Oklahoma: Approval of State Coal Combustion Residuals State Permit Program, 2100-2104 [2018-00474]
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VI. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this proposed action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
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tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: January 2, 2018.
Ken Moraff,
Acting Regional Administrator, EPA New
England.
[FR Doc. 2018–00477 Filed 1–12–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 257
[EPA–HQ–OLEM–2017–0613; FRL–9972–
95–OLEM]
Oklahoma: Approval of State Coal
Combustion Residuals State Permit
Program
Environmental Protection
Agency (EPA).
ACTION: Notice of availability; request
for comment.
AGENCY:
Pursuant to the Resource
Conservation and Recovery Act (RCRA
or Act), the Environmental Protection
Agency (EPA) is proposing to approve
the application submitted by the
Oklahoma Department of Environmental
Quality to allow the Oklahoma Coal
Combustion Residuals (CCR) state
permit program to operate in lieu of the
Federal CCR program. EPA has
preliminarily determined that
Oklahoma’s program meets the standard
for approval under RCRA. Once
approved, the State program
requirements and resulting permit
provisions will be subject to EPA’s
inspection and enforcement authorities
under RCRA and other applicable
statutory and regulatory provisions as
discussed below. This notice also
announces that EPA is seeking comment
on this proposal during a 45-day public
comment period, and is providing an
opportunity to request a public hearing
within the first 15 days of this comment
period.
DATES: Comments must be received on
or before March 2, 2018. In addition, a
public hearing request must be
submitted on or before January 31, 2018.
SUMMARY:
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Submit your comments,
identified by Docket ID No. EPA–HQ–
OLEM–2017–0613, at https://
www.regulations.gov or by mail to: EPA
Docket Center, Environmental
Protection Agency, Mail Code 28221T,
1200 Pennsylvania Ave. NW,
Washington, DC 20460. 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 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:
Mary Jackson, Office of Resource
Conservation and Recovery,
Environmental Protection Agency;
telephone number: (703) 308–8453;
email address: jackson.mary@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means the EPA.
ADDRESSES:
I. General Information
A. Overview of Proposed Actions
EPA is proposing to approve
Oklahoma’s CCR state permit program
application, pursuant to RCRA
4005(d)(1)(B). Oklahoma’s proposed
program would allow the Oklahoma
Department of Environmental Quality
(ODEQ) to enforce rules promulgated
under its solid waste statute related to
CCR activities in non-Indian Country, as
well as to handle permit applications
and to enforce permit violations. If
approved, Oklahoma’s CCR permit
program will operate in lieu of the
Federal CCR program, codified at 40
CFR part 257, subpart D.
This notice also announces that EPA
is seeking comment on this proposal,
and providing an opportunity to request
a public hearing on whether the State’s
program is at least as protective as the
federal program. If there is significant
interest shown in holding a public
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hearing EPA will then hold a public
hearing. Please submit any request for a
public hearing within the first 15 days
of the public comment period through
the Contact Us form on the following
web page: (https://www.epa.gov/
coalash). If the desire for a public
hearing is demonstrated EPA will hold
the hearing at the Oklahoma Department
of Environmental Quality building
located at 707 N Robinson Ave.,
Oklahoma City, OK on February 13,
2018 starting at 9 a.m. EPA will post a
confirmation of the public hearing in
the docket and on the EPA CCR website
(https://www.epa.gov/coalash)
providing information for the hearing.
EPA has also engaged federallyrecognized Tribes within the State of
Oklahoma in consultation and
coordination regarding the program
authorizations for ODEQ. EPA has
established opportunities for formal as
well as informal discussion throughout
the consultation period, beginning with
an initial conference call on October 19,
2017. Tribal consultation will be
conducted in accordance with the EPA
policy on Consultation and
Coordination with Indian Tribes
(https://www.epa.gov/sites/production/
files/2013-08/documents/cons-andcoord-with-indian-tribes-policy.pdf).
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B. Background
CCR are generated from the
combustion of coal, including solid
fuels classified as anthracite,
bituminous, subbituminous, and lignite,
for the purpose of generating steam for
the purpose of powering a generator to
produce electricity or electricity and
other thermal energy by electric utilities
and independent power producers. CCR
includes fly ash, bottom ash, boiler slag,
and flue gas desulfurization materials.
CCR can be sent off-site for disposal or
beneficial use or disposed in on-site
landfills or surface impoundments.
On April 17, 2015, EPA published a
final rule, creating 40 CFR part 257,
subpart D, that established a
comprehensive set of minimum
requirements for the disposal of CCR in
landfills and surface impoundments (80
FR 21302). The rule created a selfimplementing program which regulates
the location, design, operating criteria,
and groundwater monitoring and
corrective action for CCR disposal, as
well as regulating the closure and postclosure care of CCR units and requiring
recordkeeping and notifications for CCR
units. The regulations do not cover the
‘‘beneficial use’’ of CCR as that term is
defined in § 257.53.
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C. Statutory Authority
EPA is issuing this proposed
determination pursuant to section RCRA
sections 4005(d) and 7004(b)(1). See 42
U.S.C. 6945(d), 6974(b)(1).
Section 2301 of the 2016 Water
Infrastructure Improvements for the
Nation (WIIN) Act amended Section
4005 of the Resource Conservation and
Recovery Act (RCRA), creating a new
subsection (d) that establishes a Federal
permitting program similar to those
under RCRA subtitle C and other
environmental statutes. See 42 U.S.C.
6945(d). Under the WIIN Act, states may
develop and submit a CCR permit
program to EPA for approval; once
approved the state permit program
operates in lieu of the Federal
requirements. See 42 U.S.C.
6945(d)(1)(A).
To become approved, the statute
requires that a State provide ‘‘evidence
of a permit program or other system of
prior approval and conditions under
State law for regulation by the State of
coal combustion residuals units that are
located in the State.’’ See 42 U.S.C.
6945(d)(1)(A). In addition, the statute
directs that the State submit evidence
that the program meets the standard in
section 4005(d)(1)(B), i.e., that it will
require each coal combustion residuals
unit located in the State to achieve
compliance with either: (1) The Federal
CCR requirements at 40 CFR part 257,
subpart D; or (2) other State criteria that
the Administrator, after consultation
with the State, determines to be at least
as protective as the Federal
requirements. See 42 U.S.C.
