Oklahoma: Approval of State Coal Combustion Residuals State Permit Program, 2100-2104 [2018-00474]

Download as PDF 2100 Federal Register / Vol. 83, No. 10 / Tuesday, January 16, 2018 / Proposed Rules daltland on DSKBBV9HB2PROD with PROPOSALS 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 VerDate Sep<11>2014 17:42 Jan 12, 2018 Jkt 244001 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: PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 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 E:\FR\FM\16JAP1.SGM 16JAP1 Federal Register / Vol. 83, No. 10 / Tuesday, January 16, 2018 / Proposed Rules 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). daltland on DSKBBV9HB2PROD with PROPOSALS 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. VerDate Sep<11>2014 17:42 Jan 12, 2018 Jkt 244001 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 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 2101 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. E:\FR\FM\16JAP1.SGM 16JAP1 2102 Federal Register / Vol. 83, No. 10 / Tuesday, January 16, 2018 / Proposed Rules daltland on DSKBBV9HB2PROD with PROPOSALS 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. VerDate Sep<11>2014 17:42 Jan 12, 2018 Jkt 244001 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 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 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 E:\FR\FM\16JAP1.SGM 16JAP1 Federal Register / Vol. 83, No. 10 / Tuesday, January 16, 2018 / Proposed Rules 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. daltland on DSKBBV9HB2PROD with PROPOSALS 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. VerDate Sep<11>2014 17:42 Jan 12, 2018 Jkt 244001 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. PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 2103 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: http:// www.regulations.gov. Follow the instructions for submitting comments. • Federal Communications Commission’s website: http:// 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: http:// 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]


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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.

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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