Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Amendments to the National Minimum Criteria (Phase One, Part One), 36435-36456 [2018-16262]

Download as PDF Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations the agency makes a good cause finding. The EPA has made a good cause finding for making this final rule effective immediately upon publication, per section 553(d)(3) of the Administrative Procedure Act, 5. U.S.C. 553(d)(3), as discussed in section II, including the basis for that finding. List of Subjects in 40 CFR Part 147 Environmental protection, Indian— lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water supply. Dated: July 24, 2018. Andrew R. Wheeler, Acting Administrator. PART 147—STATE, TRIBAL, AND EPAADMINISTERED UNDERGROUND INJECTION CONTROL PROGRAMS 1. The authority citation for part 147 is revised to read as follows: ■ Authority: 42 U.S.C. 300h et seq.; and 42 U.S.C. 6901 et seq. Subpart N—Idaho daltland on DSKBBV9HB2PROD with RULES 40 CFR Part 257 [EPA–HQ–OLEM–2017–0286; FRL–9981– 18–OLEM] RIN 2050–AG88 Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Amendments to the National Minimum Criteria (Phase One, Part One) Environmental Protection Agency (EPA). ACTION: Final rule. § 147.650 State-administered program— Class I, III, IV, and V wells. The UIC program for Class I, III, IV, and V wells in the state of Idaho, other than those on Indian lands, is the program administered by the Idaho Department of Water Resources, approved by the EPA pursuant to section 1422 of the Safe Drinking Water Act. Notice of this approval was published in the Federal Register on June 7, 1985; the effective date of this program is July 22, 1985. This program consists of the following elements, as submitted to the EPA in Idaho’s program application. Note: Because the EPA subsequently transferred the Class II UIC program from the Idaho Department of Water Resources to the EPA, references to Class II in the following elements are no longer relevant or applicable for federal UIC purposes. * * * * * ■ 3. Revise § 147.651 to read as follows: § 147.651 EPA-administered program— Class II wells and all wells on Indian lands. (a) Contents. The EPA administers the UIC program for all classes of wells on Indian lands and for Class II wells on non-Indian lands in the state of Idaho. Jkt 244001 ENVIRONMENTAL PROTECTION AGENCY AGENCY: 2. In § 147.650 revise the section heading and the introductory text to read as follows: ■ 17:02 Jul 27, 2018 [FR Doc. 2018–16245 Filed 7–27–18; 8:45 am] BILLING CODE 6560–50–P For the reasons set out in the preamble, the Environmental Protection Agency amends 40 CFR part 147 as follows: VerDate Sep<11>2014 This program consists of the UIC program requirements of 40 CFR parts 124, 144, 146, 148, and any additional requirements set forth in the remainder of this subpart. Injection well owners and operators, and the EPA shall comply with these requirements. (b) Effective dates. The effective date of the UIC program for Indian lands in Idaho is June 11, 1984. The effective date of the UIC program for Class II wells on non-Indian lands in Idaho is July 30, 2018. On April 17, 2015, the Environmental Protection Agency (EPA or the Agency) promulgated national minimum criteria for existing and new coal combustion residuals (CCR) landfills and existing and new CCR surface impoundments. In March 2018, EPA proposed a number of revisions to the 2015 CCR rule and requested comment on additional issues. In this rulemaking EPA is acting to finalize certain revisions to those criteria. First, EPA is adopting two alternative performance standards that either Participating State Directors in states with approved CCR permit programs (participating states) or EPA where EPA is the permitting authority may apply to owners and operators of CCR units. Second, EPA is revising groundwater protection standards (GWPS) for four constituents which do not have an established Maximum Contaminant Level (MCL). Finally, the Agency is extending the deadline by which facilities must cease the placement of waste in CCR units closing for cause in two situations: Where the facility has detected a statistically significant increase above a GWPS from an unlined surface impoundment; and where the unit is unable to comply with the SUMMARY: PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 36435 aquifer location restriction. Provisions from the proposed rule that are not addressed in this rule will be addressed in a subsequent action. DATES: This final rule is effective on August 29, 2018. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–HQ–OLEM–2017–0286. The EPA has previously established a docket for the April 17, 2015, CCR final rule under Docket ID No. EPA–HQ–RCRA– 2009–0640. All documents in the docket are listed in the https:// www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically at https:// www.regulations.gov or in hard copy at the EPA Docket Center (EPA/DC), EPA WJC West Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the EPA Docket Center is (202) 566–1742. FOR FURTHER INFORMATION CONTACT: For information concerning this final rule, contact Kirsten Hillyer, Office of Resource Conservation and Recovery, Environmental Protection Agency, 5304P, Washington, DC 20460; telephone number: (703) 347–0369; email address: hillyer.kirsten@epa.gov. For more information on this rulemaking please visit https:// www.epa.gov/coalash. SUPPLEMENTARY INFORMATION: I. Executive Summary A. Purpose of the Regulatory Action EPA is finalizing certain revisions to the 2015 regulations for the disposal of CCR in landfills and surface impoundments to: (1) Provide States with approved CCR permit programs under the Water Infrastructure Improvements for the Nation (WIIN) Act or EPA where EPA is the permitting authority the ability to use alternate performance standards; (2) revise the GWPS for four constituents in Appendix IV to part 257 1 for which maximum 1 Unless other specified, all references to part 257 in this preamble are to title 40 of the Code of Federal Regulations (CFR). E:\FR\FM\30JYR1.SGM 30JYR1 36436 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations daltland on DSKBBV9HB2PROD with RULES contaminant levels (MCLs) under the Safe Drinking Water Act have not been established; and (3) provide facilities which are triggered into closure by the regulations additional time to cease receiving waste and initiate closure. This additional time will, among other things, better align the CCR rule compliance dates with the upcoming Effluent Limitations Guidelines and Standards Rule for the Steam Electric Power Generating Point Source Category (ELG rule). The ELG rule is currently scheduled to be proposed in December 2018 and finalized in December 2019. B. Summary of the Provisions of the Regulatory Action EPA is finalizing certain revisions to the regulations at 40 CFR part 257, subpart D. In the March 2018 proposal, the Agency proposed six alternative performance standards which participating states (i.e., those which have an EPA-approved CCR permit program under the WIIN Act) may adopt and sought comment on additional alternatives. This action finalizes two of the proposed alternative performance standards. These final revisions will allow a Participating State Director or EPA where EPA is the permitting authority to: (1) Suspend groundwater monitoring requirements if there is evidence that there is no potential for migration of hazardous constituents to the uppermost aquifer during the active life of the unit and post-closure care; and (2) issue technical certifications in lieu of the current requirement to have professional engineers issue certifications. The Agency is also finalizing a revision of the GWPSs for the four constituents in Appendix IV to part 257 without MCLs, in place of background levels under § 257.95(h)(2). In the March 2018 proposal, the Agency also took comment on revisions to several provisions of the 2015 CCR rule. Of those proposed changes, the Agency is now revising the deadline by which two categories of CCR units closing for cause must initiate closure: (1) Where the facility has detected a statistically significant increase from an unlined surface impoundment above a GWPS; and (2) where the unit is unable to comply with the aquifer location restriction. Of particular note, in the March 2018 action, the Agency proposed four changes from the 2015 CCR rule associated with the settlement agreement entered on April 18, 2016, which resolved four claims brought by two sets of plaintiffs against the final CCR rule. See USWAG et al v EPA, No. 15–1219 (DC Cir. 2015). In this action, Agency will not be taking final action VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 on any of the proposed amendments. As explained previously, provisions from the proposed rule that are not addressed in this action will be addressed in a subsequent rule-making action. the unit is unable to comply with the aquifer location restriction. Provisions from the proposed rule that are not addressed in this rule will be addressed in a subsequent rulemaking action. 1. Severability C. What is the Agency’s authority for taking this action? EPA intends that the provisions of this rule be severable. In the event any individual provision or part of this rule is invalidated, EPA intends that this would not render the entire rule invalid, and that any provision that can continue to operate will be left in place. II. General Information A. Does this action apply to me? This rule applies to all CCR generated by electric utilities and independent power producers that fall within the North American Industry Classification System (NAICS) code 221112 and may affect the following entities: Electric utility facilities and independent power producers that fall under the NAICS code 221112. This discussion is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This discussion lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not described here could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in § 257.50 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section. B. What action is the Agency taking? EPA is finalizing the following: (1) A provision that authorizes the Participating State Director to issue certifications in lieu of a professional engineer (PE); (2) a provision that authorizes the Participating State Director to approve the suspension of groundwater monitoring if a ‘‘no migration’’ demonstration can be made; and (3) a revision of the GWPSs for the four constituents in Appendix IV to part 257 without MCLs, in place of background levels under § 257.95(h)(2). In addition, the Agency is finalizing an extension to the deadline by which facilities must cease the placement of waste in CCR units closing for cause in two situations: (1) Where the facility has detected a statistically significant increase over the groundwater protection standard from an unlined surface impoundment; and (2) where PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 These regulations are established under the authority of sections 1006(b)(1), 1008(a), 2002(a), 4004, and 4005(a) and (d) of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA) and the Water Infrastructure Improvements for the Nation (WIIN) Act of 2016, 42 U.S.C. 6905(b)(1), 6907(a), 6912(a), 6944, and 6945(a) and (d). These authorities are discussed in more detail in Section III.C of this preamble. D. What are the incremental costs and benefits of this action? This action is expected to result in net cost savings amounting to between $27.8 million and $31.4 million per year when discounting at 7 percent and annualized over 100 years. It is expected to result in net cost savings of between $15.5 million and $19.1 million per year when discounting at 3 percent and annualized over 100 years. Further information on the economic effects of this action can be found in Section V of this preamble. III. Background A. The ‘‘2015 CCR Rule’’ and the March 2018 Proposal On April 17, 2015, EPA finalized national minimum criteria for the disposal of CCR as solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA) titled, ‘‘Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities,’’ (80 FR 21302) (CCR rule). The CCR rule regulated existing and new CCR landfills and existing and new CCR surface impoundments and all lateral expansions of CCR units. It is codified in subpart D of part 257 of Title 40 of the Code of Federal Regulations. The criteria consist of location restrictions, design and operating criteria, groundwater monitoring and corrective action requirements, closure and postclosure care requirements, and record keeping, notification and internet posting requirements. These criteria were designed to be self-implementing. The rule also required any existing unlined CCR surface impoundment that is contaminating groundwater above a E:\FR\FM\30JYR1.SGM 30JYR1 daltland on DSKBBV9HB2PROD with RULES Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations regulated constituent’s groundwater protection standard to stop receiving wastes and either retrofit or close, except in certain circumstances. The rule was challenged by several parties, including a coalition of regulated entities and a coalition of environmental organizations. See, USWAG et al. v. EPA, No. 15–1219 (D.C. Cir. 2015). Four of the claims, a subset of the provisions challenged by the industry and environmental Petitioners, were settled. The rest were briefed and are currently pending before the U.S. Court of Appeals for the D.C. Circuit, awaiting resolution. On November 7, 2017, EPA sought remand without vacatur of five additional subsections of the rule on the grounds that EPA intended to reconsider those provisions. That request is also pending before the court. The WIIN Act, which amends Section 4005 of the Resource Conservation and Recovery Act (RCRA), was enacted in 2016 to provide EPA additional authorities including the authority to review and approve state CCR permit programs. It also requires EPA to establish and carry out a permit program for CCR units in Indian Country, and for units in nonparticipating States, to achieve compliance with the current CCR rule or successor regulations. The WIIN Act provided that EPA may use its information gathering and enforcement authorities under RCRA sections 3007 and 3008 to enforce the CCR rule or permit provisions. On September 13, 2017, EPA granted petitions from the Utility Solid Waste Activities Group (USWAG) and AES Puerto Rico LLP, requesting the Agency initiate rulemaking to reconsider provisions of the 2015 final rule.2 EPA determined that it was appropriate and in the public interest to reconsider provisions of the final rule addressed in the petitions, in light of the issues raised in the petitions as well as the new authorities in the WIIN Act. In October 2017, the D.C. Circuit Court of Appeals directed EPA to file a status report with the court indicating its schedule for addressing issues contained in the petitions for reconsideration. In the status report filed in November 2017, EPA stated that it anticipated it would complete its reconsideration of all provisions in two phases. The first phase would be proposed in March 2018 and finalized no later than June 2019 and the second phase would be proposed no later than September 30, 2018 and finalized no later than December 2019. EPA indicated that in the first phase, the March 2018 proposal, EPA would continue its process with respect to those provisions which were remanded back to EPA in June 2016. These are: (1) Requirements for use of vegetation as slope protection; (2) provisions to clarify the type and magnitude of nongroundwater releases that would require a facility to comply with some or all of the corrective action procedures set out in §§ 257.96 through 257.98; and (3) the addition of Boron to the list of constituents in Appendix IV of part 257, the detection of which triggers assessment monitoring and corrective action requirements. EPA’s March 2018 action contained proposals covering these remanded provisions. In March 2018, EPA also proposed certain provisions that would allow the approval of alternative performance standards by Participating State Directors. These proposed alternative performance standards would allow a state with an approved permit program or EPA to: (1) Use an alternative riskbased GWPS for Appendix IV constituents where no MCL exists; (2) modify the corrective action remedy in certain cases; (3) suspend groundwater monitoring requirements if a ‘‘no migration’’ demonstration can be made; (4) establish an alternate period of time to demonstrate compliance with the corrective action remedy; (5) modify the post-closure care period; and (6) allow Participating State Directors to issue technical certifications in lieu of the current requirement to have professional engineers issue certifications. For Tribal lands and in non-participating states where Congress has specifically provided appropriations for EPA, the proposal defined ‘‘State Director’’ to mean the ‘‘EPA Administrator or their designee’’. EPA also requested comment on potential revisions to several other provisions of the CCR rule and on other issues. One topic EPA took comment on in the March 2018 proposed rule was on the groundwater monitoring compliance dates and if 90-days was a sufficient amount of time. While the Agency is not taking any final action on this topic in this action, EPA wishes to ensure that all parties understand the current rule and the relevant implementation deadlines. The Agency responded to a letter from the Utility Solid Waste Activities Group clarifying the deadlines and timeframes related to detection monitoring and the necessary statistical analysis for the groundwater monitoring.3 EPA clarified that the 2 A copy of both rulemaking petitions are included in the docket to this final rule. 3 EPA responded to USWAG in letters dated January 26, 2018 and April 30, 2018. VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 36437 alternate source demonstration in detection monitoring (§ 257.94(e)(2)) does not run concurrently with the 90day time frame in § 257.94(e)(1) or § 257.95(b). EPA also clarified that, assuming a facility elected to take advantage of the 90-day option in § 257.94(e)(2) [to demonstrate that a source other than the CCR unit is the source of contamination], January 14, 2019 as the deadline for facilities to make their initial determination of whether there has been the detection of a statistically significant increase of an Appendix IV constituent above the relevant groundwater protection standard in the downgradient wells. EPA noted that conducting the statistical analysis on two sets of sampling occurs only in this first round of assessment monitoring. All other statistical analyses on subsequent rounds of on-going semi-annual or annual sampling under assessment monitoring must be conducted following the single set of samples obtained during that sampling event. EPA is taking final action on certain provisions in this rulemaking: (1) Allowing a Participating State Director to issue certifications in lieu of a professional engineer (PE); (2) allowing a Participating State Director to approve the suspension of groundwater monitoring if a demonstration of ‘‘no migration’’ can be made; and (3) establishing alternative GWPSs for four Appendix IV constituents without MCLs in place of the background levels required under § 257.95(h)(2). In addition, the Agency is extending the deadline by which facilities must cease the placement of waste in CCR units closing for cause in two situations: (1) Where the facility has detected a statistically significant increase over the GWPS from an unlined surface impoundment; and (2) where the unit is unable to comply with the aquifer location restriction. Provisions in the proposed rule that are not addressed in this rulemaking will be addressed in a subsequent rulemaking. B. Comments Received on the Proposed Rule The agency received over 160,000 comments on the proposed rule. The majority of commenters focused on the four provisions remanded back to the Agency in 2016, as well as the six provisions proposed in response to passage of the WIIN Act. A number of commenters argued that no revisions were necessary to the April 2015 final CCR rule. The areas on which EPA received the most substantial industry and state comments were: Support for the E:\FR\FM\30JYR1.SGM 30JYR1 36438 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations establishment of risk-based alternative GWPSs for constituents that do not have an MCL, support for the extension of compliance deadlines, support for modification of the alternative closure provisions, and allowing certifications by a Participating State Director in lieu of a PE. Most of the environmental organizations and individual citizens commented that the proposals would decrease protection of human health and the environment, especially if the facilities allow CCR units to leak contaminants into groundwater. Other comments related to topics that will be discussed in future rulemaking actions. Discussions of the specific comments germane to this rulemaking are provided in the relevant sections of this rule. daltland on DSKBBV9HB2PROD with RULES 1. Public Hearing EPA conducted a public hearing on April 24, 2018, in Arlington, VA. There were 79 speakers and a total of 120 registered attendees. Testimony at the public hearing focused generally on the proposed amendments of allowing the use of alternative performance standards. Several speakers commented on: Allowing alternate performance standards for the groundwater protection standards where no MCL is established, allowing Participating State Directors to issue certifications in lieu of a PE, and the overall risks, especially health risks, related to CCR. In addition to the testimonies that were entered into the rulemaking record, over 25 additional documents were submitted in hard copy and entered into the docket (see EPA–HQ–OLEM–2017–0286). C. Statutory Authority RCRA section 1006(b)(1) directs EPA to integrate the provisions of RCRA for purposes of administration and enforcement and to avoid duplication, to the maximum extent practicable, with the appropriate provisions of other EPA statutes. Section 1006(b) conditions EPA’s authority to reduce or eliminate RCRA requirements on the Agency’s ability to demonstrate that the integration can be done in a manner consistent with the goals and policies expressed in the chapter and in the other acts referred to in this subsection. 42 U.S.C. 6005(b)(1). See Chemical Waste Management v. EPA, 976 F.2d 2, 23, 25 (D.C. Cir. 1992). RCRA section 1008(a) authorizes EPA to publish ‘‘suggested guidelines for solid waste management.’’ 42 U.S.C. 6907(a). RCRA defines solid waste management as ‘‘the systematic administration of activities which provide for the collection, source separation, storage, transportation, transfer, processing, treatment, and VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 disposal of solid waste.’’ 42 U.S.C. 6903(28). Pursuant to section 1008(a)(3), the guidelines are to include the minimum criteria to be used by the states to define the solid waste management practices that constitute the open dumping of solid waste or hazardous waste and are prohibited as ‘‘open dumping’’ under section 4005. Only those requirements promulgated under the authority of section 1008(a)(3) are enforceable under section 7002 of RCRA. RCRA section 4004(a) generally requires EPA to promulgate regulations containing criteria for determining which facilities shall be classified as sanitary landfills (and therefore not ‘‘open dumps’’). The statute directs that, ‘‘at a minimum, the criteria are to ensure that units are classified as sanitary landfills only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid wastes at such facility.’’ 42 U.S.C. 6944(a). RCRA section 4005(a), entitled ‘‘Closing or upgrading of existing open dumps’’ generally establishes the key implementation and enforcement provisions applicable to EPA regulations issued under sections 1008(a) and 4004(a). Specifically, this section prohibits any solid waste management practices or disposal of solid waste that does not comply with EPA regulations issued under RCRA section 1008(a) and 4004(a). 42 U.S.C. 6944(a). See also 42 U.S.C. 6903(14) (definition of ‘‘open dump’’). As a general matter, this means that facilities must be in compliance with any EPA rules issued under section 4004(a) or be subject to suit for ‘‘open dumping’’ 42 U.S.C. 6945. RCRA section 4005 also directs that open dumps, i.e., facilities out of compliance with EPA’s criteria, must be ‘‘closed or upgraded’’. RCRA section 4005(d) provides that States may submit a program to EPA for approval, and permits issued pursuant to the approved state permit program operate in lieu of the Federal requirements 42 U.S.C. 6945(d)(1)(A). To be approved, a State program must require each CCR unit to achieve compliance with the part 257 regulations (or successor regulations) or alternative State criteria that EPA has determined are ‘‘at least as protective as’’ the part 257 regulations (or successor regulations). State permitting programs may be approved in whole or in part [42 U.S.C. 6945(d)(1)(B)]. States with approved CCR permitting programs are considered ‘‘participating states’’. In states without an approved program, EPA is to issue permits, subject to the availability of PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 appropriations specifically provided to carry out this requirement 42 U.S.C. 6945(d)(2)(B). The FY 2018 Omnibus Appropriations Act provided $6 million to EPA for the purpose of developing and implementing a Federal permit program for the regulation of CCR in nonparticipating states. Public Law 115–141. In addition, EPA is the permitting authority for CCR units in Indian Country. The statute expressly provides that facilities are to continue to comply with the CCR rule or successor regulations until a permit (issued either by an approved state or by EPA) is in effect for that unit 42 U.S.C. 6945(d)(3), (6). IV. What amendments is EPA finalizing? During the rulemaking process for the 2015 CCR rule, EPA received numerous comments requesting that EPA authorize state permit programs and adopt alternative performance standards that would allow state regulators or facilities to ‘‘tailor’’ the requirements to particular site-specific conditions. Many requested EPA adopt particular alternative performance standards found in EPA’s municipal solid waste landfill (MSWLF) regulations in 40 CFR part 258. 4 Although the CCR rule was largely modeled on the MSWLF regulations, as explained in both the 2010 proposed and 2015 final rules, under the statutory provisions relevant to the CCR rule, EPA lacked the authority to establish a program analogous to part 258, which relies on approved states to implement the federal criteria through a permitting program. See, e.g., 80 FR 21332–21334. In the absence of a state oversight mechanism to ensure that alternative standards would be appropriate, EPA concluded at that time it could not adopt many of the ‘‘more flexible’’ performance standards in part 258 that commenters requested. Id at 21333. However, in 2016, Congress, with the passage of the WIIN Act, amended RCRA to establish a permitting scheme, analogous to that established for MSWLFs. Under these new provisions, States may now apply to EPA for approval to operate a permit program to implement the CCR rule. As part of that process, a State program may also include alternative State standards, provided EPA has determined they are ‘‘at least as protective as’’ the CCR regulations in 40 CFR part 257. 42 U.S.C. 6945(d)(1)(B), 6945(d)(1)(C). 4 Unless other specified, all references to part 258 of this preamble are to title 40 of the Code of Federal Regulations (CFR). E:\FR\FM\30JYR1.SGM 30JYR1 daltland on DSKBBV9HB2PROD with RULES Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations In light of the WIIN Act, EPA examined the existing 40 CFR part 258 regulations to evaluate the performance standards that rely on a state permitting authority, to determine whether any of them could now be incorporated into the part 257 CCR regulations. To develop the proposed rule, EPA evaluated whether there was sufficient evidence in the record for those regulations to support incorporating either the part 258 MSWLF provision or an analogue into the part 257 CCR regulations. Based on the results of this evaluation, EPA proposed to adopt six alternative performance standards modeled after part 258, which would allow a Participating State Director to: (1) Establish alternative risk-based GWPS for constituents where no MCL exists; (2) Modify the corrective action remedy in certain cases; (3) Suspend groundwater monitoring requirements if a ‘‘no migration’’ demonstration can be made; (4) Establish an alternate period of time to demonstrate compliance with the corrective action remedy; (5) Modify the post-closure care period; and (6) Issue technical certifications in lieu of a professional engineers. Under the proposal, EPA would have the same authority to establish alternative performance standards in nonparticipating states, subject to appropriations, and in Tribal Country, as a Participating State Director would. EPA explained that these alternative performance standards were modeled after part 258 provisions in the MSWLF regulations that appeared to have been adopted based solely on a finding that they would protect human health and the environment; EPA believed that the facts supporting those original determinations would also support a finding that the provisions met the standard under RCRA section 4004(a). EPA received a number of comments on this overall approach. Several commenters agreed that the record supporting any of the current provisions under the part 258 regulations would support revisions to the part 257 regulations. EPA also received comments stating that the proposed alternative protection standards failed to satisfy the requirements of RCRA section 4004(a). These commenters claimed that the record on which the proposals had relied was inadequate. Specifically, the commenters argued that EPA had in fact considered facilities’ ‘‘practicable capability in developing every provision of the rule, and so none were based exclusively on addressing the risks to health and the environment. These commenters also criticized the risk assessment conducted VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 to support the part 258 regulations, claiming that it failed to consider the risks to sensitive subpopulations, that the only impact it evaluated was the risk to human health from drinking MSWLFcontaminated groundwater, and only if drinking water wells were within one mile of the MSWLF, and that in any event the characteristics of (and therefore the risks posed by) MSWLF and CCR units are very different. These commenters also argued that EPA could not rely on the 2014 risk assessment conducted for the CCR rule to support the proposals without first evaluating whether the assumptions in that assessment are consistent with the results of the recently conducted groundwater monitoring, which they claim shows that the groundwater at almost all facilities is contaminated by at least one of the constituents in Appendix IV. EPA is continuing to evaluate a number of technical issues raised in the comments. At the same time, the Agency recognizes the need to begin to implement the WIIN Act and to facilitate the transition to regulation of CCR through permit programs in a timely manner in order to address the urgent concerns presented by facilities that are faced with criteria that may be subject to change through this and other rulemaking actions and quickly approaching compliance deadlines that may require substantial investments and impact operational decision-making. EPA is also mindful that States are in the process of considering whether to seek approval or their regulatory programs, and in some cases, are in the process of developing those programs; greater certainty regarding the kinds of provisions that EPA currently has the record to approve would consequently be highly desirable in order to effectuate the purpose behind the WIIN Act. Accordingly, while EPA continues to evaluate the concerns raised regarding the 1991 and 2014 risk assessments, the Agency is finalizing at this time a select number of provisions that either do not rely on those materials for support to meet the standard in RCRA section 4004(a) or rely on portions that are not implicated by the technical issues under consideration. EPA is adopting two of the proposals modeled after the existing provisions in 40 CFR part 258: (1) The Participating State Director may suspend groundwater monitoring requirements if there is evidence that there is no potential for migration of hazardous constituents to the uppermost aquifer during the active life of the unit and the post-closure care period; and (2) The Participating State Director may decide PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 36439 to certify that certain regulatory criteria have been met in lieu of the exclusive reliance on a qualified PE. EPA is also adopting revised GWPS for constituents without a MCL under § 257.95(h)(2). After consideration of comments received, EPA has set risk-based values using the methodology discussed in the proposal. In addition, the Agency is finalizing an extension to the deadline by which facilities must cease the placement of waste in CCR units closing for cause in two situations: (1) Where the facility has detected a statistically significant increase over the groundwater protection standard from an unlined surface impoundment; and (2) where the unit is unable to comply with the aquifer location restriction. Further discussion of these comments received on these provisions and the bases on which EPA is adopting them is in their respective sections of this preamble. For any of the proposed performance standards, EPA requested comment on whether the facility or owner operator should be required to post the specific details of the modification of the performance standard to the facility’s publicly accessible website or require any other recordkeeping options. Based on comments received, and to maintain transparency facilities with a sitespecific performance standard, such as suspending groundwater monitoring in the event a no migration demonstration can be made, EPA is requiring posting of specific details of the modification to a publicly accessible website. This is discussed further below. A. Extension to Certain Deadlines for the Closure or Retrofit of Existing CCR Surface Impoundments The CCR rule requires existing CCR surface impoundments and landfills to cease receiving waste and initiate closure under certain circumstances. For existing CCR surface impoundments, these situations include unlined CCR surface impoundments whose groundwater monitoring shows an exceedance of a GWPS (§ 257.101(a)(1)); CCR surface impoundments that do not comply with the location criteria (§ 257.101(b)(1)); and CCR surface impoundments that are not designed and operated to achieve minimum safety factors (§ 257.101(b)(2)). The current CCR regulations also require existing CCR landfills that do not comply with the location criteria for unstable areas to close (§ 257.101(d)(1)). In all of these situations, also referred to as ‘‘closure for cause’’ in the preamble to 2015 CCR final rule, the current CCR regulations specify that the owner or operator of the E:\FR\FM\30JYR1.SGM 30JYR1 36440 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations unit must cease placing any waste into the CCR unit and initiate closure activities within six months of making the relevant determination that the CCR unit must close. After considering comments received in response to the March 15, 2018 proposed rule, as well as information in the rulemaking petitions submitted by USWAG and AES Puerto Rico,5 the agency finds it appropriate to finalize an extension to the deadline by when owners or operators must cease the placement of waste in existing CCR surface impoundments closing for cause in two situations. The two situations include the deadlines applicable to: (1) Existing CCR surface impoundments that are unable to comply with the location restriction regarding placement above the uppermost aquifer; and (2) Existing unlined CCR surface impoundments whose groundwater monitoring shows an exceedance of a groundwater protection standard. The agency is not at this time making any revisions to the other deadlines that apply to existing CCR surface impoundments or to any of the deadline requirements that apply to new and existing CCR landfills and new CCR surface impoundments. The two subunits below explain the approach and rationale for the amendments to certain deadlines for these two situations. daltland on DSKBBV9HB2PROD with RULES 1. Revision of § 257.101(b)(1) Regarding the Deadline for Waste Placement and Closure of Existing Surface Impoundments That Fail To Demonstrate Compliance With a Location Standard In the March 15, 2018 proposed rule, EPA solicited public comment on whether the deadlines to comply with the location restrictions at §§ 257.60 through 257.64 are appropriate in light of the WIIN Act (83 FR 11598). The Agency sought comment on whether an alternative deadline, either through a permit program established under the WIIN Act or one that applies directly to the facility itself during an interim period, would be more appropriate to facilitate implementation of the WIIN Act. Owners and operators of existing CCR surface impoundments must 5 ‘‘Utility Solid Waste Activities Group Petition for Rulemaking to Reconsider Provisions of the Coal Combustion Residuals Rule, 80 FR 21302 (April 17, 2015), and Request to Hold in Abeyance Challenge to Coal Combustion Residual Rule, No. 15–1219, et al. (D.C. Cir.)’’ dated May 12, 2017; and ‘‘AES Puerto Rico LP’s Petition for Rulemaking to Reconsider Provisions of the Coal Combustion Residuals Rule, 80 FR 21302 (April 17, 2015), and Request to Hold in Abeyance Challenge to the Coal Combustion Residuals Rule, No. 15–1219, et al. (D.C. Cir.)’’ dated May 31, 2017. VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 complete the required demonstrations for five location restrictions 6 no later than October 17, 2018.7 An owner or operator that fails to complete any one of the demonstrations by the deadline would trigger the closure requirements of § 257.101(b)(1), which requires the owner or operator of the unit to cease placing CCR and non-CCR wastestreams into the impoundment and close the impoundment in accordance with the closure provisions of the regulations. EPA received numerous comments regarding the current deadlines associated with the location restrictions. Many commenters stated their support for extending the current deadlines to complete the required demonstrations for the location restrictions and, in particular, the location restriction for placement above the uppermost aquifer. These commenters stated that deadline extensions would allow time for both the proper implementation of the WIIN Act and the finalization of other substantive CCR rule revisions contemplated in the March 15, 2018 proposal, and would be consistent with the standard in RCRA section 4004(a), while limiting facilities’ expenditure of significant resources and avoiding the initiation of irreversible operational changes, including the forced closure of impoundments (and potentially the power plants themselves) under the current compliance deadlines. Commenters also stated that extensions of the location restriction deadlines is necessary to ensure alignment of key implementation and operational decisions under the CCR rule with EPA’s schedule for issuing revisions to the effluent limitations guidelines (ELGs) and pretreatment standards for the Steam Electric Power Generating Point Source Category.8 Some commenters recommended that the deadline for determining whether existing impoundments meet the aquifer separation location restriction should be keyed to a specific time following EPA’s 6 The five location restrictions are placement above the uppermost aquifer, wetlands, fault areas, seismic impact zones, and unstable areas. 7 Inactive CCR surface impoundments are subject to a different deadline as specified in § 257.100(e)(2). 8 On May 2, 2018, EPA issued the Final 2016 Effluent Guidelines Program Plan (83 FR 19281), which identifies new or existing industrial categories selected for effluent guidelines rulemakings and provides a schedule for such rulemakings. This 2016 Program Plan discusses that, in August 2017, EPA announced a rulemaking to potentially revise certain standards for existing sources in the Steam Electric Power Generating Point Source Category. The 2016 Program Plan also projects a schedule for such rulemaking, including a proposed rule in December 2018 and a final rule in December 2019. See page 6–1 of 2016 Program Plan. PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 issuance of a final rule allowing for an alternative risk-based option for meeting this location restriction. Other commenters supported extending deadlines until after EPA finalizes the amendments contemplated in the March 15, 2018 proposal and states have time to adopt the rule revisions into their state regulations. Some commenters suggested that deadlines be extended a specific amount of time following the effective date of a final rule or to specific dates. These commenters recommended extensions ranging from 120 days to 12 months from the final rule’s effective date and, while other commenters suggested deadlines be extended until November 2020. At a minimum, these commenters stated that EPA should extend the timeline related to the obligation to enter into forced closure under § 257.101. Finally, commenters stated that it is common practice for an agency to extend regulatory deadlines in circumstances where a regulation is under reconsideration. Other commenters opposed any extension of the compliance deadlines associated with the location restrictions. These commenters stated that an extension is unwarranted due to the long history of delays in setting federal standards and the adverse impacts to human health and the environment from improperly sited CCR units. Commenters stated that facilities have had several years to prepare for meeting the location restrictions and that an extension of the deadline is unnecessary because the facilities should already have sufficient information to determine whether their CCR units comply with the location restrictions. Finally, these commenters point out that several utilities have already sought approval from state regulators to close CCR units that are not in compliance with the location restrictions. A compliance extension would thus penalize companies that have made good-faith efforts to comply with the current rule, while rewarding companies that have not prepared properly to comply. EPA first considered whether to extend the deadlines by which owners or operators of CCR surface impoundments must complete the location restrictions demonstrations in §§ 257.60 through 257.64. Such a rule revision would have the effect of delaying the date that facilities would need to determine whether its CCR units are in compliance with the location restrictions. Most of the commenters raised concern about the current deadlines based on the assumption that the technical performance standards would subsequently be revised, either E:\FR\FM\30JYR1.SGM 30JYR1 daltland on DSKBBV9HB2PROD with RULES Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations because EPA was reconsidering those criteria or because States would revise them as part of their permit programs. The commenters provided no data or other information to suggest that compliance with the existing location restriction demonstration deadlines presents technical difficulties or is otherwise infeasible. Rather the primary technical concern raised by the comments was the need for more time to develop or find alternative capacity to replace any units that cannot comply with the location criteria. As one commenter explained. in a typical state, the process to modify a major wastewater discharge permit as required to reroute non-CCR waste water streams can take more than a year to complete. This commenter also provided concrete examples to support their contention that it may take 18–36 months to find alternate capacity for their non-CCR wastes streams. For a simple project—which the commenter described as a site that (1) does not provide base load generation, and thus there would be minimal impact to project timing due to planned unit outages to install the piping reroutes and associated mechanical and electrical connections; (2) has fewer streams to re-route, operates intermittently, and (3) has straightforward low volume waste steams (i.e., technically definable in terms of quantity and quality)—the overall duration (18 months) is three times the 6-month duration provided for by the existing regulations. By contrast, a more complex site the overall duration is approximately 36 months—nearly six times longer in duration than currently provided for in the existing CCR rule. For a more complex site, the current water balance may indicate there are over 50 non-CCR individual waste streams which go to the CCR impoundment. Additionally, each unit utilizes an FGD that produces a waste stream, which also goes to the CCR impoundment. The FGD waste water stream has the most complex water chemistry and variability of any water stream in the plant. Complex project in terms of the number of streams to re-route, its more consistent operation (and scheduled outages), and its complex water chemistry associated with several of the non-CCR wastestreams. Additionally, the large number of streams to deal with, some of which only flow intermittently, further complicates the process design of what treatment system is needed. The water treatment process equipment alone requires a schedule of 13 months to procure, fabricate, and deliver to the plant site (excluding construction). VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 When these efforts are properly stacked and staggered consistent with accepted engineering and project management practice, the overall duration is approximately 36 months. In both examples discussed previously, the commenter explained that the current regulation also provides inadequate time for proper start-up and commissioning. Reports from industry indicate that it can take several months to properly tune and commission a large water treatment plant. The commenter stated that the six months in the existing rule is, at best, barely adequate to properly tune a complex wastewater treatment plant to steady state operation accounting for quantity and quality variations in the non-CCR water streams. After considering all of the comments, EPA considers that the potential for revisions to the technical criteria themselves is too speculative at this stage to form the basis for a regulatory revision. EPA received no concrete proposals or suggestions for possible modifications to the technical criteria themselves. Nor does EPA currently have any potential options under consideration. And none of the States that have submitted applications (or with whom EPA has had discussions) for program authorization included any alternative location criteria. Accordingly, EPA has determined not to revise the deadlines to complete the requisite demonstrations.9 However, EPA acknowledges that legitimate concerns have been raised about the feasibility of complying with the current closure timeframes. EPA considers that the issues discussed above are not unique to the commenter, but are shared by facilities across the industry. And these concerns are equally relevant in this context, as units that do not comply with the location requirements must close pursuant to § 257.101(b)(1). EPA also takes very seriously the concern that facilities not be prematurely compelled to make potentially irreversible operational changes or otherwise be forced to invest in compliance measures that may subsequently need to be modified. This was part of the reason that EPA originally chose to align key implementation and operational decisions under the CCR rule with EPA’s schedule for issuing the effluent limitations guidelines and pretreatment standards (ELGs) for the Steam Electric Power Generating Point Source Category 9 These deadlines are codified in §§ 257.60(c)(1), 257.61(c)(1), 257.62(c)(1), 257.63(c)(1), and 257.64(d)(1). PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 36441 to be appropriate. The ELG requirements will be highly relevant to facility’s decisions regarding the development of alternative capacity to manage non-CCR wastestreams. EPA is currently in the process of rulemaking to consider revising certain standards for existing ELGs sources; that rulemaking is projected to be completed by December 2019. EPA recently changed the earliest ELG compliance date for FGD and bottom ash wastewater to October 2020 to account for these potential revisions. See 82 FR 43494. EPA’s original concern thus continues to be highly relevant. To address these concerns, EPA therefore considered whether an extension of the deadline in the closure for cause provisions in § 257.101(b)(1) that would better coordinate the compliance and implementation deadlines between the CCR and ELGs rules, as suggested by many of the commenters, was warranted. Such a rule revision would still require facilities to make the requisite location restriction demonstrations by the deadlines specified earlier (i.e., October 17, 2018), but would extend the timeframe during which the facility could continue to use the unit, and thereby provide the facility with more time to adjust its operations. This approach would allow facilities to better coordinate their engineering, financial and permitting activities under the two rules, and would account for EPA’s on-going ELG rulemaking. Therefore, EPA is extending the closure for cause trigger from the six-month period currently specified in the rule until October 31, 2020, which increases that time period by approximately 18 months. The agency selected the date to coordinate with the revised compliance date for the ELG requirements. The agency anticipates completing the ELGs rulemaking by December 2019 and providing nine months from the rule’s likely publication in January 2020 would be sufficient for facilities to make informed decisions to meet the requirements of both rules. That 18month period also corresponds with the lower end amount of time estimated to be needed to find alternative capacity for non-CCR watestreams. Finally, EPA considered whether to apply a time extension to all location restrictions, or a subset of them. Commenters consistently identified the placement above the uppermost aquifer location restriction as the critical standard, and so EPA has limited its revision to address this specific concern. This time extension does not affect other deadlines in the regulations, and facilities therefore are required to comply with all requirements of an E:\FR\FM\30JYR1.SGM 30JYR1 36442 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations operating facility (e.g., inspections), which are designed to ensure that the facility operations will meet the statutory standard during this extension period. daltland on DSKBBV9HB2PROD with RULES 2. Revision of § 257.101(a)(1) Regarding the Deadline for Waste Placement and Closure or Retrofit of Existing Unlined CCR Surface Impoundments The agency solicited comment in the March 15, 2018, proposed rule on appropriate time frames for the assessment monitoring requirements (83 FR 11599). The 2015 regulation establishes a groundwater monitoring program consisting of detection monitoring, assessment monitoring and corrective action. Because the current assessment monitoring program includes a series of 90-day time periods in which an owner or operator is to perform the required analysis and demonstrations, EPA sought comment on whether 90 days is an appropriate time period for the assessment monitoring requirements in light of the WIIN Act. The agency specifically requested comment on whether alternative time periods are necessary to perform the required analysis and demonstrations and whether such alternative time periods would be more appropriate to facilitate implementation of the WIIN Act and any amendments to the CCR regulations as a result of the March 15, 2018 proposed rule. The groundwater monitoring program requires an owner or operator of a CCR unit to install a system of monitoring wells and specify procedures for sampling these wells, in addition to methods for analyzing the groundwater data collected, to detect the presence of specified constituents and other monitoring parameters released from the units. Among other requirements, the 2015 regulations required facilities to have installed the groundwater monitoring system and initiated detection monitoring no later than October 17, 2017.10 Some CCR units are currently operating under the assessment monitoring provisions of the regulations. Facilities monitoring groundwater under the assessment monitoring program are required to close or retrofit an unlined CCR surface impoundment if the monitoring results show that the concentrations of one or more of the constituents listed in Appendix IV to part 257 are detected at statistically significant levels above any GWPS. § 257.101(b)(1). 