Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments, 65015-65020 [2020-22058]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 85, Number 199 (Wednesday, October 14, 2020)]
[Proposed Rules]
[Pages 65015-65020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22058]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2020-0107; FRL-10015-46-OLEM]
RIN 2050-AH14


Hazardous and Solid Waste Management System: Disposal of Coal 
Combustion Residuals From Electric Utilities; Legacy CCR Surface 
Impoundments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance notice of proposed rulemaking.

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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. On August 21, 2018, the U.S. Court of Appeals for 
the District of Columbia Circuit issued its opinion in the case of 
Utility Solid Waste Activities Group, et al. v. EPA, which vacated and 
remanded the provision that exempted inactive impoundments at inactive 
facilities from the CCR regulations. As a first step to implement this 
part of the court decision, EPA is seeking comments in this advanced 
notice of proposed rulemaking (ANPRM) and data on inactive surface 
impoundments at inactive facilities to assist in the development of 
future regulations for these CCR units. This ANPRM also discusses the 
related research conducted to date, describes EPA's preliminary 
analysis of that research, and seeks additional data and public input 
on issues that may inform a future proposed rule.

DATES: Comments must be received on or before December 14, 2020.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2020-0107, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, OLEM Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
     Hand Delivery or Courier (by scheduled appointment only): 
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution 
Avenue NW, Washington, DC 20004. The Docket Center's hours of 
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal 
Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document. Out 
of an abundance of caution for members of the public and our staff, the 
EPA Docket Center and Reading Room are closed to the public, with 
limited exceptions, to reduce the risk of transmitting COVID-19. Our 
Docket Center staff will continue to provide remote customer service 
via email, phone, and webform. We encourage the public to submit 
comments via https://www.regulations.gov/ or email, as there may be a 
delay in processing mail and faxes. Hand deliveries and couriers may be 
received by scheduled appointment only. For further information on EPA 
Docket Center services and the current status, please visit us online 
at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: For questions concerning this ANPRM, 
contact Michelle Long, Office of Resource Conservation and Recovery, 
Materials Recovery and Waste Management Division, Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, MC: 5304P, Washington, 
DC 20460; telephone number: (703) 347-8953; email address: 
[email protected]. For more information on this rulemaking please 
visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Docket

    EPA has established a docket for this action under Docket ID No. 
EPA-HQ-OLEM-2020-0107. EPA has previously established a docket for the 
April 17, 2015, CCR final rule (80 FR 21302) under Docket ID No. EPA-
HQ-RCRA-2009-0640. All documents in the docket are listed in the 
https://www.regulations.gov index. Publicly available docket materials 
are available either electronically at https://www.regulations.gov or 
in hard copy at the EPA Docket Center. 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

[[Page 65016]]

number for the EPA Docket Center is (202) 566-1742.

B. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2020-
0107, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. EPA may publish 
any comment received to its public docket. Do not submit electronically 
any information you consider to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    EPA is temporarily suspending its Docket Center and Reading Room 
for public visitors, with limited exceptions, to reduce the risk of 
transmitting COVID-19. Our Docket Center staff will continue to provide 
remote customer service via email, phone, and webform. We encourage the 
public to submit comments via https://www.regulations.gov/ as there may 
be a delay in processing mail and faxes. Hand deliveries or couriers 
will be received by scheduled appointment only. For further information 
and updates on EPA Docket Center services, please visit us online at 
https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

C. Submitting CBI

    Do not submit information that you consider to be CBI 
electronically through https://www.regulations.gov or email. Send or 
deliver information identified as CBI to only the following address: 
ORCR Document Control Officer, Mail Code 5305-P, Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
Attn: Docket ID No. EPA-HQ-OLEM-2020-0107.
    Clearly mark the part or all of the information that you claim to 
be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, 
mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. If you submit a CD-ROM or disk that 
does not contain CBI, mark the outside of the disk or CD-ROM clearly 
that it does not contain CBI. Information marked as CBI will not be 
disclosed except in accordance with procedures set forth in 40 Code of 
Federal Regulations (CFR) part 2.

II. General Information

A. Does this action apply to me?

    A future rulemaking for inactive (``legacy'') CCR surface 
impoundments potentially applies to owners and operators of 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 contemplating?

