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Proposed Rule2023-10048

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

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Published

May 18, 2023

Issuing agencies

Environmental Protection Agency

Abstract

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 United States Court of Appeals for the District of Columbia Circuit vacated the exemption for inactive surface impoundments at inactive facilities and remanded the issue back to EPA to take further action consistent with the opinion in Utility Solid Waste Activities Group, et al. v. EPA. The Agency is proposing to establish regulatory requirements for inactive surface impoundments at inactive facilities (legacy CCR surface impoundments). EPA is also proposing to establish groundwater monitoring, corrective action, closure, and post-closure care requirements for all CCR management units (regardless of how or when that CCR was placed) at regulated CCR facilities. EPA is also proposing several technical corrections to the existing regulations, such as correcting certain citations and harmonizing definitions.

Full Text

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<title>Federal Register, Volume 88 Issue 96 (Thursday, May 18, 2023)</title>
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[Federal Register Volume 88, Number 96 (Thursday, May 18, 2023)]
[Proposed Rules]
[Pages 31982-32044]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10048]

[[Page 31981]]

Vol. 88

Thursday,

No. 96

May 18, 2023

Part IV

Environmental Protection Agency

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40 CFR Part 257

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

Federal Register / Vol. 88, No. 96 / Thursday, May 18, 2023 /
Proposed Rules

[[Page 31982]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2020-0107; FRL-7814-02-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: Proposed 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. On August 21, 2018, the United States Court of
Appeals for the District of Columbia Circuit vacated the exemption for
inactive surface impoundments at inactive facilities and remanded the
issue back to EPA to take further action consistent with the opinion in
Utility Solid Waste Activities Group, et al. v. EPA. The Agency is
proposing to establish regulatory requirements for inactive surface
impoundments at inactive facilities (legacy CCR surface impoundments).
EPA is also proposing to establish groundwater monitoring, corrective
action, closure, and post-closure care requirements for all CCR
management units (regardless of how or when that CCR was placed) at
regulated CCR facilities. EPA is also proposing several technical
corrections to the existing regulations, such as correcting certain
citations and harmonizing definitions.

DATES:
Comments due: Comments must be received on or before July 17, 2023.
Public Hearing: EPA will hold an in-person public hearing on June
28, 2023 and a virtual public hearing on July 12, 2023. Please refer to
the SUPPLEMENTARY INFORMATION section for additional information on the
public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2020-0107, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Land and Emergency Management (OLEM) Docket, Mail
Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
<bullet> 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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, 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.

FOR FURTHER INFORMATION CONTACT: For questions concerning this
proposal, contact Michelle Lloyd, Office of Resource Conservation and
Recovery, Materials Recovery and Waste Management Division,
Environmental Protection Agency, 1200 Pennsylvania Avenue NW, MC:
5304T, Washington, DC 20460; telephone number: (202) 566-0560; email
address: <a href="/cdn-cgi/l/email-protection#9dd1f1f2e4f9b3d0f4fef5f8f1f1f8ddf8edfcb3faf2eb">[email&#160;protected]</a>. For more information on this
rulemaking please visit <a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
A. Written Comments
B. Participation in In-Person Public Hearing
C. Participation in Virtual Public Hearing
II. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
D. What are the incremental costs and benefits of this action?
III. Background
A. 2015 CCR Rule
B. 2018 USWAG Decision
C. 2020 Advance Notice of Proposed Rulemaking
IV. What is EPA proposing?
A. Legacy CCR Surface Impoundment Requirements
B. CCR Management Unit Requirements
C. Technical Corrections
V. Effect on State CCR Permit Programs
VI. The Projected Economic Impact of This Action
VII. Statutory and Executive Order Reviews
Regulatory Text

List of Acronyms

ACM Assessment of Corrective Measures
ANPRM Advance Notice of Proposed Rulemaking
ASD alternative source demonstration
CAA Clean Air Act
CBI Confidential Business Information
CCR coal combustion residuals
CCRMU coal combustion residuals management unit
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act
CFR Code of Federal Regulations
CWA Clean Water Act
EAP Emergency Action Plan
EJ environmental justice
ELG Effluent Limitation Guidelines
EPA Environmental Protection Agency
EPRI Electric Power Research Institute
FR Federal Register
GWMCA groundwater monitoring and corrective action
GWPS groundwater protection standard
HQ hazard quotient
HSWA Hazardous and Solid Waste Amendments
ICR Information Collection Request
LEAF Leaching Environmental Assessment Framework
MCL maximum contaminant level
NAICS North American Industry Classification System
NPDES National Pollution Discharge Elimination System
NPL National Priorities List
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PM particulate matter
PRA Paperwork Reduction Act
PUC Public Utility Commission
QA/QC quality assurance/quality control
RCRA Resource Conservation and Recovery Act
RIA Regulatory Impact Analysis
SSI statistically significant increase
SSL statistically significant level
TDS total dissolved solids
TSCA Toxic Substances Control Act
TSDF Transportation Storage and Disposal Facility
USGS U.S. Geological Survey
USWAG Utility Solid Waste Activities Group
WIIN Water Infrastructure Improvements for the Nation

I. Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2020-
0107, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (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 to EPA's
docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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.

[[Page 31983]]

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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.

B. Participation in In-Person Public Hearing

EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the hearing, please use the online registration form available
on EPA's CCR website (<a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>) or contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
register to speak at the hearing. The last day to pre-register to speak
at the hearing will be June 26, 2023. On June 27, 2023, EPA will post a
general agenda for the hearing on EPA's CCR website (<a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>).
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be taken the day of the hearing at
the hearing registration desk. EPA will make every effort to
accommodate all speakers who arrive and register, although preferences
on speaking times may not be able to be fulfilled.
Each commenter will have five (5) minutes to provide oral
testimony. EPA encourages commenters to provide EPA with a copy of
their oral testimony electronically by emailing it to the person listed
in the FOR FURTHER INFORMATION CONTACT section. EPA also recommends
submitting the text of your oral comments as written comments to the
rulemaking docket. If EPA is anticipating a high attendance, the time
allotment per testimony may be shortened to no shorter than three (3)
minutes per person to accommodate all those wishing to provide
testimony and who have pre-registered. While EPA will make every effort
to accommodate all speakers who do not preregister, opportunities to
speak may be limited based upon the number of pre-registered speakers.
Therefore, EPA strongly encourages anyone wishing to speak to
preregister. Participation in the public hearing does not preclude any
entity or individual from submitting a written comment.
EPA may ask clarifying questions during the oral presentations but
will not respond to the presentations at that time. Written statements
and supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearing.
Please note that any updates made to any aspect of the hearing are
posted online at EPA's CCR website at <a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>.
While EPA expects the hearing to go forward as set forth above, please
monitor our website or contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to determine if there are any updates. EPA
does not intend to publish a document in the Federal Register
announcing updates.
If you require the services of an interpreter or special
accommodations such as audio transcription, please pre-register for the
hearing with the person listed in the FOR FURTHER INFORMATION CONTACT
section and describe your needs by June 14, 2023. EPA may not be able
to arrange accommodations without advance notice.

C. Participation in Virtual Public Hearing

EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the hearing, please use the online registration form available
on EPA's CCR website (<a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>) or contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
register to speak at the virtual hearing. The last day to pre-register
to speak at the hearing will be July 10, 2023. On July 11, 2023, EPA
will post a general agenda for the hearing on EPA's CCR website at:
<a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>.
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be taken the day of the hearing
according to the procedures specified on EPA's CCR website (<a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>) for this hearing. The Agency will make every
effort to accommodate all speakers who arrive and register, although
preferences on speaking times may not be able to be fulfilled.
Each commenter will have five (5) minutes to provide oral
testimony. EPA encourages commenters to provide the EPA with a copy of
their oral testimony electronically (via email) by emailing it to
person listed in the FOR FURTHER INFORMATION CONTACT section. If EPA is
anticipating a high attendance, the time allotment per testimony may be
shortened to no shorter than three (3) minutes per person to
accommodate all those who wish to provide testimony and have pre-
registered. While EPA will make every effort to accommodate all
speakers who do not preregister, opportunities to speak may be limited
based upon the number of preregistered speakers. Therefore, EPA
strongly encourages anyone wishing to speak to preregister.
Participation in the virtual public hearing does not preclude any
entity or individual from submitting a written comment.
EPA may ask clarifying questions during the oral presentations but
will not respond to the presentations at that time. Written statements
and supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearing. Verbatim transcripts of
the hearings and written statements will be included in the docket for
the rulemaking.
Please note that any updates made to any aspect of the hearing is
posted online on EPA's CCR website at <a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>.
While the EPA expects the hearing to go forward as set forth above,
please monitor our website or contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to determine if there are any
updates. EPA does not intend to publish a document in the Federal
Register announcing updates.
If you require the service of a translator, please pre-register for
the hearing and describe your needs by June 28, 2023. If you require
special accommodations such as audio transcription or closed
captioning, please pre-register for the hearing and describe your needs
by June 28, 2023. We may not be able to arrange accommodations without
advance notice. Registrants should notify the person listed in the FOR
FURTHER INFORMATION CONTACT section and indicate on the registration
form any such needs when they pre-register to speak.

