[Federal Register Volume 91, Number 70 (Monday, April 13, 2026)]
[Proposed Rules]
[Pages 18968-19023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-07061]
[[Page 18967]]
Vol. 91
Monday,
No. 70
April 13, 2026
Part II
Environmental Protection Agency
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42 CFR Part 257
Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Legacy/CCRMU Amendments;
Proposed Rule
Federal Register / Vol. 91 , No. 70 / Monday, April 13, 2026 /
Proposed Rules
[[Page 18968]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2020-0107; FRL-7814.3-01-OLEM]
RIN 2050-AH39
Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Legacy/CCRMU Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; public hearing.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing several revisions to the existing federal CCR regulations,
including exempting CCR dewatering structures and modifying the legacy
coal combustion residual (CCR) surface impoundment and CCR management
unit provisions. Additionally, EPA is proposing to establish a new
compliance pathway that allows for site-specific considerations during
permitting regarding the groundwater monitoring points of compliance,
the cleanup levels for corrective action, the appropriate closure
requirements, closure timeframes, and allowing CCR extraction for
beneficial use during the post-closure care period. The Agency is also
proposing to revise the definition of beneficial use by eliminating the
requirement for an environmental demonstration for the non-roadway use
of more than 12,400 tons of unencapsulated CCR on land, as well as
proposing a definition of CCR storage pile, and proposing to exclude
specific beneficial uses from federal CCR regulations. Lastly, EPA is
providing notice that EPA will reopen the public comment period for the
Federal CCR permit program proposed rule, published on February 20,
2020, for a period of 30 days in a future separate action.
DATES:
Comments due: Comments on this action must be received on or before
June 12, 2026.
Public hearing: EPA will hold an online (i.e., virtual) public
hearing on May 28, 2026. Please refer to the SUPPLEMENTARY INFORMATION
section for additional information on the public hearing.
ADDRESSES: You may send comments on this action, 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. A plain language summary of the proposed rule is also
available on the Federal eRulemaking Portal.
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.
The public hearing will be held online (i.e., virtually). Refer to
the SUPPLEMENTARY INFORMATION section below for additional information.
FOR FURTHER INFORMATION CONTACT: Taylor Holt, Office of Resource
Conservation and Recovery, Waste Identification, Notice, and Generators
Division, Environmental Protection Agency, 1200 Pennsylvania Avenue NW,
MC: 5304T, Washington, DC 20460; telephone number: (202) 566-1439;
email address: [email protected]. For questions concerning the
beneficial use provisions discussed in Unit IV.C. of this preamble,
contact Tracy Atagi, Office of Resource Conservation and Recovery,
Waste Identification, Notice, and Generators Division, Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, MC: 5304T, Washington,
DC 20460; telephone number: (202) 566-0511; email address:
[email protected]. For more information on this rulemaking please
visit https://www.epa.gov/coal-combustion-residuals.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
A. Written Comments
B. Participation in the Hybrid In-Person and Virtual Public
Hearing
II. General Information
A. Does this action apply to me?
B. What action is the agency contemplating?
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. 2023 Legacy Proposed Rule
C. 2024 Legacy Final Rule
D. New Information Received Since Publication of the Legacy
Final Rule
E. Beneficial Use of CCR
1. May 2000 Regulatory Determination on Fossil Fuel Combustion
Wastes
2. Beneficial Use in the 2015 CCR Rule
3. CCR Rule Litigation Related to Beneficial Use
4. Beneficial Use in the 2019 CCR Proposed Rule
5. 2020 CCR Notice of Data Availability
6. Public Comments on the Fourth Beneficial Use Criterion and
CCR Accumulations for the 2019 CCR Proposal and 2020 CCR NODA and
EPA's Decision To Repropose
IV. What is EPA proposing?
A. Amendments to the Self-Implementing Regulations
1. CCR Dewatering Structures
2. Legacy CCR Surface Impoundments
3. CCR Management Units
4. Initial Timeframes for Background Sampling for New CCR
Landfills, CCR Surface Impoundments, and Any Lateral Expansions
5. Slope Stability Requirements for Vegetation
B. New Compliance Pathway Allowing Site-Specific Considerations
During Permitting
1. Groundwater Monitoring and Corrective Action Requirements
2. Closure and Post-Closure Care Requirements
C. Beneficial Use
1. Definition of Beneficial Use
2. Revisions Related to CCR Accumulations
3. Exclusions for Specific Beneficial Uses
D. Federal CCR Permitting Rule--Reopening the Comment Period
V. The Projected Economic Impact of This Action
A. Introduction
B. Affected Universe
C. Baseline Costs
D. Costs and Benefits of the Proposed Rule
E. What analysis of children's health did we conduct?
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
[[Page 18969]]
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
List of Acronyms
ACAA American Coal Ash Association
AEP American Electric Power
ARAR Applicable or Relevant and Appropriate Requirement
BH Berkshire Hathaway
CAMA Coal Ash Management Act
CARA Corrective Action/Risk Assessment
CBI Confidential Business Information
CCIG Cross-Cutting Issues Group
CCR coal combustion residuals
CCRMU coal combustion residuals management unit
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act
CFR Code of Federal Regulations
CSM Conceptual Site Model
EEI Edison Electric Institute
EPA Environmental Protection Agency
F.A.C. Florida Administrative Code
FER facility evaluation report
FR Federal Register
HELP Hydrologic Evaluation of Landfill Performance
HSWA Hazardous and Solid Waste Amendments
ICR Information Collection Request
IEPA Illinois Environmental Protection Agency
LEAF Leaching Environmental Assessment Framework
MCL maximum contaminant level
MSWLF Municipal Solid Waste Landfill
NAICS North American Industry Classification System
NCDEQ North Carolina Department of Environmental Quality
N.C.G.S. General Statutes of North Carolina
NPDES National Pollution Discharge Elimination System
NRECA National Rural Electric Cooperative Association
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
PRA Paperwork Reduction Act
RCRA Resource Conservation and Recovery Act
RIA Regulatory Impact Analysis
SCDHEC South Department of Health and Environmental Control
TDEC Tennessee Department of Environment and Conservation
TVA Tennessee Valley Authority
USWAG Utility Solid Waste Activities Group
UV Ultraviolet
WIIN Water Infrastructure Improvements for the Nation
I. Public Participation
A. Written Comments
Submit your comments on this action, 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. Do
not submit any comments on the Federal CCR permit program proposed rule
to this docket; comments on that action must be submitted during the
reopened comment period to Docket ID No. EPA-HQ-OLEM-2019-0361 in
accordance with the future Federal Register document. 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), Proprietary Business
Information (PBI), 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 CBI, PBI, or multimedia
submissions; and general guidance on making effective comments.
B. Participation in the Virtual Public Hearing
EPA will hold a virtual public hearing on May 28, 2026. The hearing
will convene at 9:00 a.m. Eastern time (ET) and will conclude at 6:00
p.m. (ET).
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/coal-combustion-residuals) or
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to register to speak at the hybrid hearing. The last day to
pre-register to speak at the hearing will be May 26, 2026. On May 26,
2026, EPA will post a general agenda for the hearing on EPA's CCR
website (https://www.epa.gov/coal-combustion-residuals).
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/coal-combustion-residuals) for this hearing. EPA will make
every effort to accommodate all speakers who register or join
virtually, 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 less 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. 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 will
be posted online at EPA's CCR website at https://www.epa.gov/coal-combustion-residuals. 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, translator, or
special accommodations such as audio transcription or closed
captioning, please pre-register for the hearing with the person listed
in the FOR FURTHER INFORMATION CONTACT section and describe your needs
by May 14, 2026. EPA may not be able to arrange accommodations without
advance notice. Registrants should notify the person listed in the FOR
FURTHER INFORMATION CONTACT section and
[[Page 18970]]
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 may be of interest to 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 affected by this action. This
discussion lists the types of entities that EPA is now aware could
potentially be affected by this action. Other types of entities not
described here could also be affected. To determine whether your entity
is affected by this action, you should carefully examine the
applicability criteria found in Sec. 257.50 of title 40 of the Code of
Federal Regulations (CFR). 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 contemplating?
EPA is proposing to amend the regulations governing the disposal of
CCR in landfills and surface impoundments and defining the beneficial
use of CCR, codified in 40 CFR part 257, subpart D (CCR regulations).
First, the Agency is proposing to exempt CCR dewatering structures from
the CCR regulations under part 257 and to establish a new compliance
pathway that allows for site-specific considerations during permitting.
This pathway incorporates permit flexibilities for CCR units complying
with the federal CCR groundwater monitoring, corrective action, and
closure requirements under a federal or participating-state CCR permit.
Additionally, EPA is proposing to clarify the deadline by which new CCR
landfills and CCR surface impoundments (which includes any lateral
expansions) must comply with the requirement to establish background
concentrations.
EPA is also proposing to amend the regulations governing the
disposal of CCR in CCR surface impoundments that no longer receive CCR
but contained both CCR and liquids on or after October 19, 2015 and are
located at inactive facilities (i.e., legacy CCR surface impounds) and
the regulations governing the disposal of CCR in inactive and closed
landfills, in closed surface impoundments and on land where
noncontainerized accumulations of CCR are received, placed, or
otherwise managed (i.e., CCR management units or CCRMU). Specifically,
the Agency is proposing to: (1) Broaden the criteria for the closure by
removal certification for legacy CCR surface impoundments; (2) Broaden
the deferral criteria for legacy CCR surface impoundments that have
completed closure under a regulatory authority prior to November 8,
2024; and (3) Amend the scope of the CCRMU regulations.
Furthermore, EPA is proposing to revise several provisions related
to CCR beneficial use. Specifically, the Agency is proposing to revise
the definition of beneficial use by removing the fourth criterion that
requires an environmental demonstration for the non-roadway use of more
than 12,400 tons of unencapsulated CCR on land, proposing a definition
of CCR storage pile, and excluding the following beneficial uses from
federal CCR regulations: (1) CCR used in cement manufacturing at cement
kilns, (2) Flue gas desulfurization (FGD) gypsum used in agriculture,
and (3) FGD gypsum used in wallboard.
Lastly, EPA is providing notice that in a future separate action
identified by Docket ID No. EPA-HQ-OLEM-2019-0361, EPA will reopen the
public comment period for the Federal CCR permit program proposed rule
(85 FR 9940, entitled Hazardous and Solid Waste Management System:
Disposal of Coal Combustion Residuals From Electric Utilities; Federal
CCR Permit Program) for a period of 30 days. Note that comments on the
Federal CCR permit program proposed rule must be submitted to Docket ID
No. EPA-HQ-OLEM-2019-0361 during the future reopening of the comment
period to be considered.
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 or 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 rulemaking under the authority of sections
1008(a)(3), 2002(a), 4004, and 4005(a), (d) of the Solid Waste Disposal
Act of 1965, 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).
D. What are the incremental costs and benefits of this action?
EPA establishes the requirements under RCRA sections 1008(a)(3) and
4004(a) without taking cost into account. See, Utility Solid Waste
Activities Group, et al. v. EPA (USWAG) 901 F.3d 414, 448-49 (D.C. Cir.
2018). The following cost estimates are presented in the Regulatory
Impact Analysis (RIA) and summarized in this preamble for compliance
with OMB Circular A-4 and E.O. 12866. The requirements in this rule do
not rely on these cost estimates.
The RIA estimates that the annualized cost savings of this action
will be approximately:
$174-$194 million per year when discounting at 3%; and
$232-$262 million per year when discounting at 7%.
The RIA estimates that the annualized change in benefits of this
action will be approximately:
A $5 million decrease per year when discounting at 3%; and
A $4-$2 million decrease when discounting at 7%.
Overall, the RIA estimates that the net annualized cost savings and
benefits, net of disbenefits, of this action will be $169-$189 million
per year when discounting at 3%, and $229-$260 million when discounting
at 7%.
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
[[Page 18971]]
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 subpart D
of part 257 of title 40 of the CFR, established regulations for
existing and new CCR landfills, existing and new CCR surface
impoundments, including all lateral expansions of these CCR units. The
2015 CCR Rule also imposed requirements on inactive surface
impoundments at active facilities but exempted inactive surface
impoundments at inactive facilities. The requirements consist of
location restrictions, design and operating criteria, groundwater
monitoring and corrective action requirements, closure and post-closure
care requirements, recordkeeping, notification, and website posting
requirements.
At the time of the promulgation of the 2015 CCR Rule, EPA did not
have the authority to issue CCR permits, authorize state CCR permit
programs, or otherwise provide the oversight typically performed by a
regulatory agency or permit authority. Therefore, the 2015 CCR Rule
established nationwide requirements for CCR units under a self-
implementing regulatory structure. Due to the lack of regulatory
oversight and the limitations of a national risk assessment, as
described in Unit III.D. below, the 2015 CCR Rule did not allow for
site-specific variances from the regulations or tailored requirements
based on site-specific characteristics. Instead, the 2015 CCR Rule
relied on certifications by qualified professional engineers and web
posting requirements as a substitute for regulatory oversight in
certain cases.
As discussed in Unit IV.B. of this preamble, the self-implementing
framework and national requirements have resulted in a one-size-fits-
all approach to compliance with the federal CCR requirements. For
example, site-specific revisions to the technical standards are not
permissible under the 2015 CCR Rule due to the lack of regulatory
oversight. Likewise, as discussed in Unit III.B.1.b. of this preamble,
during the development of the 2015 Rule, EPA rejected requests to allow
regulated entities to establish alternative groundwater standards for
constituents without a federal maximum contaminant level (MCL)
established under Sec. Sec. 141.62 and 141.66 and referenced in Sec.
257.95(h)(1) due to a lack of regulatory oversight and scientific
expertise. Consequently, the 2015 CCR Rule represents a regulatory
structure that met the RCRA standard of no reasonable probability of
adverse effect to health or the environment within the constraints of
the law at that time. However, as discussed in further detail in Units
III.D. and IV.B. of this preamble, the self-implementing framework is
no longer the only, nor the best, regulatory structure available.
B. 2023 Legacy Proposed Rule
On May 18, 2023, EPA proposed revisions to the CCR regulations (88
FR 31982) (``the Legacy Proposed Rule'' or ``Legacy Proposal''). These
revisions included establishing regulations specifying that legacy CCR
surface impoundments are subject to 40 CFR part 257, subpart D and that
owners or operators of legacy CCR surface impoundments must 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 certain exempt solid
waste management that involves the direct placement of CCR on the land
(i.e., CCRMU). EPA proposed to extend a subset of the existing
requirements in part 257, subpart D to CCRMU, which was proposed to
include 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. EPA proposed to apply
the CCRMU provisions to all active CCR facilities and all inactive
facilities with a legacy CCR surface impoundment.
C. 2024 Legacy Final Rule
On May 8, 2024, EPA established regulations applicable to inactive
surface impoundments at inactive facilities (legacy CCR surface
impoundments or legacy impoundments) under 40 CFR part 257, subpart D
(89 FR 38950) (Legacy Final Rule). EPA also established regulations
requiring owners and operators of legacy CCR surface impoundments to
comply with the following requirements in the existing CCR regulations:
installation of a permanent marker, history of construction, hazard
potential classification, structural stability and factors of safety
assessments, emergency action plan, air criteria, inspections,
groundwater monitoring and corrective action, closure and post-closure
care, recordkeeping, and notification and CCR website requirements. EPA
further established new compliance deadlines for these newly applicable
regulatory requirements to ensure the owners or operators of these
units have time to come into compliance.
In addition, the Legacy Final Rule established requirements to
address the risks from solid waste management activities that involves
the direct placement of CCR on the land. EPA extended a subset of the
existing requirements in 40 CFR part 257, subpart D to CCRMU, which are
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. These additional
requirements apply to all active CCR facilities, all inactive
facilities with legacy CCR surface impoundments, and those active
facilities (i.e., facilities producing electricity for the grid as of
October 19, 2015) that ceased placing CCR in onsite CCR units prior to
the effective date of the 2015 CCR Rule.
Owners or operators of some legacy CCR surface impoundments and
CCRMU that had closed under a regulatory authority are eligible for
certain relief from the established regulatory requirements provided
they met specific criteria. Owners or operator of legacy CCR surface
impoundments who certify that prior to November 8, 2024, they completed
closure by removal of the impoundment, consistent with the standards in
Sec. 257.102(c), are subject to no further requirements under the
Legacy Final Rule for that unit. Similarly, for legacy CCR surface
impoundments and CCRMU that completed a closure prior to November 8,
2024, and can meet the criteria in Sec. 257.101(g), compliance with
the closure criteria in Sec. 257.102 is deferred until a permitting
authority can evaluate the previous closure to determine if it met the
appropriate section of the Sec. 257.102 closure standard. Owners or
operators of these units are still required to comply with rest of the
applicable CCR regulations.
Owners or operators of an active facility or a facility with a
legacy CCR surface impoundment are required to conduct a facility
evaluation to identify and delineate any CCRMU at the facility and
document the findings in two reports, FER Part 1 and FER Part 2. See
Sec. 257.75(b). The FER Part 1 documents the thorough review of
readily and reasonably available records regarding where CCR was either
routinely and systematically placed on land, or where facility
activities otherwise resulted in measurable accumulations of CCR on
land. The FER Part 2 documents the conclusions of a physical evaluation
of the facility to address any data and information gaps identified in
FER Part 1. Together, the FER Parts 1 and 2 give a complete picture of
the historic use, placement and the status of CCR at the facility,
ultimately identifying any
[[Page 18972]]
CCRMU of 1 ton or greater onsite. After identifying the regulated CCRMU
through the facility evaluation, owners or operators of CCRMU must
comply with the existing requirements in 40 CFR part 257, subpart D for
groundwater monitoring, corrective action (where necessary), and in
certain cases, closure, and post-closure care requirements.
D. New Information Received Since Publication of the Legacy Final Rule
Since publication of the Legacy Final Rule, EPA received
information from numerous companies and representatives of industry
regarding the scope of the deferrals within the Legacy Final Rule, the
scope of the CCRMU universe, challenges complying with the existing CCR
requirements, and requests for regulatory changes.\1\ Several of these
letters and materials critiqued the findings or applicability of the
2014 and 2024 Risk Assessments conducted by EPA to support the 2015 CCR
Rule and the Legacy Final Rule, respectively. Most recently, EPA
received two reports that critique the Agency's Risk Assessments, which
were prepared on behalf of various industry groups.2 3
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\1\ These materials are available in the docket for this
rulemaking.
\2\ Haley Aldrich. 2025. ``Report on Joint Data Analysis to
Support Revisions to Federal Regulation of Coal Combustion
Residuals.'' Prepared for American Electric Power, Duke Energy
Corporation, Southern Company Services Inc., and Vistra Corp.,
Greenville, SC. September.
\3\ Gradient. 2025. ``Technical Evaluation of the Environmental
Protection Agency's 2024 Risk Assessment of CCR Management Units.''
Prepared for Utility Solid Waste Activities Group and National Rural
Electric Cooperative Association. Boston, MA. November.
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Throughout the rulemaking process and thereafter, EPA has received
comments from industry groups and individual companies criticizing both
the 2014 and 2024 Risk Assessments as overly conservative. These
comments frequently reference some combination of literature and field
data to assert the risks posed by individual units are not as high as
those reported in the two risk assessments. The Agency has previously
addressed various iterations of these types of comments in the preamble
discussions and response to comments documents for both the 2015 CCR
Rule and the Legacy Final Rule, and so does not replicate those
specific responses here. Instead, the following discussion focuses on
the broader theme of these comments, which is that not every CCR unit
will pose the same level of risk.
The ``Report on Joint Data Analysis'' states that it draws on site-
specific data from 38 CCR landfills, surface impoundments and CCR
management unit fills at 19 stations across nine states. This report
summarizes unit characteristics and groundwater monitoring data, along
with data drawn from broader literature, and compared those data
against values modeled in the Risk Assessments. The other report,
``Technical Evaluation,'' summarizes a separate effort to re-evaluate
the modeling approach for CCRMU fills. This effort involved varying
different model inputs used in the screening phase of the 2024 Risk
Assessment and evaluating how that altered those initial risk results.
Both reports conclude that EPA's Risk Assessments systematically
overstate the risk from CCR disposal units and fills, and that it would
be more effective and appropriate to assess risks on a site-specific
basis. For example, the ``Technical Evaluation'' emphasized that
individual fills are generally smaller than the disposal units
regulated in 2015. The 2024 Risk Assessment demonstrated that risks
tend to decrease along with size due to the smaller volumes of leachate
generated. The fills associated with high-end risks that formed the
basis for national regulation tend to be on the larger end of the size
spectrum. However, there remains a sizeable fraction of modeled
scenarios where smaller units were found to result in no adverse
impacts to groundwater quality. EPA has acknowledged there is a lack of
data from facilities about the actual distribution of fill sizes across
the country. As such, there is potential that the prevalence of these
smaller fills were underrepresented in previous modeling.
The 2014 and 2024 Risk Assessments aimed to incorporate the best
available data at the time of each assessment. 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. However, it
is inevitable that some sources of uncertainty and variability will
remain in any risk assessment. To account for this fact, EPA typically
considers a ``high-end'' exposure level to ensure an adequate margin of
safety for most of the potentially exposed, susceptible population, or
ecosystem. EPA's high-end levels typically fall around the 90th
percentile and above, an approach designed to be consistent with both
legislative mandates and recommendations from the National Academy of
Sciences' National Research Council.\4\
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\4\ U.S. EPA. 2004. ``An Examination of EPA Risk Assessment
Principles and Practices.'' EPA/100/B-04/00. Prepared by the Office
of the Science Advisor. Washington, DC. March.
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EPA uses a national risk assessment for a particular source or
industry category to inform its decision concerning whether a
regulatory program is needed or in need of revisions. Both the 2014 and
2024 Risk Assessments were designed to capture the full spectrum of
potential disposal scenarios across the country with available data.
Decisions about the need for national regulations were based on high-
end risks identified from across these scenarios, considered together
with damage cases, to ensure that regulations would be consistently
protective. Consequently, the 2014 Risk Assessment has served its
purpose as EPA used it to inform its decision to create the 2015 CCR
Rule creating a Federal CCR regulatory program. EPA relied on the 2024
Risk Assessment to inform its decision to expand the Federal CCR
regulations to cover CCRMU.
The Agency acknowledges that these high-end risks may not manifest
at every site and concurs that risks associated with individual CCR
units may be lower. This is equally true for disposal units, fills,
piles, and unencapsulated accumulations on the land for any other
stated purpose. However, pinpointing conditions that would lead to
reliably lower risks and justify less stringent national standards is
complicated by limited site characterization and various factors that
could not be reliably modeled at a national level, such as waste
disposed below the water table. While this diversity of site conditions
creates uncertainty in a national model, it provides a key rationale
for the need to design a regulatory program that can account for these
site-specific conditions while providing for sufficient regulatory
oversight.
Owners or operators of regulated facilities have installed
groundwater monitoring networks downgradient of regulated disposal
units. Whether prior to or since promulgation of the 2015 CCR Rule,
these systems are designed to demonstrate whether a release has
occurred. If a release is detected, additional information about the
magnitude and extent of the release from the unit and the potential for
contamination to spread is required to design a remedial system. That
type of broader site characterization typically occurs as part of
remedy selection, which most sites have either not yet triggered or
completed. Consequently, while industry comments providing further
information may lack the types or resolution of data needed to
[[Page 18973]]
meaningfully update the existing national risk assessments, the
submitted data and description of regulatory oversight provide a
foundation for revisions to the self-implementing 2015 CCR Rule to add
an option for site-specific determinations involving a permitting
authority. A number of commenters cited to data drawn from the broader
literature, rather than site-specific measurements. While national data
is helpful, any further refinement of the existing risk record will
likely need to rely on data from individual sites, where more
representative data can be reliably compiled.
To address identified risks in the 2014 Risk Assessment, EPA
promulgated national requirements under the authorities in sections
1008(a), 4004, and 4005(a) of RCRA. This included detailed,
prescriptive requirements for design of groundwater monitoring systems
and corrective action programs drawn from the existing 40 CFR parts 264
and 258 regulations. Decades of experience implementing these
requirements for a variety of other wastes, under a range of
conditions, provided the Agency confidence that similar performance
standards would be equally protective for CCR disposal. When EPA later
expanded the regulated universe as part of the Legacy Final Rule to
include legacy surface impoundments and CCRMU, the Agency promulgated
requirements intended to provide comparable standards across the
regulated universe.
During these rulemakings, EPA received numerous comments requesting
that EPA adopt alternative performance standards that would allow a
permit authority, such as a state regulator (or owners or operators of
facilities) to ``tailor'' the requirements to particular site
conditions. Many requested EPA adopt particular performance standards
found in EPA's municipal solid waste landfill (MSWLF) regulations in 40
CFR part 258.
Although the 2015 CCR Rule was largely modeled on the MSWLF
regulations, as explained in both the proposed and final rules, at the
time EPA lacked the authority to establish a program analogous to part
258, which relies on approved states to implement the federal criteria
through a permitting program. In addition, in 2015, EPA could not issue
permits or enforce any of the CCR regulations. In the absence of a
mandated oversight mechanism to ensure that the alternative standards
would be technically appropriate, EPA concluded it could not adopt many
of the ``more flexible'' performance standards that commenters
requested. Many of these provisions are not tied to specific
performance standards that could be used to readily judge compliance.
EPA concluded that allowing individual owners and operators to
interpret and implement these provisions in the absence of any mandated
oversight mechanism would create too much potential for
misinterpretation. Instead, the 2015 CCR Rule was designed to be self-
implementing, tied to concrete performance and design standards that
must be met, so that the rule could be implemented and compliance
demonstrated without any interaction with state or federal regulatory
officials.
However, in 2016, the WIIN Act was enacted, establishing new
statutory provisions applicable to CCR units, including: (a)
Authorizing States to implement the CCR regulations through an EPA-
approved permit program; and (b) Authorizing EPA to enforce the
regulations and, in certain situations, to serve as the permit
authority. In doing so, this legislation provides an opportunity to
move away from the ``one-size-fits-all'' regulatory approach
necessitated by the previous statutory structure.
EPA therefore proposes to create an additional regulatory pathway
that incorporates new regulatory provisions providing permit
authorities the ability to approve certain flexibilities for owners or
operators complying with the federal CCR rules under a federal or
participating-state CCR permit. The aim of these revisions is to allow
a permit authority to establish permit conditions that are better
tailored to site conditions. Typically permit authorities can require
collection of any additional site data necessary to establish permit
conditions, and consequently can develop a better understanding of
individual sites than could be achieved in national risk assessments. A
refined risk record developed through the permitting process would
supersede the previous national assessments. As discussed above, the
2015 CCR Rule was based on high-end risks from across the country,
which incorporated regional or national data where site-specific data
was unavailable. Consequently, it is expected that a permit authority
may determine a set of technical requirements different than those set
forth in the national, self-implementing scheme that will achieve the
standard of ``no reasonable probability of adverse effects on health or
the environment'' and better account for the site-specific data and
risks of individual units and sites. Most provisions discussed
throughout this proposal will allow these permit authorities to provide
greater flexibility to owners or operators while ensuring there is no
reasonable probability of adverse effects on health or the environment
from the regulated units.
This is especially relevant to D.C. Circuit caselaw preserving
EPA's discretion, when supported by evidence in the record, to classify
disposal facilities, set standards for disposal, and structure closure
proceedings. In Utility Solid Waste Activities Group v. EPA, 901 F.3d
414, 425 (D.C. Cir. 2018) (``USWAG''), the U.S. Court of Appeals for
the D.C. Circuit vacated several provisions of the 2015 CCR rule that
authorized the continued operation of unlined and clay-lined
impoundments and that exempted legacy CCR surface impoundments, finding
portions of the 2015 CCR rule to be promulgated without an adequate
record to demonstrate regulatory compliance with RCRA. In particular,
the court found it ``inadequate under RCRA for the EPA to conclude that
a major category of impoundments [(i.e., unlined surface impoundments)]
that the agency's own data show are prone to leak pose `no reasonable
probability of adverse effects on health or the environment . . .
simply because they do not already leak.'' Id. at 427. In addition, the
court determined that EPA failed to ``explain how the [2015 CCR] Rule's
contemplated detection and response could assure `no reasonable
probability of adverse effects to health and the environment' at
unlined [surface] impoundments,'' as well as at ``existing impoundments
lined with nothing more than compacted soil [i.e., clay-lined surface
impoundments].'' Id. at 431. Similarly, the court found that EPA lacked
sufficient rationale to support exempting legacy CCR surface
impoundments from the 2015 CCR Rule. See id. at 432. Overall, the
court's focus on the Agency's lack of rationale to support the vacated
portions of 2015 CCR Rule does not preclude future changes to EPA's
Part 257 regulations.
Of particular note, while not relevant to the court's determination
that portions of the 2015 CCR Rule were arbitrary and capricious, the
court recognized that the WIIN Act provides EPA with ``new tools[,]''
Id. at 437, to address CCR. Most notably, the Administrator may approve
qualified state permit programs or other systems of prior approval and
conditions under State law--for regulation by the State of CCR units--
to operate in lieu of EPA regulation of CCR units in the State. See 42
U.S.C. 6945(d)(1)(B) (d)(3). This broad discretion for the
Administrator to approve state permit programs contemplates various
standards for what triggers closure, what constitutes
[[Page 18974]]
adequate protection of the environment, and the sequencing and
timeliness of closure procedures based upon a holistic review of
environmental concerns.
As stated elsewhere, the WIIN Act, 42 U.S.C. 6945(d), enhances such
flexibility as long as any state permit program or other system of
prior State approval is in full compliance with the EPA's Part 257, or
successor regulations establishing criteria, governing CCR units. 42
U.S.C. 6945(d)(6). This flexibility is unchallenged by the USWAG
decision as long as, as stated by the court, EPA's regulatory standard
for disposal of solid waste ``ensure[s] that there is no reasonable
probability of adverse effects on health or the environment.'' See
USWAG, 901 F.3d at 448-49 (``RCRA's statutory language instructs the
EPA to classify a disposal site as a sanitary landfill and not an open
dump only `if there is no reasonable probability of adverse effects on
health or the environment from disposal of solid waste at such
facility.' (emphasis omitted)); see also Id. at 437 (``[A]lthough the
WIIN Act does not affect the validity of the Rule itself, it does
provide the EPA with new tools to pursue its regulatory goals'').
Thus, USWAG is best understood as rejecting the record at issue in
that case as insufficient to defend the standards promulgated. This
leaves intact a permitting regime which, buttressed by an adequate
demonstration that the ``no reasonable probability'' standard would be
met, could still account for site-specific variability. The record
established here and through comments to this proposal may support
defining an acceptable level of leakage on a unit- or site-specific
basis. Such case-by-case analysis may enable each regulatory authority
to opt not to close facilities immediately upon monitoring revealing
risks but rather enable owners or operators to flexibly comply with an
ongoing monitoring regime which guarantees safety. This discretion is
cabined by statute and by the court in USWAG in that the Administrator
may only approve a state alternative permit program if its standards
are at least as protective as the criteria set by the EPA in its
corresponding (and successor) regulations. See 42 U.S.C. 6945(d)(1)(C);
40 CFR part 257, subpart D.
In USWAG the Court found that EPA had not adequately demonstrated
that certain parts of the 2015 regulations adequately met the statutory
protectiveness standard in RCRA 4004(a). However, that decision was
based on the record EPA used to support its 2015 CCR rule, which was
before the court at the time, and USWAG does not foreclose further
evaluation and consideration of risk in regulating in this area. See,
e.g., USWAG, 901 F.3d at 429 (``EPA has not shown that harmful leaks
will be promptly detected; that, once detected, they will be promptly
stopped; or that contamination, once it occurs, can be remedied.'')
Left intact is the interpretation of section 4004(a) as requiring a
baseline standard of protection, but not uniformity in the manner of
attainment, and EPA maintains broad discretion to adopt performance-
based criteria based on a record of protectiveness in various state
instances. The USWAG court merely found that the record then at issue
did not explain how the specific groundwater monitoring and corrective
actions proposed were sufficient to mitigate the risks proscribed by
statute.
In keeping with USWAG's admonition of the insufficient evidence and
analysis behind the 2015 CCR Rule, EPA is seeking additional comment
and record support regarding the use of evidence-based engineering
controls, institutional controls, risk assessments, hydrogeological
assessments and monitoring techniques.
Additionally, EPA solicits comment and data regarding alternative
closure timelines which holistically consider the harms posed to the
environment by standards of closure which may fail to account for site-
specific factors. The USWAG decision does not foreclose the Agency from
designing an alternative regulatory path that defines the circumstances
that would ``trigger'' a case-by-case, site-specific analysis or one
that sets a new identifiable standard to guide the Agency or a
permitting authority's judgment when operating under that path.
RCRA requires EPA to set minimum criteria for sanitary landfills
that prevent harm to either ``health or the environment.'' 42 U.S.C.
6944(a). Thus, commenters should focus on the circumstances that should
``trigger'' a case-by-case analysis and identify the case-specific
scenarios necessitating unique regulatory treatment. EPA's discretion
to incorporate such judgments into the general standard of ``no
reasonable probability of adverse effects'' remains intact. And even
post closure trigger, EPA retains discretion to determine the timing
and sequencing of closure activities based on the record support. This
proposal seeks to further facts that point to specific site-based
variations which validate and call for the flexible approach to
regulatory approval contemplated by the WIIN Act and section 257
authority, as well the interplay between the ``new tools'' created by
the WIIN Act and the changes to the ``default federal regulatory
regime,'' Waterkeeper Alliance, Inc. v. Regan, 41 F.4th 654, 662 (D.C.
Cir. 2022) that would be sufficient to meet RCRA's ``no reasonable
probability of adverse effects to human health or the environment''
standard.
E. Beneficial Use of CCR
1. May 2000 Regulatory Determination on Fossil Fuel Combustion Wastes
In 2000, EPA published a final regulatory determination that
addressed the management of fossil fuel combustion wastes under RCRA.
In this regulatory determination, the Agency concluded that regulation
as hazardous waste was not warranted for these wastes, which included
coal combustion residuals. (65 FR 32214, May 22, 2000).
The 2000 determination also specifically addressed beneficial uses
of CCR, acknowledging the significant environmental and economic
benefits these uses can provide. Beneficial uses include a range of
applications that effectively conserve natural resources and reduce
disposal costs. These included construction applications such as
cement, concrete, and wallboard, where the materials were encapsulated,
thus minimizing exposure risks. The determination also assessed
agricultural uses as lime substitutes, revealing lower risk levels than
previously anticipated, thereby supporting continued exemption. In the
2000 regulatory determination, EPA states that ``. . . we have decided
that national regulation under subtitle C or subtitle D is not
warranted for any of the other beneficial uses of coal combustion
wastes.'' (65 FR 32221, May 22, 2000)
2. Beneficial Use in the 2015 CCR Rule
On April 17, 2015, EPA finalized the 2015 CCR Rule to regulate the
disposal of CCR as solid waste under subtitle D of RCRA (80 FR 21302,
April 17, 2015). The 2015 CCR rule established national minimum
criteria for classification of solid waste disposal facilities and
practices, codified at 40 CFR part 257, subpart D.
In the 2015 CCR final rule, EPA retained the original 2000
Regulatory Determination for CCR that is beneficially used. (80 FR
21329). EPA also established in the final rule a beneficial use
definition to distinguish between beneficial use of CCR, which is not
subject to federal regulation, and the disposal of CCR, which is
subject to regulation under 40 CFR part 257, subpart D (See 80 FR
21347).
[[Page 18975]]
The beneficial use definition is comprised of four criteria: (1)
The CCR must provide a functional benefit; (2) The CCR must substitute
for the use of a virgin material, conserving natural resources that
would otherwise need to be obtained through practices such as
extraction; (3) The use of the CCR must meet relevant product
specifications, regulatory standards, or design standards, when
available, and where such specifications or standards have not been
established, CCR may not be used in excess quantities; and (4) When
unencapsulated use of CCR involves placement on the land of 12,400 tons
or more in non-roadway applications, the user must demonstrate and keep
records, and provide such documentation upon request, that
environmental releases to groundwater, surface water, soil, and air are
comparable to or lower than those from analogous products made without
CCR, or that environmental releases to groundwater, surface water,
soil, and air will be at or below relevant regulatory and health-based
benchmarks for human and ecological receptors during use. See: 40 CFR
257.53 and 80 FR 21349-54 (April 15, 2015). In addition, EPA stated in
the preamble that ``the Agency expects potential users of
unencapsulated CCR below this [12,400 ton] threshold to work with the
states to determine the potential risks of the proposed use at the site
and to adopt the appropriate controls necessary to address the risks.''
(80 FR 21353)
3. CCR Rule Litigation Related to Beneficial Use
The 2015 CCR rule was challenged by several different parties,
including a coalition of regulated entities and a coalition of
environmental organizations. See USWAG et al v. EPA, No. 15-1219 (D.C.
Cir.).
On September 13, 2017, EPA granted petitions from the Utility Solid
Waste Activities Group (USWAG) and AES Puerto Rico LLP, requesting the
Agency initiate rulemaking to reconsider certain provisions of the 2015
final rule. In light of that decision, EPA requested that the D.C.
Circuit Court of Appeals hold the case in abeyance until the Agency had
completed its reconsideration. EPA subsequently requested that the
court remand certain provisions of the 2015 CCR rule on the grounds
that the Agency was reconsidering the provisions.
Included in that remand request were two sets of provisions related
to the beneficial use of CCR: (1) The 12,400-ton threshold in the
beneficial use definition, and (2) The requirements for ``piles'' of
CCR located onsite of a utility and those that are located off-site but
destined for beneficial use. On August 21, 2018, the D.C. Circuit Court
of Appeals granted EPA's request to remand the challenged beneficial
use provisions back to EPA in order to allow the Agency to complete its
administrative reconsideration.
4. Beneficial Use in the 2019 CCR Proposed Rule
On August 14, 2019, EPA published a proposed rule titled
``Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals from Electric Utilities; Enhancing Public Access
to Information; Reconsideration of Beneficial Use Criteria and Piles''
(84 FR 40353, August 14, 2019) (2019 CCR proposal). In the 2019 CCR
proposed rule, EPA proposed to redefine the criteria for beneficial use
of CCR, shifting from a 12,400-ton mass-based numerical threshold to
specific location-based criteria as the threshold for requiring an
environmental demonstration. This location-based approach aligned with
practices observed in state beneficial use programs, which often
incorporate location-based restrictions to safeguard sensitive areas
(84 FR 40358-60). The rationale for this proposed change stemmed from
the need to accurately identify when the use of unencapsulated CCR on
the land should require further demonstration that the use does not
present a reasonable probability of adverse effects on health or the
environment. The previous mass-based threshold, which required a
demonstration for uses exceeding 12,400 tons, was based on a unit
conversion error made when evaluating data regarding landfill sizes.
EPA proposed location-based criteria to reflect siting and construction
considerations that more directly impacted environmental risks from
CCR. These criteria included factors such as proximity to groundwater,
wetlands, flood plains, and seismic zones, which were known to
influence the potential for environmental releases. The Agency also
requested comment on how these criteria would impact state beneficial
use programs.
The 2019 CCR proposal also requested comments on whether a mass-
based threshold should be retained, and if so, what the appropriate
value should be. The proposal also requested comment on the possibility
of using both mass-based and location-based criteria to trigger
environmental demonstrations for unencapsulated CCR uses, or whether
every unencapsulated use of CCR should be subject to an environmental
demonstration, regardless of size or location.
Finally, the proposal requested comment on whether the beneficial
use definition should include a requirement for notifying relevant
parties when CCR was placed on land. This requirement could involve
informing state agencies, landowners, or the public, similar to
practices in some state programs.
The 2019 CCR proposal also included proposed revisions to the
requirements applicable to piles of CCR. Under existing regulations,
CCR piles are defined as non-containerized accumulations of solid, non-
flowing CCR placed on land. This classification subjected piles of CCR
to the same regulatory criteria as CCR landfills unless they are
containerized or part of an off-site beneficial use.