    EPA is seeking comments and data on legacy CCR surface impoundments 
at inactive facilities to assist in the development of future 
regulations for these CCR units. This action is in response to the 
August 21, 2018 opinion by the U.S. Court of Appeals for the District 
of Columbia Circuit (Utility Solid Waste Activities Group, et al. v. 
EPA) that vacated and remanded the provision that exempted inactive 
impoundments at inactive facilities from the 2015 CCR rule.
    By this document, EPA is seeking public input on key issues at this 
preliminary stage to inform its thinking on any future proposed 
rulemaking. EPA is not reopening any existing regulations through this 
ANPRM.

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

    EPA is publishing this document under the authority of sections 
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. 6907(a), 6912(a), 6944, and 6945(a) and 
(d).

III. Background

    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) (2015 CCR rule or CCR regulations). 
The 2015 CCR rule, codified in subpart D of part 257 of Title 40 of the 
Code of Federal Regulations, established regulations for existing and 
new CCR landfills and existing and new CCR surface impoundments and all 
lateral expansions of CCR units. The criteria consist of location 
restrictions, design and operating criteria, groundwater monitoring and 
corrective action requirements, closure and post-closure care 
requirements, recordkeeping, notification and internet posting 
requirements.
    The 2015 CCR rule regulated existing and new CCR landfills and 
existing and new CCR surface impoundments and all lateral expansions of 
CCR units. The rule also imposed requirements on inactive surface 
impoundments \1\ at active facilities,\2\ but did not impose

[[Page 65017]]

requirements on inactive surface impoundments at inactive facilities. 
The preamble to the 2015 CCR final rule (80 FR 21344) explained that 
inactive units at inactive facilities were not covered by the rule in 
part due to possible complications that were specific to inactive or 
closed facilities: The concern that the present owner of the land on 
which an inactive site was located might have no connection (other than 
present ownership of the land) with the prior disposal activities. For 
that reason, EPA exempted those units at Sec.  257.50(e).
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    \1\ An ``inactive CCR surface impoundment'' is defined at Sec.  
257.53 as a CCR surface impoundment that no longer received CCR on 
or after October 19, 2015 and still contains both CCR and liquids on 
or after October 19, 2015.
    \2\ An ``active facility or active electric utilities or 
independent power producers'' is defined at Sec.  257.53 as any 
facility subject to the requirements of this subpart that is in 
operation on October 19, 2015. An electric utility or independent 
power producer is in operation if it is generating electricity that 
is provided to electric power transmission systems or to electric 
power distribution systems on or after October 19, 2015. An off-site 
disposal facility is in operation if it is accepting or managing CCR 
on or after October 19, 2015.
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    The rule was challenged by several parties, including a coalition 
of regulated entities and a coalition of environmental organizations 
(``Environmental Petitioners''). Environmental Petitioners raised two 
challenges that are relevant to this ANPRM: First, they challenged the 
provision that allowed existing, unlined surface impoundments to 
continue to operate until they exceeded the groundwater protection 
standard. See Sec.  257.101(a)(1). They contended that EPA failed to 
show how continued operation of unlined impoundments met RCRA's 
baseline requirement that any solid waste disposal site pose ``no 
reasonable probability of adverse effects on health or the 
environment.'' 42 U.S.C. 6944(a). Secondly, Environmental Petitioners 
challenged the provisions exempting inactive surface impoundments at 
inactive power plants (i.e., ``legacy ponds'') from regulation. The 
environmental petitioners argued that legacy ponds are at risk of 
unmonitored leaks and catastrophic structural failures. The U.S. Court 
of Appeals for the D.C. Circuit issued its decision on August 21, 2018. 
The Court upheld most of the rule but ruled for the environmental 
petitioners on these two claims. The court held that EPA acted 
``arbitrarily and capriciously and contrary to RCRA'' in failing to 
require the closure of unlined surface impoundments \3\ and in 
exempting inactive surface impoundments at inactive power plants from 
regulation. The court ordered that these provisions be vacated and 
remanded back to the Agency. Utility Solid Waste Activities Group 
(USWAG), et al. v. EPA, 901 F.3d 414 (D.C. Cir. 2018). This decision is 
referred to as the `USWAG decision' in this ANPRM.
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    \3\ Unlined CCR surface impoundments were addressed in a 
separate regulatory action that was published on August 28, 2020 (85 
FR 53516).
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    In overturning the exemption for legacy ponds, the court pointed to 
evidence from the 2015 CCR rule that legacy ponds are most likely to be 
unlined and unmonitored and have been shown to be more likely to leak 
than units at utilities still in operation, therefore these units are 
at risk of leaks and catastrophic structural failures. The court stated 
that legacy ponds pose the same threats to human health and the 
environment as the riskiest coal residuals disposal methods, compounded 
by diminished preventative and remediation oversight due to the absence 
of an onsite owner and daily monitoring. See 80 FR at 21343 through 
21344 (finding that the greatest disposal risks are ``primarily driven 
by the older existing units, which are generally unlined''). For these 
reasons, the court vacated and remanded the provision of the 2015 CCR 
rule that exempted inactive impoundments at inactive facilities from 
regulation, at Sec.  257.50(e). Until EPA finalizes amendments to the 
regulations to effectuate the court's order, facilities are not legally 
obliged to take any action to comply with the federal CCR regulations. 
As currently drafted, nothing in Sec.  257.50 would bring inactive 
surface impoundments at inactive facilities within the scope of the 
federal CCR regulations.

