and
transport of these constituents through the environment, and the
potential risk of adverse effects to individual receptors that may
occur in the absence of regulation. This supplemental risk assessment
incorporates much of the same groundwater data and model framework as
the 2014 Risk Assessment, updated where necessary to best reflect the
relevant exposure scenarios. Additionally, this supplemental risk
assessment considers additional exposure scenarios that may result from
radionuclides present within CCR. EPA is requesting comment on all
aspects of the assessment including the validity and propriety of
relying on the new information, data, and analyses contained in the
updated risk assessment to inform the final rule.
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\3\ U.S. EPA. 2014a. ``Final Human and Ecological Risk
Assessment of Coal Combustion Residuals.'' RIN: 2050-AE81. Prepared
by the EPA Office of Solid Waste and Emergency Response. Washington,
DC. December.
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B. Information About Legacy CCR Surface Impoundments and CCR Management
Units
EPA is also seeking information that would further document the
universe of legacy CCR surface impoundments and CCRMU. In response to
the USWAG decision, EPA issued an ANPRM on October 14, 2020 (85 FR
65015) to solicit comment and data on legacy CCR surface impoundment at
inactive facilities to assist in the development of future regulations
for legacy CCR surface impoundments. EPA received 156 comments on the
ANPRM regarding the presence, condition, and history of potential
legacy CCR surface impoundments of which, 127 cited the sources of the
information. EPA placed the data on these potential legacy CCR surface
impoundments in the docket of the 2023 proposed rule for legacy CCR
surface impoundments (88 FR 31982, May 18, 2023) and requested further
comments and data on these units as well as any CCRMU. In response to
the 2023 proposed rule, EPA received additional comments regarding the
location, presence, condition, and history of additional potential
legacy CCR surface impoundments and of CCRMU at both active and
inactive
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facilities. EPA is placing the data received in response to the
proposed rule in the docket for the present NODA and is soliciting
public comment on these data in connection with this rulemaking.
EPA is specifically soliciting supplementary comments, data, or
sources of information on the location, presence, condition, history,
and risk associated with any of the potential legacy CCR surface
impoundments or any of the potential CCRMU within the docket, including
any information regarding the presence of water, distance to surface
water bodies, proximity to floodplains, unit size, CCR volume, depth to
groundwater, date of CCR placement, closure status, any corrective
action associated with the unit, and any groundwater monitoring data.
In addition to information regarding the docket items for this NODA,
EPA also requests comment on the accuracy of the information that was
submitted regarding potential legacy CCR surface impoundments or
potential CCRMU. Furthermore, EPA is seeking similar information on any
other potential legacy CCR surface impoundments or potential CCRMU of
which EPA may not be aware or for which we may have incomplete
information. In all instances, it is important that commenters on this
NODA provide verifiable sourcing information for data that is provided,
as EPA may not consider information without a verifiable source in
developing a final rule.
The information included in the docket for this NODA is in PDFs and
Microsoft Excel spreadsheets. While some of the information in the PDFs
and the Microsoft Excel spreadsheets is duplicative, the docket items
contain distinct data.
V. Request for Comment and Additional Information
EPA is seeking comment on all questions and topics described in
this NODA, including the issues identified in Unit IV of this document,
and requests that you submit any information, that you believe is
important for EPA to consider in connection with these questions and
topics. At the same time, EPA will not consider comments that are
beyond the scope of the questions and topics described in this NODA.
Instructions for providing written comments are provided under
ADDRESSES, including how to submit any comments that contain CBI.
List of Subjects in 40 CFR Part 257
Environmental protection, Coal combustion products, Coal combustion
residuals, Coal combustion waste, Disposal, Hazardous waste, Landfill,
Surface impoundment.
Michael S. Regan,
Administrator.
[FR Doc. 2023-24941 Filed 11-13-23; 8:45 am]
BILLING CODE 6560-50-P