6945(d)(1)(B). EPA has 180 days from
receiving a complete application to
make a final determination, and must
provide public notice and an
opportunity for public comment. See 42
U.S.C. 6945(d)(1)(B).
To receive EPA approval, EPA must
determine that the state program
requires each CCR unit located in the
state to achieve compliance either with
the requirements of 40 CFR part 257,
subpart D, or with state criteria that EPA
determines (after consultation with the
State) to be at least as protective as the
requirements of 40 CFR part 257,
subpart D. See 42 U.S.C. 6945(d)(1)(B).
EPA may approve a proposed state
permit program in whole or in part. Id.
Once a program is approved, EPA
must review the program at least every
12 years, as well as no later than 3 years
after a revision to an applicable section
of 40 CFR part 257, subpart D, or 1 year
after any unauthorized significant
release from a CCR unit located in the
state. See 42 U.S.C. 6945(d)(1)(D)(i)(I)–
(III). EPA also must review a program at
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the request of another state alleging that
the soil, groundwater, or surface water
of the requesting state is or is likely to
be adversely affected by a release from
a CCR unit in the approved state. See 42
U.S.C. 6945(d)(1)(D)(i)(IV).
In a state with an approved CCR
program, EPA may commence
administrative or judicial enforcement
actions under RCRA § 3008 if the state
requests assistance or if the EPA
determines that an EPA enforcement
action is likely to be necessary to ensure
that a CCR unit is operating in
accordance with the criteria of the
permit program. See 42 U.S.C.
6945(d)(4).
II. Oklahoma’s Application
ODEQ issued a Notice of Rulemaking
Intent related to its proposed CCR
program and accepted public comments
from December 1, 2015 through January
13, 2016. ODEQ then published an
Executive Summary rulemaking
document that included the public
comments received and the ODEQ
responses.
In September 2016, ODEQ
promulgated Oklahoma Administrative
Code (OAC) Title 252 Chapter 517
Disposal of Coal Combustion Residuals
from Electric Utilities, establishing its
CCR program. OAC 252:517
incorporates all of the federal
regulations at 40 CFR part 257, subpart
D, with some minor modifications as
discussed below.
On July 31, 2017 Oklahoma submitted
to EPA its initial application. The State
supplemented its original application
on October 18, 2017. EPA determined
that the application was complete and
notified Oklahoma of its determination
by letter dated December 21, 2017.1
EPA is aware of six CCR facilities
currently in Oklahoma. Approval of
ODEQ’s CCR application would allow
the ODEQ regulations to apply to those
existing CCR units as well as any future
CCR units not located in Indian country
in lieu of the Federal requirements.
EPA is not aware of any existing CCR
units in Indian country within
Oklahoma, but EPA will maintain sole
authority to regulate and permit CCR
units in Indian country, meaning formal
and informal reservations, dependent
Indian communities, and Indian
allotments, whether restricted or held in
trust by the United States.
1 ODEQ’s initial CCR permit program application,
subsequent supplementation, and EPA’s
determination of completeness letter are available
in the docket supporting this proposal.
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III. EPA Analysis of Oklahoma’s
Application
As discussed in Section I.C. of this
notice, the statute requires EPA to
evaluate two components of a state
program to determine whether it meets
the standard for approval. First, EPA is
to evaluate the adequacy of the permit
program (or other system of prior
approval and conditions) itself. See 42
U.S.C. 6945(d)(1)(A). Second, EPA is to
evaluate the adequacy of the technical
criteria that will be included in each
permit, to determine whether they are
the same as the federal criteria, or to the
extent they differ, whether the modified
criteria are ‘‘at least as protective as’’ the
federal requirements. See 42 U.S.C.
6945(d)(1)(B). Only if both components
meet the statutory requirements may
EPA approve the program. See 42 U.S.C.
6945(d)(1).
On that basis, EPA conducted an
analysis of ODEQ’s application,
including a thorough analysis of OAC
252:517 and its adoption of 40 CFR part
257, subpart D. Based on this analysis,
EPA has preliminarily determined that
ODEQ’s submitted CCR permit program
meets the standard for approval in
section 4005(d)(1)(A) and (B). EPA is
therefore proposing to approve
Oklahoma’s application. Oklahoma’s
program contains all the elements of the
federal rule, including requirements for
location restrictions, design and
operating criteria, groundwater
monitoring and corrective action,
closure requirements and post-closure
care, recordkeeping, notification and
internet posting requirements. It also
contains state-specific language,
references and state-specific
requirements that differ from the federal
rule, which EPA has preliminarily
determined to be at least as protective
as the Federal criteria. EPA’s analysis
and preliminary findings are discussed
in greater detail below and in the
Technical Support Document.
Non-substantive changes include
language inserts and deletions to enable
the ODEQ to permit CCR units and
enforce the Oklahoma rule. The
revisions include: The removal of
statements regarding national
applicability; the inclusion of language
to require submittal and approval of
plans to ODEQ; the inclusion of
permitting provisions to allow the
ODEQ to administer the CCR rules in
the context of a permitting program; the
inclusion of state-specific location
restrictions; the inclusion of procedures
for subsurface investigation; the
inclusion of provisions addressing cost
estimates and financial assurance.
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Throughout Oklahoma’s Chapter 517
rules, references for tribal notifications
and/or approval that appear in the
federal rule have been deleted along
with the terms ‘‘Indian Country,’’
‘‘Indian Lands,’’ and ‘‘Indian Tribe.’’
EPA will retain sole authority to
regulate and permit CCR units in Indian
country as defined in 18 U.S.C. 1151,
which includes reservations, dependent
Indian communities, and Indian
allotments, whether restricted or held in
trust by the United States. EPA treats as
reservations trust lands validly set aside
for the use of a tribe even if the trust
lands have not been formally designated
as a reservation. See, e.g., Oklahoma
Tax Commission vs. Citizen Band
Potawatomi Indian Tribe of Oklahoma,
498 U.S. 505, 511 (1991).
A. Adequacy of Oklahoma’s Permit
Program
RCRA section 4005(d)(1)(A) requires a
State seeking program approval to
submit to EPA an application with
‘‘evidence of a permit program or other
system of prior approval and conditions
under State law for regulation by the
State of coal combustion residuals units
that are located in the State.’’