IV. What information is EPA seeking?

    In this action, EPA is seeking additional information related to 
inactive surface impoundments at inactive facilities, referred to as 
``legacy'' CCR surface impoundments throughout this preamble, to better 
inform a future rulemaking. The Agency is seeking input on regulatory 
authority and a potential definition of a legacy CCR surface 
impoundment. It is also soliciting specific information on the types of 
inactive surface impoundments at inactive facilities that might be 
considered legacy CCR surface impoundments. In particular, EPA is 
requesting information on how many of these units might exist, their 
current status (e.g., capped, dry, closed according to state 
requirements, still holding water), and names and locations of former 
power plants that may have these units and when they closed. Finally, 
the Agency is taking comment on which CCR regulations should apply to 
legacy CCR surface impoundments and on suggestions for timeframes that 
EPA should prescribe for coming into compliance with those regulations.

A. EPA Regulatory Authority

    As discussed in the preamble to the final 2015 CCR rule (80 FR 
21302, April 17, 2015), EPA has previously interpreted RCRA subtitle D 
to grant it the authority to regulate both active units--i.e., those 
landfills and impoundments that receive waste after the effective date 
of the regulation--and inactive units--those landfills and impoundments 
which ceased receiving waste before the effective date of the 
regulation. 80 FR at 21342 through 21346.
    A challenge to this interpretation in the context of EPA's 
regulation of inactive units at currently operating power plants in the 
2015 CCR rule was rejected by a panel of the D.C. Circuit in Utility 
Solid Waste Activities Group, et al. v. EPA, 901 F.3d 414 (D.C. Cir. 
2018) (``USWAG decision''), which concluded that ``resolution of this 
issue begins and ends with RCRA's plain text.'' Id. at 440. The court 
focused on the phrase ``is disposed of'' in the statutory definition of 
an open dump, concluding that ``while the `is' retains its active 
present tense, the `disposal' takes the form of a past participle 
(`disposed').'' In this way the disposal itself can exist (`it is') 
even if the act of disposal took place at some prior time.'' Id. 
(citations omitted). Based on this reading, the court concluded that 
``an open dump includes any facility (other than a sanitary landfill or 
hazardous waste disposal facility) where solid waste still `is 
deposited,' 'is dumped,' `is spilled,' `is leaked,' or `is placed,' 
regardless of when it might originally have been dropped off. In other 
words, the waste in an inactive impoundment `is disposed of' at a site 
no longer receiving new waste in just the same way that it `is disposed 
of' at a site that is still operating.'' Id. The court also opined that 
``[e]ven if the text were ambiguous, EPA's interpretation is eminently 
reasonable under Chevron step two.'' Id. at 442. Judge Henderson wrote 
separately and concluded that ``the text--and more precisely, the 
grammatical structure--of RCRA's definition of `open dump' is 
temporally ambiguous'' and that EPA's interpretation of its authority 
to regulate inactive units was a reasonable interpretation of that 
ambiguity under Chevron step two. Id. at 451 (Henderson, J., concurring 
in part and concurring in the judgment).
    EPA requests comment on whether, in light of the court's opinion in 
the USWAG decision, the Agency has the discretion to reinterpret the 
extent of its authority under RCRA subtitle D. See Nat'l Cable & 
Telecommunications

[[Page 65018]]