In the 2019 CCR proposal, EPA proposed to unify the regulatory
mechanism for all temporary placements of CCR on land, whether onsite
or off-site, and regardless of their ultimate use for disposal or
beneficial purposes, setting the standard to control releases from
piles. The proposal aimed to provide a consistent mechanism to address
potential environmental and health issues associated with piles of CCR,
irrespective of their location or intended use, characterizing these
activities as ``storage'' rather than disposal or beneficial use. A
definition for CCR storage piles was proposed, identifying temporary
accumulations of CCR that are designed and managed to control
environmental releases.
The 2019 CCR proposal discussed how entities would need records
documenting the removal of CCR within a specific timeline and sought
comments on the feasibility of this requirement and alternative
criteria for demonstrating temporary piles. Additionally, EPA proposed
requirements to control releases from CCR storage piles. The proposal
excluded CCR stored in enclosed structures from these requirements.
5. 2020 CCR Notice of Data Availability
On December 22, 2020, EPA published a Notice of Data Availability
(NODA) titled ``Hazardous and Solid Waste Management System: Disposal
of Coal Combustion Residuals from Electric Utilities; Reconsideration
of Beneficial Use Criteria and Piles; Notification of Data
Availability'', that announced the release of new information and data
related to its proposed rule published concerning CCR (85 FR 83478,
December 22, 2020) (2020 CCR NODA). EPA sought public comments on
whether this new data could influence the Agency's
[[Page 18976]]
reconsideration of the beneficial use definition and provisions for CCR
accumulations. The Agency specifically requested comments on these two
issues and invited additional data from the public to assist with its
reconsideration. EPA clarified that it was not reopening other aspects
of the proposal, CCR regulations, or previously available support
documents. In addition to seeking public input, EPA shared information
obtained during stakeholder meetings held between May and August 2020,
which involved discussions with trade associations, utilities,
environmental organizations, and state agencies.
6. Public Comments on the Fourth Beneficial Use Criterion and CCR
Accumulations for the 2019 CCR Proposal and 2020 CCR NODA and EPA's
Decision To Repropose
The Agency received about 130,000 total comments, including
comments from a mass mailer campaign, with 60 substantively different
sets of comments, on the 2019 CCR proposal reconsidering the beneficial
use criteria and provisions for CCR accumulations. Generally, a few
state agencies and a public interest group favored the various proposed
options to revise the beneficial use criterion, but none of the options
had universal support. Some states supported eliminating the mass-based
threshold and replacing it with some of the specific location-based
criteria to trigger an environmental demonstration which should apply
to all unencapsulated uses; and an approach combining the location- and
mass-based criteria. One state also suggested that an alternative
criterion be allowed where state programs have location-based criteria
coupled with chemical constituent limits. Other states suggested
establishing a reasonable set-back distance to water supply, especially
drinking water wells, by adopting a standard similar to North Carolina,
which uses the seasonal high groundwater table. One state noted that
removing the distinction between coal ash disposal and beneficial use
could result in authorization requirements for beneficial use
activities, such as permits or registrations; and suggested the Agency
continue to encourage CCR beneficial use activities through self-
implementing environmental protections with minimal to no permit
requirements. Industry and environmental groups generally opposed the
proposal to eliminate and replace the mass-based threshold with
location-based criteria. The CCR users and utilities commented that the
proposed revisions, including having to conduct an environmental
demonstration, would discourage the beneficial use of CCR because of
perceived liability concerns and financial burdens to the beneficial
user. Industry also commented that changing to location-based standards
from a mass-based approach shifts away from the Agency's original
concern when the use of unencapsulated CCR on the land should require
further demonstration that the use was not disposal and brings in
smaller volume beneficial uses. The environmental groups commented that
the proposed location-based criteria would weaken the current
regulations by allowing any amount of unencapsulated CCR to be placed
on the land as beneficial use.
Regarding EPA's 2019 CCR proposal to unify the regulatory mechanism
for all temporary placements of CCR in piles, industry representatives,
a state agency and the Association of State and Territorial Solid Waste
Management Officials (ASTSWMO) supported consistent regulatory
treatment and a single set of requirements regardless of the location.
Regarding the requirement to control releases, utilities and CCR
users expressed concern about subjecting all piles, regardless of size,
to the same set of storage standards. However, they supported the
flexibility to choose pollution control measures that are site-specific
and appropriate for conditions at the site. In contrast, environmental
groups disagreed with this flexibility, requesting instead prescriptive
design standards, management controls and engineer certification.
Many commenters, including states, CCR users and utilities, agreed
that long-term storage of CCR in lieu of disposal should not be
allowed. Nonetheless, CCR users and utilities disagreed with the
proposed record-keeping requirements to document the complete removal
of CCR within a specific timeline. For storage sites not in proximity
to end use, the industry requested that record-keeping be limited to
gross annual receipts and shipments of CCR. For sites near working end-
use locations, such as cement kilns, concrete plants, wallboard
manufacturing facilities, commenters argued that locations should
sufficiently indicate their active status. Some states and utilities
argued that any temporal requirements should better reflect the rolling
basis of storage activities or be modeled after RCRA subtitle C
speculative accumulation requirements. Environmental groups argued for
increased enforceability and specificity through enforcement of exact
timeframes.
Regarding the enclosed structure, beneficial users argued that the
proposed definition is not workable and should be revised to enable CCR
to be received and removed easily while ensuring effective containment.
Environmental groups supported the proposed requirement for enclosed
structures but also requested additional requirements to containerize
liquids and specific requirements for fugitive dust control. They
argued that engineer certifications were also needed for enclosed
structures and that owners must be required to conduct maintenance,
inspections and repairs.
On the follow-up 2020 CCR NODA, the Agency received 33 total
comments. Several commenters resubmitted comments previously submitted
to the Agency's 2010 CCR proposal. Generally, industry groups
representing different manufacturing or production industries commented
that CCR is a valuable input--these include cement and concrete
producers, gypsum panel product manufacturers, and agricultural
sectors. Industry also commented on the absence of damage cases
associated with piles, and any beneficial use that meets the first
three beneficial use criteria, concluding the fourth criterion is
unnecessary. Environmental groups and citizens commented generally that
piles, fill, and other unencapsulated uses involving land placement and
having substantial environmental and human health impacts, can be open
dumping of CCR without applicable disposal regulations.
EPA has considered all significant and relevant comments related to
revising the fourth criterion of the beneficial use definition, and
other issues related to beneficial use, as well as comments related to
the regulation of CCR accumulations on the land that were submitted in
response to the 2019 CCR Proposal and the 2020 NODA and has taken those
comments into account in developing this re-proposal. If any commenter
believes their previous comments on the definition of beneficial use
and CCR accumulations have not been adequately addressed by this re-
proposal, EPA requests the commenter re-submit their comment to this
docket.
IV. What is EPA proposing?
EPA is proposing to amend the federal regulations governing the
disposal of CCR in landfills and surface impoundments and defining
beneficial use for CCR in 40 CFR part 257. In response to the
information EPA has received during the rulemaking for the Legacy Final
Rule and since the rule's publication, EPA is proposing several
revisions to the existing federal CCR
[[Page 18977]]
regulations, which are self-implementing or implemented under a
participating-State CCR program. Specifically, EPA is exempting CCR
dewatering structures from regulation under part 257 and modifying the
legacy CCR surface impoundment and CCRMU provisions.
Additionally, EPA is proposing to establish a new compliance
pathway that allows for site-specific considerations during permitting
for CCR units complying with groundwater monitoring, corrective action,
and closure requirements under a federal or participating-State CCR
permit. Specifically, these provisions would allow a permit authority
to make site-specific determinations regarding the appropriate point of
compliance for the groundwater monitoring system, site-specific cleanup
levels during corrective action for constituents without a federal MCL
established under Sec. Sec. 141.62 and 141.66 and referenced at Sec.
257.95(h)(1), and appropriateness of certain closure requirements while
still requiring the owner or operator to ensure the unit poses no
reasonable probability of adverse effects on human health and the
environment.
Lastly, EPA is proposing to revise the definition of beneficial use
by eliminating the requirement for an environmental demonstration for
the non-roadway use of more than 12,400 tons of unencapsulated CCR on
land, as well as proposing a definition of CCR storage pile, and
proposing to exclude specific beneficial uses from federal CCR
regulations.
In addition to the proposals above, EPA is providing notice that in
a future separate action, EPA will reopen the public comment period for
the Federal CCR permit program proposed rule entitled Hazardous and
Solid Waste Management System: Disposal of Coal Combustion Residuals
From Electric Utilities; Federal CCR Permit Program (85 FR 9940) for a
period of 30 days. The public comment period ended on that proposal on
August 7, 2020. EPA will reopen the comment period in a future separate
action under Docket ID No. EPA-HQ-OLEM-2019-0361 to provide the public
with an opportunity to provide input on whether their views of the
proposed Federal CCR Permit Program have altered in the intervening
years, for example, in light of new information or considering the
revisions proposed in this action.
A. Amendments to the Self-Implementing Regulations
As discussed in Units III.A. and III.D. of this preamble, the 2015
CCR Rule established national requirements for CCR disposal under a
self-implementing regulatory structure. Since the promulgation of the
2015 CCR Rule, the 2016 WIIN Act authorized EPA to approve State CCR
permit programs and implement a permit program for EPA to serve as the
permit authority. 42 U.S.C. 6945(d). In accordance with RCRA sections
4005(d)(3)(A) and 4005(d)(6), in the absence of a permit issued under a
participating-State program, the owner or operator of a CCR unit must
continue to comply with the self-implementing Federal CCR regulations
until a permit from a CCR permit authority (i.e., an EPA-approved State
CCR permit program or EPA) that includes these provisions is in effect.
42 U.S.C. 6945(d)(3)(A), (d)(6). For a State with an approved CCR
permit program (i.e., Oklahoma, Georgia, Texas, North Dakota), before
the State can issue a permit or permit modification for a CCR unit that
operates in lieu of the amended regulations from this rulemaking, the
State must adopt either the federal standards or alternative technical
standards that are at least as protective as the amended Federal CCR
regulations, submit an application for approval of the new provisions
to the Agency, and receive EPA approval for the new provisions. EPA
will work closely with States throughout this process to expedite
reapproval of amended provisions.
Since publication of the Legacy Final Rule, EPA received
information from numerous companies and representatives of industry
regarding the scope of the deferrals within the Legacy Final Rule, the
scope of the CCRMU universe, challenges complying with the existing CCR
requirements, and requests for regulatory changes. Based on this
information provided to EPA, as described in greater detail below, and
the conclusions described in Unit III.D., EPA is proposing several
amendments to the existing CCR requirements. Specifically, EPA is
proposing to: define and exempt CCR dewatering structures from
regulation under part 257; broaden the criteria for the closure by
removal certification for legacy CCR surface impoundments; broaden the
deferral criteria for legacy CCR surface impoundments that have
completed closure under a regulatory authority prior to November 8,
2024; amend the scope of the CCRMU regulations; and clarify the
deadline for new CCR landfills, CCR surface impoundments, and lateral
expansions to comply with the requirements to conduct background
sampling. EPA is also soliciting comment on several provisions,
including on the need to finalize the 2018 proposed performance
standard for more specific slope protection requirements for existing
and new surface impoundments.
1. CCR Dewatering Structures
EPA is proposing a definition for ``CCR dewatering structures'' at
Sec. 257.53 and making other clarifying edits to Sec. 257.53 to
explicitly state that a dewatering structure meeting this definition
would not be classified as a CCR surface impoundment or a CCRMU. During
implementation of the CCR program, questions have arisen as to the
appropriate standards that should apply to certain concrete basins used
as settling ponds for CCR.\5\ Specifically, owners or operators have
expressed uncertainty regarding whether dewatering structures are
subject to the surface impoundment requirements in the existing federal
CCR regulations and have argued that the surface impoundment
regulations are unnecessary. While EPA previously took the position
that, under the current regulations, these structures are surface
impoundments,\6\ EPA has reconsidered that position and believes that
regulation as CCR surface impoundments is inappropriate based on a
reevaluation of the risk these structures present. This proposal will
provide greater flexibility by revising the regulation to provide that
these structures: (1) Are not CCR surface impoundments and are CCR
dewatering structures as defined in this proposal and (2) As CCR
dewatering structures, are not regulated under the federal CCR
regulations.
---------------------------------------------------------------------------
\5\ PacificCorp 2025a. Letter from Brett Shakespear, Director,
Environmental Compliance and Remediation to Linda Jacobson, EPA
Region 8 RCRA Enforcement Section. Re: NEIC Civil Investigation
Report Hunter Power Plant, Castle Dale, Utah. October.
\6\ See, for example, Electric Energy, 106 F.4th 31, 42 (2024).
---------------------------------------------------------------------------
The containment structures in question are used for dewatering CCR
to enable CCR solids to be landfilled and are commonly referred to as
holding basins, scrubber drying basins, fly ash washdown basins, tanks,
or settling ponds. Under the proposed definition, CCR dewatering
structures are designed to temporarily contain an accumulation of CCR
and therefore involve storage, rather than disposal, for the purposes
of the CCR regulations. See definition of ``disposal'' in Sec. 257.53,
which states, ``For purposes of this subpart, disposal does not include
the storage or the beneficial use of CCR.'' Based on the Agency's work
with CCR, it is EPA's current understanding that the use of CCR
dewatering structures is a common
[[Page 18978]]
practice across the industry. In fact, the use of dewatering structures
is necessary if CCR is to be landfilled. The dewatering process,
including the use of these structures, plays a critical role in
efficiently managing CCR by reducing moisture content, thereby
facilitating easier handling. Dewatering typically serves as an interim
step, or steps, prior to disposal in a landfill or shipment for
beneficial use. Dewatering structures are specifically engineered to
allow for the CCR to dry and result in CCR being easier to handle when
moving to disposal in a landfill or being beneficially used. Typically,
these structures are made of concrete or other similar material. Their
purpose is to dewater wet CCR, not to serve as long-term storage or
disposal of CCR. Given this use and function, EPA is now concluding
that CCR dewatering structures are different from surface impoundments
due to the fundamental differences in their design and function.
Surface impoundments usually involve the long-term containment of
liquid waste, typically with a significant hydraulic head, which poses
a higher risk of seepage and contamination of groundwater resources.
Periodically, once sufficient dewatering has occurred, the CCR in these
structures will be removed and transported to a CCR or permitted MSW
landfill or beneficial use location--another key distinction from
surface impoundments that was not fully recognized during the prior
rulemaking. As such, clarifying the regulatory status of these
dewatering structures is appropriate in this rulemaking.
To create a clear regulatory separation between these CCR
dewatering structures and CCR surface impoundments, EPA is proposing to
create a new definition for ``CCR dewatering structures'' in 40 CFR
part 257. EPA proposes to define CCR dewatering structures as ``a
stationary device, designed to temporarily contain an accumulation of
CCR which is constructed of non-earthen materials (e.g., concrete,
steel, plastic). The device must be used primarily for dewatering CCR
waste to facilitate disposal of CCR solids elsewhere.'' Accordingly,
and to provide greater clarity, EPA also proposes to amend the
definition of CCR surface impoundment to note that a containment
structure meeting this newly proposed definition of a CCR dewatering
structure is not a surface impoundment.
In addition to more appropriately calibrating the level of
regulation that is appropriate for these structures, this proposed
change enables more owner or operators to dewater their CCR prior to
disposal (i.e. landfilling the CCR instead of disposal in surface
impoundments). The landfill in which the CCR is ultimately disposed
must meet all applicable part 257 or 258 requirements.
EPA expects this change would not produce a reasonable probability
of adverse effects on health or the environment. This expectation is
informed by a reconsideration of determinations in the initial 2014
Risk Assessment as well as EPA's understanding of the size and use of
these structures. During the 2015 CCR Rule, EPA considered related
issues which EPA has since reevaluated. First, EPA considered whether
the definition of a CCR surface impoundment should include
``temporary'' units that are not designed to hold an accumulation of
CCR such as downstream secondary and tertiary surface impoundments,
such as polishing, cooling, wastewater and holding ponds. EPA reasoned,
at the time, that those units are unlikely to ever be completely
dredged of CCR and are likely to have large quantities of CCR impounded
with water under a hydraulic head will be managed for extended periods
of time. As such, EPA concluded, these units present the same risks as
permanent disposal units. (50 FR 21357) Second, in the risk assessment
supporting the 2015 CCR Rule, EPA modeled units with concrete liners as
equivalent to unlined units because of the expectation that cracks
could lead to uncontrolled leakage and the difficulties of repairing
any issues with the concrete liner.
However, with specific real-world examples arising during
implementation, EPA is reconsidering some of these conclusions. First,
EPA notes that these conclusions do not account for the fact that
concrete containment structures would, by design and function normally
be much smaller than a CCR surface impoundment. The several examples of
CCR dewatering structures of which EPA is currently aware range from
approximately 0.02-2.2 acres in size. The average size of these
structure is 0.77 acres with thea median size of 0.4 acres.\7\ By
comparison, the average and median size of CCR surface impoundments
regulated under the 2015 CCR Rule is 54.2 and 24.0 acres, respectively.
While surface impoundments do vary widely in size, on average they are
considerably larger than a CCR dewatering structure.\8\ The smaller
amount of CCR that is accumulated in these structures along with the
lower hydraulic head resulting from the significantly smaller unit size
suggests the risk to be lower, with other conditions remaining the
same. Further, the EPA acknowledges the previous determination that
concrete containment structures were equivalent to unlined units was
not based on actual data of leakage rates from concrete containment
structures.
---------------------------------------------------------------------------
\7\ See Memo to record re: CCR dewatering structures. January
2026.
\8\ See 89 FR 38958 for a discussion of available information on
various CCR unit sizes.
---------------------------------------------------------------------------
The information available to EPA indicates these structures are
made of concrete and are enclosed on three sides with a concrete bottom
liner. The bottom liner covers the entire surface that may come in
contact with CCR containing liquid during the dewatering cycle. This
fact distinguishes these structures from unlined units or units only
partially lined with concrete (e.g., employing a concrete revetment mat
or employing only a concrete apron and vehicle ramp).
These concrete dewatering structures are designed for temporary
accumulation and are periodically dredged, and CCR removed. As
discussed above, the management practices typically conducted in these
structures would not meet the definition of ``disposal'' and no long-
term encapsulation or containment of CCR is expected to occur in these
structures. Under the proposed definition of these units, only the
temporary containment of an accumulation of CCR for ``for disposal
elsewhere'' would occur. The structures are utilized in a process step
(dewatering) critical to efficiently managing CCR by reducing moisture
content, thereby facilitating easier handling. Dewatering in these
structures serves as an interim step, or steps, prior to disposal in a
landfill or shipment for beneficial use. Dewatering structures are
specifically engineered to allow for the CCR to dry and result in CCR
being easier to handle when moving to disposal in a landfill or being
beneficially used. As such, at the end of their life no CCR should
remain in the containment structures. EPA also expects the periodic
dredging and emptying of the dewatering structures at the end of each
dewatering cycle will provide an opportunity for some visual inspection
of the structures to identify significant cracks or other failures in
the engineered structure. Based on EPA's understanding, these
distinctions suggest a lower risk for these structures than EPA
estimated in the 2014 Risk Assessment.
Additionally, EPA now also has a greater appreciation for the
various standards used in the concrete industry. For example, the
American Concrete Institute has standards and commentary
[[Page 18979]]
for concrete structures used in environmental engineering. The
standards cover the structural design, materials selection, and
construction of environmental engineering concrete structures. The
standards account for the fact that concrete structures used for
conveying, storing, or treating liquid or solid wastes are subject to
uniquely different loadings, more severe exposure conditions, and more
restrictive serviceability requirements than non-environmental building
structures.\9\ While these standards are not legally binding, they
illustrate the expertise in the concrete industry and the refinement of
concrete formulations, and methods for specific applications. Notably,
the commentary provides substantial guidance and best practices to
assure liquid-tightness of concrete structures.\10\
---------------------------------------------------------------------------
\9\ American Concrete Institute. ``Code Requirements for
Environmental Engineering Concrete Structures (ACI 350-06) and
Commentary'' 2006.
\10\ Ibid, pg. 350-3.
---------------------------------------------------------------------------
Furthermore, developments in material science have yielded
advancements in concrete technology. A 2023 review of available
literature concluded that concrete technology had undergone remarkable
advancements in the preceding decade, encompassing novel materials,
sustainable practices, durability enhancements, and advanced
manufacturing techniques. The review notes the developments offer
improved performance, sustainability, and construction efficiency. The
review also concluded that the introduction of novel materials, such as
additives, fibers, and fillers, has led to enhanced properties in
concrete, including increased strength, ductility, and crack
resistance.\11\ A 2025 study also found that self-healing concrete
formulations improve concrete structure longevity. Specifically, the
authors of the study found high crack healing efficiency in self-
healing concrete that can also extend service life of concrete
structures.\12\ Based on its experience with these industries, EPA
expects owners or operators will have incorporated recognized and
generally accepted good engineering practices in the design and
construction of these structures. Therefore, EPA likely overstated the
risks in 2014 of these comparatively small units with concrete liners.
EPA is thus proposing these containment structures be considered CCR
dewatering structures, not CCR surface impoundments and that they are
not subject to the requirements for surface impoundments in 40 CFR part
257, subpart D.
---------------------------------------------------------------------------
\11\ Ajwad, A (2023) Concrete Evolution: An Analysis of Recent
Advancements and Innovations. Fifth Conference on Sustainability in
Civil Engineering (CSCE'23) Department of Civil Engineering Capital
University of Science and Technology, Islamabad Pakistan. https://csce.cust.edu.pk/archive/CSCE_23_conference_proceedings/2023-135.pdf.
\12\ Olaboye, O. S. (2025) Advancements in Self-Healing
Concrete: Enhancing Durability and Reducing Maintenance Costs.
American Journal of Engineering Research, Vol 14 (issue 2) pp 25-34.
---------------------------------------------------------------------------
In implementation, the key to distinguishing these dewatering
structures from surface impoundments would be whether the structure in
question was: (1) Used for temporary accumulation of CCR for the
primary purpose of dewatering the CCR and (2) Built with non-earthen
materials. If the containment structure meets both criteria above, it
is considered a CCR dewatering structure under 40 CFR part 257. If not,
the structure would be a CCR surface impoundment as defined in Sec.
257.53.
To develop a more comprehensive understanding of the prevalence and
nature of structures that would meet the proposed definition of a CCR
dewatering structure, EPA is soliciting comment on the number of
structures that meet the proposed definition and their locations. EPA
specifically requests information about: (1) the location of these
structures, including the state, facility name, and precise location at
the facility, (2) specifics about the design, including if professional
engineer certified the designs, the size of the unit, and expected
operational life, (3) specifics about the construction, including the
date of construction and materials used, (4) specifics about the
materials that were used, including any relevant standards or
specifications for the material (e.g., ASTM or ACI), (5) any expected
or routine maintenance required to keep the structure operating as
intended, including specifics regarding the maintenance performed and
the frequency, and (6) specifics about the operation of these
structures (e.g., average dewatering cycle times, frequency of
inspections conducted, or any other relevant information).
Additionally, EPA requests information on the environmental regulation
and impact of these structures, including any known incidents of
leakage or contamination, state or local oversight of these units, or
monitoring or reporting mechanisms in place. Further, EPA requests
comment on what, if any, additional criteria should be incorporated
into the proposed definition of CCR dewatering structures. For example,
should the definition of CCR dewatering structure specify the structure
be completely enclosed on three sides or that the non-earthen material
have a hydraulic conductivity of no more than 1 x 10-7 cm/
sec, as required for composite or alternative composite liners for new
CCR units? See Sec. 257.70(b) and (c). Should the definition require
the unit be located in a location whereby any releases would be
detected by the facility's groundwater monitoring system (i.e., covered
as part of a multi-unit system)? Should the definition include certain
operational standards or practices that would need to be adhered to in
order to be a CCR dewatering structure, such as: routine visual
inspection of the concrete structure (i.e., at the end of every
dewatering cycle) to identify and address visually apparent cracks,
spalls, or issues with sealants and joint condition to help ensure the
liquid tightness of the concrete structure; daily inspections of
ancillary equipment (e.g., piping, valves, pumps) to help prevent
leaks, spills or overtopping caused by equipment failure or human
error; maintaining a minimum freeboard throughout the dewatering cycle
to prevent overtopping and associated potential runoff; or biennial
cleanouts of the structures including pressure washing to decontaminate
the unit and allow for more detailed inspection and repair of the
concrete slab and joints to ensure liquid tightness of the concrete and
greatly reduce the risk of leaking? EPA requests comment on whether
these operational requirements would be appropriate or necessary to
ensure no adverse effect on health and the environment as part of
exempting these units from regulation as CCR surface impoundments.
Finally, to provide as clear a definition as possible, EPA also
requests comment on the proposed definition of CCR dewatering
structure. EPA specifically solicits feedback regarding how to better
distinguish between these temporary dewatering structures and composite
lined surface impoundments, such as incorporating explicit parameters
regarding what constitutes ``temporary'' containment of an accumulation
of CCR. If so, EPA request input regarding the specifics of those
parameters (e.g., what length of time should constitute ``temporary'').
This information is anticipated to help the Agency validate or
calibrate its proposed approach (i.e., exempting these CCR dewatering
structures from Federal regulation as a CCR surface impoundment). The
Agency believes this is worthwhile given that most of the information
EPA currently has on these structures are from a relatively small
subset of facilities compared to the total universe. Gathering broader
data will help ensure that the decision in the final
[[Page 18980]]
rule considered a more comprehensive set of information.
2. Legacy CCR Surface Impoundments
Since publication of the Legacy Final Rule, EPA has received
information from States and regulated entities about the adequacy of
closures of legacy CCR surface impoundments and CCRMU completed prior
to November 8, 2024.\13\ These entities have stated that this
information demonstrates that closures performed under State oversight
are protective of human health and the environment. Therefore, EPA is
proposing to create another option in Sec. 257.100(g) for owners and
operators to certify closures of legacy CCR surface impoundments by
removal that have been completed prior to November 8, 2024 and to
expand the deferral criteria in Sec. 257.101(g) for legacy CCR surface
impoundments and CCRMU that completed closure prior to November 8, 2024
under oversight by a regulatory authority (i.e., State or federal
program).
---------------------------------------------------------------------------
\13\ This is the effective date of the Legacy Final Rule.
---------------------------------------------------------------------------
a. Certification of Closure by Removal for Legacy CCR Surface
Impoundments
EPA is proposing to establish an additional option in Sec.
257.100(g) for owners and operators to certify the closure of legacy
CCR surface impoundments by removal, provided these closures were
completed prior to November 8, 2024, under the oversight of a
regulatory authority.
The Legacy Final Rule established a pathway for legacy CCR surface
impoundments that closed by removal before November 8, 2024, allowing
them to certify and document their closure as having met the
performance standards in Sec. 257.102(c) See Sec. 257.100(g).
Successfully documented and certified closures by removal would exempt
these legacy surface impoundments from further requirements under 40
CFR part 257, subpart D. This decision was made to avoid requiring
owners or operators of legacy surface impoundments that had completed
closure in a manner that met the performance standards in Sec.
257.102(c), to comply with additional subtitle D requirements which
would not result in health or environmental benefits. Under the
regulations promulgated at Sec. 257.100(g), the following information
is required to make the certification:
The type and volume of CCR and all other materials in the
unit prior to closure;
The methods used to verify complete removal of all CCR and
other contaminated materials from the unit, including any post-removal
sampling and analysis;
Documentation that all CCR and other contaminated
materials were removed from the unit, including, the results of any
post-removal sampling and analysis that was conducted;
The methods used to verify complete decontamination of all
areas affected by releases from the unit, including but not limited to
post-decontamination sampling and analysis;
Documentation that all areas affected by releases from the
unit were decontaminated and that all groundwater affected by releases
has achieved groundwater protection standards; and
Documentation that groundwater monitoring data
concentrations of each appendix IV constituent do not exceed the
relevant groundwater protection standard, which would be either the
federal MCL or background concentration, for two consecutive sampling
events, consistent with Sec. Sec. 257.95(e) and (h). Additionally, the
owner or operator must include documentation that the system meets a
subset of performance standards at Sec. Sec. 257.91(a) through (e),
257.93(a) through (d), and 257.93(i) codified at Sec. Sec.
257.100(g)(6)(i) through (vii).
This avenue to closure by removal certification for legacy
impoundments is a viable path for some legacy surface impoundments, in
particular, units that had groundwater monitoring systems and data to
demonstrate constituent concentrations do not exceed the groundwater
protection standard established at Sec. 257.95(h). The Agency intends
for this avenue to remain in effect and is not proposing to revise this
provision. Maintaining this avenue avoids potential disruption for
owners and operators that have already made such demonstrations.
However, several public comments on the Legacy Proposed Rule
requested greater flexibility in closure by removal certification for
legacy impoundments, specifically advocating for all closures by
removal approved by a State or regulator under other authorities (e.g.,
State solid waste programs) to also qualify for certification. During
finalization of the Legacy Final Rule, EPA did not adopt this
suggestion due to a lack of documented factual and legal basis for
States' decisions, which prevented EPA from concluding that all State-
approved closures by removal posed no reasonable probability of adverse
effects on health or the environment, as mandated by RCRA section
4004(a). (89 FR 39009) While concluding all State-approved closure met
the RCRA protectiveness standard was not appropriate, EPA acknowledges
that additional flexibility in the closure by removal certification
criteria may be warranted in certain instances.
Since publication, EPA has received information from members of the
regulated community to support the expansion of the closure by removal
certification criteria and the conclusion that closure performed under
State oversight meets the RCRA protectiveness standard. Upon
reconsideration, EPA reviewed pertinent information, including public
comments on the Legacy Proposed Rule, and the information received
post-finalization of the Legacy Final Rule, including examples of
State-overseen closures in Kentucky, North Carolina, South Carolina,
and Georgia.
In Kentucky, the State's Division of Waste Management (KDWM)
oversaw the closure by removal of three legacy impoundments at the Dale
power generation facility between 2014 and 2019. KDWM approved the
closure plan, conducted at least 16 onsite inspections including three
inspections of the units to verify ``clean closure'' down to native
soils. KDWM spent over 350 hours overseeing the closure.
At Duke's Riverbend plant, North Carolina required and oversaw the
closure by removal of 5.35 million tons of CCR between 2014 and 2019.
The impoundments were dewatered, the ash excavated, and the area
regraded and seeded with grass. The State also requires annual
stability inspections, a groundwater monitoring program with over 140
wells, and a corrective action program to continue at the two now
closed legacy impoundments. EPA independently verified that North
Carolina's Coal Ash Management Act (CAMA) requires closure of all
unlined impoundments, including those at inactive facilities that would
qualify as legacy CCR surface impoundments. Further, review of publicly
available documentation from Duke Energy, the owner of all legacy
impoundments in the state, indicates the presence of state orders-on-
consent requiring corrective action for these units.
Between 2012 and 2020, South Carolina oversaw the closure by
removal of two CCR surface impoundments at the Granger facility. The
owner or operator removed all the CCR along with an additional foot of
underlying soil from both inactive impoundments. The removal of CCR
from the two impoundments was performed under the supervision of the
South Carolina Department of Health and Environmental Control (SCDHEC)
and in accordance with the requirements established by a detailed CCR
closure
[[Page 18981]]
plan also approved by SCDHEC. The closure plan also required
comprehensive soil sampling to ensure the decontamination of the
remaining soil across both impoundments. Post-closure groundwater
monitoring--required by the State--will continue until all relevant
constituents meet, and stabilize at or below, their applicable MCL, as
established by SCDHEC. EPA's own research found that the legacy CCR
surface impoundments in South Carolina are already undergoing or have
undergone closure and, if needed, corrective action consistent with the
requirements of the legacy rule.
In a fourth example of information provided to EPA regarding
closure by removal of legacy CCR surface impoundments under State
oversight, Georgia oversaw the closure by removal of an ash pond at the
Kraft plant through the State's Response and Remediation Program
between 2015 and 2021. The State approved the soil and groundwater at
the unit as protective of human health and the environment in 2021. EPA
also received comments on the Legacy Proposal that offered a few
examples of closures that the commenters believed were substantially
equivalent to closures completed in accordance with Sec. 257.102,
because they involved substantial regulatory oversight, a site-specific
risk assessment, and general consistency between the programs on the
standards to be applied. These included closures under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and an approved State's RCRA subtitle C program. Another
commenter, Duke Energy, provided a copy of a 2020 Consent Order entered
in State court governing the closure of CCR surface impoundments at
seven sites across the State. The utility also provided copies of
several human health and ecological risk assessments that were
conducted to support the State's approval of the closures, along with
various third-party reports. The commenter concluded that based on this
record, it is unnecessary to subject CCR units that closed under any
other regulatory programs to the existing closure criteria for CCR
surface impoundments in Sec. Sec. 257.101 and 257.102. While these
examples aren't specific to closure by removal, the commenters were
intending to illustrate that these other regulatory authorities provide
detailed and meaningful oversight to address risk posed by the CCR
units in a site-specific, tailored approach and therefore, additional
Federal requirements are not necessary and would not result in health
or environmental benefits.
As stated in the Legacy Final Rule, EPA agrees that closures
conducted as part of a CERCLA or RCRA subtitle C response action would
normally be expected to be consistent with the performance standards in
Sec. 257.102. The CCR closure regulations were based on the closure
regulations for hazardous waste facilities, and the CCR regulations
would normally be considered applicable or relevant and appropriate
requirements (ARARs) under CERCLA for any closure of a CCR facility
after 2015. EPA further acknowledged that these closures are not the
only closures that may be equally as protective as those conducted
under the Federal CCR requirements. (89 FR 39030).
In the Legacy Final Rule, EPA finalized requirements to monitor
groundwater to ensure the closure fully addressed any risk to the
groundwater. However, based on the information provided to EPA
regarding the level of regulatory oversight during and after these
previous closures, and the cases made by commenters regarding the
ability of permit authorities to adequately address risk in a site-
specific way, EPA now concludes that requiring groundwater monitoring
is not the only way to assess potential risk to groundwater and ensure
closures pose no reasonable probability of adverse effects to health
and the environment. For example, a State may have overseen the closure
by removal of a legacy surface impoundment and determined, based on
state legislation, risk assessments, site-specific facts, or models,
that groundwater monitoring was not necessary to conclude that the
closure did not pose a reasonable probability of adverse effects to
health or the environment. Such a unit would not be eligible to certify
the closure by removal under the current regulations. However, EPA
concludes that additional closure activities are not warranted as long
as the impacts to groundwater were considered prior to or during the
closure, even if the authority determined groundwater monitoring was
not necessary.
This pathway to closure by removal certification ensures no
reasonable probability of adverse effects on health or the environment,
in part, by requiring state oversight of previously conducted closures
by removal. State oversight of the closure by removal should ensure
that all CCR were removed from the surface impoundment and, thus, no
source of contamination would remain at the unit. This pathway thus
ensures the sources of additional pollution were eliminated. The
pathway, additionally, provides for consideration of groundwater and
state oversight of any necessary corrective action. Identified existing
contamination (i.e., that originating prior to all CCR being removed)
could be addressed by corrective action, as deemed necessary by the
state.
Therefore, based on the above considerations and information, as
well as the conclusions discussed in Unit III.D. regarding the ability
of EPA to allow for non-uniformity in attainment of the baseline RCRA
standard of protection, EPA is proposing to codify another option for
owners and operators to certify closure of legacy CCR surface
impoundments by removal at Sec. 257.100(g).\14\ Under this option,
owners or operators must demonstrate the closure was completed under
the oversight of another regulatory authority prior to November 8,
2024, the authority considered impacts to the groundwater, and oversaw
any necessary corrective action. Adding a third avenue for
certification of closure by removal for legacy surface impoundments
that have completed closure by removal under state or Federal oversight
prior to November 8, 2024, credits owners and operators' good faith
efforts to comply with closure requirements for legacy surface
impoundment imposed by other regulatory authorities prior to the Legacy
Final Rule's effective date. Additionally, this avoids duplicative
regulation that could cause uncertainty, delay, or require redoing
closure work that was approved by another regulatory authority. The
proposed change would address the state closure scenario described
above and others where a State or other regulatory authority--during
the active oversight of the legacy CCR surface impoundment closure--
determined the closure by removal would not present a reasonable
probability of adverse effects to health or the environment, even
without requiring groundwater monitoring.
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\14\ The regulations already contain two pathways for owners and
operators of legacy surface impoundments to certify closure by
removal (i.e., Sec. 257.100(g)(1)-(6) for those with available
groundwater data and Sec. 257.100(h) for those units that needed to
conduct additional groundwater monitoring). This proposal would not
affect these two existing certification avenues. The proposed third
avenue for certification of closure by removal is an additional
avenue not intended to disrupt, supersede, or otherwise alter the
two existing avenues.
---------------------------------------------------------------------------
To effectuate this change, EPA is proposing to modify Sec.
257.100(g) to provide another avenue to certify the closure by removal
for legacy surface impoundments. This proposal would not affect those
who completed the certification under the existing
[[Page 18982]]
regulations no later than November 8, 2024. If finalized, this proposal
would provide the option for an owner or operator of a legacy CCR
surface impoundment that completed closure of the CCR unit by removal
of waste prior to November 8, 2024, to complete a closure certification
that includes information regarding a regulator-approved closure by
removal and any necessary corrective action conducted pursuant to an
enforceable requirement. The documentation would need to demonstrate
that the regulator played in active role in overseeing and approving
the closure by removal, considered impacts to groundwater, and oversaw
and approved any necessary corrective action. The consideration of
groundwater impacts is important to ensure that the potential risks to
groundwater were evaluated by the State or other regulatory authority.
This may take the form of site-specific information (e.g., groundwater
monitoring data, receptor surveys, groundwater modeling, or a risk
assessment) or statewide decision that groundwater monitoring is not
necessary (e.g., state legislation stating as much). Instances of a
regulatory authority providing active oversight and approval of a
closure could include closure by removal conducted under a State or
Federal permit, an administrative order, or consent order issued on
after October 19, 2015 under CERCLA or by an EPA-approved RCRA State
program.
The October 19, 2015 date is the effective date of the 2015 CCR
Rule which established national standards for CCR management, including
closure. EPA believes this date is appropriate as the owners and
operators conducting these closures, and regulators overseeing the
closures, would have been cognizant of the Federal CCR closure
standards. Moreover, for orders issued under CERCLA after that date,
the Federal CCR management standards would have been ARARs. As such,
this date helps ensure that the closures conducted under these
alternate programs are unlikely to result in a reasonable probability
of adverse effects on health and the environment.
EPA is proposing to require the certification of closure by removal
under the oversight of a regulatory authority including the supporting
information, be completed within six months of the publication date of
the final rule, if finalized. This compliance timeframe was used for
the original closure by removal certification at Sec. 257.100(g). EPA
expects this will provide ample time for owners and operators to
prepare the necessary documentation of State oversight of their closure
by removal.
In acknowledgement of the additional information received, and to
realize the benefits described above, this proposal allows owners and
operators to rely on prior determinations of the State and other
regulatory authorities to meet the federal standards. At the same time,
due to the practical limitations and inherent uncertainty related to
the record, EPA requests comment on the adequacy of the record for this
aspect of the proposal, and, to the extent any gaps are identified,
requests suggestions for sources of additional information. As
described above, during the rulemaking for the Legacy Rule, the Agency
had received information to demonstrate that previous closure decisions
made under State or other regulatory authorities will protect human
health and the environment. Since promulgation of the Legacy Final
Rule, the Agency received additional information describing a handful
of State programs and several individual, site-specific closure
decisions. EPA requests comment on whether these closures are
representative of closures performed at other sites and in other
States. Specifically, EPA would like to know if there is additional
information the Agency should consider, or other issues of which EPA
should be aware. For example, EPA encourages commenters to submit
specific case studies or examples where State or other regulatory
authority decisions have been effective or ineffective in ensuring
protective closures. Additionally, EPA seeks empirical data or studies
that compare the effectiveness of State and federal CCR closure
requirements or information describing specific elements of State
regulatory frameworks that may differ from federal requirements and how
these differences impact closure outcomes. EPA will consider such
information submitted as it develops the final action.