RCRA section 4005(d)(1)(A) does not
require EPA to promulgate regulations
for determining the adequacy of State
programs. EPA is therefore relying in
large measure on the existing
regulations in 40 CFR part 239,
Requirements for State Permit Program
Determination of Adequacy, on the
statutory requirements for public
participation in RCRA Section 7004,
and on the Agency’s experience in
reviewing and approving State programs
in general. However, in order to aid
States in developing their programs and
to provide a clear statement of how, in
EPA’s judgment, the existing regulations
and statutory requirements in both
4005(d) and 7004 apply to state CCR
programs, on August 15, 2017 EPA
announced the availability of an interim
final Guidance for Coal Combustion
Residuals State Permit Programs (82 FR
38685). This guidance outlines the
process and procedures EPA generally
intends to use to review and make
determinations on State CCR permit
programs. EPA evaluated the adequacy
of ODEQ’s permit program based on the
statutory requirements and EPA’s
interpretation of the regulatory
requirements. A summary of EPA’s
findings are below, organized by the
program elements identified in the Part
239 regulations and the guidance
document; our detailed analysis of the
submitted State program can be found
in the Technical Support Document
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which is included in the docket for this
proposal.
1. Permitting Guidelines
Based on section 7004 and on the part
239 regulations, it is EPA’s judgment (as
expressed in the interim final guidance)
that an adequate permitting program
will provide for public participation by
ensuring that: Documents for permit
determinations are made available for
public review and comment; final
determinations on permit applications
are made known to the public; and
public comments on permit
determinations are considered.
All environmental permit and
modification applications in Oklahoma
are subject to the Oklahoma Uniform
Environmental Permitting Act (UEPA)
and the permitting rules promulgated to
carry out UEPA. UEPA classifies all
permit applications into three tiers that
determine the level of public
participation and administrative review
the permit application will receive. See
OAC 252:4–7–2. Oklahoma classifies
solid waste management applications,
including CCR applications, into their
respective tiers at OAC 252:4–7–58
through 60. All permit documents,
regardless of tier, are available for
review and copying. OAC 252:4–1–5.
Oklahoma describes the Tier I
program as ‘‘the category for those
things that are basically administrative
decisions which can be made by a
technical supervisor with no public
participation except for the landowner.’’
OAC 252:4–7–2. The Tier I permit
application requires an application,
notice to the landowner, and
Department review. 27A O.S. § 2–14–
103(9). Only applications for minor
modifications, lateral expansions within
the permit boundary below a certain
capacity, and approval of technical
plans fall within the Tier I category.
OAC 252:4–7–58.
The Tier II permit application process
expands upon the Tier I requirements to
include published notice of the
application filing and published notice
of the draft permit or denial and
opportunity for a public meeting. 27A
O.S. § 2–14–103(10). The Tier II process
covers new permits for on-site CCR
disposal units and more substantial
modifications to existing facilities
beyond Tier I. OAC 252:4–7–59.
The Tier III permit application
process includes the requirements of
Tiers I and II and adds notice of an
opportunity for a process meeting,
response to public comments, and
notice of an opportunity for an
administrative permit hearing. 27A O.S.
§ 2–14–103(11). The Tier III process
covers new permits for off-site disposal
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units and permits for some significant
modifications to off-site disposal units.
OAC 252:4–7–60.
UEPA provides for public notice and
review of permit applications and
significant permit modifications through
its Tier II and III programs. Tier II and
III programs also provide the
opportunity for public hearing, and, in
the case of Tier III applications, the
opportunity for an administrative
hearing. These programs appear to
provide adequate opportunities for
public participation in the permitting
process, and the application of UEPA to
the CCR permitting program is
consistent with Oklahoma’s practice
across environmental programs. Permit
and modification applications for CCR
facilities fall under the existing solid
waste management application at OAC
252:4–7–58 through 60, and those
classifications are used for Oklahoma’s
authorized Municipal Solid Waste
Landfill program.
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2. Guidelines for Compliance
Monitoring Authority
Based on the part 239 regulations, it
is EPA’s judgment (as expressed in the
interim final guidance), that a state’s
application for permit program approval
should demonstrate that the state has
the authority to gather information
about compliance, perform inspections,
and ensure that information it gathers is
suitable for enforcement.
ODEQ has compliance monitoring
authority under 27A O.S. § 2–3–501,
allowing for inspections, sampling,
information gathering, and other
investigation. This authority extends to
ODEQ’s proposed CCR permit program
and would provide the authority to
adequately gather information for
enforcement.
3. Guidelines for Enforcement Authority
Further, based on the part 239
regulations, it is EPA’s judgment (as
expressed in the interim final guidance),
that a state’s application for permit
program approval should demonstrate
that the state has authority to administer
RCRA § 4005(c)(1)(B) and (C) programs
to have adequate enforcement authority
to administer those programs, including:
The authority to restrain any person
from engaging in activity which may
damage human health or the
environment, the authority to sue to
enjoin prohibited activity, and the
authority to sue to recover civil
penalties for prohibited activity.
ODEQ appears to have adequate
enforcement authority for its existing
programs under 27A O.S. § 2–3–501–
507 and that authority extends to
ODEQ’s proposed CCR permit program.
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4. Intervention in Civil Enforcement
Proceedings
Based on section 7004 and on the part
239 regulations, it is EPA’s judgment (as
expressed in the interim final guidance)
that a state application for permit
program approval should demonstrate
that the state provides adequate
opportunity for citizen intervention in
civil enforcement proceedings through
the requirements found in 40 CFR 239.9.
In general, those requirements state that
the state must provide authority to
allow citizen intervention or provide
assurance of (1) a notice and public
involvement process, (2) investigating
and providing responses about
violations, and (3) not opposing
intervention when permitted by statute,
rule, or regulation.