Ass'n v. Brand X internet Servs., 545 U.S. 967, 981 (2005). If EPA has 
the discretion to revisit its interpretation (including potentially 
identifying an alternative basis for not regulating inactive surface 
impoundments at inactive facilities (``legacy CCR surface 
impoundments'') while addressing the court's concern about risk), EPA 
requests comment on whether (and, if so, why) it should interpret its 
authority, whether for technical and policy reasons or for other 
reasons, to extend only to units that were in operation after November 
1980 or to some other smaller set of units. If EPA does not revisit the 
extent of its authority to regulate inactive units, EPA requests 
comment on how far back in time it should reach and whether EPA should 
regulate units differently based on when they became inactive. In 
addition, EPA requests comment as to whether EPA's regulation of 
inactive units should be limited to only units at former power plants 
that sold electric power to the grid or whether it should also reach 
units at former power plants that provided power to a single site or 
facility. EPA generally requests comment on the technical, policy, and 
legal rationales for any distinctions that commenters believe it is 
appropriate for EPA to draw in this area or with respect to other 
topics that are subject to this advance notice of proposed rulemaking.

B. Definition

    EPA is considering several options to define a legacy CCR surface 
impoundment. For example, EPA could define a legacy CCR surface 
impoundment as:
    A surface impoundment that is located at a power plant that ceased 
generating power prior to October 19, 2015 and
     Option 1--the surface impoundment contained both CCR and 
liquids on the effective date of the 2015 CCR rule (i.e., October 19, 
2015); or
     Option 2--the surface impoundment contained both CCR and 
liquids on the date the Court issued its mandate for the August 21, 
2018 court decision (i.e., October 15, 2018); or
     Option 3--the surface impoundment contains both CCR and 
liquids on the date EPA issues a final rule bringing legacy CCR surface 
impoundments under the federal regulations.
    EPA is specifically requesting comment on these options for the 
definition of legacy CCR surface impoundments. EPA provided three 
options for the definition of legacy CCR surface impoundment because 
the Agency is soliciting comment from the public on which option is 
best for this newly regulated universe and when such units contained 
both CCR and liquids. EPA does not have an estimated number of units 
that would be classified under each definition option at this time.
    Furthermore, EPA requests comment on how the current owner of the 
legacy CCR surface impoundment should be defined. In particular, should 
there be a definition of innocent owner that would exclude certain 
qualifying landowners from regulation? If so, what should be the 
criteria? Should, for example, criteria be based on, or similar to, the 
criteria for the landowner liability protections under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), commonly known as Superfund, see, https://www.epa.gov/enforcement/landowner-liability-protections#ild? To the extent that 
certain landowners are exempted from the CCR rule requiring owners 
ensure impoundments meet the national minimum criteria, how should EPA 
address the impoundments under their ownership? Relatedly, for this 
potential subset of impoundments and for other, abandoned impoundments 
that may still contain CCR and liquids, but do not have an identifiable 
owner/operator, or for impoundments whose ownership has been 
transferred, should EPA evaluate other authorities, (such as CERCLA), 
or state programs, to address those units?

C. Size of Universe

    The USWAG decision referenced a database that identifies legacy 
ponds and their owners that was included in the Regulatory Impact 
Analysis supporting EPA's Proposed RCRA Regulation of Coal Combustion 
Residues.\4\ Upon further examination, it appears that these data 
include all the units that the Agency could identify at the time, not 
just inactive surface impoundments at inactive facilities.
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    \4\ A copy of Information Request Responses from Electric 
Utilities (April 30, 2010) is available in the docket to this 
action.
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    EPA is requesting information on any known inactive surface 
impoundments at inactive power plants as of the effective date of the 
2015 CCR rule, October 19, 2015. For example,
     Plant name (or former plant name);
     Location;
     If known, retirement year of power plant;
     If known, status of unit (e.g., still holding water);
     If known the year the surface impoundment ceased receipt 
of waste and whether the unit has gone through any sort of closure 
process;
     Any characteristics of the unit (e.g., size, volume); or
     Any other available information about the inactive surface 
impoundment.
    Additionally, should there be a size limitation for legacy CCR 
surface impoundments?
    Approximately 10 states have reported to EPA that they have 
estimated a total of 37 possible legacy CCR surface impoundments within 
their states. USWAG, after surveying their members, indicated they know 
of 45 units that could possibly be legacy CCR surface impoundments. 
Data showing approximately 140 facilities that have been reported to 
have one or more CCR units (boilers) retired or gone out of service 
between January of 1993 and October of 2015 were provided to EPA by the 
Department of Energy (DOE).\5\ Those facilities are assumed to be 
closed because they do not have publicly accessible websites posted as 
required by the 2015 CCR rule. Some of these facilities may have been 
small power plants that did not generate electricity (or electricity 
and heat) for sale to the public, so any impoundments at those 
facilities would not be covered under 40 CFR part 257, subpart D. 
However, EPA could determine to expand the definition of legacy CCR 
surface impoundment to cover small power plant facilities that did not 
generate electricity for the sale to the public. However, CCR surface 
impoundments (if they exist) at the other facilities could potentially 
be considered legacy CCR surface impoundments.
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    \5\ These data are from DOE's contractor, Energy Ventures 
Analysis, as of March 1, 2019. A copy of ``DOE-Energy Ventures 
Analysis Coal Unit Retirements--Historical + Announced March 1, 
2019'' is available in the docket for this rulemaking.
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    In this same DOE database, approximately 110 coal units were listed 
as retired or otherwise not burning coal but are located at facilities 
that have posted a publicly accessible website containing CCR 
compliance data and information. Given the existence of those websites, 
any potential surface impoundments at facilities with closed units 
would already be regulated as inactive impoundments at active 
facilities and would not be considered legacy CCR surface impoundments.