Based on this additional information and the policy rationale
described above, EPA is proposing to provide an additional option for
owners and operators to certify closure of legacy CCR surface
impoundments by removal, provided they were completed under the
oversight of another regulatory authority.
Solicitation of comment. Additionally, EPA is requesting comment on
whether the proposed additional certification of closure by removal
avenue allows for legacy impoundments to have been closed under a
sufficiently broad suite of scenarios. As described above, the proposed
approach would require the owner or operator of a legacy impoundment to
submit documentation that a regulatory authority played an active role
in overseeing and approving the closure by removal and any necessary
corrective action, pursuant to an enforceable requirement issued on or
after October 19, 2015. This includes a State or Federal permit, an
administrative order, or consent order under CERCLA or by an EPA-
approved RCRA State program.
However, during the development of the proposed rule, EPA received
input from a subset of utilities requesting a broader suite of former
closures be eligible for this certification process. One utility
requested EPA to remove the requirement that the closure and any
necessary corrective action be pursuant to an enforceable requirement.
This change would allow legacy impoundments conducted under voluntary
cleanup programs to be eligible for this certification pathway. A
second utility suggested removing the stipulation that the enforceable
requirements have been issued after October 19, 2015. This would allow
for closures conducted before the existence of the 2015 CCR Rule to be
eligible for the closure by removal certification. Removing these
restrictions on when the closure and corrective action were required
and the types of programs that could have overseen the closure of these
units would come with certain tradeoffs.
Benefits of this additional flexibility would include a greater
number of legacy impoundments eligible for this certification and thus
greater regulatory certainty and continuity. Units that were closed by
removal in a protective manner--regardless of timing of the closures
and whether they were closed under a voluntary program--would not be
required to conduct additional closure activities that don't offer
additional protection or benefits. The primary disadvantage is that
some of those units closed pre-2015 and under a voluntary program may
not have been closed in a comparable manner to that required under the
Federal program and possibly with no meaningful oversight. As a
practical matter, in such scenarios, there may be less documentation
available as to the closure and corrective action activities performed.
Relatedly, there may also be less assurance that all the closures
previously conducted under such broad criteria would ensure there will
be ``no reasonable probability of adverse effects on health or the
environment.'' For example, the level of oversight under voluntary
programs may vary between States and over time. In some States, the
voluntary closure may entail significant oversight, (e.g.,
[[Page 18983]]
regulator review and approval of the closure and groundwater monitoring
plans, review of groundwater monitoring data) but not necessarily in
all States or in all time periods in which these closures were
performed. At the same time, if the owner or operator could demonstrate
there was meaningful oversight of the closure and corrective action
activities conducted (which would still be required under this
alternative), it may be reasonable to assume the closure would be
protective.
EPA requests comment on whether the Agency's proposed criteria for
State and other regulatory programs is appropriate and whether the two
suggestions from commenters described here should be finalized. EPA is
also seeking comment on specific criteria that voluntary programs
should meet for units closed under their oversight to be eligible for
this certification. The Agency also requests examples of successful
closures under voluntary programs that could inform EPA's final
decision. EPA also requests if any other documentation may be
appropriate to require to demonstrate the protectiveness of closures
conducted pre-2015 or under a voluntary program. EPA will consider
public comments and, if the comments are sufficiently supportive, may
finalize these additional closure by removal certification paths.
b. Deferral of Certain Legacy CCR Surface Impoundment Closures To
Permitting
EPA is proposing changes to Sec. 257.101(g) to expand the deferral
criteria for legacy CCR surface impoundments that completed closure of
the unit under state or federal regulatory authority prior to November
8, 2024. This expansion will allow owners and operators to rely on the
decisions of State and other regulatory authorities regarding legacy
impoundment closures conducted prior to the effective date of the
Legacy Final Rule to meet the federal standards--until the CCR
permitting authority can consider, on a site-specific basis, the need
for additional closure measures to be taken. This expansion does not
eliminate the requirements for groundwater monitoring and corrective
action of releases from the unit.
In the Legacy Final Rule, EPA finalized provisions allowing owners
and operators of legacy surface impoundments to defer compliance with
the closure performance standard until the CCR permit authority could
make a site-specific decision regarding the adequacy of the closure,
provided the owner or operator could document that the unit closure met
certain conditions. This provision allowed the permit authority to
evaluate site-specific information and determine whether a closure
performed before the effective date of the Legacy Final Rule met the
appropriate part 257 closure standards. As explained in the Legacy
Final Rule, EPA did not want to require facilities that had completed
closure prior to November 8, 2024, to ``reclose'' if the closure
conducted was protective of human health and the environment and
requiring compliance with additional subtitle D requirements would not
result in health or environmental benefits. At the time of the Legacy
Final Rule, EPA recognized that some closures would have been done in a
manner that achieved a similar outcome to the closure performance
standards in Sec. 257.102, while others would not have. At the same
time, however, EPA did not believe that it could develop nationally
applicable criteria that were sufficiently precise that regulated
entities could determine whether the alternative requirements
ultimately accomplish the same environmental goals and meet the same
performance standards as the Federal requirements. Accordingly, the
Legacy Final Rule provided the avenue at Sec. 257.101(g) for owners
and operators of legacy impoundments to defer closure determinations
until the CCR permit authority could make a site-specific decision.
Specifically, the Legacy Final Rule provided that an owner or
operator of a legacy CCR surface impoundment need not demonstrate
compliance with the closure performance standards in Sec. 257.102(c)
or (d) provided they demonstrate that the closure of the CCR unit met a
specified list of standards codified in Sec. 257.101(g). These
standards are:
(1) The owner or operator of the CCR unit must document that a
regulatory authority played an active role in overseeing and approving
the closure and any necessary corrective action, pursuant to an
enforceable requirement. This includes a state or Federal permit, an
administrative order, or consent order issued after 2015 under CERCLA
or by an EPA-approved RCRA state program.
(2) The owner or operator of the CCR unit must document that the
regulatory authority required or conducted a site-specific risk
assessment prior to (or as part of) approving the closure and any
necessary corrective action.
(3) The owner or operator of the CCR unit must document that it
installed a groundwater monitoring system and performed groundwater
monitoring that meets all of the following:
(i) Was capable of accurately representing background water
quality;
(ii) Was capable of accurately representing the quality of water
passing the waste boundary;
(iii) Was capable of detecting contamination in the uppermost
aquifer; and
(iv) Monitored all potential contaminant pathways.
(4) Must document that the closed unit meets either:
(i) The performance standard in Sec. 257.60; or
(ii) The performance standard in Sec. 257.102(d)(2)(i).
(5) The owner or operator must also include a certification
statement as to the veracity of the information.
These standards are intended to ensure protectiveness at least
until the time a permit authority could evaluate the closure on a site-
specific basis to determine if the closure is as protective as those
conducted in accordance with Sec. 257.102. The existing provisions
require the owner or operator to submit a permit application to the
permit authority with sufficient information, including groundwater
data, to demonstrate the applicable closure standards had been met.
Under the existing regulations, the permit authority will then review
the information to determine whether the ``equivalency'' of the closure
has been successfully demonstrated. If EPA or a Participating State
Director determines that the closure has met the appropriate part 257
closure standard, the permit authority will issue a permit to require
compliance with applicable post-closure requirements. If the permit
authority determines that the closure does not meet the appropriate
part 257 standards, the owner or operator will be required to submit a
complete permit application and obtain a permit that contains the
specific requirements necessary for the unit to achieve compliance with
the closure requirements at Sec. 257.102.
During the Legacy Rulemaking, EPA received public comment arguing
that state programs had become significantly more robust over the past
couple of decades, especially, since 2015 when EPA last conducted a
review of state programs. For example, Duke Energy provided information
on North Carolina's CCR program. The utility claimed that there are no
gaps within the state program including with respect to legacy surface
impoundments. Duke Energy further stated that the state's groundwater
rules establish robust groundwater monitoring and corrective action
programs. The company went on to describe aspects of the state's
program that, it argues, as applied to
[[Page 18984]]
two of its facilities, (i.e., the Riverbend and Cape Fear facilities),
results in stringent oversight by North Carolina Department of
Environmental Quality (NCDEQ).
Specifically, Duke Energy notes that with respect to Riverbend, the
state's Coal Ash Management Act (CAMA) prescribed the closure method
(i.e., closure by removal), Sess. L. 2014-122, Sec. Sec. 3.(b)(2),
(c)(1), (2), and mandated that impacted groundwater be restored in
accordance with the act's groundwater assessment and corrective action
provisions. As for Cape Fear, the utility notes that CAMA required
closure plans for all the company's impoundments not already subject to
closure by removal under the legislation, including the basins at Cape
Fear. N.C.G.S. Sec. 130A-309-214(a)(4). The utility proceeded to
describe many aspects of the program suggesting that the closure plans
are comprehensive and subject to significant regulatory oversight and
public participation. The key assertions are as follows:
The closure plans, among other things, require the results
of a hydrogeologic, geologic, and geotechnical investigation of the
site; the results of groundwater modeling of the site; a description of
the provisions for disposal of wastewater and management of stormwater;
a description of the provisions for the final disposition of the CCR;
and a description of the plan for post-closure monitoring and care for
an impoundment for a minimum of 30 years.
The closure plan approval process includes public
participation components involving public notice and comment and public
meeting(s) in county(ies) in which the site is located. After an
opportunity for public comment, NCDEQ makes the final determination as
to the protectiveness and adequacy of the closure plan.
The utility goes on to state that NCDEQ's Coal Combustion Residuals
Surface Impoundment Closure Guidelines for Protection of Groundwater
also sets out robust requirements to establish conformance with the
state's closure-by-removal performance standards. Duke Energy notes
that the guidelines establish clean-up levels commensurate with site-
specific background concentrations. For soil, the clean-up level is
either the site-specific background concentration or the lowest soil
screening level protective of groundwater. To develop soil remediation
goals and corresponding clean-up levels, facility owners or operators
must develop an excavation soil sampling plan for each site and submit
it to NCDEQ for a determination of whether the plan is sufficient in
scope to meet the performance standards for closure. Determinations
that CCR removal is complete, according to Duke Energy, rely on a
visual confirmation that all CCR and commingled CCR and soil have been
removed based on sampling of the material and analysis under polarized
light microscopy utilizing American Standards for Testing and Measures
D2488, Standard Practice for Description and Identification of Soils
(Visual--Manual Procedure).
EPA's independent examination of state CCR programs applicable to
legacy units did find that North Carolina's Coal Ash Management Act
(CAMA) requires closure of all unlined impoundments, including those at
inactive facilities that would qualify as legacy CCR surface
impoundments. Further, review of publicly available documentation from
Duke Energy, the owner of all currently identified legacy CCR surface
impoundments in the state, indicates the presence of state orders-on-
consent requiring corrective action for these units. All potential
legacy CCR surface impoundments in North Carolina have been or are in
the process of closure.
Since publication, several owners and operators of CCR units have
provided EPA with additional information they believe demonstrates the
adequacy of CCR unit closures performed under the oversight of other
regulatory authorities (e.g., state programs). For example, according
to Vistra Corp, the Illinois EPA (IEPA) oversaw the closure of a former
CCR surface impoundment at the shuttered Havana Power plant. The unit
was dewatered and closed in December 1993, under a corrective action
plan overseen by IEPA. Surficial water was removed and a three-foot
thick cover of soil with vegetation was installed. Groundwater data
provided by the utility showed a reduction of boron concentration and
compliance with the groundwater standards. At the former Hennepin Power
plant in Illinois, another legacy surface impoundment was closed under
IEPA oversight. According to Vistra Corp, surficial water was removed,
and the unit has been subject to groundwater sampling since 1996.
Initial sampling demonstrated exceedances of the boron groundwater
standard. In 2020, a final cover system was installed pursuant to the
federal CCR rule, consisting of a compacted soil barrier layer with a
minimum of 24 inches of earthen material with a maximum permeability of
1 x 10-7 centimeters per second. The utility states that in
limited areas, CCR may be saturated with groundwater during higher
flood events of the Illinois River. Vistra Corp contends that the
groundwater data demonstrates that simply dewatering and taking this
unit offline resulted in significant decreasing trends in boron since
1996, with several wells achieving compliance with the groundwater
standard for boron well before the cover system was installed. Further,
the utility suggests that the modeling conducted demonstrates that
boron concentrations are expected to continue the downward trend even
though some ash is saturated with groundwater.
Another utility, Tennessee Valley Authority (TVA), provided EPA
with information about Tennessee's CCR program. TVA explained that this
information suggests that site-specific human health and ecological
risk assessments conducted in the program follow EPA protocols.
According to the information provided, the risk assessments have found
that there are no unacceptable risks related to CCR management
identified for all receptors at most sites. Additionally, the utility
stated that potential risk to future workers, where identified, would
be mitigated by health and safety protocols. TVA explained that the
information provided also speaks to how the state handles closure and
corrective action. The state's closure decisions factor in ongoing
operations, planned extraction of CCR for beneficial use, risk
assessment results, qualitative impacts, and stability assessments.
Tennessee's corrective action program incorporates risk assessment
results and statistical evaluation of groundwater sampling data to
assess regulatory requirements. TVA further explained that no
corrective actions have been identified to address unacceptable risks,
but localized groundwater corrective actions are required at some units
to meet the groundwater protection standards.
The utility also provided specifics about the Tennessee-approved
closures at the former John Sevier Fossil Plant. TVA stated that the
information speaks to how the state closure and corrective action
requirements will control and minimize infiltration, reduce flux from
pore water and achieve compliance with groundwater protection
standards. Post-closure care requirements are intended to maintain
these conditions and the controls in place. The utility contended that
the cumulative result is that there will be no unacceptable risks to
offsite human or ecological receptors at the facility.
In a third example of relevant information provided to EPA since
promulgation of the Legacy Final Rule, Xcel Energy shared details of a
[[Page 18985]]
previously conducted closure under the authority of the state of
Minnesota. At the Black Dog Plant, the coal-fired generating units
ceased operating in April 2015 and disposal of CCR in the onsite units
ceased prior to October 19, 2015. The units were certified closed in
February 2017. The utility contends that this is an example of a site
that was successfully remediated under a rigorous state program and
meets acceptable risk criteria. Xcel Energy further states that the
quantities of CCR that remain onsite were subject to an extensive site
evaluation, risk assessment and the implementation of state-approved
remedial action that supported the conclusion that the site is not
adversely impacting human health or the environment.
The utility provided documentation of the closure and the state's
oversight including the risk assessment conducted, the state-approved
remedial action plan, state-approved long-term monitoring plan, and the
closure certification. The documentation provided suggests that, in
total, the closure involved the removal of 117,300 cubic yards of CCR
and impacted soils and the import of 717,000 cubic yards of clean fill
material. At the ponds where removal of all non-native materials
(including CCR) wasn't conducted, a 4-foot cap of clean imported fill
material was utilized. Additionally, groundwater monitoring was
conducted before and after the remedial action. The site now features a
bike path along the Minnesota River.
EPA intends to maintain the general procedures in the existing
regulations, whereby owners and operators of legacy surface
impoundments may defer compliance with the CCR unit closure standards
until a site-specific decision is made by the permit authority on the
equivalence of the previously conducted closures. However, based on the
information above as well as the considerations discussed in Unit
III.D. regarding the benefit of regulatory oversight (i.e., allowing a
permit authority to evaluate risk and determine requirements based on
site-specific considerations), the new tools provided to EPA as part of
the WIIN Act, and the ability of EPA to allow for non-uniformity in
attainment of the baseline RCRA standard of protection, EPA is
proposing to modify Sec. 257.101(g) to expand the deferral criteria.
Specifically, EPA proposes to adjust the deferral criteria by removing
three of the standards that currently must be met to be eligible for
the deferral. EPA is proposing to remove: (1) The detailed technical
requirements for a groundwater monitoring system, (2) The requirement
that a facility document that the legacy CCR surface impoundment
currently meets either the location standard in Sec. 257.60 or the
dewatering standard in Sec. 257.102(d)(1)(i), and (3) The requirement
that the regulatory authority conducted a site-specific risk
assessment. EPA is instead proposing that the owner or operator would
need to document that a regulatory authority played an active role in
overseeing and approving the closure and any necessary corrective
action, pursuant to an enforceable requirement issued on or after
October 19, 2015, a groundwater monitoring system was installed, and
groundwater monitoring was performed. The owner or operator would need
to also provide the same certification as to the veracity of the
documentation currently required under Sec. 257.101(g)(5).
EPA anticipates that this amendment will lead to an increase in the
number of closed legacy impoundments eligible for deferral. As a
result, fewer legacy surface impoundments will be required to undertake
additional closure activities before the CCR permit authority
determines that such actions are indeed necessary. It is worth noting
that all legacy surface impoundments eligible for the deferral would
still, at the time of permitting, be required to submit a permit
application with sufficient information, including groundwater data, to
demonstrate the applicable closure standards had been met. In the
meantime, the unit would be subject to groundwater monitoring and
corrective action in the event any problems are identified that require
remedial action. The CCR permit authority would then make a final
determination as to whether the previously conducted closure achieved
the applicable performance standards established in the Federal CCR
regulations.
The proposed amendment ensures that previous decisions made by
state or federal regulators remain unaffected until the CCR permitting
program can conduct site-specific evaluations. This approach allows for
greater continuity in the short term and ensures EPA does not require
compliance with additional subtitle D requirements that may not result
in benefits to human health or the environment unless and until it is
determined that additional closure activities are indeed necessary.
Furthermore, this change allows for greater implementation resources to
be directed to site-specific permitting to address risks and away from
evaluating compliance with a more complex set of deferral criteria.
Finally, adding this flexibility comes with relatively little tradeoff.
Most of these legacy CCR surface impoundments have been in place for
decades. More recently, these units were closed under the oversight of
a regulatory authority and now have controls in place to reduce risk.
Delaying potential compliance with the federal closure requirement for
a comparatively short period of time until a site-specific examination
of the units and their completed closure can be completed by a permit
authority is unlikely to significantly change the environmental
conditions or risks at these facilities. The risk associated with the
deferral is further attenuated by the ongoing requirement for
groundwater monitoring and corrective action. While the units were
already closed once under the oversight of a state or other authority
and so environmental controls may be in place, if the unit contaminates
groundwater, the groundwater monitoring system would identify it. The
corrective action requirements would then require remediation to ensure
no adverse effects to health and the environment.
At the time of permitting, the permitting authority would evaluate
the unit more closely--with the benefit of site-specific information--
to determine the ``equivalence'' of closure conducted under the state
or alternate authority. EPA is not proposing to revise this process
established under Sec. 257.101(g)(6). At this stage, additional
closure and/or post-closure requirements may be imposed by the
permitting authority to achieve compliance with the Part 257
regulations including the closure performance standard. As such, the
unit will ultimately achieve compliance with the Federal closure
performance standard--just under the oversight of a permitting
authority, rather than under a self-implementing framework.
Therefore, EPA is proposing that owners or operators of legacy CCR
surface impoundments that have completed a closure prior to November 8,
2024, where a regulatory authority played an active role in overseeing
and approving the closure and any necessary corrective action, pursuant
to an enforceable requirement issued on or after October 19, 2015; a
groundwater monitoring system has been installed; and groundwater
monitoring has been performed would be eligible to defer compliance
with the applicable closure performance standard until permitting. The
owner or operator would need to document they meet the criteria in an
owner-or-operator certified report. EPA is proposing to require this
documentation be completed within six months of the effective date of
the rule,
[[Page 18986]]
if finalized. This compliance timeframe was used for the original
deferral certification at Sec. 257.101(g). EPA expects this will
provide ample time for the owners and operators to prepare the
necessary documentation.
Solicitation of comment. EPA is also soliciting comments on an
alternative to this proposal that would allow owners and operators of
legacy surface impoundments to defer compliance with the closure
performance standard until the CCR permit authority can make a site-
specific determination regarding the 'equivalence' of the previously
conducted closure. Specifically, EPA is soliciting comment on potential
changes to Sec. 257.101(g) to expand the deferral criteria for legacy
CCR surface impoundments to owners and operators that completed closure
of the unit under state or federal regulatory authority prior to
November 8, 2024, where a regulatory authority played an active role in
overseeing and approving the closure and any necessary corrective
action, pursuant to an enforceable requirement issued on or after
October 19, 2015. In this alternative, installation and operation of a
groundwater monitoring system would not be required for an owner or
operator to avail themselves of the deferral. This alternative approach
would solely require that the owner or operator document that the
closure of the unit, and any necessary corrective action, was actively
overseen by a regulatory authority to qualify for the deferral.
However, under this alternative, the same information as required under
the proposed option would be required at the time of permitting.
EPA expects this option would allow a greater number of additional
units to qualify for the deferral than the proposed approach. Similar
to the proposed approach, all units for which closure decisions were
deferred to permitting, would be required to comply with the
groundwater monitoring, corrective action, and any applicable post-
closure requirements at least until a permit authority permits the
unit. The advantages of this alternative approach are the same as for
the proposed approach but would likely be realized at a greater number
of units. Much like the proposed approach, this alternative approach
would ensure that previous decisions made by State or Federal
regulators remain unaffected until the CCR permitting program can
conduct site-specific evaluations. This alternative approach would also
allow for greater continuity in the short term and would ensure EPA
does not require compliance with additional subtitle D requirements
that may not result in benefits to human health or the environment
unless and until it is determined that additional closure activities
are indeed necessary.
The disadvantage of this approach, relative to the proposed
approach, is that it may result in delays and a greater burden on the
CCR permit authority to determine the protectiveness of the completed
closure without historic groundwater monitoring data for the units in
question. Additionally, deferring compliance with the existing closure
performance standards at a greater number of units until permitting,
may result in a greater potential for adverse effects on human health
or the environment in the interim at a greater number of facilities.
Those potential impacts may be exacerbated by delays in permitting if
more closure ``equivalency'' determinations are deferred to permitting
and there isn't sufficient groundwater monitoring data to evaluate the
protectiveness of the completed closures in a timely manner.
However, as noted and described above, EPA received information
during the Legacy Rule development and since finalization from
utilities and trade groups arguing that CCR unit closures performed
under the oversight of other regulatory authorities (e.g., state
programs) are adequate. This information includes several examples of
unit specific closures with oversight from state or other regulatory
programs. Additionally, the descriptions of the regulatory programs
provided to EPA note that risk assessments were conducted, the
regulatory authorities conducted a variety of oversight activities, and
groundwater monitoring and corrective action were required to help
ensure the closures remain protective. Moreover, it's worth noting that
these units would still be subject to the groundwater monitoring,
closure and any necessary corrective action and post-closure care
requirements. See Sec. 257.100(f). As such, EPA is taking comment on
this alternative approach and, if supported by sufficient factual
comments, may finalize this approach.
If EPA were to finalize this approach, EPA would amend the criteria
for deferral in Sec. 257.101(g) to consist only of documentation that
a regulatory authority played an active role in overseeing and
approving the closure and any necessary corrective action, pursuant to
an enforceable requirement, and the certification as to the veracity of
the information. Specifically, EPA would remove the existing criteria
in Sec. 257.101(g)(2) through (4). The process for the CCR permitting
program to make the ``equivalence'' determination or establish
additional requirements for the legacy impoundment would remain
unchanged.
Additionally, due to the practical limitations and inherent
uncertainty related to the record, EPA requests comment on the adequacy
of the record for the proposal and the alternative option upon which
EPA is soliciting comment and, to the extent any gaps are identified,
requests suggestions for sources of additional information. As
described above, during the rulemaking for the Legacy Rule, the Agency
had received information to demonstrate that previous closure decisions
made under state or other regulatory authorities will protect human
health and the environment. Since promulgation of the Legacy Final
Rule, the Agency received additional information describing a handful
of state programs and several individual, site-specific closure
decisions. In acknowledgement of the additional information received,
and to realize the benefits described above, this proposal offers
greater deference to the state and other regulatory authorities that
made these closure decisions previously. EPA expects that those
authorities would not have approved of closures that presented a
reasonable probability of adverse effects to human health and the
environment.
However, the Agency lacks a record that unequivocally demonstrates
that all closure decisions made by other regulatory programs will be
similarly protective--in the near term--as applying the Federal CCR
closure requirements immediately. Such a record would consist of a
detailed review of all state CCR programs as well as other relevant
regulatory programs that may have overseen legacy CCR unit closures.
This review would need to provide a detailed understanding of the
programs at the points in time the relevant closure decisions had been
made. At present, EPA has information on a handful of state programs
and several site-specific closure decisions. While meaningful, this
information doesn't speak to every previous closure decision that had
been made. For example, even for closures conducted under voluntary
programs, the level of oversight of those programs may vary between
states. In some states, the voluntary closure may entail significant
oversight, (e.g., regulator review and approval of the closure and
groundwater monitoring plans, review of groundwater monitoring data)
but not necessarily in all states. EPA will consider such information
submitted as it develops the final action.
[[Page 18987]]
3. CCR Management Units
In the Legacy Final Rule, EPA established requirements to address
the risks from exempt solid waste management that involves the direct
placement of CCR on the land. EPA extended a subset of the existing
requirements in 40 CFR part 257, subpart D to these units, which are
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. These additional
requirements apply to all active CCR facilities, all inactive
facilities with legacy CCR surface impoundments, and those active
facilities (i.e., facilities producing electricity for the grid as of
October 19, 2015) that ceased placing CCR in onsite CCR units prior to
the effective date of the 2015 CCR Rule (``other active facilities'').
In the preamble to the Legacy Final Rule, EPA discussed the
rationale of the definition of ``CCR management unit'' and the scope of
what would be considered a CCRMU under the final rule. See 89 FR 39044-
39051. EPA finalized this definition based on damage cases, the 2024
risk assessment, and comments received on the Legacy Proposed Rule.
Many of the Legacy Proposed Rule comments argued that the definition of
CCRMU is overly broad and treats many different disposal areas as a
worse-case scenario. Commenters further stated that the scope of the
CCRMU universe ignores the risk profiles of different historic disposal
areas and forces actions not tailored to the specific units. The
comments also said a one-size-fits-all approach to CCRMU does not make
sense given the widely variable risk profiles within this newly defined
category of regulated units.
In 2025, EPA received several letters from the regulated community,
including a coalition of regulated entities,\15\ USWAG,\16\ National
Rural Electric Cooperative Association (NRECA),\17\ Cross-Cutting
Issues Group (CCIG),\18\ Edison Electric Institute (EEI),\19\ American
Electric Power (AEP),\20\ PacifiCorp,\21\ Talen Energy via the National
Energy Dominance Council,\22\ and others that recommended changes to
the CCRMU requirements. The letters suggested these changes were
supported by several critiques of the Legacy Final Rule and the 2024
Risk Assessment, and recent Executive Orders, including
``Reinvigorating America's Beautiful Clean Coal Industry and Amending
Executive Order 14241'' (April 8, 2025).
---------------------------------------------------------------------------
\15\ Duke Energy et al 2025. Letter co-signed by Duke Energy,
Vistra Corp, Lower Colorado River Authority, City Utilities of
Springfield, Southern Illinois Power Cooperative, Gavin Power, Talen
Energy, Basin Electric Power Cooperative, Ohio Valley Electric
Corporation, Indiana-Kentucky Electric Corporation, and Louisville
Gas and Electric Company-Kentucky Utilities Energy to Lee Zeldin,
EPA Administrator. RE: Coal Combustion Residuals Rules Impede U.S.
Energy Production. January.
\16\ USWAG 2025a. Letter from Daniel L. Chartier, Executive
Director, Utility Solid Waste Activities Group to Lee Zeldin, EPA
Administrator. Re: Actions for Regulations for CCR. January.
\17\ NRECA 2025. Letter from Jim Matheson, Chief Executive
Officer, National Rural Electric Cooperative Association to Lee
Zeldin, EPA Administrator. January.
\18\ CCIG 2025. White paper reflecting Recommendations Updating
the Federal CCR Regulations. Cross-Cutting Issues Group. June.
\19\ EEI 2025a. Comments on Site-Specific Closure Alternative
Performance Standard. Edison Electric Institute. June.
\20\ AEP 2025. Meeting handout to EPA's Office of Land and
Emergency Management. American Electric Power. RE: Legacy CCR Rule
Reform Regulations. June.
\21\ PacifiCorp 2025. Letter from James Owen, Vice President of
Environmental and Energy Resources, PacifiCorp to EPA Region 8. RE:
PacifiCorp Priorities in EPA Region 8 States. April.
\22\ NEDC 2025. Comments from NEDC with CCR Reform Guiding
Principles. National Energy Dominance Council. August.
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In many letters, the authors recommended rescinding the CCRMU
provisions. In other letters, regulated entities recommend that EPA
narrow the scope of CCRMU provisions and clarify certain requirements.
Some commenters recommended that EPA: (1) Eliminate the requirement to
identify CCRMU containing less than 1,000 tons of CCR; (2) Increase the
CCRMU deferral threshold from 1,000 tons to an alternative quantity
associated with acceptable beneficial use or to risk-based criteria for
stability, groundwater, and dust; (3) Exempt past beneficial use
placements and critical infrastructure sites; (4) Exempt areas of CCR
accumulation regulated by State agencies, including units closed in
accordance with State programs; (5) Establish a baseline to identify
potential CCRMU (e.g., facilities operating after a certain date); (6)
Establish options to exempt areas listed in the Facility Evaluation
Report (FER) as a CCRMU if the CCR material is removed from that area
within a specified time period (e.g., an area is exempt if the CCR is
removed with one year of the FER Part 2 being published; and (7) Limit
the CCRMU definition to past placements that pose identified present
risks.
In response to the information presented in the above letters and
based on the limitations of a national risk assessment, including the
2024 Risk Assessment, as discussed in Unit III.D. of this preamble, EPA
is proposing to rescind all CCRMU requirements. In the alternative, EPA
is soliciting comments on several potential revisions to the existing
CCRMU regulations. Each of these potential revisions is intended to
address one or more of the issues discussed above. Although the
potential revisions are not intended to be mutually exclusive (i.e.,
EPA may adopt several of them in the final rule), a single revision may
address multiple issues. Consequently, it may not be necessary to adopt
all the potential revisions to address all the issues that have been
raised to the Agency. EPA therefore requests comment on whether all the
various revisions discussed in Unit IV.A.3.b. of this preamble are
necessary or useful. Commenters are encouraged to consider the combined
effect of individual revisions in developing their comments. EPA also
requests that, if commenters believe that individual alternatives would
address the same issue, they provide views on whether (and why) one
alternative is preferable.
Lastly, given that EPA may adopt one or more of the options
discussed in Unit IV.A.3.b. of this preamble, EPA solicits comments on
the appropriate scope of the FER given the commenter's preferred
option(s). As explained in Unit III.C. of this preamble, the FER Part 1
documents the thorough review of readily and reasonably available
records regarding where CCR was either routinely and systematically
placed on land, or where facility activities otherwise resulted in
measurable accumulations of CCR on land. The FER Part 2 documents the
conclusions of a physical evaluation of the facility to address any
data and information gaps identified in FER Part 1. Together, the FER
Parts 1 and 2 are intended to provide a complete picture of the
historic use, placement and the status of CCR at the facility,
ultimately identifying any CCRMU of 1 ton or greater onsite. The FER
Part 1 requirements regarding record review were based off EPA's
understanding of what documentation would potentially hold information
about historic placements that would meet the definition of CCRMU.
However, EPA acknowledges that if the scope of the CCRMU universe is
modified, the FER requirements, specifically with respect to review of
readily and reasonably available records regarding where CCR was either
routinely and systematically placed on land, or where facility
activities otherwise resulted in measurable accumulations of CCR on
land, may warrant modification too. Therefore, EPA solicits comment on
the
[[Page 18988]]
appropriate scope of the FER requirements as they are impacted by the
options described below.
a. Rescind All CCR Management Unit Requirements
In response to the letters and requests that EPA has received since
January 2025 and based on the limitations of a national risk
assessment, including the 2024 Risk Assessment, as described in Unit
III.D. of this preamble, EPA is reconsidering its decisions to regulate
CCRMU. As stated above in Units III.D. and IV.A.3. of this preamble,
EPA received questions about the risk assessment and other comments
after the publication of the Legacy Final Rule that said the definition
of CCRMU is overly broad.
Some of the information EPA received after publication of the 2024
Legacy Rule suggests that EPA should rescind the CCRMU requirements and
is intended to show the infeasibility of the CCRMU requirements. CCIG
provided specific examples of this infeasibility in their letter dated
June 6, 2025,\23\ including rail embankments or railroad roadbed
constructed with CCR components that would pose logistical challenges
for groundwater monitoring, CCR used as drainage layers above composite
liners, CCR used in embankments, CCR used to construct over 10 miles of
road at the facility, previously closed surface impoundments below
plant infrastructure, an active landfill on top of a previously closed
unit, CCRMU under a natural gas pipeline, CCR used as fill for the
construction of the facility that processes and encapsulates CCR for
beneficial use, and units that were near closure but would be
considered CCRMU. CCIG also said that requiring the removal and
replacement of the wide range of uses of CCR that fall under the broad
CCRMU definition, including those described above, will end up causing
cascading issues that potentially could impact reliability, force the
use of virgin resources, and impose burdensome, unnecessary costs on
energy companies and their customers. Therefore, based on the reasons
above CCIG recommended EPA rescind the CCRMU requirements. Other
commenters stated that rescinding the CCRMU provisions was justified as
the court in the 2018 USWAG decision only required regulation of legacy
CCR surface impoundment and not CCRMU. Many of these letters also state
that CCRMU should be ``eliminated'' because: (1) The record has not
been fully developed to support regulating CCRMU, and (2) Significant
compliance costs outweigh any potential benefits to address unproven
risks. Several of the entities also claim the CCRMU regulations impose
infeasible, impracticable, and overly burdensome requirements on energy
companies with significant costs that would eventually be placed on
consumers.
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\23\ CCIG 2025. White paper reflecting Recommendations Updating
the Federal CCR Regulations. Cross-Cutting Issues Group. June.
---------------------------------------------------------------------------
Other letters stated that EPA's 2024 Risk Assessment does not
support the overly broad CCRMU definition or demonstrate that all CCRMU
pose a reasonable probability of adverse effects on health or the
environment. The letters noted that the national risk assessment was
based on high-end risks and did not accurate capture the variability of
risk posed by units at many facilities. The authors conclude that EPA's
Risk Assessments systematically overstate the risk from CCR disposal
units and fills, and that it would be more effective and appropriate to
assess risks on a site-specific basis. Furthermore, the commenters
state that EPA did not justify the CCRMU regulations through a proper
risk assessment.
As explained in Unit III.D. of this preamble, EPA uses a national
risk assessment for a particular source or industry category to inform
its decision concerning whether a regulatory program is needed or in
need of revisions. Both the 2014 and 2024 Risk Assessments were
designed to capture the full spectrum of potential disposal scenarios
across the country with available data and decisions about the need for
national regulations were based on high-end risks identified from
across these scenarios, considered together with proven damage cases,
to ensure that regulations would be consistently protective. The Agency
acknowledges that these high-end risks may not manifest at every site
and concurs that risks associated with individual CCR units may be
lower. This is equally true for disposal units, fills, piles, and
unencapsulated accumulations on the land for any other stated purpose.
In addition, EPA is proposing to find the current definition of
CCRMU is overly broad, capturing units that under this proposal would
not involve ``disposal.'' Specifically, EPA's proposed changes
affecting beneficial use and storage of CCR would result in the
existing definition of CCRMU encompassing some units that do not
involve ``disposal'' as defined Sec. 257.53. As explained in more
detail in Unit IV.C., EPA is proposing to revise the definition of
beneficial use to eliminate the distinction between on-site and off-
site activities, and to eliminate the definition of a CCR pile. If
those proposals are adopted, the current definition of a CCRMU as
``area of land on which any noncontainerized accumulation of CCR is
received, is placed, or is otherwise managed,'' would also capture CCR
storage units and beneficial use projects (other than roadbed and
associated embankments, which are explicitly excluded from the
definition) and consequently would not involve the disposal of CCR. See
definition of ``disposal'' in Sec. 257.53, which states ``For purposes
of this subpart, disposal does not include the storage or the
beneficial use of CCR.''
EPA acknowledges that this is a change in position from previous
statements in the 2024 CCR Legacy Rule, which stated that direct
placement of CCR on the land onsite of a utility, with nothing to
control releases is, by definition, a CCR pile and therefore not
beneficial use (while, in contrast, CCR that is beneficially used off-
site is not a CCR pile), and then further referenced statements from
the 2015 CCR Rule that CCR piles constitute disposal and are
consequently subject to all regulatory criteria applicable to CCR
landfills. (89 FR 39050).
However, as explained in more detail in Unit IV.C., EPA's proposed
revisions would ensure consistency and clarity across all settings in
accurately identifying which practices are beneficial use or storage,
and not disposal.
Finally, EPA finds that the existing definition of CCRMU runs afoul
of several recent executive orders: Executive Order 14154 ``Unleashing
American Energy,'' 90 FR 8343 (January 29, 2025); Executive Order 14156
``Declaring a National Energy Emergency,'' 90 FR 8433 (January 30,
2025); and Executive Order 14219 ``Ensuring Lawful Governance and
Implementing the President's `Department of Government Efficiency'
Deregulatory Initiative,'' 90 FR 10583 (February 25, 2025). EPA is
proposing to rescind the CCRMU provisions consistent with those
directives.
Therefore, based on the information above, along with the
conclusions stated in Unit III.D. of this preamble, EPA is proposing to
remove the CCRMU regulations from 40 CFR part 257, subpart D. In
particular, EPA is proposing to amend or remove the following
regulatory text sections, such that CCRMU are no longer units regulated
under 40 CFR part 257: Sec. Sec. 257.50(d); 257.53: definitions of
``CCR management unit'', portion of ``CCR unit'', ``Closed prior to
October 19, 2015'', ``Critical infrastructure'',
[[Page 18989]]
``Inactive CCR landfill'', and ``Regulated CCR unit''; 257.75;
257.90(b)(3); a sentence from 257.90(e); change 257.95(b) back to 2015
CCR Rule language; references to CCRMU in 257.100(h)(2); 257.101(f);
portions of 257.101(g); 257.101(h); title of 257.102;
257.102(b)(2)(iii) and (v) and renumber (iv) to (iii);
257.102(f)(1)(iii); 257.100(f)(2)(ii)(E) and (F), 257.104(d)(2)(iii);
257.105(f)(25) and (26); 257.106(f)(24) and (25); 257.107(f)(24) and
(25).
b. Alternative Approaches for Comment
As stated above, EPA is soliciting comment on several alternative
approaches to address the concerns laid out in Units III.D. and IV.A.3.
of this preamble regarding the CCRMU regulations. Specifically, EPA is
soliciting comment on: (1) Deferring all CCRMU requirements, other than
the requirement to complete the facility evaluation, to permitting; (2)
Establishing groundwater monitoring and corrective action zones for
CCRMU; (3) Exempting past onsite CCR uses that meet the definition of
beneficial use; (4) Expanding the roadbed exemption; (5) Expanding the
deferral criteria for certain CCRMU closures to permitting; (6)
Removing ``other active facilities'' from the regulated universe; and
(7) Developing a new threshold for CCRMU. EPA will consider comments on
the proposal and all these options before making a final decision. If
EPA elects to not rescind all regulation of CCRMU, EPA may select one
or several of the options to finalize. For example, EPA may choose to
only finalize the option to defer all CCRMU requirements aside from the
facility evaluation to permitting. Alternatively, EPA may choose to
finalize the options to defer all CCRMU requirements aside from the
facility evaluation to permitting, expand the roadbed exemption, and
exempt past onsite CCR uses that meet the definition of beneficial use.
