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, 51802-51808 [2016-18353]
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Federal Register / Vol. 81, No. 151 / Friday, August 5, 2016 / Rules and Regulations
small entities that question or complain
about this rule or any policy or action
of the Coast Guard.
C. Collection of Information
This rule will not call for a new
collection of information under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520).
D. Federalism and Indian Tribal
Governments
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect 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. We have
analyzed this rule under that Order and
have determined that it is consistent
with the fundamental federalism
principles and preemption requirements
described in Executive Order 13132.
Also, this rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes. If you
believe this rule has implications for
federalism or Indian tribes, please
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section.
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E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
F. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321–4370f), and have
determined that this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
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environment. This rule involves a safety
zone lasting approximately 6 hours
annually that will prohibit entry within
a specific section of the Columbia River
in the vicinity of Hood River, OR. It is
categorically excluded from further
review under paragraph 34(g) of Figure
2–1 of the Commandant Instruction. An
environmental analysis checklist
supporting this determination and a
Categorical Exclusion Determination are
available in the docket where indicated
under ADDRESSES. We seek any
comments or information that may lead
to the discovery of a significant
environmental impact from this rule.
G. Protest Activities
The Coast Guard respects the First
Amendment rights of protesters.
Protesters are asked to contact the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 33 U.S.C. 1231; 50 U.S.C. 191;
33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5;
Department of Homeland Security Delegation
No. 0170.1.
2. Add, under the undesignated center
heading Thirteenth Coast Guard District,
§ 165.1342 to read as follows:
Non-participant person means a
person not registered as a swimmer in
the Roy Webster Cross-Channel Swim
held on the Columbia River in the
vicinity of Hood River, OR, each Labor
Day.
(c) Regulations. In accordance with
the general regulations in 33 CFR part
165, subpart C, non-participant persons
and vessels are prohibited from
entering, transiting through, anchoring
in, or remaining within the regulated
area unless authorized by Captain of the
Port, Sector Columbia River or a
designated representative.
(1) Non-participant persons and
vessels may request authorization to
enter, transit through, anchor in, or
remain within the regulated area by
contacting the Captain of the Port
Sector, Columbia River or a designated
representative via VHF radio on channel
16. If authorization is granted by the
Captain of the Port, Sector Columbia
River or a designated representative, all
persons and vessels receiving such
authorization must comply with the
instructions of the Captain of the Port
Sector, Columbia River or a designated
representative.
(2) The Coast Guard will provide
notice of the safety zone by Local Notice
to Mariners, Broadcast Notice to
Mariners and on-scene designated
representatives.
(d) Enforcement period. This safety
zone will be enforced on Labor Day of
each year, between the hours of 6 a.m.
and Noon.
Dated: July 29, 2016.
W.R. Timmons,
Captain, U.S. Coast Guard, Captain of the
Port, Sector Columbia River.
[FR Doc. 2016–18589 Filed 8–4–16; 8:45 am]
BILLING CODE 9110–04–P
■
§ 165.1342 Annual Roy Webster CrossChannel Swim, Columbia River, Hood River,
OR.
(a) Regulated area. The following
regulated area is a safety zone. The
safety zone will encompass all waters of
the Columbia River between River Mile
169 and River Mile 170.
(b) Definitions. As used in this
section—
Designated representative means
Coast Guard Patrol Commanders,
including Coast Guard coxswains, petty
officers, and other officers operating
Coast Guard vessels, and Federal, state,
and local officers designated by or
assisting the Captain of the Port Sector
Columbia River in the enforcement of
the regulated area.
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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
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The Environmental Protection
Agency (EPA or the Agency) is taking
SUMMARY:
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Federal Register / Vol. 81, No. 151 / Friday, August 5, 2016 / Rules and Regulations
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 https://
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
https://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: souders.steve@epa.gov.
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
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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.
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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
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inactive CCR surface impoundments
must now comply with all of the
requirements applicable to existing CCR
surface impoundments.
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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
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
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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.
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.
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,
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.
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 § 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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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
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conductivity of no more than 1 × 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.
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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.
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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
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51805
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.
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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
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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 PostClosure 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
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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
§ 257.100(e) have 30 days from the
revised compliance deadlines to post
applicable information on their publicly
accessible internet site.
