[Federal Register Volume 81, Number 151 (Friday, August 5, 2016)]
[Rules and Regulations]
[Pages 51802-51808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18353]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2016-0274; FRL-9949-44-OLEM]
Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Extension of Compliance
Deadlines for Certain Inactive Surface Impoundments; Response to
Partial Vacatur
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
taking
[[Page 51803]]
direct final action to extend for certain inactive coal combustion
residuals (CCR) surface impoundments the compliance deadlines
established by the regulations for the disposal of CCR under subtitle D
of the Resource Conservation and Recovery Act (RCRA). These revisions
are taken in response to a partial vacatur ordered by the United States
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) on
June 14, 2016.
DATES: This rule is effective on October 4, 2016 without further
notice, unless EPA receives adverse comment by August 22, 2016. If EPA
receives adverse comment, we will publish a timely withdrawal notice in
the Federal Register informing the public that the rule will not take
effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2016-0274, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For information concerning this direct
final rule, contact Steve Souders, Office of Resource Conservation and
Recovery, Environmental Protection Agency, 5304P, Washington, DC 20460;
telephone number: (703) 308-8431; email address: [email protected].
For more information on this rulemaking please visit https://www.epa.gov/coalash.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This direct final rule applies only to those owners or operators of
inactive CCR surface impoundments that meet all three of the following
conditions: (1) Complied with the requirement at 40 CFR 257.105(i)(1)
by placing in their facility's written operating record a notification
of intent to initiate closure of the CCR unit as required by 40 CFR
257.100(c)(1), no later than December 17, 2015; (2) complied with the
requirement at 40 CFR 257.106(i)(1) by providing notification to the
relevant State Director and/or appropriate Tribal authority by January
19, 2016, of the intent to initiate closure of the CCR unit; and (3)
complied with the requirement at 40 CFR 257.107(i)(1) by placing the
notification of intent to initiate closure of the CCR unit on the owner
or operator's publicly accessible CCR Web site no later than January
19, 2016.
If you have any questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. Why is EPA issuing a direct final rule?
EPA is publishing this rule without a prior proposed rule because
we view this as a noncontroversial action and anticipate no adverse
comment. This direct final rule merely extends the deadlines for the
owners and operators of those inactive CCR surface impoundments that
had taken advantage of the ``early closure'' provisions of 40 CFR
257.100, who became newly subject to the rule's requirements for
existing CCR surface impoundments on June 14, 2016 when the United
States Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) ordered the vacatur of those provisions. This rule provides
time for these owners and operators to bring their units into
compliance with the rule's substantive requirements, but does not
otherwise amend the rule or otherwise impose new requirements on those
units. However, in the ``Proposed Rules'' section of this Federal
Register, we are publishing a separate document that will serve as the
proposed rule to provide new compliance deadlines if adverse comments
are received on this direct final rule. We will not institute a second
comment period on this action. Any parties interested in commenting
must do so at this time.
If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. We would address all public
comments in any subsequent final rule based on the proposed rule.
II. Statutory Authority
These regulations are established under the authority of sections
1006(b), 1008(a), 2002(a), 4004, and 4005(a) of the Solid Waste
Disposal Act of 1970, as amended by the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6906(b), 6907(a), 6912(a),
6944, and 6945(a).
III. Background
On April 17, 2015 EPA finalized national regulations to regulate
the disposal of coal combustion residuals (CCR) as solid waste under
subtitle D of the Resource Conservation and Recovery Act (RCRA) titled,
``Hazardous and Solid Waste Management System; Disposal of Coal
Combustion Residuals from Electric Utilities,'' (80 FR 21302) (``CCR
rule''). The CCR rule established national minimum criteria for
existing and new CCR landfills and existing and new CCR surface
impoundments and all lateral expansions consisting of location
restrictions, design and operating criteria, groundwater monitoring and
corrective action, closure requirements and post-closure care, and
recordkeeping, notification and internet posting requirements. The rule
also required any existing unlined CCR surface impoundment that is
contaminating groundwater above a regulated constituent's groundwater
protection standard to stop receiving CCR and either retrofit or close,
except in limited circumstances. It also established requirements for
inactive CCR surface impoundments, i.e., those units that did not
receive CCR after October 15, 2015 but still contain water and CCR.