10 Inactive CCR surface impoundments are subject to a different deadline as specified in § 257.100(e)(5). VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 EPA received numerous comments on this issue. The general theme of those comments supportive of an extension was similar to that summarized in the previous subsection addressing location restrictions. Many commenters emphasized that an extension is needed to properly implement the objectives of the WIIN Act. Commenters stated that without an extension of the assessment monitoring deadlines, there would be little to no practical effect from the proposed revisions because facilities will have to make irreversible decisions and investments based on the 2015 rule. Many of these commenters identified two proposals of greatest concern: (1) The ability of facilities to establish riskbased GWPSs for Appendix IV constituents without MCLs; and (2) the incorporation of risk-based flexibility into the corrective action program. These commenters stated that the current schedule of the assessment monitoring program does not provide time for these provisions to take effect before some facilities will be compelled to initiate corrective action and/or forced to close could qualify for the new alternative closure provision. Some commenters also argued that the existing deadline associated with implementing the GWPS, in particular those associated with assessment monitoring are too short to adequately identify the source and extent of an exceedance. Commenters urged the Agency to extend these deadlines or, at a minimum, to defer the obligation to establish groundwater protection standards until after EPA adopts these two proposals. Commenters also stated that an extension is necessary to align key implementation and operational decisions under the CCR rule with EPA’s schedule for revising the ELGs for the Steam Electric Power Generating Point Source Category. Other commenters suggested that deadlines be extended a specific amount of time following the effective date of a final rule. These commenters recommended extensions ranging from 120 days to 12 months from the final rule’s effective date. Other commenters opposed any extension of the deadlines associated with the assessment monitoring program. These commenters stated that an extension is unwarranted due to the long history of delays in setting federal standards and the adverse impacts to human health and the environment from improperly sited CCR units. Commenters stated their opposition to revising the regulations that would allow facilities to continue to CCR units PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 that are unlined and already contaminating groundwater. EPA first considered the request to extend the assessment monitoring deadlines to allow States the opportunity to establish alternate riskbased GWPS under § 257.95(h). Most of the commenters raised concern about the current deadlines based on the assumption that the GWPS would subsequently be revised as part of a State-approved permit program. But the requested extension would have delayed the initiation of closure under § 257.101(a)(1) and corrective action provisions of §§ 257.96 through 257.98 for all constituents, not merely for the four without MCLs that commenters believed were likely to be revised. As discussed Unit IV.B of this preamble, EPA is establishing healthbased GWPSs for all four of the constituents in Appendix IV without established MCLs. These revised standards, because they are health-based standards, are not expected to be affected by State programs, which alleviate the concern that facilities will be forced to take action in response to standards that are likely to be revised. EPA therefore has no basis to revise the assessment monitoring deadlines. Nevertheless, as noted previously, numerous commenters raised concern that compliance with the current closure requirements is not technically feasible. These concerns, and the considerations motivating EPA to revise the deadlines for the aquifer location criterion, are equally relevant in this context, as unlined surface impoundments units that are leaking must close, in accordance with § 257.101(a)(1). EPA therefore considered whether an extension of the deadline in § 257.101(a)(1) to initiate the closure of unlined surface impoundments, similar to the extension of the deadlines for the location restrictions, would address the commenters’ concerns. Such a provision would require facilities to follow the assessment monitoring procedures and determine whether any contaminants have been detected at statistically significant levels above the GWPS established under § 257.95(h). A facility that makes such a determination would still be required to initiate corrective action to clean up the contamination in the aquifer, but could continue to use the unit for an extended period, which would provide the facility with more time to adjust their operations. This approach would allow facilities to better coordinate their engineering, financial and permitting activities under the two rules, and would align with EPA’s recent and on-going ELG rulemakings. E:\FR\FM\30JYR1.SGM 30JYR1 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations Therefore, EPA has extended the closure for cause trigger by the same 18-month period granted for the location restrictions. The agency selected the date October 31, 2020, to coordinate with the revised earliest compliance date for the ELG requirements. The Agency anticipates completing the ELG rulemaking by December 2019 and providing nine months from the rule’s likely publication in January 2020, for facilities to make appropriate decisions knowing the requirements of both rules. This time extension does not affect other deadlines or any other requirement in the regulations, and facilities therefore remain obligated to comply with all requirements of an operating facility (e.g., inspections), which are designed to ensure that the facility operations will meet the statutory standard during this extension period. daltland on DSKBBV9HB2PROD with RULES B. Alternative Risk-Based Groundwater Protection Standards The 2015 CCR rule required the CCR unit owner or operator to set the GWPS at the MCL or to background for all constituents in Appendix IV to part 257 that are detected at a statistically significant level above background. MCLs are levels of constituent concentrations promulgated under section 1412 of the Safe Drinking Water Act. If no MCL exists for a detected constituent, then the GWPS needed to be set at background. In cases where the background level is higher than the promulgated MCL for a constituent, the GWPS was to be set at the background level. In March 2018, EPA proposed to amend the 2015 CCR rule to incorporate certain requirements from 40 CFR part 258 that would allow Participating State Directors, and EPA where it is the permitting authority, flexibility to approve an alternative GWPS, which was required to be derived in a manner consistent with Agency guidelines. Some of the risk guidelines used to support establishment of the part 258 regulations had since been replaced or supplemented, so the proposal referenced the updated versions. Specifically, EPA cited to the Supplementary Guidance for Conducting Health Risk Assessment of Chemical Mixtures,11 which supplements 51 FR 34014 (September 24, 1986); the Guidelines for Developmental Toxicity Risk 11 USEPA, ‘‘Supplementary Guidance for Conducting Health Risk Assessment of Chemical Mixtures’’, EPA/630/R–00/002, August 2000. This document can be accessed in the docket. VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 Assessment,12 which amends 51 FR 34028 (September 24, 1986); and the Guidelines for Carcinogen Risk Assessment,13 which amends 51 FR 33992 (September 24, 1986). Also, EPA proposed to add guidance on deriving a reference dose, Reference Dose (RfD): Description and Use in Health Risk Assessments.14 EPA also proposed to incorporate the part 258 requirement that the alternative GWPS be based on scientifically valid studies conducted in accordance with the Toxic Substances Control Act Good Laboratory Practice Standards (40 CFR part 792) or the equivalent. For noncarcinogens, EPA proposed to require that States use a reference dose with a hazard quotient (HQ) of 1 as the upper bound on risk, to establish the alternative GWPS. This methodology was the same as that used to establish the technical criteria in the 2015 CCR regulation. EPA’s proposal explained that reliance on this methodology was reasonable as it would ensure that this provision (and any alternative GWPS eventually established under this provision) would meet the requisite statutory standard. Examples of groundwater values consistent with the proposed requirements were provided, including Action Levels promulgated under the Safe Drinking Water Act and the Regional Screening Levels for Chemical Contaminants at Superfund Sites.15 EPA solicited comment on the revised approach to establishing an alternative GWPS. Significant comments were received in support of the proposal to allow States to approve an alternative GWPS. Commenters stated that States have robust regulatory frameworks to regulate groundwater protection, that allowing this flexibility is consistent with how requirements for MSWLFs are implemented under Subtitle D, and that the oversight and enforcement authorities provided in the WIIN Act allow EPA to ensure States will set protective standards. Commenters also stated that risk-based alternative GWPS would be more appropriate than the current requirement to use background 12 USEPA, ‘‘Guidelines for Developmental Toxicity Risk Assessment’’, EPA/600/FR–91/001, December 1991. This document can be accessed at https://cfpub.epa.gov/ncea/risk/recordisplay. cfm?deid=23162. 13 USEPA, ‘‘Guidelines for Carcinogen Risk Assessment’’, EPA/630/P–03/001F, March 2005. This document can be accessed at https:// www.epa.gov/risk/guidelines-carcinogen-riskassessment. 14 This document can be accessed at https:// www.epa.gov/iris/reference-dose-rfd-descriptionand-use-health-risk-assessments. 15 This document can be accessed at https:// www.epa.gov/risk/regional-screening-levels-rsls. PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 36443 levels where no MCL has been established for an Appendix IV constituent. Comments were also received opposing the proposal to allow Participating State Directors to approve an alternative GWPS. Concerns raised included lack of resources or technical expertise at state agencies, and the failure to require any alternative GWPS to be protective of sensitive subgroups, which is included in the MSWLF regulations at 40 CFR 258.55(i). Commenters opposed to this proposal raised concerns that it would: Establish vague, unenforceable guidelines; fail to address ecological risk or cancer risk; ignore health-based exposure concentrations that are already developed; and would ultimately allow states to increase risks to human health and the environment above the statutory standard. Commenters also called attention to that allowing Participating State Directors to set alternative standards could result in variability in regulatory standards for chemicals that present the same health risks, regardless of geography. Commenters also raised concerns about protectiveness of the proposed approach and EPA’s ability to use the part 258 record to support providing discretion to Participating State Directors. One group of commenters maintained that it is arbitrary and insufficiently protective to let states establish GWPS where EPA has already established risk-based levels for Appendix IV constituents with no established MCL, also citing the Superfund program’s ‘‘Regional Screening Levels’’ (RSLs). Some comments requesting that EPA consider established, available healthprotective benchmarks for Appendix IV constituents, such as RSLs, and wellestablished assessment methodology for developing more site-specific GWPS. One industry commenter maintained that ‘‘Of particular relevance to the CCR Rule are the risk-based policies and resources for the protection and remediation of impacted groundwater that U.S. EPA has developed. Specifically, U.S. EPA has established Regional Screening Levels (RSLs) to assess potential human health risks from chemicals in soil, water, and air. . . . These values assist risk assessors in determining whether levels of constituents at a site may warrant further investigation or cleanup, or whether no further investigation is required.’’ The commenter goes on to explain that RSLs, while protective, are significantly higher than background concentrations of cobalt, lithium, and molybdenum collected by USGS. Using the RSLs instead of background would E:\FR\FM\30JYR1.SGM 30JYR1 daltland on DSKBBV9HB2PROD with RULES 36444 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations avoid corrective action costs of cleaning up to background levels without providing any health benefit. See EPA– HQ–OLEM–2017–0286–1314, Attachment 2, pp. 2. An environmental commenter, concerned about the potential for states to set their own standards, said, ‘‘In the case of EPA’s coal ash regulations, not only is EPA in a better position to establish healthprotective levels for each non-MCL constituent, but the Agency has already done so.’’ The commenter goes on to say that ‘‘If EPA chooses to allow groundwater protection standards other than background, those standards must be no less stringent than the EPA RSLs or health advisories.’’ See EPA–HQ– OLEM–2017–0286–2136 pp. 134–139. In the proposal, EPA also solicited comment on whether an alternative riskbased GWPS could be established by an independent technical expert or experts where there is no approved permitting authority. Numerous commenters opposed this suggestion, for reasons including: (1) EPA previously rejected that approach in the 40 CFR part 258 regulations, which restricted this provision to Participating State Directors; (2) EPA does not provide an adequate record to support such a proposal; (3) Such a regulation, if finalized, would fail to satisfy the protectiveness standard in RCRA section 4004(a). Commenters in support of this primarily cited the pending compliance dates in the CCR rule as a reason to allow an alternative GWPS to be established under the selfimplementing program. Commenters expressed concern that by the time States receive approval of permitting programs and EPA establishes its own permitting program, groundwater monitoring deadlines would have passed and it would be too late to establish alternative GWPSs. To illustrate this point, one industry commenter stated that half of its CCR units could be forced to initiate alternate source demonstrations or corrective action assessment based solely on having detected Appendix IV constituents with no MCLs above background levels. Commenters stated that the oversight and enforcement authorities provided to EPA by the WIIN Act would ensure that site-specific alternative GWPS established by independent experts are protective. EPA agrees with commenters that State programs are unlikely to be developed and approved prior to the critical deadlines in the CCR rule. EPA continues to evaluate technical issues, and the various concerns raised by the commenters, but the Agency has developed the alternative adopted today VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 that does not rely on the part 258 record for support, and also balances commenters’ concerns. EPA has developed a specific GWPS for each of the four constituents in Appendix IV without an MCL, to be used in place of the default background concentrations currently required under § 257.95(h)(2). Adopting national criteria will provide health-based standards available to facilities now to use to compare against monitored groundwater concentrations and develop cleanup goals. Note that a State Director may always seek approval for alternative State criteria as part of the process under the WIIN Act; this could, for example, include the establishment of alternative GWPS for the constituents listed in Appendix IV. See 42 U.S.C. 6945(d)(1)(B)(ii), (C), requiring the Administrator to approve a State permit program that allows a State to include technical standards for individual permits or conditions of approval that differ from the criteria under part 257 of title 40, Code of Federal Regulations if, based on sitespecific conditions, the Administrator determines that the technical standards established pursuant to a State permit program are at least as protective as the criteria under that part. Specifically, the Agency is adopting the following health-based levels as the GWPSs for the four Appendix IV constituents without a designated MCL: 6 micrograms per liter (mg/L) for cobalt; 40 mg/L for lithium, and 100 mg/L for molybdenum. EPA is adopting the alternative GWPS for lead at 15 mg/L. These levels were derived using the same methodology that EPA proposed to require States to use to establish alternative GWPS (See, 83 FR 11598– 11599, 11613). The methodology follows Agency guidelines for assessment of human health risks of an environmental pollutant. This means that these GWPSs are expected to be concentrations to which the human population could be exposed to on a daily basis without an appreciable risk of deleterious effects during a lifetime. Specifically, EPA used the equations in the Risk Assessment Guidance for Superfund (RAGS) Part B to calculate these revised GWPS.16 RAGS Part B provides guidance on using drinking water ingestion rates and toxicity values to derive risk-based remediation goals. The use of these methods, consistent with EPA risk assessment guidelines addresses commenters’ concerns about protecting sensitive populations. EPA 16 Risk Assessment Guidance for Superfund (RAGS) Part B can be accessed at https:// www.epa.gov/risk/risk-assessment-guidancesuperfund-rags-part-b. PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 relied upon relevant exposure information from the 2008 ChildSpecific Exposure Factors Handbook,17 the Exposure Factors Handbook: 2011 Edition 18 and the 2014 Human Health Evaluation Manual, Supplemental Guidance: Update of Standard.19 Values based on residential receptors were used to capture the range of current and future potential receptors. EPA identified toxicity values according to the hierarchy established in the 2003 Office of Solid Waste and Emergency Response Directive 9285.7–53,20 which encourages prioritization of values from sources that are current, transparent and publicly available, and that have been peer reviewed. Finally, EPA used the same toxicity values (reference doses) that were used in the risk assessment supporting the 2015 CCR Rule. Cancer slope factors (CSF) were not identified for any of the relevant constituents. The finalized GWPS for cobalt, lithium, and molybdenum were set using a target based on a HQ = 1 for Participating State Directors to follow. Commenters noted that a reference dose (RfD) has not been established for lead because of the difficulty in identifying a ‘‘threshold’’ level, below which adverse effects are not known or anticipated to occur. EPA acknowledges the commenters’ concern and has set the GWPS for lead at the Action Level established under section 1412 of the Safe Drinking Water Act, which addresses comments received supporting the use of existing EPA riskbased standards. Because transport through ground water is the primary risk pathway identified in the 2014 Risk Assessment, this revised GWPS is 17 USEPA ‘‘Child-Specific Exposure Factors Handbook’’ can be accessed in the docket or at https://cfpub.epa.gov/ncea/risk/recordisplay. cfm?deid=199243. 18 USEPA ‘‘Exposure Facots Handbook: 2011 Edition’’ can be accessed in the docket or at https:// cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid= 236252. 19 2014 Human Health Evaluation Manual, Supplemental Guidance: Update of Standard can be accessed in the docket or at https://www.epa.gov/ risk/update-standard-default-exposure-factors. 20 Office of Solid Waste and Emergency Response Directive 9285.7–53 can be accessed in the docket or at https://nepis.epa.gov/Exe/ZyNET.exe/ 91015CKS.TXT?ZyActionD=ZyDocument& Client=EPA&Index=2000+Thru+2005&Docs=& Query=&Time=&EndTime=&SearchMethod=1& TocRestrict=n&Toc=&TocEntry=&QField=& QFieldYear=&QFieldMonth=&QFieldDay=& IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=& File=D%3A%5Czyfiles%5CIndex%20Data% 5C00thru05%5CTxt%5C00000030%5C91015CKS .txt&User=ANONYMOUS&Password=anonymous& SortMethod=h%7C-&MaximumDocuments=1& FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y 150g16/i425&Display=hpfr&DefSeekPage =x&SearchBack=ZyActionL&Back=ZyActionS& BackDesc=Results%20page&MaximumPages=1& ZyEntry=1&SeekPage=x&ZyPURL. E:\FR\FM\30JYR1.SGM 30JYR1 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations daltland on DSKBBV9HB2PROD with RULES anticipated to be protective of human health at these sites. C. Modification of Groundwater Monitoring Requirements The current regulations at § 257.90 require all CCR units, without exception, to comply with the groundwater monitoring and corrective action requirements of §§ 257.90 through 257.98. The final CCR rule at § 257.91(a)(2) requires the installation of groundwater monitoring wells at the waste boundary of the CCR unit. EPA is adopting a final provision that incorporates only minimal revisions from the proposal. The Agency recognizes that certain hydrogeologic settings may preclude the migration of hazardous constituents from CCR disposal units to groundwater resources. Requiring groundwater monitoring in these settings would provide little or no additional protection to human health and the environment. EPA considers that the final criteria are sufficiently precise and determinate that they will ensure that waivers are granted only in those rare situations, and therefore, EPA is incorporating the revised provision into the part 257 regulations. As proposed, the Participating State Director would be allowed to suspend the groundwater monitoring requirements under §§ 257.90 through 257.95 if the owner or operator can demonstrate that there is no potential for migration of any CCR constituents from that CCR unit to the uppermost aquifer during the active life of the unit, closure, and the post-closure care period. The demonstration must be certified by a PE or approved by a Participating State Director or approved EPA where EPA is the permitting authority, and must be based upon: (1) Site-specific field collected measurements, sampling, and analysis of physical, chemical, and biological processes affecting contaminant fate and transport, and (2) Contaminant fate and transport predictions that maximize contaminant migration and consider impacts on human health and environment. This would allow the Participating State Director or EPA where EPA is the permitting authority to suspend the groundwater monitoring requirements in §§ 257.91 through 257.95 for a CCR unit upon demonstration by the owner or operator that there is no potential for migration of hazardous constituents from the unit to the uppermost aquifer during the active life, closure, or postclosure periods. However, the requirements of §§ 257.96 through 257.98 would not be suspended. As discussed below, the provision being VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 finalized for the part 257 regulations would be identical to that in the part 258 regulations with the exception for the requirement to periodically demonstrate that conditions have not changed, that is, there is still no migration of Appendix III or IV constituents from the CCR unit to the uppermost aquifer. The proposal acknowledged the difficulties of meeting the ‘‘no potential for migration’’ standard (83 FR 11602). The suspension of monitoring requirements is intended only for those CCR units located in hydrogeologic settings in which the Appendix III and IV constituents will not migrate to groundwater during the active life of the unit, as well as closure and post-closure periods. The proposal also stressed that a ‘‘no migration’’ waiver from certain RCRA requirements has been a component of both the part 258 and the RCRA subtitle C groundwater monitoring programs for many years, and, based on its experience under these programs, the Agency expects that cases where the ‘‘no migration’’ criteria are met will be rare. There were many general comments supporting the suspension of groundwater monitoring requirements if it can be demonstrated that there is no potential for migration of hazardous constituents from the CCR unit to the uppermost aquifer. These commenters supported this provision because it allows for more site-specific flexibility and prevents burdensome monitoring requirements that are unnecessary for protection of human health and the environment. A commenter also stated that it is unnecessary to incur ongoing monitoring costs if a unit has no impact to groundwater. Supporters of the ‘‘no migration’’ waiver also stated that it should not be limited to facilities operating under a state or EPA CCR permit program, and should be broadened so that a qualified technical expert can make the no migration determination under the selfimplementing CCR program. Commenters stated that the potential for abuse no longer exists due to the public notification requirements and EPA’s inspection and enforcement authority provided by the WIIN Act. Groundwater monitoring is one of the key provisions under the regulations that protect health and the environment, as it ensures that contamination is detected and remediated. If the unit does leak and contaminants migrate into the aquifer, without monitoring there is no guarantee that those contaminants will be detected quickly, or necessarily at all. The potential consequences of this provision are therefore significant. PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 36445 Moreover, the determinations required to support the waiver are highly technical, and thus not readily evaluated during an inspection, by an inspector who may be able to document that the supporting analyses exist but is unlikely to have the time or expertise necessary to evaluate their scientific adequacy. Consequently, this provision requires the additional layer of protection associated with having review by a regulatory authority, which would have the necessary technical expertise on staff, evaluate the request prior to its adoption. Some commenters did not support the ‘‘no migration’’ proposal. One commenter explained that groundwater monitoring for CCR units had just barely taken effect and the first round of groundwater monitoring data was first published on March 2, 2018. This commenter also stated that all CCR facilities should be required to do groundwater monitoring to establish a baseline. Another commenter stated that due to the nature of sedimentary geological formations, fractures and fissures may exist throughout a coalmined site, mined areas may settle and surface impoundments may leak. Therefore, suspension of groundwater monitoring should not be allowed. EPA has determined that if a facility meets the criteria to demonstrate that there is no potential for migration at the unit, then the groundwater monitoring requirements of §§ 257.90 through 257.96 would not be necessary. However, the regulation requires that demonstrations of no potential for migration must be supported by both predictions that maximize contaminant migration and actual field data collected at the site. Field sampling is necessary to establish the site’s hydrogeological characteristics and must include an evaluation of unsaturated and saturated zone characteristics to ascertain the flow rate and pathways by which contaminants may migrate to groundwater. Thus, facilities would be expected to collect site-specific data relating to conditions, geology, water levels, etc. as well as contaminant concentrations in the aquifer. The proposal included four conditions that would be required for a facility to receive a waiver from groundwater monitoring. The first condition is that the suspension of groundwater monitoring requirements in §§ 257.91 through 257.95 is available only for owners and operators of CCR units located in participating states. As discussed previously the Agency has limited the availability of the waiver because of the need to review a nomigration demonstration prior to E:\FR\FM\30JYR1.SGM 30JYR1 daltland on DSKBBV9HB2PROD with RULES 36446 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations granting a waiver from groundwater monitoring. However, in this final action, the Agency is expanding this provision to allow EPA the ability to review a no-migration demonstration to grant a waiver from groundwater monitoring where EPA is the permitting authority. The second condition is that the rule requires demonstrations of no potential for migration to be supported by both predictions that maximize contaminant migration and actual field data collected at the site. The proposal explained in great detail how the different properties should be measured, building on guidance developed for part 258 (83 FR 11602). EPA explained in the proposal that the site-specific information called for under the proposed regulation to make the demonstration must include, at a minimum, the following information to evaluate or interpret the effects of the following properties or processes on contaminant fate and transport: (1) Aquifer Characteristics, including hydraulic conductivity, hydraulic gradient, effective porosity, aquifer thickness, degree of saturation, stratigraphy, degree of fracturing and secondary porosity of soils and bedrock, aquifer heterogeneity, groundwater discharge, and groundwater recharge areas; (2) Waste Characteristics, including quantity, type, and origin; (3) Climatic Conditions, including annual precipitation, leachate generation estimates, and effects on leachate quality; (4) Leachate Characteristics, including leachate composition, solubility, density, the presence of immiscible constituents, Eh, and pH; (5) Engineered Controls, including liners, cover systems, and aquifer controls (e.g., lowering the water table). These should be evaluated under design and failure conditions to estimate their long-term residual performance; (6) Attenuation of contaminants in the subsurface, including adsorption/ desorption reactions, ion exchange organic content of soil, soil water pH, and consideration of possible reactions causing chemical transformation or chelation; and (7) Microbiological Degradation, which may attenuate target compounds or cause transformations of compounds, potentially forming more toxic chemical species. No migration petitions will vary considerably. The petition content will be strongly influenced by the type of unit for which a variance is sought and the methods chosen to demonstrate that there is no potential for migration. EPA VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 believes the categories listed above and other site-specific information as required by the Participating State Director or EPA where EPA is the permitting authority will provide the necessary information, data, and analyses to determine the physical, chemical, and biological processes affecting the migration of CCR constituents. As discussed below, these criteria have largely been included in the final rule, with modifications to account for the differences between the Part 258 constituents, which include organics, and Appendix IV CCR constituents, which are metals. The third condition is that demonstrations be certified by a qualified PE and approved by the Participating State Director or EPA where EPA is the permitting authority to ensure that there is a high degree of confidence that no contamination will reach the uppermost aquifer. The fourth condition requires the owner or operator of the CCR unit to remake the demonstration every 10 years or sooner, if there is evidence migration has occurred, as determined by the Participating State Director or EPA where EPA is the permitting authority. This new demonstration is required to be submitted to the Participating State Director or EPA where EPA is the permitting authority one year before the existing groundwater monitoring suspension is due to expire. If the suspension expires for any reason, the unit must begin groundwater monitoring according to § 257.90(a) within 90 days. EPA received several public comments both supporting and opposing this 10-year demonstration clause. A commenter stated that the provisions for the suspension of groundwater monitoring depart from the part 258 provisions on which they were modeled, by limiting any such suspension to a maximum 10-year term and requiring a re-demonstration for subsequent suspension approvals. One commenter stated that if any breakthrough occurs in the CCR unit, 10 years is too long and would allow contamination to move toward adjacent discharge points, including pumping wells at nearby homes, farms and businesses, as well as streams, potentially endangering human health and the environment. As discussed in more detail below, any site-specific demonstration to satisfy the ‘‘no migration’’ threshold involves several distinct criteria relating to site conditions. Because, as the commenter notes, engineered controls do fail facilities will be required to demonstrate that site conditions will PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 collectively work to ensure there is no potential for migration. For example, the regulation also requires the evaluation of Climatic Conditions such as annual precipitation and leachate generation estimates. All of the regulatory factors together work to ensure that, when considering a ‘‘no migration’’ determination, in the event of a leak from a CCR unit, the constituents will not migrate to the uppermost aquifer during the lifetime of the unit and postclosure care. Another comment received on the 10year interval is that if the existing monitoring wells remain in place during the 10-year interval, those wells may be neglected and not usable for sampling at the end of the 10-year interval. If the existing monitoring wells are filled and sealed and new monitoring wells are installed, the ability to effectively compare data at the same location over time may be lost. The commenter stated that EPA should consider either removing the 10-year recurring demonstration requirement or add some minimum monitoring requirements at shorter intervals (e.g., groundwater elevations) to ensure maintenance of the monitoring wells. EPA does not agree that monitoring wells will necessarily be unused during the 10-year interval. The proposal discussed how the ‘‘no migration’’ demonstration involves complying with rigorous requirements. Modeling may be useful for assessing and verifying the potential for migration of hazardous constituents. Models used should be based on actual field collected data to adequately predict potential groundwater contamination. When owners or operators prepare to re-certify a no migration demonstration, they must verify that the unit continues to meet the standard—i.e., that there is still no potential for migration of contaminants from the unit to the uppermost aquifer. To support this demonstration some type of field data, such as groundwater elevation measurements, would normally be collected during the 10-year period. The 10-year requirement to renew a waiver ensures that no dramatic changes have occurred that may cause contamination. One commenter stated that EPA should adopt separate standards for the suspension of groundwater monitoring for CCR landfills and CCR surface impoundments. The commenter stated that CCR landfills should not be required to conduct a new demonstration once every 10 years to show that suspension of groundwater monitoring continues to be appropriate. EPA disagrees with this comment as the ‘‘no migration’’ waiver is dependent E:\FR\FM\30JYR1.SGM 30JYR1 daltland on DSKBBV9HB2PROD with RULES Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations upon site-specific hydrogeology, which can potentially change overtime, and the criteria for the waiver are not specific to either landfills or surface impoundments. EPA considered the comments and is adopting the proposal with minor revisions to ensure that the regulatory language accurately reflects the principles reflected in the proposal. EPA discussed in the proposal why periodic renewals of ‘‘no migration’’ demonstrations were not required for MSW landfills. In part this is because the part 258 regulations apply only to landfills, while the CCR regulations apply to both landfills and surface impoundments. Surface impoundments by their very nature pose a potential for releases to groundwater that is different than landfills (e.g., presence of a hydraulic head). The risk assessment for the CCR rule found that, even when key variables are controlled (e.g., liner type, waste type) for the long-term risks from surface impoundments are greater than from landfills. Based on these factors, EPA is requiring an owner or operator to conduct a new demonstration once every 10 years to show that the suspension of groundwater monitoring continues to be appropriate. See § 257.90(g). This new demonstration must be submitted to the Participating State Director or EPA where EPA is the permitting authority one year before the existing groundwater monitoring suspension is due to expire. If the suspension expires for any reason, the unit must begin groundwater monitoring in accordance with § 257.90(a) within 90 days. To address concerns that the proposed language was insufficiently prescriptive EPA has added the phrase, ‘‘based on the characteristics of the site in which the CCR unit is located,’’ to the regulatory text. This is intended to clarify that the site characteristics are the key component of any determination that a waiver can be granted, rather than unit characteristics, such as the type of liner, which can (and do) fail. This is consistent with both the proposal and the original part 258 regulation. See 83 FR 11602; 56 FR 51061. EPA provided examples of locations that might be able to demonstrate no potential for migration in the preamble to the final MSWLF rule, such as extremely dry areas with little rainfall and great depths to groundwater, but acknowledged that these would be extremely rare. 56 FR 51061. EPA expects this to be the case with respect to CCR units as well. For the same reason, EPA included in the regulation four of the seven categories of properties or processes on contaminant fate and transport that VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 were discussed in the preamble to the proposed rule at 83 FR 11602. EPA omitted two categories from this original list to account for the differences between the Part 258 constituents and the Appendix IV CCR constituents. The part 258 constituents include organic compounds, and so factors, such as natural attenuation, are relevant to evaluating the potential for migration at the site. But the CCR constituents are metals or metalloid compounds, which will remain in the environment if released. The remaining factors have been a component of the MSWLF program since the regulations were first adopted in 1991. 56 FR 51061. See OSWER Solid Waste Disposal Facility Criteria Technical Manual for MSWLFs (EPA530–R–93–017, 1993).21 The regulation does not include any consideration relating to current groundwater quality or potential future use of the aquifer EPA notes that, as with MSWLFs, this is not an appropriate factor for consideration under this provision. Further guidance for conducting these evaluations can be found in the OSWER Solid Waste Disposal Facility Criteria Technical Manual for MSWLFs (EPA530–R–93– 017, 1993), the Ground-Water Monitoring Guidance Document for Owners and Operators of Interim Status Facilities (1983),22 and OSWER Preparing No-Migration Demonstration for Municipal Solid Waste Disposal Facilities: A Screening Tool (EPA530– R–99–008 1999).23 D. Allow Participating State Directors or EPA Where EPA Is the Permitting Authority To Issue Certifications in Lieu of Requiring a PE Certification To ensure that the RCRA subtitle D requirements would achieve the statutory standard of ‘‘no reasonable probability of adverse effects on health and the environment’’ in the absence of regulatory oversight, the current CCR regulations require facilities to obtain third party certifications and to provide enhanced state and public notifications of actions taken to comply with the regulatory requirements. Specifically, in the final CCR rule EPA required numerous technical demonstrations made by the owner or operator be 21 USEPA OWSER ‘‘Solid Waste Disposal Facility Criteria Technical Manual for MSWLFs’’ (EPA530– R–93–017, 1993) can be found in the docket for this final rule. 22 USEPA ‘‘Ground-Water Monitoring Guidance for Owners and Operators of Interim Status Facilities’’ (1983) can be found in the docket for this final rule. 23 USEPA OWER ‘‘Preparing No-Migration Demonstrations for Municipal Solid Waste Disposal facilities: A Screening Tool’’ (EPA530–R–99–008, 1999 can be found in the docket for this rule. PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 36447 certified by a qualified professional engineer (PE) in order to provide verification of the facility’s technical judgments and to otherwise ensure that the provisions of the rule were properly applied. While EPA acknowledged that relying upon a third-party certification was not the same as relying upon a state or federal regulatory authority and was not expected to provide the same level of independence as a state permit program, the availability of meaningful third-party verification provided critical support that the rule would achieve the statutory standard, as it would provide a degree of control over a facility’s discretion in implementing the rule. However, the situation has changed with the passage of the WIIN Act, which offers the opportunity for State oversight under an approved permit program. To reflect that, EPA proposed that the regulations allow a ‘‘State Director,’’ the Director of a state with an approved CCR permit program (i.e., a ‘‘participating state’’), to certify that the regulatory criteria have been met in lieu of the exclusive reliance on a qualified PE. EPA expects that states will generally rely on the expertise of their own engineers to evaluate whether the technical criteria have been met. Alternatively, States might choose to retain the required certification by a qualified PE and use its own expertise to evaluate that certification. Finally, EPA noted that under the existing regulations, a facility may already rely on a certification provided by a qualified PE in a State agency, who reviews the facility actions as part of a purely State-law mandated process. Thus, EPA is confident that revising the regulation to authorize an approval from a Participating State Director will be at least as protective as the status quo under the existing regulations. To be clear an approved state may choose to provide certifications in lieu of a PE or may review and approve in addition to a PE. A participating state could also decide to solely rely on a certification by a facility’s PE which would be the status quo based on the current regulations. As a component of this proposal, EPA also proposed definitions of ‘‘State Director’’ and of a ‘‘participating state’’ in § 257.53. The definition made clear that these provisions were restricted to State Directors (or their delegates) with an approved CCR permit program. The definition also included EPA where EPA is the permitting authority (tribal lands and non-participating states). There are several changes to the proposed term of ‘‘State Director.’’ First, we are finalizing the term as ‘‘Participating State Director.’’ Currently E:\FR\FM\30JYR1.SGM 30JYR1 daltland on DSKBBV9HB2PROD with RULES 36448 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations there is a definition for State Director in 40 CFR 257.53 and EPA did not intend for our proposed definition to replace or amend the current definition. Therefore, we are finalizing the term ‘‘Participating State Director.’’ This language is used throughout the preamble and regulatory text accordingly. Furthermore, EPA received numerous comments on state directors issuing certifications. The majority of comments supported granting a State Director this authority. One comment received from ASTSWMO suggested removing EPA from the definition of State Director. ASTSWMO felt it was not appropriate to include EPA in the definition because intermingling the State and EPA would lead to confusion on their implementation roles in CCR permit programs, and EPA agrees. EPA has therefore removed the sentence about EPA from the definition of Participating State Director and generally added ‘‘or approval from EPA where EPA is the permitting authority’’ after Participating State Director throughout the regulations. The definition of Participating State Director has also been modified to reflect the statutory term of a ‘‘participating state’’ rather than the proposed term of ‘‘an approved state.’’ EPA has also adopted the proposed definition of a participating state, without modification. The final rule also incorporates the statutory definition of a non-participating state. Finally, the regulatory text has been amended in 39 places to incorporate this change. These changes can be seen in the amended regulation text. Except for the regulations relating to structural stability, which continue to require the certification of a PE in all circumstances, the regulations have been modified to add the approval of Participating State Director or the approval from EPA where EPA is the permitting authority as an acceptable alternative. The structural stability evaluations, such as the periodic factors of safety assessment, require the specific expertise of a PE. As previously noted, EPA expects that a state will generally rely on the expertise of its own engineers to evaluate whether the technical criteria have been met, but to avoid any confusion, these regulations will continue to require certification by a PE. A state may, of course, require the facility to also obtain its approval as part of its own permit program. E. Rationale for 30-Day Effective Date The effective date of this rule is 30 days after publication in the Federal Register. The Administrative Procedure Act (APA) provides that publication of VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 a substantive rule shall be made not less than 30 days before its effective date and that this provision applies in the absence of a specific statutory provision establishing an effective date. See 5 U.S.C. 553(d) and 559. EPA has determined there is no specific provision of RCRA addressing the effective date of regulations that would apply here, and thus the APA’s 30-day effective date applies. EPA has previously interpreted section 4004(c) of RCRA to generally establish a six-month effective date for rules issued under subtitle D. See 80 FR 37988, 37990. After further consideration, EPA interprets section 4004(c) to establish an effective date solely for the regulations that were required to be promulgated under subsection (a). Section 4004(c) is silent as to subsequent revisions to those regulations; EPA therefore believes section 4004(c) is ambiguous. Section 4004(c) states that the prohibition in subsection (b) shall take effect six months after promulgation of regulations under subsection (a). Subsection (a), in turn provides that ‘‘[n]ot later than one year after October 21, 1976 . . . [EPA] shall promulgate regulations containing criteria for determining which facilities shall be classified as sanitary landfills and which shall be classified as open dumps within the meaning of this chapter.’’ As noted, section 4004(c) is silent as to revisions to those regulations. In response to Congress’s mandate in section 4004(a), EPA promulgated regulations on September 13, 1979. 