II. General Information

A. Does this action apply to me?

This rule applies to and may affect all CCR generated by electric
utilities and independent power producers that fall within the North
American Industry Classification System (NAICS) code

[[Page 31984]]

221112. The reference to NAICS code 221112 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 40 CFR 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 proposing to amend the regulations governing the disposal of
CCR in landfills and surface impoundments, codified in subpart D of
part 257 of Title 40 of the Code of Federal Regulations (CFR) (CCR
regulations). Specifically, the Agency is proposing to establish
regulatory requirements for inactive CCR surface impoundments at
inactive utilities (``legacy CCR surface impoundment'' or ``legacy
impoundment''). This action is being proposed in response to the August
21, 2018, opinion by the U.S. Court of Appeals for the District of
Columbia Circuit in Utility Solid Waste Activities Group v. EPA, 901
F.3d 414 (D.C. 2018) (``USWAG decision'' or ``USWAG'') that vacated and
remanded the provision exempting legacy impoundments from the CCR
regulations. This action includes adding a definition for legacy CCR
surface impoundments and other terms relevant to this rulemaking. It
also proposes to require that legacy CCR surface impoundments comply
with certain existing CCR regulations with tailored compliance
deadlines.
While this action is responsive to the D.C. Circuit's order, it is
also driven by the record, which clearly demonstrates that regulating
legacy CCR surface impoundments will have significant quantified and
unquantified public health and environmental benefits. As EPA concluded
in 2015, the risks posed by unlined CCR surface impoundments are
substantial, and the risks from legacy impoundments are at least as
significant. EPA's 2014 Risk Assessment concluded that the cancer risks
from unlined surface impoundments ranged from 3x10 -4 for
trivalent arsenic to 4x10-5 for pentavalent arsenic. Non-
cancer risks from these same units also significantly exceeded EPA's
level of concern, with estimated Hazard Quotients (HQ) of two for
thallium, three for lithium, four for molybdenum and eight for
trivalent arsenic. In addition, as described in Unit IV.B.1 of this
preamble, information obtained since 2015 indicates that the risks for
legacy CCR surface impoundments are likely to be greater than EPA
originally estimated. Finally, based on the demographic composition and
environmental conditions of communities within one and three miles of
legacy CCR surface impoundments, these proposals will reduce existing
disproportionate and adverse effects on economically vulnerable
communities, as well as those that currently face environmental
burdens. For example, in Illinois the population living within 1 mile
of legacy CCR surface impoundment sites is over three times as likely
compared to the state average to have less than a high school education
(35.66% compared to 10.10%, see RIA exhibit ES.14), and that population
already experiences higher than average exposures to particulate
matter, ozone, diesel emissions, lifetime air toxics cancer risks, and
proximity to traffic, Superfund sites, Risk Management Plan sites, and
hazardous waste facilities (see RIA exhibit ES.15). Following on the
significant progress EPA has made over many decades to reduce dangerous
pollution from coal-fired electric utilities' stack emissions and
effluents, this proposed rule will help EPA further ensure that the
communities and ecosystems closest to coal facilities are sufficiently
protected from harm from groundwater contamination, surface water
contamination, fugitive dust, floods and impoundment overflows, and
threats to wildlife.
EPA is also proposing to establish requirements to address the
risks from currently exempt solid waste management that involves the
direct placement of CCR on the land.\1\ EPA is proposing to extend a
subset of the existing requirements in part 257, subpart D to CCR
surface impoundments and landfills that closed prior to the effective
date of the 2015 CCR Rule, inactive CCR landfills, and other areas
where CCR is managed directly on the land. In this proposal, EPA refers
to these as CCR management units, or CCRMU. This proposal would apply
to all existing CCR facilities and all inactive facilities with legacy
CCR surface impoundments subject to this proposed rule.
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\1\ Regulated CCR units consist of new and existing landfills
and surface impoundments, including any lateral expansion of these
units, as well as inactive CCR surface impoundments and legacy CCR
surface impoundments.
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Finally, EPA is proposing a number of technical corrections to the
existing regulations, such as correcting certain citations and
harmonizing definitions.
EPA intends that the provisions of the rule be severable. In the
event that any individual provision or part of the rule is
invalidated., EPA intends that this would not render the entire rule
invalid, and that any individual provisions that can continue to
operate will be left in place.
In this proposal, EPA is not reconsidering, proposing to reopen, or
otherwise soliciting comment on any other provisions of the existing
CCR regulations beyond those specifically identified in this proposal.
For the reader's convenience, EPA has provided a background description
of existing requirements in several places throughout this preamble. In
the absence of a specific request for comment and proposed change to
the identified provisions, these descriptions do not reopen any of the
described provisions. EPA will not respond to comments submitted on any
issues other than those specifically identified in this proposal, and
such comments will not be considered part of the rulemaking record.

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

EPA is publishing this notice 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, 6945(a) and (d).
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

[[Page 31985]]

section 1008(a)(3) are enforceable under section 7002 of RCRA.
RCRA section 4004(a) generally requires EPA to promulgate
regulations containing criteria distinguishing ``sanitary landfills,''
which may continue to operate, from ``open dumps,'' which are
prohibited. 42 U.S.C. 6944(a); see id. 6903(14), (26); 6945(a). 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,'' 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. 6945(a). See
also 42 U.S.C. 6903(14) (definition of ``open dump''). This prohibition
takes effect ``upon promulgation'' of any rules issued under section
1008(a)(3) and is enforceable either through a citizen suit brought
pursuant to section 7002, or through an EPA enforcement action brought
pursuant to section 4005(d)(4)(A). See 42 U.S.C. 6945(a), (d)(4)(A)
(authorizing EPA to use the authority under RCRA section 3008(a) to
enforce the open dumping prohibition for CCR). RCRA section 4005 also
directs that open dumps (i.e., facilities out of compliance with EPA's
criteria), must be ``closed or upgraded.'' Id.
RCRA section 4005(d)(3) specifies that the regulations in 40 CFR
part 257, subpart D ``(or successor regulations promulgated pursuant to
sections 6907(a)(3) and 6944(a) of this title), shall apply to each CCR
unit'' unless a permit issued by an approved state or by EPA is in
effect. Similarly, section 4005(d)(6) \2\ provides that:
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\2\ 42 U.S.C. 6945(d)(6).

a CCR unit shall be considered to be a sanitary landfill for
purposes of this chapter, including subsection (a), only if the coal
combustion residuals unit is operating in accordance with [a permit
issued by EPA or an approved State] or the applicable criteria for
coal combustion residuals units under part 257 of title 40, Code of
Federal Regulations (or successor regulations promulgated pursuant
to sections 6907(a)(3) and 6944(a) of this title).
1. Regulation of Solid Wastes Under RCRA Subtitle D
Solid wastes that are neither a listed or characteristic hazardous
waste are subject to the requirements of RCRA subtitle D. Subtitle D of
RCRA establishes a framework for federal, state, and local government
cooperation in controlling the management of nonhazardous solid waste.
The federal role is to establish the overall regulatory direction by
providing minimum nationwide standards that will protect human health
and the environment. States may, but are not required to, adopt these
requirements into their state programs.
Under RCRA section 4005(a), upon promulgation of criteria under
section 1008(a)(3), any solid waste management practice or disposal of
solid waste that constitutes the ``open dumping'' of solid waste is
prohibited. The federal standards apply directly to the facility (are
self-implementing) and facilities are directly responsible for ensuring
that their operations comply with these requirements.
RCRA section 4005(d) establishes an additional regulatory
structure, applicable exclusively to the solid waste management of CCR,
that builds on the provisions in sections 1008(a)(3), 4004, and
4005(a), without restricting the scope of EPA's authority under those
sections. See, 42 U.S.C. 6945 (d)(7). Under 4005(d), states may seek
EPA approval of a state permitting program under which individualized
facility permits would ``operate in lieu of [EPA] regulation of coal
combustion residuals units in the State.'' 42 U.S.C. 6945(d)(1)(A). EPA
is also directed to ``implement a permit program,'' which would operate
in absence of an approved state program. 42 U.S.C. 6945(d)(2). However,
the statute makes clear that facilities must continue to comply with
the federal regulations until a permit issued by either EPA or an
approved state is in effect. 42 U.S.C. 6945(d)(3), (6).
RCRA sections 1008(a)(3) and 4004(a) delegate broad authority to
EPA to establish regulations governing the management of solid waste.
Under section 4004(a) EPA is charged with establishing requirements to
ensure that facilities will be classified as sanitary landfills and not
an open dump ``only if there is no reasonable probability of adverse
effects on health or the environment from the disposal of solid waste''
at the facility. Or in other words, under section 4004(a) EPA is
charged with issuing regulations to address all ``reasonable
probabilities of adverse effects'' (i.e., all reasonably anticipated
risks) to health and the environment from the disposal of solid waste.
Section 1008(a)(3) expands EPA's authority to address the risks from
any of the listed activities. Specifically, EPA is authorized to
establish requirements applicable to ``storage, transportation,
transfer, processing, treatment, and disposal of solid waste.'' (42
U.S.C. 6907(a), 6903(28)). Under RCRA, EPA sets these requirements
without taking cost into account as a factor. See USWAG et al. v. EPA,
901 F.3d 414, 448-49 (D.C. Cir. 2018) (citing RCRA Section 4004(a)).
The statute is clear that EPA is authorized to issue regulations to
address the current risks from previous solid waste management
activities. EPA explained at length the basis for this conclusion as
part of the Agency's rationale for regulating inactive impoundments.
See, 80 FR 21344-21345. See also USWAG, et al. v. EPA, 901 F.3d 414
(D.C. Cir. 2018). Among other provisions, the statutory definition of
an ``open dump'' conclusively resolves the question. RCRA defines an
``open dump'' as ``any facility or site where solid waste is disposed
of . . . .'' 42 U.S.C. 6903(14). As the D.C. Circuit explained,

Importantly, 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 . . . . Properly
translated then, 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 have
originally been dropped off. See 42 U.S.C. 6903(3), (14). In other
words, the waste in inactive impoundments ``is disposed of'' at a
site no longer receiving new waste in just the same way that it ``is
disposed of'' in at a site that is still operating.

901 F.3d at 440. See also In re Consolidated Consol. Land Disposal
Regulation Litig., 938 F.2d 1386, 1389 (D.C. Cir. 1991) (EPA's reading
of the term ``disposal'' in RCRA's Subtitle C, 42 U.S.C. 6924, to
include ``the continuing presence of waste'' was reasonable); USWAG,
901 F.3d at 453-54 (Henderson, J., concurring) (same). By the same
logic, these provisions would authorize EPA to regulate closed units
that continue to pose risks to health or the environment, for example
by requiring the owners and operators of such units to remediate any
contamination from these units, or to take action to prevent such
contamination.