Under the rule as promulgated, inactive CCR surface impoundments must
comply with the same requirements as existing CCR surface impoundments,
unless the owner or operator of the facility closes the units no later
than April 17, 2018. See 80 FR 21408-21409, April 17, 2015; 40 CFR
257.100(b). If an inactive CCR surface impoundment had completely
closed by this date, no other requirements applied to that unit (i.e.,
the ``early closure'' provisions). The effect of these ``early
closure'' provisions was that no groundwater monitoring or other post-
closure care requirements (such as the requirement to take corrective
action for any releases) would apply to these units.
On June 14, 2016 the United States Court of Appeals for the D.C.
Circuit ordered the vacatur of these ``early closure'' provisions in 40
CFR 257.100. The effect of the vacatur is that all
[[Page 51804]]
inactive CCR surface impoundments must now comply with all of the
requirements applicable to existing CCR surface impoundments.
IV. What action is EPA taking in this rule?
As a consequence of the order issued by the United States Court of
Appeals for the D.C. Circuit on June 14, 2016, EPA is removing certain
provisions of the CCR rule at 40 CFR 257.100(b), (c), and (d) related
to the ``early closure'' of inactive CCR surface impoundments by April
17, 2018.
As a result of this order, owners and operators of inactive CCR
surface impoundments that had relied on these ``early closure''
provisions must now comply with all of the requirements for existing
CCR surface impoundments. These technical requirements are found in the
following sections of the CCR rule: Location criteria; design and
operating requirements, air criteria, inspection requirements,
groundwater monitoring and corrective action; closure and post-closure
care; and recordkeeping, notification and publicly accessible internet
site requirements. Each of these requirements contained associated
compliance deadlines, which must also be met. But the owners and
operators of these units would have substantially less time than EPA
had originally determined was needed to come into compliance; indeed
some of these deadlines have already passed, prior to the issuance of
the court's order. In the absence of an extension, these units would,
through no fault of their own, become ``open dumps'' under the statute.
Accordingly, EPA is extending the compliance deadlines associated
with these newly applicable regulatory requirements to allow the owners
or operators of these units adequate time to come into compliance. The
Agency is extending each of these compliance deadlines by 547 days,
which is the amount of time between the signature date of the final
rule and the last business day of the week during which the order from
the court granting the motion to vacate 40 CFR 257.100 (b), (c), and
(d) was signed. Thus, the 547 days represents the amount of time
between December 19, 2014, and June 17, 2016.\1\ In essence, this
represents the amount of time that would have been available to these
facilities had 40 CFR 257.100 not been included in the final rule;
i.e., this rule provides the same amount of time EPA granted to
existing CCR surface impoundments in the final rule.
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\1\ The EPA selected June 17, 2016 (the end of the week the
vacatur order was signed by the court) instead of June 14, 2016 (the
actual date the court signed the order) to limit any potential
confusion. Had EPA extended the compliance period based on the June
14 date, any facility that completed closure of their inactive
surface impoundment by the original deadline in the vacated
provisions would have been subject to certain rule requirements for
one day. EPA concluded that no environmental or health protection
would be achieved by requiring facilities to comply with
requirements that are relevant only to active or inactive
impoundments (because they determine whether the unit must close),
when the unit would complete closure a single day later.
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EPA defines the units subject to this extension rule as exclusively
those units whose owners and operators of inactive CCR surface
impoundments have complied with the following three requirements: (1)
The requirement at 40 CFR 257.105(i)(1), by placing in their facility's
written operating record a notification of intent to initiate closure
of the CCR unit as required by 40 CFR 257.100(c)(1), by no later than
December 17, 2015; (2) the requirement at 40 CFR 257.106(i)(1), by
providing notification to the relevant State Director and/or
appropriate Tribal authority no later than January 19, 2016, of the
intent to initiate closure of the CCR unit; and (3) the requirement of
40 CFR 257.107(i)(1) by placing the notification of intent to initiate
closure of the CCR unit on the owner or operator's publicly accessible
CCR Web site, by no later than January 19, 2016.\2\ EPA is not revising
the regulation to require additional notification or postings from
facilities to document that they have a unit(s) subject to the longer
compliance deadlines in this extension rule. As noted previously,
facilities were required to generate and post documents demonstrating
their intent to take advantage of the ``early closure'' provisions by
December 2015 and January 2016, pursuant to provisions that were not
affected by the court order. Continued maintenance of these documents
would be sufficient to establish that a particular unit is eligible for
the extended compliance deadlines in this rule.