D. Applicable Regulations and Time To Come Into Compliance

    The Agency specifically requests comment on which of the 
requirements of the 2015 CCR rule should apply to legacy CCR surface 
impoundments and

[[Page 65019]]

whether other new requirements should apply to legacy CCR surface 
impoundments. EPA has tentatively identified certain requirements from 
the 2015 CCR rule that should apply to legacy CCR surface impoundments.
    For instance, the establishment of a publicly accessible CCR 
website(s) by the companies or States may be appropriate to give the 
Agency and public the ability to track groundwater monitoring and 
closure progress for these units. The 2015 CCR rule requires that 
owners and operators of CCR units establish a publicly accessible 
internet site where they are required to post compliance information. 
The posting requirements include, for example, compliance information 
related to location restrictions, type of liner system, surface 
impoundment structural integrity information including hazard potential 
classification structural stability and safety factor assessments, 
fugitive dust control plans and annual reports, run-on and run-off 
controls for landfills, hydrologic and hydraulic capacity plans for 
surface impoundments, periodic inspections of CCR units, groundwater 
monitoring information including the annual groundwater monitoring and 
corrective action reports, and information related to closure or 
retrofit of a CCR unit and post-closure care. EPA is also interested in 
any potential liabilities associated with generating and maintaining a 
public website by owners or operators and local governments.
    Also, because the Agency anticipates that many or all legacy CCR 
surface impoundments will be found to be unlined, and thus will be 
required to close, the groundwater monitoring, corrective action, 
closure and post-closure care requirements would be appropriate. EPA is 
requesting comment on who should be responsible for complying with 
existing requirements such as groundwater monitoring, corrective 
action, closure and post-closure care requirements.
    Another technical requirement that may be appropriate for legacy 
CCR surface impoundments would be the fugitive dust requirements. This 
is because CCR could become airborne during closure of the unit and 
thus effectively minimizing releases would be appropriate.
    However, some CCR rule requirements may not be necessary to apply 
to legacy CCR surface impoundments given that the legacy surface 
impoundments are no longer receiving waste. For example, certain 
location restrictions demonstrations (e.g., whether the legacy surface 
impoundment is located in a fault area or seismic impact zone) may not 
be a necessary requirement for unlined legacy CCR surface impoundments 
because unlined surface impoundments would likely be subject to a 
requirement to close.
    Another CCR rule requirement that may not be warranted for unlined 
legacy CCR surface impoundments is the provision to provide specific 
design and construction information pertaining to the CCR unit. One 
example in this provision is to provide area-capacity curves for the 
CCR unit, which show the reservoir water surface area at different 
water levels and the volume of the water contained in the unit at these 
different water elevations. It may not be warranted to require owners 
of legacy CCR surface impoundments to expend resources to compile this 
information for units likely to be subject to closure.
    There may be additional standards or controls that are not required 
under the 2015 CCR rule that may be appropriate for legacy CCR surface 
impoundments. For instance, the posting of general information on the 
legacy CCR surface impoundment such as size, location, applicable state 
requirements, plant information, etc., could be useful.
    The Agency could also consider a site security requirement for the 
facility to restrict access to the area containing the legacy CCR 
surface impoundment, since active facilities generally have guards and 
fencing. The Agency solicits comment on which additional standards or 
controls may be appropriate for legacy CCR surface impoundments.
    In addition, EPA will need to determine the compliance deadlines 
for CCR surface impoundment regulations. The Agency would likely 
consider that a publicly accessible website would be required to be 
activated by the effective date of the rule. For other requirements, 
the Agency could base the timing on the timeline laid out in the 2015 
CCR rule or from subsequent CCR rulemakings,\6\ \7\ \8\ allowing 
approximately the same amount of time for legacy CCR surface 
impoundments to come into compliance as the active CCR surface 
impoundments. However, the timeline specified in the 2015 CCR rule was 
based in part on the owner or operator of the unit having to go through 
a series of steps to determine if the unit would be required to close. 
In the case of unlined inactive CCR surface impoundments at inactive 
facilities, it may be reasonable to assume that some owners and 
operators of these units have known that they may need to close such 
units since October 15, 2018 (i.e., the date the Court issued its 
mandate for the August 21, 2018 USWAG decision). Because of this, and 
because neither the unit nor the power plant are operating, some owners 
and operators may have begun preparing for closure and thus could close 
in less time than was EPA has provided for active surface impoundments. 
The Agency specifically requests comment on the issue of appropriate 
compliance deadlines for the applicable requirements for legacy CCR 
surface impoundments. In addition, EPA is requesting comment on the 
establishment of publicly accessible websites, and specifically seeking 
input of who should establish and host the website, such as an owner or 
operator, a state or local government, or EPA.
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    \6\ 81 FR 51807, Aug. 5, 2016.
    \7\ 83 FR 36452, July 30, 2018.
    \8\ 85 FR 53516, Aug. 28, 2020.
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    In cases where significant vegetation or sensitive ecosystems are 
in place, should EPA take into account the impacts of disrupting that 
ecosystem when determining what actions should be imposed? Can the 
agency simply require notice and no further action under some 
circumstances? If so, what would those be, and why?