The 2016 amendments further confirm EPA's authority over these
activities. In section 4005, Congress incorporated the 2015 regulations
into the statute, and expressly stated that the amendments in 4005(d)
were not intended to limit or restrict the authority already provided
under sections 1008(a)(3) and 4004(a). See, 42

[[Page 31986]]

U.S.C. 6945(d)(3), (6), (7). EPA also considers that with these
amendments, Congress has affirmed the Agency's authority to impose the
kind of requirements established in part 257 (e.g., corrective action
to remediate groundwater contamination). Moreover, Congress made clear
that EPA retains the authority to modify or expand these requirements
as necessary to ensure that the standard in section 4004(a) will
continue to be met. See, e.g., 42 U.S.C. 6945(d)(1)(A)(i), (3), (6)
(referencing ``or successor regulations promulgated pursuant to
sections 6907(a)(3) and 6944(a) of this title'').
EPA interprets the standard in section 4004(a) to apply equally to
criteria issued under sections 1008(a)(3) and 4004(a); namely that the
criteria must ensure that a facility is to be classified as a sanitary
landfill, and thus allowed to continue to operate, ``only if there is
no reasonable probability of adverse effects on health or the
environment'' from either the disposal or other solid waste management
practices at the facility. Thus, under the combined authority conferred
by sections 1008(a)(3) and 4004(a), a facility is an ``open dump'' if
it engages in any activity involving the management of solid waste that
does not meet the standard in section 4004(a); or in other words, any
activity involved with the management of solid waste that presents a
reasonable probability of causing adverse effects on health or the
environment. EPA also interprets these provisions to authorize the
establishment of criteria that define the manner in which facilities
upgrade or close, consistent with the standard in section 4004(a), to
ensure there will be no reasonable probability of adverse effects on
health or the environment.

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

As noted previously, EPA establishes the requirements under RCRA
sections 1008(a)(3) and 4004(a) without taking cost into account. See,
USWAG, 901 F.3d at 448-49. This action is expected to result in costs
amounting to between $356 million and $413 million per year when
discounting at 3% and 7% respectively.
Of the $413 million per year estimated at a 7% discount rate, $237
million is attributable to the requirements for legacy CCR surface
impoundments, which are subject to the D.C. Circuit's order in USWAG,
$170 million is attributable to the requirements for CCRMU, and $6
million is attributable to requirements for landfills. Of the $356
million per year estimated at a 3% rate, $204 million is attributable
to the requirements for legacy CCR surface impoundments, $146 million
is attributable to the requirements for CCRMU, and $6 million is
attributable to requirements for landfills. The costs of this proposed
rule are discussed further in the RIA, and include the costs of unit
closure, corrective action, fugitive dust controls, structural
integrity inspections, and recordkeeping and reporting. These cost
estimates are subject to a number of limitations and uncertainties, and
EPA has, for example, made the conservative assumption that all
closures will be by removal, which is a simplified but higher-cost
compliance option.
This action is expected to result in monetized benefits amounting
to between $77 million and $49 million per year when discounting at 3%
and 7% respectively, as well as a variety of unquantified benefits of
unknown magnitude. Of the $49 million in annualized monetized benefits
estimated at a 7% discount rate, $30 million is attributable to the
requirements for legacy CCR surface impoundments, $16 million is
attributable to the requirements for CCRMU, and $3 million is
attributable to requirements for landfills. Of the $77 million in
annualized monetized benefits estimated at a 3% discount rate, $47
million is attributable to the requirements for legacy CCR surface
impoundments, $25 million is attributable to the requirements for
CCRMU, and $5 million is attributable to requirements for landfills.
The monetized benefits of this proposed rule are discussed further in
the RIA, and includes partial estimates of the benefits from reduced
incidents of cancer, avoided intelligence quotient (IQ) losses from
mercury and lead exposure and the subsequent reduced need for
specialized education, non-market benefits of water quality
improvements, and the protection of threatened and endangered species.
EPA also monetized the benefits of avoided impoundment failures,
including both ``catastrophic'' failures and smaller-volume releases.
One example of a severe impoundment failure is the Dan River Steam
Station failure which occurred in 2014, when a stormwater drainage pipe
under the inactive surface impoundments at the Dan River Steam Station
caused the inadvertent release of 39,000 tons of CCR directly into the
nearby Dan River. The result high-end estimate of the costs of this
impoundment failure is $300 million. EPA requests comment and data on
other examples of CCR releases from inactive CCR impoundments.
EPA's benefits estimates are subject to a number of limitations and
uncertainties, and many key categories of benefits could not be
quantified or monetized. Unquantified benefits may be of equal or
greater magnitude than quantified benefits but are difficult to
quantify because sufficient data or adequate methodologies are not
available. For example, EPA was only able to quantify the subset of
human health effects for which established dose-response relationships
have been studied and accepted for economic analyses. Consequently, EPA
was unable to quantify most of the human health and ecological benefits
associated with the proposed rule. Specifically, EPA was only able to
quantify the benefits associated with: (1) Reduced incidence of two
kinds of skin cancer \3\ from exposure to arsenic III and V in drinking
water from private wells, and (2) With reduced neurologic and cognitive
damages from exposure to lead and mercury from fish consumption.
However, arsenic is also correlated with liver, lung, bladder, and
kidney cancer,\4\ all of which are associated with higher costs and
higher rates of mortality than the skin cancers used in the quantified
benefits assessments. Similarly, toxins such as thallium, molybdenum,
and lithium are commonly present in CCR,\5\ and as discussed in Unit
IV.B.2 of this preamble, have been detected at statistically
significant levels at several utilities, but because EPA lacks the data
to create dose-response relationships between ingestion rates and
specific health endpoints, EPA could not quantify the associated
benefits in the RIA. A broad overview of specific contaminants and
their likely health effects can be found in Chapter 4 of the RIA and in
Appendix B.
---------------------------------------------------------------------------

\3\ EPA evaluated basal cell carcinoma and squamous cell
carcinoma, but was unable to quantify costs associated with Bowen's
disease (or carcinoma in situ), another of the most common forms of
skin cancer.
\4\ U.S. Environmental Protection Agency (2014, December). Human
and ecological risk assessment of coal combustion residuals.
Regulation Identifier Number: 2050-AE81, citing U.S. EPA. IRIS
Chemical Assessment Summary for arsenic, inorganic; CASRN 7440-38-2.
Last updated December 3, 2002.
\5\ Id.
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Another unquantified benefit arises from the expected increase in
severe weather events due to climate change. Many legacy impoundments
and CCRMU are located along rivers or the coast, where they are at risk
of leaking waste and possibly failing when severe weather causes the
units to flood and overtop. The proposed rule will address this
baseline risk by requiring closure

[[Page 31987]]

and corrective action at legacy units and CCRMU. This reduction in risk
yields potentially significant benefits, however the data and
methodology to quantify the base rate and post-rule rate of unit
leakage and failure due to weather related flooding and overtopping are
not available. Thus, this benefit category is unquantified.
Finally, another significant source of unquantified benefits comes
from the protection and remediation of the groundwater contaminated by
a legacy CCR surface impoundment or CCRMU as at many sites this
groundwater is a potential future source of drinking water or other
uses. This is distinct from the benefits associated with reducing the
risks from contaminants migrating into drinking water wells or surface
waters, reduced risks that rely on the presence of a receptor. As EPA
explained in the preamble to the original 1979 regulations, sources of
drinking water are finite, and future users' interests must also be
protected. See, 44 FR 53445-53448.
In the United States, groundwater is the source of drinking water
for about half the total population; it is about 33% of the water that
County and city water departments supply to households and businesses.
It provides drinking water for more than 90% of the rural population
who do not get their water delivered to them from a county/city water
department or private water company.\6\ It also provides over 50
billion gallons per day for agricultural needs. The volume of available
and useable groundwater is decreasing in many areas of the United
States.\7\ A significant number of legacy CCR surface impoundments and
CCRMU are located in areas that, according to the U.S. Geological
Survey (USGS), are experiencing significant groundwater decline and
depletion.\8\ For example, EPA estimates that 8 potential legacy CCR
surface impoundments are located in Iowa, and 20 potential CCRMU are
located in Illinois (12) and Minnesota (8); USGS has estimated that
these areas experienced 10-25 cubic kilometers of cumulative annual
groundwater depletion between 1900 and 2008.\9\ Simply stated, the
resource is becoming more scarce. Commensurately, the value of
groundwater as a resource for agriculture, drinking water, and other
purposes is increasing. In the context of such widespread declines in
the overall availability of this critical resource, this proposed
rule--which will increase the supply of potable water by requiring the
remediation of groundwater contaminated by CCRMU and legacy CCR surface
impoundments, and by preventing further reductions in the supply of
useable groundwater from degradation and contamination from CCRMU or
legacy CCR surface impoundments--is expected to provide significant and
substantial benefits.
---------------------------------------------------------------------------

\6\ U.S. Department of the Interior, U.S. Geological Survey,
<a href="https://www.usgs.gov/special-topics/water-science-school/science/groundwater-decline-and-depletion">https://www.usgs.gov/special-topics/water-science-school/science/groundwater-decline-and-depletion</a>.
\7\ Id. at <a href="https://www.usgs.gov/special-topics/water-science-school/science/groundwater-decline-and-depletion">https://www.usgs.gov/special-topics/water-science-school/science/groundwater-decline-and-depletion</a>.
\8\ U.S. Department of the Interior, U.S. Geological Survey,
Groundwater Depletion in the United States (1900-2008), available at
<a href="https://pubs.usgs.gov/sir/2013/5079/SIR2013-5079.pdf">https://pubs.usgs.gov/sir/2013/5079/SIR2013-5079.pdf</a>.
\9\ Id. at 12.
---------------------------------------------------------------------------

Neighborhoods located near legacy CCR surface impoundments and
CCRMU are disproportionately occupied by people already vulnerable to
elevated environmental risks. These vulnerable communities face risks
of impoundment failure, groundwater contamination, and fugitive air
emissions. EPA expects these communities would be afforded substantial
protection from the proposed rule. In addition, CCR units, built
without liners and other precautionary measures, may depress property
values in nearby neighborhoods. Improvements in home values resulting
from the proposed rule has the potential to bestow welfare gains to
homeowners located near legacy CCR surface impoundments and CCRMU.
Although EPA has designed its proposal based on its statutory factors
and court precedent and has not relied on this benefit-cost analysis in
the selection of its proposed alternative, EPA believes that after
considering all unquantified and distributional effects, the public
health and welfare gains that will result from the proposed alternative
would justify the rule's costs.
Further information on the economic effects of this action can be
found in Unit VII of this preamble.