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\2\ Inactive CCR surface impoundments that are not affected by
this rule: i.e., inactive CCR surface impoundments without a notice
of intent to close dated between April 17, 2015 and December 17,
2015, and placed in the facility's operating record and on the
facility's publicly accessible internet site by January 19, 2016,
remain subject to all of the requirements for existing CCR surface
impoundments under 40 CFR part 257, subpart D (see Sec.
257.100(a)), including the original timeframes in 40 CFR 257,
subpart C, and are not subject to the new compliance timeframes
discussed in this direct final rule.
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A brief discussion of the requirements with which these inactive
CCR surface impoundments must comply is presented below for the ease of
the reader. However, EPA is not soliciting comment on any of these
requirements, including the original deadlines associated with these
requirements, and is not otherwise reopening any aspect of the final
CCR rule. EPA will not consider any comment on any topic other than the
extension of the deadlines for the newly subject inactive CCR surface
impoundments to be part of the record for this rule, and will not
respond to such comments.
A. Location Criteria--Deadline To Complete the Demonstrations for
Compliance With the Location Restrictions
To ensure that CCR surface impoundments are appropriately sited,
the CCR rule established location restrictions, including restrictions
relating to placement of CCR above the uppermost aquifer, in wetlands,
within fault areas, in seismic impact zones, and in unstable areas. See
40 CFR 257.60 through 257.64. As discussed in the CCR rule, all of
these location restrictions require the owner or operator of a CCR
surface impoundment to demonstrate that they meet the specific
criteria, as well as providing a deadline by when the demonstrations
much be completed. In addition, the CCR rule requires existing CCR
surface impoundments that cannot make the required demonstrations to
close the unit. However, owners or operators of certain inactive CCR
surface impoundments--those owners or operators that elected to comply
with the now-vacated ``early closure'' provisions under 40 CFR
257.100(b)--were exempt from the location restrictions finalized in the
CCR rule. With the vacatur of the exemption, these inactive CCR surface
impoundments become subject to the location restrictions. This direct
final rule provides owners or operators of eligible inactive CCR
surface impoundments until April 16, 2020 to comply with the
requirements for location restrictions; otherwise, the CCR unit must be
closed. See also 80 FR 21359 -21368, April 17, 2015.
B. Design Criteria--Deadline To Document Whether the CCR Surface
Impoundment Is Lined or Unlined
Owners or operators of inactive CCR surface impoundments subject to
the provisions of the new 40 CFR 257.100(e)(3)(i) must by April 17,
2018 comply with the requirements at 40 CFR 257.71(a) and (b) and
document, certified by a qualified professional engineer, whether their
inactive CCR surface impoundment is constructed with any one of the
three liner types: (1) A liner consisting of a minimum of two feet of
compacted soil with a hydraulic
[[Page 51805]]
conductivity of no more than 1 x 10-7 cm/sec; (2) a composite liner
that meets the requirements of 40 CFR 257.70(b); or (3) an alternative
liner that meets the requirements of 40 CFR 257.70(c). See also 80 FR
21370-21371, April 17, 2015.
C. Design Criteria--Deadline To Install Permanent Markers
Except for incised CCR surface impoundments as defined in 40 CFR
257.53, owners or operators of inactive CCR surface impoundments
subject to the provisions of the new 40 CFR 257.100(e)(3)(ii) are
subject to 40 CFR 257.73(a)(1) that requires the placement of a
permanent identification marker, at least six feet high on or
immediately adjacent to the CCR unit with the name associated with the
CCR unit and the name of the owner or operator. The placement of the
permanent marker must be completed by the owner or operator of the
inactive CCR surface impoundment no later than June 16, 2017.