44 FR 53438. EPA interprets section 4004(c) to establish an effective date applicable only to that action, and not to future regulations the Agency might issue under this section. In the absence of a specific statutory provision establishing an effective date for this rule, APA section 553(d) applies. EPA considers that its interpretation is reasonable because there is no indication in RCRA or its legislative history that Congress intended for the agency to have less discretion under RCRA subtitle D than it would have under the APA to establish a suitable effective date for subsequent rules issued under section 4004(c). Consistent with EPA’s interpretation of the express language of section 4004, EPA interprets statements in the legislative history explaining that section 4004(c) provides that the effective date is to be 6 months after the date of promulgate of regulations, as referring to the initial set of regulations required by Congress to be promulgated not later than 1 year after October 21, 1976, and does not mandate a 6 month effective date for PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 every regulatory action that EPA takes under this section. This rule contains specific, targeted revisions to the 2015 rule and the legislative history regarding section 4004 speaks only to these initial 1976 mandated regulations. This reading allows the agency to establish an effective date appropriate for the nature of the regulation promulgated, which is what EPA believes Congress intended. EPA further considers that the minimum 30-day effective date under the APA is reasonable in this circumstance where none of the provisions being finalized require an extended period of time for regulated entities to comply. V. The Projected Economic Impacts of This Action A. Introduction EPA estimated the costs and benefits of this action in a Regulatory Impact Analysis (RIA) which is available in the docket for this action. The RIA estimates costs and cost savings attributable to the provisions of this action against the baseline costs and cost savings of the 2015 CCR final rule. The RIA estimates that the net annualized impact of these five provisions over a 100-year period of analysis will be cost savings of between $27.8 million and $31.4 million when discounting at 7 percent and cost savings between $15.5 million and $19.1 million when discounting at 3 percent. This action is not considered an economically significant action under Executive Order 12866. B. Affected Universe The universe of affected entities for this rule consists of the same entities affected by EPA’s 2015 CCR final rule. These entities are coal-fired electricity generating plants operated by the electric utility industry. They can be identified by their North American Industry Classification System (NAICS) designation 221112 ‘‘Fossil Fuel Electric Power Generation’’. The RIA estimates that there are 414 coal-fired electricity generating plants operating 922 CCR management units (landfills, disposal impoundments, and storage impoundments) that will be affected by this rule. C. Baseline Cost The baseline costs for this rule are the costs of compliance with EPA’s 2015 CCR final rule, as the provisions of this rule modify the provisions of the 2015 CCR final rule or modify the implementation of the 2015 CCR rule by WIIN Act participating states. The RIA for the 2015 CCR final rule estimated these costs at an annualized $509 E:\FR\FM\30JYR1.SGM 30JYR1 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations million when discounting at 7 percent and an annualized $735 million when discounting at 3 percent. daltland on DSKBBV9HB2PROD with RULES D. Cost Savings, Other Benefits, and Adjustments to the Baseline The RIA estimates costs and costs savings for two proposals concerning the compliance deadlines for certain aspects of the 2015 CCR rule, as well as the two alternative performance standards that will apply in participating states under the WIIN Act, and the revision of the GWPSs for the four constituents in Appendix IV to part 257 without MCLs. The RIA estimates that the net annualized impact of these five provisions over a 100-year period of analysis will be an annualized cost savings of between $27.8 million and $31.4 million when discounting at 7 percent, and an annualized cost savings of between $15.5 million and $19.1 million when discounting at 3 percent. The majority of cost savings attributable to the rule come from the provisions extending the date by which facilities must cease placing waste in CCR units. These provisions delay the large capital costs associated with ceasing to place waste in a unit. These capital costs include the cost of closure capping, post-closure monitoring, and converting to dry handling of CCR from wet handling. The RIA also presents the adjustments to the baseline costs of the CCR final rule due to plant closures that occurred after the rule was published but before the effective date of the rule. The RIA accompanying the 2015 CCR final rule assigned compliance costs to these plants, which they are exempt from because they closed before the final rule’s effective date. In all, 23 plants closed before the effective date of the final rule that were not accounted for in 2015 final rule RIA. The annualized compliance costs avoided for these plants equals between $21.4 million and $27.6 million per year when discounting at 7 percent and between $21.7 million and $32.4 million when discounting at 3 percent. This cost adjustment is detailed in the RIA that accompanies this rulemaking, however it is not factored into the baseline or the benefit estimates for this rule to keep comparisons with the 2015 CCR final rule straight forward. Also, the compliance costs not incurred by these plants would not be cost savings attributable to this rulemaking. VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 VI. Statutory and Executive Order (E.O.) Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. The EPA prepared an analysis of the potential costs and benefits associated with this action. This Regulatory Impact Analysis (RIA), entitled Regulatory Impact Analysis; EPA’s 2018 RCRA Final Rule; Disposal of Coal Combustion Residuals from Electric Utilities; Amendments to the National Minimum Criteria (Phase One), is summarized in Unit V of this preamble and the RIA is available in the docket for this final rule. B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs This action is considered an Executive Order 13771 deregulatory action. Details on the estimated cost savings of this final rule can be found in EPA’s analysis of the potential costs and benefits associated with this action. C. Paperwork Reduction Act (PRA) The information collection activities in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 1189.28, OMB control number 2050–0053. This is an amendment to the ICR approved by OMB for the Final Rule: Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities published April 17, 2015 in the Federal Register at 80 FR 21302. You can find a copy of the ICR in the docket for this action, and it is briefly summarized here. Respondents/affected entities: Coalfired electric utility plants that will be affected by the rule. Respondent’s obligation to respond: The recordkeeping, notification, and posting are mandatory as part of the minimum national criteria being promulgated under sections 1008, 4004, and 4005(a) of RCRA. Estimated number of respondents: 414. Frequency of response: The frequency of response varies. Total estimated burden: EPA estimates the total annual burden to respondents to be a reduction in burden PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 36449 of approximately 16,690 hours from the currently approved burden. Burden is defined at 5 CFR 1320.3(b). Total estimated cost: The total estimated annual cost of this rule is a cost savings of approximately $4,752,588. This cost savings is composed of approximately $1,045,091 in annualized avoided labor costs and $3,707,497 in avoided capital or operation and maintenance costs. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA’s regulations in 40 CFR are listed in 40 CFR part 9. D. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action is expected to result in net cost savings amounting to approximately $27.8 million per year to $31.4 million per year when discounting at 7 percent and annualized over 100 years. It is expected to result in net cost savings of between $15.5 million and $19.1 million when discounting at 3 percent and annualized over 100 years. Savings will accrue to all regulated entities, including small entities. Further information on the economic effects of this action can be found in Unit V of this preamble and in the Regulatory Impact Analysis, which is available in the docket for this action. We have therefore concluded that this action will relieve regulatory burden for all directly regulated small entities. E. Unfunded Mandates Reform Act (UMRA) This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. The costs involved in this action are imposed only by participation in a voluntary federal program. UMRA generally excludes from the definition of ‘‘federal intergovernmental mandate’’ duties that E:\FR\FM\30JYR1.SGM 30JYR1 36450 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations arise from participation in a voluntary federal program. F. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. daltland on DSKBBV9HB2PROD with RULES G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications as specified in Executive Order 13175. For the ‘‘Final Rule: Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities’’ published April 17, 2015 in the Federal Register at 80 FR 21302, EPA identified three of the 414 coalfired electric utility plants (in operation as of 2012) which are located on tribal lands; however, they are not owned by tribal governments. These are: (1) Navajo Generating Station in Coconino County, Arizona, owned by the Arizona Salt River Project; (2) Bonanza Power Plant in Uintah County, Utah, owned by the Deseret Generation and Transmission Cooperative; and (3) Four Corners Power Plant in San Juan County, New Mexico owned by the Arizona Public Service Company. The Navajo Generating Station and the Four Corners Power Plant are on lands belonging to the Navajo Nation, while the Bonanza Power Plant is located on the Uintah and Ouray Reservation of the Ute Indian Tribe. Under the WIIN Act, EPA is the permitting authority for CCR unites located in Indian Country. Moreover, since this action is expected to result in net cost savings to affected entities amounting to approximately $27.8 million per year to $31.4 million per year when discounting at 7 percent and annualized over 100 years, or in net cost savings of between $15.5 million per year and $19.1 million per year when discounting at 3 percent and annualized over 100 years, it will not have substantial direct effects on one or more Indian tribes. Thus, Executive Order 13175 does not apply to this action. H. Executive Order 13045: Protection of Children From Environmental Health Risk and Safety Risks This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 health or safety risks addressed by this action present a disproportionate risk to children. This action’s health and risk assessments are contained in the document titled ‘‘Human and Ecological Risk Assessment of Coal Combustion Residuals’’ which is available in the docket for the final rule as docket item EPA–HQ–RCRA–2009–0640–11993. As ordered by E.O. 13045 Section 1– 101(a), for the ‘‘Final Rule: Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities’’ published April 17, 2015 in the Federal Register at 80 FR 21302, EPA identified and assessed environmental health risks and safety risks that may disproportionately affect children in the revised risk assessment. The results of the screening assessment found that risks fell below the criteria when wetting and run-on/runoff controls required by the rule are considered. Under the full probabilistic analysis, composite liners required by the rule for new waste management units showed the ability to reduce the 90th percentile child cancer and noncancer risks for the groundwater to drinking water pathway to well below EPA’s criteria. Additionally, the groundwater monitoring and corrective action required by the rule reduced risks from current waste management units. I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use This action is not a ‘‘significant energy action’’ because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. For the 2015 CCR rule, EPA analyzed the potential impact on electricity prices relative to the ‘‘in excess of one percent’’ threshold. Using the Integrated Planning Model (IPM), EPA concluded that the 2015 CCR Rule may increase the weighted average nationwide wholesale price of electricity between 0.18 percent and 0.19 percent in the years 2020 and 2030, respectively. As the final rule represents a cost savings rule relative to the 2015 CCR rule, this analysis concludes that any potential impact on wholesale electricity prices will be lower than the potential impact estimated of the 2015 CCR rule; therefore, this final rule is not expected to meet the criteria of a ‘‘significant adverse effect’’ on the electricity markets as defined by Executive Order 13211. J. National Technology Transfer and Advancement Act (NTTAA) This rulemaking does not involve technical standards. PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, lowincome populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this decision is contained in EPA’s Regulatory Impact Analysis (RIA) for the CCR rule which is available in the docket for the 2015 CCR final rule as docket item EPA–HQ– RCRA–2009–0640–12034. EPA’s risk assessment did not separately evaluate either minority or low-income populations. However, to evaluate the demographic characteristics of communities that may be affected by the CCR rule, the RIA compares the demographic characteristics of populations surrounding coal-fired electric utility plants with broader population data for two geographic areas: (1) One-mile radius from CCR management units (i.e., landfills and impoundments) likely to be affected by groundwater releases from both landfills and impoundments; and (2) watershed catchment areas downstream of surface impoundments that receive surface water run-off and releases from CCR impoundments and are at risk of being contaminated from CCR impoundment discharges (e.g., unintentional overflows, structural failures, and intentional periodic discharges). For the population as a whole 24.8 percent belong to a minority group and 11.3 percent falls below the Federal Poverty Level. For the population living within one mile of plants with surface impoundments 16.1 percent belong to a minority group and 13.2 percent live below the Federal Poverty Level. These minority and low-income populations are not disproportionately high compared to the general population. The percentage of minority residents of the entire population living within the catchment areas downstream of surface impoundments is disproportionately high relative to the general population, i.e., 28.7 percent, versus 24.8 percent for the national population. Also, the percentage of the population within the catchment areas of surface impoundments that is below the Federal Poverty Level is disproportionately high compared with the general population, i.e., 18.6 percent versus 11.3 percent nationally. Comparing the population percentages of minority and low income E:\FR\FM\30JYR1.SGM 30JYR1 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations residents within one mile of landfills to those percentages in the general population, EPA found that minority and low-income residents make up a smaller percentage of the populations near landfills than they do in the general population, i.e., minorities comprised 16.6 percent of the population near landfills versus 24.8 percent nationwide and low-income residents comprised 8.6 percent of the population near landfills versus 11.3 percent nationwide. In summary, although populations within the catchment areas of plants with surface impoundments appear to have disproportionately high percentages of minority and low-income residents relative to the nationwide average, populations surrounding plants with landfills do not. Because landfills are less likely than impoundments to experience surface water run-off and releases, catchment areas were not considered for landfills. The CCR rule is risk-reducing with reductions in risk occurring largely within the surface water catchment zones around, and groundwater beneath, coal-fired electric utility plants. Since the CCR rule is riskreducing and this action does not add to risks, this action will not result in new disproportionate risks to minority or low-income populations. L. Congressional Review Act (CRA) This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 257 Environmental protection, Beneficial use, Coal combustion products, Coal combustion residuals, Coal combustion waste, Disposal, Hazardous waste, Landfill, Surface impoundment. Dated: July 17, 2018. Andrew R. Wheeler, Acting Administrator. daltland on DSKBBV9HB2PROD with RULES For the reasons set out in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as follows: PART 257—CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL FACILITIES AND PRACTICES 1. The authority citation for part 257 is revised to read as follows: ■ Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 6944(a), 6945(d); 33 U.S.C. 1345(d) and (e). VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 2. Section 257.53 is amended by adding the definitions of ‘‘Nonparticipating State’’, ‘‘Participating State’’, and ‘‘Participating State Director’’ in alphabetical order to read as follows: ■ § 257.53 * * * * * Nonparticipating State means a State— (1) For which the Administrator has not approved a State permit program or other system of prior approval and conditions under RCRA section 4005(d)(1)(B); (2) The Governor of which has not submitted to the Administrator for approval evidence to operate a State permit program or other system of prior approval and conditions under RCRA section 4005(d)(1)(A); (3) The Governor of which provides notice to the Administrator that, not fewer than 90 days after the date on which the Governor provides the notice to the Administrator, the State will relinquish an approval under RCRA section 4005(d)(1)(B) to operate a permit program or other system of prior approval and conditions; or (4) For which the Administrator has withdrawn approval for a permit program or other system of prior approval and conditions under RCRA section 4005(d)(1)(E). * * * * * Participating State means a state with a state program for control of CCR that has been approved pursuant to RCRA section 4005(d). Participating State Director means the chief administrative officer of any state agency operating the CCR permit program in a participating state or the delegated representative of the Participating State Director. If responsibility is divided among two or more state agencies, Participating State Director means the chief administrative officer of the state agency authorized to perform the particular function or procedure to which reference is made. * * * * * ■ 3. Section 257.60 is amended by revising paragraph (b) to read as follows: § 257.60 aquifer. Placement above the uppermost * * * * * (b) The owner or operator of the CCR unit must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the demonstration meets the PO 00000 Frm 00053 Fmt 4700 requirements of paragraph (a) of this section. * * * * * ■ 4. Section 257.61 is amended by revising paragraph (b) to read as follows: § 257.61 Definitions. Sfmt 4700 36451 Wetlands. * * * * * (b) The owner or operator of the CCR unit must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the demonstration meets the requirements of paragraph (a) of this section. * * * * * ■ 5. Section 257.62 is amended by revising paragraph (b) to read as follows: § 257.62 Fault areas. * * * * * (b) The owner or operator of the CCR unit must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the demonstration meets the requirements of paragraph (a) of this section. * * * * * ■ 6. Section 257.63 is amended by revising paragraph (b) to read as follows: § 257.63 Seismic impact zones. * * * * * (b) The owner or operator of the CCR unit must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the demonstration meets the requirements of paragraph (a) of this section. * * * * * ■ 7. Section 257.64 is amended by revising paragraph (c) to read as follows: § 257.64 Unstable areas. * * * * * (c) The owner or operator of the CCR unit must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the demonstration meets the requirements of paragraph (a) of this section. * * * * * ■ 8. Section 257.70 is amended by revising paragraphs (c)(2), (e), and (f) to read as follows: E:\FR\FM\30JYR1.SGM 30JYR1 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations § 257.70 Design criteria for new CCR landfills and any lateral expansion of a CCR landfill. * * * * * (c) * * * (2) The owner or operator must obtain certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority that the liquid flow rate through the lower component of the alternative composite liner is no greater than the liquid flow rate through two feet of compacted soil with a hydraulic conductivity of 1x10¥7 cm/sec. The hydraulic conductivity for the two feet of compacted soil used in the comparison shall be no greater than 1x10¥7 cm/sec. The hydraulic conductivity of any alternative to the two feet of compacted soil must be determined using recognized and generally accepted methods. The liquid flow rate comparison must be made using Equation 1 of this section, which is derived from Darcy’s Law for gravity flow through porous media. Where: Q = flow rate (cubic centimeters/second); A = surface area of the liner (squared centimeters); q = flow rate per unit area (cubic centimeters/ second/squared centimeter); k = hydraulic conductivity of the liner (centimeters/second); h = hydraulic head above the liner (centimeters); and t = thickness of the liner (centimeters). daltland on DSKBBV9HB2PROD with RULES * * * * * (e) Prior to construction of the CCR landfill or any lateral expansion of a CCR landfill, the owner or operator must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority that the design of the composite liner (or, if applicable, alternative composite liner) and the leachate collection and removal system meets the requirements of this section. (f) Upon completion of construction of the CCR landfill or any lateral expansion of a CCR landfill, the owner or operator must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority that the design of the composite liner (or, if applicable, alternative composite liner) and the leachate collection and removal VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 system have been constructed in accordance with the requirements of this section. * * * * * ■ 9. Section 257.71 is amended by revising paragraph (b) to read as follows: § 257.71 Liner design criteria for existing CCR surface impoundments. * * * * * (b) The owner or operator of the CCR unit must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority attesting that the documentation as to whether a CCR unit meets the requirements of paragraph (a) of this section is accurate. * * * * * ■ 10. Section 257.72 is amended by revising paragraphs (c) and (d) to read as follows: § 257.72 Liner design criteria for new CCR surface impoundments and any lateral expansion of a CCR surface impoundment. * * * * * (c) Prior to construction of the CCR surface impoundment or any lateral expansion of a CCR surface impoundment, the owner or operator must obtain certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority that the design of the composite liner or, if applicable, the design of an alternative composite liner complies with the requirements of this section. (d) Upon completion, the owner or operator must obtain certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority that the composite liner or if applicable, the alternative composite liner has been constructed in accordance with the requirements of this section. * * * * * ■ 11. Section 257.80 is amended by revising paragraph (b)(7) to read as follows: § 257.80 Air criteria. * * * * * (b) * * * (7) The owner or operator must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority that the initial CCR fugitive dust control plan, or any subsequent amendment of it, meets the requirements of this section. * * * * * PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 12. Section 257.81 is amended by revising paragraph (c)(5) to read as follows: ■ § 257.81 Run-on and run-off controls for CCR landfills. * * * * * (c) * * * (5) The owner or operator must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the initial and periodic run-on and run-off control system plans meet the requirements of this section. * * * * * ■ 13. Section 257.82 is amended by revising paragraph (c)(5) to read as follows: § 257.82 Hydrologic and hydraulic capacity requirements for CCR surface impoundments. * * * * * (c) * * * (5) The owner or operator must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the initial and periodic inflow design flood control system plans meet the requirements of this section. * * * * * ■ 14. Section 257.90 is amended by revising paragraph (a) and adding paragraph (g) to read as follows: § § 257.90 Applicability. (a) All CCR landfills, CCR surface impoundments, and lateral expansions of CCR units are subject to the groundwater monitoring and corrective action requirements under §§ 257.90 through 257.99, except as provided in paragraph (g) of this section. * * * * * (g) Suspension of groundwater monitoring requirements. (1) The Participating State Director or EPA where EPA is the permitting authority may suspend the groundwater monitoring requirements under §§ 257.90 through 257.95 for a CCR unit for a period of up to ten years, if the owner or operator provides written documentation that, based on the characteristics of the site in which the CCR unit is located, there is no potential for migration of any of the constituents listed in appendices III and IV to this part from that CCR unit to the uppermost aquifer during the active life of the CCR unit and the post-closure care period. This demonstration must be certified by a qualified professional E:\FR\FM\30JYR1.SGM 30JYR1 ER30JY18.002</GPH> 36452 daltland on DSKBBV9HB2PROD with RULES Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations engineer and approved by the Participating State Director or EPA where EPA is the permitting authority, and must be based upon: (i) Site-specific field collected measurements, sampling, and analysis of physical, chemical, and biological processes affecting contaminant fate and transport, including at a minimum, the information necessary to evaluate or interpret the effects of the following properties or processes on contaminant fate and transport: (A) Aquifer Characteristics, including hydraulic conductivity, hydraulic gradient, effective porosity, aquifer thickness, degree of saturation, stratigraphy, degree of fracturing and secondary porosity of soils and bedrock, aquifer heterogeneity, groundwater discharge, and groundwater recharge areas; (B) Waste Characteristics, including quantity, type, and origin; (C) Climatic Conditions, including annual precipitation, leachate generation estimates, and effects on leachate quality; (D) Leachate Characteristics, including leachate composition, solubility, density, the presence of immiscible constituents, Eh, and pH; and (E) Engineered Controls, including liners, cover systems, and aquifer controls (e.g., lowering the water table). These must be evaluated under design and failure conditions to estimate their long-term residual performance. (ii) Contaminant fate and transport predictions that maximize contaminant migration and consider impacts on human health and the environment. (2) The owner or operator of the CCR unit may renew this suspension for additional ten year periods by submitting written documentation that the site characteristics continue to ensure there will be no potential for migration of any of the constituents listed in Appendices III and IV of this part. The documentation must include, at a minimum, the information specified in paragraphs (g)(1)(i) and (g)(1)(ii) of this section and a certification by a qualified professional engineer and approved by the State Director or EPA where EPA is the permitting authority. The owner or operator must submit the documentation supporting their renewal request for the state’s or EPA’s review and approval of their extension one year before the groundwater monitoring suspension is due to expire. If the existing groundwater monitoring extension expires or is not approved, the owner or operator must begin groundwater monitoring according to paragraph (a) of this section within 90 VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 days. The owner or operator may continue to renew the suspension for ten-year periods, provided the owner or operator demonstrate that the standard in paragraph (g)(1) of this section continues to be met for the unit. The owner or operator must place each completed demonstration in the facility’s operating record. (3) The owner or operator of the CCR unit must include in the annual groundwater monitoring and corrective action report required by § 257.90(e) or § 257.100(e)(5)(ii) any approved no migration demonstration. ■ 15. Section 257.91 is amended by revising paragraph (f) to read as follows: 36453 * * * * (f) * * * (6) The owner or operator of the CCR unit must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the selected statistical method is appropriate for evaluating the groundwater monitoring data for the CCR management area. The certification must include a narrative description of the statistical method selected to evaluate the groundwater monitoring data. * * * * * ■ 17. Section 257.94 is amended by revising paragraphs (d)(3) and (e)(2) to read as follows: professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the demonstration for an alternative groundwater sampling and analysis frequency meets the requirements of this section. The owner or operator must include the demonstration providing the basis for the alternative monitoring frequency and the certification by a qualified professional engineer or the approval from the Participating State Director or approval from EPA where EPA is the permitting authority in the annual groundwater monitoring and corrective action report required by § 257.90(e). (e) * * * (2) The owner or operator may demonstrate that a source other than the CCR unit caused the statistically significant increase over background levels for a constituent or that the statistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. The owner or operator must complete the written demonstration within 90 days of detecting a statistically significant increase over background levels to include obtaining a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority verifying the accuracy of the information in the report. If a successful demonstration is completed within the 90-day period, the owner or operator of the CCR unit may continue with a detection monitoring program under this section. If a successful demonstration is not completed within the 90-day period, the owner or operator of the CCR unit must initiate an assessment monitoring program as required under § 257.95. The owner or operator must also include the demonstration in the annual groundwater monitoring and corrective action report required by § 257.90(e), in addition to the certification by a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority. * * * * * ■ 18. Section 257.95 is amended by revising paragraphs (c)(3), (g)(3)(ii), (h)(2) and (3) to read as follows: § 257.94 § 257.95 § 257.91 Groundwater monitoring systems. * * * * * (f) The owner or operator must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the groundwater monitoring system has been designed and constructed to meet the requirements of this section. If the groundwater monitoring system includes the minimum number of monitoring wells specified in paragraph (c)(1) of this section, the certification must document the basis supporting this determination. * * * * * ■ 16. Section 257.93 is amended by revising paragraph (f)(6) to read as follows: § 257.93 Groundwater sampling and analysis requirements. * Detection monitoring program. * * * * * (d) * * * (3) The owner or operator must obtain a certification from a qualified PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 Assessment monitoring program. * * * * * (c) * * * (3) The owner or operator must obtain a certification from a qualified E:\FR\FM\30JYR1.SGM 30JYR1 daltland on DSKBBV9HB2PROD with RULES 36454 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority stating that the demonstration for an alternative groundwater sampling and analysis frequency meets the requirements of this section. The owner or operator must include the demonstration providing the basis for the alternative monitoring frequency and the certification by a qualified professional engineer or the approval from the Participating State Director or the approval from EPA where EPA is the permitting authority in the annual groundwater monitoring and corrective action report required by § 257.90(e). * * * * * (g) * * * (3) * * * (ii) Demonstrate that a source other than the CCR unit caused the contamination, or that the statistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. Any such demonstration must be supported by a report that includes the factual or evidentiary basis for any conclusions and must be certified to be accurate by a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority. If a successful demonstration is made, the owner or operator must continue monitoring in accordance with the assessment monitoring program pursuant to this section, and may return to detection monitoring if the constituents in Appendix III and Appendix IV of this part are at or below background as specified in paragraph (e) of this section. The owner or operator must also include the demonstration in the annual groundwater monitoring and corrective action report required by § 257.90(e), in addition to the certification by a qualified professional engineer or the approval from the Participating State Director or the approval from EPA where EPA is the permitting authority. * * * * * (h) * * * (2) For the following constituents: (i) Cobalt 6 micrograms per liter (mg/ l); (ii) Lead 15 mg/l; (iii) Lithium 40 mg/l; and (iv) Molybdenum 100 mg/l. (3) For constituents for which the background level is higher than the levels identified under paragraphs (h)(1) and (h)(2) of this section, the background concentration. * * * * * VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 19. Section 257.96 is amended by revising paragraph (a) to read as follows: ■ § 257.96 Assessment of corrective measures. (a) Within 90 days of finding that any constituent listed in Appendix IV to this part has been detected at a statistically significant level exceeding the groundwater protection standard defined under § 257.95(h), or immediately upon detection of a release from a CCR unit, the owner or operator must initiate an assessment of corrective measures to prevent further releases, to remediate any releases and to restore affected area to original conditions. The assessment of corrective measures must be completed within 90 days, unless the owner or operator demonstrates the need for additional time to complete the assessment of corrective measures due to site-specific conditions or circumstances. The owner or operator must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority attesting that the demonstration is accurate. The 90-day deadline to complete the assessment of corrective measures may be extended for no longer than 60 days. The owner or operator must also include the demonstration in the annual groundwater monitoring and corrective action report required by § 257.90(e), in addition to the certification by a qualified professional engineer or the approval from the Participating State Director or the approval from EPA where EPA is the permitting authority. * * * * * ■ 20. Section 257.97 is amended by revising paragraph (a) to read as follows: § 257.97 Selection of remedy. (a) Based on the results of the corrective measures assessment conducted under § 257.96, the owner or operator must, as soon as feasible, select a remedy that, at a minimum, meets the standards listed in paragraph (b) of this section. This requirement applies in addition to, not in place of, any applicable standards under the Occupational Safety and Health Act. The owner or operator must prepare a semiannual report describing the progress in selecting and designing the remedy. Upon selection of a remedy, the owner or operator must prepare a final report describing the selected remedy and how it meets the standards specified in paragraph (b) of this section. The owner or operator must obtain a certification from a qualified professional engineer or approval from the Participating State Director or PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 approval from EPA where EPA is the permitting authority that the remedy selected meets the requirements of this section. The report has been completed when it is placed in the operating record as required by § 257.105(h)(12). * * * * * ■ 21. Section 257.98 is amended by revising paragraph (e) to read as follows: § 257.98 Implementation of the corrective action program. * * * * * (e) Upon completion of the remedy, the owner or operator must prepare a notification stating that the remedy has been completed. The owner or operator must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority attesting that the remedy has been completed in compliance with the requirements of paragraph (c) of this section. The report has been completed when it is placed in the operating record as required by § 257.105(h)(13). * * * * * ■ 22. Section 257.101 is amended by revising paragraphs (a)(1) and (b)(1) to read as follows: § 257.101 Closure or retrofit of CCR units. (a) * * * (1) Except as provided by paragraph (a)(3) of this section, if at any time after October 19, 2015, an owner or operator of an existing unlined CCR surface impoundment determines in any sampling event that the concentrations of one or more constituents listed in appendix IV of this part are detected at statistically significant levels above the groundwater protection standard established under § 257.95(h) for such CCR unit, within six months of making such determination or no later than October 31, 2020, whichever date is later, the owner or operator of the existing unlined CCR surface impoundment must cease placing CCR and non-CCR wastestreams into such CCR surface impoundment and either retrofit or close the CCR unit in accordance with the requirements of § 257.102. * * * * * (b) * * * (1)(i) Location standard under § 257.60. Except as provided by paragraph (b)(4) of this section, the owner or operator of an existing CCR surface impoundment that has not demonstrated compliance with the location standard specified in § 257.60(a) must cease placing CCR and non-CCR wastestreams into such CCR E:\FR\FM\30JYR1.SGM 30JYR1 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations unit no later than October 31, 2020, and close the CCR unit in accordance with the requirements of § 257.102. (ii) Location standards under §§ 257.61 through 257.64. Except as provided by paragraph (b)(4) of this section, within six months of determining that an existing CCR surface impoundment has not demonstrated compliance with any location standard specified in §§ 257.61(a), 257.62(a), 257.63(a), and 257.64(a), the owner or operator of the CCR surface impoundment must cease placing CCR and non-CCR wastestreams into such CCR unit and close the CCR unit in accordance with the requirements of § 257.102. * * * * * ■ 23. Section 257.102 is amended by revising paragraphs (b)(4), (d)(3)(iii), (f)(3), (g), (h), (k)(2)(iv), (k)(4) and (k)(6) to read as follows: § 257.102 Criteria for conducting the closure or retrofit of CCR units. daltland on DSKBBV9HB2PROD with RULES * * * * * (b) * * * (4) The owner or operator of the CCR unit must obtain a written certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority that the initial and any amendment of the written closure plan meets the requirements of this section. * * * * * (d) * * * (3) * * * (iii) The owner or operator of the CCR unit must obtain a written certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority that the design of the final cover system meets the requirements of this section. * * * * * (f) * * * (3) Upon completion, the owner or operator of the CCR unit must obtain a certification from a qualified professional engineer or approval from the Participating State Director or approval from EPA where EPA is the permitting authority verifying that closure has been completed in accordance with the closure plan specified in paragraph (b) of this section and the requirements of this section. (g) No later than the date the owner or operator initiates closure of a CCR unit, the owner or operator must prepare a notification of intent to close a CCR unit. The notification must include the certification by a qualified professional engineer or the approval VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 from the Participating State Director or the approval from EPA where EPA is the permitting authority for the design of the final cover system as required by § 257.102(d)(3)(iii), if applicable. The owner or operator has completed the notification when it has been placed in the facility’s operating record as required by § 257.105(i)(7). (h) Within 30 days of completion of closure of the CCR unit, the owner or operator must prepare a notification of closure of a CCR unit. The notification must include the certification by a qualified professional engineer or the approval from the Participating State Director or the approval from EPA where EPA is the permitting authority as required by § 257.102(f)(3). The owner or operator has completed the notification when it has been placed in the facility’s operating record as required by § 257.105(i)(8). (k) * * * (2) * * * (iv) The owner or operator of the CCR unit must obtain a written certification from a qualified professional engineer or an approval from the Participating State Director or an approval from EPA where EPA is the permitting authority that the activities outlined in the written retrofit plan, including any amendment of the plan, meet the requirements of this section. * * * * * (4) Upon completion, the owner or operator must obtain a written certification from a qualified professional engineer or an approval from the Participating State Director or an approval from EPA where EPA is the permitting authority verifying that the retrofit activities have been completed in accordance with the retrofit plan specified in paragraph (k)(2) of this section and the requirements of this section. * * * * * (6) Within 30 days of completing the retrofit activities specified in paragraph (k)(1) of this section, the owner or operator must prepare a notification of completion of retrofit activities. The notification must include the certification from a qualified professional engineer or an approval from the Participating State Director or an approval from EPA where EPA is the permitting authority has is required by paragraph (k)(4) of this section. The owner or operator has completed the notification when it has been placed in the facility’s operating record as required by § 257.105(j)(6). * * * * * PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 36455 24. Section 257.104 is amended by revising paragraphs (d)(1)(iii), (d)(4) and (e) to read as follows: ■ § 257.104 Post-closure care requirements. * * * * * (d) * * * (1) * * * (iii) A description of the planned uses of the property during the post-closure period. Post-closure use of the property shall not disturb the integrity of the final cover, liner(s), or any other component of the containment system, or the function of the monitoring systems unless necessary to comply with the requirements in this subpart. Any other disturbance is allowed if the owner or operator of the CCR unit demonstrates that disturbance of the final cover, liner, or other component of the containment system, including any removal of CCR, will not increase the potential threat to human health or the environment. The demonstration must be certified by a qualified professional engineer or approved by the Participating State Director or approved from EPA where EPA is the permitting authority, and notification shall be provided to the State Director that the demonstration has been placed in the operating record and on the owners or operator’s publicly accessible internet site. * * * * * (4) The owner or operator of the CCR unit must obtain a written certification from a qualified professional engineer or an approval from the Participating State Director or an approval from EPA where EPA is the permitting authority that the initial and any amendment of the written post-closure plan meets the requirements of this section. (e) Notification of completion of postclosure care period. No later than 60 days following the completion of the post-closure care period, the owner or operator of the CCR unit must prepare a notification verifying that post-closure care has been completed. The notification must include the certification by a qualified professional engineer or the approval from the Participating State Director or the approval from EPA where EPA is the permitting authority verifying that postclosure care has been completed in accordance with the closure plan specified in paragraph (d) of this section and the requirements of this section. The owner or operator has completed the notification when it has been placed in the facility’s operating record as required by § 257.105(i)(13). * * * * * E:\FR\FM\30JYR1.SGM 30JYR1 36456 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations * * * * (h) * * * (14) The demonstration, including long-term performance data, supporting the suspension of groundwater monitoring requirements as required by § 257.90(g). * * * * * ■ 26. Section 257.106 is amended by adding paragraph (h)(11) to read as follows: benefit years. Accordingly, HHS is issuing this final rule to allow charges to be collected and payments to be made for the 2017 benefit year. We hereby adopt the final rules set out in the publication in the Federal Register on March 23, 2012 and the publication in the Federal Register on March 8, 2016. DATES: These provisions of this final rule are effective on July 30, 2018. FOR FURTHER INFORMATION CONTACT: Abigail Walker, (410) 786–1725; Adam Shaw, (410) 786–1091; Jaya Ghildiyal, (301) 492–5149; or Adrianne Patterson, (410) 786–0686. SUPPLEMENTARY INFORMATION: § 257.106 I. Background 25. Section 257.105 is amended by adding paragraph (h)(14) to read as follows: ■ § 257.105 Recordkeeping requirements. * Notification requirements. * * * * * (h) * * * (11) Provide the demonstration supporting the suspension of groundwater monitoring requirements specified under § 257.105(h)(14). * * * * * ■ 27. Section 257.107 is amended by adding paragraph (h)(11) to read as follows: § 257.107 Publicly accessible internet site requirements. * * * * * (h) * * * (11) The demonstration supporting the suspension of groundwater monitoring requirements specified under § 257.105(h)(14). * * * * * [FR Doc. 2018–16262 Filed 7–27–18; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Part 153 [CMS–9920–F] RIN 0938–AT65 Adoption of the Methodology for the HHS-Operated Permanent Risk Adjustment Program Under the Patient Protection and Affordable Care Act for the 2017 Benefit Year Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS). ACTION: Final rule. AGENCY: This final rule adopts the risk adjustment methodology that HHS previously established for the 2017 benefit year. In February 2018, a district court vacated the use of statewide average premium as a basis for the HHSoperated risk adjustment methodology for the 2014, 2015, 2016, 2017, and 2018 daltland on DSKBBV9HB2PROD with RULES SUMMARY: VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 A. Legislative and Regulatory Overview The Patient Protection and Affordable Care Act (Pub. L. 111–148), was enacted on March 23, 2010; the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111–152) was enacted on March 30, 2010. These statutes are collectively referred to as ‘‘PPACA’’ in this final rule. Section 1343 of the PPACA established an annual permanent risk adjustment program under which payments are collected from health insurance issuers that enroll relatively low-risk populations, and payments are made to health insurance issuers that enroll relatively higher-risk populations. Consistent with section 1321(c)(1) of the PPACA, the Secretary is responsible for operating the risk adjustment program on behalf of any state that elected not to do so. For the 2017 benefit year, HHS is responsible for operation of the risk adjustment program in all 50 states and the District of Columbia. HHS sets the risk adjustment methodology that it uses in states that elect not to operate the program in advance of each benefit year through a notice-and-comment rulemaking process with the intention that issuers will be able to rely on the methodology to price their plans appropriately (45 CFR 153.320; 76 FR 41930, 41932 through 41933; 81 FR 94058, 94702 (explaining the importance of setting rules ahead of time and describing comments supporting that practice)). In the July 15, 2011 Federal Register (76 FR 41929), we published a proposed rule outlining the framework for the risk adjustment program. We implemented the risk adjustment program in a final rule, published in the March 23, 2012 Federal Register (77 FR 17219) (Premium Stabilization Rule). In the December 7, 2012 Federal Register (77 FR 73117), we published a proposed rule outlining the proposed Federally certified risk adjustment methodologies for the 2014 benefit year and other PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 parameters related to the risk adjustment program (proposed 2014 Payment Notice). We published the 2014 Payment Notice final rule in the March 11, 2013 Federal Register (78 FR 15409). In the June 19, 2013 Federal Register (78 FR 37032), we proposed a modification to the HHS-operated methodology related to community rating states. In the October 30, 2013, Federal Register (78 FR 65046), we finalized the proposed modification to the HHS-operated methodology related to community rating states. We published a correcting amendment to the 2014 Payment Notice final rule in the November 6, 2013 Federal Register (78 FR 66653) to address how an enrollee’s age for the risk score calculation would be determined under the HHS-operated risk adjustment methodology. In the December 2, 2013 Federal Register (78 FR 72321), we published a proposed rule outlining the Federally certified risk adjustment methodologies for the 2015 benefit year and other parameters related to the risk adjustment program (proposed 2015 Payment Notice). We published the 2015 Payment Notice final rule in the March 11, 2014 Federal Register (79 FR 13743). In the May 27, 2014 Federal Register (79 FR 30240), the 2015 fiscal year sequestration rate for the risk adjustment program was announced. In the November 26, 2014 Federal Register (79 FR 70673), we published a proposed rule outlining the proposed Federally certified risk adjustment methodologies for the 2016 benefit year and other parameters related to the risk adjustment program (proposed 2016 Payment Notice). We published the 2016 Payment Notice final rule in the February 27, 2015 Federal Register (80 FR 10749). In the December 2, 2015 Federal Register (80 FR 75487), we published a proposed rule outlining the Federally certified risk adjustment methodology for the 2017 benefit year and other parameters related to the risk adjustment program (proposed 2017 Payment Notice). We published the 2017 Payment Notice final rule in the March 8, 2016 Federal Register (81 FR 12204). In the September 6, 2016 Federal Register (81 FR 61455), we published a proposed rule outlining the Federally certified risk adjustment methodology for the 2018 benefit year and other parameters related to the risk adjustment program (proposed 2018 Payment Notice). We published the 2018 Payment Notice final rule in the December 22, 2016 Federal Register (81 FR 94058). E:\FR\FM\30JYR1.SGM 30JYR1