ODEQ’s CCR program appears to
satisfy the civil intervention
requirement (40 CFR 239.9(a)) by
allowing intervention by right. (see 12
OK Stat § 12–2024). In addition, ODEQ’s
CCR program would satisfy the
requirements of 40 CFR 239.9(b) by
providing a process to respond to
citizen complaints (see 27A O.S. § 2–3–
101,503) and by not opposing citizen
intervention when allowed by statute
(see 27A O.S. § 2–7–133). ODEQ in
meeting 40 CFR 239.9(b)(2) has an
extremely robust process for responding
to citizen complaints. In 27A O.S. § 2–
3–101–F–1, The complaints program is
responsible for intake processing,
mediation and conciliation of inquiries
and complaints received by the
Department and which shall provide for
the expedient resolution of complaints
within the jurisdiction of the
Department. In 27A O.S. § 2–3–503, if
the Department undertakes an
enforcement action as a result of a
complaint, the Department shall notify
the complainant of the enforcement
action by mail. The State program in
27A O.S. § 2–3–503 offers the
complainant an opportunity to provide
written information pertinent to the
complaint within fourteen (14) calendar
days after the date of the mailing. The
State’s program also goes further in 27A
O.S. § 2–3–104 that the complaints
program shall, in addition to the
responsibilities specified by Section 2–
3–101 of this title, refer, upon written
request, all complaints in which one of
the complainants remains unsatisfied
with the Department’s resolution of said
complaint to an outside source trained
in mediation. It is clear that ODEQ takes
public intervention seriously in
enforcement actions considering the
additional elements of the State’s
complaint process.
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EPA has preliminarily determined
that these requirements allow a
minimum necessary level of citizen
involvement in the enforcement
process.
B. Adequacy of Technical Criteria
EPA has preliminarily determined
that ODEQ’s submitted CCR permit
program generally meets the standard
for approval in RCRA section
4005(d)(1)(B)(i), as it will require each
CCR unit located in Oklahoma to
achieve compliance with the applicable
criteria for CCR units under 40 CFR part
257. To make this preliminary
determination, EPA compared ODEQ’s
proposed CCR permit program to 40
CFR part 257 to determine whether it
differed from the federal requirements,
and if so, whether those differences met
the standard for approval in RCRA
section 4005(d)(1)(B)(ii) and (C).
Oklahoma has adopted all of the
technical criteria at 40 CFR part 257,
subpart D into its regulations at OAC
Title 252 Chapter 517. While ODEQ’s
CCR permit program also includes some
modification of 40 CFR part 257,
subpart D, the majority of ODEQ’s
modifications were merely those that
were needed to allow the State to
implement the part 257 criteria through
a permit process. As mentioned above,
the 40 CFR part 257, subpart D rules
were meant to be implemented directly
by the regulated facility, without the
oversight of any regulatory authority,
such as a state permitting program. For
example, ODEQ removed 40 CFR
257.61(a)(2)(iv), which references the
Marine Protection, Research, and
Sanctuaries Act requirements because
Oklahoma does not have any coastal or
ocean environments which apply under
the MPRSA regulations. EPA considers
these revisions to be ministerial, and as
such, they do not substantively modify
the federal technical criteria.
ODEQ also made a few minor changes
to the 40 CFR 257, Subpart D criteria.
These changes reflect the integration of
the CCR rules with the responsibilities
of other state agencies or state specific
conditions. There are a few minor
changes that were made inadvertently
that will be changed by the State
through another rulemaking, including a
typographic error in Chapter 517–9–
4(g)(5) and removal of the words ‘‘and
the leachate collection and removal’’
from 40 CFR 257.70(e). The State has
acknowledged these differences and has
plans to correct any errors. Additional
changes include removal of the web link
to EPA publication SW–846 under the
definition ‘‘Representative Sample’’ in
40 CFR 257.53; and the replacement of
40 CFR 257.91(e) with a reference to the
E:\FR\FM\16JAP1.SGM
16JAP1
2104
Federal Register / Vol. 83, No. 10 / Tuesday, January 16, 2018 / Proposed Rules
Oklahoma Water Resources Board
(OWRB) Section 785:35–7–2. After
review of this OWRB regulation, an EPA
groundwater expert finds the Oklahoma
rules to be more stringent than the
requirements under 40 CFR 257.91(e).
EPA preliminarily finds these changes
to be minor because the key aspects of
the CCR program including
requirements for location restrictions,
design and operating criteria,
groundwater monitoring and corrective
action, closure requirements and postclosure care, recordkeeping, notification
and internet posting requirements are
not substantially changed or reduced by
the Oklahoma revisions and in one
example is more stringent. These
changes do not keep the overall program
from being at least as protective as 40
CFR part 257, subpart D. EPA’s full
analysis of Oklahoma’s CCR permit
program can be found in the Technical
Support Document (TSD) located in the
docket for this notice.
IV. Proposed Action
In accordance with 42 U.S.C. 6945(d),
EPA is proposing to wholly approve
ODEQ’s CCR permit program
application.
Dated: January 3, 2018.
Barry N. Breen,
Principal Deputy Assistant Administrator,
Office of Land and Emergency Management.
[FR Doc. 2018–00474 Filed 1–12–18; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 54
[WC Docket Nos. 17–287, 11–42, 09–197;
FCC 17–155]
Bridging the Digital Divide for LowIncome Consumers, Lifeline and Link
Up Reform and Modernization,
Telecommunications Carriers Eligible
for Universal Service Support
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the Federal
Communications Commission
(Commission) proposes and seeks
comment on reforms to ensure the
Lifeline program rules comport with the
authority granted to the Commission in
the Communications Act and to curb
wasteful and abusive spending in the
Lifeline program. The Commission also
seeks comment on how Lifeline might
more efficiently target funds to areas
and households most in need of help in
obtaining digital opportunity.
daltland on DSKBBV9HB2PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
17:42 Jan 12, 2018
Jkt 244001
Comments are due on or before
January 24, 2018, and reply comments
are due on or before February 23, 2018.
If you anticipate that you will be
submitting comments, but find it
difficult to do so within the period of
time allowed by this document, you
should advise the contact listed below
as soon as possible.
ADDRESSES: You may submit comments,
identified by WC Docket Nos. 17–287,
11–42, and 09–197, by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s website: https://
fjallfoss.fcc.gov/ecfs2/. Follow the
instructions for submitting comments.
• People with Disabilities: Contact the
FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by email: FCC504@fcc.gov
or phone: (202) 418–0530 or TTY: (202)
418–0432.