D. Design Criteria--Deadline To Complete the Initial Hazard Potential
Classification and Prepare an Emergency Action Plan
Except for incised CCR surface impoundments as defined in 40 CFR
257.53, owners or operators of inactive CCR surface impoundments
subject to the provisions of the new 40 CFR 257.100(e)(3)(v) must
complete the initial periodic hazard potential classification
assessment as required by 40 CFR 257.73 (a)(2) no later than April 17,
2018. Section 257.73(a)(3) requires any CCR surface impoundment that is
determined by the owner or operator, through the certification by a
qualified professional engineer, to be either a high hazard potential
or a significant hazard potential CCR surface impoundment to prepare
and maintain a written Emergency Action Plan (EAP). An EAP is a
document that identifies potential emergency conditions at a CCR
surface impoundment and specifies actions to be followed to minimize
loss of life and property damage. In order to prepare an EAP, the owner
or operator must accurately and comprehensively identify potential
failure modes and at risk developments. Inactive surface impoundments
that have been identified as having either a high hazard potential or a
significant hazardous potential are subject to the provisions of the
new 40 CFR 257.100(e)(3)(iii) and must prepare and maintain an EAP as
required by 40 CFR 257.73 no later than October 16, 2018. See also 80
FR 21377-21379, April 17, 2015.
E. Design Criteria--Deadline To Document the CCR Surface Impoundments
History of Construction
CCR surface impoundments that either have: (1) A height of five
feet or more and a storage volume of 20 acre feet or more; or (2) have
a height of 20 feet or more are required to document the design and
construction of the CCR surface impoundment as required in 40 CFR
257.73(b) and (c). Owners or operators of inactive CCR surface
impoundments that meet this size threshold and are subject to the
provisions of the new 40 CFR 257.100(e)(3)(iv) must document the
construction history of the CCR unit no later than April 17, 2018. See
also 80 FR 21379-21380, April 17, 2015.
F. Design Criteria--Deadline To Complete the Initial Structural
Stability Assessment and Initial Safety Factor Assessment
CCR surface impoundments meeting the size threshold discussed in
section IV.E of this preamble, are also subject to two different types
of technical assessments: (1) A structural stability assessment; and
(2) a safety factor assessment. Owners or operators of inactive CCR
surface impoundments subject to the provisions of the new 40 CFR
257.100(e)(3)(v) are required to conduct an initial assessment
addressing both structural stability and safety factors by April 17,
2018. These requirements can be found at 40 CFR 257.73(b), (d), (e),
and (f). See also 80 FR 21380-21386, April 17, 2015.
G. Operating Criteria--Deadline To Prepare a Fugitive Dust Control Plan
The owner or operator of a CCR unit is required under 40 CFR
257.80(b) to adopt measures that will effectively minimize CCR from
becoming airborne at the facility, including CCR fugitive dust
originating from CCR units, roads, and other CCR management and
material handling activities. To meet this requirement, the owner or
operator of the CCR unit must prepare and operate in accordance with a
fugitive dust control plan. Owners or operators of inactive CCR surface
impoundments subject to the provisions of the new 40 CFR
257.100(e)(4)(i) must complete this plan no later than April 18, 2017.
See also 80 FR 21386-21388, April 17, 2015.
H. Operating Criteria--Deadline To Prepare an Initial Inflow Design
Flood Control System Plan
Owners or operators of all CCR surface impoundments are required to
design, construct, operate, and maintain hydraulic and hydrologic
capacity to adequately manage flow both into and from a CCR surface
impoundment during and after the peak discharge resulting from the
inflow design flood, which is based on the Hazard Potential
Classification of the CCR surface impoundment (40 CFR 257.82(a)). The
rule requires the preparation of an initial inflow design flood control
system plan (40 CFR 257.82(c)). Owners and operators of inactive CCR
surface impoundments subject to the provisions of the new 40 CFR
257.100(e)(4)(ii) must complete the inflow design flood control system
plan by April 17, 2018. See also 80 FR 21390-21392, April 17, 2015.