Agencies

[Federal Register Volume 83, Number 146 (Monday, July 30, 2018)]
[Rules and Regulations]
[Pages 36435-36456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16262]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2017-0286; FRL-9981-18-OLEM]
RIN 2050-AG88


Hazardous and Solid Waste Management System: Disposal of Coal 
Combustion Residuals From Electric Utilities; Amendments to the 
National Minimum Criteria (Phase One, Part One)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On April 17, 2015, the Environmental Protection Agency (EPA or 
the Agency) promulgated national minimum criteria for existing and new 
coal combustion residuals (CCR) landfills and existing and new CCR 
surface impoundments. In March 2018, EPA proposed a number of revisions 
to the 2015 CCR rule and requested comment on additional issues. In 
this rulemaking EPA is acting to finalize certain revisions to those 
criteria. First, EPA is adopting two alternative performance standards 
that either Participating State Directors in states with approved CCR 
permit programs (participating states) or EPA where EPA is the 
permitting authority may apply to owners and operators of CCR units. 
Second, EPA is revising groundwater protection standards (GWPS) for 
four constituents which do not have an established Maximum Contaminant 
Level (MCL). Finally, the Agency is extending the deadline by which 
facilities must cease the placement of waste in CCR units closing for 
cause in two situations: Where the facility has detected a 
statistically significant increase above a GWPS from an unlined surface 
impoundment; and where the unit is unable to comply with the aquifer 
location restriction. Provisions from the proposed rule that are not 
addressed in this rule will be addressed in a subsequent action.