For detailed instructions for submitting
comments and additional information
on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT:
Jodie Griffin, Wireline Competition
Bureau, (202) 418–7400 or TTY: (202)
418–0484.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Notice of
Proposed Rulemaking and Notice of
Inquiry (NPRM and NOI) in WC Docket
Nos. 17–287, 11–42, 09–197; FCC 17–
155, adopted on November 16, 2017 and
released on December 1, 2017. The full
text of this document is available for
public inspection during regular
business hours in the FCC Reference
Center, Room CY–A257, 445 12th Street
SW, Washington, DC 20554 or at the
following internet address: https://
transition.fcc.gov/Daily_Releases/Daily_
Business/2017/db1201/FCC-17155A1.pdf. The Fourth Report and
Order, Order on Reconsideration and
Memorandum Opinion and Order that
was adopted concurrently with the
NPRM and NOI are published elsewhere
in this issue of the Federal Register.
DATES:
I. Introduction
1. In this Notice of Proposed
Rulemaking, the Commission proposes
and seeks comment on reforms to
ensure the Lifeline program rules
comport with the authority granted to
the Commission in the Communications
Act and to curb wasteful and abusive
spending in the Lifeline program.
Specifically, the NPRM seeks comment
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
on ending the Commission’s previous
preemption of states’ role in designating
certain eligible telecommunications
carriers and removing the Lifeline
Broadband Provider designation;
targeting Lifeline funds to facilitiesbased broadband-capable networks
offering both voice and broadband
services; adopting a self-enforcing
budget cap for the program; improving
the eligibility verification and
recertification processes to further
prevent waste, fraud, and abuse in the
program; and improving providers’
incentive to provide quality
communications services by
establishing a maximum discount level
for Lifeline-supported service. In the
Notice of Inquiry, the Commission seeks
comment on how Lifeline might more
efficiently target funds to areas and
households most in need of help in
obtaining digital opportunity.
II. Notice of Proposed Rulemaking
2. In this Notice of Proposed
Rulemaking, the Commission proposes
and seeks comment on reforms to
ensure that the Commission is
administering the Lifeline program on
sound legal footing, recognizing the
important and Congressionally
mandated role of states in Lifeline
program administration, and rooting out
waste, fraud, and abuse in the program.
These steps must precede broader
discussions about how the Lifeline
program can be updated to effectively
bring digital opportunity to those who
are currently on the wrong side of the
digital divide.
3. The Commission first seeks
comment on ways the Commission can
better accommodate the important and
lawful role of the states in the Lifeline
program. The Commission proposes to
eliminate the Lifeline Broadband
Provider category of ETCs and the state
preemption on which it is based. The
Commission also seeks comment on
ways to encourage cooperative
federalism between the states and the
Commission to make the National
Verifier a success.
4. In this section, the Commission
addresses the serious concerns that have
been raised that the Commission’s
creation of Lifeline Broadband Provider
(LBP) ETCs and preemption of state
commissions’ designations of such LBPs
was inconsistent with the role
contemplated for the states in Section
214 of the Act. In the 2016 Lifeline
Order, 81 FR 33026, May 24, 2016, the
Commission established a framework to
designate providers as Lifeline
Broadband Providers (LBPs), eligible to
receive Lifeline reimbursement for
qualifying broadband internet access
E:\FR\FM\16JAP1.SGM
16JAP1
Agencies
[Federal Register Volume 83, Number 10 (Tuesday, January 16, 2018)]
[Proposed Rules]
[Pages 2100-2104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00474]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2017-0613; FRL-9972-95-OLEM]
Oklahoma: Approval of State Coal Combustion Residuals State
Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability; request for comment.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA
or Act), the Environmental Protection Agency (EPA) is proposing to
approve the application submitted by the Oklahoma Department of
Environmental Quality to allow the Oklahoma Coal Combustion Residuals
(CCR) state permit program to operate in lieu of the Federal CCR
program. EPA has preliminarily determined that Oklahoma's program meets
the standard for approval under RCRA. Once approved, the State program
requirements and resulting permit provisions will be subject to EPA's
inspection and enforcement authorities under RCRA and other applicable
statutory and regulatory provisions as discussed below. This notice
also announces that EPA is seeking comment on this proposal during a
45-day public comment period, and is providing an opportunity to
request a public hearing within the first 15 days of this comment
period.
DATES: Comments must be received on or before March 2, 2018. In
addition, a public hearing request must be submitted on or before
January 31, 2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2017-0613, at https://www.regulations.gov or by mail to: EPA
Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200
Pennsylvania Ave. NW, Washington, DC 20460. 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 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: Mary Jackson, Office of Resource
Conservation and Recovery, Environmental Protection Agency; telephone
number: (703) 308-8453; email address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. General Information
A. Overview of Proposed Actions
EPA is proposing to approve Oklahoma's CCR state permit program
application, pursuant to RCRA 4005(d)(1)(B). Oklahoma's proposed
program would allow the Oklahoma Department of Environmental Quality
(ODEQ) to enforce rules promulgated under its solid waste statute
related to CCR activities in non-Indian Country, as well as to handle
permit applications and to enforce permit violations. If approved,
Oklahoma's CCR permit program will operate in lieu of the Federal CCR
program, codified at 40 CFR part 257, subpart D.
This notice also announces that EPA is seeking comment on this
proposal, and providing an opportunity to request a public hearing on
whether the State's program is at least as protective as the federal
program. If there is significant interest shown in holding a public
[[Page 2101]]
hearing EPA will then hold a public hearing. Please submit any request
for a public hearing within the first 15 days of the public comment
period through the Contact Us form on the following web page: (https://www.epa.gov/coalash). If the desire for a public hearing is
demonstrated EPA will hold the hearing at the Oklahoma Department of
Environmental Quality building located at 707 N Robinson Ave., Oklahoma
City, OK on February 13, 2018 starting at 9 a.m. EPA will post a
confirmation of the public hearing in the docket and on the EPA CCR
website (https://www.epa.gov/coalash) providing information for the
hearing.
EPA has also engaged federally-recognized Tribes within the State
of Oklahoma in consultation and coordination regarding the program
authorizations for ODEQ. EPA has established opportunities for formal
as well as informal discussion throughout the consultation period,
beginning with an initial conference call on October 19, 2017. Tribal
consultation will be conducted in accordance with the EPA policy on
Consultation and Coordination with Indian Tribes (https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf).