I. Operating Criteria--Deadline To Initiate Weekly Inspection of the
CCR Surface Impoundment and Monthly Monitoring of the CCR Unit's
Instrumentation
Under 40 CFR 257.83(a) all CCR surface impoundments must be
examined by a qualified person at least once every seven days for any
appearance of actual or potential structural weakness or other
conditions that are disrupting or that have the potential to disrupt
the operation or safety of the CCR unit. The results of the inspection
by a qualified person must be recorded in the facility's operating
record. Weekly inspections are intended to detect, as early as
practicable, signs of distress in a CCR surface impoundment that may
result in larger more severe conditions. Inspections are also designed
to identify potential issues with hydraulic structures that may affect
the structural safety of the unit and impact its hydraulic and
hydrologic capacity. 40 CFR 257.83(a) also requires the monitoring of
all instrumentation supporting the operation of the CCR unit to be
conducted by a qualified person no less than once per month. Owners and
operators of inactive CCR surface impoundments subject to the
provisions of the new 40 CFR 257.100(e)(4)(iii) must initiate the
inspection requirements set forth in 40 CFR 257.83(a) no later than
April 18, 2017. See also 80 FR 21394-21395, April 17, 2015.
J. Operating Criteria--Deadline To Complete the Initial Annual
Inspection of the CCR Surface Impoundment
Any CCR surface impoundment exceeding the size threshold discussed
in section IV.E of this preamble, is required to conduct annual
inspections of the CCR unit throughout its operating life (40 CFR
257.83(b)). These inspections are focused primarily on the structural
stability of the unit and must ensure that the operation and
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maintenance of the unit is in accordance with recognized and generally
accepted good engineering standards. Each inspection must be conducted
and certified by a qualified professional engineer. Owners and
operators of inactive CCR surface impoundments subject to the
provisions of the new 40 CFR 257.100(e)(4)(iv) must conduct this
initial annual inspection by July 19, 2017. See also 80 FR 21395, April
17, 2015.
K. Groundwater Monitoring and Corrective Action--Deadline To Install
the Groundwater Monitoring System and Begin Monitoring
Owners and operators of inactive CCR surface impoundments subject
to the provisions of the new 40 CFR 257.100(e)(5)(i) are required to
comply with the provisions of 40 CFR 257.90(b) no later than April 17,
2019. These provisions require the installation of a groundwater
monitoring system as required by 40 CFR 257.91 and the development of a
groundwater sampling and analysis program. This program is to include
selection of the statistical procedures to be used for evaluating
groundwater monitoring data as required by 40 CFR 257.93. It also
includes the initiation of the detection monitoring program and
includes obtaining a minimum of eight independent samples for each
background and downgradient wells as required by 40 CFR 257.94(b) and
to begin evaluating the groundwater monitoring data for a statistically
significant increase over background levels for the constituents listed
in appendix III as required by 40 CFR 257.94. See also 80 FR at 21396-
21407, April 17, 2015.
L. Groundwater Monitoring and Corrective Action--Deadline To Prepare an
Initial Groundwater Monitoring and Corrective Action Report
Owners and operators of inactive CCR surface impoundments subject
to the provisions of the new 40 CFR 257.100(e)(5)(ii) are required to
comply with the provisions of 40 CFR 257.90(e) no later than August 1,
2019 (and annually thereafter) that require the preparation of an
annual groundwater monitoring and corrective action report. The report
must contain specific information identified in the regulations
including but not limited to maps, aerial images or diagrams showing
the CCR unit and all upgradient (background) and downgradient wells,
identification of any monitoring wells installed or decommissioned in
the previous year; monitoring data collected under 40 CFR 257.90-257.98
and a narrative discussion of any transition between monitoring
programs (i.e., detection and assessment monitoring).
M. Detection Monitoring Program--Deadline for Collection and Analyses
of Eight Independent Samples
Consistent with the groundwater monitoring requirements previously
discussed in section IV.K of this preamble, no later than April 17,
2019, owners or operators of inactive CCR surface impoundments subject
to the provisions of the new 40 CFR 257.100(e)(5)(i) must collect a
minimum of eight independent samples from each background and down
gradient well and analyze for constituents listed in appendix III and
IV of this part as required under 40 CFR 257.94(b).
N. Closure and Post-Closure Care--Deadline To Prepare a Written Closure
Plan
The closure plan describes the steps necessary to close a CCR unit
at any point during the active life of the unit based on recognized and
generally accepted good engineering practices. Owners and operators of
inactive CCR surface impoundments subject to the provisions of the new
40 CFR 257.100(e)(6)(i) are required to comply with the requirements of
40 CFR 257.102, including 40 CFR 257.102(b) requiring the preparation
of a written closure plan no later than April 17, 2018. A written
closure plan includes information that sets out how the closure of the
unit will be conducted. It includes information such as a narrative
description of the closure process, whether the closure of the CCR unit
will be accomplished by leaving CCR in place or through clean closure.