DATES: This final rule is effective on August 29, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OLEM-2017-0286. The EPA has previously established 
a docket for the April 17, 2015, CCR final rule under Docket ID No. 
EPA-HQ-RCRA-2009-0640. All documents in the docket are listed in the 
https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, will 
be publicly available only in hard copy form. Publicly available docket 
materials are available either electronically at https://www.regulations.gov or in hard copy at the EPA Docket Center (EPA/DC), 
EPA WJC West Building, Room 3334, 1301 Constitution Ave. NW, 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding holidays. The telephone number 
for the Public Reading Room is (202) 566-1744, and the telephone number 
for the EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For information concerning this final 
rule, contact Kirsten Hillyer, Office of Resource Conservation and 
Recovery, Environmental Protection Agency, 5304P, Washington, DC 20460; 
telephone number: (703) 347-0369; email address: 
[email protected]. For more information on this rulemaking please 
visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Regulatory Action

    EPA is finalizing certain revisions to the 2015 regulations for the 
disposal of CCR in landfills and surface impoundments to: (1) Provide 
States with approved CCR permit programs under the Water Infrastructure 
Improvements for the Nation (WIIN) Act or EPA where EPA is the 
permitting authority the ability to use alternate performance 
standards; (2) revise the GWPS for four constituents in Appendix IV to 
part 257 \1\ for which maximum

[[Page 36436]]

contaminant levels (MCLs) under the Safe Drinking Water Act have not 
been established; and (3) provide facilities which are triggered into 
closure by the regulations additional time to cease receiving waste and 
initiate closure. This additional time will, among other things, better 
align the CCR rule compliance dates with the upcoming Effluent 
Limitations Guidelines and Standards Rule for the Steam Electric Power 
Generating Point Source Category (ELG rule). The ELG rule is currently 
scheduled to be proposed in December 2018 and finalized in December 
2019.
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    \1\ Unless other specified, all references to part 257 in this 
preamble are to title 40 of the Code of Federal Regulations (CFR).
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B. Summary of the Provisions of the Regulatory Action

    EPA is finalizing certain revisions to the regulations at 40 CFR 
part 257, subpart D. In the March 2018 proposal, the Agency proposed 
six alternative performance standards which participating states (i.e., 
those which have an EPA-approved CCR permit program under the WIIN Act) 
may adopt and sought comment on additional alternatives. This action 
finalizes two of the proposed alternative performance standards. These 
final revisions will allow a Participating State Director or EPA where 
EPA is the permitting authority to: (1) Suspend groundwater monitoring 
requirements if there is evidence that there is no potential for 
migration of hazardous constituents to the uppermost aquifer during the 
active life of the unit and post-closure care; and (2) issue technical 
certifications in lieu of the current requirement to have professional 
engineers issue certifications. The Agency is also finalizing a 
revision of the GWPSs for the four constituents in Appendix IV to part 
257 without MCLs, in place of background levels under Sec.  
257.95(h)(2).
    In the March 2018 proposal, the Agency also took comment on 
revisions to several provisions of the 2015 CCR rule. Of those proposed 
changes, the Agency is now revising the deadline by which two 
categories of CCR units closing for cause must initiate closure: (1) 
Where the facility has detected a statistically significant increase 
from an unlined surface impoundment above a GWPS; and (2) where the 
unit is unable to comply with the aquifer location restriction.
    Of particular note, in the March 2018 action, the Agency proposed 
four changes from the 2015 CCR rule associated with the settlement 
agreement entered on April 18, 2016, which resolved four claims brought 
by two sets of plaintiffs against the final CCR rule. See USWAG et al v 
EPA, No. 15-1219 (DC Cir. 2015). In this action, Agency will not be 
taking final action on any of the proposed amendments. As explained 
previously, provisions from the proposed rule that are not addressed in 
this action will be addressed in a subsequent rule-making action.
1. Severability
    EPA intends that the provisions of this rule be severable. In the 
event any individual provision or part of this rule is invalidated, EPA 
intends that this would not render the entire rule invalid, and that 
any provision that can continue to operate will be left in place.

II. General Information

A. Does this action apply to me?

    This rule applies to all CCR generated by electric utilities and 
independent power producers that fall within the North American 
Industry Classification System (NAICS) code 221112 and may affect the 
following entities: Electric utility facilities and independent power 
producers that fall under the NAICS code 221112. This discussion is not 
intended to be exhaustive, but rather provides a guide for readers 
regarding entities likely to be regulated by this action. This 
discussion lists the types of entities that EPA is now aware could 
potentially be regulated by this action. Other types of entities not 
described here could also be regulated. To determine whether your 
entity is regulated by this action, you should carefully examine the 
applicability criteria found in Sec.  257.50 of title 40 of the Code of 
Federal Regulations. If you have questions regarding the applicability 
of this action to a particular entity, consult the person listed in the 
FOR FURTHER INFORMATION CONTACT section.

B. What action is the Agency taking?

    EPA is finalizing the following: (1) A provision that authorizes 
the Participating State Director to issue certifications in lieu of a 
professional engineer (PE); (2) a provision that authorizes the 
Participating State Director to approve the suspension of groundwater 
monitoring if a ``no migration'' demonstration can be made; and (3) a 
revision of the GWPSs for the four constituents in Appendix IV to part 
257 without MCLs, in place of background levels under Sec.  
257.95(h)(2). In addition, the Agency is finalizing an extension to the 
deadline by which facilities must cease the placement of waste in CCR 
units closing for cause in two situations: (1) Where the facility has 
detected a statistically significant increase over the groundwater 
protection standard from an unlined surface impoundment; and (2) where 
the unit is unable to comply with the aquifer location restriction. 
Provisions from the proposed rule that are not addressed in this rule 
will be addressed in a subsequent rulemaking action.

C. What is the Agency's authority for taking this action?

    These regulations are established under the authority of sections 
1006(b)(1), 1008(a), 2002(a), 4004, and 4005(a) and (d) of the Solid 
Waste Disposal Act of 1970, as amended by the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA) and the Water Infrastructure 
Improvements for the Nation (WIIN) Act of 2016, 42 U.S.C. 6905(b)(1), 
6907(a), 6912(a), 6944, and 6945(a) and (d). These authorities are 
discussed in more detail in Section III.C of this preamble.

D. What are the incremental costs and benefits of this action?

    This action is expected to result in net cost savings amounting to 
between $27.8 million and $31.4 million per year when discounting at 7 
percent and annualized over 100 years. It is expected to result in net 
cost savings of between $15.5 million and $19.1 million per year when 
discounting at 3 percent and annualized over 100 years. Further 
information on the economic effects of this action can be found in 
Section V of this preamble.

III. Background

A. The ``2015 CCR Rule'' and the March 2018 Proposal

    On April 17, 2015, EPA finalized national minimum criteria for the 
disposal of CCR as solid waste under Subtitle D of the Resource 
Conservation and Recovery Act (RCRA) titled, ``Hazardous and Solid 
Waste Management System; Disposal of Coal Combustion Residuals from 
Electric Utilities,'' (80 FR 21302) (CCR rule). The CCR rule regulated 
existing and new CCR landfills and existing and new CCR surface 
impoundments and all lateral expansions of CCR units. It is codified in 
subpart D of part 257 of Title 40 of the Code of Federal Regulations. 
The criteria consist of location restrictions, design and operating 
criteria, groundwater monitoring and corrective action requirements, 
closure and post-closure care requirements, and record keeping, 
notification and internet posting requirements. These criteria were 
designed to be self-implementing. The rule also required any existing 
unlined CCR surface impoundment that is contaminating groundwater above 
a

[[Page 36437]]

regulated constituent's groundwater protection standard to stop 
receiving wastes and either retrofit or close, except in certain 
circumstances.
    The rule was challenged by several parties, including a coalition 
of regulated entities and a coalition of environmental organizations. 
See, USWAG et al. v. EPA, No. 15-1219 (D.C. Cir. 2015). Four of the 
claims, a subset of the provisions challenged by the industry and 
environmental Petitioners, were settled. The rest were briefed and are 
currently pending before the U.S. Court of Appeals for the D.C. 
Circuit, awaiting resolution. On November 7, 2017, EPA sought remand 
without vacatur of five additional subsections of the rule on the 
grounds that EPA intended to reconsider those provisions. That request 
is also pending before the court.
    The WIIN Act, which amends Section 4005 of the Resource 
Conservation and Recovery Act (RCRA), was enacted in 2016 to provide 
EPA additional authorities including the authority to review and 
approve state CCR permit programs. It also requires EPA to establish 
and carry out a permit program for CCR units in Indian Country, and for 
units in nonparticipating States, to achieve compliance with the 
current CCR rule or successor regulations. The WIIN Act provided that 
EPA may use its information gathering and enforcement authorities under 
RCRA sections 3007 and 3008 to enforce the CCR rule or permit 
provisions.
    On September 13, 2017, EPA granted petitions from the Utility Solid 
Waste Activities Group (USWAG) and AES Puerto Rico LLP, requesting the 
Agency initiate rulemaking to reconsider provisions of the 2015 final 
rule.\2\ EPA determined that it was appropriate and in the public 
interest to reconsider provisions of the final rule addressed in the 
petitions, in light of the issues raised in the petitions as well as 
the new authorities in the WIIN Act.
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    \2\ A copy of both rulemaking petitions are included in the 
docket to this final rule.
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    In October 2017, the D.C. Circuit Court of Appeals directed EPA to 
file a status report with the court indicating its schedule for 
addressing issues contained in the petitions for reconsideration. In 
the status report filed in November 2017, EPA stated that it 
anticipated it would complete its reconsideration of all provisions in 
two phases. The first phase would be proposed in March 2018 and 
finalized no later than June 2019 and the second phase would be 
proposed no later than September 30, 2018 and finalized no later than 
December 2019. EPA indicated that in the first phase, the March 2018 
proposal, EPA would continue its process with respect to those 
provisions which were remanded back to EPA in June 2016. These are: (1) 
Requirements for use of vegetation as slope protection; (2) provisions 
to clarify the type and magnitude of non-groundwater releases that 
would require a facility to comply with some or all of the corrective 
action procedures set out in Sec. Sec.  257.96 through 257.98; and (3) 
the addition of Boron to the list of constituents in Appendix IV of 
part 257, the detection of which triggers assessment monitoring and 
corrective action requirements. EPA's March 2018 action contained 
proposals covering these remanded provisions.
    In March 2018, EPA also proposed certain provisions that would 
allow the approval of alternative performance standards by 
Participating State Directors. These proposed alternative performance 
standards would allow a state with an approved permit program or EPA 
to: (1) Use an alternative risk-based GWPS for Appendix IV constituents 
where no MCL exists; (2) modify the corrective action remedy in certain 
cases; (3) suspend groundwater monitoring requirements if a ``no 
migration'' demonstration can be made; (4) establish an alternate 
period of time to demonstrate compliance with the corrective action 
remedy; (5) modify the post-closure care period; and (6) allow 
Participating State Directors to issue technical certifications in lieu 
of the current requirement to have professional engineers issue 
certifications. For Tribal lands and in non-participating states where 
Congress has specifically provided appropriations for EPA, the proposal 
defined ``State Director'' to mean the ``EPA Administrator or their 
designee''. EPA also requested comment on potential revisions to 
several other provisions of the CCR rule and on other issues.
    One topic EPA took comment on in the March 2018 proposed rule was 
on the groundwater monitoring compliance dates and if 90-days was a 
sufficient amount of time. While the Agency is not taking any final 
action on this topic in this action, EPA wishes to ensure that all 
parties understand the current rule and the relevant implementation 
deadlines. The Agency responded to a letter from the Utility Solid 
Waste Activities Group clarifying the deadlines and timeframes related 
to detection monitoring and the necessary statistical analysis for the 
groundwater monitoring.\3\ EPA clarified that the alternate source 
demonstration in detection monitoring (Sec.  257.94(e)(2)) does not run 
concurrently with the 90-day time frame in Sec.  257.94(e)(1) or Sec.  
257.95(b). EPA also clarified that, assuming a facility elected to take 
advantage of the 90-day option in Sec.  257.94(e)(2) [to demonstrate 
that a source other than the CCR unit is the source of contamination], 
January 14, 2019 as the deadline for facilities to make their initial 
determination of whether there has been the detection of a 
statistically significant increase of an Appendix IV constituent above 
the relevant groundwater protection standard in the downgradient wells. 
EPA noted that conducting the statistical analysis on two sets of 
sampling occurs only in this first round of assessment monitoring. All 
other statistical analyses on subsequent rounds of on-going semi-annual 
or annual sampling under assessment monitoring must be conducted 
following the single set of samples obtained during that sampling 
event.
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    \3\ EPA responded to USWAG in letters dated January 26, 2018 and 
April 30, 2018.
---------------------------------------------------------------------------

    EPA is taking final action on certain provisions in this 
rulemaking: (1) Allowing a Participating State Director to issue 
certifications in lieu of a professional engineer (PE); (2) allowing a 
Participating State Director to approve the suspension of groundwater 
monitoring if a demonstration of ``no migration'' can be made; and (3) 
establishing alternative GWPSs for four Appendix IV constituents 
without MCLs in place of the background levels required under Sec.  
257.95(h)(2). In addition, the Agency is extending the deadline by 
which facilities must cease the placement of waste in CCR units closing 
for cause in two situations: (1) Where the facility has detected a 
statistically significant increase over the GWPS from an unlined 
surface impoundment; and (2) where the unit is unable to comply with 
the aquifer location restriction. Provisions in the proposed rule that 
are not addressed in this rulemaking will be addressed in a subsequent 
rulemaking.

B. Comments Received on the Proposed Rule

    The agency received over 160,000 comments on the proposed rule. The 
majority of commenters focused on the four provisions remanded back to 
the Agency in 2016, as well as the six provisions proposed in response 
to passage of the WIIN Act. A number of commenters argued that no 
revisions were necessary to the April 2015 final CCR rule.
    The areas on which EPA received the most substantial industry and 
state comments were: Support for the

[[Page 36438]]

establishment of risk-based alternative GWPSs for constituents that do 
not have an MCL, support for the extension of compliance deadlines, 
support for modification of the alternative closure provisions, and 
allowing certifications by a Participating State Director in lieu of a 
PE. Most of the environmental organizations and individual citizens 
commented that the proposals would decrease protection of human health 
and the environment, especially if the facilities allow CCR units to 
leak contaminants into groundwater. Other comments related to topics 
that will be discussed in future rulemaking actions. Discussions of the 
specific comments germane to this rulemaking are provided in the 
relevant sections of this rule.
1. Public Hearing
    EPA conducted a public hearing on April 24, 2018, in Arlington, VA. 
There were 79 speakers and a total of 120 registered attendees. 
Testimony at the public hearing focused generally on the proposed 
amendments of allowing the use of alternative performance standards. 
Several speakers commented on: Allowing alternate performance standards 
for the groundwater protection standards where no MCL is established, 
allowing Participating State Directors to issue certifications in lieu 
of a PE, and the overall risks, especially health risks, related to 
CCR. In addition to the testimonies that were entered into the 
rulemaking record, over 25 additional documents were submitted in hard 
copy and entered into the docket (see EPA-HQ-OLEM-2017-0286).

C. Statutory Authority

    RCRA section 1006(b)(1) directs EPA to integrate the provisions of 
RCRA for purposes of administration and enforcement and to avoid 
duplication, to the maximum extent practicable, with the appropriate 
provisions of other EPA statutes. Section 1006(b) conditions EPA's 
authority to reduce or eliminate RCRA requirements on the Agency's 
ability to demonstrate that the integration can be done in a manner 
consistent with the goals and policies expressed in the chapter and in 
the other acts referred to in this subsection. 42 U.S.C. 6005(b)(1). 
See Chemical Waste Management v. EPA, 976 F.2d 2, 23, 25 (D.C. Cir. 
1992).
    RCRA section 1008(a) authorizes EPA to publish ``suggested 
guidelines for solid waste management.'' 42 U.S.C. 6907(a). RCRA 
defines solid waste management as ``the systematic administration of 
activities which provide for the collection, source separation, 
storage, transportation, transfer, processing, treatment, and disposal 
of solid waste.'' 42 U.S.C. 6903(28).
    Pursuant to section 1008(a)(3), the guidelines are to include the 
minimum criteria to be used by the states to define the solid waste 
management practices that constitute the open dumping of solid waste or 
hazardous waste and are prohibited as ``open dumping'' under section 
4005. Only those requirements promulgated under the authority of 
section 1008(a)(3) are enforceable under section 7002 of RCRA.
    RCRA section 4004(a) generally requires EPA to promulgate 
regulations containing criteria for determining which facilities shall 
be classified as sanitary landfills (and therefore not ``open dumps''). 
The statute directs that, ``at a minimum, the criteria are to ensure 
that units are classified as sanitary landfills only if there is no 
reasonable probability of adverse effects on health or the environment 
from disposal of solid wastes at such facility.'' 42 U.S.C. 6944(a).
    RCRA section 4005(a), entitled ``Closing or upgrading of existing 
open dumps'' generally establishes the key implementation and 
enforcement provisions applicable to EPA regulations issued under 
sections 1008(a) and 4004(a). Specifically, this section prohibits any 
solid waste management practices or disposal of solid waste that does 
not comply with EPA regulations issued under RCRA section 1008(a) and 
4004(a). 42 U.S.C. 6944(a). See also 42 U.S.C. 6903(14) (definition of 
``open dump''). As a general matter, this means that facilities must be 
in compliance with any EPA rules issued under section 4004(a) or be 
subject to suit for ``open dumping'' 42 U.S.C. 6945. RCRA section 4005 
also directs that open dumps, i.e., facilities out of compliance with 
EPA's criteria, must be ``closed or upgraded''.
    RCRA section 4005(d) provides that States may submit a program to 
EPA for approval, and permits issued pursuant to the approved state 
permit program operate in lieu of the Federal requirements 42 U.S.C. 
6945(d)(1)(A). To be approved, a State program must require each CCR 
unit to achieve compliance with the part 257 regulations (or successor 
regulations) or alternative State criteria that EPA has determined are 
``at least as protective as'' the part 257 regulations (or successor 
regulations). State permitting programs may be approved in whole or in 
part [42 U.S.C. 6945(d)(1)(B)]. States with approved CCR permitting 
programs are considered ``participating states''.
    In states without an approved program, EPA is to issue permits, 
subject to the availability of appropriations specifically provided to 
carry out this requirement 42 U.S.C. 6945(d)(2)(B). The FY 2018 Omnibus 
Appropriations Act provided $6 million to EPA for the purpose of 
developing and implementing a Federal permit program for the regulation 
of CCR in nonparticipating states. Public Law 115-141. In addition, EPA 
is the permitting authority for CCR units in Indian Country. The 
statute expressly provides that facilities are to continue to comply 
with the CCR rule or successor regulations until a permit (issued 
either by an approved state or by EPA) is in effect for that unit 42 
U.S.C. 6945(d)(3), (6).

IV. What amendments is EPA finalizing?

    During the rulemaking process for the 2015 CCR rule, EPA received 
numerous comments requesting that EPA authorize state permit programs 
and adopt alternative performance standards that would allow state 
regulators or facilities to ``tailor'' the requirements to particular 
site-specific conditions. Many requested EPA adopt particular 
alternative performance standards found in EPA's municipal solid waste 
landfill (MSWLF) regulations in 40 CFR part 258. \4\ Although the CCR 
rule was largely modeled on the MSWLF regulations, as explained in both 
the 2010 proposed and 2015 final rules, under the statutory provisions 
relevant to the CCR rule, EPA lacked the authority to establish a 
program analogous to part 258, which relies on approved states to 
implement the federal criteria through a permitting program. See, e.g., 
80 FR 21332-21334. In the absence of a state oversight mechanism to 
ensure that alternative standards would be appropriate, EPA concluded 
at that time it could not adopt many of the ``more flexible'' 
performance standards in part 258 that commenters requested. Id at 
21333.
---------------------------------------------------------------------------

    \4\ Unless other specified, all references to part 258 of this 
preamble are to title 40 of the Code of Federal Regulations (CFR).
---------------------------------------------------------------------------

    However, in 2016, Congress, with the passage of the WIIN Act, 
amended RCRA to establish a permitting scheme, analogous to that 
established for MSWLFs. Under these new provisions, States may now 
apply to EPA for approval to operate a permit program to implement the 
CCR rule. As part of that process, a State program may also include 
alternative State standards, provided EPA has determined they are ``at 
least as protective as'' the CCR regulations in 40 CFR part 257. 42 
U.S.C. 6945(d)(1)(B), 6945(d)(1)(C).

[[Page 36439]]

    In light of the WIIN Act, EPA examined the existing 40 CFR part 258 
regulations to evaluate the performance standards that rely on a state 
permitting authority, to determine whether any of them could now be 
incorporated into the part 257 CCR regulations. To develop the proposed 
rule, EPA evaluated whether there was sufficient evidence in the record 
for those regulations to support incorporating either the part 258 
MSWLF provision or an analogue into the part 257 CCR regulations.
    Based on the results of this evaluation, EPA proposed to adopt six 
alternative performance standards modeled after part 258, which would 
allow a Participating State Director to: (1) Establish alternative 
risk-based GWPS for constituents where no MCL exists; (2) Modify the 
corrective action remedy in certain cases; (3) Suspend groundwater 
monitoring requirements if a ``no migration'' demonstration can be 
made; (4) Establish an alternate period of time to demonstrate 
compliance with the corrective action remedy; (5) Modify the post-
closure care period; and (6) Issue technical certifications in lieu of 
a professional engineers. Under the proposal, EPA would have the same 
authority to establish alternative performance standards in non-
participating states, subject to appropriations, and in Tribal Country, 
as a Participating State Director would. EPA explained that these 
alternative performance standards were modeled after part 258 
provisions in the MSWLF regulations that appeared to have been adopted 
based solely on a finding that they would protect human health and the 
environment; EPA believed that the facts supporting those original 
determinations would also support a finding that the provisions met the 
standard under RCRA section 4004(a).
    EPA received a number of comments on this overall approach. Several 
commenters agreed that the record supporting any of the current 
provisions under the part 258 regulations would support revisions to 
the part 257 regulations. EPA also received comments stating that the 
proposed alternative protection standards failed to satisfy the 
requirements of RCRA section 4004(a). These commenters claimed that the 
record on which the proposals had relied was inadequate. Specifically, 
the commenters argued that EPA had in fact considered facilities' 
``practicable capability in developing every provision of the rule, and 
so none were based exclusively on addressing the risks to health and 
the environment. These commenters also criticized the risk assessment 
conducted to support the part 258 regulations, claiming that it failed 
to consider the risks to sensitive subpopulations, that the only impact 
it evaluated was the risk to human health from drinking MSWLF-
contaminated groundwater, and only if drinking water wells were within 
one mile of the MSWLF, and that in any event the characteristics of 
(and therefore the risks posed by) MSWLF and CCR units are very 
different. These commenters also argued that EPA could not rely on the 
2014 risk assessment conducted for the CCR rule to support the 
proposals without first evaluating whether the assumptions in that 
assessment are consistent with the results of the recently conducted 
groundwater monitoring, which they claim shows that the groundwater at 
almost all facilities is contaminated by at least one of the 
constituents in Appendix IV.
    EPA is continuing to evaluate a number of technical issues raised 
in the comments. At the same time, the Agency recognizes the need to 
begin to implement the WIIN Act and to facilitate the transition to 
regulation of CCR through permit programs in a timely manner in order 
to address the urgent concerns presented by facilities that are faced 
with criteria that may be subject to change through this and other 
rulemaking actions and quickly approaching compliance deadlines that 
may require substantial investments and impact operational decision-
making. EPA is also mindful that States are in the process of 
considering whether to seek approval or their regulatory programs, and 
in some cases, are in the process of developing those programs; greater 
certainty regarding the kinds of provisions that EPA currently has the 
record to approve would consequently be highly desirable in order to 
effectuate the purpose behind the WIIN Act. Accordingly, while EPA 
continues to evaluate the concerns raised regarding the 1991 and 2014 
risk assessments, the Agency is finalizing at this time a select number 
of provisions that either do not rely on those materials for support to 
meet the standard in RCRA section 4004(a) or rely on portions that are 
not implicated by the technical issues under consideration.
    EPA is adopting two of the proposals modeled after the existing 
provisions in 40 CFR part 258: (1) The Participating State Director may 
suspend groundwater monitoring requirements if there is evidence that 
there is no potential for migration of hazardous constituents to the 
uppermost aquifer during the active life of the unit and the post-
closure care period; and (2) The Participating State Director may 
decide to certify that certain regulatory criteria have been met in 
lieu of the exclusive reliance on a qualified PE. EPA is also adopting 
revised GWPS for constituents without a MCL under Sec.  257.95(h)(2). 
After consideration of comments received, EPA has set risk-based values 
using the methodology discussed in the proposal. In addition, the 
Agency is finalizing an extension to the deadline by which facilities 
must cease the placement of waste in CCR units closing for cause in two 
situations: (1) Where the facility has detected a statistically 
significant increase over the groundwater protection standard from an 
unlined surface impoundment; and (2) where the unit is unable to comply 
with the aquifer location restriction. Further discussion of these 
comments received on these provisions and the bases on which EPA is 
adopting them is in their respective sections of this preamble.
    For any of the proposed performance standards, EPA requested 
comment on whether the facility or owner operator should be required to 
post the specific details of the modification of the performance 
standard to the facility's publicly accessible website or require any 
other recordkeeping options. Based on comments received, and to 
maintain transparency facilities with a site-specific performance 
standard, such as suspending groundwater monitoring in the event a no 
migration demonstration can be made, EPA is requiring posting of 
specific details of the modification to a publicly accessible website. 
This is discussed further below.