If EPA were to finalize this combination of options, the result would
be a much smaller CCRMU universe consisting primarily of inactive
landfills and units closed prior to 2015, which would only be subject
to the facility evaluation requirements in Sec. 257.75 until such time
that the permit authority could evaluate these units. Since EPA is
soliciting comment on several other alternative approaches to amending
the scope of the CCRMU universe, EPA is not including these regulatory
changes in the proposed regulatory text in this rule, as it could cause
confusion for the reader. However, EPA will describe the regulatory
text changes these alternative approaches would have if finalized in
the preamble below. EPA requests comment on the proposed regulatory
text changes as well as these alternatives, as well as how EPA should
revise the FER requirements considering the alternatives below.
i. Deferral of CCR Management Unit Requirements To Permitting
EPA is taking comment on an alternative approach to addressing the
issues identified in Units III.D. and IV.A.3. of this preamble with the
existing CCRMU regulation. Under this alternative approach, owners or
operators of regulated CCR units would still be required to complete
the two-part FER to identify and delineate CCRMU at the facility.
However, the requirement to comply with the remaining CCRMU regulations
would be deferred until a CCR permit authority is able to evaluate the
risks posed by these units and determine which requirements are
appropriate for the CCRMU. Essentially, under this alternative
approach, all CCRMU would be treated the same as CCRMU containing
between 1 and 1,000 tons are treated under the existing regulations.
In the Legacy Final Rule, EPA finalized facility evaluation,
fugitive dust, groundwater monitoring, corrective action, closure, and
post-closure care requirements for CCRMU. As a result of the Legacy
Final Rule, owners or operators of regulated CCR units are required to
conduct a facility evaluation to identify and delineate any CCRMU
containing one ton (or more) at the facility and document the findings
in two reports. In addition, owners or operators of a regulated CCR
unit are required to ensure that all identified CCRMU containing 1,000
tons or more comply with the existing requirements in 40 CFR part 257,
subpart D for groundwater monitoring, corrective action (where
necessary), recordkeeping, notification, and internet posting and in
certain cases, closure, and post-closure care requirements. Regulation
of CCRMU between one and 1,000 tons is deferred until a subsequent
permit authority can assess the risks posed by these smaller CCRMU,
individually or in the aggregate, and determine which, if any,
requirements are appropriate for the CCRMU. In addition, the Legacy
Final Rule deferred the requirement to demonstrate compliance with
Sec. 257.102 for CCRMU that closed prior to the effective date of this
rule in accordance with alternative, substantially equivalent
requirements (Sec. 257.101(g)). EPA also deferred the requirement to
initiate closure where the CCRMU is located beneath critical
infrastructure, such as high power electric transmission towers, air
pollution control or wastewater treatment systems, or an electrical
substation, until whichever occurs first: (1) the infrastructure is no
longer needed, (2) a permit authority determines closure is necessary
to ensure that there is no reasonable probability of adverse effects on
human health or the environment, or (3) the closure or decommissioning
of the facility. See Sec. 257.101(h).
However, as described in greater detail above, since finalization
of the Legacy Rule, EPA has received many letters from regulated
entities suggesting: (1) The record has not been fully developed to
support regulating CCRMU, (2) Significant compliance costs outweigh any
potential benefits to address unproven risks, (3) CCRMU regulations
impose infeasible, impracticable, and overly burdensome requirements on
energy companies with significant costs that would eventually be placed
on consumers, and (4) the self-implementing structure is not
appropriate to address the variability in risk posed by the broad scope
of units regulated as CCRMU. As noted above, EPA is considering and
requesting comment on an alternative regulatory structure which would
help alleviate some of these concerns. Specifically, under this
alternative approach, owners and operators of covered facilities would
still be required to complete the two-part facility evaluation report
to identify and delineate CCRMU at the facility. However, the
application of additional CCR unit regulations would be deferred until
the CCR permit program assess the risks posed by the identified CCRMU,
individually or in the aggregate, and determine which, if any,
requirements are appropriate for the CCRMU.
This alternative approach would address these concerns by allowing
the CCR permit authority to make a site-specific, risk-based decision
as to what requirements are appropriate to apply to any given CCRMU
individually, or in aggregate, at a facility. Such an approach would
leverage the expertise and judgement of the CCR permit authority while
taking into account the variability in CCRMU and site-specific
considerations. Allowing for greater site-specific decision-making
would allow for risk-based decisions to result in potentially more
efficient outcomes that could avoid unexpected complications and issues
or require compliance with provisions that result in no benefit to
health or the environment. For example, CCIG claimed that the current
national standard requiring the removal and
[[Page 18990]]
replacement of the wide range of uses of CCR that fall under the CCRMU
definition will end up causing cascading issues that potentially could
impact reliability, force the use of virgin resources, and impose
burdensome, unnecessary costs on energy companies. Additionally, this
option would allow for impacts on infrastructure to be considered. For
example, there are examples were energy, waste, water, transportation
or other vital infrastructure have been built on top of previously
closed CCRMU. The Legacy Rule attempted to address this situation at
Sec. 257.101(h) by providing national criteria for deferring the
closure requirements for the CCRMU. However, this alternative option
would provide a permit authority greater flexibility and ability to
adapt regulatory requirements to the unique needs of the situation.
Notably, this alternative approach would extend a permit writers'
flexibility beyond just the closure requirements, allowing permit
writers to adjust, within the standards set forth in the revised rule,
the regulatory requirements in part 257 (e.g., more appropriate
groundwater monitoring requirements could be developed) on a case-by-
case basis to account for individual site conditions. Since most of
these CCRMU have been in place for decades, delaying potential
compliance with the federal requirements for a comparatively short time
until a permit authority evaluates these units is unlikely to
dramatically change the environmental conditions or risks at these
facilities.
Such an approach could still pose no reasonable risk of adverse
effects to health or the environment. State permitting and waste
programs have a comparatively long history of implementing state
requirements at CCR units including CCRMU. EPA has received a
substantial amount of information regarding CCR oversight and
regulation by state programs to demonstrate that site-specific
decisions made by these authorities are protective. See Units IV.A.2.
and IV.B.2.a. of this preamble. This includes, in some instances,
examples of state oversight of cleanups or closures of CCRMU.
For example, TVA provided EPA with information about Tennessee's
CCR program. This information suggests that site-specific human health
and ecological risk assessments conducted in the program follow EPA
protocols. According to the information provided, the risk assessments
have found that there are no unacceptable risks related to CCR
management identified for all receptors at most sites across the TVA's
portfolio. Additionally, potential risk to future workers, where
identified, would be mitigated by health and safety protocols. The
information provided also speaks to how the state handles closure and
corrective action. The state's closure decisions factor in ongoing
operations, planned extraction of CCR for beneficial use, risk
assessment results, qualitative impacts, and stability assessments.
Tennessee's corrective action program, meanwhile, incorporates risk
assessment results and statistical evaluation of groundwater sampling
data to assess regulatory requirements. The utility explains that no
corrective actions have been identified to address unacceptable risks,
but localized groundwater corrective actions are required at some units
to meet the groundwater protection standards.
Talen Energy provided information pointing out that states, such as
Pennsylvania, have had Residual Waste regulations that have been used
to address CCR for decades. State-level Dam Safety regulations also
exist and apply to certain CCR units. The utility stated that these
regulations and associated oversight ensure the safe and
environmentally-acceptable closure of CCR units. Talen Energy argued
that the federal CCR program needs a better mechanism to recognize
prior state approvals and regulatory requirements which may be
equivalent or as protective as the federal CCR requirements.
Additionally, during the Legacy Rulemaking, EPA received public
comments arguing that state programs had become significantly more
robust over the past couple of decades and, specifically, since 2015
when EPA last conducted a review of state programs. For example, Duke
Energy provided information on North Carolina's CCR program. The
utility claims that there are no gaps within the state program and that
the state's groundwater rules establish robust groundwater monitoring
and corrective action programs. Duke Energy proceeded to describe
aspects of the program's closure requirements suggesting that the
closure plans are comprehensive and subject to significant regulatory
oversight and public participation. The key assertions are as follows:
The closure plans, among other things, require the results
of a hydrogeologic, geologic, and geotechnical investigation of the
site; the results of groundwater modeling of the site; a description of
the provisions for disposal of wastewater and management of stormwater;
a description of the provisions for the final disposition of the CCR;
and a description of the plan for post-closure monitoring and care for
an impoundment for a minimum of 30 years.
The closure plan approval process includes public
participation component involving public notice and comment and public
meeting(s) in county(ies) in which the site is located. After an
opportunity for public comment, NCDEQ makes the final determination as
to the protectiveness and adequacy of the closure plan.
Moreover, Duke Energy provided several examples of CCRMU for which
North Carolina has required closure activities through existing state
authorities. Here is a description of the way in which North Carolina
assessed and addressed CCRMU according to the information provided.
First, in 2017, the state required the utility to assess and remediate
or close what the state called ``primary sources'' and ``secondary
sources''--not just the CCR surface impoundments--across 14 coal ash
facilities in the state. These ``primary sources'' and ``secondary
sources'' appear to meet the definition of CCRMU had EPA defined that
concept in 2017 and would also capture contamination from CCRMU. In
response, the utility developed a staged plan to address these CCRMU.
The first stage involves CCRMU located near CCR surface impoundments so
if there were any soil and groundwater contamination from the CCRMU,
the impacts would be addressed along with the CCR surface impoundments.
The second group involves CCRMU located where a groundwater divide or
surface water area separate these potential primary sources from the
CCR surface impoundments. These CCRMU were investigated independent of
CCR surface impoundments, and assessment and corrective action is
subject to a separate and distinct plan from the surface impoundments.
The state later required Duke Energy to prepare updated comprehensive
site assessments and updated corrective action plans to address the
CCRMU identified by the utility in response to the 2017 request.
In total the utility identified 25 CCRMU. Based on the information
provided, seven have already been fully excavated, six have excavation
in progress, four are planned to be excavated, four have been closed
and capped with a synthetic cover, two are in the process of being
closed with a synthetic cover, and two are undergoing further
investigation by NCDEQ. Duke Energy concluded that no CCRMU are being
ignored, and the foregoing demonstrates that the actions being
undertaken pursuant to strict state
[[Page 18991]]
oversight are sufficiently protective to not pose a reasonable
probability of adverse effects to health or the environment.
Other commenters presented individual examples of CCRMU that had
been closed in accordance with State requirements, which the commenters
believed would demonstrate the State closures were equally as
protective as those conducted in accordance with Sec. 257.102. These
included the following examples:
A facility has an approximately 20-acre dry stack landfill
with 20 plus years of groundwater monitoring that does not show
groundwater exceedances, zero potential receptors downstream (from the
direction of groundwater) that use wells for drinking water (also no
potable wells within a two-mile radius). The landfill construction
using best practices to minimize erosion potential, including only
placement of stabilized material in the landfill, perimeter ditch
surrounding the entire landfill to collect any runoff that is processed
before discharge, and the unit is regulated by the Florida Department
of Environmental Protection that includes semi-annual groundwater
monitoring results review and yearly onsite regulatory inspections.
Another facility had two CCRMU landfills that were closed
prior to the effective date of the 2015 CCR Rule and were closed in
accordance with the State of Florida's Chapter 62-701, F.A.C., for
municipal and solid waste landfills. Neither landfill was built on top
of a liner system. The closed landfills were subject to design criteria
for cover systems and stormwater management, as well as long-term
operations and maintenance provisions. The groundwater monitoring
system requirements for landfills in Florida are similar to, but not
the same as, those in the 2015 CCR rule. Both closed cells would be
subject to corrective action if dictated by the monitoring program.
Maintenance, inspections, and repair of the cover systems, as needed,
are also part of the long-term care program.
Another facility reported closing an inactive CCR landfill
in the 1980s. The 20-acre site was used to dispose of bottom and fly
ash, including scrubber sludge. The owner performed monitoring of a
nearby spring to demonstrate whether any ponded water was leaking. Upon
visual inspection, it was determined that the bentonite/clay-lined pond
remained intact throughout the active operation of the landfill.
However, because of the age of the site, groundwater monitoring wells
were not required.
Since the finalization of the Legacy Rule, EPA also received a
survey of a select set of state risk-based regulatory programs. This
survey compared the components of some of these programs to CERCLA and
RCRA Subtitle C and states that the risk-based programs are based on
scientific principles supporting regulatory consistency, scientific
integrity, and practical implementation. Additionally, the survey
provided some additional information on certain state program examples
which, the survey concludes, demonstrate their regulatory efficiency
and effectiveness. The survey cited the Texas Risk Reduction Program,
Colorado Voluntary Cleanup and Redevelopment Program, Michigan Part 201
Cleanup Program, Virginia Voluntary Remediation Program, Massachusetts
Contingency Plan Waste Site Cleanup Program.\24\
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\24\ The regulations already contain two pathways for legacy
impoundments to certify closure by removal (i.e., Sec.
257.100(g)(1)-(6) for those with available groundwater data and
Sec. 257.100(h) for those units that needed to conduct additional
groundwater monitoring). These two paths are unchanged by this
proposal. The third, proposed, avenue for certification of closure
by removal is an additional avenue not intended to disrupt,
supersede, or otherwise alter the two existing avenues.
Haley Aldrich. Report on Joint Data Analysis to Support
Revisions to Federal Regulation of Coal Combustion Residuals.
September 2025.
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As noted above in Unit III.D., the 2024 Risk Assessment is a
national risk assessment and not representative of risk posed by all
CCR units at all facilities. Additionally, as described in Unit III.D.
of this preamble, EPA has the ability to rely on permit authority's
oversight to tailor the CCR requirements and provide greater
flexibility to owners or operators while ensuring there is no
reasonable probability of adverse effects on health or the environment
from the regulated units. Deferring the application of most of the
CCRMU requirements to the CCR permitting program would allow for a
greater understanding of the risk posed by these units and could result
in more appropriate, tailored regulatory requirements being applied to
the units. Moreover, the issuance of a CCR permit will involve public
comment and are final actions that could be challenged
administratively, and in federal or state court. In consideration of
the information above and in Unit IV.A.2. of this preamble regarding
state programs and the potential advantages of deferring application of
most of the CCRMU requirements to the CCR permitting program, EPA is
soliciting comment on this option.
After a review of submitted comments, EPA will determine if there
is sufficient support to finalize this approach in its final action. If
EPA were to finalize such an approach, EPA would amend Sec. 257.50(d)
to read: CCR management units located at active facilities or
facilities with a legacy CCR surface impoundment are subject only to
the requirements of the facility evaluation report in Sec. 257.75
until a permit authority determines that regulation of these units,
either individually or in the aggregate, is warranted and determines
the applicable requirements. EPA would, accordingly, also rescind
Sec. Sec. 257.90(b)(3), 257.100(h)(v) through (ix), 257.101(f) and
(h), 257.102(b)(2)(iii) and (v), 257.102(f)(1)(iii),
57.102(f)(2)(ii)(E) and (F), and 257.104(d)(2)(iii). EPA would also
remove reference to CCRMU from Sec. 257.101(g).
In addition to the alternative above and for the same reasons in
Unit IV.A.2.b., EPA requests comment on the adequacy of the record for
the alternative option upon which EPA is soliciting comment and, to the
extent any gaps are identified, requests suggestions for sources of
additional information. As several regulated entities have raised
concerns with scope of the search required for information concerning
historical CCR placement (e.g., interviews of former employees, files
in digital formats no longer supported), EPA is also seeking comment on
whether the scope of the effort required to search for information
concerning the location of CCRMU needs clarification.
ii. Establishing Groundwater Monitoring and Corrective Action Zones for
CCRMU
EPA is soliciting comment on an option to establish the equivalent
of a hazardous waste facility's ``area(s) of concern'' or ``solid waste
management area(s)'' for facilities with CCRMU for compliance with
groundwater monitoring and corrective action. Specifically, this would
allow owners or operators of CCRMU to establish a CCRMU groundwater
monitoring and corrective action zone that contains multiple CCRMU and
would be monitored by a single groundwater monitoring system.
The existing regulations allow owners or operators of CCR units to
monitor groundwater at multiple units with a single groundwater
monitoring system (i.e., a multiunit groundwater monitoring system). 40
CFR 257.91(d). A multiunit groundwater monitoring system must be
equally capable of
[[Page 18992]]
detecting background and groundwater contamination at the waste
boundary as an individual monitoring system. The regulation further
specifies that this determination must be based on the consideration of
several factors, including the number, spacing, and orientation of the
CCR units, the hydrogeologic setting, the site history and the
engineering design of the CCR units. A qualified professional engineer
must certify this demonstration. Whether a single or multi-unit system
has been installed, the monitoring wells must be cased in a manner
maintaining the integrity of the borehole and must be maintained to
meet design specifications.
As discussed in the preamble to the Legacy Final Rule, 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.
The preamble further states there is nothing about CCRMU that makes
them distinct enough to warrant separate groundwater monitoring
requirements from other CCR units. Therefore, EPA finalized the
requirement that owners or operators of CCRMU comply with the existing
groundwater monitoring and corrective action provisions in 40 CFR part
257.
However, since finalization of the 2024 Legacy Rule, members of the
regulated community have continued to express the need for alternative
groundwater monitoring requirements, such as expanded multiunit or
facility-wide groundwater monitoring. These utilities have pointed to
the difficulty of determining CCRMU boundaries and the prevalence of
CCRMU across the facility. Specifically, commenters have stated that
the widespread historic practice of placing non-containerized CCR
across a facility coupled with lack of historical documentation results
in uncertainty regarding the boundaries of CCRMU, even with the field
sampling required as part of the facility evaluation. Some companies
have expressed concern about finding CCRMU as a result of complying
with the groundwater monitoring and corrective action requirements
(e.g., while determining the source of potential contamination) or
through future development projects onsite (e.g., encountering CCR
while conducting earthwork for new infrastructure). Other utilities
have raised concerns regarding the appropriateness of the existing
groundwater monitoring requirements when the CCRMU being monitored is
miles long (e.g., a haul road or perimeter road) or quite numerous.
Furthermore, members of industry have expressed that the Agency should
allow facilities to adopt an area-wide or facility-wide groundwater
monitoring and corrective action approach where: (1) the facility has a
large number of CCRMU such that it is not practical to monitor and
clean-up each CCRMU individually, or (2) the facility demonstrates that
no contaminants are migrating offsite or otherwise causing off-site
impacts. The commenters stated that an area-wide or facility-wide
approach would allow facilities to address risk posed by CCRMU in a
more holistic way, where appropriate.
Based on this information, the EPA is now aware of instances where
the characteristics of the CCRMU, such as the size and shape (e.g.,
lengthy roads), or the prevalence (e.g., numerous CCRMU across the
facility) justify a different approach to groundwater monitoring.
Therefore, the Agency is soliciting comment on whether a more holistic
approach, often referred to as either ``area(s) of concern'' or ``solid
waste management area(s)''in hazardous waste facility permits or orders
would be appropriate to apply to CCRMU. Under this approach, owners or
operators of CCRMU would have greater flexibility to establish
groundwater monitoring networks around multiple CCRMU. This approach
would allow the owner or operator to designate an area of the facility
where multiple CCRMU are present as a ``CCRMU groundwater monitoring
and corrective action zone,'' essentially creating a single CCRMU for
the purposes of groundwater monitoring and corrective action. This
would allow a single groundwater monitoring system to be used in areas
where it is difficult to determine exactly where the CCRMU waste
boundaries are located, either due to historical CCR placements, the
sheer number of co-located or nearby disposal areas, or any gaps in
records related to past practices. As an example, if CCR was disposed
of in multiple locations throughout the facility in a manner that makes
it difficult to determine the precise waste boundaries of each CCRMU
for the purposes of groundwater monitoring, the owner or operator could
designate an area as a CCRMU groundwater monitoring and corrective
action zone and utilize a single groundwater system around that area.
In such cases, where CCRMU are located throughout the facility, the
owner or operator could decide to combine some or all CCRMU,
effectively creating a facility-wide groundwater monitoring network
that encompasses all the CCRMU at the facility. When designating CCRMU
groundwater monitoring and corrective action zones, the owner or
operator must ensure the groundwater monitoring system is capable of
readily detecting groundwater conditions in the uppermost aquifer that
are representative of any potential contamination from CCRMU within the
zone.
The Agency is requesting comment on the reasons owner or operators
consider the existing multiunit approach to be infeasible or otherwise
problematic to implement for CCRMU. Further, EPA is soliciting site-
specific examples of the need for combining CCRMU into CCRMU
groundwater monitoring and corrective action zones (i.e., the
equivalent of ``area(s) of concern'' or ``solid waste management
area'') for the purpose of groundwater monitoring. EPA specifically
requests examples where the owner or operator would need to combine
CCRMU across the facility into a single CCRMU groundwater monitoring
and corrective action zone, essentially creating a facility-wide
groundwater monitoring network. Lastly, the Agency is requesting
comment on whether this approach would be beneficial considering the
other options EPA is soliciting comment on for CCRMU and which, if any,
of the various other options under consideration that commenters
believe should be combined with this option to make compliance with the
groundwater monitoring regulations practically feasible.
iii. Exempt Past Onsite CCR Uses That Meet the Definition of Beneficial
Use
As discussed in Unit IV.C. of this preamble, EPA is proposing a new
definition of ``beneficial use'' at Sec. 257.53, which would eliminate
the fourth criterion, recognizing that the first three criteria in the
beneficial use definition provide a sufficient framework for
identifying when any placement of CCR on the land, whether encapsulated
or non-encapsulated, roadway or non-roadway, constitutes a beneficial
use rather than disposal for purposes of 40 CFR part 257. EPA also is
proposing that this definition apply equally to all CCR beneficial use
projects, whether conducted onsite at the generating utility or
offsite.
However, EPA notes that the revised definition of beneficial use
would not apply retroactively. Several stakeholders have raised the
issue of exempting past CCR uses at utilities that meets the definition
of ``beneficial use.'' Thus, EPA is requesting comment on including an
exemption from the definition of CCRMU for
[[Page 18993]]
unencapsulated CCR uses, regardless of when such use occurred, that
meet the definition of beneficial use, unless such a use is causing or
contributing to a statistically significant level above the groundwater
protection standard.
Such an exemption would encompass both the current and the proposed
expanded roadbed exemption and would also apply to non-roadway
beneficial uses of unencapsulated CCR, such as engineered structural
fill, both past and present, if they meet the first three criteria in
the beneficial use definition.
iv. Expand the Roadbed Exemption
Under the current regulations any CCR used in roadbed and
associated embankments is not considered to be a CCRMU. See definition
of ``CCR management unit'' at Sec. 257.53. As EPA explained in the
2015 CCR Rule preamble, the methods of application, including the
amounts and manner of CCR use, for roadbeds and associated embankments
are sufficiently different from CCR landfills that EPA cannot
extrapolate from the available risk information to determine whether
these activities present similar risks. Roadways (i.e., roadbed and
associated embankments) are subject to engineering specifications and
material requirements. For example, the engineering specifications for
roadbeds generally specify CCR to be placed in a thin layer (e.g., six
to 12 inches) under a road. The placement of CCR 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
way roadways and landfills can potentially impact groundwater, such as
the nature of mixing in the media and the leaching patterns. First, CCR
landfills can generally be represented as a homogenously mixed system.
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.
Furthermore, the construction of roadways is supervised and approved by
State or Federal Department of Transportation (DOT) engineers who
ensure compliance with engineering specifications. Finally, EPA is
concerned that groundwater monitoring of a roadway may not be
practicable. See 80 FR 21353 and 89 FR 32018.
Even though EPA considers that the available information does not
demonstrate that use in roadway presents sufficient risk to warrant the
suite of requirements applicable to CCRMU, that conclusion changes in
the event the CCR in roadbed or associated embankments is contaminating
groundwater. Accordingly, if an owner or operator subsequently
determines that the CCR in onsite roadbed is contributing to
contamination to the aquifer, the owner or operator is required to
address the contamination. For example, if during an ongoing corrective
action, an owner or operator 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.
Since 2025, EPA received letters requesting that EPA expand the
exemption of ``roadbed and associated embankments'' in the CCRMU
definition in Sec. 257.53 to interpret those terms to include all use
of CCR in construction of roads, railbeds, and embankments and similar
uses (unless, as is currently stated in the definition, ``the roadbed
is causing or contributing to a statistically significant level above
the groundwater protection standard''). See Merriam-Webster, Roadbed,
https://www.merriam-webster.com/dictionary/roadbed (last visited
September 17, 2025); general definition of ``roadbed'' includes ``the
bed on which the ties, rails, and ballast of a railroad rest.''
According to members of industry, these clarifications are consistent
not only with the regulatory text as currently drafted, but also RCRA
generally and policy goals to reduce disposal and waste footprints.
Certain letters sent to EPA also included site-specific examples of
CCR facilities with roadways or railbeds that would be impacted by the
CCRMU regulations.\25\ One letter described a utility with multiple
sites with over 10 miles of roads that are entirely constructed of ash
or blended with ash. Requiring the removal of such ash would
significantly disrupt facility operations. Another company reported
that regulation of roads creates a CCRMU that is 30 miles long.
According to the utility, groundwater monitoring and replacement of
existing embankments with other natural resources would be expensive,
complicated, time-consuming, and resource-intensive, and would also
risk contamination. Another utility stated that it potentially has an
unknown volume of CCR material along a railroad, but only a portion of
the railroad is within the facility boundary. Due to fencing, which
emphasizes the plant's boundary line and obscures access to the rest of
the railroad, it would be difficult not only to assess the presence of
CCR in the area but also access the area the plant does not own.
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\25\ CCIG 2025. White paper reflecting Recommendations Updating
the Federal CCR Regulations. Cross-Cutting Issues Group. June.
---------------------------------------------------------------------------
EPA also received a request to clarify that the roadway or roadbed
and associated embankments exemption applies regardless of whether
there was oversight by a State agency and to extend the exclusion to
all embankments.
Based on this information, EPA is soliciting comment on whether to
expand the existing roadbed exemption in the definition of ``CCR
management unit'' at Sec. 257.53 to include roadbed, railbed, and all
roadbed embankments. Under this alternative, the use of CCR in roadbed,
railbed, and all roadbed embankments would be exempt from the CCRMU
regulations, unless they are causing or contributing to a statistically
significant level above the groundwater protection standard. As
discussed above, the inclusion of railbed fall in the plain language
meaning of the term ``roadbed'' as well. This exemption would apply
regardless of if there was oversight by a State agency of the
construction of the roadbed, railbed, and associated embankments. EPA
specifically requests comment on codifying a definition of ``roadbed''
to mean ``the foundation of a road prepared for surfacing or surface on
which or ties, rails, and ballast of a railroad rest''. EPA also
requests comment on codifying a definition of ``roadbed embankment'' to
mean ``material that is placed and compacted for the purpose of raising
the grade of a roadbed above the level of the existing surrounding
ground surface.'' \26\
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\26\ This definition is based off information regarding
embankments from the U.S. Department of Transportation Federal
Highway Administration's User Guidelines for Waste and Byproduct
Materials in Pavement Construction. (Publication Number: FHWA-RD-97-
148)
---------------------------------------------------------------------------
v. Deferral of Certain CCR Management Unit Closures To Permitting
EPA is requesting comment on whether to make changes to Sec.
257.101(g) to expand the deferral criteria for CCRMU that completed
closure of the unit under state or federal regulatory authority prior
to November 8, 2024. This expansion will provide greater deference to
the decisions of state and other regulatory authorities regarding
[[Page 18994]]
CCRMU closures completed before the effective date of the Legacy Final
Rule.
As explained in Unit IV.A.2.b. of this preamble, in the Legacy
Final Rule, EPA finalized provisions allowing owners and operators of
legacy surface impoundments and CCRMU to defer compliance with the
closure performance standard until the CCR permit authority could make
a site-specific decision, provided the owner or operator could document
that the unit closure met certain conditions. This provision allowed
for the permit authority to evaluate site-specific information and
determine whether a closure performed before the effective date of the
Legacy Final Rule met the appropriate part 257 closure standards. See
Sec. 257.101(g). Specifically, the Legacy Final Rule provided that an
owner or operator of a legacy CCR surface impoundment or CCRMU need not
demonstrate compliance with the closure performance standards in Sec.
257.102(c) or (d) provided they demonstrate that the closure of the CCR
unit met specific standards codified in Sec. 257.101(g). These
standards are:
(1) The owner or operator of the CCR unit must document that a
regulatory authority played an active role in overseeing and approving
the closure and any necessary corrective action, pursuant to an
enforceable requirement. This includes a State or Federal permit, an
administrative order, or consent order issued after 2015 under CERCLA
or by an EPA-approved RCRA State program.
(2) The owner or operator of the CCR unit must document that the
regulatory authority required or conducted a site-specific risk
assessment prior to (or as part of) approving the closure and any
necessary corrective action.
(3) The owner or operator of the CCR unit must document that it
installed a groundwater monitoring system and performed groundwater
monitoring that meets all of the following:
(i) Was capable of accurately representing background water
quality;
(ii) Was capable of accurately representing the quality of water
passing the waste boundary;
(iii) Was capable of detecting contamination in the uppermost
aquifer; and
(iv) Monitored all potential contaminant pathways.
(4) Must document that the closed unit meets either:
(i) The performance standard in Sec. 257.60; or
(ii) The performance standard in Sec. 257.102(d)(2)(i).
(5) The owner or operator must also include a certification
statement as to the veracity of the information.
These standards are intended to ensure protectiveness at least
until the time a permit authority could evaluate the closure on a site-
specific basis to determine if the closure is as protective as those
conducted in accordance with Sec. 257.102. The existing provisions
require the owner or operator to submit a permit application to the
permit authority with sufficient information, including groundwater
data, to demonstrate the applicable closure standards had been met.
Under the current regulations, the permit authority will then review
the information to determine whether the ``equivalency'' of the closure
has been successfully demonstrated. If EPA or a Participating State
Director determines that the closure has met the appropriate part 257
closure standard, the permit authority will issue a permit to require
compliance with applicable post-closure requirements. If the permit
authority determines that the closure does not meet the applicable part
257 standards, the owner or operator will be required to submit a
complete permit application and obtain a permit that contains the
specific requirements necessary for the unit to achieve compliance with
the closure requirements at Sec. 257.102.
As discussed in Unit IV.A.2.b. of this preamble, during the Legacy
Rulemaking, EPA received public comment arguing that state programs had
become significantly more robust over the past couple of decades,
specifically, since 2015 when EPA last conducted a review of state
programs. Since publication, several owners and operators of CCR units
have provided EPA with additional information they believe demonstrates
the adequacy of CCR unit closures performed under the oversight of
other regulatory authorities (e.g., state programs). See Unit IV.A.2.b.
for more information and examples of information provided by industry.
If the CCRMU provisions are not rescinded, EPA intends to maintain
the general procedures in the existing regulations, whereby owners and
operators of CCRMU may defer compliance with the CCR unit closure
standards until a site-specific decision is made by the permit
authority on the equivalence of the previously conducted closures.
However, based on the information and rationale summarized in Unit
IV.A.2.b. of this preamble, EPA is soliciting comment on extending the
expanded legacy CCR surface impoundment deferral criteria, as described
in Unit IV.A.2.b. of this preamble to CCRMU. Specifically, EPA is
proposing to remove: (1) The detailed technical requirements for a
groundwater monitoring system, (2) The requirement that a facility
document that the CCRMU currently meets either the location standard in
Sec. 257.60 or the dewatering standard in Sec. 257.102(d)(1)(i), and
(3) The requirement that the regulatory authority conducted a site-
specific risk assessment. Under this approach, the owner or operator
would need to document that a regulatory authority played an active
role in overseeing and approving the closure and any necessary
corrective action, pursuant to an enforceable requirement issued on or
after October 19, 2015, a groundwater monitoring system was installed,
and groundwater monitoring was performed. The owner or operator would
need to also provide the same certification as to the veracity of the
documentation currently required under Sec. 257.101(g)(5).
EPA anticipates that this option would lead to an increase in the
number of CCRMU eligible for deferral. As a result, fewer CCRMU will be
required to undertake additional closure activities before the CCR
permit authority determines that such actions are indeed necessary. It
is worth noting that all CCRMU eligible for the deferral would still,
at the time of permitting, be required to submit a permit application
with sufficient information, including groundwater data, to demonstrate
the applicable closure standards had been met. The CCR permit authority
would then make a final determination as to whether the previously
conducted closure achieved the performance standards established in the
Federal CCR regulations.
The alternative would ensure that previous decisions made by state
or federal regulators remain unaffected until the CCR permitting
program can conduct site-specific evaluations. Additionally, since most
of these CCRMU have been in place for decades, delaying potential
compliance with the federal closure requirements for a comparatively
short time until a permit authority evaluates the completed closure is
unlikely to dramatically change the environmental conditions or risks
at these facilities.
Therefore, EPA is soliciting comment on the option to allow owners
or operators of CCRMU that have completed a closure prior to November
8, 2024, where a regulatory authority played an active role in
overseeing and approving the closure and any necessary corrective
action, pursuant to an enforceable requirement issued on or after
October 19, 2015; a groundwater monitoring system has been installed;
[[Page 18995]]
and groundwater monitoring has been performed to document they meet the
criteria in an owner-or-operator certified report. If EPA finalizes
this option, the required documentation will have a deadline of no
later than six months after the effective date of the final rule, if
finalized, consistent with the compliance timeframe for the original
deferral certification at Sec. 257.101(g). EPA expects this will
provide ample time for the owners and operators to prepare the
necessary documentation.
If EPA were to finalize this approach, EPA would apply the same
deferral criteria to CCRMU as is proposed in Unit IV.A.2.b. for legacy
CCR surface impoundments. The process for the CCR permitting program to
make the ``equivalence'' determination or establish additional
requirements for the CCRMU would remain unchanged.
Additionally, for the reasons described in Unit IV.A.2.b., EPA
requests comment on the adequacy of the record for the alternative
option upon which EPA is soliciting comment and, to the extent any gaps
are identified, requests suggestions for sources of additional
information. EPA specifically requests detailed information regarding
state CCR programs as well as other relevant regulatory programs at the
points in time that may have overseen CCRMU closures. For example, EPA
encourages commenters to submit specific case studies or examples where
state or other regulatory authority decisions have been effective or
ineffective in ensuring protective closures. Additionally, EPA seeks
empirical data or studies that compare the effectiveness of state and
federal CCR closure requirements or information describing specific
elements of state regulatory frameworks that may differ from federal
requirements and how these differences impact closure outcomes. EPA
will consider such information submitted as it develops the final
action.
vi. Removing ``Other Active Facilities'' From the Regulated Universe
EPA is soliciting comment on limiting the applicability of the
CCRMU requirements to facilities that meet the definition of an
``active facility'' and those with a legacy CCR surface impoundment.
In the preamble to the Legacy Final Rule, EPA explained its
decision to extend regulation to certain other facilities currently
generating power for the electrical grid that only have CCRMU onsite.
(89 FR 39053). EPA explained that it was concerned that CCRMU (e.g.,
inactive CCR landfills, closed CCR landfills, or closed CCR surface
impoundments) are located at these facilities. The preamble described
these facilities as ``other active facilities'' and defined them as
those that: (1) On or after October 19, 2015, were producing
electricity for the grid; (2) Had ceased placement of CCR in their
onsite CCR units before the effective date of the 2015 CCR Rule
(October 19, 2015); and (3) Had no inactive CCR surface impoundments.
After promulgation of the Legacy Final Rule, EPA received several
questions regarding the scope of the active facilities covered under
Sec. 257.50(d). On January 16, 2025, in response to these questions,
EPA issued a direct final rule and companion proposed rule to define
and clarify the scope of the intended ``other active facility''
universe (90 FR 4635 and 90 FR 4707). In the direct final rule, EPA
acknowledged that as currently written the regulation could result in
the inclusion of electric utilities or independent power producers that
have not placed CCR onsite or operated an onsite coal-fired electric
generating unit (EGU). Both the Legacy Final Rule preamble and the
January 2025 direct final rule clearly stated this was never EPA's
intent. Rather EPA intended the CCRMU regulations to only apply to
facilities with a regulated CCR unit and to the small subset of active
facilities described in the Legacy Final Rule preamble. Indeed, EPA
specifically declined requests to extend coverage more broadly. See 89
FR 39053-39054. In response to adverse comment, EPA withdrew the direct
final rule on March 14, 2025.
Several commenters on the direct final rule and companion proposal
expressed greater confusion over EPA's attempt to clarify the
provision. A few commenters expressed the opinion that the
clarification went beyond the intended scope of the Legacy Final Rule
and was overly broad. While others made comments to suggest the scope
of ``other active facility'' was no different than the scope of
``active facility''. In light of the discussion in Unit III.D., the
persistent confusion regarding the scope of the intended ``other active
facility'' universe, and EPA's inability to clearly articulate the
intended scope, EPA is soliciting comment on limiting applicability of
the CCRMU requirements to facilities that meet the definition of
``active facility or active electric utilities or independent power
producers'' and those inactive facilities with a legacy CCR surface
impoundment (i.e., those facilities with a regulated CCR unit onsite).
vii. New Threshold for CCRMU
In the Legacy Final Rule, EPA deferred decisions about the
management of CCRMU between one and 1,000 tons to permitting and
exempted placement less than one ton from further consideration. This
framework was an outgrowth of the 2024 Risk Assessment, which
identified potential for groundwater impacts at relatively small
tonnages, but was unable to reliably identify a discrete point at which
risks would consistently fall below levels of concern. This uncertainty
was further compounded by the potential for discrete fills to be
located in close proximity to other fills and disposal units, resulting
in a larger effective mass. The promulgated national thresholds were
intended to address these uncertainties while ensuring no reasonable
probability of adverse effects to health and the environment.
As discussed in Unit IV.A.3., several members of industry critiqued
the existing CCRMU deferral threshold and requested that EPA increase
the threshold from 1,000 tons to an alternative quantity associated
with acceptable beneficial use or to risk-based criteria for stability,
groundwater, and dust. For example, CCIG said the one-ton threshold for
identification of CCRMU in the FER should be increased as one ton of
CCR amounts to what could fit in the back of a small pickup truck or a
single front-end loader bucket. The organization stated there is no
evidence that CCR in such a low amount poses a risk and imposing the
regulatory burdens for such small amounts is thus not justified.
Furthermore, as discussed previously in Unit III.D., EPA acknowledges
that the high-end risks evaluated in the 2024 Risk Assessment may not
manifest at every site and concurs that risks associated with
individual CCRMU fills may be lower. There is potential for even
greater variability among fills compared to disposal units (e.g.,
thickness, area). The Agency has previously recognized that there are
limits to the utility of a single mass-based thresholds.\27\ A national
limit based on any single variable has the potential to become overly
restrictive, as that limit must simultaneously account for the effects
of any other variables that could influence risk (e.g., leachate
concentration). Conversely, attempting to simultaneously control for
multiple variables can quickly yield limits that are unwieldly to
define and implement. As a result, to date, EPA has been
[[Page 18996]]
unable to identify a less onerous threshold that is also reliably
protective.
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\27\ 89 FR 38950, May 8, 2024.
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EPA is soliciting comment on alternate thresholds for exemption of
CCRMU fills from regulation that would be applicable nationwide. EPA is
specifically requesting comment on specific limits that could be
established, numerical or otherwise, as well as the basis for why there
would be no reasonable probability these placements would have an
adverse effect on human health or the environment if no further action
is taken to monitor or maintain these fills.
4. Initial Timeframes for Background Sampling for New CCR Landfills,
CCR Surface Impoundments, and any Lateral Expansions
EPA is proposing to amend the existing regulations to clarify that
the deadline by which new CCR landfills and CCR surface impoundments
(which includes any lateral expansions) must comply with 40 CFR 257.90
through 257.94 is the deadline in Sec. 257.90(b)(2) (``prior to
initial receipt of CCR'') rather than the deadline in Sec. 257.94(b).