If the CCR is left in place, the closure plan must provide a
description of the final cover system and how the final cover system
will achieve the regulatory performance standards. The written closure
plan must also provide a schedule for completing all activities
necessary to satisfy the closure criteria of the rule. See also 80 FR
21410-21425, April 17, 2015.
O. Closure and Post-Closure Care--Deadline To Prepare a Written Post-
Closure Care Plan
40 CFR 257.104(d) requires that an owner or operator of a CCR unit
prepare a written post-closure plan. The content of the plan includes
among other things, a description of the monitoring and maintenance
activities required for the unit and the frequency that these
activities will be performed. Owners and operators of inactive CCR
surface impoundments subject to the provisions of the new 40 CFR
257.100(e)(6)(ii) are required to comply with the requirements of 40
CFR 257.104, including 40 CFR 257.104(d) requiring the preparation of a
written post-closure plan no later than April 17, 2018.
P. Recordkeeping, Notification and Publicly Accessible Internet Site
Requirements
Inactive CCR surface impoundments subject to the revised compliance
deadlines being finalized in this direct final rule are also subject to
the recordkeeping, notification and publicly accessible internet
reporting requirements. The CCR rule requires the owner or operator of
a CCR unit(s) to maintain files of all required information (e.g.,
demonstrations, plans, notifications, and reports) that supports
implementation and compliance with the rule. Each file must be
maintained in the operating record for a period of at least 5 years
following submittal of the file into the operating record. Submittal
into the operating record is required at the time the documentation
becomes available or by the specific compliance deadline. Section
257.105 contains a comprehensive listing of each recordkeeping
requirement.
Owners or operators are also required to notify State Directors
and/or the appropriate Tribal authority when specific documents have
been placed in the operating record and on the owner or operators
publicly accessible internet site. In most instances, these
notifications must be certified by a qualified professional engineer
and may, in certain instances, be accompanied with additional
information or data supporting the notification. Notification
requirements can be found at 40 CFR 257.106, and are required for
location criteria, design criteria, operating criteria, groundwater
monitoring and corrective action and closure and post-closure care.
Owners and operators of CCR units are also required to establish
and maintain a publicly accessible Internet site, titled ``CCR Rule
Compliance Data and Information.'' Unless provided otherwise in the
rule, information posted to the Internet site must be available for a
period no less than 3 years from the initial posting date. Posting of
information must be completed no later than 30 days from the submittal
of the information to the operating record. Owners and operators of
inactive CCR surface impoundments subject to the new provisions of
Sec. 257.100(e) have 30 days from the revised compliance deadlines to
post applicable information on their publicly accessible internet site.
[[Page 51807]]
The preceding discussion provides an abbreviated summary of the
compliance deadlines for owners or operators of inactive CCR surface
impoundments affected by this direct final rule. These inactive CCR
surface impoundments are now also subject to all applicable
requirements under 40 CFR part 257, subpart D for existing CCR surface
impoundments. The new compliance deadlines for inactive CCR surface
impoundments have been collected in a new paragraph (e) under Sec.
257.100.
V. What is the effect of this rule on state programs?
The CCR rule established minimum federal criteria for existing and
new CCR surface impoundments and CCR landfills. The regulations
promulgated under subtitle D of RCRA require owner or operators of
these units to comply with the requirements of the rule without any
additional action by a state or federal regulatory agency. As discussed
at length in the CCR rule preamble (80 FR 21429-21433, April 17, 2015),
under the provisions of subtitle D applicable to solid waste, states
are not required to adopt or implement these regulations, to develop a
permit program, or submit a program covering these units to EPA for
approval and there is no mechanism for EPA to officially approve or
authorize a state program to operate ``in lieu of'' the federal
regulations. In the CCR rule, however, EPA strongly encouraged states
to adopt at least the federal minimum requirements into their
regulations. EPA further acknowledged that some states have already
adopted requirements that go beyond the minimum federal requirements;
for example, some states currently impose financial assurance
requirements for CCR units, and require a permit for some or all of
these units. The federal criteria promulgated in the CCR rule are
minimum requirements and do not preclude states' from adopting more
stringent requirements where they deem to be appropriate. EPA also
encouraged states to revise their solid waste management plan (SWMP) to
address the issuance of the revised federal requirements and to submit
the revisions of these plans to EPA for review, using the provision
contained in 40 CFR part 256.