A. Extension to Certain Deadlines for the Closure or Retrofit of 
Existing CCR Surface Impoundments

    The CCR rule requires existing CCR surface impoundments and 
landfills to cease receiving waste and initiate closure under certain 
circumstances. For existing CCR surface impoundments, these situations 
include unlined CCR surface impoundments whose groundwater monitoring 
shows an exceedance of a GWPS (Sec.  257.101(a)(1)); CCR surface 
impoundments that do not comply with the location criteria (Sec.  
257.101(b)(1)); and CCR surface impoundments that are not designed and 
operated to achieve minimum safety factors (Sec.  257.101(b)(2)). The 
current CCR regulations also require existing CCR landfills that do not 
comply with the location criteria for unstable areas to close (Sec.  
257.101(d)(1)). In all of these situations, also referred to as 
``closure for cause'' in the preamble to 2015 CCR final rule, the 
current CCR regulations specify that the owner or operator of the

[[Page 36440]]

unit must cease placing any waste into the CCR unit and initiate 
closure activities within six months of making the relevant 
determination that the CCR unit must close.
    After considering comments received in response to the March 15, 
2018 proposed rule, as well as information in the rulemaking petitions 
submitted by USWAG and AES Puerto Rico,\5\ the agency finds it 
appropriate to finalize an extension to the deadline by when owners or 
operators must cease the placement of waste in existing CCR surface 
impoundments closing for cause in two situations. The two situations 
include the deadlines applicable to: (1) Existing CCR surface 
impoundments that are unable to comply with the location restriction 
regarding placement above the uppermost aquifer; and (2) Existing 
unlined CCR surface impoundments whose groundwater monitoring shows an 
exceedance of a groundwater protection standard. The agency is not at 
this time making any revisions to the other deadlines that apply to 
existing CCR surface impoundments or to any of the deadline 
requirements that apply to new and existing CCR landfills and new CCR 
surface impoundments. The two subunits below explain the approach and 
rationale for the amendments to certain deadlines for these two 
situations.
---------------------------------------------------------------------------

    \5\ ``Utility Solid Waste Activities Group Petition for 
Rulemaking to Reconsider Provisions of the Coal Combustion Residuals 
Rule, 80 FR 21302 (April 17, 2015), and Request to Hold in Abeyance 
Challenge to Coal Combustion Residual Rule, No. 15-1219, et al. 
(D.C. Cir.)'' dated May 12, 2017; and ``AES Puerto Rico LP's 
Petition for Rulemaking to Reconsider Provisions of the Coal 
Combustion Residuals Rule, 80 FR 21302 (April 17, 2015), and Request 
to Hold in Abeyance Challenge to the Coal Combustion Residuals Rule, 
No. 15-1219, et al. (D.C. Cir.)'' dated May 31, 2017.
---------------------------------------------------------------------------

1. Revision of Sec.  257.101(b)(1) Regarding the Deadline for Waste 
Placement and Closure of Existing Surface Impoundments That Fail To 
Demonstrate Compliance With a Location Standard
    In the March 15, 2018 proposed rule, EPA solicited public comment 
on whether the deadlines to comply with the location restrictions at 
Sec. Sec.  257.60 through 257.64 are appropriate in light of the WIIN 
Act (83 FR 11598). The Agency sought comment on whether an alternative 
deadline, either through a permit program established under the WIIN 
Act or one that applies directly to the facility itself during an 
interim period, would be more appropriate to facilitate implementation 
of the WIIN Act. Owners and operators of existing CCR surface 
impoundments must complete the required demonstrations for five 
location restrictions \6\ no later than October 17, 2018.\7\ An owner 
or operator that fails to complete any one of the demonstrations by the 
deadline would trigger the closure requirements of Sec.  257.101(b)(1), 
which requires the owner or operator of the unit to cease placing CCR 
and non-CCR wastestreams into the impoundment and close the impoundment 
in accordance with the closure provisions of the regulations.
---------------------------------------------------------------------------

    \6\ The five location restrictions are placement above the 
uppermost aquifer, wetlands, fault areas, seismic impact zones, and 
unstable areas.
    \7\ Inactive CCR surface impoundments are subject to a different 
deadline as specified in Sec.  257.100(e)(2).
---------------------------------------------------------------------------

    EPA received numerous comments regarding the current deadlines 
associated with the location restrictions. Many commenters stated their 
support for extending the current deadlines to complete the required 
demonstrations for the location restrictions and, in particular, the 
location restriction for placement above the uppermost aquifer. These 
commenters stated that deadline extensions would allow time for both 
the proper implementation of the WIIN Act and the finalization of other 
substantive CCR rule revisions contemplated in the March 15, 2018 
proposal, and would be consistent with the standard in RCRA section 
4004(a), while limiting facilities' expenditure of significant 
resources and avoiding the initiation of irreversible operational 
changes, including the forced closure of impoundments (and potentially 
the power plants themselves) under the current compliance deadlines. 
Commenters also stated that extensions of the location restriction 
deadlines is necessary to ensure alignment of key implementation and 
operational decisions under the CCR rule with EPA's schedule for 
issuing revisions to the effluent limitations guidelines (ELGs) and 
pretreatment standards for the Steam Electric Power Generating Point 
Source Category.\8\ Some commenters recommended that the deadline for 
determining whether existing impoundments meet the aquifer separation 
location restriction should be keyed to a specific time following EPA's 
issuance of a final rule allowing for an alternative risk-based option 
for meeting this location restriction. Other commenters supported 
extending deadlines until after EPA finalizes the amendments 
contemplated in the March 15, 2018 proposal and states have time to 
adopt the rule revisions into their state regulations. Some commenters 
suggested that deadlines be extended a specific amount of time 
following the effective date of a final rule or to specific dates. 
These commenters recommended extensions ranging from 120 days to 12 
months from the final rule's effective date and, while other commenters 
suggested deadlines be extended until November 2020. At a minimum, 
these commenters stated that EPA should extend the timeline related to 
the obligation to enter into forced closure under Sec.  257.101. 
Finally, commenters stated that it is common practice for an agency to 
extend regulatory deadlines in circumstances where a regulation is 
under reconsideration.
---------------------------------------------------------------------------

    \8\ On May 2, 2018, EPA issued the Final 2016 Effluent 
Guidelines Program Plan (83 FR 19281), which identifies new or 
existing industrial categories selected for effluent guidelines 
rulemakings and provides a schedule for such rulemakings. This 2016 
Program Plan discusses that, in August 2017, EPA announced a 
rulemaking to potentially revise certain standards for existing 
sources in the Steam Electric Power Generating Point Source 
Category. The 2016 Program Plan also projects a schedule for such 
rulemaking, including a proposed rule in December 2018 and a final 
rule in December 2019. See page 6-1 of 2016 Program Plan.
---------------------------------------------------------------------------

    Other commenters opposed any extension of the compliance deadlines 
associated with the location restrictions. These commenters stated that 
an extension is unwarranted due to the long history of delays in 
setting federal standards and the adverse impacts to human health and 
the environment from improperly sited CCR units. Commenters stated that 
facilities have had several years to prepare for meeting the location 
restrictions and that an extension of the deadline is unnecessary 
because the facilities should already have sufficient information to 
determine whether their CCR units comply with the location 
restrictions. Finally, these commenters point out that several 
utilities have already sought approval from state regulators to close 
CCR units that are not in compliance with the location restrictions. A 
compliance extension would thus penalize companies that have made good-
faith efforts to comply with the current rule, while rewarding 
companies that have not prepared properly to comply.
    EPA first considered whether to extend the deadlines by which 
owners or operators of CCR surface impoundments must complete the 
location restrictions demonstrations in Sec. Sec.  257.60 through 
257.64. Such a rule revision would have the effect of delaying the date 
that facilities would need to determine whether its CCR units are in 
compliance with the location restrictions. Most of the commenters 
raised concern about the current deadlines based on the assumption that 
the technical performance standards would subsequently be revised, 
either

[[Page 36441]]

because EPA was reconsidering those criteria or because States would 
revise them as part of their permit programs. The commenters provided 
no data or other information to suggest that compliance with the 
existing location restriction demonstration deadlines presents 
technical difficulties or is otherwise infeasible. Rather the primary 
technical concern raised by the comments was the need for more time to 
develop or find alternative capacity to replace any units that cannot 
comply with the location criteria. As one commenter explained. in a 
typical state, the process to modify a major wastewater discharge 
permit as required to reroute non-CCR waste water streams can take more 
than a year to complete. This commenter also provided concrete examples 
to support their contention that it may take 18-36 months to find 
alternate capacity for their non-CCR wastes streams.
    For a simple project--which the commenter described as a site that 
(1) does not provide base load generation, and thus there would be 
minimal impact to project timing due to planned unit outages to install 
the piping re-routes and associated mechanical and electrical 
connections; (2) has fewer streams to re-route, operates 
intermittently, and (3) has straightforward low volume waste steams 
(i.e., technically definable in terms of quantity and quality)--the 
overall duration (18 months) is three times the 6-month duration 
provided for by the existing regulations.
    By contrast, a more complex site the overall duration is 
approximately 36 months--nearly six times longer in duration than 
currently provided for in the existing CCR rule. For a more complex 
site, the current water balance may indicate there are over 50 non-CCR 
individual waste streams which go to the CCR impoundment. Additionally, 
each unit utilizes an FGD that produces a waste stream, which also goes 
to the CCR impoundment. The FGD waste water stream has the most complex 
water chemistry and variability of any water stream in the plant. 
Complex project in terms of the number of streams to re-route, its more 
consistent operation (and scheduled outages), and its complex water 
chemistry associated with several of the non-CCR wastestreams. 
Additionally, the large number of streams to deal with, some of which 
only flow intermittently, further complicates the process design of 
what treatment system is needed. The water treatment process equipment 
alone requires a schedule of 13 months to procure, fabricate, and 
deliver to the plant site (excluding construction). When these efforts 
are properly stacked and staggered consistent with accepted engineering 
and project management practice, the overall duration is approximately 
36 months.
    In both examples discussed previously, the commenter explained that 
the current regulation also provides inadequate time for proper start-
up and commissioning. Reports from industry indicate that it can take 
several months to properly tune and commission a large water treatment 
plant. The commenter stated that the six months in the existing rule 
is, at best, barely adequate to properly tune a complex wastewater 
treatment plant to steady state operation accounting for quantity and 
quality variations in the non-CCR water streams.
    After considering all of the comments, EPA considers that the 
potential for revisions to the technical criteria themselves is too 
speculative at this stage to form the basis for a regulatory revision. 
EPA received no concrete proposals or suggestions for possible 
modifications to the technical criteria themselves. Nor does EPA 
currently have any potential options under consideration. And none of 
the States that have submitted applications (or with whom EPA has had 
discussions) for program authorization included any alternative 
location criteria. Accordingly, EPA has determined not to revise the 
deadlines to complete the requisite demonstrations.\9\
---------------------------------------------------------------------------

    \9\ These deadlines are codified in Sec. Sec.  257.60(c)(1), 
257.61(c)(1), 257.62(c)(1), 257.63(c)(1), and 257.64(d)(1).
---------------------------------------------------------------------------

    However, EPA acknowledges that legitimate concerns have been raised 
about the feasibility of complying with the current closure timeframes. 
EPA considers that the issues discussed above are not unique to the 
commenter, but are shared by facilities across the industry. And these 
concerns are equally relevant in this context, as units that do not 
comply with the location requirements must close pursuant to Sec.  
257.101(b)(1).
    EPA also takes very seriously the concern that facilities not be 
prematurely compelled to make potentially irreversible operational 
changes or otherwise be forced to invest in compliance measures that 
may subsequently need to be modified. This was part of the reason that 
EPA originally chose to align key implementation and operational 
decisions under the CCR rule with EPA's schedule for issuing the 
effluent limitations guidelines and pretreatment standards (ELGs) for 
the Steam Electric Power Generating Point Source Category to be 
appropriate. The ELG requirements will be highly relevant to facility's 
decisions regarding the development of alternative capacity to manage 
non-CCR wastestreams. EPA is currently in the process of rulemaking to 
consider revising certain standards for existing ELGs sources; that 
rulemaking is projected to be completed by December 2019. EPA recently 
changed the earliest ELG compliance date for FGD and bottom ash 
wastewater to October 2020 to account for these potential revisions. 
See 82 FR 43494. EPA's original concern thus continues to be highly 
relevant.
    To address these concerns, EPA therefore considered whether an 
extension of the deadline in the closure for cause provisions in Sec.  
257.101(b)(1) that would better coordinate the compliance and 
implementation deadlines between the CCR and ELGs rules, as suggested 
by many of the commenters, was warranted. Such a rule revision would 
still require facilities to make the requisite location restriction 
demonstrations by the deadlines specified earlier (i.e., October 17, 
2018), but would extend the timeframe during which the facility could 
continue to use the unit, and thereby provide the facility with more 
time to adjust its operations. This approach would allow facilities to 
better coordinate their engineering, financial and permitting 
activities under the two rules, and would account for EPA's on-going 
ELG rulemaking. Therefore, EPA is extending the closure for cause 
trigger from the six-month period currently specified in the rule until 
October 31, 2020, which increases that time period by approximately 18 
months. The agency selected the date to coordinate with the revised 
compliance date for the ELG requirements. The agency anticipates 
completing the ELGs rulemaking by December 2019 and providing nine 
months from the rule's likely publication in January 2020 would be 
sufficient for facilities to make informed decisions to meet the 
requirements of both rules. That 18-month period also corresponds with 
the lower end amount of time estimated to be needed to find alternative 
capacity for non-CCR watestreams.
    Finally, EPA considered whether to apply a time extension to all 
location restrictions, or a subset of them. Commenters consistently 
identified the placement above the uppermost aquifer location 
restriction as the critical standard, and so EPA has limited its 
revision to address this specific concern. This time extension does not 
affect other deadlines in the regulations, and facilities therefore are 
required to comply with all requirements of an

[[Page 36442]]

operating facility (e.g., inspections), which are designed to ensure 
that the facility operations will meet the statutory standard during 
this extension period.
2. Revision of Sec.  257.101(a)(1) Regarding the Deadline for Waste 
Placement and Closure or Retrofit of Existing Unlined CCR Surface 
Impoundments
    The agency solicited comment in the March 15, 2018, proposed rule 
on appropriate time frames for the assessment monitoring requirements 
(83 FR 11599). The 2015 regulation establishes a groundwater monitoring 
program consisting of detection monitoring, assessment monitoring and 
corrective action. Because the current assessment monitoring program 
includes a series of 90-day time periods in which an owner or operator 
is to perform the required analysis and demonstrations, EPA sought 
comment on whether 90 days is an appropriate time period for the 
assessment monitoring requirements in light of the WIIN Act. The agency 
specifically requested comment on whether alternative time periods are 
necessary to perform the required analysis and demonstrations and 
whether such alternative time periods would be more appropriate to 
facilitate implementation of the WIIN Act and any amendments to the CCR 
regulations as a result of the March 15, 2018 proposed rule.
    The groundwater monitoring program requires an owner or operator of 
a CCR unit to install a system of monitoring wells and specify 
procedures for sampling these wells, in addition to methods for 
analyzing the groundwater data collected, to detect the presence of 
specified constituents and other monitoring parameters released from 
the units. Among other requirements, the 2015 regulations required 
facilities to have installed the groundwater monitoring system and 
initiated detection monitoring no later than October 17, 2017.\10\ Some 
CCR units are currently operating under the assessment monitoring 
provisions of the regulations. Facilities monitoring groundwater under 
the assessment monitoring program are required to close or retrofit an 
unlined CCR surface impoundment if the monitoring results show that the 
concentrations of one or more of the constituents listed in Appendix IV 
to part 257 are detected at statistically significant levels above any 
GWPS. Sec.  257.101(b)(1).
---------------------------------------------------------------------------

    \10\ Inactive CCR surface impoundments are subject to a 
different deadline as specified in Sec.  257.100(e)(5).
---------------------------------------------------------------------------

    EPA received numerous comments on this issue. The general theme of 
those comments supportive of an extension was similar to that 
summarized in the previous subsection addressing location restrictions. 
Many commenters emphasized that an extension is needed to properly 
implement the objectives of the WIIN Act. Commenters stated that 
without an extension of the assessment monitoring deadlines, there 
would be little to no practical effect from the proposed revisions 
because facilities will have to make irreversible decisions and 
investments based on the 2015 rule. Many of these commenters identified 
two proposals of greatest concern: (1) The ability of facilities to 
establish risk-based GWPSs for Appendix IV constituents without MCLs; 
and (2) the incorporation of risk-based flexibility into the corrective 
action program. These commenters stated that the current schedule of 
the assessment monitoring program does not provide time for these 
provisions to take effect before some facilities will be compelled to 
initiate corrective action and/or forced to close could qualify for the 
new alternative closure provision. Some commenters also argued that the 
existing deadline associated with implementing the GWPS, in particular 
those associated with assessment monitoring are too short to adequately 
identify the source and extent of an exceedance. Commenters urged the 
Agency to extend these deadlines or, at a minimum, to defer the 
obligation to establish groundwater protection standards until after 
EPA adopts these two proposals.
    Commenters also stated that an extension is necessary to align key 
implementation and operational decisions under the CCR rule with EPA's 
schedule for revising the ELGs for the Steam Electric Power Generating 
Point Source Category. Other commenters suggested that deadlines be 
extended a specific amount of time following the effective date of a 
final rule. These commenters recommended extensions ranging from 120 
days to 12 months from the final rule's effective date.
    Other commenters opposed any extension of the deadlines associated 
with the assessment monitoring program. These commenters stated that an 
extension is unwarranted due to the long history of delays in setting 
federal standards and the adverse impacts to human health and the 
environment from improperly sited CCR units. Commenters stated their 
opposition to revising the regulations that would allow facilities to 
continue to CCR units that are unlined and already contaminating 
groundwater.
    EPA first considered the request to extend the assessment 
monitoring deadlines to allow States the opportunity to establish 
alternate risk-based GWPS under Sec.  257.95(h). Most of the commenters 
raised concern about the current deadlines based on the assumption that 
the GWPS would subsequently be revised as part of a State-approved 
permit program. But the requested extension would have delayed the 
initiation of closure under Sec.  257.101(a)(1) and corrective action 
provisions of Sec. Sec.  257.96 through 257.98 for all constituents, 
not merely for the four without MCLs that commenters believed were 
likely to be revised.
    As discussed Unit IV.B of this preamble, EPA is establishing 
health-based GWPSs for all four of the constituents in Appendix IV 
without established MCLs. These revised standards, because they are 
health-based standards, are not expected to be affected by State 
programs, which alleviate the concern that facilities will be forced to 
take action in response to standards that are likely to be revised. EPA 
therefore has no basis to revise the assessment monitoring deadlines.
    Nevertheless, as noted previously, numerous commenters raised 
concern that compliance with the current closure requirements is not 
technically feasible. These concerns, and the considerations motivating 
EPA to revise the deadlines for the aquifer location criterion, are 
equally relevant in this context, as unlined surface impoundments units 
that are leaking must close, in accordance with Sec.  257.101(a)(1). 
EPA therefore considered whether an extension of the deadline in Sec.  
257.101(a)(1) to initiate the closure of unlined surface impoundments, 
similar to the extension of the deadlines for the location 
restrictions, would address the commenters' concerns. Such a provision 
would require facilities to follow the assessment monitoring procedures 
and determine whether any contaminants have been detected at 
statistically significant levels above the GWPS established under Sec.  
257.95(h). A facility that makes such a determination would still be 
required to initiate corrective action to clean up the contamination in 
the aquifer, but could continue to use the unit for an extended period, 
which would provide the facility with more time to adjust their 
operations. This approach would allow facilities to better coordinate 
their engineering, financial and permitting activities under the two 
rules, and would align with EPA's recent and on-going ELG rulemakings.

[[Page 36443]]

Therefore, EPA has extended the closure for cause trigger by the same 
18-month period granted for the location restrictions. The agency 
selected the date October 31, 2020, to coordinate with the revised 
earliest compliance date for the ELG requirements. The Agency 
anticipates completing the ELG rulemaking by December 2019 and 
providing nine months from the rule's likely publication in January 
2020, for facilities to make appropriate decisions knowing the 
requirements of both rules.
    This time extension does not affect other deadlines or any other 
requirement in the regulations, and facilities therefore remain 
obligated to comply with all requirements of an operating facility 
(e.g., inspections), which are designed to ensure that the facility 
operations will meet the statutory standard during this extension 
period.

B. Alternative Risk-Based Groundwater Protection Standards

    The 2015 CCR rule required the CCR unit owner or operator to set 
the GWPS at the MCL or to background for all constituents in Appendix 
IV to part 257 that are detected at a statistically significant level 
above background. MCLs are levels of constituent concentrations 
promulgated under section 1412 of the Safe Drinking Water Act. If no 
MCL exists for a detected constituent, then the GWPS needed to be set 
at background. In cases where the background level is higher than the 
promulgated MCL for a constituent, the GWPS was to be set at the 
background level.
    In March 2018, EPA proposed to amend the 2015 CCR rule to 
incorporate certain requirements from 40 CFR part 258 that would allow 
Participating State Directors, and EPA where it is the permitting 
authority, flexibility to approve an alternative GWPS, which was 
required to be derived in a manner consistent with Agency guidelines. 
Some of the risk guidelines used to support establishment of the part 
258 regulations had since been replaced or supplemented, so the 
proposal referenced the updated versions. Specifically, EPA cited to 
the Supplementary Guidance for Conducting Health Risk Assessment of 
Chemical Mixtures,\11\ which supplements 51 FR 34014 (September 24, 
1986); the Guidelines for Developmental Toxicity Risk Assessment,\12\ 
which amends 51 FR 34028 (September 24, 1986); and the Guidelines for 
Carcinogen Risk Assessment,\13\ which amends 51 FR 33992 (September 24, 
1986). Also, EPA proposed to add guidance on deriving a reference dose, 
Reference Dose (RfD): Description and Use in Health Risk 
Assessments.\14\
---------------------------------------------------------------------------

    \11\ USEPA, ``Supplementary Guidance for Conducting Health Risk 
Assessment of Chemical Mixtures'', EPA/630/R-00/002, August 2000. 
This document can be accessed in the docket.
    \12\ USEPA, ``Guidelines for Developmental Toxicity Risk 
Assessment'', EPA/600/FR-91/001, December 1991. This document can be 
accessed at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=23162.
    \13\ USEPA, ``Guidelines for Carcinogen Risk Assessment'', EPA/
630/P-03/001F, March 2005. This document can be accessed at https://www.epa.gov/risk/guidelines-carcinogen-risk-assessment.
    \14\ This document can be accessed at https://www.epa.gov/iris/reference-dose-rfd-description-and-use-health-risk-assessments.
---------------------------------------------------------------------------

    EPA also proposed to incorporate the part 258 requirement that the 
alternative GWPS be based on scientifically valid studies conducted in 
accordance with the Toxic Substances Control Act Good Laboratory 
Practice Standards (40 CFR part 792) or the equivalent. For non-
carcinogens, EPA proposed to require that States use a reference dose 
with a hazard quotient (HQ) of 1 as the upper bound on risk, to 
establish the alternative GWPS. This methodology was the same as that 
used to establish the technical criteria in the 2015 CCR regulation. 
EPA's proposal explained that reliance on this methodology was 
reasonable as it would ensure that this provision (and any alternative 
GWPS eventually established under this provision) would meet the 
requisite statutory standard. Examples of groundwater values consistent 
with the proposed requirements were provided, including Action Levels 
promulgated under the Safe Drinking Water Act and the Regional 
Screening Levels for Chemical Contaminants at Superfund Sites.\15\ EPA 
solicited comment on the revised approach to establishing an 
alternative GWPS.
---------------------------------------------------------------------------

    \15\ This document can be accessed at https://www.epa.gov/risk/regional-screening-levels-rsls.
---------------------------------------------------------------------------

    Significant comments were received in support of the proposal to 
allow States to approve an alternative GWPS. Commenters stated that 
States have robust regulatory frameworks to regulate groundwater 
protection, that allowing this flexibility is consistent with how 
requirements for MSWLFs are implemented under Subtitle D, and that the 
oversight and enforcement authorities provided in the WIIN Act allow 
EPA to ensure States will set protective standards. Commenters also 
stated that risk-based alternative GWPS would be more appropriate than 
the current requirement to use background levels where no MCL has been 
established for an Appendix IV constituent.
    Comments were also received opposing the proposal to allow 
Participating State Directors to approve an alternative GWPS. Concerns 
raised included lack of resources or technical expertise at state 
agencies, and the failure to require any alternative GWPS to be 
protective of sensitive subgroups, which is included in the MSWLF 
regulations at 40 CFR 258.55(i). Commenters opposed to this proposal 
raised concerns that it would: Establish vague, unenforceable 
guidelines; fail to address ecological risk or cancer risk; ignore 
health-based exposure concentrations that are already developed; and 
would ultimately allow states to increase risks to human health and the 
environment above the statutory standard. Commenters also called 
attention to that allowing Participating State Directors to set 
alternative standards could result in variability in regulatory 
standards for chemicals that present the same health risks, regardless 
of geography. Commenters also raised concerns about protectiveness of 
the proposed approach and EPA's ability to use the part 258 record to 
support providing discretion to Participating State Directors. One 
group of commenters maintained that it is arbitrary and insufficiently 
protective to let states establish GWPS where EPA has already 
established risk-based levels for Appendix IV constituents with no 
established MCL, also citing the Superfund program's ``Regional 
Screening Levels'' (RSLs).
    Some comments requesting that EPA consider established, available 
health-protective benchmarks for Appendix IV constituents, such as 
RSLs, and well-established assessment methodology for developing more 
site-specific GWPS. One industry commenter maintained that ``Of 
particular relevance to the CCR Rule are the risk-based policies and 
resources for the protection and remediation of impacted groundwater 
that U.S. EPA has developed. Specifically, U.S. EPA has established 
Regional Screening Levels (RSLs) to assess potential human health risks 
from chemicals in soil, water, and air. . . . These values assist risk 
assessors in determining whether levels of constituents at a site may 
warrant further investigation or cleanup, or whether no further 
investigation is required.'' The commenter goes on to explain that 
RSLs, while protective, are significantly higher than background 
concentrations of cobalt, lithium, and molybdenum collected by USGS. 
Using the RSLs instead of background would

[[Page 36444]]

avoid corrective action costs of cleaning up to background levels 
without providing any health benefit. See EPA-HQ-OLEM-2017-0286-1314, 
Attachment 2, pp. 2. An environmental commenter, concerned about the 
potential for states to set their own standards, said, ``In the case of 
EPA's coal ash regulations, not only is EPA in a better position to 
establish health-protective levels for each non-MCL constituent, but 
the Agency has already done so.'' The commenter goes on to say that 
``If EPA chooses to allow groundwater protection standards other than 
background, those standards must be no less stringent than the EPA RSLs 
or health advisories.'' See EPA-HQ-OLEM-2017-0286-2136 pp. 134-139.
    In the proposal, EPA also solicited comment on whether an 
alternative risk-based GWPS could be established by an independent 
technical expert or experts where there is no approved permitting 
authority. Numerous commenters opposed this suggestion, for reasons 
including: (1) EPA previously rejected that approach in the 40 CFR part 
258 regulations, which restricted this provision to Participating State 
Directors; (2) EPA does not provide an adequate record to support such 
a proposal; (3) Such a regulation, if finalized, would fail to satisfy 
the protectiveness standard in RCRA section 4004(a). Commenters in 
support of this primarily cited the pending compliance dates in the CCR 
rule as a reason to allow an alternative GWPS to be established under 
the self-implementing program. Commenters expressed concern that by the 
time States receive approval of permitting programs and EPA establishes 
its own permitting program, groundwater monitoring deadlines would have 
passed and it would be too late to establish alternative GWPSs. To 
illustrate this point, one industry commenter stated that half of its 
CCR units could be forced to initiate alternate source demonstrations 
or corrective action assessment based solely on having detected 
Appendix IV constituents with no MCLs above background levels. 
Commenters stated that the oversight and enforcement authorities 
provided to EPA by the WIIN Act would ensure that site-specific 
alternative GWPS established by independent experts are protective.
    EPA agrees with commenters that State programs are unlikely to be 
developed and approved prior to the critical deadlines in the CCR rule. 
EPA continues to evaluate technical issues, and the various concerns 
raised by the commenters, but the Agency has developed the alternative 
adopted today that does not rely on the part 258 record for support, 
and also balances commenters' concerns. EPA has developed a specific 
GWPS for each of the four constituents in Appendix IV without an MCL, 
to be used in place of the default background concentrations currently 
required under Sec.  257.95(h)(2). Adopting national criteria will 
provide health-based standards available to facilities now to use to 
compare against monitored groundwater concentrations and develop 
cleanup goals. Note that a State Director may always seek approval for 
alternative State criteria as part of the process under the WIIN Act; 
this could, for example, include the establishment of alternative GWPS 
for the constituents listed in Appendix IV. See 42 U.S.C. 
6945(d)(1)(B)(ii), (C), requiring the Administrator to approve a State 
permit program that allows a State to include technical standards for 
individual permits or conditions of approval that differ from the 
criteria under part 257 of title 40, Code of Federal Regulations if, 
based on site-specific conditions, the Administrator determines that 
the technical standards established pursuant to a State permit program 
are at least as protective as the criteria under that part.
    Specifically, the Agency is adopting the following health-based 
levels as the GWPSs for the four Appendix IV constituents without a 
designated MCL: 6 micrograms per liter ([micro]g/L) for cobalt; 40 
[micro]g/L for lithium, and 100 [micro]g/L for molybdenum. EPA is 
adopting the alternative GWPS for lead at 15 [micro]g/L. These levels 
were derived using the same methodology that EPA proposed to require 
States to use to establish alternative GWPS (See, 83 FR 11598-11599, 
11613). The methodology follows Agency guidelines for assessment of 
human health risks of an environmental pollutant. This means that these 
GWPSs are expected to be concentrations to which the human population 
could be exposed to on a daily basis without an appreciable risk of 
deleterious effects during a lifetime.
    Specifically, EPA used the equations in the Risk Assessment 
Guidance for Superfund (RAGS) Part B to calculate these revised 
GWPS.\16\ RAGS Part B provides guidance on using drinking water 
ingestion rates and toxicity values to derive risk-based remediation 
goals. The use of these methods, consistent with EPA risk assessment 
guidelines addresses commenters' concerns about protecting sensitive 
populations. EPA relied upon relevant exposure information from the 
2008 Child-Specific Exposure Factors Handbook,\17\ the Exposure Factors 
Handbook: 2011 Edition \18\ and the 2014 Human Health Evaluation 
Manual, Supplemental Guidance: Update of Standard.\19\ Values based on 
residential receptors were used to capture the range of current and 
future potential receptors. EPA identified toxicity values according to 
the hierarchy established in the 2003 Office of Solid Waste and 
Emergency Response Directive 9285.7-53,\20\ which encourages 
prioritization of values from sources that are current, transparent and 
publicly available, and that have been peer reviewed. Finally, EPA used 
the same toxicity values (reference doses) that were used in the risk 
assessment supporting the 2015 CCR Rule. Cancer slope factors (CSF) 
were not identified for any of the relevant constituents. The finalized 
GWPS for cobalt, lithium, and molybdenum were set using a target based 
on a HQ = 1 for Participating State Directors to follow.
---------------------------------------------------------------------------

    \16\ Risk Assessment Guidance for Superfund (RAGS) Part B can be 
accessed at https://www.epa.gov/risk/risk-assessment-guidance-superfund-rags-part-b.
    \17\ USEPA ``Child-Specific Exposure Factors Handbook'' can be 
accessed in the docket or at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=199243.
    \18\ USEPA ``Exposure Facots Handbook: 2011 Edition'' can be 
accessed in the docket or at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=236252.
    \19\ 2014 Human Health Evaluation Manual, Supplemental Guidance: 
Update of Standard can be accessed in the docket or at https://www.epa.gov/risk/update-standard-default-exposure-factors.
    \20\ Office of Solid Waste and Emergency Response Directive 
9285.7-53 can be accessed in the docket or at https://nepis.epa.gov/Exe/ZyNET.exe/91015CKS.TXT?ZyActionD=ZyDocument&Client=EPA&Index=2000+Thru+2005&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C00thru05%5CTxt%5C00000030%5C91015CKS.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL.
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    Commenters noted that a reference dose (RfD) has not been 
established for lead because of the difficulty in identifying a 
``threshold'' level, below which adverse effects are not known or 
anticipated to occur. EPA acknowledges the commenters' concern and has 
set the GWPS for lead at the Action Level established under section 
1412 of the Safe Drinking Water Act, which addresses comments received 
supporting the use of existing EPA risk-based standards. Because 
transport through ground water is the primary risk pathway identified 
in the 2014 Risk Assessment, this revised GWPS is

[[Page 36445]]

anticipated to be protective of human health at these sites.

C. Modification of Groundwater Monitoring Requirements

    The current regulations at Sec.  257.90 require all CCR units, 
without exception, to comply with the groundwater monitoring and 
corrective action requirements of Sec. Sec.  257.90 through 257.98. The 
final CCR rule at Sec.  257.91(a)(2) requires the installation of 
groundwater monitoring wells at the waste boundary of the CCR unit.
    EPA is adopting a final provision that incorporates only minimal 
revisions from the proposal. The Agency recognizes that certain 
hydrogeologic settings may preclude the migration of hazardous 
constituents from CCR disposal units to groundwater resources. 
Requiring groundwater monitoring in these settings would provide little 
or no additional protection to human health and the environment. EPA 
considers that the final criteria are sufficiently precise and 
determinate that they will ensure that waivers are granted only in 
those rare situations, and therefore, EPA is incorporating the revised 
provision into the part 257 regulations.
    As proposed, the Participating State Director would be allowed to 
suspend the groundwater monitoring requirements under Sec. Sec.  257.90 
through 257.95 if the owner or operator can demonstrate that there is 
no potential for migration of any CCR constituents from that CCR unit 
to the uppermost aquifer during the active life of the unit, closure, 
and the post-closure care period. The demonstration must be certified 
by a PE or approved by a Participating State Director or approved EPA 
where EPA is the permitting authority, and must be based upon:
    (1) Site-specific field collected measurements, sampling, and 
analysis of physical, chemical, and biological processes affecting 
contaminant fate and transport, and
    (2) Contaminant fate and transport predictions that maximize 
contaminant migration and consider impacts on human health and 
environment.