III. Background

A. 2015 CCR Rule

On April 17, 2015, EPA finalized national minimum criteria for the
disposal of CCR as solid waste under Subtitle D of RCRA titled,
``Hazardous and Solid Waste Management System; Disposal of Coal
Combustion Residuals from Electric Utilities'' (80 FR 21302) (2015 CCR
Rule). The 2015 CCR Rule, codified in 40 CFR part 257, subpart D,
established regulations for existing and new CCR landfills, as well as
existing and new CCR surface impoundments (including 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 also imposed requirements on inactive surface
impoundments at active facilities. A CCR surface impoundment is a
natural topographic depression, man-made excavation, or diked area,
which is designed to hold an accumulation of CCR and liquids, and
treats, stores, or disposes of CCR. The 2015 CCR Rule defined an
``inactive CCR surface impoundment'' as ``a CCR surface impoundment
that no longer receives CCR on or after October 19, 2015, and still
contains both CCR and liquids on or after October 19, 2015.'' 40 CFR
257.53. The rule defined ``active facility or active electric utilities
or independent power producers'' 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.'' 40
CFR 257.53.
The 2015 CCR Rule did not impose any requirements on inactive
facilities. EPA explained that this was consistent with past decisions
under subtitle C, in which EPA declined to extend permitting
obligations to closed and inactive disposal facilities in light of
specific language in RCRA sections 3004 and 3005, and the practical
difficulties in applying those requirements to inactive facilities
(e.g., the difficulty in identifying owners or other responsible
parties, and in implementing requirements in the absence of an entity
currently engaged in disposal). 80 FR 21344 (April 17, 2015). EPA
further raised concerns 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. Id.
Consequently, EPA exempted those units at Sec. 257.50(e).

B. 2018 USWAG Decision

The 2015 CCR Rule was challenged by several parties, including
coalitions of regulated entities and environmental organizations
(``Environmental Petitioners''). Environmental Petitioners raised two
challenges that are relevant to this proposal. First, they challenged
the provision that allowed existing, unlined surface impoundments to
continue to operate until they exceeded

[[Page 31988]]

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). Second, Environmental
Petitioners challenged the exemption for inactive surface impoundments
at inactive power plants (i.e., ``legacy ponds''). Environmental
Petitioners argued that legacy ponds are at risk of unmonitored leaks
and catastrophic structural failures.
On August 21, 2018, the U.S. Court of Appeals for the D.C. Circuit
upheld most of the 2015 CCR Rule but decided in favor of 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 \10\ and in
exempting inactive surface impoundments at inactive power plants from
regulation. The Court vacated these provisions and remanded the matter
back to the Agency for further action consistent with its opinion.
USWAG et al. v. EPA, 901 F.3d 414 (D.C. Cir. 2018).
---------------------------------------------------------------------------

\10\ The closure of unlined CCR surface impoundments was
addressed in a separate regulatory action that was published on
August 28, 2020 (85 FR 53516).
---------------------------------------------------------------------------

In overturning the exemption for legacy ponds, the Court evaluated
the evidence in the rulemaking record and reached specific conclusions
about the risks that legacy ponds pose. The Court pointed to evidence
that legacy ponds are most likely to be unlined and unmonitored and
that such units have been shown to be more likely to leak than units at
utilities still in operation. 901 F.3d at 432. The Court also
determined that legacy ponds:

. . . pose the same substantial 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''). Notably, this very Rule was prompted by a catastrophic
legacy pond failure that resulted in a ``massive'' spill of 39,000
tons of coal ash and 27 million gallons of wastewater into North
Carolina's Dan River.
. . .

[T]here is no gainsaying the dangers that unregulated legacy
ponds present. The EPA itself acknowledges the vital importance of
regulating inactive impoundments at active facilities. That is
because, if not properly closed, those impoundments will
``significant[ly]'' threaten ``human health and the environment
through catastrophic failure'' for many years to come. 75 FR at
35,177; see also 80 FR at 21,344 n. 40.
The risks posed by legacy ponds are at least as substantial as
inactive impoundments at active facilities. See 80 FR at 21,343-21,
344 (finding ``no [ ] measurabl[e] differen[ce]'' in risk of
catastrophic events between active and inactive impoundments). And
the threat is very real. Legacy ponds caused multiple human and
environmental disasters in the years leading up to the Rule's
promulgation. See 75 FR at 35,147 (proposed rule discusses multiple
serious incidents). For example, a pipe break at a legacy pond at
the Widows Creek plant in Alabama caused 6.1 million gallons of
toxic slurry to deluge local waterways. Id. Another legacy pond in
Gambrills, Maryland caused the heavy metal contamination of local
drinking water. Id. And the preamble to the Rule itself specifically
points to the catastrophic spill at the Dan River legacy pond in
North Carolina. 80 FR at 21,393-21,394.

Id. at 432-433. Relying on this evidence, the Court concluded there was
no logical basis for distinguishing between the inactive impoundments
at active facilities that were regulated and the legacy impoundments
that were exempt. Id. at 434. Consequently, the Court vacated the
provision of the 2015 CCR Rule that specifically exempted inactive
impoundments at inactive facilities from regulation and remanded the
matter back to EPA for further action consistent with its opinion. See
Sec. 257.50(e). Notwithstanding the vacatur of Sec. 257.50(e), until
EPA amends the regulations to effectuate the Court's order, facilities
are not legally obliged to take any action to comply with the federal
CCR regulations. This is because, as currently drafted, Sec. 257.50 of
the federal CCR regulations is not applicable to inactive surface
impoundments at inactive facilities.

C. 2020 Advance Notice of Proposed Rulemaking

On October 14, 2020, EPA published an Advance Notice of Proposed
Rulemaking (ANPRM) (85 FR 65015). In that action, EPA requested
information related to ``legacy'' CCR surface impoundments to inform a
future rulemaking. The Agency requested input on its regulatory
authority, input on a potential definition of a legacy CCR surface
impoundment and specific information on the types of inactive surface
impoundments at inactive facilities that might be considered legacy CCR
surface impoundments. Specifically, EPA requested information on how
many of these units exist, the current status of these units (e.g.,
capped, dry, closed according to state requirements, still holding
water), and the names, locations, and closure dates of former power
plants that may have these units. Finally, the Agency took comment on
which CCR regulations should apply to legacy CCR surface impoundments
and on suggestions for compliance deadlines.
During the 60-day public comment period, the Agency received over
15,000 comments from environmental groups, four states, one tribe,
individual utilities, and industry trade associations. The topics
raised in comments included a potential definition of a legacy CCR
surface impoundment, EPA's regulatory authority, the scope and
applicability of the legacy impoundment rule, and regulatory
requirements to propose. Moreover, the comments generally agreed that
EPA must prescribe timeframes for coming into compliance with the
regulations and they recommended timeframes that are shorter than
compliance timeframes in the 2015 CCR Rule. The remaining comments
received are discussed in subsequent units of this preamble.
As noted, EPA took comment on whether, in light of the Court's
opinion in USWAG, the Agency could reconsider whether it has the
authority to regulate inactive impoundments under RCRA subtitle D. 85
FR 65017-65018 (Oct 14, 2020). The general consensus from commenters on
the ANPRM was that, because the Court resolved the question based on
the plain meaning of the statute, EPA does not have the discretion to
reinterpret its authority. In addition, no commenter identified a
factual basis for not regulating legacy CCR surface impoundments that
addressed the Court's concern about the risks these units pose. Id. at
65018. Consequently, EPA is not revisiting the question of whether it
may regulate inactive or legacy CCR surface impoundments.

IV. What is EPA Proposing?

In response to the USWAG decision, EPA is proposing to include a
provision at Sec. 257.50(e), specifying that inactive surface
impoundments at inactive facilities (``legacy CCR surface
impoundments'') are subject to 40 CFR part 257, subpart D. EPA is also
proposing that owners and operators of legacy CCR surface impoundments
comply with all the appropriate requirements applicable to inactive CCR
surface impoundments at active facilities. Specifically, EPA is
proposing that owners and operators of legacy CCR surface impoundments
comply with the following existing requirements in the CCR regulations:
structural stability assessments, air criteria, inspections,

[[Page 31989]]

groundwater monitoring and corrective action, closure and post-closure
care, recordkeeping, and notification and publicly accessible internet
site requirements. EPA is further proposing to establish different
compliance deadlines for these newly applicable regulatory requirements
to ensure the owners and operators of these units have time to come
into compliance.
In addition to the revisions EPA is proposing to address the USWAG
decision, EPA is proposing to establish requirements to address the
risks from currently exempt solid waste management that involves the
direct placement of CCR on the land.\11\ EPA is proposing to extend a
subset of the existing requirements in part 257, subpart D to CCR
surface impoundments and landfills that closed prior to the effective
date of the 2015 CCR Rule, inactive CCR landfills, and other areas
where CCR is managed directly on the land. In this proposal, EPA refers
to these as CCR management units, or CCRMU. This proposal would apply
to all existing CCR facilities and all inactive facilities with legacy
CCR surface impoundments subject to this proposed rule.
---------------------------------------------------------------------------

\11\ Regulated CCR units consist of new and existing landfills
and surface impoundments, including any lateral expansion of these
units, as well as inactive CCR surface impoundments and legacy CCR
surface impoundments.
---------------------------------------------------------------------------