This rule amends the final CCR rule to reflect the vacatur of
specific provisions of that rule applicable to certain CCR surface
impoundments (i.e., 40 CFR 257.100(b), (c), and (d)). This vacatur will
likely affect those states that have begun the process of either
revising their state programs (and regulations) to be consistent with
the federal requirements or those states that have or are in the
process of adopting the federal minimum requirements into their state
regulations by reference. These states must now ensure that their
regulations take into account this vacatur by ensuring that their
regulations provide that inactive CCR surface impoundments are subject
to all of the requirements in part 257 applicable to existing CCR
surface impoundments regardless of their intent to close by a certain
date.
VI. Statutory and Executive Order (EO) Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993) and
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is
not a ``significant regulatory action'' and is therefore not subject to
OMB review. Because this action is not subject to notice and comment
requirements under the Administrative Procedures Act or any other
statute, it is not subject to the Regulatory Flexibility Act (5 U.S.C.
601 et seq.) or Sections 202 and 205 of the Unfunded Mandates Reform
Act of 1999 (UMRA) (Pub. L. 104-4). In addition, this action does not
significantly or uniquely affect small governments. This action does
not create new binding legal requirements that substantially and
directly affect Tribes under Executive Order 13175 (65 FR 67249,
November 9, 2000). This action does not have significant Federalism
implications under Executive Order 13132 (64 FR 43255, August 10,
1999). Because this final rule has been exempted from review under
Executive Order 12866, this final rule is not subject to Executive
Order 13211, entitled Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001)
or Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997). This final rule does not contain any information collections
subject to OMB approval under the Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq., nor does it require any special considerations
under Executive Order 12898, entitled Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994). This action does not
involve technical standards; thus, the requirements of Section 12(d) of
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C.
272 note) do not apply.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before certain actions may take effect, the agency
promulgating the action must submit a report, which includes a copy of
the action, to each House of the Congress and to the Comptroller
General of the United States. This action is subject to the CRA, and
the EPA will submit a rule report to each House of the Congress and to
the Comptroller General of the United States. This action is not a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 257
Environmental protection, Beneficial use, Coal combustion products,
Coal combustion residuals, Coal combustion waste, Disposal, Hazardous
waste, Landfill, Surface impoundment.
Dated: July 26, 2015.
Gina McCarthy,
Administrator.
For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations is amended as follows:
PART 257--CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL
FACILITIES AND PRACTICES
0
1. The authority citation for part 257 continues to read as follows:
Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 6944(a), and
6949a(c); 33 U.S.C. 1345(d) and (e).
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2. Section 257.90 is amended by revising paragraph (a) to read as
follows:
Sec. 257.90 Applicability.
(a) All CCR landfills, CCR surface impoundments, and lateral
expansions of CCR units are subject to the groundwater monitoring and
corrective action requirements under Sec. Sec. 257.90 through 257.98.
* * * * *
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3. Section 257.100 is amended by:
0
a. Revising paragraph (a);
0
b. Removing and reserving paragraphs (b) through (d); and
0
c. Adding paragraph (e).
The revisions and additions read as follows:
Sec. 257.100 Inactive CCR surface impoundments.
(a) Inactive CCR surface impoundments are subject to all of the
requirements of this subpart applicable to existing CCR surface
impoundments.
* * * * *
(e) Timeframes for certain inactive CCR surface impoundments. (1)
An
[[Page 51808]]
inactive CCR surface impoundment for which the owner or operator has
completed the actions by the deadlines specified in paragraphs
(e)(1)(i) through (iii) of this section is eligible for the alternative
timeframes specified in paragraphs (e)(2) through (6) of this section.