This proposed revision is consistent with EPA's original intent, as
described in the final rule preamble. 80 FR 21408. This six-month
deadline is also in tension with the requirement to obtain eight
statistically independent samples, as six months can be too short a
time to complete this task.
The current regulations contain an error. The first sentence of
Sec. 257.90(b)(2) provides that ``Prior to initial receipt of CCR by
the CCR unit, the owner or operator must be in compliance with the
groundwater monitoring requirements specified in paragraph (b)(1)(i)
and (ii) of this section.'' The second sentence requires the owner or
operator of the CCR unit to initiate the detection monitoring program
``to include obtaining a minimum of eight independent samples for each
background well as required by Sec. 257.94(b).'' Unfortunately, Sec.
257.94(b) specifies that ``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.'' (emphasis added). The requirement that
background sampling and analysis be conducted during the first six
months was an error; as evidenced by the explanation in the 2015 final
rule preamble, EPA did not intend to require anything more specific
than that these tasks be completed prior to the initial receipt of CCR.
In the preamble to the 2015 CCR Rule, EPA provided an overview of
all the new groundwater monitoring deadlines established in the rule.
EPA specifically explained that ``new CCR units must comply with
Sec. Sec. 257.90 through 257.93, including the requirement under Sec.
257.94(b) to collect and analyze eight independent samples from each
well for the parameters listed in appendix III and IV to this part to
determine background levels for all appendix III and IV constituents,
before commencing operation.'' 80 FR 21408 (emphasis added). Notably,
EPA never mentioned a requirement that the background sampling and
analysis be conducted ``during the first six months of sampling,'' or
explained the reason that these activities specifically need to be
completed within the first six months, rather than before the facility
begins using the new unit.
Moreover, the six-month deadline may not provide enough time to
collect eight statistically independent samples. As discussed in the
Legacy Final Rule regarding the compliance deadline for legacy CCR
surface impoundments to comply with the groundwater monitoring
requirements, EPA acknowledged that collecting eight statistically
independent samples can be impacted by third-party availability and
laboratory backlogs. Furthermore, EPA acknowledged the adverse impact
of too frequent sampling on the validity of statistical analysis, the
need to account for seasonal variability in groundwater flow,
groundwater levels, and constituent concentrations and that providing
insufficient time for the collection of baseline samples would likely
result in ineffective groundwater monitoring programs that may fail to
alert facilities to groundwater contamination coming from CCR units. 89
FR 39019.
Accordingly, EPA is proposing to revise Sec. 257.90(b) to state
that, ``In addition, prior to initial receipt of CCR, the owner or
operator of the CCR unit must collect and analyze eight independent
samples from each well for the parameters listed in appendix III and IV
to this part to determine background levels for all appendix III and IV
constituents, and initiate the detection monitoring program in Sec.
257.94.'' EPA is further proposing to revise Sec. 257.94(b) to
reference Sec. 257.90(b)(2).
5. Slope Stability Requirements for Vegetation
In 2015, EPA promulgated requirements for all CCR surface
impoundments (except incised units) to install and maintain adequate
slope protection. Specifically, the final rule required facilities to
document that ``the CCR unit has been designed, constructed, operated,
and maintained with . . . adequate slope protection to protect against
surface erosion, wave action, and adverse effects of sudden drawdown.''
40 CFR 257.73(d)(1)(ii); 257.74(d)(1)(ii). In developing the 2015 CCR
Rule, EPA relied on existing dam safety technical literature, which
universally recommends that vegetative cover not be permitted to root
too deeply beneath the surface of the slope. Deep roots can potentially
introduce internal embankment issues such as pathways for water
intrusion and piping, precipitating erosion internally, or uprooting
which is the disruption of the embankment due to the sudden uplifting
of the root system. Based on these data, the final rule also required a
vegetative cover height limitation to prevent the establishment of
rooted vegetation, such as a tree, a bush, or a shrubbery, on the CCR
surface impoundment slope (80 FR 21476, April 17, 2015), and to prevent
the obscuring of the slope during routine and emergency inspection.
Based on the available information, EPA concluded that a vegetative
cover height limitation of six inches above the face of the embankment
would prevent woody vegetation, while allowing inspectors adequate
observation of the slope.
After the 2015 final rule was published, the six-inch vegetative
height limitation was challenged on the ground that EPA had failed to
provide adequate notice of this requirement in the proposal. See, USWAG
et al. v. EPA, No. 15-1219 (D.C. Cir. 2015). In response, EPA agreed to
reconsider this provision. This claim was settled, and the court
vacated the requirement that vegetation on all slopes ``not . . .
exceed a height of 6 inches above the slope of the dike'' within
Sec. Sec. 257.73(a)(4), 257.73(d)(1)(iv), 257.74(a)(4), and
257.74(d)(1)(iv).
In 2018, EPA proposed to expand on the existing general performance
standard with more specific slope protection requirements for existing
and new surface impoundments. EPA also proposed to establish distinct
definitions and height limitations for grassy vegetation and woody
vegetation to replace the vacated requirement. See 83 FR 11589-11592.
EPA never finalized this requirement and the proposal remains pending.
EPA is now soliciting comment on whether these proposed performance
standards would still be necessary and useful or whether EPA should
instead rely on a permit authority to establish the necessary terms and
conditions to ensure slope protection.
[[Page 18997]]
B. New Compliance Pathway Allowing Site-Specific Considerations During
Permitting
The majority of state and industry commenters on the proposal that
resulted in the 2015 CCR rule preferred regulations that would allow
site-specific approaches to establishing standards. (See 80 FR 21331-
21234) Commenters argued that the prescriptive one-size-fits-all
approach was overly stringent and inflexible and had the potential to
greatly disrupt implementation of a state's regulatory programs, which
have been tailored to provide for site specific conditions and
situations. Moreover, commenters argued that because of the many state
regulatory programs addressing CCR disposal, there would be many
instances where state requirements could be in conflict with, in
addition to, or separate from the federal requirements and it was
unclear how these differences would be resolved.
Many commenters simply argued that a permitting program was the
only viable approach for the regulation of CCR. Commenters argued that
states should be allowed to enforce compliance through a traditional
permitting system, and that solid waste operating permits are critical
to ensuring coal ash disposal facilities design, construct, operate and
close their waste facilities safely. Commenters argued that permits are
important because they can dictate the use of specific operating
practices and control technologies that may be essential for minimizing
releases. Permits also provide an important enforcement vehicle, as
well as a process by which the public can be informed and participate
in the siting, operation and closure of the waste disposal unit.
In the 2015 CCR final rule, EPA expressed appreciation for
commenters' attempts to craft alternative approaches to address the
limitations in the proposed self-implementing subtitle D option and
recognized that this regulatory structure gives rise to legitimate
concerns about the potential for duplicative or conflicting state and
federal regulatory systems. However, as EPA noted at the time, the
Agency did not have the authority to pursue such alternative
approaches.
However, the subsequent passage of the WIIN Act changed the
landscape of EPA's authority. As explained in Units III.A. and III.D.
of this preamble, the 2016 WIIN Act provided EPA new tools to pursue
its regulatory goals. Namely, the WIIN Act empowered EPA to authorize
states to implement the federal CCR rule through an EPA-approved permit
program, and to act as the CCR permit authority, once a permit program
is established, in Indian Country and in nonparticipating states. With
regulatory oversight by a permit authority and the interpretation of
section 4004(a) as requiring a baseline standard of protection without
mandating uniformity in the manner of attainment, EPA is justified in
moving away from the ``one-size-fits-all'' regulatory approach
previously necessitated by the self-implementing rule structure and
creating another pathway to compliance that incorporates regulatory
provisions that allow permit authorities the ability to approve a
different combination of technical standards for the owner or operator
to comply with while still attaining the RCRA standard of ``no
reasonable probability of adverse impacts''. These permit authority-
approved flexibilities are necessary to accommodate site-specific
conditions and are in line with EPA's interpretations of section
4004(a) to allow for non-uniformity in attainment of the statutory
directive to prevent ``reasonable probabilities of adverse effects to
health and the environment'' from the disposal of CCR.
When using the term permit flexibilities, EPA intends to convey the
concept that the permit authority, whether a participating State or
EPA, will be able to adjust or adapt certain technical requirements
based on site-specific facts and risks. Such adjustments will still
need to remain within the boundaries set by the regulatory standard and
must support a determination by the permit authority that compliance
with the permit terms will ``not result in a reasonable probability of
adverse impacts to human health or the environment.''
While EPA is proposing and soliciting comment on several regulatory
flexibilities for permit authorities to elect to apply to eligible
owners or operators of CCR units, owners or operators of CCR units must
still comply with all requirements in the existing regulations for
which the permit authority does not approve flexibility for, in
accordance with the proposed provisions below, this includes all
recordkeeping, notification, and internet posting requirements in
Sec. Sec. 257.105 through 257.107. The new compliance pathway set
forth in this proposed rule will take effect only once a final CCR
permit that establishes the final technical requirements for the CCR
unit is in effect. Until such time, the Agency will assess compliance
with the existing applicable regulatory requirements and seek such
compliance through appropriate enforcement action where necessary.
To be clear, the site-specific considerations in the new compliance
pathway will apply to any facility only after a permit application is
properly submitted, the permit authority determines the appropriate
permit provisions, and a final CCR permit incorporating those
provisions is in effect. For States with an EPA-approved CCR permit
program and who wish to adopt the new compliance pathway (i.e., permit
flexibilities), the State will have to submit an updated application
that includes the provisions in this rule and the Agency will have to
grant updated approval of that State program. The State will then have
to initiate the permitting process and then properly consider the
applicability and appropriateness of any flexibility in this rule. For
States without an approved program but are planning to submit a program
application, that application must be approved, and the State then will
consider the flexibilities through a permit process. For States that do
not seek program approval, EPA will have to finalize the regulations
establishing the Federal permit program and then consider the
flexibilities in the context of facility specific permit decisions.
1. Groundwater Monitoring and Corrective Action Requirements
EPA is proposing to codify permit flexibilities for units under a
federal or participating-state CCR permit. These revisions would allow
the permit authority to establish: (1) An alternative point of
compliance for the groundwater monitoring wells required to comply with
the federal CCR groundwater monitoring and corrective action
requirements in 40 CFR part 257, and (2) Alternative groundwater
protection standards for constituents for which a federal MCL has not
been established under the regulations referenced at Sec. 257.95(h)(1)
(i.e., Sec. Sec. 141.62 and 141.66).
a. Point of Compliance for Groundwater Monitoring and Corrective Action
EPA is proposing several revisions to allow the Participating State
Director or EPA, when serving as the permit authority, to establish
alternative points of compliance of no more than 150 meters from the
waste boundary for locating groundwater monitoring wells and
demonstrating compliance with the groundwater monitoring and corrective
action standards in 40 CFR part 257. Additionally, EPA is soliciting
comments on an alternative that would, under specific circumstances,
allow the permit authority to establish points of
[[Page 18998]]
compliance for groundwater monitoring and corrective action no further
from the unit than the facility boundary, while exploring ways in which
this approach could be implemented in a manner that ensures early
detection (e.g., by installing additional wells) and minimizes
groundwater contamination.
The existing groundwater monitoring and corrective action
regulations require the installation of a system of monitoring wells
and specify procedures for sampling these wells, along with methods for
analyzing the collected groundwater data to detect the presence of
hazardous constituents (e.g., toxic metals) and other monitoring
parameters (e.g., pH, total dissolved solids) released from the units.
These regulations establish a comprehensive groundwater monitoring
program comprised of detection monitoring, assessment monitoring, and
corrective action. 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
reveals an exceedance of a groundwater protection standard at a
statistically significant level for any of the constituents listed in
appendix IV, must initiate corrective action.
Specifically, the groundwater monitoring systems regulations in
Sec. 257.91 establish a general performance standard requiring that
all CCR units have a groundwater monitoring system consisting of a
sufficient number of wells, installed at appropriate locations and
depths, to collect groundwater samples from the uppermost aquifer. This
system must accurately represent both the quality of background
groundwater and the quality of groundwater passing the waste boundary
of the CCR unit. Its primary objective is to detect a release early,
enabling timely corrective action before sensitive receptors are
significantly affected. To achieve this, the regulations require that
downgradient wells be placed at the waste boundary, which is defined as
the vertical surface located at the hydraulically downgradient limit
(i.e., the edge) of the CCR unit, extending down into the uppermost
aquifer. These downgradient wells are used to monitor for any
contaminants leaking or seeping into the groundwater.
Additionally, under the existing regulations in Sec. 257.91, each
CCR unit must have its own groundwater monitoring system, unless the
owner or operator chooses to install a multiunit groundwater monitoring
system. The existing rule specifies that if a multiunit system is
installed, it must be equally capable of detecting background and
groundwater contamination at the waste boundary as an individual
monitoring system, based on the consideration of several factors,
including the number, spacing, and orientation of the CCR units, the
hydrogeologic setting, the site history and the engineering design of
the CCR units.
There are two main reasons why EPA is proposing increased
flexibility in establishing the location of the groundwater monitoring
systems and ensuring compliance with the groundwater and corrective
action standards in 40 CFR part 257.
First, as discussed in Units III.D. and IV.B. of this preamble, the
WIIN Act provided EPA with new tools, including critical oversight
mechanisms while preserving the interpretation of section 4004(a) as
requiring a baseline standard of protection without mandating
uniformity in how it is achieved. Furthermore, as explained in Unit
III.D. of this preamble, EPA maintains broad discretion to adopt
performance-based criteria based on a record of protectiveness across
various state instances. In developing the 2015 CCR Rule, EPA
promulgated performance standards that provided only a limited degree
of flexibility in line with a self-implementing regulatory structure to
ensure that requested modifications are protective and technically
appropriate.\28\ EPA largely based the proposed groundwater monitoring
requirements on those for MSWLFs in the 40 CFR part 258 criteria,
albeit with certain modifications to tailor the requirements to the
self-implementing CCR regulatory structure. In particular, EPA did not
include some of the alternatives available in part 258, which establish
alternative standards allowing a state, as part of its permit program,
to tailor the default requirements to account for site-specific
conditions at the individual facility.\29\ Thus, EPA adapted the
proposed requirements for CCR units by incorporating certain provisions
from the 40 CFR part 265 interim status regulations, which operate in
the absence of a permit, and by including, in several of the proposed
requirements, a certification by an independent registered professional
engineer that the rule's requirements had been met.\30\
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\28\ The 2015 CCR Rule was designed to be self-implementing,
meaning that the requirements allowed facilities to comply with the
regulations without the need to interact with a regulatory
authority.
\29\ In both the proposal and the final 2015 CCR Rule, EPA
indicated that in the absence of a mandated state oversight
mechanism to ensure that suggested modifications are technically
appropriate, these kinds of provisions could operate at the expense
of safety and environmental protection. 80 FR 21398, April 17, 2015.
\30\ 80 FR 21396, April 17, 2015.
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With the new tools provided by the enactment of the WIIN Act, EPA
now has the authority to issue permits, enforce the regulations, and
approve state CCR permit programs; consequently, there are now
regulatory-based oversight mechanisms to allow for alternative
compliance pathways, such as an approved alternative boundary, while
ensuring the actions pose no reasonable probability of adverse effects
to health and the environment. Prior to the WIIN Act, the only
enforcement mechanism was through filing a citizen suit under RCRA 7002
which would have been initially based on the information available on
the facility's website.
Second, the Agency has received feedback from industry indicating
that precisely defining the unit boundary of some units, particularly
older legacy surface impoundments, can be challenging. In some
instances, waste boundaries were established decades ago based on
natural features that may now be obscured or have changed over time.
According to industry, depending on the circumstances, location and
physical characteristics of a unit, it may be beneficial to move the
point of compliance downgradient to a distance where uncertainties
along the waste boundary are minimized, including ensuring that
monitoring wells are not inadvertently placed into the waste.
Furthermore, EPA is aware that, for certain facilities, the waste
boundary may not always serve as the most effective point of compliance
for groundwater monitoring. Accessibility issues may arise due to
physical obstacles such as gas and power lines or site design
constraints such as run-off controls and liner anchors. Additionally,
perched water tables or other hydrogeologic phenomena may cause
leachate from a CCR unit to travel laterally for a significant distance
before reaching the uppermost aquifer. In such cases, a monitoring
system installed solely at the waste boundary could potentially miss
all or significant portions of a contaminant plume.
In considering the development of this proposal, EPA reviewed many
state CCR and municipal solid waste regulatory programs, such as
Florida, Illinois, North Dakota, Tennessee, North Carolina, and
Wyoming, and identified several that have allowed monitoring points of
compliance beyond the waste boundary. This element of a groundwater
monitoring system is not surprising as a monitoring well placed
[[Page 18999]]
near rather than at the boundary of a waste unit can detect a release
from a broader area. When developing the self-implementing CCR rules,
EPA determined that using the waste boundary location and qualified
engineer certification represented a standard that was implementable
without regulatory oversight or involvement. Now with the authority to
both issue permits and enforce the technical standards and the ability
of EPA to allow for non-uniformity in attaining the RCRA protectiveness
standard, EPA is proposing a second approach to allow for the permit
authority to adjust the technical standards (such as the alternative
point of compliance for groundwater monitoring and corrective action).
Recognizing these site-specific situations and considering the
additional authorities provided by the WIIN Act of 2016, EPA is
proposing a regulatory amendment that would allow the Participating
State Director or EPA, when serving as the permit authority, to
establish alternative points of compliance that are no more than 150
meters from the waste boundary and located on the facility, only if the
Director finds, based on specific criteria and a demonstration by the
owner or operator, that the alternative point of compliance, together
with location characteristics, will (1) Not materially delay detection
of either a statistically significant increase over background levels
for a constituent in appendix III or statistically significant levels
above the groundwater protection standard of any of the constituents
listed in appendix IV from that CCR unit and (2) Minimize the migration
of any of those constituents from that CCR unit to the uppermost
aquifer during the active life of the CCR unit and the post-closure
care period based on specific criteria. Authorizing a permit authority
to establish an alternate point of compliance within 150-meters of a
CCR unit aligns with current regulations governing very small quantity
generators (40 CFR part 257, subpart B, Disposal Standards for the
Receipt of Very Small Quantity Generator Wastes at Non-Municipal Non-
Hazardous Waste Disposal Units) and MSWLFs (40 CFR part 258, Criteria
for Municipal Solid Waste Landfills). Additionally, while requiring a
monitoring well at the waste boundary works well within a self-
implementing program with no permit authority oversight, it results in
a very limited zone of detection for each well. A single monitoring
well placed at the very edge of the CCR unit is only capable of
detecting a release from a small portion of the CCR unit and any
release would need to be in close proximity to the well. Alternately, a
well placed further away from the edge of the CCR unit can be capable
of detecting releases from a larger portion of the CCR unit when the
release migrates as it expands horizontally (i.e. spreads out). At the
other end of the spectrum, placing a well a significant distance (e.g.,
one mile) downgradient will be unlikely to detect many releases as the
plume spreads out and its impacts are diluted over space. Consequently,
having a limit is essential for avoiding the effects of delayed
detection such as preventing large expanses of contamination, costly
cleanups, and potential new Superfund sites. Delayed detection of a
release or leak could increase the likelihood of contamination
spreading over a larger area. When there is a significant distance
between the source of contamination (e.g., the CCR unit) and the point
of detection (e.g., monitoring wells), more land may become
contaminated before the issue is identified. In extreme cases, large-
scale contamination could result in the site being designated as a
Superfund site.
By setting a maximum distance limit, EPA aims to enhance regulatory
flexibility for CCR unit owners and operators, based on established
criteria while still having a system that will timely identify a
release. These criteria are designed to help the permit authority
determine appropriate groundwater monitoring points of compliance
(i.e., groundwater monitoring well locations) to accommodate site-
specific conditions while maintaining protection against adverse
effects to health and the environment. The criteria are as follows:
Consideration of the facility's hydrogeological features
and surrounding land, including aquifer attenuation and dilution
characteristics;
Adherence to location restrictions as specified in
Sec. Sec. 257.61 through 257.64;
Compliance with corrective action procedures outlined in
Sec. Sec. 257.96 through 257.98;
Assessment of the volume and physical and chemical
characteristics of the leachate;
Evaluation of the quantity, quality, and direction of
groundwater flow underlying the facility;
Consideration of the proximity and withdrawal rates of
groundwater users;
Availability of alternative drinking water sources;
Analysis of existing groundwater quality, including other
sources of contamination and their cumulative impacts; and
Evaluation of public health, safety, and welfare effects.
In developing this proposal, EPA reviewed various EPA regulations
that authorize a permit authority to establish an alternative point of
compliance. Historically, EPA has recognized that fixed compliance
boundaries may not be universally applicable due to the diverse
geological and operational characteristics of waste management
facilities. For example, under the framework of 40 CFR part 257,
subpart A (Criteria for Classification of Solid Waste Disposal
Facilities and Practices), States with approved Solid Waste Management
plans may establish an alternative boundary if, after thorough
examination of the site-specific situation, a finding is made that an
adjustment of the boundary would not result in contamination of
groundwater needed or used for human consumption.
In the preamble to the 1979 final rule establishing this
regulation, EPA evaluated various options for the point of compliance
(i.e., at what point in the aquifer does contamination from the
facility or practice constitute non-compliance), including use of other
distance specifications in lieu of the property boundary in order to
try to respond to reviewers' concerns about the potential for
contamination of large expanses of groundwater.\31\ The proposal
requested comments on alternative distances and the rationale for
specification of such distances. Various distances were suggested in
the public comments to the proposed rule; however, no basis was
presented for selection of one distance over another at that time.
While there was a rationale for limiting migration of contamination to
within the designated waste disposal areas to protect neighbors who may
use the untreated groundwater as drinking water supply, there was no
rationale for limiting migration to any particular distance. In
evaluating this issue EPA recognized that the point of compliance must
be established at a point at which it is feasible to monitor. Ideally,
the best way to protect present and future users of an aquifer is to
ensure that drinking water standards are not violated anywhere in the
aquifer, including the area immediately under the waste material.
However, in the 1979 preamble EPA indicated that any attempt to monitor
directly under the waste would present two major difficulties. First,
an environmental risk may be posed by the installation of monitoring
wells through the waste
[[Page 19000]]
material or in areas where waste will be deposited. EPA was concerned
that such wells may become conduits for direct flow of waste
constituents (e.g., leachate) into the aquifer. EPA also stated that,
while it may be theoretically possible to construct a well that doesn't
allow such infiltration, the technology for this had not been
sufficiently demonstrated that EPA would want to encourage this
practice on a national scale. Secondly, the immediate proximity of
waste to the well, in conjunction with the ``conduit'' phenomenon,
would undermine the utility of the monitoring well. Samples extracted
would not be likely to be representative of the aquifer; rather, they
would be likely to contain concentrated leachate, overestimating the
contamination of the aquifer.
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\31\ 44 FR 53447, September 13, 1979.
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EPA also examined the possibility of other fixed distances from the
center of the waste area.\32\ This approach was rejected because it was
impossible to establish a uniform distance that would be meaningful for
the vast number of situations to which this standard applied. In some
instances, a fixed distance would mean that monitoring wells would
still be placed through waste material. A longer distance might, in
some cases, put the point of compliance beyond the area of likely
placement of drinking water wells.
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\32\ 44 FR 53448, September 13, 1979.
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After examining all these approaches, EPA concluded that the solid
waste boundary was the appropriate point for application of the
standard. With that as the point of compliance, groundwater
contamination would be detected as soon as possible without presenting
the risks inherent in monitoring under the waste. Likewise, it avoided
the problem of guessing the distance at which a potentially affected
party is likely to put a drinking water well.
However, in the 1979 final rule, EPA recognized the need for some
flexibility to allow States with approved solid waste management plans
to establish an alternative boundary if, after a thorough examination
of the site-specific situation, it is determined that adjusting the
boundary would not result in contamination of groundwater needed or
used for human consumption. Accordingly, the existing Solid Waste
Disposal regulations in Sec. 257.3-4(b)(2) permit an approved State to
set an alternative boundary for a facility, replacing the solid waste
boundary, only if it is found that this change will not result in the
contamination of groundwater intended for human consumption. This
determination must be based on an analysis and consideration of factors
outlined in Sec. 257.3-4(b), including: (1) The hydrogeological
characteristics of the facility and surrounding land, (2) The volume
and physical and chemical characteristics of the leachate; (3) The
quantity, quality, and direction of flow of groundwater underlying the
facility; (4) The proximity and withdrawal rates of ground-water users;
and (5) Public health, safety, and welfare effects.
The Agency also considered moving the point of compliance in 1991
when revisions were made to the Criteria for Classification of Solid
Waste Disposal Facilities and Practices set forth in 40 CFR part 257,
in response to the 1984 Hazardous and Solid Waste Amendments to RCRA.
This action also introduced a new part 258, which established revised
minimum federal criteria for MSWLFs, including requirements for
groundwater monitoring.
In the 1991 final rule, EPA set a maximum distance from the MSWLF
for establishing the alternative boundary or relevant point of
compliance. During the public comment period of this rule, the Agency
received a number of comments regarding the alternative boundary
designation, which would allow groundwater monitoring wells to be
placed at distances up to 150 meters from the waste management unit
boundary.\33\ Several commenters argued that the 150-meter boundary was
overly conservative and inflexible. Several commenters suggested other
alternative boundary locations including: the property boundary and
unlimited locations, based on the risks posed by the facility. These
arguments were countered, however, by other commenters who expressed
concern that the allowable distance was excessive, would simply allow
dilution of contamination, and would delay detection of contamination.
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\33\ 56 FR 51068, October 9, 1991.
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In the final rule, the Agency ultimately disagreed with commenters
who argued that the proposed approach was unnecessarily stringent. In
developing the proposed rule, EPA considered setting the alternative
boundary at the property boundary or not stipulating any limit. These
options obviously would provide the greatest flexibility in addressing
the practicable capability of owners and operators of MSWLFs. However,
due to the size of some MSWLF facilities, EPA was concerned that large
expanses of groundwater could be contaminated before detection. Thus,
the Agency believed it was essential to set a maximum distance limit
for the alternative boundary (referred to in the MSWLF rule as the
``relevant point of compliance'') that would limit groundwater
contamination yet still provide some flexibility to owners and
operators of MSWLFs. The Agency also specified in the final rule that
the alternative boundary (or the relevant point of compliance) must be
located on property owned by the owner or operator to prevent
contamination off site. The Agency believed this approach provided
sufficient flexibility, while at the same time, limiting the area of
contamination.
The existing MSWLF regulations in part 258 also specify that, in
determining the point of compliance, the Director of an approved state
shall consider several factors, including: (1) The hydrogeologic
characteristics of the facility and surrounding land; (2) The volume
and physical and chemical characteristics of the leachate; (3) The
quantity, quality, and direction, of flow of groundwater; (4) The
proximity and withdrawal rate of the groundwater users; (5) The
availability of alternative drinking water supplies; and (6) The
existing quality of the groundwater, including other sources of
contamination and their cumulative impacts on the groundwater, and
whether the groundwater is currently used or reasonably expected to be
used for drinking water. Under part 258, subpart E, multiunit
monitoring systems must consist of a sufficient number of wells,
installed at appropriate locations and depths, to yield groundwater
samples from the uppermost aquifer that represent the quality of
background groundwater and the quality of groundwater passing the
relevant point of compliance. Section 258.51(a)(2) requires that the
downgradient monitoring system be installed at the relevant point of
compliance (not to exceed 150 meters from the unit on land owned by the
owner or operator) designated by an approved State. In determining
where to place monitoring wells in a multiunit facility in compliance
with Sec. 258.51(a)(2), the approved State draws an imaginary line
around all units at the facility. This line would constitute the
relevant point of compliance for a multiunit system. Therefore, wells
must be placed at this imaginary line. Of course, the approved State
must first make the determination that it is appropriate and protective
to use a multiunit monitoring system based on the factors described
above.
Therefore, considering the information above, the ability of EPA to
allow for non-uniformity in attaining the RCRA protectiveness standard,
and the new tools provided to EPA by the
[[Page 19001]]
WIIN Act, EPA is proposing to allow the permit authority to establish
alternative points of compliance for groundwater monitoring and
corrective action of no more than 150 meters from the waste boundary,
provided certain criteria are met. This approach is also similar to
current regulations governing other solid waste disposal
facilities.\34\
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\34\ Solid waste disposal facilities (40 CFR part 257, subpart
A, Classification of Solid Waste Disposal Facilities and Practices),
VSQGs (40 CFR part 257, subpart B, Disposal Standards for the
Receipt of Very Small Quantity Generator Wastes at Non-Municipal
Non-Hazardous Waste Disposal Units) and MSWLFs (40 CFR part 258,
Criteria for Municipal Solid Waste Landfills).
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In developing this proposal, EPA is contending with two main
considerations: site-specific flexibility, which would be approved by
the permit authority based on criteria, and the need for early
detection. Therefore, establishing a maximum distance from the waste
boundary is essential to avoid delaying detection. However, EPA is
soliciting comments on what set distance (other than 150 meters) may be
most appropriate for CCR units.
Additionally, the Agency solicits comment on an alternative that
would allow the permit authority to establish the alternative point of
compliance for groundwater monitoring and corrective action no further
from the CCR unit than the facility boundary (rather than the 150-meter
limit). Specifically, EPA is seeking comments on how the facility-
boundary approach could be implemented. In the preamble to the 1979
final rule establishing the Sec. 257.3-4 (Criteria for Classification
of Solid Waste Disposal Facilities and Practices) regulations, EPA
initially considered setting the point of compliance at the facility
property boundary.\35\ However, concerns were raised about future
property owners potentially using contaminated groundwater as a
drinking source, the possibility of large expanses of groundwater
contamination if the facility property was extensive, and the potential
for owners purchasing additional property to delay corrective action.
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\35\ 44 FR 53445, September 13, 1979.
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Therefore EPA, seeks comments on strategies to prevent potential
widespread groundwater contamination and to ensure early detection and
timely corrective action in cases where the alternative point of
compliance is located further away from the waste boundary,
specifically when the facility property is extensive or if units are
sold off or parceled before contamination is detected. For example,
some state programs also authorize a buffer zone or a ``zone of
discharge,'' which allows the facility to defer remediation of
groundwater contamination for some period of time, usually until the
contaminant plume has migrated to the facility site boundary. Florida,
Illinois, North Dakota, and Tennessee are among those states with such
a regulatory provision.
Further, EPA is soliciting comment on whether it would be
beneficial to allow the permit authority to combine groundwater
monitoring and corrective action systems for all types of CCR units
into zones (i.e., the equivalent of ``area(s) of concern'' or `solid
waste management area'') for the purpose of groundwater monitoring and
corrective action. This flexibility would be especially relevant in
situations where the CCR surface impoundment or CCR landfill is
situated among CCRMU, a release has occurred, and both the regulated
CCR unit and the CCRMU are likely contributors to the release (i.e.,
commingled releases). EPA specifically requests examples where the
permit authority may prefer to combine CCRMU with other types of CCR
units, such as CCR surface impoundments, CCR landfills, and legacy CCR
surface impoundments, across the facility into a single groundwater
monitoring and corrective action zone, essentially creating a facility-
wide groundwater monitoring network.
Lastly, EPA solicits comments on whether lateral expansions, new,
or replacement CCR units should be ineligible for an alternate point of
compliance for groundwater monitoring and corrective action. The Agency
believes that owners and operators of these CCR units should be able to
account for the presence of structures or obstacles during the planning
process and should be able to place monitoring wells at the closest
practical distance from the relevant waste boundary. However, this may
not be true for existing units that were constructed without
considering the need for groundwater monitoring well installation.
Therefore, the Agency is requesting comment on whether the flexibility
to establish an alternative boundary should be limited to existing CCR
units.
b. Groundwater Protection Standards for Corrective Action
EPA is proposing two new provisions at Sec. 257.111. The first
provision would allow the permit authority to establish alternative
groundwater protection standards, based on specific criteria, for
constituents for which a federal MCL has not been established under
Sec. Sec. 141.62 and 141.66 as referenced at Sec. 257.95(h)(1). The
second provision would require the permit authority to consider
additional factors when establishing alternative groundwater protection
standards, including the presence and concentrations of other
contaminants in the groundwater.
Under the existing regulations, if groundwater monitoring
demonstrates an exceedance of the groundwater protection standards for
constituents identified in appendix IV of part 257 above a
statistically significant level, corrective action is required, as laid
out in Sec. Sec. 257.96 through 257.98. These requirements apply
throughout the active life and any post-closure care period of the CCR
unit.
As stated in the preamble to the 2010 CCR Proposed Rule, in EPA's
view, the objectives of a groundwater monitoring and corrective action
regime, along with the analytical techniques for evaluating groundwater
quality, are similar regardless of the specific wastes in a disposal
unit or whether the unit is a landfill or surface impoundment.
Therefore, EPA largely modeled the 2010 proposed groundwater monitoring
and corrective action requirements for CCR landfills and surface
impoundments after those for MSWLFs in the 40 CFR part 258
criteria.\36\ At the same time, however, EPA was mindful of the
differences in the statutory authorities for establishing criteria for
CCR landfills and surface impoundments versus MSWLFs and very small
quantity generator (VSQG) facilities, and in particular, the
possibility that a state may lack a permit program for CCR disposal
units. Accordingly, EPA sought to tailor the CCR requirements to
account for the self-implementing framework. EPA chose to include
requirements for a certification by a qualified professional engineer
or, in some cases, hydrologist, in lieu of the state approval
mechanisms that are used in the 40 CFR part 258/257, subpart B
criteria.
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\36\ 75 FR 35204, June 21, 2010.
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In the 2010 CCR Proposed Rule, EPA included a provision in Sec.
257.95 allowing the owner or operator to establish an alternative
groundwater protection standard for constituents for which federal MCLs
have not been established under the Safe Drinking Water Act, provided
that the alternative groundwater protection standard had been certified
by a qualified professional engineer and the state had been notified
that the alternative groundwater protection standard was placed in the
operating record and on the owner's or operator's publicly accessible
internet site. This provision had been adopted from the part 258
[[Page 19002]]
regulations. However, it was not finalized in the 2015 CCR Rule because
the Agency determined that it was inappropriate for a self-implementing
rule, as it was unlikely that a facility would have the scientific
expertise necessary to conduct a risk assessment, and it was too
susceptible to potential abuse.\37\ Additionally, numerous comments
were received suggesting that only those constituents with federal MCLs
be included in appendix IV because only federal MCLs would be
enforceable under a self-implementing rule.
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\37\ 80 FR 21405, April 17, 2015.
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However, as discussed in Units III.A., III.D., and IV.B., now that
EPA has the authority to issue permits, enforce the regulations, and
review and approve state CCR permit programs, which can serve as
oversight mechanisms to evaluate site-specific conditions. Furthermore,
EPA maintains broad discretion to adopt performance-based criteria
based on a record of protectiveness in various state instances under
the interpretation of section 4004(a) as requiring a baseline standard
of protection without mandating uniformity in the manner of attaining
that baseline standard. Therefore, the Agency is proposing to adopt two
provisions. These provisions would allow a permit authority (either the
Participating State Director or EPA), to establish alternative
groundwater protection standards, based on specific criteria, for
constituents for which federal MCLs have not been established under the
regulations referenced at Sec. 257.95(h)(1) (i.e., Sec. Sec. 141.62
and 141.66) and to consider additional factors when establishing these
standards. This proposal has one key change from the 2010 CCR Proposed
Rule: the proposed language now allows the permit authority to make a
determination on whether to allow alternative groundwater protection
standards based on a set of criteria and factors, rather than relying
solely on certification by a qualified professional certification. The
alternative groundwater protection standards would have to be
appropriate health-based levels that satisfy the following criteria:
The level is derived in a manner consistent with Agency
guidelines for assessing the health risks of environmental pollutants.
For example, 51 FR 34006, Supplementary Guidance for Conducting Health
Risk Assessment of Chemical Mixtures,\38\ which supplements 51 FR
34014; the Guidelines for Developmental Toxicity Risk Assessment,\39\
which amends 51 FR 34028; and the Guidelines for Carcinogen Risk
Assessment,\40\ which amends 51 FR 33992;
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\38\ USEPA, ``Supplementary Guidance for Conducting Health Risk
Assessment of Chemical Mixtures'', EPA/630/R-00/002, August 2000.
\39\ USEPA, ``Guidelines for Developmental Toxicity Risk
Assessment'', EPA/600/FR-91/001, December 1991.
\40\ USEPA, ``Guidelines for Carcinogen Risk Assessment'', EPA/
630/P-03/001F, March 2005.
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For carcinogens, the level represents a concentration
associated with an excess lifetime cancer risk level (due to continuous
lifetime exposure) within the 1 x 10-4 to 1 x
10-6 range; and
For systemic toxicants, the level represents a
concentration to which the human population (including sensitive
subgroups) could be exposed to on a daily basis that is likely to be
without appreciable risk of deleterious effects during a lifetime. For
purposes of this subpart, systemic toxicants include toxic chemicals
that cause effects other than cancer or mutation.
In establishing the alternative groundwater protection standards,
the permit authority must consider the following:
The presence and concentrations of other contaminants in
the groundwater;
Exposure threats to sensitive environmental receptors; and
Other site-specific exposure or potential exposure to
groundwater.
EPA solicits comments on the criteria and factors that should be
considered when establishing an alternative groundwater protection
standard for constituents without established federal MCLs in the
regulations referenced at Sec. 257.95(h)(1) (i.e., Sec. Sec. 141.62
and 141.66). Additionally, EPA seeks input on any different approaches
for determining these alternative groundwater protection standards and
their merits. Specifically, EPA requests examples of state programs
that utilize alternative groundwater protection standards and the
methods, authority, and implementation of those programs.
2. Closure and Post-Closure Care Requirements
EPA is proposing to codify permit flexibilities for units
undergoing closure or post-closure care under a federal or
participating-State CCR permit. These revisions would allow the
Participating State Director or EPA, when serving as the permit
authority, to assess an owner or operator's closure plan and approve a
unit closure that deviates from the existing standards in Sec.
257.102(c) and (d) when the permit authority determines that the
planned closure will have no reasonable probability of adverse effects
to human health and the environment during the active life of the CCR
unit and the post-closure care period. Additionally, EPA is proposing
to allow the permit authority to extend closure timeframes for CCR
units where CCR is being extracted from the unit for beneficial use
during closure. EPA is also soliciting comment on whether to adopt an
outstanding proposal from 2018 that would allow a permit authority to
establish an alternative post-closure care period under certain
conditions. Lastly, EPA is proposing to allow a permit authority to
permit the disruption of the cap during the post-closure care period,
commonly referred to as ``unzipping'' the cap, to provide access for
the extraction of CCR for beneficial use.
a. Closure Method
In the 2015 CCR Rule, EPA finalized closure performance standards
for two methods of closure, closure by removal of CCR from the unit and
closure with CCR in place. Under Sec. 257.102(c), closure by removal
is considered complete when CCR has been removed; any areas affected by
the releases from the CCR unit have been removed or decontaminated; and
groundwater monitoring concentrations of the constituents listed in
appendix IV of part 257 do not exceed groundwater protection standards
established pursuant to Sec. 257.95(h). The rule specifies that
removal and decontamination activities include removing all CCR from
the unit, CCR mixed with soils, and CCR included in berms, liners, or
other unit structures, and removing or decontaminating all areas
affected by releases from the CCR unit.
For an owner or operator to close a CCR unit in place, the closure
performance standards in Sec. 257.102(d) must be met. These closure
performance standards require that the unit is closed in a manner that
will: (1) 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 or to the atmosphere; (2) Preclude the probability of
future impoundment of water, sediment, or slurry; (3) Include measures
that provide for major slope stability to prevent the sloughing or
movement of the final cover system during the closure and post-closure
care period; and (4) Be completed in the shortest amount of time
consistent with recognized and generally accepted good engineering
practices. Additionally, Sec. 257.102(d)(2)(i) requires that free
liquids must be eliminated by removing
[[Page 19003]]
liquid wastes or solidifying the remaining wastes and waste residues.