Lastly, EPA is proposing to make several technical corrections to
the CCR regulations. These are (1) to clarify the definitions of
``feasible'' and ``technically feasible''; (2) to correct the CFR
reference in the definition of wetlands at Sec. 257.61(a); (3) to
correct a reference in the groundwater monitoring scope section; (4) to
standardize the references to CCR websites throughout the CCR
regulations; and (5) EPA is taking comment on extending the period for
document retention and posting.
A. Legacy CCR Surface Impoundment Requirements
The Agency is proposing that the existing requirements of the CCR
regulations in 40 CFR part 257, subpart D that apply to inactive CCR
impoundments at active facilities would apply to legacy CCR surface
impoundments, except for the location restrictions and liner design
criteria. EPA is also proposing to establish new requirements to
address issues specific to legacy CCR surface impoundments. Finally,
EPA is proposing to establish new compliance deadlines for legacy CCR
surface impoundments.
1. Scope--Definition of Legacy CCR Surface Impoundments
EPA received numerous comments on three options for defining legacy
CCR surface impoundments in the ANPRM. The Agency considered those
comments, as well as the other information available to EPA in the
record and the USWAG decision in developing this proposal. Based on
EPA's review, the Agency is proposing to 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 the surface
impoundment contained both CCR and liquids on or after the effective
date of the 2015 CCR Rule (i.e., October 19, 2015).'' This Unit of the
preamble also responds to comments questioning how EPA intends to
interpret ``contains liquids and CCR'' and ``inactive facility.''
a. Legacy CCR Surface Impoundment--Date for Determining Applicability.
As previously explained, the 2015 CCR Rule exempted ``inactive
surface impoundments at an inactive facility'' and provided definitions
of an ``inactive CCR surface impoundment'' and an ``active facility or
active electric utility.'' See 80 FR 21469-21471. Thus, in developing a
definition of a legacy CCR surface impoundment two separate components
need to be addressed: (1) The definition of an ``inactive CCR surface
impoundment,'' and (2) The definition of an ``inactive facility or
electric utility.'' EPA relied on the existing definitions of an
inactive CCR surface impoundment and an active facility or active
electric utility, as well as the USWAG decision to inform the options
provided in the ANPRM. See 80 FR 21469-21471. Specifically, both terms
establish applicability based in part on the effective date of the 2015
CCR Rule--a unit is an ``inactive CCR surface impoundment'' if it does
not receive CCR on or after October 19, 2015, and still contains both
CCR and liquids on October 19, 2015, and an ``active facility or active
electric utilities or independent power producers'' is only active if
it was in operation on October 19, 2015. 40 CFR 257.53. Thus, the ANPRM
sought comment on whether to 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
<bullet> 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
<bullet> 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
<bullet> 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.
i. Description of the ANPRM Options
Option 1 was based on October 19, 2015, which is the effective date
of the 2015 CCR Rule. Under this approach a CCR surface impoundment at
an inactive facility or electric utility that contained both CCR and
liquids on October 19, 2015, would be regulated as a legacy CCR surface
impoundment. Impoundments that contained both CCR and liquids prior to
October 19, 2015, but not after this date, would not be subject to the
new requirements under this option (e.g., the facility took actions
prior to October 19, 2015, to permanently remove liquids from the
unit).
The first option is based on the Court's finding in the USWAG
decision that there was no basis in the record on which to
differentiate between legacy CCR surface impoundments and inactive CCR
surface impoundments at active facilities in the 2015 CCR Rule. In the
decision, the Court concluded there was no logical basis for
distinguishing between inactive impoundments at active facilities that
were regulated and inactive impoundments at inactive facilities that
were exempt, and therefore vacated the exemption for legacy CCR surface
impoundments in Sec. 257.50(e). In the regulations, an inactive CCR
surface impoundment at an active facility is defined as a ``CCR surface
impoundment that no longer receives CCR on or after October 19, 2015,
and still contains both CCR and liquids on or after October 19, 2015.''
Thus, under Option 1 the date the unit contained both CCR and liquids
used in the definition of a legacy CCR surface impoundment would be
identical to that used for inactive impoundments at active facilities,
that is, October 19, 2015.
Option 2 was based on October 15, 2018, which is the date the Court
issued the mandate for the USWAG decision that vacated and remanded the
regulatory provision exempting legacy CCR surface impoundments from the
CCR regulations. Under this approach a CCR surface impoundment at an
inactive facility or electric utility that contained both CCR and
liquids on October 15, 2018, would be regulated as

[[Page 31990]]

a legacy CCR surface impoundment. Impoundments that contained both CCR
and liquids prior to October 15, 2018, but not after this date, would
not be subject to the new requirements under this option (e.g., the
facility took actions prior to October 15, 2018, to permanently remove
liquids from the unit).
Option 3 was based on the effective date of a final rule bringing
legacy CCR surface impoundments under the federal CCR regulations.
Under this approach a CCR surface impoundment at an inactive facility
or electric utility that contained both CCR and liquids on the
effective date of the final rule would be regulated as a legacy CCR
surface impoundment. Impoundments that contained both CCR and liquids
prior to the effective date of the final rule, but not after this date,
would not be subject to the new requirements.
Underpinning Option 3 is the concept that it may be difficult for
some owners and operators of inactive facilities to determine whether a
legacy CCR surface impoundment at its facility previously contained
both CCR and liquids at a specific point in the past. For example,
under Options 1 and 2, the demarcation date in the definition will be
approximately nine and six years in the past, respectively, at the time
the final rule is anticipated to be published and effective.
Furthermore, the third option could eliminate possible regulatory
confusion for legacy CCR surface impoundments that contained liquids
and CCR on the demarcation date specified in the definition (e.g.,
October 19, 2015, under Option 1) but are subsequently closed by the
effective date of the final rule. An example of this situation using a
cutoff date based on Option 1 would be a legacy CCR surface impoundment
that was closed by removal of CCR in 2020. Under Option 3 the legacy
CCR surface impoundment in this example would not be subject to the new
rulemaking requirements because it did not contain both CCR and liquids
on or after the effective date of the legacy CCR surface impoundment
final rule.
Of the three options discussed in the ANPRM, EPA believes that
Option 1 is arguably the most consistent with the USWAG decision and
the most protective option. As discussed in the preceding Unit, the
Court expressly found that EPA's record for the 2015 CCR Rule
demonstrated that legacy ponds ``pose the same substantial 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 on-site owner and daily
monitoring.'' 901 F.3d at 432. Under Option 1 there would be no
distinction between legacy CCR surface impoundments and the currently
regulated inactive impoundments at active facilities. In addition, the
intended effect of a vacatur is to restore the status quo, to what it
would have been if the vacated provision had never existed. Here, that
means legacy CCR surface impoundments would have been regulated by the
2015 CCR Rule. By choosing to vacate the provision, rather than
remanding it back to the Agency, the Court made clear that its intent
was for these units to immediately be subject to regulation. The fact
that the vacatur did not achieve that does not change the court's
intent.
ii. What comments did EPA receive on the options?
Summary of Comments on Option 1. Some commenters stated that
inactive surface impoundments at inactive facilities should be treated
no differently than active and inactive surface impoundments at active
facilities. These commenters therefore supported Option 1 and explained
that the regulations should similarly apply to inactive impoundments at
inactive facilities containing CCR and liquids on October 19, 2015.
Other commenters opposed Option 1 because they considered that it would
represent the retroactive application of regulations and, in some
cases, the application of fundamentally inapplicable requirements to
units that are no longer surface impoundments because they no longer
contain CCR and/or liquids. These commenters identified impoundments
that have been dewatered, excavated, and closed pursuant to state
oversight as an example of impoundments that would not be appropriate
candidates for subsequent regulatory requirements because these units
are no longer functioning as impoundments based on actions taken by
facilities since October 19, 2015.
Other commenters stated that the definition for Option 1 (as well
as Options 2 and 3) was too narrow and fails to address the universe of
inactive impoundments at inactive facilities that pose a reasonable
probability of adverse effects on health or the environment from the
disposal of CCR. According to the comments, this is because Option 1
conditions regulation of legacy CCR surface impoundments on arbitrary
dates on which the impoundments contained both CCR and liquids. These
commenters stated that the definition must include high-risk
impoundments (such as impoundments located in floodplains and unstable
areas and units with bases inundated by groundwater), regardless of age
or condition, because of the likelihood that they are causing or will
cause adverse effects to health and the environment, including
impoundments located in floodplains and unstable areas and units with
bases inundated by groundwater. In addition, the commenters state that
the definition of a legacy CCR surface impoundment must include units
that were not closed in a manner consistent with the regulations
because a unit without a sufficient final cover system will allow
precipitation into the unit and will produce leachate.
Summary of Comments on Option 2. No commenters exclusively
supported Option 2 over the other two options discussed in the ANPRM.
Commenters disfavoring Option 2 did so for the same reasons as
summarized for Option 1, largely stating that Option 2 ignores the
current status of legacy CCR surface impoundments, inaccurately
assesses current risks from these units, and disregards work and
actions taken by facilities since August 21, 2018 (e.g., removal of
waste from the units, closure of the units). In addition, other
commenters stated that Option 2 fails to meet the RCRA protectiveness
standard for reasons discussed under Option 1.
Summary of Comments on Option 3. Several commenters supporting
Option 3 stated that the definition of legacy CCR surface impoundments
should be based on the scope of units identified in the 2018 USWAG
decision. These commenters explained that the Court was concerned with
the risks associated with lack of regulatory oversight over inactive
CCR surface impoundments that contain impounded water, and therefore
EPA's definition of a legacy CCR surface impoundment should similarly
be those impoundments containing CCR and liquids on the effective date
of the legacy CCR surface impoundment final rule. Finally, commenters
stated that it is both impractical and unnecessary to look backwards to
determine the historic regulatory status of a unit (e.g., to determine
whether the impoundment contained CCR and liquids at a particular
time), or to require impoundments that have already closed to re-close
under this rulemaking.
Some commenters said that Option 3 would avoid inclusion of
effectively dry impoundments that are similar to inactive CCR
landfills, which are not regulated under the 2015 CCR Rule. Another
commenter stated that units maintained by its members provide good
examples of units that it believed