B. Background
CCR are generated from the combustion of coal, including solid
fuels classified as anthracite, bituminous, subbituminous, and lignite,
for the purpose of generating steam for the purpose of powering a
generator to produce electricity or electricity and other thermal
energy by electric utilities and independent power producers. CCR
includes fly ash, bottom ash, boiler slag, and flue gas desulfurization
materials. CCR can be sent off-site for disposal or beneficial use or
disposed in on-site landfills or surface impoundments.
On April 17, 2015, EPA published a final rule, creating 40 CFR part
257, subpart D, that established a comprehensive set of minimum
requirements for the disposal of CCR in landfills and surface
impoundments (80 FR 21302). The rule created a self-implementing
program which regulates the location, design, operating criteria, and
groundwater monitoring and corrective action for CCR disposal, as well
as regulating the closure and post-closure care of CCR units and
requiring recordkeeping and notifications for CCR units. The
regulations do not cover the ``beneficial use'' of CCR as that term is
defined in Sec. 257.53.
C. Statutory Authority
EPA is issuing this proposed determination pursuant to section RCRA
sections 4005(d) and 7004(b)(1). See 42 U.S.C. 6945(d), 6974(b)(1).
Section 2301 of the 2016 Water Infrastructure Improvements for the
Nation (WIIN) Act amended Section 4005 of the Resource Conservation and
Recovery Act (RCRA), creating a new subsection (d) that establishes a
Federal permitting program similar to those under RCRA subtitle C and
other environmental statutes. See 42 U.S.C. 6945(d). Under the WIIN
Act, states may develop and submit a CCR permit program to EPA for
approval; once approved the state permit program operates in lieu of
the Federal requirements. See 42 U.S.C. 6945(d)(1)(A).
To become approved, the statute requires that a State provide
``evidence of a permit program or other system of prior approval and
conditions under State law for regulation by the State of coal
combustion residuals units that are located in the State.'' See 42
U.S.C. 6945(d)(1)(A). In addition, the statute directs that the State
submit evidence that the program meets the standard in section
4005(d)(1)(B), i.e., that it will require each coal combustion
residuals unit located in the State to achieve compliance with either:
(1) The Federal CCR requirements at 40 CFR part 257, subpart D; or (2)
other State criteria that the Administrator, after consultation with
the State, determines to be at least as protective as the Federal
requirements. See 42 U.S.C. 6945(d)(1)(B). EPA has 180 days from
receiving a complete application to make a final determination, and
must provide public notice and an opportunity for public comment. See
42 U.S.C. 6945(d)(1)(B).
To receive EPA approval, EPA must determine that the state program
requires each CCR unit located in the state to achieve compliance
either with the requirements of 40 CFR part 257, subpart D, or with
state criteria that EPA determines (after consultation with the State)
to be at least as protective as the requirements of 40 CFR part 257,
subpart D. See 42 U.S.C. 6945(d)(1)(B). EPA may approve a proposed
state permit program in whole or in part. Id.
Once a program is approved, EPA must review the program at least
every 12 years, as well as no later than 3 years after a revision to an
applicable section of 40 CFR part 257, subpart D, or 1 year after any
unauthorized significant release from a CCR unit located in the state.
See 42 U.S.C. 6945(d)(1)(D)(i)(I)-(III). EPA also must review a program
at the request of another state alleging that the soil, groundwater, or
surface water of the requesting state is or is likely to be adversely
affected by a release from a CCR unit in the approved state. See 42
U.S.C. 6945(d)(1)(D)(i)(IV).
In a state with an approved CCR program, EPA may commence
administrative or judicial enforcement actions under RCRA Sec. 3008 if
the state requests assistance or if the EPA determines that an EPA
enforcement action is likely to be necessary to ensure that a CCR unit
is operating in accordance with the criteria of the permit program. See
42 U.S.C. 6945(d)(4).
II. Oklahoma's Application
ODEQ issued a Notice of Rulemaking Intent related to its proposed
CCR program and accepted public comments from December 1, 2015 through
January 13, 2016. ODEQ then published an Executive Summary rulemaking
document that included the public comments received and the ODEQ
responses.
In September 2016, ODEQ promulgated Oklahoma Administrative Code
(OAC) Title 252 Chapter 517 Disposal of Coal Combustion Residuals from
Electric Utilities, establishing its CCR program. OAC 252:517
incorporates all of the federal regulations at 40 CFR part 257, subpart
D, with some minor modifications as discussed below.
On July 31, 2017 Oklahoma submitted to EPA its initial application.
The State supplemented its original application on October 18, 2017.
EPA determined that the application was complete and notified Oklahoma
of its determination by letter dated December 21, 2017.\1\
---------------------------------------------------------------------------
\1\ ODEQ's initial CCR permit program application, subsequent
supplementation, and EPA's determination of completeness letter are
available in the docket supporting this proposal.
---------------------------------------------------------------------------
EPA is aware of six CCR facilities currently in Oklahoma. Approval
of ODEQ's CCR application would allow the ODEQ regulations to apply to
those existing CCR units as well as any future CCR units not located in
Indian country in lieu of the Federal requirements.
EPA is not aware of any existing CCR units in Indian country within
Oklahoma, but EPA will maintain sole authority to regulate and permit
CCR units in Indian country, meaning formal and informal reservations,
dependent Indian communities, and Indian allotments, whether restricted
or held in trust by the United States.
[[Page 2102]]
III. EPA Analysis of Oklahoma's Application
As discussed in Section I.C. of this notice, the statute requires
EPA to evaluate two components of a state program to determine whether
it meets the standard for approval. First, EPA is to evaluate the
adequacy of the permit program (or other system of prior approval and
conditions) itself. See 42 U.S.C. 6945(d)(1)(A). Second, EPA is to
evaluate the adequacy of the technical criteria that will be included
in each permit, to determine whether they are the same as the federal
criteria, or to the extent they differ, whether the modified criteria
are ``at least as protective as'' the federal requirements. See 42
U.S.C. 6945(d)(1)(B). Only if both components meet the statutory
requirements may EPA approve the program. See 42 U.S.C. 6945(d)(1).