Free liquids is currently defined as ``liquids that readily
separate from the solid portion of a waste under ambient temperature
and pressure.'' This definition has resulted in significant comments
from regulated entities, stating the definition is overly stringent and
unnecessarily complicated. Commenters pointed to other EPA programs,
such as RCRA subtitle C, claiming that facilities may close their units
in place, fully saturated, provided the units do not release free
liquids.
As discussed in Unit III.D. of this preamble, following publication
of the Legacy Final Rule, EPA received many comments from members of
industry on the risk assessment and risk associated with CCR units.
Berkshire Hathaway (BH) notes that EPA's risk assessments ignore
differences in regional and site-specific risk profiles. Instead of
relying on a generic national-scale assessment, BH urged EPA to allow
regulated facilities to submit individual risk assessments. USWAG
stated in their comments on the Legacy Final Rule that ``the importance
of risk assessment in the rule development process under RCRA cannot be
overstated. A risk assessment, when properly done, identifies the
specific risks potentially posed by a disposal practice and estimates
the magnitude of those risks.'' In their January 2025 letter to EPA
Administrator Lee Zeldin, USWAG states, ``the Rule could be vastly
improved by moving away from one-size-fits-all self-implementing
program to one that provides certainty through the issuance of permits
and allows decisions to be made on risk and site-specific conditions.''
As described later in this section and in Unit IV.A.2. of this
preamble, members of industry have identified cases in which state
regulators approved the closure of CCR units after an evaluation of
risk determined there were no unacceptable risks or threats to
downstream receptors. Therefore, EPA is proposing to allow the permit
authority to approve closures that vary from the existing performance
criteria in Sec. 257.102, based on site-specific considerations and
criteria, to ensure facilities with complex challenges can close using
tailored technical requirements that differ from the 2015 CCR Rule,
while not posing a reasonable probability of adverse effects to human
health and the environment. As stated in Unit III.D. of this preamble,
the existing regulations were developed under a self-implementing
framework with no oversight mechanisms to ensure site-specific
modifications would be protective and technically appropriate. As a
result, EPA did not include alternatives available in other programs
under RCRA or CERCLA, which establish standards allowing a permit
authority to tailor the baseline requirements for site-specific
conditions. With the establishment of CCR permitting programs run by
EPA or participating States, EPA is proposing to provide the
opportunity for permit authorities to allow adjustments to the
technical requirements of the 2015 CCR Rule that incorporate site-
specific factors. As discussed in Units III.D. and IV.B. of this
preamble and described next regarding the use of conceptual site
models, the ability for regulatory oversight through permit issuance
and enforcement enables EPA to create another compliance pathway to
meet the RCRA protectiveness standard utilizing adjusted requirements
tailored to the site-specific risks presented by each CCR unit.
Under the proposed flexibility to the closure standard, the permit
authority may evaluate and approve a closure that differs from the
requirements in Sec. 257.102(c) or (d), based on a determination that
the alternative closure achieves the standard of no reasonable
probability of adverse effects to human health and the environment.
Under this alternative, the permit authority's approval must be based
on a site-specific conceptual site model (CSM) and risk assessment of
the facility area in which the CCR unit is located. This assessment
must include the following: field collected measurements, aquifer
characteristics, waste characteristics, climatic conditions, leachate
characteristics, engineered controls, fate and transport predictions,
exposure pathways, and downgradient receptors.
CSMs are excellent tools to achieve, communicate, and maintain
consensus between project partners. They are widely used throughout EPA
programs such as Superfund, RCRA subtitle C, and subtitle D. A CSM is
an iterative, `living representation' of a site that summarizes and
helps all parties understand available information. A CSM uses a
concise combination of written and graphical work products to portray
both known and hypothesized site information. Using CSMs is considered
a best management practice for technical effectiveness and resource
efficiency. To properly quantify and understand potential risk from a
CCR unit, site-specific criteria would be required to be included
within the creation and evolution of a CSM.
When working through the information to understand a unit, it is
helpful to initially take a step back and look at the regional and
locational geography and topography of an area to establish a
foundation of understanding. However, EPA is proposing to require a CCR
unit's CSM to have site-specific data to build off the initial
foundation. Therefore, adequate characterization via field collected
measurements must be utilized for the creation of a unit's CSM. Field
measurements to understand the subsurface geology and stratigraphy are
essential to understanding the subsurface forces at play within and
below a CCR unit. Groundwater elevation, groundwater discharge and
recharge, hydraulic conductivity, hydraulic gradient, effective
porosity, and degree of saturation build the CSM to inform and define
the aquifer(s). When looking at hydrogeology, it is imperative to not
assume aquifer homogeneity. Many aquifers are heterogeneous and vary
over lateral and vertical distance. Without a good understanding of the
features such as degree of fracturing, secondary porosity, and
geochemistry of the soils and bedrock, obtaining an accurate
determination of fate and transport pathways to downgradient receptors
is unlikely. Many times, these features and their characteristics are
what provide the preferential pathways for the constituents listed in
appendix III and IV of part 257. Innovative sampling or surveying may
be useful for facilities with large CCR units or deep aquifers.
Geophysical surveying can provide expenditure relief, but it is
essential that the assumptions made during such surveys are
corroborated with field hydrogeologic data.
In building the CSM, after the foundation and understanding of the
subsurface is established, the evaluation and inclusion of the
emplaced, or disposed material would need to be evaluated to understand
the potential impacts that material may have on the surrounding
environment. It is known that CCR consists of multiple types of
material of varying characteristics. As an example, fly ash tends to
have a much smaller grain size than bottom ash. Lower permeability
materials, such as fly ash, will likely hold onto liquid, because of
this common property of fly ash, members of industry have mentioned
that it is very difficult to entirely dewater units. For example, in
their White Paper--Recommendations for Updating the Federal Coal
Combustion (CCR) Regulations, CCIG mentions a member who is closing a
large impoundment. While the member has been dewatering the unit to
provide a stable subgrade for final closure
[[Page 19004]]
construction, the fine-grained CCR materials yield water very slowly,
making it impossible to remove all liquid prior to placing the cover
system within the closure timeframe allowed under the existing
regulations. CCIG urged EPA to revise the performance standards to
account for practical and risk considerations. EPA understands that for
older facilities, it may be difficult to know exactly what was emplaced
and when. This criteria of the waste emplaced and its characteristics,
such as composition, solubility, density, the presence of immiscible
constituents, Eh and pH, must be evaluated, when feasible, as it
provides information on how the CCR will interact with the surrounding
environment.
After establishing an understanding of the regional area, site-
specific hydrogeology, and emplaced CCR, the owner or operators should
incorporate into the CSM any additional engineered controls that are
currently ongoing at the site as these controls impact the surrounding
and subsurface forces at play. One of the most common engineered
controls that we see at CCR units is the cap or cover of the unit. If
CCR is left in place, a final cover must be installed within the
appropriate timeframe. In accordance with the existing regulations, a
description of the final cover and the procedures to be used to install
the final cover must be provided in the unit's closure plan. The owner
or operator must also ensure the design of the final cover system meets
the performance standards specified in the regulation. The final cover
system must be designed to have a permeability less than or equal to
the permeability of any bottom liner system or the natural subsoils
present, or a permeability no greater than 1 x 10-5
centimeters per second (cm/sec), whichever is less.
Since the promulgation of the 2015 CCR Final Rule EPA has received
inquiries about the potential of alternative covers, specifically
regarding engineered turf covers. EPA reviewed documentation on the
components and performance of engineered turf as a final cover system
and considers it to be sufficient if it meets the performance standards
in the regulation. Engineered turf as a final cover consists of a
three-component system: a structured geomembrane, engineered turf, and
specified infill. The structured geomembrane layer acts as a barrier
layer minimizing, or more ideally eliminating, infiltration while also
providing a drainage layer to minimize hydraulic head on the liner. The
engineered turf portion provides protection from UV degradation and
soil erosion. The specified infill layer provides a protection layer,
both covering and underlying the geotextile backing and geomembrane
from UV degradation. It additionally provides protection from wind
uplift and protects the turf from fire. Documentation on engineered
turf provided to the Agency identified that under the Hydrologic
Evaluation of Landfill Performance (HELP) model, engineered turf
outperforms prescriptive subtitle D-required covers with geocomposite
drainage by an order of magnitude. That being said, it is imperative
for the owner or operator to demonstrate the final cover system, even
if engineered turf, meets the required performance standards and the
permit authority must concur with the findings.
Additional engineered examples that should be evaluated and
included in the CSM can range from pump-and-treat systems to barrier
walls, and other remedial infrastructures. For example, if a unit is in
corrective action and has an operating pump-and-treat system to capture
the plume of an appendix IV constituent, the redirection or impact on
the local groundwater may change previous understandings of
preferential pathways or exposure pathways. It is important to
understand the purpose and impact engineered control(s) have on a unit,
and its intended lifespan and what were to happen if and when the
engineered control(s) were to be removed. Contaminant fate and
transport groundwater modeling is a common tool that can be utilized to
understand an area, it's subsurface, and what influences and impacts an
environment. For contaminant fate and transport or even a more
simplistic groundwater flow model to be effective, it must have site-
specific information imbedded in the model.
As a living representation, CSMs are not intended to be a one-and-
done administrative task, rather they are an opportunity to take what
we know of a unit, expand our knowledge, and ground-truth the
information we have. It is a best practice to update CSMs as new
information is obtained that improves our understanding of a facility
or a unit. If a unit is not properly characterized, the CSM will be
limited, data gaps will likely cause challenges down the line that
ultimately led to higher expenditure for closure or remediation.
The second part of the assessment consists of a risk assessment. As
mentioned above in this section and in Unit IV.A.2., members from
industry have informed EPA that they have units previously closed in
place, under state oversight, based on a determination of no
unacceptable risk. As described in Unit III.D. of this proposal, the
2014 and 2024 Risk Assessments are based on high-end exposure levels.
Many in the regulated community have stated that the one-size-fits-all
solution does not accurately relate to their facilities and units and
that a site-specific risk assessment should be allowed to provide
flexibility and address challenges faced in the closure process. This
is especially expressed by those in the regulated community that have
previously closed their CCR unit under state oversight that required a
risk assessment and state concurrence with any conclusion of no
unacceptable risk to human health and the environment.
As noted in Unit IV.B. above, the majority of state and industry
commenters on the proposal that resulted in the 2015 CCR rule preferred
regulations that would allow site-specific approaches to establishing
standards (See 80 FR 21331-21234). Commenters argued that the
prescriptive one-size-fits-all approach was overly stringent and
inflexible and had the potential to greatly disrupt implementation of a
state's regulatory programs, which have been tailored to provide for
site specific conditions and situations. As described in Unit III.D.,
EPA acknowledges that the CCR universe includes a variety of sites and
site conditions and therefore, no single site can represent all
regulated facilities. An example highlighting the uniqueness of sites
and the need for site-specific approaches is Georgia Power's Grumman
Road CCR Unit, located in Chatham County. This unit is owned and
operated by Georgia Power and previously used for the disposal of CCR
for Georgia Power's Plant Kraft. Additionally, all ongoing work on and
related to this unit is overseen and regulated by the Georgia
Environmental Protection Division (EPD). The unit being discussed here
is separate to the unit previously discussed in Unit IV.A.2. of this
preamble discussing the Kraft Legacy CCR unit closed under Georgia's
Voluntary Remediation Program. The unit was retired in late 2015 and is
regulated under the Federal Rule and Georgia's Solid Waste Management
CCR Regulations 391-3-4.10.
The Grumman Road CCR unit has a monitoring well system, with
lateral well spacings ranging from approximately 230 feet to 414 feet,
with an average lateral well spacing on the order of 324 feet. This
well network has been established for both detection and assessment
monitoring of appendix III and appendix IV constituents. This unit has
undergone many iterations of its CSM, with each revision growing in
specificity to understand the
[[Page 19005]]
interworking of not only the immediate subsurface of the unit, but also
the surrounding environmental and anthropogenic factors impacting the
unit. Over the years, Georgia Power has worked alongside Georgia EPD, a
State with a partially approved CCR program, to further develop the
unit's CSM. Additionally, via fieldwork, sampling and bench tests,
Georgia Power has developed many iterations of Hydrogeological
Assessment Reports under the oversight of the state.
As mentioned earlier, a robust site-specific characterization is
key in understanding any site including the surrounding environment in
which it is located. The permit drawings of the Grumman Road CCR unit
identify a small percentage of saturation for the southern portion of
the unit, which is likely in contact with groundwater year-round.
According to Georgia Power, another site-specific factor that
influences decision making for this unit, are anthropogenic impacts
from an adjacent landfill's release of leachate. Georgia Power states
that the adjacent landfill's seep impacts the Grumman Road CCR Unit by
changing the redox conditions of the aquifer, which is inducing
mobilization of arsenic and molybdenum as dissolved constituents in
groundwater. Such characterization details must be understood in order
to evaluate releases from the CCR unit in the context of background and
other factors. This does not change the fact that Grumman Road has an
ongoing release and that it must be addressed via corrective action. In
coordination with Georgia EPD, Georgia Power initiated an Assessment of
Corrective Measures program for Grumman Road in December 2020.
As part of the Assessment of Corrective Measures, Georgia Power
conducted a Risk Evaluation, which can be found in appendix B of the
Remedy Selection Report. The provided report relies on risk approaches
outlined in Georgia's Voluntary Remediation Program with components of
the Risk Assessment Guidance for Superfund (RAGS). The Risk Evaluation
considered potential transport pathways, exposure pathways, and both
current and future receptors. Georgia Power reviewed the concentrations
and statistics for wells of the unit, individually. Additionally,
Georgia Power conducted modeling to estimate the current areal extent
of the plume. Georgia Power concluded in their risk evaluation that the
SSL-related constituents arsenic and molybdenum are not expected to
pose a risk to human health or the environment.
It is understood that remedial investigations, feasibility studies,
determinations of the most effective remedial technologies and
implementation of those technologies take time. Additionally, there is
the time for the remedial technology to influence, reduce, or eliminate
source zones, which will in turn, impact whatever risk(s) may be
present at a site. According to Georgia Power, the lack of immediate
exposure allows for the comprehensive evaluation of remedial
technologies and a deeper understanding of the geochemistry of the
subsurface. This is detailed in Georgia Power's Assessment of
Corrective Measures Report Appendix A, the Geochemical Site Model.
While this site is still undergoing corrective action, it supports the
use of regulatory flexibility based on site-specific information and
risk evaluations. Aquifer geochemistry, anthropogenic impacts, and
other site-specific conditions cannot be generically applied across all
sites, which is why a robust CSM is critical for the purposes of
decision-making. It is important to note that EPA recognizes that a
remedy has not yet been selected and additional work is necessary in
order to complete corrective action.
In another example, the state of Tennessee and its Department of
Environment and Conservation (TDEC) issue a Commissioner's Order to TVA
at seven coal-fired power plant facilities. This Order required TVA to
conduct environmental investigations and assessments for all CCR
disposal areas. One of the required deliverables from the Order was a
risk assessment, to be included in the Corrective Action/Risk
Assessment (CARA) Plan. TVA submitted a CARA for the Allen Fossil Plant
West Ash Disposal Area, which according to TVA, was found to be
acceptable by TDEC. This can be found on both TDEC's website, TVA's
public website, and within docket of this proposal. TVA presented their
findings from their Draft CARA for the John Sevier Fossil Plant to
identify current challenges with the Rule. The John Sevier Draft CARA
contained a CSM of the site and a risk assessment that evaluated risk
both for human health and ecological risks.
Under this proposal, if Tennessee were to apply for CCR permit
program, and if the program is ultimately approved, TDEC could approve
TVA's proposed closure (i.e., authorize TVA to close with saturated CCR
in place), if TDEC concluded, based on an evaluation of the CARA, that
the proposed closure does not pose a reasonable probability of adverse
effects to human health or the environment based on the criteria set
forth in this proposed regulation. EPA expects the permit authority to
ensure all current and future human and ecological receptors are
considered within the risk assessment and CSM. This would require the
owner or operator to evaluate all current and any future planned land
use, identify receptors, and exposure routes. If corrective action is
ongoing or an engineered control is onsite, the potential risk should
be evaluated if or when the acting life of the engineered control or
corrective action is ceased.
Another example supporting this flexibility was provided by Vistra
Corp. Vistra had a CCR unit that was taken out of service in 1996 and
has been subject to groundwater sampling since that time. The utility
closed the unit pursuant to state approval. Standing water was removed,
and a final cover system was installed pursuant to the federal CCR Rule
in 2020. The final cover consisted of a compacted soil barrier clay
layer with a minimum of 24 inches of earthen material with a maximum
permeability of 1 x 10-7 cm/s. According to Vistra, in
limited areas, ash may be saturated with groundwater during higher
flood events. While an exceedance of an appendix III constituent has
been detected, the company states that the data demonstrates that
simply dewatering and taking the unit offline resulted in significant
decreasing trends of the appendix III constituent, with some wells now
achieving compliance with the groundwater protection standard. Under
this proposal, once the state's CCR permit program was approved, the
state could approve the closure described above, if the state
determined the closure posed no reasonable probability of adverse
effects to health or the environment after conducting a review as
discussed above.
A final example of the need for this flexibility is the East Ash
Basin at Duke Energy's Roxboro Steam Electric Plant in North Carolina.
During and after the Legacy Rulemaking, Duke provided information to
EPA on past, present, and future activities at their facilities
conducted under the oversight of the NCDEQ and pursuant to the 2020
Consent Order and under the oversight of North Carolina's CCR program.
According to Duke Energy, there are two CCR surface impoundments at the
Roxboro facility, the East Ash Basin and the West Ash Basin, and a CCR
landfill, the Industrial Landfill. Neither of the impoundments receive
CCR wastestreams anymore. The Industrial Landfill receives CCR from
electrical production and for CCR consolidation from other CCR units at
the facility. The
[[Page 19006]]
East Ash Basin was approximately 71 acres and contained approximately
7.1 million tons of CCR. The Industrial Landfill was constructed
partially atop and adjacent to the East Ash Basin and is approximately
132 acres in size.
Duke Energy submitted a closure plan to NDEQ by the December 31,
2019 deadline set by the 2016 CAMA and in accordance with a 2019
settlement agreement between Duke and NCDEQ. NCDEQ subsequently
approved the closure plan which included excavating approximately 15.4
million tons of CCR from surface impoundments at Roxboro. The closure
plan also allowed the East Ash Basin to close with some saturated ash
remaining in the unit underneath the overlying Industrial Landfill.
According to Duke Energy, closure of the surface impoundments, under
the oversight of NCDEQ, is ongoing at the facility with a completion
deadline of December 2036, pursuant to the 2020 Consent Order. The
primary activities are source removal and capping measures, with
1,116,988 tons of ash and soil excavated from the East Ash Basin and
4,153,402 tons from the West Ash Basin as of July 2025.
Duke submitted the Roxboro East Ash Basin Corrective Action Plan
(CAP) to NCDEQ in December 2019 in accordance with CAMA. NCDEQ
conditionally approved the CAP in April 2021. A pilot testing phase
began in November 2021, followed by the full-scale system start-up in
January 2023. Under the 2020 Consent Order which applies to the Roxboro
surface impoundments among other surface impoundments in the state,
groundwater standards for constituents of interest must be met by
December 31, 2029, at the geographic limitation, 500 feet downgradient
of the waste boundary. Pursuant to the conditions of the 2020 Consent
Order, groundwater modeling updates are required every three years,
with the first update submitted to NCDEQ in September 2023. The CAP
system includes a pump-and-treat-system consisting of 41 extraction
wells, 3 node boxes, and 29,390 linear feet of piping and an engineered
liner on top of the East Ash Basin was installed to control
contamination coming from the unit. According to Duke, the system's
average flow rate decreased from 108 gallons per minute (gpm) to 80 gpm
due to bedrock dewatering. Extracted water is treated before discharge
through a permitted NPDES outfall. Duke has stated that hydraulic
gradient reversal is occurring at the facility and thus prevents
constituents of interest migration toward surface water receptors,
ensuring no unacceptable risks to human health or the environment. The
utility has provided data that it claims demonstrates that groundwater
quality around the East Ash Basin has improved significantly, with 62
percent of all constituents of interest and 83 percent of primary
constituents meeting compliance standards at or beyond the geographic
limitation as of the fourth quarter of 2024. Duke contends that the
high boron concentrations are attributed to non-ash basin sources, and
trends show decreasing or stable levels for most constituents of
interest.
Duke points to the CAP data, the risk assessment required under
CAMA, the oversight of NCDEQ and the permanent alternative water
sources that have been provided to nearby residents as a precautionary
measure, as evidence that the closure of the East Ash Basin is
protective of human health and the environment and as an example of
both the need for site-specific considerations, especially with regard
to closure, and the sufficiency of state-led compliance activities.
The NCDEQ-approved closure of the East Ash Basin would not meet the
current federal CCR closure requirements; for example, the requirement
to remove all free liquids prior to installing the final cover system.
Under this proposal, the permit authority (either the state's CCR
permit program once it was approved or the federal CCR permit program)
could evaluate the NCDEQ closure and conclude the closure poses no
reasonable probability of adverse effects to health or the environment
and no further closure activities are required to comply with the
federal CCR closure requirements.
As described in Unit III.D. of this preamble, such a site-specific
determination was not available under the 2015 CCR Rule as EPA lacked
permitting and enforcement authority. Now with the new tools provided
by the WIIN Act, and EPA's broad discretion to adopt performance-based
criteria based on a record of protectiveness, enable EPA to adopt
provisions that create another pathway for compliance with the federal
CCR regulations. Specifically, this provision would allow EPA or a
participating-state permit authority to establish alternative closure
requirements through the permitting process based on site-specific
information.
Solicitation of comment. Although the current proposal applies
exclusively to closure, many of the same issues were raised in the
context of corrective action. EPA is therefore soliciting comment on
whether to expand this provision to allow a permit authority to approve
corrective action remedies that do not meet the requirements of Sec.
257.97(b) based on the results of a site-specific risk assessment that
meets the criteria discussed above. EPA is also soliciting comment on
what, if any, change in burden the proposed provision or the expansion
of the proposed provision to corrective action would have on state
permitting authorities.
EPA is also soliciting comment on a provision in 85 FR 12456, which
was proposed on March 3, 2020. In this 2020 proposal, EPA proposed to
allow the use of CCR during the closure of a unit subject to closure
for cause if such placement is conducted under an approved closure
plan. The 2020 proposed alternative would be implemented as an
exemption to the waste placement prohibition. It is unclear if this
2020 proposal should be finalized, as the new proposed permitting
closure flexibility of closure would allow the permit authority to make
site-specific determinations to allow for this utilization of CCR
during closure. Therefore, EPA is soliciting comment on whether this
provision should be finalized as proposed under the first option in the
2020 proposed rule.
Finally, EPA is soliciting comment on an alternative provision that
would provide flexibility regarding the drainage and stabilization
requirements for CCR units closing with waste in place at Sec.
257.102(d)(2)(i). Under this alternative provision, owners or operators
could close a unit with saturated CCR in place if a permit authority
has determined that certain conditions were met. In order to obtain
this flexibility, the permit authority must evaluate the closure plan
and ensure the following: (1) To promote the workability and stability
of the final cover for the CCR unit, standing liquid and sufficient
subsurface liquid has been eliminated; (2) The hydraulic condition
within the CCR unit will not adversely impact the stability of the
final cover system or the ability for the remaining wastes to support
the final cover system; (3) The hydraulic condition within the CCR unit
will not adversely impact the ability to implement any corrective
action(s) necessary to meet the requirements of Sec. Sec. 257.96-
257.98; and (4) The hydraulic condition within the CCR unit will not
result in a reasonable probability of adverse effects to human health
and ecological receptors as determined through a site-specific
assessment that evaluates all potential exposure pathways. If the
permit authority determines that all these conditions
[[Page 19007]]
have been met, the owner or operator can close with CCR in place in
accordance with the provisions in Sec. 257.102(d) aside from the
requirement at Sec. 257.102(d)(2)(i) (i.e., any liquids remaining in
the CCR unit need not be removed).
b. Closure Timeframes for CCR Units Extracting CCR for Beneficial Use
During Closure
EPA is proposing to allow the permit authority to extend closure
timeframes for CCR units where CCR is being extracted from the unit for
beneficial use during closure. In the 2015 CCR Rule, EPA finalized
closure timeframes that adopted the approach recommended by commenters
of tiered timeframes based primarily on size of the surface
impoundment, and the concept of a rebuttable presumption that the owner
and operator of a CCR surface impoundment must complete closure of the
CCR unit within five years of initiating closure activities. For CCR
landfills, the owner or operator of the unit must normally complete
closure within six months of initiating closure activities.
When reviewing comments on the 2010 CCR Proposed Rule regarding the
closure timeframes and potential extensions, many of the regulated
community identified concerns regarding the challenges in estimating
closure timeframes. As a response, with the provided record at that
time, EPA established a tiered approach for closure timeframe
extensions which could be applied under the self-implementing
regulatory framework.
The tiered approach adopted for the 2015 CCR Rule allows CCR
surface impoundments additional time dependent on size of the unit,
using surface area acreage of the CCR as the determining factor for
defining the size of the unit. Smaller impoundments, defined as 40
acres or less have the maximum extension time of two years.
Impoundments larger than 40 acres are allowed a maximum of five two-
year extensions, with the requirement that the owner or operator must
substantiate the factual circumstances demonstrating the need for each
two-year extension. Closure extensions for CCR landfills do not vary
dependent on size. Rather, all CCR landfills are allowed the maximum of
two one-year extensions. Similarly to surface impoundment units, the
owner or operator of the CCR landfill document the factual
circumstances demonstrating the need for each one-year extension. The
documentation must include the exact reason why additional time is
needed. The regulation includes examples such as: complications
stemming from climate and weather, time required to dewater a surface
impoundment due to the volume of CCR or the CCR geotechnical
characteristics, the geology and terrain surrounding the CCR, and the
time required or delays caused by the need to obtain state permits or
to comply with other state requirements.
With the record provided, EPA determined in the 2015 CCR Final Rule
that the initial timeframes would be sufficient to close most, if not
all CCR units and therefore, the extensions would accommodate for any
potential delays caused by weather or other instances designated as
``force majeure.'' However, uncertainties within the provided record
were identified and documented in the 2015 CCR Rule such as: the Agency
mentioned it had no information on the geotechnical properties of the
CCR that can affect the time needed to dewater a unit, the volumes of
clays, soils, and other materials that would be needed for closure, and
the information on the time to obtain state approvals. Further, EPA
stated in the preamble that the level of uncertainty increases with
impoundments larger than 40 acres. Some documentation in the record
indicates that closure for units larger than 40 acres can be closed
within the same timeframe but other case studies provided stated that
closure was expected to take much longer than five years.
The Legacy Final Rule revised the closure timeframes set forth in
the 2015 CCR Rule for owners or operators of landfills that were
identified as having CCR in contact with groundwater and therefore,
needed additional time to dewater the unit. The amount of time
extended, similarly to surface impoundments, was dependent on the
acreage of the landfill. Therefore, a landfill in this situation less
than 40 acres may receive a maximum extension of two years and those
greater than 40 acres may receive a maximum extension of 10 years, in
two-year increments. Similarly to the provisions in the 2015 CCR Rule,
documentation of the need for this extra time must be documented.
Commenters of the 2015 CCR Rule recommended another approach of
allowing closure timeframes to be governed by an adequate state-
approved closure process. In the 2015 Final Rule, EPA identified that
under a self-implementing program, the Agency cannot rely on the
existence of the state permit authority to implement subtitle D
requirements. With the enactment of the WIIN Act, EPA now has ``new
tools'' to achieve its regulatory goals, namely the authority to issue
permits, enforce the regulations, and approve state CCR permit
programs; with the oversight mechanisms provided by the ``new tools'' a
permit authority is able to implement the criteria to ensure an
extended closure timeframe still meets the required standard of no
reasonable probability of adverse effects on health or the environment.
Since promulgation of the 2015 CCR Rule, states and members of the
regulated community expressed concern or have provided EPA with
information to demonstrate the infeasibility of the existing closure
timeframes for CCR units who wish to excavate CCR for beneficial use
during closure. For example, TVA stated that certain units could not
complete extraction of CCR for beneficial use within the current
closure deadlines. To support this claim, TVA pointed to larger volume
units, units that start CCR extractions partway through the closure
process, or units that have already completed closure.
Further, PacifiCorp has expressed concern that the existing CCR
regulations do not provide sufficient time for closure by removal.
According to PacifiCorp, the extension process and the maximum
timeframe may still be inadequate to maximize excavation and beneficial
use opportunities. PacifiCorp requested that EPA consider not requiring
multiple timeline extension demonstrations for closure that involve
extraction of CCR for beneficial use, provided that the initial
extension schedule is appropriately supported by extraction and
beneficial use contracts. In their request, it was suggested that
industry could provide regular updates in the form of annual progress
reports. By having the flexibility, PacifiCorp maintained that it would
ultimately enhance environmental protection through source removal.
As another example, Talen Energy stated that there are challenges
in finding a beneficial use provider capable of accepting millions of
tons of CCR over many years. Further, the utility has claimed that
removing, loading, and hauling of millions of tons of CCR from a single
source and within the current timeframes is not always possible.
According to Talen Energy, there are several conditions that pose
challenges to meeting the existing deadlines when closing by removal
with CCR extraction for beneficial use as a component, such as: lack of
onsite space to build a new landfill, or available landfill capacity;
local road impacts, due to the amount of trucks; bridge load
restrictions; community opposition to increased truck traffic; demand
for the end-product (e.g., cement) or raw
[[Page 19008]]
materials, which limits the rate of outgoing CCR; safety concerns with
basin excavation and specialized CCR product handling; additional
volumes of CCR identified during closure; and non-CCR material
identification and disposal. Accordingly, the utility suggested that
EPA allow for flexibility regarding the closure timeframes when
extracting CCR for beneficial use from the closing CCR unit.
Southern Company reached out to EPA to discuss their progress with
projects involving the extraction of CCR for beneficial use. According
to the company, all their extracted CCR is encapsulated in the form of
either concrete block, as filler, or otherwise used in the cement or
concrete manufacturing process. According to Southern Company, they
have taken a market-driven approach to the extraction of CCR and strict
adherence to the existing closure timeframe or certain closure
activities could impact the ability of the CCR supply to continue to
meet demand.
In addition to industry, States have also requested flexibility.
For example, Tennessee has requested that EPA consider adjusting
timeframes for closure to allow for CCR extraction of beneficial use.
Further, the Agency has received input from states requesting EPA allow
flexibility with respect to determining timeframes.
Recognizing these site-specific situations, and considering the new
tools provided by the 2016 WIIN Act, EPA's ability to allow for non-
uniformity in achieving the RCRA protectiveness standard, and EPA's
discretion to adopt performance-based criteria based on a record of
protectiveness, EPA proposes to allow flexibility for permit
authorities to authorize adequate time to complete extraction of CCR
for beneficial use from CCR units undergoing closure. The proposed
amendment would authorize a permit authority to review and approve
closures that include as, a component of the overall closure method,
extraction of CCR for beneficial use, only if the Director finds, based
on specific criteria and a demonstration by the owner or operator, that
there would be no reasonable probability of adverse effects on health
or the environment.
EPA is proposing to establish criteria for the closure flexibility
assessment that will be conducted by the permit authority. Such an
evaluation is unit-specific, so the permit application, which would
include a detailed closure plan and any supporting documents such as
detailed design drawings and schedules, must be adequate to support the
evaluation. First, the permit authority must ensure measures for major
slope stability are in place to prevent the sloughing or movement of
the unit during the closure period. Second, the permit authority must
determine the extraction of CCR and closure will be completed
consistent with recognized and generally accepted good engineering
practices. Third, the permit authority must consider whether all
potential risks to human health and the environment during closure of
the unit are adequately mitigated. Fourth, the permit authority must
evaluate whether the facility is in substantial compliance with all
other requirements of this subpart, including the requirement to
conduct groundwater monitoring and any necessary corrective action. By
ensuring that groundwater monitoring and corrective action activities
continue throughout the extended closure timeframe, the permit
authority will have the ability to require the facility to take action,
if necessary, to ensure there will be no reasonable probability of
adverse effects on health or the environment. Lastly, the owner or
operator must proceed with closure activities of any portion of the CCR
unit that is not related to the extraction of CCR for beneficial use
within the existing timeframes in Sec. 257.102 to the extent possible.
Under this approach, the permit authority could extend the closure
timeframe for owners or operators of units during which extractions of
CCR will occur during the closures. It is important to note that any
extension of the final closure date will occur under conditions where
the unit has groundwater monitoring in place and corrective action
requirements will be triggered should a release be detected--these
requirements can be relied upon by the permit authority in making its
protectiveness determination.
Solicitation of comment. The Agency is soliciting comment on
whether to allow the permit authority to extend timeframes for all
closures, regardless if the closure includes beneficial use activities.
Additionally, the Agency requests comment if there should be a ``good
cause'' condition, or whether there should be criteria to frame the
discretion by the permit authority. Furthermore, EPA is requesting
comment on specifying that the closure timeframe flexibility can also
be applied to allow adequate time to complete extraction of CCR for
critical mineral recovery activities. While the recovery of critical
minerals from CCR is not a direct use of the CCR, it is a resource
recovery activity (i.e., an activity supported by RCRA statutory
provisions) that has the potential to play a crucial role in
maintaining technological advancement, economic growth, and national
security. Critical minerals are a group of elements and compounds that
are essential in the production of modern technologies and industries.
Examples of these minerals include lithium, cobalt, nickel, graphite,
manganese, and rare earth elements such as neodymium, praseodymium, and
dysprosium. Their unique properties, such as conductivity, magnetism,
and strength, make them indispensable for various technological
applications.
The Department of Energy's National Laboratories have developed
several technologies that focus on extracting critical minerals and
rare earth elements from CCR. Each method has been tested at the lab
scale and is ready for companies to further develop, refine, and scale
into commercial systems.\41\ However, these technologies are still at
an early stage in development, and there are several barriers to
overcome before full-scale commercial critical mineral extraction
activities are feasible. EPA requests comment on using closure and
post-closure flexibilities as a way of encouraging the development of
this industry, and requests information on any other regulatory
barriers to developing environmentally protective processes for
critical mineral extraction from CCR. Information on commercialization
would be particularly helpful, including a projected timeline and the
specific barriers yet to be addressed, such as environmental and
economic factors. EPA also requests information on likely
commercialization models with their logistics, such as planned location
for recovery operations, (e.g., onsite at a utility or off-site at a
regional center; types of activities necessary to prepare CCR for
processing; expected amounts and management of CCR prior to critical
minerals recovery; preferred technological processes to extract, purify
and separate critical minerals; and residuals or wastes generated by
the technologies, including the characteristics and the ultimate
management of those wastes).
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\41\ U.S. Department of Energy. A new chapter for coal:
Commercialization opportunities at DOE labs. Retrieved November 12,
2025, from https://www.energy.gov/technologycommercialization/articles/new-chapter-coal-commercialization-opportunities-doe-labs.
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c. Post-Closure Care Flexibility for Units Undergoing Extraction for
Beneficial Reuse
Following closure of a CCR unit, the owner or operator is required
to conduct
[[Page 19009]]
post-closure care of any closed unit where CCR was left in place as
part of closure. At a minimum, the owner or operator is required to
comply with at least the following: (1) Maintain the integrity and
effectiveness of any final cover system, including making repairs to
the final cover as necessary to correct the effects of settlement,
subsidence, erosion, or other events, and preventing run-on and run-off
from eroding or otherwise damaging the final cover; (2) If the CCR unit
is subject to the design criteria under Sec. 257.70, maintain the
integrity and effectiveness of the leachate collection and removal
system and operate the leachate collection and removal system in
accordance with the requirements of Sec. 257.70; and (3) Maintain the
groundwater monitoring system and monitoring the groundwater in
accordance with the requirements of Sec. Sec. 257.90 through 257.98.
See Sec. 257.104(b).
Additionally, the existing CCR regulations identify the minimum
information necessary to include in the post-closure care plan. This
information includes: (1) A description of the monitoring and
maintenance activities required by Sec. 257.104(b), and the frequency
at which these activities would be performed; (2) 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 (3) A
description of the planned uses of the property during the post-closure
care period. The proposed rule further provided that the post-closure
use of the property shall not disturb the integrity of the final cover,
liner(s), or any other components of the containment system, or the
function of the post-closure monitoring systems unless necessary to
comply with the requirements of the rule. As written, the existing
regulations at Sec. 257.104(d)(1)(iii) do allow for a disturbance if
the owner or operator of the CCR unit can demonstrate that disturbance
of the final cover, liner, or other component of the containment
system, including any removal of CCR, would not increase the potential
threat to human health or the environment. Such a demonstration is
required to be certified by a qualified professional engineer or
approved by the Participating State Director or EPA, where EPA is the
permit authority. Additionally, a 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 CCR website.
Since promulgation of the 2015 CCR Rule, states and members of the
regulated community expressed concern that the current regulations
could be interpreted in such a way as to prevent extraction of CCR for
beneficial use during the post-closure care period. Specifically, there
is concern that the requirement to maintain a cap over the unit would
prevent access to the material beneath the cap for beneficial use
projects. Members of industry has asked for an allowance for disturbing
the cap to provide such access, commonly referred to as ``unzipping''.
The Agency maintains that under the existing rules, the owner or
operator of the CCR unit has the ability to demonstrate that
disturbance of the final cover, liner, or other component of the
containment system, including any removal of CCR, would not increase
the potential threat to human health or the environment. A qualified
professional engineer is required to certify such a demonstration. See
Sec. 257.104(d)(1)(iii). Nevertheless, to avoid any uncertainty EPA is
proposing a new provision to explicitly allow a permit authority to
have the flexibility to approve the extraction of CCR from a closed CCR
unit during the post-closure care period under certain conditions.
Under this approach, for extraction of CCR for beneficial use during
the post-closure period, the permit authority may adjust the minimum
criteria only if the authority finds, based on a demonstration by the
owner or operator, that any extraction of CCR for beneficial use will
not pose a reasonable probability of adverse effects to human health
and the environment. In reaching this determination, the permit
authority must conclude all of the following: the extraction of CCR
will be completed consistent with recognized and generally accepted
good engineering practices; potential risks to human health and the
environment during post-closure are adequately mitigated; and the
facility is in substantial compliance with all other requirements of
this subpart, including the requirement to conduct post-closure care,
groundwater monitoring and any necessary corrective action.
d. Modification of the Post-Closure Care Period
The current regulations at Sec. 257.104(c)(1) state that the owner
or operator of a closed CCR unit must conduct post-closure care for 30
years unless at the end of the 30 years corrective action is on-going,
or the CCR unit is operating under assessment monitoring, in which case
the owner or operator must continue to conduct post-closure care until
the unit has returned to detection monitoring.
In 2018, following the enactment of the WIIN Act, EPA proposed to
adopt a provision analogous to Sec. 258.61(b), that would allow the
Director of a participating state to decrease the length of the post-
closure care period if the owner or operator demonstrates that the
reduced period is sufficient to protect human health and the
environment and this demonstration is approved by the Director. It also
would allow the Director of the participating state to increase the
length of the post closure period if the Director determines a
lengthened period is necessary to protect human health and the
environment. 83 FR 11584, 11603-604 (Hazardous and Solid Waste
Management System: Disposal of Coal Combustion Residuals From Electric
Utilities; Amendments to the National Minimum Criteria (Phase One))
EPA-HQ-OLEM-2017-0286; FRL-9973-31-OLEM).
Due to competing priorities EPA did not finalize that proposal and
it remains pending. EPA is now again soliciting comment on whether to
adopt those proposals.