[[Page 31991]]

would not be appropriate candidates for new federal CCR regulation as
legacy CCR surface impoundments. For instance, the commenter pointed to
the units at the Riverbend Steam Station in Mount Holly, North
Carolina, which the commenter stated underwent dewatering from 2014
through 2019 as part of the excavation process. In accordance with the
facility's NPDES permit, the water was pumped to the on-site wastewater
treatment facility for eventual discharge to the adjacent waterbody.
Ash removal began in 2015 and was completed in 2019. The two ash basins
at the Riverbend Steam Station have been excavated, and the dams for
the facility's primary and secondary ash basins have been removed.
According to the commenter, groundwater monitoring subject to state
regulations and state-approved closure plans is ongoing. Finally, the
commenter stated that the site has been regraded and seeded with grass.
The commenter also pointed to Scholz Electric Generating Plant in
Sneads, Florida, which has a 40-acre unit that was retired in April
2015 and ceased receipt of waste in 2015. According to the commenter,
the facility is currently in its third year of closure construction and
is subject to a June 2015 court-approved settlement agreement for
closure as well as an August 2016 closure plan approved by the Florida
Department of Environmental Protection.
The commenter also referenced the ash slurry settling ponds at the
active Coronado Generating Station located in Saint Johns, Arizona.
According to the commenter, the ponds, which are approximately 87 acres
in size, were constructed in the mid-2000s and operated until early
2010 when the facility ceased placement of CCR material in the ponds.
When in use, the ponds were utilized for CCR and non-CCR waste
disposal, non-recyclable plant wastewater, scrubber sludge, and fly
ash, all of which were wet sluiced to the ponds. The commenter stated
that closure of the ponds was completed in April 2019 in accordance
with all applicable State of Arizona Aquifer Protection Permitting
(APP) rules, and all required CCR and APP documentation have been
posted to the CCR public website and submitted to the Arizona
Department of Environmental Quality (ADEQ). The commenter also stated
that the ponds are currently in post-closure care in accordance with
ADEQ APP regulations, including groundwater monitoring and reporting
that will continue for 30 years from the date of closure. According to
the commenter, none of these units are currently functioning as ponds,
and therefore regulating these types of units at inactive plants would
represent a retroactive application of inapplicable and redundant
requirements. The commenter further stated that many utilities are in
the process of dewatering and closing additional legacy CCR surface
impoundments as part of a comprehensive, fleetwide ash basin closure
program.
iii. Response to Comments and Proposed Option
As noted above, the Agency is proposing to define a legacy CCR
surface impoundment, in part, as a surface impoundment that contained
both CCR and liquids on or after October 19, 2015. Of the three options
discussed in the ANPRM, EPA believes that Option 1 is the most
consistent with the USWAG decision. As discussed in the preceding Unit,
the Court expressly found that EPA's record for the 2015 CCR Rule
demonstrated that legacy ponds ``pose the same substantial 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 on-site owner and daily
monitoring.'' 901 F.3d at 432. Under Option 1 there would be no
distinction between legacy CCR surface impoundments and the currently
regulated inactive impoundments at active facilities. In addition, the
intended effect of a vacatur is to restore the status quo, to what it
would have been if the vacated provision had never existed. Here, that
means legacy CCR surface impoundments would have been regulated by the
2015 CCR Rule. By choosing to vacate the provision, rather than
remanding it back to the Agency, the Court made clear that its intent
was for these units to immediately be subject regulation. The fact that
the vacatur did not achieve that does not change the Court's intent.
In addition, EPA is not persuaded by the commenters' objections to
this option. EPA disagrees that reliance on the effective date of the
2015 CCR Rule would constitute a retroactive application of law. For a
regulation to be retroactive, it must change the prior legal status or
consequences of past behavior. See Landgraf v. USI Film Products, 511
U.S. 244, 269, n.4 (1994) (A rule ``is not made retroactive merely
because it draws upon antecedent facts for its operation.''); Treasure
State Resource Industry Ass'n v. E.P.A., 805 F.3d 300, 305 (D.C. Cir.
2015). By contrast, here EPA is merely proposing to rely on a past fact
to support the future application of regulations. And because EPA is
proposing to establish future compliance dates, no facility would be
subject to penalties solely because one of its legacy CCR surface
impoundments was out of compliance with the regulatory requirements
prior to the effective date of a rule finalizing this proposal.
EPA also disagrees that the proposed requirements fail to account
for the current characteristics of some of these units. The fact that
some utilities have begun to close, or even completed closure does not
necessarily resolve the risks these units can pose to groundwater. The
record shows that significant numbers of CCR surface impoundments were
constructed such that the base of the unit intersects with groundwater,
and that many ``closed'' impoundments, even those closed in accordance
with state permits, continue to impound water below the water table
(i.e., contain liquid). The risks associated with such closures can be
substantial (see Unit IV.B.1.b of this preamble for more information).
Also, as discussed below in further detail, EPA is proposing that units
that can demonstrate that they have met the performance standards for
closure by removal in Sec. 257.102(c) would be subject to no further
requirements.
Finally, EPA recognizes that in some instances it may take some
work to determine whether a surface impoundment previously contained
both CCR and liquids on or after October 19, 2015. However, owners and
operators of inactive power plants will be able to rely on operating
records from when the power plant was operational, such as aerial
photography, construction or inspection reports, groundwater monitoring
data and employee testimonials to determine whether the impoundment
contained both CCR and liquids on October 19, 2015.
Nevertheless, EPA also continues to consider, as an alternative,
defining a legacy CCR surface impoundment as a CCR surface impoundment
that no longer receives CCR but contains both CCR and liquids on or
after the effective date of the final rule. This option would be the
easiest to implement. Based on the Agency's interpretation of what it
means ``to contain liquid'' this option would at most only exclude the
29 units \12\ that may have completed clean closure in accordance with
the performance standards in Sec. 257.102(c) or have taken steps to
remove all free

[[Page 31992]]

liquids, including groundwater, and address infiltration. and would
therefore be equivalent to inactive landfills. While the latter
category could still present the risk of contaminating groundwater, it
is possible those risks could potentially be addressed by the proposed
expansion of groundwater monitoring, corrective action, and closure
obligations applicable to CCR management units. EPA therefore requests
further comment on this option.
---------------------------------------------------------------------------

\12\ This information can be found in the document titled
``Potential Legacy CCR Surface Impoundments'' in the docket for this
action.
---------------------------------------------------------------------------

b. Legacy CCR Surface Impoundment--Contains Both Liquid and CCR
In response to EPA's ANPRM, some commenters stated that the phrase
``contain[ing] both CCR and liquids'' is impermissibly vague. These
commenters believe that while it is clear that impoundments that
currently contain visible, standing water would fit this definition,
they are concerned that arguments can be made that the definition does
not include those units whose bases are in contact with groundwater or
that no longer have standing water at the surface. Other commenters
stated that more clarity is required regarding the definition of a
legacy CCR surface impoundment. Finally, several commenters argued that
EPA should not limit its regulation to units that contain water, but
should expand the regulation to apply to all CCR units.
i. What does it mean to contain liquid?
The ANPRM suggested that EPA would only revisit the date on which
the determination would be made as to whether the impoundment contains
both CCR and liquids. EPA did not indicate that the Agency intended to
propose to limit or revise the existing requirement that in order to be
considered an inactive CCR surface impoundment, the unit must contain
both liquid and CCR. 40 CFR 257.53. However, as noted above, commenters
have raised concerns that the existing definition is ambiguous and have
raised questions about how these existing regulations apply to a number
of factual scenarios. Specifically, commenters questioned whether the
term ``liquids'' includes free water, porewater, standing water, and
groundwater in CCR units.
The part 257 regulations do not include a definition of the term
``liquids.'' 40 CFR 257.53. Neither does RCRA define the term. See, 42
U.S.C. 6903. EPA therefore relies upon dictionary definitions to
interpret the regulation. For example, Merriam-Webster defines it as
``a fluid (such as water) that has no independent shape but has a
definite volume and does not expand indefinitely and that is only
slightly compressible.'' Similarly, liquid (in physics) can be defined
as one of the three principal states of matter, intermediate between
gas and solid. The most obvious physical properties of a liquid are its
retention of volume and its conformity to the shape of its container.
Liquid can flow, and when a liquid substance is poured into a container
or vessel, it takes the shape of that vessel, and will remain that way
if conditions are unchanged (e.g., the substance stays in the liquid
state). Furthermore, when a liquid is poured from one vessel to
another, it retains its volume (if there is no vaporization or change
in temperature) but not its shape. These properties serve as useful
criteria for distinguishing the liquid state from the solid and gaseous
states.
In the realm of CCR surface impoundments, several types of liquids
may be present in a CCR unit. For example, among others, this may
include water that was sluiced into the impoundment along with the CCR,
which may be found as free water ponded above the CCR or porewater
intermingled with the CCR, or surface water and groundwater that has
migrated into the impoundment due to the construction of the unit.
Based on the regulatory terms, the structure, and context in which the
terms are employed, as well as the dictionary definitions of
``liquid,'' above, and the fact that nothing in the regulatory
definition limits the source of the liquid, EPA considers free water,
porewater, standing water, and groundwater to be liquids under the
existing regulation. Moreover, the source of the liquid is not
important with respect to its basic and fundamental designation as a
liquid. It therefore does not matter whether the liquid in the surface
impoundment comes from the rain, waters the facility deliberately
places in the unit, floodwaters from an adjacent river, or from
groundwater--all are liquids, and once present in the unit, they have
the same potential to create leachate (another type of liquid), as well
as to contribute to hydraulic head and drive flows driven by hydraulic
gradients.
Commenters questioned whether the existing definition of an
inactive CCR surface impoundment would cover a surface impoundment
where, prior to October 19, 2015, the facility has decanted the surface
water, but, because the base of the impoundment intersects with the
aquifer, water continues to flow through the impoundment and permeate
the waste in the base of the unit. Commenters also questioned whether
any of the following would also be covered: (a) Impoundments that
contained CCR and liquids in the past but are now closed, (b)
Impoundments that contained CCR and liquids in the past but will be in
the process of closing by the effective date of the legacy rulemaking,
and (c) Impoundments that once contained CCR and liquids but have been
fully dewatered and are now maintained so as to not contain liquid.
The critical issue in these questions is whether on or after the
relevant date in the regulation these units ``contain'' liquid.
``Contains'' means ``to have or hold (someone or something) within''
(e.g., Oxford English Dictionary, Merriam-Webster). Accordingly, an
impoundment ``contains'' liquid if there is liquid in the impoundment,
even if the impoundment does not prevent the liquid from migrating out
of the impoundment. In other words, it ``contains'' water if it has
water within, even if it does not completely restrain the water within
the unit.
A surface impoundment that, on or after October 19, 2015, has only
decanted the surface water would normally still contain liquid if waste
is saturated with water. To the extent the unit still contains liquids,
it would be covered by the existing definition of an inactive
impoundment. Under this proposed rule, such units would also be
considered legacy CCR surface impoundments when located at inactive
facilities. This would apply whether the unit is considered ``closed''
under state law, is in the process of closing, or whether at some
subsequent point, the unit is fully dewatered and no longer contains
liquid.
To determine whether an impoundment has only been partially
dewatered, EPA relies on the dewatering requirement found in the
closure performance standard at Sec. 257.102(d)(2)(i) (``Free liquids
must be eliminated by removing liquid wastes or solidifying the
remaining wastes and waste residues''). Both the definition of an
inactive CCR surface impoundment and the closure performance standard
are designed to address the same issues (the presence or removal of
liquid wastes) and are designed for the same purpose (to ensure the
risks from the co-management of CCR and liquid are adequately
addressed). Under the closure performance standard, a facility must
eliminate both the standing liquid in the surface of the impoundment
and the separable porewater in any sediment located in the base of the
impoundment. Free liquids are defined at Sec. 257.53 to mean ``liquids
that readily separate from the solid portion of a waste under ambient
temperature and pressure.'' This definition encompasses both