V. Request for Comment and Additional Information

    EPA is seeking comment on all questions and topics described in 
this ANPRM, including the questions and issues identified in Unit IV, 
and requests that you submit any information, which may not be included 
in this document, that you believe is important for EPA to consider in 
connection with these questions and topics. At the same time, EPA does 
not plan to consider comments that are beyond the scope of the 
questions and topics described in this ANPRM.
    Instructions for providing written comments are provided under 
ADDRESSES, including how to submit any comments that contain CBI.

VI. What are the next steps EPA will take?

    EPA intends to carefully review all the comments and information 
received in response to this ANPRM. Once that review is completed, EPA 
may supplement the collected information, as appropriate, to determine 
which regulatory criteria should apply to legacy CCR surface 
impoundments. The next step will be to submit an information collection 
request to OMB, or if EPA determines that additional information is not 
needed, EPA will publish a proposed rule with the input from this ANPRM 
and other publicly available information. The anticipated date for 
issuing the proposed rule is July 2021. At that time, the public will 
have

[[Page 65020]]

the opportunity to comment on EPA's proposal.

VII. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), this action 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 for this action. Because this action does not impose or 
propose any requirements, and instead seeks comments and suggestions 
for the Agency to consider in possibly developing a subsequent proposed 
rule, other statutory and Executive Order reviews that apply to 
rulemaking do not apply to this action. Should EPA subsequently 
determine to pursue a rulemaking, EPA will address the statutes and 
Executive Order as applicable to the rulemaking.
    Nevertheless, the Agency welcomes comments and/or information that 
would help the Agency to assess any of the following: The potential 
impact of a rule on small entities pursuant to the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601 et seq.); potential impacts on 
federal, state, or local governments pursuant to the Unfunded Mandates 
Reform Act ((UMRA) (2 U.S.C. 1531-1538); federalism implications 
pursuant to Executive Order 13132, entitled Federalism (64 FR 43255, 
November 2, 1999); availability of voluntary consensus standards 
pursuant to section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law 104-113; tribal 
implications pursuant to Executive Order 13175, entitled Consultation 
and Coordination with Indian Tribal Governments (65 FR 67249, November 
6, 2000); environmental health or safety effects on children pursuant 
to Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997); energy effects pursuant to Executive Order 13211, entitled 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001); Paperwork burdens 
pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C. 3501); or 
human health or environmental effects on minority or low-income 
populations pursuant to Executive Order 12898, entitled Federal Actions 
to Address Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994). The Agency will consider 
such comments during the development of any subsequent proposed 
rulemaking.

List of Subjects in 40 CFR Part 257

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

Andrew Wheeler,
Administrator.
[FR Doc. 2020-22058 Filed 10-13-20; 8:45 am]
BILLING CODE 6560-50-P