On that basis, EPA conducted an analysis of ODEQ's application,
including a thorough analysis of OAC 252:517 and its adoption of 40 CFR
part 257, subpart D. Based on this analysis, EPA has preliminarily
determined that ODEQ's submitted CCR permit program meets the standard
for approval in section 4005(d)(1)(A) and (B). EPA is therefore
proposing to approve Oklahoma's application. Oklahoma's program
contains all the elements of the federal rule, including requirements
for location restrictions, design and operating criteria, groundwater
monitoring and corrective action, closure requirements and post-closure
care, recordkeeping, notification and internet posting requirements. It
also contains state-specific language, references and state-specific
requirements that differ from the federal rule, which EPA has
preliminarily determined to be at least as protective as the Federal
criteria. EPA's analysis and preliminary findings are discussed in
greater detail below and in the Technical Support Document.
Non-substantive changes include language inserts and deletions to
enable the ODEQ to permit CCR units and enforce the Oklahoma rule. The
revisions include: The removal of statements regarding national
applicability; the inclusion of language to require submittal and
approval of plans to ODEQ; the inclusion of permitting provisions to
allow the ODEQ to administer the CCR rules in the context of a
permitting program; the inclusion of state-specific location
restrictions; the inclusion of procedures for subsurface investigation;
the inclusion of provisions addressing cost estimates and financial
assurance.
Throughout Oklahoma's Chapter 517 rules, references for tribal
notifications and/or approval that appear in the federal rule have been
deleted along with the terms ``Indian Country,'' ``Indian Lands,'' and
``Indian Tribe.'' EPA will retain sole authority to regulate and permit
CCR units in Indian country as defined in 18 U.S.C. 1151, which
includes reservations, dependent Indian communities, and Indian
allotments, whether restricted or held in trust by the United States.
EPA treats as reservations trust lands validly set aside for the use of
a tribe even if the trust lands have not been formally designated as a
reservation. See, e.g., Oklahoma Tax Commission vs. Citizen Band
Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991).
A. Adequacy of Oklahoma's Permit Program
RCRA section 4005(d)(1)(A) requires a State seeking program
approval to submit to EPA an application with ``evidence of a permit
program or other system of prior approval and conditions under State
law for regulation by the State of coal combustion residuals units that
are located in the State.''
RCRA section 4005(d)(1)(A) does not require EPA to promulgate
regulations for determining the adequacy of State programs. EPA is
therefore relying in large measure on the existing regulations in 40
CFR part 239, Requirements for State Permit Program Determination of
Adequacy, on the statutory requirements for public participation in
RCRA Section 7004, and on the Agency's experience in reviewing and
approving State programs in general. However, in order to aid States in
developing their programs and to provide a clear statement of how, in
EPA's judgment, the existing regulations and statutory requirements in
both 4005(d) and 7004 apply to state CCR programs, on August 15, 2017
EPA announced the availability of an interim final Guidance for Coal
Combustion Residuals State Permit Programs (82 FR 38685). This guidance
outlines the process and procedures EPA generally intends to use to
review and make determinations on State CCR permit programs. EPA
evaluated the adequacy of ODEQ's permit program based on the statutory
requirements and EPA's interpretation of the regulatory requirements. A
summary of EPA's findings are below, organized by the program elements
identified in the Part 239 regulations and the guidance document; our
detailed analysis of the submitted State program can be found in the
Technical Support Document which is included in the docket for this
proposal.
1. Permitting Guidelines
Based on section 7004 and on the part 239 regulations, it is EPA's
judgment (as expressed in the interim final guidance) that an adequate
permitting program will provide for public participation by ensuring
that: Documents for permit determinations are made available for public
review and comment; final determinations on permit applications are
made known to the public; and public comments on permit determinations
are considered.
All environmental permit and modification applications in Oklahoma
are subject to the Oklahoma Uniform Environmental Permitting Act (UEPA)
and the permitting rules promulgated to carry out UEPA. UEPA classifies
all permit applications into three tiers that determine the level of
public participation and administrative review the permit application
will receive. See OAC 252:4-7-2. Oklahoma classifies solid waste
management applications, including CCR applications, into their
respective tiers at OAC 252:4-7-58 through 60. All permit documents,
regardless of tier, are available for review and copying. OAC 252:4-1-
5.
Oklahoma describes the Tier I program as ``the category for those
things that are basically administrative decisions which can be made by
a technical supervisor with no public participation except for the
landowner.'' OAC 252:4-7-2. The Tier I permit application requires an
application, notice to the landowner, and Department review. 27A O.S.
Sec. 2-14-103(9). Only applications for minor modifications, lateral
expansions within the permit boundary below a certain capacity, and
approval of technical plans fall within the Tier I category. OAC 252:4-
7-58.
The Tier II permit application process expands upon the Tier I
requirements to include published notice of the application filing and
published notice of the draft permit or denial and opportunity for a
public meeting. 27A O.S. Sec. 2-14-103(10). The Tier II process covers
new permits for on-site CCR disposal units and more substantial
modifications to existing facilities beyond Tier I. OAC 252:4-7-59.
The Tier III permit application process includes the requirements
of Tiers I and II and adds notice of an opportunity for a process
meeting, response to public comments, and notice of an opportunity for
an administrative permit hearing. 27A O.S. Sec. 2-14-103(11). The Tier
III process covers new permits for off-site disposal
[[Page 2103]]
units and permits for some significant modifications to off-site
disposal units. OAC 252:4-7-60.
UEPA provides for public notice and review of permit applications
and significant permit modifications through its Tier II and III
programs. Tier II and III programs also provide the opportunity for
public hearing, and, in the case of Tier III applications, the
opportunity for an administrative hearing. These programs appear to
provide adequate opportunities for public participation in the
permitting process, and the application of UEPA to the CCR permitting
program is consistent with Oklahoma's practice across environmental
programs. Permit and modification applications for CCR facilities fall
under the existing solid waste management application at OAC 252:4-7-58
through 60, and those classifications are used for Oklahoma's
authorized Municipal Solid Waste Landfill program.
2. Guidelines for Compliance Monitoring Authority
Based on the part 239 regulations, it is EPA's judgment (as
expressed in the interim final guidance), that a state's application
for permit program approval should demonstrate that the state has the
authority to gather information about compliance, perform inspections,
and ensure that information it gathers is suitable for enforcement.
ODEQ has compliance monitoring authority under 27A O.S. Sec. 2-3-
501, allowing for inspections, sampling, information gathering, and
other investigation. This authority extends to ODEQ's proposed CCR
permit program and would provide the authority to adequately gather
information for enforcement.