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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 § 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
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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.
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51807
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
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).
2. Section 257.90 is amended by
revising paragraph (a) to read as follows:
■
§ 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 §§ 257.90
through 257.98.
*
*
*
*
*
■ 3. Section 257.100 is amended by:
■ a. Revising paragraph (a);
■ b. Removing and reserving paragraphs
(b) through (d); and
■ c. Adding paragraph (e).
The revisions and additions read as
follows:
§ 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
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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
§ 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
§ 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
§ 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 § 257.60(a), (b), and (c)(3);
(B) Complete the demonstration for
wetlands as set forth by § 257.61(a), (b),
and (c)(3);
(C) Complete the demonstration for
fault areas as set forth by § 257.62(a), (b),
and (c)(3);
(D) Complete the demonstration for
seismic impact zones as set forth by
§ 257.63(a), (b), and (c)(3); and
(E) Complete the demonstration for
unstable areas as set forth by § 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 § 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 § 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 § 257.73(a)(1).
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(iii) No later than October 16, 2018,
prepare and maintain an Emergency
Action Plan as set forth by
§ 257.73(a)(3).
(iv) No later than April 17, 2018,
compile a history of construction as set
forth by § 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
§ 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 § 257.80(b).
(ii) No later than April 17, 2018,
prepare the initial inflow design flood
control system plan as set forth in
§ 257.82(c).
(iii) No later than April 18, 2017,
initiate the inspections by a qualified
person as set forth by § 257.83(a).
(iv) No later than July 19, 2017,
complete the initial annual inspection
by a qualified professional engineer as
set forth by § 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 §§ 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 § 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 § 257.102(b); and
(ii) No later than April 17, 2018,
prepare an initial written post-closure
care plan as set forth in § 257.104(d).
§ 257.102
[Amended]
4. Section 257.102 is amended by
removing and reserving paragraph
(e)(4)(i).
■ 5. Section 257.104 is amended by
revising paragraph (a)(1) and removing
paragraph (a)(3) to read as follows:
■
§ 257.104
Post-closure care requirements.
(a) * * *
(1) Except as provided by paragraph
(a)(2) of this section, § 257.104 applies
to the owners or operators of CCR
landfills, CCR surface impoundments,
and all lateral expansions of CCR units
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that are subject to the closure criteria
under § 257.102.
*
*
*
*
*
[FR Doc. 2016–18353 Filed 8–4–16; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 64
[Docket ID FEMA–2016–0002; Internal
Agency Docket No. FEMA–8443]
Suspension of Community Eligibility
Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
AGENCY:
This rule identifies
communities where the sale of flood
insurance has been authorized under
the National Flood Insurance Program
(NFIP) that are scheduled for
suspension on the effective dates listed
within this rule because of
noncompliance with the floodplain
management requirements of the
program. If the Federal Emergency
Management Agency (FEMA) receives
documentation that the community has
adopted the required floodplain
management measures prior to the
effective suspension date given in this
rule, the suspension will not occur and
a notice of this will be provided by
publication in the Federal Register on a
subsequent date. Also, information
identifying the current participation
status of a community can be obtained
from FEMA’s Community Status Book
(CSB). The CSB is available at https://
www.fema.gov/fema/csb.shtm.
DATES: Effective Dates: The effective
date of each community’s scheduled
suspension is the third date (‘‘Susp.’’)
listed in the third column of the
following tables.
FOR FURTHER INFORMATION CONTACT: If
you want to determine whether a
particular community was suspended
on the suspension date or for further
information, contact Patricia Suber,
Federal Insurance and Mitigation
Administration, Federal Emergency
Management Agency, 400 C Street SW.,
Washington, DC 20472, (202) 646–4149.
SUPPLEMENTARY INFORMATION: The NFIP
enables property owners to purchase
Federal flood insurance that is not
otherwise generally available from
private insurers. In return, communities
agree to adopt and administer local
floodplain management measures aimed
SUMMARY:
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]]>Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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 https://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: souders.steve@epa.gov.
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.
---------------------------------------------------------------------------
\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
[[Page 51806]]
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).
0
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.
* * * * *
0
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]
0
4. Section 257.102 is amended by removing and reserving paragraph
(e)(4)(i).
0
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