C. Beneficial Use
EPA is proposing to revise the definition of beneficial use for CCR
to recognize that the first three criteria in the beneficial use
definition provide a sufficient framework for identifying when
placement of CCR on the land, whether encapsulated or unencapsulated,
roadway or non-roadway, constitutes a beneficial use rather than
disposal under the RCRA statute. EPA is also proposing to remove the
fourth criterion that currently requires that the ``user must
demonstrate and keep records, and provide such documentation upon
request, that environmental releases to groundwater, surface water,
soil and air are comparable to or lower than those from analogous
products made without CCR, or that environmental releases to
groundwater, surface water, soil and air will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use'' for unencapsulated non-roadway uses on the land
above the threshold of 12,400 tons, finding that: (1) The 12,400 ton
threshold is based on faulty information, (2) The demonstration
requirement poses an unacceptable barrier to beneficial use, and (3)
The fourth criterion is not needed to prevent disposal of
unencapsulated CCR that would present a reasonable probability of
adverse effects on health or the environment. This change in the
Agency's position in regard to the regulation of unencapsulated non-
[[Page 19010]]
roadway CCR use is based on an analysis of past damage incidents and
the most recent industry standards for CCR used as structural fill.
EPA is also proposing new definitions of ``CCR storage pile'' and
``temporary accumulation'' to establish a single set of requirements
applicable to all temporary placement of unencapsulated CCR on the
land, whether managed onsite or off-site, and whether destined for
beneficial use or disposal. These new proposed definitions are similar
to those proposed in 2019,\42\ with some adjustments to the previously
proposed language to make the requirements clearer and less burdensome.
EPA is also proposing to remove the definition of ``CCR pile'' found at
Sec. 257.53 and instead address CCR accumulations that do not meet the
definition of CCR storage pile directly in the definition of CCR
landfill.
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\42\ See 84 FR 40353, August 14, 2019.
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In addition, recognizing the unique role CCR plays as an ingredient
in cement manufacturing, EPA is proposing to add a provision at Sec.
257.50(k) to exclude from the requirements of 40 CFR part 257 CCR at
cement kilns that is destined for use as an ingredient in cement
manufacturing. This proposed provision acknowledges the benefit CCR
provides as an ingredient in cement manufacturing, and how this benefit
incentivizes the management of CCR as a valuable commodity at the
cement kiln and helps ensure it will be appropriately incorporated in
an encapsulated beneficial use. EPA is also requesting comment on
whether it would be helpful to include a regulatory clarification
explaining that the current industry management practices for CCR fly
ash that is used directly in concrete production as a substitute for
Portland cement are not subject to the 40 CFR part 257 CCR
requirements.
Finally, EPA is proposing a new provision at Sec. 257.50(l) to
exclude flue gas desulfurization (FGD) gypsum, when destined to be
applied as an agricultural amendment at agronomically appropriate
rates, and to exclude FGD gypsum destined for use as an ingredient in
wallboard manufacturing.
The proposed categorical exclusions for these three beneficial uses
are based on the specific circumstances of these uses which incentivize
the management of the CCR as a valuable commodity prior to beneficial
use, and on EPA's proposed determination that these uses categorically
meet the definition of beneficial use.
1. Definition of Beneficial Use
a. The First Three Beneficial Use Criteria Provide a Sufficient
Framework for Beneficial Use Determinations
EPA is proposing that the first three criteria of the beneficial
use definition found at Sec. 257.53 provide a sufficient regulatory
framework for identifying when any placement of CCR on the land,
whether encapsulated or non-encapsulated, roadway or non-roadway,
constitutes a beneficial use and not disposal under the RCRA statute.
The first three beneficial use criteria currently apply to all CCR
uses, whether encapsulated, unencapsulated, roadway, or non-roadway.
When EPA proposed to revise the fourth beneficial use criterion in the
2019 CCR proposal, the Agency noted in the proposal that the first
three criteria still remain as finalized in the 2015 CCR rule. (84 FR
40356)
As noted in the 2015 CCR Rule, the first criterion, that CCR must
provide a functional benefit, is designed to ensure that the material
performs a genuine function in the product or use. In other words, the
user must be able to demonstrate a legitimate reason for using CCR in
the product other than the fact that it is an alternative to disposal
of the material. For example, CCR provides a functional benefit when
used as a replacement for cement in concrete because the CCR increases
the durability of the concrete and is also more effective against
degradation from salt water. 80 FR 21349.
The second beneficial use criterion, which states that CCR must
substitute for the use of a virgin material, conserving natural
resources that would otherwise need to be obtained through practices,
such as extraction, is intended to demonstrate the use is truly
``beneficial'' from an environmental perspective. 80 FR 21349. CCR can
be substituted for many virgin materials that would otherwise have to
be mined and processed for use. These virgin materials include
limestone to make cement, and Portland cement to make concrete; mined
gypsum to make wallboard, and aggregate, such as stone and gravel for
uses in concrete and roadbed. It is beneficial to use secondary
materials that would otherwise be disposed of, rather than to mine and
process virgin materials, simultaneously reducing waste and
environmental footprints. 80 FR 21329.
The third criterion, that the use of CCR must meet relevant product
specifications, regulatory standards, or design standards, when
available, and where such specifications or standards have not been
established, CCR may not be used in excess quantities, was intended to
address both the legitimacy of the use and the potential environmental
and human health consequences associated with the use of excess
quantities of CCR, particularly unencapsulated CCR. 80 FR 21349-21350.
The 2015 CCR final rule notes that this criterion can include a
demonstration that relevant engineering specifications are met, such as
the ASTM C 593 test for compaction, the ASTM D 560 freezing and thawing
test, a seven-day compressive strength above 2760 kPa (400 psi), and
ASTM Standard E2277-03,\43\ which provides standard guidance and a
methodology for using CCR in a structural fill. 80 FR 21350.
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\43\ The current version of the standard is ASTM Standard E2277-
14, titled ``Standard Guide for Design and Construction of Coal Ash
Structural Fills,'' reapproved in 2019.
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Design standards are particularly important in the case of
placement of large quantities of unencapsulated CCR in a single
concentrated location, which the 2015 CCR Rule identified as the use
most likely to resemble disposal, and that the current fourth criterion
in the beneficial use definition was designed to address.\44\ ASTM
Standard E2277, which outlines procedures for the design and
construction of engineered structural fills using CCR, is particularly
relevant for these cases. In defining beneficial use, the latest
version of this standard states that one beneficial use defining factor
is that CCR is used in a manner that protects human health and the
environment, which directly speaks to the issue of disposal. The
standard then goes on to discuss several environmental considerations;
CCR engineering properties and behavior; CCR physical and engineering
characteristics; design factors, such as site characterization and
preparation, structural performance and compaction; and construction
considerations, such as dust and erosion control and CCR placement.
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\44\ 80 FR 21351.
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All these provisions help ensure that unencapsulated CCR used as
fill does not meet the statutory definition of disposal, i.e., the
standards prevent the CCR and any constituent thereof from entering the
environment or being emitted to the air or discharged into any waters,
including groundwater. RCRA section 1004(3). The standard also guides
users to determine all applicable local or state guidance, policies or
regulations. Moreover, in addressing the need for chemical
characterization, it guides users to recognize that states may require
specific testing, such as to determine total composition or
leachability of specific metals or other
[[Page 19011]]
elements in CCR. This standard, therefore, defines technical
procedures, includes an environmental scope, and emphasizes users'
responsibility to also ensure compliance with jurisdictional
requirements. In this way, product design and engineering standards
ensure that the use is beneficial and not disposal and play a role in
reducing the potential for environmental and human health consequences
in general. EPA is asking for comment on whether to incorporate the
ASTM E2277 standard by reference in the regulations.
Other types of non-roadway unencapsulated CCR uses include flowable
fill; soil modification and stabilization; waste stabilization and
solidification; aggregate; snow and ice control; and blasting grit. As
noted in the 2015 CCR Rule, these additional unencapsulated uses, in
contrast to structural fill, are not generally expected to be used in
amounts requiring an environmental demonstration under the current
fourth criterion in the beneficial use definition. Moreover, the use of
CCR in these applications is generally not similar to the mounding that
occurs in landfill situations, and several of these applications are
structurally very different from landfills. 80 FR 21353. Like in the
case of CCR structural fill, a number of standards are applicable to
these uses.\45\ EPA requests comment on whether additional standards or
guidance for applying the third criterion to these non-fill
unencapsulated uses would be useful.
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\45\ See Laboratory Testing and Other Relevant Standards and
Guides for CCR Uses, available in the docket.
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b. Proposal To Eliminate the Fourth Beneficial Use Criterion
The fourth criterion in the definition of beneficial use at Sec.
257.53 was intended to specially address the question of whether the
placement of unencapsulated CCR on the land in non-roadway applications
is appropriately considered to be ``beneficial use'' or ``disposal'',
even when the first three criteria are met, and if so, whether that
``disposal'' warrants regulation. By focusing on non-roadway
unencapsulated uses, the fourth criterion applies to uses that EPA
identified in the 2015 CCR Rule as most likely to resemble disposal,
i.e., the placement of large quantities of CCR in a single concentrated
location. However, in preamble to the 2015 CCR Rule, EPA also agreed
with commenters that, ``if constructed correctly, large scale fill
operations can meet all of the criteria for a beneficial use.'' 80 FR
21351.
This criterion can be used to identify when those types of fill
operations that most resemble disposal are genuine beneficial use by
imposing a regulatory requirement that the CCR user conduct an
environmental demonstration that the CCR use does not result in
environmental releases that are (1) Higher than those from analogous
products made without CCR, or (2) Pose risk to human health and the
environment, when that use involves unencapsulated CCR non-roadway uses
on the land over 12,400 tons. This demonstration requirement applies
regardless of whether the CCR use involves a well-constructed fill
operation, meeting all relevant product specifications, regulatory
standards, or design standards, including the ASTM standard E2277 for
structural fill.
While EPA did not intend for the 12,400 ton threshold to be a
bright line between beneficial use and disposal, based on comments from
industry this appears to be how it has frequently operated.\46\
Complicating the situation is the fact that the 12,400 ton threshold
was found to be based on data that were calculated with the wrong unit
conversion factor (assuming the original data were reported in cubic
feet rather than cubic yards). Much of the effort to ``fix'' the fourth
criterion focused on identifying a more defensible basis for a
threshold that would trigger an environmental demonstration, eventually
resulting in the 2019 CCR proposal to set the threshold through
location-based criteria. However, as discussed in Unit III.E. of this
preamble, commenters raised substantive issues with this proposed
approach, as well as with the alternative approaches that the Agency
requested comment on. In addition, EPA's request for more information
via the 2020 NODA did not indicate a clear path forward to establish an
updated threshold.
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\46\ For example, the cement industry has commented on the
current beneficial use definition saying that ``[t]his narrowly
tailored definition and the 12,400-ton threshold exemption from
treatment as disposal were key elements of the rule for cement
manufacturers, as it allowed plants to inventory minimum quantities
of CCPs for use as raw materials in clinker manufacturing, cement,
and blended cements.'' Comment submitted by the Portland Cement
Association on the 2020 NODA, February 22, 2021. EPA-HQ-OLEM-2020-
0463-0035 (emphasis added).
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After reviewing the comments on the 2019 CCR proposal and 2020 CCR
NODA, EPA has reached the conclusion that the operational flaw in the
fourth criterion is not the specific threshold that sets the conditions
for requiring an environmental demonstration, but rather the
environmental demonstration requirement itself. EPA finds that the
environmental demonstration requirement in the fourth criterion, as
currently written, poses an unacceptable barrier to beneficial use.
EPA proposes to conclude, as several commenters on the 2019 CCR
proposal and 2020 CCR NODA posited, that the first three criteria are
sufficient in defining beneficial use and not disposal.\47\ In
considering these comments, EPA has analyzed damage incidents involving
use of unencapsulated CCR as structural fill, and has not found
evidence that CCR use as structural fill that meets the first three
beneficial use criteria presents a reasonable probability of adverse
effects on health or the environment.\48\ Most of the incidents involve
deposits of CCR in sand and gravel pits and quarries, which were
explicitly defined as CCR landfills under the 2015 CCR rule, or sites
that involve both CCR disposal and use as fill. The remaining seven
cases do not clearly indicate compliance with the first three
beneficial use criteria. When considering these incidents in the
context of the past two decades of CCR beneficial use as engineered
fill, involving millions of tons of CCR,\49\ as well as the most recent
ASTM standards for CCR in structural fill discussed earlier, EPA finds
that these criteria adequately address the conditions that constitute
disposal, and therefore EPA is proposing to delete the fourth
criterion.
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\47\ See, e.g., comments from the Cross-Cutting Issues Group
(CCIG) (EPA-HQ-OLEM-2018-0524-0165), National Mining Association
(NMA) (EPA-HQ-OLEM-2018-0524-0161), American Coal Council (EPA-HQ-
OLEM-2020-0463-0029); Utility Solid Waste Activities Group (USWAG)
(EPA-HQ-OLEM-2020-0463-0032) and EPA-HQ-OLEM-2018-0524-0064;
Oglethorpe Power Corporation (EPA-HQ-OLEM-2018-0524-0176); Berkshire
Hathaway Energy Co. (EPA-HQ-OLEM-2018-0524-0146), Aurora Energy, LLC
(EPA-HQ-OLEM-2018-0524-0175): and American Coal Ash Association
(ACAA) EPA-HQ-OLEM-2020-0463-0027.
\48\ EPA 2025 Summary of Damage Incidents Associated with CCR
Used as Structural Fill, available in the docket.
\49\ Based on data reported annually by the American Coal Ash
Association, over the past 24 years, the total amount of CCR that
has been used as structural fill and embankments is more than
85,000,000 tons (ACAA CCP Survey Results, 2000 to 2023).
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c. Applicability of the Revised Beneficial Use Definition
EPA notes that the revised definition of beneficial use would not
apply retroactively. The revised definition, when also considered in
conjunction with EPA proposal to eliminate the definition of CCR pile
(as discussed below), would apply to all future CCR beneficial use
projects that occur after the effective date, whether conducted onsite
at the generating utility or offsite.
[[Page 19012]]
This ensures consistency and clarity across all settings.
d. Interaction With State Beneficial Use Programs
i. Importance of the Role State Programs Play in Regulating Beneficial
Use Under State Law
States have historically implemented programs related to beneficial
use of industrial, non-hazardous secondary materials under their state
laws, and EPA has been recommending entities consult with state
environmental agencies to ascertain that the state considers their
proposed application a beneficial use. As discussed earlier, EPA
excluded beneficial use of CCR from federal regulation under its May
2000 regulatory determination, acknowledging that states bear the
primary responsibility for CCR beneficial use programs under their
existing state authorities. Surveys of state beneficial use programs
conducted by the ASTSWMO have found that states use a variety of formal
and informal decision-making processes or programs to make beneficial
use determinations, and many state programs specifically address the
use of CCR in such applications as cement manufacturing, concrete,
construction projects, landfill cover, and structural
fill.50 51 52 State decision-making authorities come from
statutes, regulations, policy memoranda and guidelines, and some states
also use agency discretion to review requests and decide whether uses
are approvable. Different segments of states' environmental agencies
can make these decisions, either alone, or in collaboration with other
state agencies, such as health, agriculture or transportation.
Decisions can come in the form of permits, written authorizations,
beneficial use determinations, or other methods stipulated in the state
regulations or statutes.
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\50\ ASTSWMO (2007). 2006 Beneficial Use Survey Report.
Association of State and Territorial Solid Waste Management
Officials, November 2007.
\51\ ASTSWMO (2012). Beneficial Use of Coal Combustion Residuals
Survey Report. Association of State and Territorial Solid Waste
Management Officials, September 2012.
\52\ ASTSWMO (2021), Beneficial Use of Fill-Like Materials
Survey Report, Association of State and Territorial Solid Waste
Management Officials, February 2021.
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The various approaches that states have adopted under state law to
determine when a use of a material is beneficial or is disposal under
state laws have allowed states to consider important regional issues
and interests, and the specific geographic, geologic, hydrologic and
climatic conditions at proposed sites. The importance of state
flexibility in making these determinations is reflected in the official
position of the ASTSWMO Board of Directors, which states ``ASTSWMO
prefers beneficial use guidance to a regulatory approach. States need
flexibility to implement procedures that work within their existing
regulatory framework and for making site-specific technical decisions.
ASTSWMO agrees that a proposed use of large quantities of CCR without a
proven functional benefit should be thoroughly investigated, due to
risks of environmental harm, and should not be necessarily viewed as a
beneficial use. However, a ``one-size-fits-all'' regulatory approach is
not practical or effective.'' \53\
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\53\ ASTSWMO. (2023). 2023 ASTSWMO statement on coal combustion
residuals program implementation. Retrieved from https://astswmo.org/2023-astswmo-statement-on-coal-combustion-residuals-program-implementation/.
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As noted in the 2015 CCR Rule, under the current regulations, EPA
expects potential non-roadway users of unencapsulated CCR below the
12,400-ton threshold to work with the states to determine the potential
risks of the proposed use at the site and to adopt the appropriate
controls necessary to address the risks. 80 FR 21353 With the proposed
elimination of the 12,400-ton threshold, EPA would likewise expect all
CCR users of unencapsulated CCR to continue to work with their state to
ensure that the use is considered beneficial under the state
requirements. EPA requests comment on whether the definition of
beneficial use should include a requirement in the regulations to
document state approval of the beneficial use under the state law.
ii. EPA Technical Assistance on Beneficial Use Determinations
Over the years, EPA has issued a number of documents to provide
states technical assistance on making beneficial use determinations,
including the type of site-specific technical decisions that may apply
to certain CCR beneficial uses, including a Beneficial Use Methodology,
Beneficial Use Compendium, national-level beneficial use evaluations,
updates to Industrial Waste Management Evaluation Model, and the
development of Leaching Environmental Assessment Framework (LEAF) Test
Method.\54\ EPA requests comment on whether and what sort of additional
guidance documents would be helpful to states making CCR beneficial use
decisions under their state authority.
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\54\ These tools and other technical assistance documents that
address barriers to the beneficial use of non-hazardous secondary
materials, including CCR, which can be found at https://www.epa.gov/smm/sustainable-management-industrial-non-hazardous-secondary-materials#04 and on the Agency's CCR Reuse web page at https://www.epa.gov/coal-combustion-residuals/coal-combustion-residuals-reuse.
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2. Revisions Related to CCR Accumulations
a. Overview of Proposed Changes Related to CCR Accumulations
EPA is proposing new definitions of ``CCR storage pile'' and
``temporary accumulation'' to establish a single set of requirements
applicable to all temporary placement of unencapsulated CCR on the
land, whether managed onsite or off-site, and whether destined for
beneficial use or disposal. Rather than characterizing such placements
as either disposal or beneficial use, EPA considers that these
activities are better characterized as ``storage,'' with criteria
established pursuant to the authority in RCRA section 1008(a)(3) to
control releases. These proposed standards are similar to the
definitions that EPA proposed in the 2019 CCR rule, with some
adjustments to make the requirements clearer and less burdensome.
As discussed in the 2019 CCR proposal, under the current
regulations, CCR piles are defined as any ``non-containerized
accumulation of solid, non-flowing CCR that is placed on the land. CCR
that is beneficially used off-site is not a CCR pile.'' See Sec.
257.53. The first part of this definition mirrors the RCRA definition
of disposal, which is defined in part as the ``placing of any solid
waste or hazardous waste into or on any land or water so that such
solid waste or hazardous waste or any constituent thereof may enter the
environment or be emitted into the air or discharged into any waters,
including ground waters.'' See 42 U.S.C. 6903(3). Thus, CCR piles are
considered disposal units and therefore are currently included in the
definition of CCR landfill. See Sec. 257.53.
CCR accumulations that are containerized (i.e., that are subject to
measures that the facility has taken to control releases), are not
considered ``CCR piles'' under the current regulations, even if they
otherwise meet the conventional description of a ``pile'' (i.e., an
accumulation or mound of CCR). Examples of containerization measures
include placement of CCR on an impervious base such as asphalt,
concrete or geomembrane; leachate and run off collection; and walls or
wind barriers.
[[Page 19013]]
In addition, off-site non-containerized accumulations of CCR that
meet the definition of beneficial use are also not considered ``CCR
piles'', while onsite non-containerized accumulations of CCR (at an
electric utility or independent power producer site) are CCR piles,
even if they would otherwise meet the definition of beneficial use. See
Sec. 257.53 (definition of CCR pile); 80 FR 21356 (April 17, 2015).
This regulation of onsite CCR accumulations as CCR piles applies to all
onsite non-containerized CCR accumulations, including CCR that has been
used as structural fill onsite. As stated in the Legacy Final Rule,
``under the existing regulations, the direct placement of CCR on the
land on site of a utility, with nothing to control releases is, by
definition, a CCR pile and therefore not beneficial use. The examples
of historical [CCRMU] discussed in the proposal, structural fill and
CCR placed below currently regulated CCR units onsite of a utility also
clearly fit that definition.'' 89 FR 39050.
Thus, in summary, under current regulations, the following CCR
accumulations on the land are CCR piles and therefore regulated as CCR
landfills: any non-containerized CCR accumulation onsite at an electric
utility and any non-containerized CCR accumulation off-site that does
not meet the definition of beneficial use.
This regulatory approach has been the source of confusion, and
stakeholders have also raised concerns over the inconsistency of this
approach. In the 2019 CCR proposal, EPA proposed a definition of ``CCR
storage pile'' in order to establish a single set of requirements
applicable to all temporary placement of unencapsulated CCR on the
land, whether managed onsite or off-site, and whether destined for
beneficial use or disposal, to ensure that such accumulations are
designed and managed to control releases of CCR to the environment.
Rather than characterizing such activities as either disposal or
beneficial use, EPA proposed that these activities are better
characterized as ``storage,'' with criteria established pursuant to the
authority in section 1008(a)(3) to control releases. In addition, as
discussed earlier, EPA is proposing to apply the definition of
``beneficial use'' equally to onsite and off-site beneficial uses.
After considering the public comments on the 2019 CCR proposal, EPA
is proposing several revisions to Sec. 257.53 and conforming changes
in Sec. 257.2 to address the management of temporary CCR
accumulations. Specifically, EPA is proposing to define a CCR storage
pile as ``any temporary accumulation of solid, non-flowing CCR placed
on the land that is designed and managed to control unpermitted
releases of CCR to the environment.'' In addition, EPA is proposing to
define ``temporary accumulation'' to mean ``an accumulation on the land
that is neither permanent nor indefinite. To demonstrate that the
accumulation on the land is temporary, the CCR must be removed from the
pile at the site. The entity engaged in the activity may use ordinary
business records to document that the CCR in the pile will be removed
according to a specific timeline.''
The requirement to control unpermitted releases in the definition
of CCR storage pile is intended to be consistent with the definition of
disposal in 42 U.S.C. 6903(3). As stated in that definition, disposal
includes the ``placing of any solid waste or hazardous waste into or on
any land or water so that such solid waste or hazardous waste or any
constituent thereof may enter the environment or be emitted into the
air or discharged into any waters, including groundwaters.'' When
significant and persistent volumes of unencapsulated CCR are present,
similarities exist in the potential risks posed to human health,
groundwater resources, or the air between the placement of CCR in piles
and placement in CCR landfills, if inappropriately managed. See 80 FR
21356.
Examples of measures that might be used to control releases from a
CCR storage pile include: periodic wetting, application of surfactants,
tarps or wind barriers to suppress dust; tarps or berms for preventing
contact with precipitation and controlling run-on/runoff; and
impervious storage pads, geomembrane liners or tarps for soil and
groundwater protection. EPA is not proposing to impose a specific set
of control measures, as the amount of CCR stored, the location of
storage, and the prevailing weather conditions may affect which
controls are appropriate. Therefore, EPA intends to provide the
entities engaged in the activity with flexibility to determine the
control measures most appropriate to meet the requirement to control
releases at a given site. This flexibility also ensures that EPA's
requirements do not contradict any state or local requirements for the
use of prescribed controls.
In addition, limiting the definition of CCR storage pile to
temporary accumulations prevents the CCR being stored in lieu of
disposal, and also effectively limits the amount of unencapsulated CCR
that will be placed and persist in one location. Due to these factors,
EPA considers that it is not necessary to impose on CCR storage piles
the same set of technical requirements as for CCR landfills, and that
meeting the requirement to control releases of CCR in the definition of
a CCR storage pile, combined with meeting the definition of temporary
accumulation, adequately addresses the conditions that would otherwise
constitute disposal of CCR, either onsite or off-site.
EPA is also proposing a conforming change to the definition of a
CCR landfill to remove ``CCR pile'' from the list of units considered
to be a landfill and instead include ``accumulations of CCR on the land
that do not meet the definition of a CCR storage pile'' in the
definition of CCR landfill. This proposed change would apply to the
definition of CCR landfill in Sec. Sec. 257.2 and 257.53. In addition,
EPA is proposing a technical correction to the definition of CCR
landfill in Sec. 257.2 so that definition conforms to the definition
of CCR landfill in Sec. 257.53, including changes related to the
January 16, 2025 CCR direct final rule and companion proposed rule. See
90 FR 4639.
b. Proposed Changes as Compared to the 2019 CCR Proposal and Requests
for Comment
While the changes proposed in this rule are similar to those
proposed in the 2019 CCR rule, EPA has made some adjustments to make
the requirements more clear and less burdensome. These adjustments
include: (1) Removing the definition of ``CCR pile'' and the
designation of ``CCR pile'' from the definition of landfill, (2) Not
including designation of ``enclosed structure'' in the regulation of
CCR, (3) Not listing the specific examples of control measures for CCR
storage piles in the regulations, and (4) Clarifying in the definition
of ``temporary accumulation'' that ordinary business records are
sufficient for documenting that the CCR has been completely removed
from the pile.
EPA is proposing to remove the definition of ``CCR pile'' and the
designation of ``CCR pile'' from the definition of landfill because of
the possible confusion between ``CCR pile'' and ``CCR storage pile'',
and the redundancy of the ``CCR pile'' definition with the proposed
revision to the definition of CCR landfill, which proposes to add ``any
accumulation of CCR on the land that does not meet the definition of a
CCR storage pile''. This added language to the landfill definition
covers any unit that would be considered a ``CCR pile'' under the
current regulations, and therefore it is
[[Page 19014]]
no longer necessary to have a separate term for this type of
accumulation.
EPA is also making adjustments to the definitions of ``CCR storage
pile'' and ``temporary accumulation'' that were originally proposed in
2019 to increase the flexibility of these requirements and remove
unnecessary burdens. The definition of CCR storage pile is proposed to
require the unit is designed to control unpermitted releases of CCR in
order to account for the fact that such units are often subject to
permitting requirements that directly affect the management of CCR. In
addition, EPA is proposing to not include the specific examples of
controlling releases from CCR piles that were proposed to be included
in the definition in 2019, namely periodic wetting, application of
surfactants, tarps or wind barriers to suppress dust; tarps or berms
for preventing contact with precipitation and controlling run-on/
runoff; and impervious storage pads or geomembrane liners for soil and
groundwater protection. While all these practices remain valid examples
of controlling unpermitted releases, including them in the regulatory
language gave some commenters the false impression that EPA intended
these specific controls were always required, when in some
circumstances they may not be. As noted earlier, EPA intends to provide
the entities engaged in the activity with flexibility to determine the
control measures most appropriate to meet the requirement to control
releases at a given site.
Similarly, EPA is not proposing the definition of ``enclosed
structure'' and its designation as a management unit that would not be
a CCR storage pile because this definition caused some commenters to
conclude that management in an enclosed structure would be a
requirement of the rule. While enclosed structures would continue to be
one method to ensure that unpermitted releases are controlled, such a
structure is not required and including it in the regulation is
unnecessary and potentially confusing.
Finally, EPA is proposing to remove language from the 2019 CCR
Proposal definition of ``temporary accumulation'' that stated the
``entity engaged in the activity must have a record in place, such as a
contract, purchase order, facility operation and maintenance, or
fugitive dust control plan'' and instead has clarified that the entity
``may use ordinary business records to demonstrate that the CCR in the
pile will be removed according to a specific timeline.'' The specific
types of business records would depend on the beneficial use and the
pile location, but some examples may include sales and transportation
contracts, invoices and sales receipts, inventory logs, or shipment
records demonstrating that the CCR storage pile will be removed within
a specific timeline.
EPA requests comments on the adjustments to the 2019 CCR Proposal
language, as well as on the option to keep the current structure of
regulating non-containerized CCR piles that do not meet the definition
of beneficial use as disposal units and simply removing the distinction
between onsite and off-site piles.
EPA is also requesting comment on the types of business records
that would best demonstrate that a CCR storage pile is ``temporary''
and whether a pile custodian could demonstrate that the pile will be
removed according to a specific timeline by issuing a certification.
For example, in cases where pile custodians are not able to provide
business records to demonstrate that piles are temporary due to
existence of proprietary business information, a custodian's
certification may be an appropriate alternative way to show that the
CCR in the pile will be removed according to a specific timeline.
EPA is also requesting comment on adding a provision within the
proposed definition of a temporary accumulation to allow CCR to be
removed from CCR storage piles on a rolling basis. This provision would
expand the proposed definition to cover cases in which storage piles
are supporting established, ongoing operations, and not just the piles
for which removal of a final amount of CCR is expected within a
specific timeframe. The purpose of the provision would be to enable
facilities to continue their operation while also ensuring that the CCR
is continuously getting beneficially used or transferred for disposal,
in lieu of being stored indefinitely in lieu of disposal. The provision
would be similar to how the speculative accumulation requirements that
apply to hazardous secondary materials that are destined for recycling
work. See Sec. 261.1(c)(8). Specifically, entities would demonstrate
that their CCR is not being stored in lieu of disposal by removing at
least 75% of the material from the storage pile each calendar year. The
proximity of the pile to established, ongoing operation could help
demonstrate that the provision is appropriate for the operation. In
addition, EPA is requesting comment on whether to establish a provision
that would authorize a one-time pile that would not be subject to
speculative accumulation limits, provided that all CCR was removed
within a specific time, e.g., 9 months. For example, such a provision
could potentially apply to one-time, short-term piles primarily set up
to meet construction demands where a timeframe of 9 months, which
covers the entirety of the construction season, is sufficiently long
for CCR to be removed.
3. Exclusions for Specific Beneficial Uses
a. Exclusion for CCR Used in Cement Manufacturing at Cement Kilns
EPA is proposing to add a provision at Sec. 257.50(k) to exclude
CCR at cement kilns that is destined for use as an ingredient in cement
manufacturing from the requirements of 40 CFR part 257. This proposed
categorical determination recognizes the benefit CCR provides as an
ingredient in cement manufacturing, and how this benefit incentivizes
its management as a valuable commodity at the cement kiln and helps
ensure it will be appropriately incorporated in an encapsulated
beneficial use. This proposed change would remove regulatory
uncertainty for both the cement kilns and the regulatory authorities,
simplify implementation, and reduce burden. EPA is also requesting
comment on whether it would be helpful to include a regulatory
clarification explaining that the current industry management practices
for CCR fly ash that is used directly in concrete production as a
substitute for Portland cement are not subject to the 40 CFR part 257
CCR requirements.
An encapsulated beneficial use is one that binds the CCR into a
solid matrix that minimizes mobilization into the surrounding
environment, such as the addition of CCR in cement manufacturing at
cement kilns and incorporation in concrete. In general, encapsulated
uses of CCR must comply with the first three criteria in the definition
of beneficial use found at Sec. 257.53: (1) The CCR used must provide
a functional benefit, (2) The CCR must substitute for the use of a
virgin material, conserving natural resources that would otherwise need
to be obtained through practices such as extraction, and (3) The use of
CCR must meet relevant product specifications, regulatory standards, or
design standards when available, and when such standards are not
available, CCR are not used in excess quantities.
EPA has determined that CCR used as an ingredient in cement
manufacturing satisfies these three criteria. CCR used in cement
manufacturing provides a functional benefit in that it increases the
durability of concrete and is more effective in combating degradation
from
[[Page 19015]]
salt water. CCR is also directly used as a substitute for virgin
materials, such as silica, iron, clay, shale, and bauxite in kiln feed,
gypsum in finished portland cement, and clinker in blended cement
products, reducing the need for mining, processing, and transport of
virgin materials and the further disturbance of the environment.
Lastly, when CCR is used as a commercial product, the amount of CCR
used is controlled by meeting careful product specifications.
Several decades of record support that the current beneficial use
of CCR as a replacement for industrial raw materials (e.g., Portland
cement, virgin stone aggregate, lime, gypsum) provides substantial
annual life cycle environmental benefits for these industrial
applications. Cement is a critical ingredient in the production of
concrete, and cement and concrete manufacturing has proven to be among
the highest value encapsulated use of CCR, providing economic and
environmental benefits. Cement kilns have shown to treat CCR as a high-
value feedstock, the same as other raw materials, as it is carefully
inventoried and stored at onsite facilities as valuable commodities in
accordance with the applicable standards, practices, and conditions in
a manner analogous to natural raw materials or other industrial
byproducts used as raw materials.\55\ In 2020, EPA estimated that the
environmental and human benefit of using one ton of CCR in lieu of
virgin materials in the production of portland cement is $69.90
compared to using one ton of virgin fill materials at $2.28. This puts
cement manufacturing among the highest value encapsulated uses of CCR,
providing economic and environmental benefits far greater than those
provided by other uses, and offering further economic incentive for it
to be treated as a valuable commodity. Cement manufacturing also uses a
tightly controlled and precise chemical combination in its complex
systems process where extensive and carefully calibrated environmental
controls are used. Cement kilns will require or conduct laboratory
testing to ensure that supplied CCR meet the applicable specifications
for use in cement or it is rejected.\56\ Cement kilns will also retain
safety data sheets (SDSs) for CCR materials procured for use in the
cement manufacturing process, including fly ash, bottom ash, and
synthetic gypsum, to ensure the health and safety of its employees and
visitors.\57\
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\55\ EPA-HQ-OLEM-2020-0463, Hazardous and Solid Waste Management
System: Disposal of Coal Combustion Residuals from Electric
Utilities; Reconsideration of Beneficial Use Criteria and Piles;
Notification of Data Availability. PCA Response to EPA Request for
Supplemental Documentation. February 2021.
\56\ Id.
\57\ Id.
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In 2014, EPA evaluated the risks and benefits of using CCR in
cement and concrete and based on the findings of the evaluation,
concluded that environmental releases of constituents of potential
concern during use by the consumer are comparable to or lower than
those from analogous non-CCR products or are at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors.\58\ Furthermore, the cement industry already complies with
stringent air and water permitting requirements to control releases
from CCR stored in piles at cement kilns before its use in cement
manufacturing. Cement kilns must comply with dust suppression measures
under their Title V Permits by which they are subject to visible
emissions limits for all CCR storage piles and requirements to control
and minimize fugitive dust. They also must comply with stormwater
control requirements under National Pollutant Discharge Elimination
System (NPDES) Permits to mitigate environmental impacts of CCR storage
and all other material stored in piles.\59\ EPA requests comment on the
exclusion of CCR beneficially used at cement kilns from regulation.
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\58\ EPA 2014. Coal Combustion Residual Beneficial Use
Evaluation: Fly Ash Concrete and FGD Gypsum Wallboard. https://www.epa.gov/sites/default/files/2014-12/documents/ccr_bu_eval.pdf.
February 2014.
\59\ EPA-HQ-OLEM-2020-0463, Hazardous and Solid Waste Management
System: Disposal of Coal Combustion Residuals from Electric
Utilities; Reconsideration of Beneficial Use Criteria and Piles;
Notification of Data Availability. PCA Response to EPA Request for
Supplemental Documentation. February 2021.
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Fly Ash Used in Concrete
EPA is also requesting comment on whether it would be helpful to
include a regulatory clarification explaining that CCR fly ash that is
used directly in concrete production as a substitute for Portland
cement is not subject to the CCR requirements of 40 CFR part 257.
As a practical matter, it is EPA's understanding that the current
handling of fly ash is already not subject to part 257 CCR requirements
because fly ash that is substituting for Portland cement is not placed
on the land before being incorporated into concrete. As explained in
the 2019 CCR proposal, fly ash marketed for beneficial use in concrete
production is consistent across the industry; fly ash is collected in a
dry powder form, stored in silos, domes, or buildings and transferred
pneumatically via truck or rail transportation in a self-contained
system from start to end. The reason for the containment is that fly
ash provides mechanical and chemical benefits when used in concrete,
making it a valuable ingredient and fully warranting the protection of
its properties through handling and storage. 84 FR 40363-44. In
addition, the incorporation of fly ash in concrete is a well-
established beneficial use, and EPA has concluded that environmental
releases of constituents of potential concern during use by the
consumer are comparable to or lower than those from analogous non-CCR
products or are at or below relevant regulatory and health-based
benchmarks for human and ecological receptors.\60\ Thus, current
practices for managing the fly ash for use in concrete production are
already functionally not subject to part 257 CCR requirements and a
categorical exclusion in the regulations is not strictly necessary.
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\60\ EPA 2014. Coal Combustion Residual Beneficial Use
Evaluation: Fly Ash Concrete and FGD Gypsum Wallboard. https://www.epa.gov/sites/default/files/2014-12/documents/ccr_bu_eval.pdf.February 2014.
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However, given that EPA is proposing categorical exclusions for
other high-value beneficial uses, the Agency does not want to introduce
any confusion regarding the regulatory status of CCR fly ash used in
concrete production, and requests comment on whether a regulatory
clarification to that effect would be helpful.
b. Exclusion for FGD Gypsum Beneficially Used in Agriculture
EPA is also proposing to add a provision at Sec. 257.50(l) to
exclude flue gas desulfurization (FGD) gypsum from the requirements of
40 CFR part 257 when destined to be applied as an agricultural
amendment at agronomically appropriate rates. FGD gypsum is a type of
CCR generated from the pollution control technologies designed to
reduce sulfur gas emissions from electric utilities and is the largest
source of synthetic gypsum in the United States. As with the exclusion
for CCR beneficially used in cement kilns, this proposed change would
also remove regulatory uncertainty for both the agricultural industry
and the regulatory authorities, simplify implementation, and reduce
burden for beneficially used FGD gypsum applied as an agricultural
amendment at agronomically appropriate rates.
Under current regulations, FGD gypsum, when used for agricultural
purposes, must comply with all four criteria in the beneficial use
definition found at 40 CFR 257.53: (1) The CCR
[[Page 19016]]
used must provide a functional benefit, (2) The CCR must substitute for
the use of a virgin material, conserving natural resources that would
otherwise need to be obtained through practices such as extraction, (3)
The use of CCR must meet relevant product specifications, regulatory
standards, or design standards when available, and when such standards
are not available, CCR are not used in excess quantities, and (4) For
uses over 12,400 tons, must provide an environmental demonstration that
environmental releases to groundwater, surface water, soil and air are
comparable to or lower than those from analogous products made without
FGD gypsum, or that environmental releases will be at or below relevant
regulatory and health-based benchmarks for human and ecological
receptors during use.\61\
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\61\ While EPA is proposing to remove the fourth criterion from
the definition of beneficial use, the Agency is including in this
discussion a reference to the fourth criterion both because it
reflects the current regulations and because the specific beneficial
use evaluation that was performed for the use of FGD gypsum in
agriculture is relevant to this specific proposed exemption.
---------------------------------------------------------------------------
For the first criterion, FGD gypsum acts in several beneficial ways
in agricultural soil applications, such as nutrient amendments for
calcium and sulfur deficiencies, soluble phosphorus and aluminum
toxicity adverse effects reduction, the amelioration of sodic soils,
and the supportive aggregation of clay soil, which improves water
infiltration. The primary crops that benefit from the application of
gypsum include peanuts, cotton, corn, wheat, and alfalfa.\62\ For the
second criterion, FGD gypsum can substitute for mined gypsum, which is
a mineral that occurs naturally in sedimentary rock formations, because
both materials are composed primarily of calcium sulfate. EPA has
previously concluded that many of the constituents in FGD gypsum are
comparable to those in mined gypsum.\63\ For the third criterion, under
U.S. Department of Agriculture (USDA) standards, amendment provider has
the responsibility to provide chemical analysis documentation of the
FGD gypsum which must include the calcium and sulfur content and
content of heavy metals, and all other potential contaminants, and
concentrations of potential contaminants cannot exceed maximum
allowable concentrations.\64\ The USDA stipulates that annual
application rates should not exceed 5 tons/acre for the purposes
defined in the Amending Soil Properties with Gypsum Products (Ac.)