This would allow the Participating State Director or EPA where EPA is 
the permitting authority to suspend the groundwater monitoring 
requirements in Sec. Sec.  257.91 through 257.95 for a CCR unit upon 
demonstration by the owner or operator that there is no potential for 
migration of hazardous constituents from the unit to the uppermost 
aquifer during the active life, closure, or post-closure periods. 
However, the requirements of Sec. Sec.  257.96 through 257.98 would not 
be suspended. As discussed below, the provision being finalized for the 
part 257 regulations would be identical to that in the part 258 
regulations with the exception for the requirement to periodically 
demonstrate that conditions have not changed, that is, there is still 
no migration of Appendix III or IV constituents from the CCR unit to 
the uppermost aquifer.
    The proposal acknowledged the difficulties of meeting the ``no 
potential for migration'' standard (83 FR 11602). The suspension of 
monitoring requirements is intended only for those CCR units located in 
hydrogeologic settings in which the Appendix III and IV constituents 
will not migrate to groundwater during the active life of the unit, as 
well as closure and post-closure periods. The proposal also stressed 
that a ``no migration'' waiver from certain RCRA requirements has been 
a component of both the part 258 and the RCRA subtitle C groundwater 
monitoring programs for many years, and, based on its experience under 
these programs, the Agency expects that cases where the ``no 
migration'' criteria are met will be rare.
    There were many general comments supporting the suspension of 
groundwater monitoring requirements if it can be demonstrated that 
there is no potential for migration of hazardous constituents from the 
CCR unit to the uppermost aquifer. These commenters supported this 
provision because it allows for more site-specific flexibility and 
prevents burdensome monitoring requirements that are unnecessary for 
protection of human health and the environment. A commenter also stated 
that it is unnecessary to incur ongoing monitoring costs if a unit has 
no impact to groundwater.
    Supporters of the ``no migration'' waiver also stated that it 
should not be limited to facilities operating under a state or EPA CCR 
permit program, and should be broadened so that a qualified technical 
expert can make the no migration determination under the self-
implementing CCR program. Commenters stated that the potential for 
abuse no longer exists due to the public notification requirements and 
EPA's inspection and enforcement authority provided by the WIIN Act.
    Groundwater monitoring is one of the key provisions under the 
regulations that protect health and the environment, as it ensures that 
contamination is detected and remediated. If the unit does leak and 
contaminants migrate into the aquifer, without monitoring there is no 
guarantee that those contaminants will be detected quickly, or 
necessarily at all. The potential consequences of this provision are 
therefore significant. Moreover, the determinations required to support 
the waiver are highly technical, and thus not readily evaluated during 
an inspection, by an inspector who may be able to document that the 
supporting analyses exist but is unlikely to have the time or expertise 
necessary to evaluate their scientific adequacy. Consequently, this 
provision requires the additional layer of protection associated with 
having review by a regulatory authority, which would have the necessary 
technical expertise on staff, evaluate the request prior to its 
adoption.
    Some commenters did not support the ``no migration'' proposal. One 
commenter explained that groundwater monitoring for CCR units had just 
barely taken effect and the first round of groundwater monitoring data 
was first published on March 2, 2018. This commenter also stated that 
all CCR facilities should be required to do groundwater monitoring to 
establish a baseline. Another commenter stated that due to the nature 
of sedimentary geological formations, fractures and fissures may exist 
throughout a coal-mined site, mined areas may settle and surface 
impoundments may leak. Therefore, suspension of groundwater monitoring 
should not be allowed.
    EPA has determined that if a facility meets the criteria to 
demonstrate that there is no potential for migration at the unit, then 
the groundwater monitoring requirements of Sec. Sec.  257.90 through 
257.96 would not be necessary. However, the regulation requires that 
demonstrations of no potential for migration must be supported by both 
predictions that maximize contaminant migration and actual field data 
collected at the site. Field sampling is necessary to establish the 
site's hydrogeological characteristics and must include an evaluation 
of unsaturated and saturated zone characteristics to ascertain the flow 
rate and pathways by which contaminants may migrate to groundwater. 
Thus, facilities would be expected to collect site-specific data 
relating to conditions, geology, water levels, etc. as well as 
contaminant concentrations in the aquifer.
    The proposal included four conditions that would be required for a 
facility to receive a waiver from groundwater monitoring. The first 
condition is that the suspension of groundwater monitoring requirements 
in Sec. Sec.  257.91 through 257.95 is available only for owners and 
operators of CCR units located in participating states. As discussed 
previously the Agency has limited the availability of the waiver 
because of the need to review a no-migration demonstration prior to

[[Page 36446]]

granting a waiver from groundwater monitoring. However, in this final 
action, the Agency is expanding this provision to allow EPA the ability 
to review a no-migration demonstration to grant a waiver from 
groundwater monitoring where EPA is the permitting authority.
    The second condition is that the rule requires demonstrations of no 
potential for migration to be supported by both predictions that 
maximize contaminant migration and actual field data collected at the 
site. The proposal explained in great detail how the different 
properties should be measured, building on guidance developed for part 
258 (83 FR 11602). EPA explained in the proposal that the site-specific 
information called for under the proposed regulation to make the 
demonstration must include, at a minimum, the following information to 
evaluate or interpret the effects of the following properties or 
processes on contaminant fate and transport:
    (1) Aquifer Characteristics, including hydraulic conductivity, 
hydraulic gradient, effective porosity, aquifer thickness, degree of 
saturation, stratigraphy, degree of fracturing and secondary porosity 
of soils and bedrock, aquifer heterogeneity, groundwater discharge, and 
groundwater recharge areas;
    (2) Waste Characteristics, including quantity, type, and origin;
    (3) Climatic Conditions, including annual precipitation, leachate 
generation estimates, and effects on leachate quality;
    (4) Leachate Characteristics, including leachate composition, 
solubility, density, the presence of immiscible constituents, Eh, and 
pH;
    (5) Engineered Controls, including liners, cover systems, and 
aquifer controls (e.g., lowering the water table). These should be 
evaluated under design and failure conditions to estimate their long-
term residual performance;
    (6) Attenuation of contaminants in the subsurface, including 
adsorption/desorption reactions, ion exchange organic content of soil, 
soil water pH, and consideration of possible reactions causing chemical 
transformation or chelation; and
    (7) Microbiological Degradation, which may attenuate target 
compounds or cause transformations of compounds, potentially forming 
more toxic chemical species.
    No migration petitions will vary considerably. The petition content 
will be strongly influenced by the type of unit for which a variance is 
sought and the methods chosen to demonstrate that there is no potential 
for migration. EPA believes the categories listed above and other site-
specific information as required by the Participating State Director or 
EPA where EPA is the permitting authority will provide the necessary 
information, data, and analyses to determine the physical, chemical, 
and biological processes affecting the migration of CCR constituents. 
As discussed below, these criteria have largely been included in the 
final rule, with modifications to account for the differences between 
the Part 258 constituents, which include organics, and Appendix IV CCR 
constituents, which are metals.
    The third condition is that demonstrations be certified by a 
qualified PE and approved by the Participating State Director or EPA 
where EPA is the permitting authority to ensure that there is a high 
degree of confidence that no contamination will reach the uppermost 
aquifer.
    The fourth condition requires the owner or operator of the CCR unit 
to remake the demonstration every 10 years or sooner, if there is 
evidence migration has occurred, as determined by the Participating 
State Director or EPA where EPA is the permitting authority. This new 
demonstration is required to be submitted to the Participating State 
Director or EPA where EPA is the permitting authority one year before 
the existing groundwater monitoring suspension is due to expire. If the 
suspension expires for any reason, the unit must begin groundwater 
monitoring according to Sec.  257.90(a) within 90 days.
    EPA received several public comments both supporting and opposing 
this 10-year demonstration clause. A commenter stated that the 
provisions for the suspension of groundwater monitoring depart from the 
part 258 provisions on which they were modeled, by limiting any such 
suspension to a maximum 10-year term and requiring a re-demonstration 
for subsequent suspension approvals.
    One commenter stated that if any breakthrough occurs in the CCR 
unit, 10 years is too long and would allow contamination to move toward 
adjacent discharge points, including pumping wells at nearby homes, 
farms and businesses, as well as streams, potentially endangering human 
health and the environment.
    As discussed in more detail below, any site-specific demonstration 
to satisfy the ``no migration'' threshold involves several distinct 
criteria relating to site conditions. Because, as the commenter notes, 
engineered controls do fail facilities will be required to demonstrate 
that site conditions will collectively work to ensure there is no 
potential for migration. For example, the regulation also requires the 
evaluation of Climatic Conditions such as annual precipitation and 
leachate generation estimates. All of the regulatory factors together 
work to ensure that, when considering a ``no migration'' determination, 
in the event of a leak from a CCR unit, the constituents will not 
migrate to the uppermost aquifer during the lifetime of the unit and 
post-closure care.
    Another comment received on the 10-year interval is that if the 
existing monitoring wells remain in place during the 10-year interval, 
those wells may be neglected and not usable for sampling at the end of 
the 10-year interval. If the existing monitoring wells are filled and 
sealed and new monitoring wells are installed, the ability to 
effectively compare data at the same location over time may be lost. 
The commenter stated that EPA should consider either removing the 10-
year recurring demonstration requirement or add some minimum monitoring 
requirements at shorter intervals (e.g., groundwater elevations) to 
ensure maintenance of the monitoring wells.
    EPA does not agree that monitoring wells will necessarily be unused 
during the 10-year interval. The proposal discussed how the ``no 
migration'' demonstration involves complying with rigorous 
requirements. Modeling may be useful for assessing and verifying the 
potential for migration of hazardous constituents. Models used should 
be based on actual field collected data to adequately predict potential 
groundwater contamination. When owners or operators prepare to re-
certify a no migration demonstration, they must verify that the unit 
continues to meet the standard--i.e., that there is still no potential 
for migration of contaminants from the unit to the uppermost aquifer. 
To support this demonstration some type of field data, such as 
groundwater elevation measurements, would normally be collected during 
the 10-year period. The 10-year requirement to renew a waiver ensures 
that no dramatic changes have occurred that may cause contamination.
    One commenter stated that EPA should adopt separate standards for 
the suspension of groundwater monitoring for CCR landfills and CCR 
surface impoundments. The commenter stated that CCR landfills should 
not be required to conduct a new demonstration once every 10 years to 
show that suspension of groundwater monitoring continues to be 
appropriate. EPA disagrees with this comment as the ``no migration'' 
waiver is dependent

[[Page 36447]]

upon site-specific hydrogeology, which can potentially change overtime, 
and the criteria for the waiver are not specific to either landfills or 
surface impoundments.
    EPA considered the comments and is adopting the proposal with minor 
revisions to ensure that the regulatory language accurately reflects 
the principles reflected in the proposal. EPA discussed in the proposal 
why periodic renewals of ``no migration'' demonstrations were not 
required for MSW landfills. In part this is because the part 258 
regulations apply only to landfills, while the CCR regulations apply to 
both landfills and surface impoundments. Surface impoundments by their 
very nature pose a potential for releases to groundwater that is 
different than landfills (e.g., presence of a hydraulic head). The risk 
assessment for the CCR rule found that, even when key variables are 
controlled (e.g., liner type, waste type) for the long-term risks from 
surface impoundments are greater than from landfills. Based on these 
factors, EPA is requiring an owner or operator to conduct a new 
demonstration once every 10 years to show that the suspension of 
groundwater monitoring continues to be appropriate. See Sec.  
257.90(g). This new demonstration must be submitted to the 
Participating State Director or EPA where EPA is the permitting 
authority one year before the existing groundwater monitoring 
suspension is due to expire. If the suspension expires for any reason, 
the unit must begin groundwater monitoring in accordance with Sec.  
257.90(a) within 90 days.
    To address concerns that the proposed language was insufficiently 
prescriptive EPA has added the phrase, ``based on the characteristics 
of the site in which the CCR unit is located,'' to the regulatory text. 
This is intended to clarify that the site characteristics are the key 
component of any determination that a waiver can be granted, rather 
than unit characteristics, such as the type of liner, which can (and 
do) fail. This is consistent with both the proposal and the original 
part 258 regulation. See 83 FR 11602; 56 FR 51061. EPA provided 
examples of locations that might be able to demonstrate no potential 
for migration in the preamble to the final MSWLF rule, such as 
extremely dry areas with little rainfall and great depths to 
groundwater, but acknowledged that these would be extremely rare. 56 FR 
51061. EPA expects this to be the case with respect to CCR units as 
well.
    For the same reason, EPA included in the regulation four of the 
seven categories of properties or processes on contaminant fate and 
transport that were discussed in the preamble to the proposed rule at 
83 FR 11602. EPA omitted two categories from this original list to 
account for the differences between the Part 258 constituents and the 
Appendix IV CCR constituents. The part 258 constituents include organic 
compounds, and so factors, such as natural attenuation, are relevant to 
evaluating the potential for migration at the site. But the CCR 
constituents are metals or metalloid compounds, which will remain in 
the environment if released. The remaining factors have been a 
component of the MSWLF program since the regulations were first adopted 
in 1991. 56 FR 51061. See OSWER Solid Waste Disposal Facility Criteria 
Technical Manual for MSWLFs (EPA530-R-93-017, 1993).\21\
---------------------------------------------------------------------------

    \21\ USEPA OWSER ``Solid Waste Disposal Facility Criteria 
Technical Manual for MSWLFs'' (EPA530-R-93-017, 1993) can be found 
in the docket for this final rule.
---------------------------------------------------------------------------

    The regulation does not include any consideration relating to 
current groundwater quality or potential future use of the aquifer EPA 
notes that, as with MSWLFs, this is not an appropriate factor for 
consideration under this provision. Further guidance for conducting 
these evaluations can be found in the OSWER Solid Waste Disposal 
Facility Criteria Technical Manual for MSWLFs (EPA530-R-93-017, 1993), 
the Ground-Water Monitoring Guidance Document for Owners and Operators 
of Interim Status Facilities (1983),\22\ and OSWER Preparing No-
Migration Demonstration for Municipal Solid Waste Disposal Facilities: 
A Screening Tool (EPA530-R-99-008 1999).\23\
---------------------------------------------------------------------------

    \22\ USEPA ``Ground-Water Monitoring Guidance for Owners and 
Operators of Interim Status Facilities'' (1983) can be found in the 
docket for this final rule.
    \23\ USEPA OWER ``Preparing No-Migration Demonstrations for 
Municipal Solid Waste Disposal facilities: A Screening Tool'' 
(EPA530-R-99-008, 1999 can be found in the docket for this rule.
---------------------------------------------------------------------------

D. Allow Participating State Directors or EPA Where EPA Is the 
Permitting Authority To Issue Certifications in Lieu of Requiring a PE 
Certification

    To ensure that the RCRA subtitle D requirements would achieve the 
statutory standard of ``no reasonable probability of adverse effects on 
health and the environment'' in the absence of regulatory oversight, 
the current CCR regulations require facilities to obtain third party 
certifications and to provide enhanced state and public notifications 
of actions taken to comply with the regulatory requirements. 
Specifically, in the final CCR rule EPA required numerous technical 
demonstrations made by the owner or operator be certified by a 
qualified professional engineer (PE) in order to provide verification 
of the facility's technical judgments and to otherwise ensure that the 
provisions of the rule were properly applied. While EPA acknowledged 
that relying upon a third-party certification was not the same as 
relying upon a state or federal regulatory authority and was not 
expected to provide the same level of independence as a state permit 
program, the availability of meaningful third-party verification 
provided critical support that the rule would achieve the statutory 
standard, as it would provide a degree of control over a facility's 
discretion in implementing the rule.
    However, the situation has changed with the passage of the WIIN 
Act, which offers the opportunity for State oversight under an approved 
permit program. To reflect that, EPA proposed that the regulations 
allow a ``State Director,'' the Director of a state with an approved 
CCR permit program (i.e., a ``participating state''), to certify that 
the regulatory criteria have been met in lieu of the exclusive reliance 
on a qualified PE. EPA expects that states will generally rely on the 
expertise of their own engineers to evaluate whether the technical 
criteria have been met. Alternatively, States might choose to retain 
the required certification by a qualified PE and use its own expertise 
to evaluate that certification. Finally, EPA noted that under the 
existing regulations, a facility may already rely on a certification 
provided by a qualified PE in a State agency, who reviews the facility 
actions as part of a purely State-law mandated process. Thus, EPA is 
confident that revising the regulation to authorize an approval from a 
Participating State Director will be at least as protective as the 
status quo under the existing regulations. To be clear an approved 
state may choose to provide certifications in lieu of a PE or may 
review and approve in addition to a PE. A participating state could 
also decide to solely rely on a certification by a facility's PE which 
would be the status quo based on the current regulations.
    As a component of this proposal, EPA also proposed definitions of 
``State Director'' and of a ``participating state'' in Sec.  257.53. 
The definition made clear that these provisions were restricted to 
State Directors (or their delegates) with an approved CCR permit 
program. The definition also included EPA where EPA is the permitting 
authority (tribal lands and non-participating states). There are 
several changes to the proposed term of ``State Director.'' First, we 
are finalizing the term as ``Participating State Director.'' Currently

[[Page 36448]]

there is a definition for State Director in 40 CFR 257.53 and EPA did 
not intend for our proposed definition to replace or amend the current 
definition. Therefore, we are finalizing the term ``Participating State 
Director.'' This language is used throughout the preamble and 
regulatory text accordingly.
    Furthermore, EPA received numerous comments on state directors 
issuing certifications. The majority of comments supported granting a 
State Director this authority. One comment received from ASTSWMO 
suggested removing EPA from the definition of State Director. ASTSWMO 
felt it was not appropriate to include EPA in the definition because 
intermingling the State and EPA would lead to confusion on their 
implementation roles in CCR permit programs, and EPA agrees. EPA has 
therefore removed the sentence about EPA from the definition of 
Participating State Director and generally added ``or approval from EPA 
where EPA is the permitting authority'' after Participating State 
Director throughout the regulations.
    The definition of Participating State Director has also been 
modified to reflect the statutory term of a ``participating state'' 
rather than the proposed term of ``an approved state.'' EPA has also 
adopted the proposed definition of a participating state, without 
modification. The final rule also incorporates the statutory definition 
of a non-participating state.
    Finally, the regulatory text has been amended in 39 places to 
incorporate this change. These changes can be seen in the amended 
regulation text. Except for the regulations relating to structural 
stability, which continue to require the certification of a PE in all 
circumstances, the regulations have been modified to add the approval 
of Participating State Director or the approval from EPA where EPA is 
the permitting authority as an acceptable alternative. The structural 
stability evaluations, such as the periodic factors of safety 
assessment, require the specific expertise of a PE. As previously 
noted, EPA expects that a state will generally rely on the expertise of 
its own engineers to evaluate whether the technical criteria have been 
met, but to avoid any confusion, these regulations will continue to 
require certification by a PE. A state may, of course, require the 
facility to also obtain its approval as part of its own permit program.

E. Rationale for 30-Day Effective Date

    The effective date of this rule is 30 days after publication in the 
Federal Register. The Administrative Procedure Act (APA) provides that 
publication of a substantive rule shall be made not less than 30 days 
before its effective date and that this provision applies in the 
absence of a specific statutory provision establishing an effective 
date. See 5 U.S.C. 553(d) and 559. EPA has determined there is no 
specific provision of RCRA addressing the effective date of regulations 
that would apply here, and thus the APA's 30-day effective date 
applies.
    EPA has previously interpreted section 4004(c) of RCRA to generally 
establish a six-month effective date for rules issued under subtitle D. 
See 80 FR 37988, 37990. After further consideration, EPA interprets 
section 4004(c) to establish an effective date solely for the 
regulations that were required to be promulgated under subsection (a). 
Section 4004(c) is silent as to subsequent revisions to those 
regulations; EPA therefore believes section 4004(c) is ambiguous.
    Section 4004(c) states that the prohibition in subsection (b) shall 
take effect six months after promulgation of regulations under 
subsection (a). Subsection (a), in turn provides that ``[n]ot later 
than one year after October 21, 1976 . . . [EPA] shall promulgate 
regulations containing criteria for determining which facilities shall 
be classified as sanitary landfills and which shall be classified as 
open dumps within the meaning of this chapter.'' As noted, section 
4004(c) is silent as to revisions to those regulations.
    In response to Congress's mandate in section 4004(a), EPA 
promulgated regulations on September 13, 1979. 44 FR 53438. EPA 
interprets section 4004(c) to establish an effective date applicable 
only to that action, and not to future regulations the Agency might 
issue under this section. In the absence of a specific statutory 
provision establishing an effective date for this rule, APA section 
553(d) applies.
    EPA considers that its interpretation is reasonable because there 
is no indication in RCRA or its legislative history that Congress 
intended for the agency to have less discretion under RCRA subtitle D 
than it would have under the APA to establish a suitable effective date 
for subsequent rules issued under section 4004(c). Consistent with 
EPA's interpretation of the express language of section 4004, EPA 
interprets statements in the legislative history explaining that 
section 4004(c) provides that the effective date is to be 6 months 
after the date of promulgate of regulations, as referring to the 
initial set of regulations required by Congress to be promulgated not 
later than 1 year after October 21, 1976, and does not mandate a 6 
month effective date for every regulatory action that EPA takes under 
this section. This rule contains specific, targeted revisions to the 
2015 rule and the legislative history regarding section 4004 speaks 
only to these initial 1976 mandated regulations.
    This reading allows the agency to establish an effective date 
appropriate for the nature of the regulation promulgated, which is what 
EPA believes Congress intended. EPA further considers that the minimum 
30-day effective date under the APA is reasonable in this circumstance 
where none of the provisions being finalized require an extended period 
of time for regulated entities to comply.

V. The Projected Economic Impacts of This Action

A. Introduction

    EPA estimated the costs and benefits of this action in a Regulatory 
Impact Analysis (RIA) which is available in the docket for this action. 
The RIA estimates costs and cost savings attributable to the provisions 
of this action against the baseline costs and cost savings of the 2015 
CCR final rule. The RIA estimates that the net annualized impact of 
these five provisions over a 100-year period of analysis will be cost 
savings of between $27.8 million and $31.4 million when discounting at 
7 percent and cost savings between $15.5 million and $19.1 million when 
discounting at 3 percent. This action is not considered an economically 
significant action under Executive Order 12866.

B. Affected Universe

    The universe of affected entities for this rule consists of the 
same entities affected by EPA's 2015 CCR final rule. These entities are 
coal-fired electricity generating plants operated by the electric 
utility industry. They can be identified by their North American 
Industry Classification System (NAICS) designation 221112 ``Fossil Fuel 
Electric Power Generation''. The RIA estimates that there are 414 coal-
fired electricity generating plants operating 922 CCR management units 
(landfills, disposal impoundments, and storage impoundments) that will 
be affected by this rule.

C. Baseline Cost

    The baseline costs for this rule are the costs of compliance with 
EPA's 2015 CCR final rule, as the provisions of this rule modify the 
provisions of the 2015 CCR final rule or modify the implementation of 
the 2015 CCR rule by WIIN Act participating states. The RIA for the 
2015 CCR final rule estimated these costs at an annualized $509

[[Page 36449]]

million when discounting at 7 percent and an annualized $735 million 
when discounting at 3 percent.

D. Cost Savings, Other Benefits, and Adjustments to the Baseline

    The RIA estimates costs and costs savings for two proposals 
concerning the compliance deadlines for certain aspects of the 2015 CCR 
rule, as well as the two alternative performance standards that will 
apply in participating states under the WIIN Act, and the revision of 
the GWPSs for the four constituents in Appendix IV to part 257 without 
MCLs. The RIA estimates that the net annualized impact of these five 
provisions over a 100-year period of analysis will be an annualized 
cost savings of between $27.8 million and $31.4 million when 
discounting at 7 percent, and an annualized cost savings of between 
$15.5 million and $19.1 million when discounting at 3 percent. The 
majority of cost savings attributable to the rule come from the 
provisions extending the date by which facilities must cease placing 
waste in CCR units. These provisions delay the large capital costs 
associated with ceasing to place waste in a unit. These capital costs 
include the cost of closure capping, post-closure monitoring, and 
converting to dry handling of CCR from wet handling.
    The RIA also presents the adjustments to the baseline costs of the 
CCR final rule due to plant closures that occurred after the rule was 
published but before the effective date of the rule. The RIA 
accompanying the 2015 CCR final rule assigned compliance costs to these 
plants, which they are exempt from because they closed before the final 
rule's effective date. In all, 23 plants closed before the effective 
date of the final rule that were not accounted for in 2015 final rule 
RIA. The annualized compliance costs avoided for these plants equals 
between $21.4 million and $27.6 million per year when discounting at 7 
percent and between $21.7 million and $32.4 million when discounting at 
3 percent. This cost adjustment is detailed in the RIA that accompanies 
this rulemaking, however it is not factored into the baseline or the 
benefit estimates for this rule to keep comparisons with the 2015 CCR 
final rule straight forward. Also, the compliance costs not incurred by 
these plants would not be cost savings attributable to this rulemaking.

VI. Statutory and Executive Order (E.O.) Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket. The EPA prepared an analysis of the potential costs and 
benefits associated with this action. This Regulatory Impact Analysis 
(RIA), entitled Regulatory Impact Analysis; EPA's 2018 RCRA Final Rule; 
Disposal of Coal Combustion Residuals from Electric Utilities; 
Amendments to the National Minimum Criteria (Phase One), is summarized 
in Unit V of this preamble and the RIA is available in the docket for 
this final rule.

B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory 
action. Details on the estimated cost savings of this final rule can be 
found in EPA's analysis of the potential costs and benefits associated 
with this action.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) document that 
the EPA prepared has been assigned EPA ICR number 1189.28, OMB control 
number 2050-0053. This is an amendment to the ICR approved by OMB for 
the Final Rule: Hazardous and Solid Waste Management System; Disposal 
of Coal Combustion Residuals from Electric Utilities published April 
17, 2015 in the Federal Register at 80 FR 21302. You can find a copy of 
the ICR in the docket for this action, and it is briefly summarized 
here.
    Respondents/affected entities: Coal-fired electric utility plants 
that will be affected by the rule.
    Respondent's obligation to respond: The recordkeeping, 
notification, and posting are mandatory as part of the minimum national 
criteria being promulgated under sections 1008, 4004, and 4005(a) of 
RCRA.
    Estimated number of respondents: 414.
    Frequency of response: The frequency of response varies.
    Total estimated burden: EPA estimates the total annual burden to 
respondents to be a reduction in burden of approximately 16,690 hours 
from the currently approved burden. Burden is defined at 5 CFR 
1320.3(b).
    Total estimated cost: The total estimated annual cost of this rule 
is a cost savings of approximately $4,752,588. This cost savings is 
composed of approximately $1,045,091 in annualized avoided labor costs 
and $3,707,497 in avoided capital or operation and maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This action is expected to result in net 
cost savings amounting to approximately $27.8 million per year to $31.4 
million per year when discounting at 7 percent and annualized over 100 
years. It is expected to result in net cost savings of between $15.5 
million and $19.1 million when discounting at 3 percent and annualized 
over 100 years. Savings will accrue to all regulated entities, 
including small entities. Further information on the economic effects 
of this action can be found in Unit V of this preamble and in the 
Regulatory Impact Analysis, which is available in the docket for this 
action. We have therefore concluded that this action will relieve 
regulatory burden for all directly regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. This action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector. The costs involved in this action are imposed only by 
participation in a voluntary federal program. UMRA generally excludes 
from the definition of ``federal intergovernmental mandate'' duties 
that

[[Page 36450]]

arise from participation in a voluntary federal program.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. For the ``Final Rule: Hazardous and Solid Waste 
Management System; Disposal of Coal Combustion Residuals from Electric 
Utilities'' published April 17, 2015 in the Federal Register at 80 FR 
21302, EPA identified three of the 414 coal-fired electric utility 
plants (in operation as of 2012) which are located on tribal lands; 
however, they are not owned by tribal governments. These are: (1) 
Navajo Generating Station in Coconino County, Arizona, owned by the 
Arizona Salt River Project; (2) Bonanza Power Plant in Uintah County, 
Utah, owned by the Deseret Generation and Transmission Cooperative; and 
(3) Four Corners Power Plant in San Juan County, New Mexico owned by 
the Arizona Public Service Company. The Navajo Generating Station and 
the Four Corners Power Plant are on lands belonging to the Navajo 
Nation, while the Bonanza Power Plant is located on the Uintah and 
Ouray Reservation of the Ute Indian Tribe. Under the WIIN Act, EPA is 
the permitting authority for CCR unites located in Indian Country. 
Moreover, since this action is expected to result in net cost savings 
to affected entities amounting to approximately $27.8 million per year 
to $31.4 million per year when discounting at 7 percent and annualized 
over 100 years, or in net cost savings of between $15.5 million per 
year and $19.1 million per year when discounting at 3 percent and 
annualized over 100 years, it will not have substantial direct effects 
on one or more Indian tribes. Thus, Executive Order 13175 does not 
apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risk and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because the EPA does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. This action's health and risk assessments are contained in 
the document titled ``Human and Ecological Risk Assessment of Coal 
Combustion Residuals'' which is available in the docket for the final 
rule as docket item EPA-HQ-RCRA-2009-0640-11993.
    As ordered by E.O. 13045 Section 1-101(a), for the ``Final Rule: 
Hazardous and Solid Waste Management System; Disposal of Coal 
Combustion Residuals from Electric Utilities'' published April 17, 2015 
in the Federal Register at 80 FR 21302, EPA identified and assessed 
environmental health risks and safety risks that may disproportionately 
affect children in the revised risk assessment. The results of the 
screening assessment found that risks fell below the criteria when 
wetting and run-on/runoff controls required by the rule are considered. 
Under the full probabilistic analysis, composite liners required by the 
rule for new waste management units showed the ability to reduce the 
90th percentile child cancer and non-cancer risks for the groundwater 
to drinking water pathway to well below EPA's criteria. Additionally, 
the groundwater monitoring and corrective action required by the rule 
reduced risks from current waste management units.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. For the 2015 CCR rule, EPA analyzed the 
potential impact on electricity prices relative to the ``in excess of 
one percent'' threshold. Using the Integrated Planning Model (IPM), EPA 
concluded that the 2015 CCR Rule may increase the weighted average 
nationwide wholesale price of electricity between 0.18 percent and 0.19 
percent in the years 2020 and 2030, respectively. As the final rule 
represents a cost savings rule relative to the 2015 CCR rule, this 
analysis concludes that any potential impact on wholesale electricity 
prices will be lower than the potential impact estimated of the 2015 
CCR rule; therefore, this final rule is not expected to meet the 
criteria of a ``significant adverse effect'' on the electricity markets 
as defined by Executive Order 13211.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
    The documentation for this decision is contained in EPA's 
Regulatory Impact Analysis (RIA) for the CCR rule which is available in 
the docket for the 2015 CCR final rule as docket item EPA-HQ-RCRA-2009-
0640-12034.
    EPA's risk assessment did not separately evaluate either minority 
or low-income populations. However, to evaluate the demographic 
characteristics of communities that may be affected by the CCR rule, 
the RIA compares the demographic characteristics of populations 
surrounding coal-fired electric utility plants with broader population 
data for two geographic areas: (1) One-mile radius from CCR management 
units (i.e., landfills and impoundments) likely to be affected by 
groundwater releases from both landfills and impoundments; and (2) 
watershed catchment areas downstream of surface impoundments that 
receive surface water run-off and releases from CCR impoundments and 
are at risk of being contaminated from CCR impoundment discharges 
(e.g., unintentional overflows, structural failures, and intentional 
periodic discharges).
    For the population as a whole 24.8 percent belong to a minority 
group and 11.3 percent falls below the Federal Poverty Level. For the 
population living within one mile of plants with surface impoundments 
16.1 percent belong to a minority group and 13.2 percent live below the 
Federal Poverty Level. These minority and low-income populations are 
not disproportionately high compared to the general population. The 
percentage of minority residents of the entire population living within 
the catchment areas downstream of surface impoundments is 
disproportionately high relative to the general population, i.e., 28.7 
percent, versus 24.8 percent for the national population. Also, the 
percentage of the population within the catchment areas of surface 
impoundments that is below the Federal Poverty Level is 
disproportionately high compared with the general population, i.e., 
18.6 percent versus 11.3 percent nationally.
    Comparing the population percentages of minority and low income

[[Page 36451]]

residents within one mile of landfills to those percentages in the 
general population, EPA found that minority and low-income residents 
make up a smaller percentage of the populations near landfills than 
they do in the general population, i.e., minorities comprised 16.6 
percent of the population near landfills versus 24.8 percent nationwide 
and low-income residents comprised 8.6 percent of the population near 
landfills versus 11.3 percent nationwide. In summary, although 
populations within the catchment areas of plants with surface 
impoundments appear to have disproportionately high percentages of 
minority and low-income residents relative to the nationwide average, 
populations surrounding plants with landfills do not. Because landfills 
are less likely than impoundments to experience surface water run-off 
and releases, catchment areas were not considered for landfills.
    The CCR rule is risk-reducing with reductions in risk occurring 
largely within the surface water catchment zones around, and 
groundwater beneath, coal-fired electric utility plants. Since the CCR 
rule is risk-reducing and this action does not add to risks, this 
action will not result in new disproportionate risks to minority or 
low-income populations.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 257

    Environmental protection, Beneficial use, Coal combustion products, 
Coal combustion residuals, Coal combustion waste, Disposal, Hazardous 
waste, Landfill, Surface impoundment.