The owner or operator of the CCR unit must comply with the applicable
recordkeeping, notification, and internet requirements associated with
these provisions. For the inactive CCR surface impoundment:
(i) The owner or operator must have prepared and placed in the
facility's operating record by December 17, 2015, a notification of
intent to initiate closure of the inactive CCR surface impoundment
pursuant to Sec. 257.105(i)(1);
(ii) The owner or operator must have provided notification to the
State Director and/or appropriate Tribal authority by January 19, 2016,
of the intent to initiate closure of the inactive CCR surface
impoundment pursuant to Sec. 257.106(i)(1); and
(iii) The owner or operator must have placed on its CCR Web site by
January 19, 2016, the notification of intent to initiate closure of the
inactive CCR surface impoundment pursuant to Sec. 257.107(i)(1).
(2) Location restrictions. (i) No later than April 16, 2020, the
owner or operator of the inactive CCR surface impoundment must:
(A) Complete the demonstration for placement above the uppermost
aquifer as set forth by Sec. 257.60(a), (b), and (c)(3);
(B) Complete the demonstration for wetlands as set forth by Sec.
257.61(a), (b), and (c)(3);
(C) Complete the demonstration for fault areas as set forth by
Sec. 257.62(a), (b), and (c)(3);
(D) Complete the demonstration for seismic impact zones as set
forth by Sec. 257.63(a), (b), and (c)(3); and
(E) Complete the demonstration for unstable areas as set forth by
Sec. 257.64(a), (b), (c), and (d)(3).
(ii) An owner or operator of an inactive CCR surface impoundment
who fails to demonstrate compliance with the requirements of paragraph
(e)(2)(i) of this section is subject to the closure requirements of
Sec. 257.101(b)(1).
(3) Design criteria. The owner or operator of the inactive CCR
surface impoundment must:
(i) No later than April 17, 2018, complete the documentation of
liner type as set forth by Sec. 257.71(a) and (b).
(ii) No later than June 16, 2017, place on or immediately adjacent
to the CCR unit the permanent identification marker as set forth by
Sec. 257.73(a)(1).
(iii) No later than October 16, 2018, prepare and maintain an
Emergency Action Plan as set forth by Sec. 257.73(a)(3).
(iv) No later than April 17, 2018, compile a history of
construction as set forth by Sec. 257.73(b) and (c).
(v) No later than April 17, 2018, complete the initial hazard
potential classification, structural stability, and safety factor
assessments as set forth by Sec. 257.73(a)(2), (b), (d), (e), and (f).
(4) Operating criteria. The owner or operator of the inactive CCR
surface impoundment must:
(i) No later than April 18, 2017, prepare the initial CCR fugitive
dust control plan as set forth in Sec. 257.80(b).
(ii) No later than April 17, 2018, prepare the initial inflow
design flood control system plan as set forth in Sec. 257.82(c).
(iii) No later than April 18, 2017, initiate the inspections by a
qualified person as set forth by Sec. 257.83(a).
(iv) No later than July 19, 2017, complete the initial annual
inspection by a qualified professional engineer as set forth by Sec.
257.83(b).
(5) Groundwater monitoring and corrective action. The owner or
operator of the inactive CCR surface impoundment must:
(i) No later than April 17, 2019, comply with groundwater
monitoring requirements set forth in Sec. Sec. 257.90(b) and
257.94(b); and
(ii) No later than August 1, 2019, prepare the initial groundwater
monitoring and corrective action report as set forth in Sec.
257.90(e).
(6) Closure and post-closure care. The owner or operator of the
inactive CCR surface impoundment must:
(i) No later than April 17, 2018, prepare an initial written
closure plan as set forth in Sec. 257.102(b); and
(ii) No later than April 17, 2018, prepare an initial written post-
closure care plan as set forth in Sec. 257.104(d).
Sec. 257.102 [Amended]
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4. Section 257.102 is amended by removing and reserving paragraph
(e)(4)(i).
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5. Section 257.104 is amended by revising paragraph (a)(1) and removing
paragraph (a)(3) to read as follows:
Sec. 257.104 Post-closure care requirements.
(a) * * *
(1) Except as provided by paragraph (a)(2) of this section, Sec.
257.104 applies to the owners or operators of CCR landfills, CCR
surface impoundments, and all lateral expansions of CCR units that are
subject to the closure criteria under Sec. 257.102.
* * * * *
[FR Doc. 2016-18353 Filed 8-4-16; 8:45 am]
BILLING CODE 6560-50-P