3. Guidelines for Enforcement Authority
Further, based on the part 239 regulations, it is EPA's judgment
(as expressed in the interim final guidance), that a state's
application for permit program approval should demonstrate that the
state has authority to administer RCRA Sec. 4005(c)(1)(B) and (C)
programs to have adequate enforcement authority to administer those
programs, including: The authority to restrain any person from engaging
in activity which may damage human health or the environment, the
authority to sue to enjoin prohibited activity, and the authority to
sue to recover civil penalties for prohibited activity.
ODEQ appears to have adequate enforcement authority for its
existing programs under 27A O.S. Sec. 2-3-501-507 and that authority
extends to ODEQ's proposed CCR permit program.
4. Intervention in Civil Enforcement Proceedings
Based on section 7004 and on the part 239 regulations, it is EPA's
judgment (as expressed in the interim final guidance) that a state
application for permit program approval should demonstrate that the
state provides adequate opportunity for citizen intervention in civil
enforcement proceedings through the requirements found in 40 CFR 239.9.
In general, those requirements state that the state must provide
authority to allow citizen intervention or provide assurance of (1) a
notice and public involvement process, (2) investigating and providing
responses about violations, and (3) not opposing intervention when
permitted by statute, rule, or regulation.
ODEQ's CCR program appears to satisfy the civil intervention
requirement (40 CFR 239.9(a)) by allowing intervention by right. (see
12 OK Stat Sec. 12-2024). In addition, ODEQ's CCR program would
satisfy the requirements of 40 CFR 239.9(b) by providing a process to
respond to citizen complaints (see 27A O.S. Sec. 2-3-101,503) and by
not opposing citizen intervention when allowed by statute (see 27A O.S.
Sec. 2-7-133). ODEQ in meeting 40 CFR 239.9(b)(2) has an extremely
robust process for responding to citizen complaints. In 27A O.S. Sec.
2-3-101-F-1, The complaints program is responsible for intake
processing, mediation and conciliation of inquiries and complaints
received by the Department and which shall provide for the expedient
resolution of complaints within the jurisdiction of the Department. In
27A O.S. Sec. 2-3-503, if the Department undertakes an enforcement
action as a result of a complaint, the Department shall notify the
complainant of the enforcement action by mail. The State program in 27A
O.S. Sec. 2-3-503 offers the complainant an opportunity to provide
written information pertinent to the complaint within fourteen (14)
calendar days after the date of the mailing. The State's program also
goes further in 27A O.S. Sec. 2-3-104 that the complaints program
shall, in addition to the responsibilities specified by Section 2-3-101
of this title, refer, upon written request, all complaints in which one
of the complainants remains unsatisfied with the Department's
resolution of said complaint to an outside source trained in mediation.
It is clear that ODEQ takes public intervention seriously in
enforcement actions considering the additional elements of the State's
complaint process.
EPA has preliminarily determined that these requirements allow a
minimum necessary level of citizen involvement in the enforcement
process.
B. Adequacy of Technical Criteria
EPA has preliminarily determined that ODEQ's submitted CCR permit
program generally meets the standard for approval in RCRA section
4005(d)(1)(B)(i), as it will require each CCR unit located in Oklahoma
to achieve compliance with the applicable criteria for CCR units under
40 CFR part 257. To make this preliminary determination, EPA compared
ODEQ's proposed CCR permit program to 40 CFR part 257 to determine
whether it differed from the federal requirements, and if so, whether
those differences met the standard for approval in RCRA section
4005(d)(1)(B)(ii) and (C).
Oklahoma has adopted all of the technical criteria at 40 CFR part
257, subpart D into its regulations at OAC Title 252 Chapter 517. While
ODEQ's CCR permit program also includes some modification of 40 CFR
part 257, subpart D, the majority of ODEQ's modifications were merely
those that were needed to allow the State to implement the part 257
criteria through a permit process. As mentioned above, the 40 CFR part
257, subpart D rules were meant to be implemented directly by the
regulated facility, without the oversight of any regulatory authority,
such as a state permitting program. For example, ODEQ removed 40 CFR
257.61(a)(2)(iv), which references the Marine Protection, Research, and
Sanctuaries Act requirements because Oklahoma does not have any coastal
or ocean environments which apply under the MPRSA regulations. EPA
considers these revisions to be ministerial, and as such, they do not
substantively modify the federal technical criteria.
ODEQ also made a few minor changes to the 40 CFR 257, Subpart D
criteria. These changes reflect the integration of the CCR rules with
the responsibilities of other state agencies or state specific
conditions. There are a few minor changes that were made inadvertently
that will be changed by the State through another rulemaking, including
a typographic error in Chapter 517-9-4(g)(5) and removal of the words
``and the leachate collection and removal'' from 40 CFR 257.70(e). The
State has acknowledged these differences and has plans to correct any
errors. Additional changes include removal of the web link to EPA
publication SW-846 under the definition ``Representative Sample'' in 40
CFR 257.53; and the replacement of 40 CFR 257.91(e) with a reference to
the
[[Page 2104]]
Oklahoma Water Resources Board (OWRB) Section 785:35-7-2. After review
of this OWRB regulation, an EPA groundwater expert finds the Oklahoma
rules to be more stringent than the requirements under 40 CFR
257.91(e). EPA preliminarily finds these changes to be minor because
the key aspects of the CCR program including requirements for location
restrictions, design and operating criteria, groundwater monitoring and
corrective action, closure requirements and post-closure care,
recordkeeping, notification and internet posting requirements are not
substantially changed or reduced by the Oklahoma revisions and in one
example is more stringent. These changes do not keep the overall
program from being at least as protective as 40 CFR part 257, subpart
D. EPA's full analysis of Oklahoma's CCR permit program can be found in
the Technical Support Document (TSD) located in the docket for this
notice.
IV. Proposed Action
In accordance with 42 U.S.C. 6945(d), EPA is proposing to wholly
approve ODEQ's CCR permit program application.
Dated: January 3, 2018.
Barry N. Breen,
Principal Deputy Assistant Administrator, Office of Land and Emergency
Management.
[FR Doc. 2018-00474 Filed 1-12-18; 8:45 am]
BILLING CODE 6560-50-P