[[Page 31993]]

standing liquids in the impoundment as well as porewater in any
sediment or CCR. The regulation does not differentiate between the
sources of the liquid in the impoundment (e.g., surface water
infiltration, sluice water intentionally added, groundwater intrusion).
This is further supported by the fact that the performance standard at
Sec. 257.102(d)(2)(i) was modeled on the regulations that apply to
interim status hazardous waste surface impoundments, which are codified
at Sec. 265.228(a)(2)(i). Available guidance on these interim status
regulations clarifies that these regulations require both the removal
of standing liquids in the impoundment as well as sediment dewatering.
See ``Closure of Hazardous Waste Surface Impoundments,'' publication
number SW-873, September 1982. See also, Final Decision on Request For
Extension of Closure Date Submitted by Gavin Power, LLC, 87 FR 72989
(November 15, 2022).
Accordingly, units that contain both CCR and liquids from any
source, including those specifically identified above, after the
relevant date would be considered inactive CCR impoundments, consistent
with the existing regulations. Although EPA considers that the term
``liquids'' is sufficiently clear that a definition is not necessary,
EPA requests comment on whether it would be useful to include a
regulatory definition of liquids.
Under the existing regulations, an impoundment that did not contain
liquids prior to the effective date of the 2015 CCR Rule, whether
because it was closed in accordance with existing state requirements or
for other reasons, is not an inactive impoundment. Similarly, a unit
that still contains CCR and liquid after the relevant effective date
would still be considered an inactive unit even if it was closed in
accordance with the requirements in effect at the time (e.g., has a
cover). EPA is not proposing to revise this for inactive impoundments,
and for consistency, EPA is proposing that the same would hold true for
legacy CCR surface impoundments, whatever date EPA ultimately selects
for the definition.
However, EPA also received comments in response to the ANPRM
stating that available groundwater monitoring data demonstrates that
CCR landfills (whether active or inactive) are just as likely to
contaminate groundwater as CCR surface impoundments (legacy or
otherwise). Accordingly, the commenters argue that EPA should regulate
all CCR units, without regard to whether they contain liquid.
EPA is not proposing to expand the definition of a legacy CCR
surface impoundment to include units that contain no liquid. Units that
contain liquid present different risks than those that do not, and the
applicable requirements should differentiate among them accordingly on
that basis. While EPA acknowledges that inactive landfills can still
present the risk of contaminating groundwater, it is possible those
risks could potentially be addressed by this rule's proposed expansion
of groundwater monitoring, corrective action, and closure obligations
to CCR management units. EPA acknowledges that its current proposal
would not regulate every inactive CCR landfill, e.g., it would not
address any inactive landfill located at an inactive utility that did
not also have an inactive CCR surface impoundment, but it is unclear
how many of such units exist, and whether there are any reasons that
the risks from these units may differ from those that EPA is proposing
to regulate. EPA therefore requests comment on these issues.
i. What does it mean to ``contain'' CCR?
Under the existing regulation, an inactive CCR surface impoundment
must contain CCR to be subject to the rule. 40 CFR 257.53. EPA is not
proposing to revise that aspect of the term's definition. Consequently,
EPA is proposing that a legacy impoundment that has closed by removal
in accordance with the performance standards in Sec. 257.102(c) before
the relevant date would not be considered an inactive CCR surface
impoundment. EPA is proposing that facilities with such a unit would
only be required to post documentation that they have met the existing
standard for closure by removal in Sec. 257.102(c) on their CCR
website. EPA is also proposing, however, that an impoundment at an
inactive facility still undergoing closure by removal on the relevant
date would be considered a legacy CCR surface impoundment subject to
the final rule requirements. Depending on when the impoundment
completes closure, some individual requirements may no longer be
applicable to the legacy CCR surface impoundment (i.e., when the
compliance date in the final rule falls after the date closure is
completed for the impoundment); but EPA has no basis for concluding
that a legacy CCR surface impoundment that is still in the process of
closing poses no risk.
A commenter asserted that EPA's authority under RCRA only extends
to those impoundments where solid waste is still being ``disposed of''
at such inactive sites. According to the commenter, EPA's authority
ends once the solid waste is removed from the inactive impoundment. The
commenter cites the USWAG decision to support this interpretation,
noting that the Court states that an impoundment regulated under RCRA
includes:

any facility . . . where solid waste still ``is deposited,'' ``is
dumped,'' ``is spilled,'' ``is leaked,'' or ``is placed,''
regardless of when it might have originally been dropped off.'' See
42 U.S.C. 6903(3), (14). . . A site where garbage ``is disposed of''
is the place where garbage is dumped and left. The status of the
site does not depend on whether or not more garbage is later piled
on top. A garbage dump is a garbage dump until the deposited garbage
is gone.

The commenter concludes that, following the Court's logic, a legacy
CCR surface impoundment is regulated under RCRA because CCR is
currently deposited and stored at the site, but it remains an
impoundment regulated under RCRA only during the time CCR is actually
being stored at the site. According to the commenter, once all the CCR
is removed from the impoundment and the impoundment site has achieved
clean closure status according to state regulators, no CCR is being
disposed as a solid waste at the site and consequently the impoundment
is no longer subject to federal CCR regulation under Subtitle D of
RCRA. By contrast, another commenter relied on the USWAG decision to
conclude that EPA must regulate all legacy CCR surface impoundments
unless the facility demonstrates that the unit has complied with the
requirements in Sec. 257.102(c). According to the commenter, the Court
explained that ``the statute creates a binary world: A facility is a
permissible sanitary landfill, or it is an impermissible open dump. The
EPA regulates both. The timing or continuation of disposal is
irrelevant.''
EPA agrees that it no longer has jurisdiction over a former unit
that has closed by removal in accordance with Sec. 257.102(c). Once
those standards have been met, no CCR ``still `is deposited,' `is
dumped,' `is spilled,' `is leaked,' or `is placed.''' This is
consistent with EPA's proposal to require the owner or operator to
document that the unit has closed in accordance with Sec. 257.102(c),
but to impose no requirements on such units.
Nevertheless, EPA is unable to accept the suggestion that EPA
exempt legacy CCR surface impoundments that have met state requirements
for clean closure. The commenter did not provide any information about
any of the state requirements they reference, or otherwise provide
information that would allow EPA to evaluate how the

[[Page 31994]]