(333) Conservation Practice Standard.\65\ Thus, when applied as an
agricultural amendment at agronomically appropriate rates, FGD gypsum
meets the first three beneficial use criteria.
---------------------------------------------------------------------------
\62\ EPA-HQ-OLEM-2020-0463, Hazardous and Solid Waste Management
System: Disposal of Coal Combustion Residuals from Electric
Utilities; Reconsideration of Beneficial Use Criteria and Piles;
Notification of Data Availability. Agricultural Retailers
Association Comment. October 2019.
\63\ U.S. EPA, US Department of Agriculture, RTI International.
Beneficial Use Evaluation: Flue Gas Desulfurization Gypsum as an
Agricultural Amendment. March 2023.
\64\ USDA. Conservation Practice Standard Amending Soil
Properties with Gypsum Products. June 2015.
\65\ Id.
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In addition, in 2023 EPA conducted a beneficial use evaluation of
FGD gypsum to demonstrate how an analytical framework can be used to
evaluate the potential for adverse environmental impacts from a wide
range of industrial materials and their proposed beneficial uses,
specifically the use of FGD gypsum as an agricultural amendment.\66\
Based on the results of this study, EPA concluded that all potential
risks resulting from soil treated with FGD gypsum are likely to fall
below level of concern under actual use scenarios, and determined the
beneficial use of FGD gypsum can provide meaningful benefits to
agricultural fields while remaining protective of human health and the
environment.\67\
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\66\ U.S. EPA, US Department of Agriculture, RTI International.
Beneficial Use Evaluation: Flue Gas Desulfurization Gypsum as an
Agricultural Amendment. March 2023.
\67\ Id. While the study identifies some limited potential for
risk from release of selenium to surface water when FGD gypsum is
applied across every available field at the highest rates and
frequencies, even in this extreme and unlikely scenario, identified
risks can be mitigated through minor limits on application
practices.
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EPA's proposed exemption from the requirements of 40 CFR part 257
also applies to the storage of FGD gypsum while waiting at agricultural
retail facilities before being applied in agricultural fields. As
discussed above, FGD gypsum is a valuable resource to farmers, and
agricultural retailers have an incentive to manage it in a way that
avoids unpermitted releases to the environment, ensuring that this
resource will be used. FGD gypsum is stored at agricultural retail
facilities typically for only a three- to four-month period during
growing season in piles at around 10,000 tons.\68\ Generally, FGD
gypsum comes via truck from power plants in April, May, and June of
each year. Once FGD gypsum arrives, it is placed on a compressed dirt
area. It is then compressed in stacks using a front-end loader. When
runoff occurs, it is scooped back in and mixed with the existing
material. A holding pond is used to capture gradually declining
material. As needed, the pile is re-shaped and re-graded to maintain
integrity. The pile is typically emptied by the end of June. Weight
measures are used for inventory tracking, to accurately record how much
FGD gypsum comes in and how much is sent out. The Agricultural
Retailers Association (ARA) emphasizes the importance of controlling
``shrinkage'' of the FGD gypsum to minimize loss and indicates that
these management practices are generalizable and applied
everywhere.\69\
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\68\ USDA. Conservation Practice Standard Amending Soil
Properties with Gypsum Products. June 2015.
\69\ EPA meeting with Agricultural Retailers Association, held
on May 27, 2020. EPA-HQ-OLEM-2020-0463-0003.
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The proposed exemption recognizes that the FGD gypsum as an
agricultural amendment at agronomically appropriate rates is a well-
established beneficial use practice that provides environmental
benefits and raises minimal health or environmental concerns. This
proposed exemption also incentivizes the continuation of management
practices at agricultural retail facilities that prevent loss of the
material and ensure it will in fact be incorporated as an agricultural
amendment.
c. Exclusion for FGD Gypsum Beneficially Used in Wallboard
In addition, EPA is proposing an exclusion in Sec. 257.50(l) for
FGD gypsum that is destined for use as an ingredient in wallboard
manufacturing. This proposed regulatory revision provides regulatory
certainty by codifying EPA's current position on FGD gypsum managed as
a valuable commodity and used in wallboard, as expressed in the
preamble to the 2015 CCR rule and subsequent guidance.70 71
Several circumstances factor into this proposal. Firstly, the use of
FGD gypsum as replacement for mined gypsum in wallboard, is significant
at around 75% of all FGD gypsum being beneficially used.\72\ FGD gypsum
serves exactly the same function in wallboard as mined gypsum and meets
all commercial specifications. Its use decreases the need to mine
natural gypsum, conserving the natural resource and energy that would
otherwise be needed to mine natural gypsum. Thus, the use of FGD gypsum
in place of mined
[[Page 19017]]
gypsum can offer significant environmental benefits.
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\70\ 80 FR 21348.
\71\ https://www.epa.gov/coal-combustion-residuals/frequent-questions-about-beneficial-use-coal-combustion-residuals#t2q5.
\72\ ACAA 2023 CCR Survey Results, https://acaa-usa.org/wp-content/uploads/2025/05/2023-Production-and-Use-Survey-Results-FINAL.pdf.
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Secondly, EPA evaluated this use in 2014, and, based on FGD gypsum
wallboard that meets relevant physical and performance standards,
conforms to standard design specifications, and incorporates FGD gypsum
from pollution control devices used in the United States, concluded
that FGD gypsum wallboard is an appropriate beneficial use.\73\
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\73\ U.S. Environmental Protection Agency. 2014 Coal combustion
residual beneficial use evaluation: Fly ash concrete and FGD gypsum
wallboard. https://www.epa.gov/coal-combustion-residuals/coal-combustion-residual-beneficial-use-evaluation-fly-ash-concrete-and.
---------------------------------------------------------------------------
Finally, synthetic gypsum is a product of the FGD process at coal-
fired power plants. The utility designs and operates its air pollution
control devices to produce an optimal product, including the oxidation
of the FGD to produce synthetic gypsum. After its production, the
utility treats FGD gypsum as a valuable input into a production
process, protecting the inventory so the material can in fact be
incorporated into wallboard. Moreover, wallboard plants are frequently
sited in close proximity to power plants for access to raw material,
with a considerable investment involved. Thus, the proposed
codification recognizes that the FGD gypsum use as an ingredient in the
manufacture of wallboard is a well-established and widely accepted
practice that provides environmental benefits while raising minimal
health or environmental concerns. The proposed codification
incentivizes the continuation of management practices for FGD gypsum
that prevent loss of the material and ensure it will in fact be
incorporated into wallboard.
D. Federal CCR Permitting Rule-Reopening the Comment Period
On February 20, 2020, EPA proposed a rule (85 FR 9940) entitled
Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Federal CCR Permit
Program (Federal CCR permit program proposed rule), that would
establish a Federal CCR permit program that will operate in Indian
country and in nonparticipating States. The proposal describes how EPA
will implement a Federal CCR permit program in accordance with the
requirements of the WIIN Act, and includes the requirements and
procedures EPA intends to use to issue Federal permits for disposal and
associated solid waste management of CCR in 40 CFR part 257, subpart E.
The public comment period for the proposed Federal CCR permit rule ran
from February 20, 2020, through August 7, 2020.
Given that it has been over five years since the proposal was
published, EPA intends to reopen the comment period on the Federal CCR
permit program proposed rule in a subsequent notice to provide the
public with another 30 days to comment on the proposal. To effectuate
this, EPA will publish a separate document in the Federal Register
announcing that the comment period has been reopened and that comments
need to be submitted to Docket ID No. EPA-HQ-OLEM-2019-0361.\74\
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\74\ To submit comments on the proposed Federal CCR permit
program rule, search Docket ID No. EPA-HQ-OLEM-2019-0361, online at
https://www.regulations.gov.
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V. 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 units and facilities affected by this action
includes four categories. The first is comprised of CCR landfills and
surface impoundments at facilities actively producing power and placing
CCR into onsite units on or after October 19, 2015. These units were
first regulated under the 2015 CCR Final Rule. The RIA identifies 783
units at 303 facilities. The second category consists of CCR surface
impoundments at facilities that stopped producing power and placing CCR
into onsite unites on or before October 19, 2015. These units were
first regulated under the 2024 Legacy Final Rule. The RIA identifies 97
surface impoundments at 49 facilities. The third category consists of
CCRMU at regulated facilities. These units were first regulated under
the 2024 Legacy Final Rule. The RIA identifies 195 CCRMU at 104
facilities. The fourth category consists of businesses who purchase and
store CCR and other byproducts of coal combustion onsite as inputs for
industrial purposes (i.e., for beneficial use). Beneficial use of CCR
was first defined under the 2015 CCR Final Rule. The RIA identifies a
range of 816 to 1,256 businesses that use CCR as an industrial input.
Note that since many of the provisions of this action grant
flexibilities to permitting authorities or apply based on site-specific
characteristics or practices, the total number of CCR units and
facilities affected by each provision my differ from the totals listed
in this section. The RIA estimates and details the number of facilities
and units affected by each provision in Chapter 2.
C. Baseline Costs
The baseline costs of this rule consist of all costs associated
with actives required to comply with the existing suite of CCR
regulations. These regulations include the 2015 CCR Final Rule, the
2020 Part A Final Rule, and the 2024 Legacy Final Rule. The RIA also
includes cost savings attributable to the 2025 CCRMU Deadline Extension
Proposed Rule in the baseline. The difference between these baseline
compliance costs and compliance costs under the provisions of this
action are estimated and presented as cost savings in the RIA and
summarized in the following section.
D. Costs and Benefits of the Proposed Rule
This proposed rule modifies the existing regulatory framework of
the CCR program with four broad categories of changes that result in
cost savings. The first set of changes broadens eligibility criteria
for closure-by-removal certifications and deferrals for Legacy CCR SIs
previously closed under state or federal oversight. The annualized cost
savings associated with these changes are estimated to be approximately
$9-$10 million per year when discounting at 3% and to be approximately
$15-$17 million per year when discounting at 7%.
The second set of changes rescinds all CCRMU provisions from the
2024 Legacy Final Rule. The annualized cost savings associated with
this change is estimated to be approximately $86-$100 million per year
when discounting at 3% and approximately $117-$139 million per year
when discounting at 7%.
The third set of changes allows state-authorized and federal
permitting authorities to make certain site-specific determinations
regarding groundwater monitoring points of compliance, groundwater
protection standards, closure performance standards, closure timelines,
and post-closure requirements. The annualize cost savings associated
with these changes is estimated to be approximately $74-$78 million per
year when discounting at 3% and approximately $96-$101 million per year
when discounting at 7%.
The fourth set of changes amend the beneficial use regulations by
removing demonstration requirements, changing definitions regarding
accumulations of
[[Page 19018]]
CCR, and exempting certain uses from regulatory requirements. The
annualized cost savings associated with these changes is estimated to
be approximately $6 million per year when discounting at 3% and
approximately $6 million per year when discounting at 7%.
Overall, the proposed rule results in annualized cost savings of
approximately $174 to $194 million per year when discounting at 3% and
approximately $232 to $262 million per year when discounting at 7%.
The proposed rule modifies the existing regulatory framework of the
CCR program with two broad categories of changes that result in impacts
to the baseline benefits. The first set of changes eliminates or delays
closure and corrective action requirements for specific units that are
subject to regulation in the baseline. Specifically, the provision
rescinding all requirements for CCRMU eliminates the closure and
corrective action requirements for those units, while the provision
allowing a permit authority to extend closure timeframes for CCR units
where CCR is being extracted from the unit for beneficial use during
closure delays closure for a subset of CCR units. These changes result
in negative or dis-benefits when compared to the baseline. EPA has
quantified these dis-benefits for three categories of benefits. These
three categories are the avoided risk of CCR release events, the
avoided impairment of human health, and avoided ecological harms. The
annualized dis-benefits attributable to these provisions are
approximately $9 to $21 million per year when discounting at 3% and
approximately $8 to $18 million per year when discounting at 7%.
The second set of changes encourages the beneficial use of CCR by
provide permitting flexibilities to encourage extraction of CCR during
the closure of CCR units, and after closure of CCR units that close
with waste in place. Extracted CCR can be beneficially used as an
ingredient in, or substitute for, portland cement. CCR can also be
beneficially used as a road base or construction fill, where it
replaces virgin materials such as sand or gravel. The RIA estimates the
positive annualized benefits associated with increased beneficial use
of CCR at approximately $4 to $16 million per year when discounting at
either 3% or 7%.
Overall, the proposed rule will result in annualized changes in
benefits of approximately:
A $5 million decrease when discounting at 3%; and
A $4-$2 million decrease when discounting at 7%.
Overall, the RIA estimates that the net annualized cost savings and
benefits, net of disbenefits, of this action will be $169-$189 million
per year when discounting at 3%, and $229-$260 million when discounting
at 7%.
E. What analysis of children's health did we conduct?
This action is subject to the EPA's Policy on Children's Health
because the proposal has considerations for human health. However, EPA
does not believe there are disproportionate risks to children because
the populations living near CCR disposal facilities do not contain a
disproportionate number of children relative to national averages.
Please see the RIA (Section 5.1.2 Human Health Risk Assessment for
Chronic Exposure Pathways) in the docket.
VI. 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
This action is a significant regulatory action as defined under
section 3(f)(1) of Executive Order 12866. Accordingly, it was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket. The 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/CCRMU
Amendments'' is available in the docket, and is briefly summarized in
Unit V. of this proposed rule.
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This action is expected to be an Executive Order 14192 deregulatory
action. This proposed rule is expected to provide burden reduction by
streamlining and reducing regulatory requirements for owners and
operators of CCR surface impoundments and CCRMUs.
C. 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) documents
that the EPA prepared have been assigned EPA ICR numbers 2609.04 (OMB
control no. 2050-0223) and 2761.03 (OMB control no. 2050-0231). You can
find a copy of the ICR in the docket for this rule, and it is briefly
summarized here.
ICR number 2609.04 is the base ICR for the CCR program and covers
all information collection activities required for CCR disposal units
regulated under the 2015 final rule. ICR number 2761.03 is a temporary
ICR which EPA requested to cover the information collection activities
required under the 2024 Legacy final rule. EPA requested this temporary
ICR due to the concurrent timing of the Legacy rule's finalization and
the renewal of the base ICR. EPA will submit a request to merge the
Legacy rule ICR (2761.03) into the base ICR (2609.04) at a later date.
The information collection requirements are not enforceable until OMB
approves them.
ICR Number 2609.04
For ICR 2609.04 (OMB control no. 2050-0223), the prior ICR
supporting statement had included sections on information collection
related to beneficial use, even though that ICR estimated zero users
would demonstrate and keep records of beneficial use. Regardless, ICR
2609.04 (OMB control no. 2050-0223) has been updated to remove the
sections on beneficial use information collection which corresponds
with the proposed requirements of this action.
Respondents/affected entities: Electric utility facilities and
independent power producers that fall under the NAICS code 221112
(Fossil Fuel Electric Power Generation).
Respondent's obligation to respond: Mandatory under RCRA Subtitle
D, 40 CFR part 257.
Estimated number of respondents: 300 coal-fired electric utility
plants with 723 disposal units. There is no change in number of
respondents resulting from the proposed rule.
Frequency of response: Includes one-time, annual, and incidental/
recurring responses.
Total estimated burden: 173,083 hours (per year). There is no
change in number of hours from the proposed rule.
Total estimated cost: $26,168,233 (per year), comprised of
$10,656,807 in annual labor costs and $15,511,426 in annual operation &
maintenance costs. There is no change in the annual costs
[[Page 19019]]
per year resulting from the proposed rule.
ICR Number 2761.03
The changes made for ICR 2761.03 (OMB control no. 2050-0231)
correspond with facilities no longer needing to complete the Facility
Evaluation Report, required under 40 CFR 257.73(c) and (d).
Respondents/affected entities: Electric utility facilities and
independent power producers that fall under the NAICS code 221112
(Fossil Fuel Electric Power Generation) and electric utilities and
independent power producers that fall under the NAICS code 22111
(Electric Power Generation) whose facilities formerly burned coal to
produce electricity and disposed of CCR onsite in legacy surface
impoundments, CCRMU, and CCRMU at other active facilities.
Respondent's obligation to respond: Mandatory under RCRA Subtitle
D, 40 CFR part 257.
Estimated number of respondents: 2,044 coal-fired electric utility.
This is a reduction from the 2,083 respondents estimated in ICR 2761.03
based on a more recent accounting of the affected universe. There is no
change in number of respondents resulting from the proposed rule.
Frequency of response: Includes one-time, annual, and incidental/
recurring responses.
Total estimated burden: 211,717 hours (per year). There is a 55,406
reduction in hours resulting from the proposed rule.
Total estimated cost: $29,401,324 (per year), comprised of
$12,610,186 in annual labor costs and $16,791,138 in annual operation &
maintenance costs. There is a $3,489,105 reduction in costs, including
$3,136,867 in annual labor costs and $352,238 in annual operation &
maintenance costs resulting from the proposed rule.
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, any suggested methods for minimizing
respondent burden, EPA's plan to merge the Legacy rule ICR (2761.03)
into the base ICR (2609.04), and other aspects of these collections 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 https://www.reginfo.gov/public/do/PRAMain. Find this information collection by selecting
``Currently under Review--Open for Public Comments'' or by using the
search function. OMB must receive comments no later than May 13, 2026.
D. 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. In
making this determination, EPA concludes that the impact of concern for
this rule is any significant adverse economic impact on small entities
and that the agency is certifying that this rule will not have a
significant adverse economic impact on a substantial number of small
entities because the rule relieves regulatory burden on the small
entities subject to the rule. This proposed rule is a deregulatory
action and does not add any additional burden beyond the 2024 Legacy
Final Rule, while relieving some burdens imposed by that rule, and
potentially relieving some burdens imposed by the 2015 CCR Final Rule,
leading to cost savings for small entities. Specific relief to small
entities includes removal of CCRMU regulations, which affects up to
seven small entities affected by the 2024 Legacy Final Rule. Other
relief includes regulatory flexibilities that may apply to Legacy CCR
surface impoundments, which may affect up to five small entities
affected by the 2024 Legacy Final Rule, and regulatory flexibilities
that may apply to units regulated under the 2015 CCR Final Rule.
Additional information on the cost savings can be found in the
Regulatory Impact Analysis, which is available in the docket, and is
summarized in Unit V. of this proposed rule. We have therefore
concluded that this action will relieve regulatory burden for all
directly regulated small entities.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or Tribal governments or the private sector. This action relieves
regulatory burden.
F. 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.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. This action does not impose new requirements on
Tribal governments. Thus, Executive Order 13175 does not apply to this
action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 directs federal agencies to include an
evaluation of the health and safety effects of the planned regulation
on children in federal health and safety standards and explain why the
regulation is preferable to potentially effective and reasonably
feasible alternatives. This action is not subject to Executive Order
13045 because the EPA does not believe the environmental health risks
or safety risks addressed by this action present a disproportionate
risk to children. EPA does not believe there are disproportionate risks
to children because the populations living near CCR disposal facilities
do not contain a disproportionate number of children relative to
national averages. However, EPA's Policy on Children's Health applies
to this action. Information on how the Policy was applied is available
under ``What Analysis of Children's Environmental Health Did We
Conduct?'' in the Supplementary Information section of this preamble.
I. 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. This is a deregulatory action.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
List of Subjects in 40 CFR Part 257
Environmental protection, Beneficial use, Coal combustion products,
Coal combustion residuals, Coal combustion
[[Page 19020]]
waste, Disposal, Hazardous waste, Landfill, Surface impoundment.
Lee Zeldin,
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), 6927, 6944, 6945(a)
and (d); 33 U.S.C. 1345(d) and (e).
Subpart A--Classification of Solid Waste Disposal Facilities and
Practices
0
2. Amend Sec. 257.2 by revising the definition ``CCR landfill'' to
read as follows:
Sec. 257.2 Definitions.
* * * * *
CCR landfill means an area of land or an excavation that contains
CCR and which 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, a CCR
landfill also includes sand and gravel pits and quarries that receive
CCR, any practice that does not meet the definition of a beneficial use
of CCR, and any accumulation of CCR on the land that does not meet the
definition of a CCR storage pile.
* * * * *
Subpart D--Standards for the Disposal of Coal Combustion Residuals
in Landfills and Surface Impoundments
0
3. Amend Sec. 257.50 by adding paragraphs (j), (k), and (l) to read as
follows:
Sec. 257.50 Scope and purpose.
* * * * *
(j) The requirements of this subpart do not apply to CCR dewatering
structures as defined in Sec. 257.53.
(k) This subpart does not apply to CCR at cement kilns before use
as an ingredient in cement manufacturing.
(l) This subpart does not apply to flue gas desulfurization gypsum
that is:
(1) Destined to be applied as an agricultural amendment at
agronomically appropriate rates, or
(2) Destined for use as an ingredient in wallboard manufacturing.
0
4. Amend Sec. 257.53 by:
0
a. Revising the definition ``Beneficial use of CCR'';
0
b. Adding in alphabetical order the definition ``CCR dewatering
structure'';
0
c. Revising the definition ``CCR landfill or landfill'';
0
d. Removing the definition ``CCR pile or pile'';
0
e. Adding in alphabetical order the definition ``CCR storage pile'';
0
f. Revising the definition ``CCR surface impoundment or impoundment'';
and
0
g. Adding in alphabetical order the definition ``Temporary
accumulation''.
The revisions and additions read as follows:
Sec. 257.53 Definitions.
* * * * *
Beneficial use of CCR means the CCR meets all of the following
conditions:
(1) The CCR must provide a functional benefit;
(2) The CCR must substitute for the use of a virgin material,
conserving natural resources that would otherwise need to be obtained
through practices, such as extraction; and
(3) The use of the CCR must meet relevant product specifications,
regulatory standards or design standards when available, and when such
standards are not available, the CCR is not used in excess quantities.
* * * * *
CCR dewatering structure means a stationary device, designed to
temporarily contain an accumulation of CCR which is constructed of non-
earthen materials (e.g., concrete, steel, plastic). The device must be
used primarily for dewatering CCR waste to facilitate disposal of CCR
solids elsewhere.
* * * * *
CCR landfill or landfill means an area of land or an excavation
that contains CCR and which 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, a CCR landfill also includes sand and gravel pits and
quarries that receive CCR, any practice that does not meet the
definition of a beneficial use of CCR, and any accumulation of CCR on
the land that does not meet the definition of a CCR storage pile.
* * * * *
CCR storage pile means any temporary accumulation of solid, non-
flowing CCR placed on the land that is designed and managed to control
unpermitted releases of CCR to the environment.
* * * * *
CCR surface impoundment or impoundment means a natural topographic
depression, man-made excavation, or diked area, designed to hold an
accumulation of CCR and liquids, and the unit treats, stores, or
disposes of CCR. A unit meeting the definition of a CCR dewatering
structure as defined in Sec. 257.53 is not a CCR surface impoundment.
* * * * *
Temporary accumulation means an accumulation on the land that is
neither permanent nor indefinite. To demonstrate that the accumulation
on the land is temporary, the CCR must be removed from the pile at the
site. The entity engaged in the activity may use ordinary business
records to demonstrate that the CCR in the pile will be removed
according to a specific timeline.
* * * * *
0
5. Amend Sec. 257.90 by revising paragraph (b)(2) to read as follows:
Sec. 257.90 Applicability.
* * * * *
(b) * * *
(2) New CCR landfills, new CCR surface impoundments, and all
lateral expansions of CCR units. Prior to initial receipt of CCR by the
CCR unit, the owner or operator must be in compliance with the
groundwater monitoring requirements specified in paragraphs (b)(1)(i)
and (ii) of this section. In addition, prior to initial receipt of CCR,
the owner or operator of the CCR unit must collect and analyze eight
independent samples from each well for the parameters listed in
appendix III and IV to this part to determine background levels for all
appendix III and IV constituents, and initiate the detection monitoring
program in Sec. 257.94.
* * * * *
0
6. Amend Sec. 257.94 by revising paragraph (b) to read as follows:
Sec. 257.94 Detection monitoring program.
* * * * *
(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 and the post-closure period. For existing CCR landfills and
existing CCR surface impoundments, 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 October 17, 2017. For new CCR landfills, new CCR
surface
[[Page 19021]]
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 by the deadline in Sec. 257.90(b)(2).
* * * * *
0
7. Amend Sec. 257.100 by:
0
a. Revising the introductory text of paragraph (g); and
0
b. Adding paragraph (g)(7).
The revision and addition read as follows:
Sec. 257.100 Inactive CCR surface impoundments and Legacy CCR surface
impoundments.
* * * * *
(g) For owners and operators of legacy CCR surface impoundments
that completed closure of the CCR unit by removal of waste prior to
Friday, November 8, 2024, no later than Friday, November 8, 2024,
complete a closure certification that contains the supporting
information in paragraphs (g)(1) through (6) of this section or by
[DATE SIX MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER] complete a closure certification that contains the
information in paragraph (g)(7) of this section:
* * * * *
(7) Documentation that a regulatory authority played an active role
in overseeing and approving the closure by removal and any necessary
corrective action, pursuant to an enforceable requirement issued on or
after October 19, 2015. Impacts to groundwater must have been
considered prior to or as part of the closure. This enforceable
requirement includes a State or Federal permit, an administrative
order, or consent order under CERCLA or by an EPA-approved RCRA State
program.
* * * * *
0
8. Amend Sec. 257.101 by revising paragraph (g) to read as follows:
Sec. 257.101 Closure or retrofit of CCR units.
* * * * *
(g) Deferral of previous closures of legacy CCR surface
impoundments. Deferral to permitting for closures conducted under
substantially equivalent regulatory authority. Notwithstanding the
provisions of paragraphs (e) and (f) of this section, the owner or
operator of a legacy CCR surface impoundment need not demonstrate
compliance with the performance standards in Sec. 257.102(c) or (d)
provided they demonstrate that the closure of the CCR unit met the
standards specified in paragraphs (g)(1) through (4) of this section.
(1) The owner or operator of the CCR unit must document that a
regulatory authority played an active role in overseeing and approving
the closure and any necessary corrective action, pursuant to an
enforceable requirement issued on or after October 19, 2015. This
enforceable requirement includes a State or Federal permit, an
administrative order, or consent order under CERCLA or by an EPA-
approved RCRA State program.
(2) The owner or operator of the CCR unit must document that it
installed a groundwater monitoring system and performed groundwater
monitoring.
(3) The owner or operator must include the following statement,
signed by the owner or operator or an authorized representative, in the
applicability report for legacy CCR surface impoundments specified in
Sec. 257.100(f)(1) along with all information required by paragraphs
(g)(1) through (3) of the section:
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.
(4) Closure equivalency determination at permitting. The owner or
operator must submit the following documentation to the permit
authority.
(i) A permit application that contains sufficient information,
including data on contaminant levels in groundwater, to demonstrate
that the applicable Sec. 257.102 or Sec. 257.112 standards have been
met.
(ii) The permit authority will review the information to determine
whether the ``equivalency'' of the closure has been successfully
demonstrated. If the permit authority determines that the closure has
met the relevant part 257 closure standard, the permit authority will
issue a permit to require compliance with applicable post-closure
requirements. If EPA or a Participating State Director determines that
the closure does not meet the relevant part 257 standard the owner or
operator will be required to submit a complete permit application and
obtain a permit that contains the specific requirements necessary for
the closed unit to achieve compliance with Sec. 257.102 or Sec.
257.112.
* * * * *
0
9. Add an undesignated center heading and Sec. 257.110 to read as
follows:
Flexibilities for Owners or Operators of CCR Units Operating Under CCR
Permits
Sec. 257.110 Groundwater monitoring under a CCR permit authority.
(a) Applicability. The Participating State Director or EPA, where
EPA is the permit authority, may elect to establish alternative points
of compliance, pursuant to this section, for CCR units complying with
the groundwater monitoring requirements in Sec. 257.91 under a CCR
permit, in lieu of those in Sec. Sec. 257.91(a)(2), (c)(2), and (d)(1)
and 257.94(e).
(1) The owner or operator of a CCR unit must comply with all
requirements in Sec. 257.91, except as provided for in paragraphs (b)
through (e) of this section.
(2) For purposes of this section, point of compliance means the
vertical surface located hydraulically downgradient of the CCR unit at
which the owner or operator of the CCR unit must monitor the uppermost
aquifer [to comply with the detection monitoring program and assessment
monitoring program in Sec. Sec. 257.94 and 257.95 or Sec. 257.111.
The vertical surface extends down into the uppermost aquifer.
(b) Establishing alternative points of compliance. Notwithstanding
the requirement to monitor the waste boundary in Sec. 257.91(a)(2),
(c)(2), and (d)(1), the permit authority, may establish an alternative
point of compliance to be used in lieu of the waste boundary of the CCR
unit in accordance with the requirements of this paragraph (b).
(1) The alternative point of compliance must be no more than 150
meters from the waste boundary and located at the facility.
(2) The permit authority, may only establish an alternative point
of compliance if the Participating State Director or EPA determines,
based on a demonstration by the owner or operator, that the point of
compliance, together with the location characteristics, will:
(i) Not materially delay detection of any statistically significant
amounts of any of the constituents listed in appendices III and IV to
this part from that CCR unit; and
(ii) Will minimize the migration of any of those constituents from
that CCR unit to the uppermost aquifer during the active life of the
CCR unit and the post-closure care period.
(3) In determining the alternative point of compliance, the permit
authority, must analyze and consider the following factors:
[[Page 19022]]
(i) Compliance with the location restrictions specified in
Sec. Sec. 257.61 through 257.64;
(ii) Compliance with the corrective action procedures specified in
Sec. Sec. 257.96 through 257.98;
(iii) The hydrogeological characteristics of the facility and
surrounding land, including any natural attenuation and dilution
characteristics of the aquifer;
(iv) The quantity, quality, and direction of flow of groundwater
underlying the facility;
(v) The proximity and withdrawal rates of groundwater users;
(vi) The availability of alternative drinking water supplies;
(vii) The existing quality of the groundwater, including other
sources of contamination and their cumulative impacts on the
groundwater;
(viii) The volume and physical and chemical characteristics of the
leachate; and
(ix) Public health, safety, and welfare effects.
(c) Performance standard. When establishing the alternative point
of compliance under paragraph (b) of this section, the permit
authority, must ensure the groundwater monitoring system accurately
represents the quality of groundwater passing the CCR unit. The
downgradient monitoring system must be installed at the point of
compliance specified by paragraph (b), that ensures detection of
groundwater contamination in the uppermost aquifer. All potential
contaminant pathways must be monitored.
(d) Multiunit groundwater monitoring systems. Notwithstanding the
provisions at Sec. 257.91(d)(1), the permit authority, may establish
alternative points of compliance pursuant to paragraph (b) of this
section for multiunit groundwater monitoring systems. The multiunit
groundwater monitoring system must be equally as capable of detecting
monitored constituents from the CCR unit as the individual groundwater
monitoring system established in accordance with this subpart based on
the following factors:
(1) Number, spacing and orientation of each CCR unit;
(2) Hydrogeologic setting;
(3) Site history; and
(4) Engineering design of the CCR unit.
(e) Detection and assessment monitoring programs. When the permit
authority, has established an alternative point of compliance in lieu
of the waste boundary, the owner or operator of the CCR unit(s) must
comply with the detection monitoring program and assessment monitoring
program requirements in Sec. Sec. 257.94 through 257.95 but must
substitute the established alternative point of compliance for all
requirements associated with the monitoring wells at the waste
boundary.
(f) Recordkeeping, notification, and internet requirements. The
owner or operator must comply with the applicable recordkeeping
requirements specified in Sec. 257.105(h), notification requirements
specified in Sec. 257.106(h), and internet requirements specified in
Sec. 257.107(h).
0
10. Add Sec. 257.111 to read as follows:
Sec. 257.111 Alternative groundwater protection standards for
corrective action under a CCR permit authority.
(a) Applicability. In lieu of the groundwater protection standards
in Sec. 257.95(h)(2), the Participating State Director or EPA, where
EPA is the permit authority, may elect to establish alternative
groundwater protections standards as provided in this section.
(b) Alternative groundwater protection standards. Notwithstanding
the groundwater protection standards in Sec. 257.95(h)(2), for
constituents for which an MCL has not been established under the
regulations referenced in Sec. 257.95(h)(1), the permit authority, may
establish alternative groundwater protection standards. These
groundwater protection standards shall be appropriate health-based
levels that satisfy the following criteria:
(1) The level is derived in a manner consistent with Agency
guidelines for assessing the health risks of environmental pollutants,
such as the Guidelines for Mutagenicity Risk Assessment, Supplementary
Guidance for Conducting Health Risk Assessment of Chemical Mixtures;
the Guidelines for Developmental Toxicity Risk Assessment; and the
Guidelines for Carcinogen Risk Assessment;
(2) For carcinogens, the level represents a concentration
associated with an excess lifetime cancer risk level, due to continuous
lifetime exposure, within the 1 x 10-4 to 1 x
10-6 range; and
(3) For systemic toxicants, the level represents a concentration to
which the human population, including sensitive subgroups, could be
exposed to on a daily basis that is likely to be without appreciable
risk of deleterious effects during a lifetime. For purposes of this
subpart, systemic toxicants include toxic chemicals that cause effects
other than cancer or mutation.
(c) Permit authority considerations. In establishing groundwater
protection standards under paragraph (b) of this section, the
Participating State Director or EPA, where EPA is the permit authority,
must consider the following:
(1) The presence and concentrations of other contaminants in the
groundwater;
(2) Exposure threats to sensitive environmental receptors; and
(3) Other site-specific exposure or potential exposure to
groundwater.
(d) Groundwater monitoring and corrective action annual report. The
owner or operator must indicate the use of alternative groundwater
protection standards in the annual groundwater monitoring report
required at Sec. 257.90(e) and include the specific groundwater
protection standard for each constituent.
(e) Recordkeeping, notification, and internet requirements. The
owner or operator must comply with the applicable recordkeeping
requirements specified in Sec. 257.105(h), notification requirements
specified in Sec. 257.106(h), and internet requirements specified in
Sec. 257. 107(h).
0
11. Add Sec. 257.112 to read as follows:
Sec. 257.112 Closure method under a CCR permit authority.
(a) Applicability. The Participating State Director or EPA, where
EPA is the permit authority, may elect to use the following closure
criteria when approving CCR unit closure plans in lieu of those in
Sec. 257.102(c) and (d).
(b) Closure method. Notwithstanding Sec. 257.102(c) and (d), the
permit authority, may permit the closure of a unit under alternative
performance standards provided the permit authority assesses the
closure and concludes that closure in accordance with the alternative
performance standards will result in no reasonable probability of
adverse effects to human health and the environment during the active
life of the CCR unit and the post-closure care period. This assessment
must be based upon all of the following criteria:
(1) A site-specific conceptual site model and risk assessment of
the location in which the CCR unit is located. This assessment must
include field collected measurements, sampling, and analysis of
physical, chemical, and biological processes affecting contaminant fate
and transport, including a minimum, the information necessary to
evaluate or interpret the effects of the following properties or
processes on contaminant fate and transport:
(i) Aquifer characteristics, including hydraulic conductivity,
hydraulic gradient, effective porosity, aquifer thickness, degree of
saturation, stratigraphy, degree of fracturing and secondary porosity
of soils and bedrock, aquifer heterogeneity, groundwater
[[Page 19023]]
discharge, and groundwater recharge areas;
(ii) Waste characteristics, including quantity, type and origin;
(iii) Climatic conditions, including annual precipitation, leachate
generation estimates and effects on leachate quality;
(iv) Leachate characteristics, including leachate composition,
solubility, density, the presence of immiscible constituents, Eh and
pH; and
(v) Engineered controls, including but not limited to liners, cover
systems, and aquifer controls (e.g., lowering the water table). These
must be evaluated under design and failure conditions to estimate their
long-term residual performance.
(2) Contaminant fate and transport predictions that maximize the
contaminant migration and consider impacts on human health and the
environment.
(3) The identification, proximity, and potential current and future
pathways of exposure to nearby human and ecological receptors. The
assessment must consider current and future land use when evaluating
the potential exposure pathways. If complete pathways are identified,
the assessment must include a plan to mitigate potential exposure.
(c) Recordkeeping, notification, and internet requirements. The
owner or operator must comply with the applicable recordkeeping
requirements specified in Sec. 257.105(i), notification requirements
specified in Sec. 257.106(i), and internet requirements specified in
Sec. 257.107(i).
0
12. Add Sec. 257.113 to read as follows:
Sec. 257.113 Closure completion timeframes under a CCR permit
authority.
(a) Applicability. The Participating State Director or EPA, where
EPA is the permit authority, may establish the closure completion
timeframes for CCR units in lieu of those in Sec. 257.102(f)(1) and
(2).
(b) Extraction of CCR during closure. Notwithstanding Sec.
257.102(f)(1) and (2), for closure with extraction of CCR for
beneficial use as a component of the overall closure method, the permit
authority, may extend the timeframe for completing closure of a CCR
unit specified in Sec. 257.102(f) only if the permit authority finds,
based on a demonstration by the owner or operator, that the extended
timeframe will pose no reasonable probability of adverse effects on
health or the environment. The assessment must be based upon all of the
following criteria:
(1) Measures for major slope stability are in place to prevent the
sloughing or movement of the unit during the closure period;
(2) The extraction of CCR and closure must be completed consistent
with recognized and generally accepted good engineering practices;
(3) Potential risks to human health and the environment during
closure of the unit are adequately mitigated; and
(4) The facility is in substantial compliance with all other
requirements of this subpart, including the requirements to conduct
groundwater monitoring and any necessary corrective action.
(c) Closure plan. The owner or operator must submit an updated
closure plan pursuant to Sec. 257.102(b)(3).
(d) Ongoing closure. The owner or operator must proceed with
closure activities of any portion of the CCR unit that is not related
to the extraction of CCR for beneficial use to the extent possible
within the specified timeframes of Sec. 257.102.
(e) Recordkeeping, notification, and internet requirements. The
owner or operator must comply with the applicable recordkeeping
requirements specified in Sec. 257.105(i), notification requirements
specified in Sec. 257.106(i), and internet requirements specified in
Sec. 257.107(i).
0
13. Add Sec. 257.114 to read as follows:
Sec. 257.114 Post-closure care under a CCR permit authority.
(a) Applicability. The Participating State Director or EPA, where
EPA is the permit authority, may allow for extraction of CCR from a
closed CCR unit during the post-closure care period in accordance with
this section.
(b) Extraction of CCR during post-closure care. The permit
authority may allow the owner or operator of a closed CCR unit to
extract CCR for beneficial use during the post-closure care period only
if the permit authority finds, based on a demonstration by the owner or
operator, that any extraction of CCR for beneficial use will not pose a
reasonable probability of adverse effects to human health and the
environment. The assessment must be based upon all of the following
criteria:
(1) The extraction of CCR for beneficial use must be completed
consistent with recognized and generally accepted good engineering
practices;
(2) Potential risks to human health and the environment during
post-closure are adequately mitigated; and
(3) The facility is in substantial compliance with all other
requirements of this subpart, including the requirements to conduct
post-closure care, groundwater monitoring, and any necessary corrective
action.
(c) Recordkeeping, notification, and internet requirements. The
owner or operator must comply with the applicable recordkeeping
requirements specified in Sec. 257.105(i), notification requirements
specified in Sec. 257.106(i), and internet requirements specified in
Sec. 257.107(i).
[FR Doc. 2026-07061 Filed 4-10-26; 8:45 am]
BILLING CODE 6560-50-P