    Dated: July 17, 2018.
Andrew R. Wheeler,
Acting Administrator.

    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is amended as follows:

PART 257--CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL 
FACILITIES AND PRACTICES

0
1. The authority citation for part 257 is revised to read as follows:

    Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 6944(a), 6945(d); 
33 U.S.C. 1345(d) and (e).


0
2. Section 257.53 is amended by adding the definitions of 
``Nonparticipating State'', ``Participating State'', and 
``Participating State Director'' in alphabetical order to read as 
follows:


Sec.  257.53  Definitions.

* * * * *
    Nonparticipating State means a State--
    (1) For which the Administrator has not approved a State permit 
program or other system of prior approval and conditions under RCRA 
section 4005(d)(1)(B);
    (2) The Governor of which has not submitted to the Administrator 
for approval evidence to operate a State permit program or other system 
of prior approval and conditions under RCRA section 4005(d)(1)(A);
    (3) The Governor of which provides notice to the Administrator 
that, not fewer than 90 days after the date on which the Governor 
provides the notice to the Administrator, the State will relinquish an 
approval under RCRA section 4005(d)(1)(B) to operate a permit program 
or other system of prior approval and conditions; or
    (4) For which the Administrator has withdrawn approval for a permit 
program or other system of prior approval and conditions under RCRA 
section 4005(d)(1)(E).
* * * * *
    Participating State means a state with a state program for control 
of CCR that has been approved pursuant to RCRA section 4005(d).
    Participating State Director means the chief administrative officer 
of any state agency operating the CCR permit program in a participating 
state or the delegated representative of the Participating State 
Director. If responsibility is divided among two or more state 
agencies, Participating State Director means the chief administrative 
officer of the state agency authorized to perform the particular 
function or procedure to which reference is made.
* * * * *

0
3. Section 257.60 is amended by revising paragraph (b) to read as 
follows:


Sec.  257.60   Placement above the uppermost aquifer.

* * * * *
    (b) The owner or operator of the CCR unit must obtain a 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority stating that the demonstration meets the 
requirements of paragraph (a) of this section.
* * * * *

0
4. Section 257.61 is amended by revising paragraph (b) to read as 
follows:


Sec.  257.61   Wetlands.

* * * * *
    (b) The owner or operator of the CCR unit must obtain a 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority stating that the demonstration meets the 
requirements of paragraph (a) of this section.
* * * * *

0
5. Section 257.62 is amended by revising paragraph (b) to read as 
follows:


Sec.  257.62  Fault areas.

* * * * *
    (b) The owner or operator of the CCR unit must obtain a 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority stating that the demonstration meets the 
requirements of paragraph (a) of this section.
* * * * *

0
6. Section 257.63 is amended by revising paragraph (b) to read as 
follows:


Sec.  257.63  Seismic impact zones.

* * * * *
    (b) The owner or operator of the CCR unit must obtain a 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority stating that the demonstration meets the 
requirements of paragraph (a) of this section.
* * * * *

0
7. Section 257.64 is amended by revising paragraph (c) to read as 
follows:


Sec.  257.64   Unstable areas.

* * * * *
    (c) The owner or operator of the CCR unit must obtain a 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority stating that the demonstration meets the 
requirements of paragraph (a) of this section.
* * * * *

0
8. Section 257.70 is amended by revising paragraphs (c)(2), (e), and 
(f) to read as follows:

[[Page 36452]]

Sec.  257.70  Design criteria for new CCR landfills and any lateral 
expansion of a CCR landfill.

* * * * *
    (c) * * *
    (2) The owner or operator must obtain certification from a 
qualified professional engineer or approval from the Participating 
State Director or approval from EPA where EPA is the permitting 
authority that the liquid flow rate through the lower component of the 
alternative composite liner is no greater than the liquid flow rate 
through two feet of compacted soil with a hydraulic conductivity of 
1x10-\7\ cm/sec. The hydraulic conductivity for the two feet 
of compacted soil used in the comparison shall be no greater than 
1x10-\7\ cm/sec. The hydraulic conductivity of any 
alternative to the two feet of compacted soil must be determined using 
recognized and generally accepted methods. The liquid flow rate 
comparison must be made using Equation 1 of this section, which is 
derived from Darcy's Law for gravity flow through porous media.
[GRAPHIC] [TIFF OMITTED] TR30JY18.002

Where:

Q = flow rate (cubic centimeters/second);
A = surface area of the liner (squared centimeters);
q = flow rate per unit area (cubic centimeters/second/squared 
centimeter);
k = hydraulic conductivity of the liner (centimeters/second);
h = hydraulic head above the liner (centimeters); and
t = thickness of the liner (centimeters).
* * * * *
    (e) Prior to construction of the CCR landfill or any lateral 
expansion of a CCR landfill, the owner or operator must obtain a 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority that the design of the composite liner (or, if 
applicable, alternative composite liner) and the leachate collection 
and removal system meets the requirements of this section.
    (f) Upon completion of construction of the CCR landfill or any 
lateral expansion of a CCR landfill, the owner or operator must obtain 
a certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority that the design of the composite liner (or, if 
applicable, alternative composite liner) and the leachate collection 
and removal system have been constructed in accordance with the 
requirements of this section.
* * * * *

0
9. Section 257.71 is amended by revising paragraph (b) to read as 
follows:


Sec.  257.71  Liner design criteria for existing CCR surface 
impoundments.

* * * * *
    (b) The owner or operator of the CCR unit must obtain a 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority attesting that the documentation as to whether a 
CCR unit meets the requirements of paragraph (a) of this section is 
accurate.
* * * * *

0
10. Section 257.72 is amended by revising paragraphs (c) and (d) to 
read as follows:


Sec.  257.72  Liner design criteria for new CCR surface impoundments 
and any lateral expansion of a CCR surface impoundment.

* * * * *
    (c) Prior to construction of the CCR surface impoundment or any 
lateral expansion of a CCR surface impoundment, the owner or operator 
must obtain certification from a qualified professional engineer or 
approval from the Participating State Director or approval from EPA 
where EPA is the permitting authority that the design of the composite 
liner or, if applicable, the design of an alternative composite liner 
complies with the requirements of this section.
    (d) Upon completion, the owner or operator must obtain 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority that the composite liner or if applicable, the 
alternative composite liner has been constructed in accordance with the 
requirements of this section.
* * * * *

0
11. Section 257.80 is amended by revising paragraph (b)(7) to read as 
follows:


Sec.  257.80  Air criteria.

* * * * *
    (b) * * *
    (7) The owner or operator must obtain a certification from a 
qualified professional engineer or approval from the Participating 
State Director or approval from EPA where EPA is the permitting 
authority that the initial CCR fugitive dust control plan, or any 
subsequent amendment of it, meets the requirements of this section.
* * * * *

0
12. Section 257.81 is amended by revising paragraph (c)(5) to read as 
follows:


Sec.  257.81   Run-on and run-off controls for CCR landfills.

* * * * *
    (c) * * *
    (5) The owner or operator must obtain a certification from a 
qualified professional engineer or approval from the Participating 
State Director or approval from EPA where EPA is the permitting 
authority stating that the initial and periodic run-on and run-off 
control system plans meet the requirements of this section.
* * * * *

0
13. Section 257.82 is amended by revising paragraph (c)(5) to read as 
follows:


Sec.  257.82   Hydrologic and hydraulic capacity requirements for CCR 
surface impoundments.

* * * * *
    (c) * * *
    (5) The owner or operator must obtain a certification from a 
qualified professional engineer or approval from the Participating 
State Director or approval from EPA where EPA is the permitting 
authority stating that the initial and periodic inflow design flood 
control system plans meet the requirements of this section.
* * * * *

0
14. Section 257.90 is amended by revising paragraph (a) and adding 
paragraph (g) to read as follows:


Sec.  Sec.  257.90   Applicability.

    (a) All CCR landfills, CCR surface impoundments, and lateral 
expansions of CCR units are subject to the groundwater monitoring and 
corrective action requirements under Sec. Sec.  257.90 through 257.99, 
except as provided in paragraph (g) of this section.
* * * * *
    (g) Suspension of groundwater monitoring requirements. (1) The 
Participating State Director or EPA where EPA is the permitting 
authority may suspend the groundwater monitoring requirements under 
Sec. Sec.  257.90 through 257.95 for a CCR unit for a period of up to 
ten years, if the owner or operator provides written documentation 
that, based on the characteristics of the site in which the CCR unit is 
located, there is no potential for migration of any of the constituents 
listed in appendices III and IV to this part from that CCR unit to the 
uppermost aquifer during the active life of the CCR unit and the post-
closure care period. This demonstration must be certified by a 
qualified professional

[[Page 36453]]

engineer and approved by the Participating State Director or EPA where 
EPA is the permitting authority, and must be based upon:
    (i) Site-specific field collected measurements, sampling, and 
analysis of physical, chemical, and biological processes affecting 
contaminant fate and transport, including at a minimum, the information 
necessary to evaluate or interpret the effects of the following 
properties or processes on contaminant fate and transport:
    (A) Aquifer Characteristics, including hydraulic conductivity, 
hydraulic gradient, effective porosity, aquifer thickness, degree of 
saturation, stratigraphy, degree of fracturing and secondary porosity 
of soils and bedrock, aquifer heterogeneity, groundwater discharge, and 
groundwater recharge areas;
    (B) Waste Characteristics, including quantity, type, and origin;
    (C) Climatic Conditions, including annual precipitation, leachate 
generation estimates, and effects on leachate quality;
    (D) Leachate Characteristics, including leachate composition, 
solubility, density, the presence of immiscible constituents, Eh, and 
pH; and
    (E) Engineered Controls, including liners, cover systems, and 
aquifer controls (e.g., lowering the water table). These must be 
evaluated under design and failure conditions to estimate their long-
term residual performance.
    (ii) Contaminant fate and transport predictions that maximize 
contaminant migration and consider impacts on human health and the 
environment.
    (2) The owner or operator of the CCR unit may renew this suspension 
for additional ten year periods by submitting written documentation 
that the site characteristics continue to ensure there will be no 
potential for migration of any of the constituents listed in Appendices 
III and IV of this part. The documentation must include, at a minimum, 
the information specified in paragraphs (g)(1)(i) and (g)(1)(ii) of 
this section and a certification by a qualified professional engineer 
and approved by the State Director or EPA where EPA is the permitting 
authority. The owner or operator must submit the documentation 
supporting their renewal request for the state's or EPA's review and 
approval of their extension one year before the groundwater monitoring 
suspension is due to expire. If the existing groundwater monitoring 
extension expires or is not approved, the owner or operator must begin 
groundwater monitoring according to paragraph (a) of this section 
within 90 days. The owner or operator may continue to renew the 
suspension for ten-year periods, provided the owner or operator 
demonstrate that the standard in paragraph (g)(1) of this section 
continues to be met for the unit. The owner or operator must place each 
completed demonstration in the facility's operating record.
    (3) The owner or operator of the CCR unit must include in the 
annual groundwater monitoring and corrective action report required by 
Sec.  257.90(e) or Sec.  257.100(e)(5)(ii) any approved no migration 
demonstration.

0
15. Section 257.91 is amended by revising paragraph (f) to read as 
follows:


Sec.  257.91  Groundwater monitoring systems.

* * * * *
    (f) The owner or operator must obtain a certification from a 
qualified professional engineer or approval from the Participating 
State Director or approval from EPA where EPA is the permitting 
authority stating that the groundwater monitoring system has been 
designed and constructed to meet the requirements of this section. If 
the groundwater monitoring system includes the minimum number of 
monitoring wells specified in paragraph (c)(1) of this section, the 
certification must document the basis supporting this determination.
* * * * *

0
16. Section 257.93 is amended by revising paragraph (f)(6) to read as 
follows:


Sec.  257.93   Groundwater sampling and analysis requirements.

* * * * *
    (f) * * *
    (6) The owner or operator of the CCR unit must obtain a 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority stating that the selected statistical method is 
appropriate for evaluating the groundwater monitoring data for the CCR 
management area. The certification must include a narrative description 
of the statistical method selected to evaluate the groundwater 
monitoring data.
* * * * *

0
17. Section 257.94 is amended by revising paragraphs (d)(3) and (e)(2) 
to read as follows:


Sec.  257.94  Detection monitoring program.

* * * * *
    (d) * * *
    (3) The owner or operator must obtain a certification from a 
qualified professional engineer or approval from the Participating 
State Director or approval from EPA where EPA is the permitting 
authority stating that the demonstration for an alternative groundwater 
sampling and analysis frequency meets the requirements of this section. 
The owner or operator must include the demonstration providing the 
basis for the alternative monitoring frequency and the certification by 
a qualified professional engineer or the approval from the 
Participating State Director or approval from EPA where EPA is the 
permitting authority in the annual groundwater monitoring and 
corrective action report required by Sec.  257.90(e).
    (e) * * *
    (2) The owner or operator may demonstrate that a source other than 
the CCR unit caused the statistically significant increase over 
background levels for a constituent or that the statistically 
significant increase resulted from error in sampling, analysis, 
statistical evaluation, or natural variation in groundwater quality. 
The owner or operator must complete the written demonstration within 90 
days of detecting a statistically significant increase over background 
levels to include obtaining a certification from a qualified 
professional engineer or approval from the Participating State Director 
or approval from EPA where EPA is the permitting authority verifying 
the accuracy of the information in the report. If a successful 
demonstration is completed within the 90-day period, the owner or 
operator of the CCR unit may continue with a detection monitoring 
program under this section. If a successful demonstration is not 
completed within the 90-day period, the owner or operator of the CCR 
unit must initiate an assessment monitoring program as required under 
Sec.  257.95. The owner or operator must also include the demonstration 
in the annual groundwater monitoring and corrective action report 
required by Sec.  257.90(e), in addition to the certification by a 
qualified professional engineer or approval from the Participating 
State Director or approval from EPA where EPA is the permitting 
authority.
* * * * *

0
18. Section 257.95 is amended by revising paragraphs (c)(3), 
(g)(3)(ii), (h)(2) and (3) to read as follows:


Sec.  257.95  Assessment monitoring program.

* * * * *
    (c) * * *
    (3) The owner or operator must obtain a certification from a 
qualified

[[Page 36454]]

professional engineer or approval from the Participating State Director 
or approval from EPA where EPA is the permitting authority stating that 
the demonstration for an alternative groundwater sampling and analysis 
frequency meets the requirements of this section. The owner or operator 
must include the demonstration providing the basis for the alternative 
monitoring frequency and the certification by a qualified professional 
engineer or the approval from the Participating State Director or the 
approval from EPA where EPA is the permitting authority in the annual 
groundwater monitoring and corrective action report required by Sec.  
257.90(e).
* * * * *
    (g) * * *
    (3) * * *
    (ii) Demonstrate that a source other than the CCR unit caused the 
contamination, or that the statistically significant increase resulted 
from error in sampling, analysis, statistical evaluation, or natural 
variation in groundwater quality. Any such demonstration must be 
supported by a report that includes the factual or evidentiary basis 
for any conclusions and must be certified to be accurate by a qualified 
professional engineer or approval from the Participating State Director 
or approval from EPA where EPA is the permitting authority. If a 
successful demonstration is made, the owner or operator must continue 
monitoring in accordance with the assessment monitoring program 
pursuant to this section, and may return to detection monitoring if the 
constituents in Appendix III and Appendix IV of this part are at or 
below background as specified in paragraph (e) of this section. The 
owner or operator must also include the demonstration in the annual 
groundwater monitoring and corrective action report required by Sec.  
257.90(e), in addition to the certification by a qualified professional 
engineer or the approval from the Participating State Director or the 
approval from EPA where EPA is the permitting authority.
* * * * *
    (h) * * *
    (2) For the following constituents:
    (i) Cobalt 6 micrograms per liter ([mu]g/l);
    (ii) Lead 15 [mu]g/l;
    (iii) Lithium 40 [mu]g/l; and
    (iv) Molybdenum 100 [mu]g/l.
    (3) For constituents for which the background level is higher than 
the levels identified under paragraphs (h)(1) and (h)(2) of this 
section, the background concentration.
* * * * *

0
19. Section 257.96 is amended by revising paragraph (a) to read as 
follows:


Sec.  257.96   Assessment of corrective measures.

    (a) Within 90 days of finding that any constituent listed in 
Appendix IV to this part has been detected at a statistically 
significant level exceeding the groundwater protection standard defined 
under Sec.  257.95(h), or immediately upon detection of a release from 
a CCR unit, the owner or operator must initiate an assessment of 
corrective measures to prevent further releases, to remediate any 
releases and to restore affected area to original conditions. The 
assessment of corrective measures must be completed within 90 days, 
unless the owner or operator demonstrates the need for additional time 
to complete the assessment of corrective measures due to site-specific 
conditions or circumstances. The owner or operator must obtain a 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority attesting that the demonstration is accurate. The 
90-day deadline to complete the assessment of corrective measures may 
be extended for no longer than 60 days. The owner or operator must also 
include the demonstration in the annual groundwater monitoring and 
corrective action report required by Sec.  257.90(e), in addition to 
the certification by a qualified professional engineer or the approval 
from the Participating State Director or the approval from EPA where 
EPA is the permitting authority.
* * * * *

0
20. Section 257.97 is amended by revising paragraph (a) to read as 
follows:


Sec.  257.97  Selection of remedy.

    (a) Based on the results of the corrective measures assessment 
conducted under Sec.  257.96, the owner or operator must, as soon as 
feasible, select a remedy that, at a minimum, meets the standards 
listed in paragraph (b) of this section. This requirement applies in 
addition to, not in place of, any applicable standards under the 
Occupational Safety and Health Act. The owner or operator must prepare 
a semiannual report describing the progress in selecting and designing 
the remedy. Upon selection of a remedy, the owner or operator must 
prepare a final report describing the selected remedy and how it meets 
the standards specified in paragraph (b) of this section. The owner or 
operator must obtain a certification from a qualified professional 
engineer or approval from the Participating State Director or approval 
from EPA where EPA is the permitting authority that the remedy selected 
meets the requirements of this section. The report has been completed 
when it is placed in the operating record as required by Sec.  
257.105(h)(12).
* * * * *

0
21. Section 257.98 is amended by revising paragraph (e) to read as 
follows:


Sec.  257.98  Implementation of the corrective action program.

* * * * *
    (e) Upon completion of the remedy, the owner or operator must 
prepare a notification stating that the remedy has been completed. The 
owner or operator must obtain a certification from a qualified 
professional engineer or approval from the Participating State Director 
or approval from EPA where EPA is the permitting authority attesting 
that the remedy has been completed in compliance with the requirements 
of paragraph (c) of this section. The report has been completed when it 
is placed in the operating record as required by Sec.  257.105(h)(13).
* * * * *

0
22. Section 257.101 is amended by revising paragraphs (a)(1) and (b)(1) 
to read as follows:


Sec.  257.101   Closure or retrofit of CCR units.

    (a) * * *
    (1) Except as provided by paragraph (a)(3) of this section, if at 
any time after October 19, 2015, an owner or operator of an existing 
unlined CCR surface impoundment determines in any sampling event that 
the concentrations of one or more constituents listed in appendix IV of 
this part are detected at statistically significant levels above the 
groundwater protection standard established under Sec.  257.95(h) for 
such CCR unit, within six months of making such determination or no 
later than October 31, 2020, whichever date is later, the owner or 
operator of the existing unlined CCR surface impoundment must cease 
placing CCR and non-CCR wastestreams into such CCR surface impoundment 
and either retrofit or close the CCR unit in accordance with the 
requirements of Sec.  257.102.
* * * * *
    (b) * * *
    (1)(i) Location standard under Sec.  257.60. Except as provided by 
paragraph (b)(4) of this section, the owner or operator of an existing 
CCR surface impoundment that has not demonstrated compliance with the 
location standard specified in Sec.  257.60(a) must cease placing CCR 
and non-CCR wastestreams into such CCR

[[Page 36455]]

unit no later than October 31, 2020, and close the CCR unit in 
accordance with the requirements of Sec.  257.102.
    (ii) Location standards under Sec. Sec.  257.61 through 257.64. 
Except as provided by paragraph (b)(4) of this section, within six 
months of determining that an existing CCR surface impoundment has not 
demonstrated compliance with any location standard specified in 
Sec. Sec.  257.61(a), 257.62(a), 257.63(a), and 257.64(a), the owner or 
operator of the CCR surface impoundment must cease placing CCR and non-
CCR wastestreams into such CCR unit and close the CCR unit in 
accordance with the requirements of Sec.  257.102.
* * * * *

0
23. Section 257.102 is amended by revising paragraphs (b)(4), 
(d)(3)(iii), (f)(3), (g), (h), (k)(2)(iv), (k)(4) and (k)(6) to read as 
follows:


Sec.  257.102  Criteria for conducting the closure or retrofit of CCR 
units.

* * * * *
    (b) * * *
    (4) The owner or operator of the CCR unit must obtain a written 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority that the initial and any amendment of the written 
closure plan meets the requirements of this section.
* * * * *
    (d) * * *
    (3) * * *
    (iii) The owner or operator of the CCR unit must obtain a written 
certification from a qualified professional engineer or approval from 
the Participating State Director or approval from EPA where EPA is the 
permitting authority that the design of the final cover system meets 
the requirements of this section.
* * * * *
    (f) * * *
    (3) Upon completion, the owner or operator of the CCR unit must 
obtain a certification from a qualified professional engineer or 
approval from the Participating State Director or approval from EPA 
where EPA is the permitting authority verifying that closure has been 
completed in accordance with the closure plan specified in paragraph 
(b) of this section and the requirements of this section.
    (g) No later than the date the owner or operator initiates closure 
of a CCR unit, the owner or operator must prepare a notification of 
intent to close a CCR unit. The notification must include the 
certification by a qualified professional engineer or the approval from 
the Participating State Director or the approval from EPA where EPA is 
the permitting authority for the design of the final cover system as 
required by Sec.  257.102(d)(3)(iii), if applicable. The owner or 
operator has completed the notification when it has been placed in the 
facility's operating record as required by Sec.  257.105(i)(7).
    (h) Within 30 days of completion of closure of the CCR unit, the 
owner or operator must prepare a notification of closure of a CCR unit. 
The notification must include the certification by a qualified 
professional engineer or the approval from the Participating State 
Director or the approval from EPA where EPA is the permitting authority 
as required by Sec.  257.102(f)(3). The owner or operator has completed 
the notification when it has been placed in the facility's operating 
record as required by Sec.  257.105(i)(8).
    (k) * * *
    (2) * * *
    (iv) The owner or operator of the CCR unit must obtain a written 
certification from a qualified professional engineer or an approval 
from the Participating State Director or an approval from EPA where EPA 
is the permitting authority that the activities outlined in the written 
retrofit plan, including any amendment of the plan, meet the 
requirements of this section.
* * * * *
    (4) Upon completion, the owner or operator must obtain a written 
certification from a qualified professional engineer or an approval 
from the Participating State Director or an approval from EPA where EPA 
is the permitting authority verifying that the retrofit activities have 
been completed in accordance with the retrofit plan specified in 
paragraph (k)(2) of this section and the requirements of this section.
* * * * *
    (6) Within 30 days of completing the retrofit activities specified 
in paragraph (k)(1) of this section, the owner or operator must prepare 
a notification of completion of retrofit activities. The notification 
must include the certification from a qualified professional engineer 
or an approval from the Participating State Director or an approval 
from EPA where EPA is the permitting authority has is required by 
paragraph (k)(4) of this section. The owner or operator has completed 
the notification when it has been placed in the facility's operating 
record as required by Sec.  257.105(j)(6).
* * * * *

0
24. Section 257.104 is amended by revising paragraphs (d)(1)(iii), 
(d)(4) and (e) to read as follows:


Sec.  257.104   Post-closure care requirements.

* * * * *
    (d) * * *
    (1) * * *
    (iii) A description of the planned uses of the property during the 
post-closure period. Post-closure use of the property shall not disturb 
the integrity of the final cover, liner(s), or any other component of 
the containment system, or the function of the monitoring systems 
unless necessary to comply with the requirements in this subpart. Any 
other disturbance is allowed if the owner or operator of the CCR unit 
demonstrates that disturbance of the final cover, liner, or other 
component of the containment system, including any removal of CCR, will 
not increase the potential threat to human health or the environment. 
The demonstration must be certified by a qualified professional 
engineer or approved by the Participating State Director or approved 
from EPA where EPA is the permitting authority, and notification shall 
be provided to the State Director that the demonstration has been 
placed in the operating record and on the owners or operator's publicly 
accessible internet site.
* * * * *
    (4) The owner or operator of the CCR unit must obtain a written 
certification from a qualified professional engineer or an approval 
from the Participating State Director or an approval from EPA where EPA 
is the permitting authority that the initial and any amendment of the 
written post-closure plan meets the requirements of this section.
    (e) Notification of completion of post-closure care period. No 
later than 60 days following the completion of the post-closure care 
period, the owner or operator of the CCR unit must prepare a 
notification verifying that post-closure care has been completed. The 
notification must include the certification by a qualified professional 
engineer or the approval from the Participating State Director or the 
approval from EPA where EPA is the permitting authority verifying that 
post-closure care has been completed in accordance with the closure 
plan specified in paragraph (d) of this section and the requirements of 
this section. The owner or operator has completed the notification when 
it has been placed in the facility's operating record as required by 
Sec.  257.105(i)(13).
* * * * *

[[Page 36456]]


0
25. Section 257.105 is amended by adding paragraph (h)(14) to read as 
follows:


Sec.  257.105  Recordkeeping requirements.

* * * * *
    (h) * * *
    (14) The demonstration, including long-term performance data, 
supporting the suspension of groundwater monitoring requirements as 
required by Sec.  257.90(g).
* * * * *

0
26. Section 257.106 is amended by adding paragraph (h)(11) to read as 
follows:


Sec.  257.106   Notification requirements.

* * * * *
    (h) * * *
    (11) Provide the demonstration supporting the suspension of 
groundwater monitoring requirements specified under Sec.  
257.105(h)(14).
* * * * *

0
27. Section 257.107 is amended by adding paragraph (h)(11) to read as 
follows:


Sec.  257.107  Publicly accessible internet site requirements.

* * * * *
    (h) * * *
    (11) The demonstration supporting the suspension of groundwater 
monitoring requirements specified under Sec.  257.105(h)(14).
* * * * *
[FR Doc. 2018-16262 Filed 7-27-18; 8:45 am]
 BILLING CODE 6560-50-P