individual state requirements compare to Sec. 257.102(c). Based on the
current record EPA can only support a determination that units that
have clean closed since 2015 under a state CCR permit program meet the
closure requirements in Sec. 257.102(c) for those facilities operating
under a permit issued pursuant to one of the three approved state CCR
permit programs (Oklahoma, Georgia, and Texas). Moreover, in RCRA
section 4005(d)(1) Congress established specific standards and mandated
the process for EPA to determine that state requirements should operate
in lieu of the federal. Under those provisions, a state can apply to
obtain authorization from EPA to operate its program (either in whole
or in part) in lieu of the federal requirement by demonstrating that
either of the standards in RCRA section 4005(d)(1)(B) has been met.
Relying on that congressionally mandated process, rather than this
rulemaking, is the appropriate route to address the commenters'
concerns about duplication between federal and state requirements.
EPA acknowledges that since the 2015 CCR Rule and the USWAG
decision some units have closed or have begun to close in accordance
with state permits. The Agency is also aware of units that closed on
their own initiative in response to the D.C. Circuit's ruling. In
response to the ANPRM, EPA received information that since October 19,
2015, 22 surface impoundments at inactive facilities have closed by
removal, and 27 surface impoundments have closed with waste in place,
either with oversight from a state agency or on their own initiative in
response to the USWAG decision. A number of commenters claimed that
their units are heavily vegetated or developed and that reopening or
other removal/remediation activities may disrupt current use of the
land. It may well be that some old units are heavily vegetated.
However, no commenter submitted any data or analysis to demonstrate
that, over the long term, removal or remediation activities would be
more detrimental to health and the environment than either cleaning up
the contaminated groundwater or taking measures to prevent the legacy
CCR surface impoundment from contaminating groundwater.
Moreover, the fact that some impoundments have become heavily
vegetated or redeveloped does not resolve the risks these unlined
legacy CCR surface impoundments continue to pose. At a minimum, the
record shows that significant numbers of CCR surface impoundments were
constructed such that the base of the unit intersects with groundwater,
and that many inactive, or even ``closed,'' impoundments continue to
impound water below the water table (i.e., contain liquid). The risks
associated with such closures can be substantial. See Unit IV.B.1.b of
this preamble for more information. Consequently, based on the current
record, EPA could not support an exemption for units that still contain
both liquid and CCR even if the closure or remediation may disrupt the
current use of the land.
c. Inactive Facility
Consistent with USWAG, EPA is proposing to regulate all inactive
CCR surface impoundments at inactive utilities. To support this
decision, EPA is proposing to define an inactive utility (or inactive
facility) as one that ceased producing electricity prior to October 19,
2015. This date is the effective date of the 2015 CCR Rule. This is
also the same date currently used in the regulation to define ``active
facility,'' and that EPA originally used to define the exempted units.
Use of this date would mean that the same universe of units that were
subject to the original exemption would be regulated. This is
consistent with the Court's vacatur, as vacatur is intended to restore
the status quo ante, as though the vacated provision never existed.
This definition is important to identify which facilities have
legacy CCR surface impoundments and therefore are subject to these
proposed regulations. EPA is relying on the existing rulemaking record
and provisions in Sec. 257.50(b) to draw conclusions about the
production of power such that an inactive facility contains ``units
that dispose or otherwise engage in solid waste management of CCR
generated from the combustion of coal at electric utilities and
independent power producers,'' and from Sec. 257.50(c), which says
``electric utilities or independent power producers, regardless of the
fuel currently used at the facility to produce electricity.'' EPA is
also relying on the existing definition of ``facility'' which means
``all contiguous land, and structures, other appurtenances, and
improvements on the land, used for treating, storing, disposing, or
otherwise conducting solid waste management of CCR. A facility may
consist of several treatment, storage, or disposal operational units
(e.g., one or more landfills, surface impoundments, or combinations of
them).''
Ownership and the ability to identify those responsible for
complying with these regulations is a key consideration for the
proposed definition of an inactive facility. EPA analyzed the list of
inactive CCR facilities provided in the ANPRM comments and conducted
additional research to determine the owner of those facilities. To
identify the owners of legacy CCR surface impoundments, EPA conducted a
two-tiered research process. First, EPA conducted a general search that
included desktop research, with a focus on news articles and trade
publications regarding plant closures and ownership transfers, to
identify the most recent identified owner of each former plant. Where
possible, EPA confirmed the findings with utility websites, which often
contain information on retired or converted plants, and often have
corporate timelines that identify transfer of properties to other
parties. In addition, where possible, when EPA identified an owner, the
Agency attempted to confirm that the property or plant was listed on
the owner's website. If information could not be confirmed, EPA
continued researching until all other entities that could potentially
currently own the plant could be ruled out. Second, EPA ran these
identified owners through the Dun & Bradstreet Hoover's database to
identify the ultimate corporate parent of the identified owner. The 156
legacy CCR surface impoundments on the list are associated with 37
different unique corporate parents. Of the 156, the vast majority, 126,
are owned by a set of 23 companies the Agency knows own facilities
regulated by the CCR regulations. The remaining 30 units are owned by
14 different companies, with each company generally having just one
location/site with legacy CCR surface impoundments (with one exception,
that owns two sites). Therefore, it appears that most of the inactive
facilities are owned by companies that are already regulated by the CCR
regulations. Some of them are owned by a company that is not currently
regulated by the CCR regulations, but the company has at least one
facility with potential legacy CCR surface impoundments. EPA has not
identified any facilities where the owner cannot be determined.
In the ANPRM, EPA solicited comments about innocent owners of
inactive facilities, but several commenters said that unlike the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), RCRA does not contain an ``innocent owner'' concept, and
there is therefore no statutory basis for uniformly excluding these
owners from any RCRA regulations applicable to

[[Page 31995]]

legacy CCR surface impoundments. The same commenter said the owner
should be the owner at the time of rule promulgation and that owner
would be in a position to make decisions and act in response to new
regulatory requirements applicable to the legacy CCR surface
impoundments. Based on EPA's analysis of inactive facility ownership,
EPA has no factual basis to establish an innocent owner provision and
therefore is not proposing one.
A commenter suggested that EPA should use the phrase ``permanently
ceased generating,'' because plants can exist in various stages of
generation, including seasonal mothball status, depending on the market
conditions and the needs of the independent system operators. EPA
disagrees that this is necessary or appropriate, as any facility that
generates power after October 19, 2015, is considered an ``active
facility,'' that is covered under the existing regulations. See, 40 CFR
257.53 (defining Active facility). Under Sec. 257.50(c), the
regulations apply to ``inactive CCR surface impoundments at active
electric utilities or independent power producers, regardless of the
fuel currently used at the facility to produce electricity.'' 40 CFR
257.50(c).
The question has been raised whether the phrase ``regardless of the
fuel currently used to produce electricity'' in Sec. 257.50(c)
indicates that EPA meant to limit the rule to facilities that combust
fossil fuels; but the provision does not state or even imply that
limitation. The definition of an active facility does not include any
limitation related to how the facility generates electricity, including
fuel use. Nor does the clause, ``regardless of the fuel currently used
to produce electricity'' in Sec. 257.50(c) add a fuel use limitation
into that definition, or otherwise create a fuel use limitation in the
scope of the rule. The plain language of the clause states the
opposite; that coverage applies without regard to the fuel used to
produce electricity. Or in other words, without regard to the type of
fuel used or indeed whether any fuel is used to produce electricity.
Nevertheless, to avoid any further confusion, EPA is proposing to amend
the provision to specify that the subpart also applies to inactive CCR
surface impoundments at active electric utilities or independent power
producers, regardless of how electricity is currently being produced at
the facility.
Finally, EPA requested comment as to whether the Agency's
regulation of inactive CCR surface impoundments 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. In response, some
commenters said that EPA should regulate all inactive impoundments
without regard to whether those impoundments are located at power
plants that once sold electric power to the grid or supplied it only to
a single site or facility. They said it is not the location of the
impoundment, but rather the presence of coal ash, that controls. Other
commenters said this could also prove to be a thorny factual issue, as,
in many cases, the same power plant might have served a single site or
facility for some period of time as well as served the grid at other
times.
For the same reasons that EPA did not include CCR generated by non-
utility boilers in the 2015 CCR Rule, EPA is not proposing to regulate
units at former power plants that provided power to a single site or
facility. See, 80 FR 21340. EPA lacks critical data about such
facilities needed to determine whether and how to regulate such
facilities. These facilities are primarily engaged in business
activities, such as agriculture, mining, manufacturing, transportation,
and education. These industries, and the manufacturing industries in
particular, generate other types of wastes that are often mixed or co-
managed with the CCR at least at some facilities. As a result, the
chemical composition of the co-managed waste is likely to be
fundamentally different from the chemical composition of CCR generated
by electric utilities or independent power producers. EPA requests
comment on the likely chemical composition of other types of wastes
generated by these industries that were co-managed with any CCR
generated at such facilities. Insufficient information is also
available on such facilities to determine whether a regulatory
flexibility analysis will be required under the Regulatory Flexibility
Act, and to conduct one if it is necessary. EPA therefore requests
comment on whether the Agency should continue to pursue this issue by
seeking to obtain the information necessary to determine whether
regulation of such facilities is warranted.
d. Conclusions Related to Scope of Coverage
After considering all of this information, EPA is proposing to
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 the surface impoundment contained both CCR and
liquids on or after October 19, 2015. EPA considers this definition to
be the most protective of human health and the environment for the
reasons provided herein.
Alternatively, EPA solicits comments on defining a ``legacy CCR
surface impoundment'' as: A CCR surface impoundment at a power plant
that ceased generating power prior to October 19, 2015, and the surface
impoundment contains both CCR and liquids on or after the effective
date of the legacy CCR surface impoundment final rule.
2. Applicable Requirements for Legacy CCR Surface Impoundments and
Compliance Deadlines
This Unit of the preamble first provides a general overview of how
EPA determined the applicable requirements and compliance deadlines for
legacy CCR surface impoundments. Then, EPA will walk through each of
the existing requirements for CCR surface impoundments and explain (1)
Why EPA is proposing to apply them (or not) to legacy CCR surface
impoundments, and (2) The rationale for the compliance deadline EPA is
proposing for each requirement.
a. General Overview
i. Applicable Requirements
Based on the record compiled for the 2015 CCR Rule, EPA concluded
that ``there is little difference between the potential risks of an
active and inactive surface impoundment; both can leak into
groundwater, and both are subject to structural failures that release
the wastes into the environment, including catastrophic failures
leading to massive releases that threaten both human health and the
environment.'' (80 FR 21343). As discussed in Unit III.B of this
preamble, the D.C. Circuit concurred, and on that basis, vacated the
exemption for legacy CCR surface impoundments. See, USWAG at 901 F.3d
at 434. EPA received no information in response to the ANPRM that would
support a conclusion that legacy CCR surface impoundments present fewer
risks than other inactive CCR impoundments. Based on this record and on
the specificity of the D.C. Circuit's findings in USWAG, EPA considers
that it has limited discretion to establish requirements for legacy CCR
surface impoundments that are significantly different than those
currently applicable to inactive CCR impoundments. Accordingly, EPA is
proposing that, in most cases the existing requirements in 40 CFR part
257, subpart D applicable to inactive CCR surface impoundments would
apply to legacy CCR surface

[[Page 31996]]

impoundments. EPA is proposing to make one revision to the existing
groundwater monitoring requirements. In addition, EPA is proposing to
establish two new requirements specific to legacy CCR surface
impoundments: a reporting requirement and a new security requirement to
restrict public access to these sites. Finally, EPA is proposing that
legacy CCR surface impoundments would not be subject to either the
location restrictions at Sec. Sec. 257.60 through 257.64, or the liner
design criteria at Sec. 257.71. EPA is proposing to exclude these
requirements because EPA believes they will not be necessary if EPA
takes final action on the proposed requirement that all legacy CCR
surface impoundments initiate closure no later than 12 months after the
effective date of the final rule.
Some commenters on the ANPRM said that all provisions currently
required for CCR surface impoundments at active power plants (or those
that were operating as of the effective date of the rule), are just as
necessary--if not more so--at legacy CCR surface impoundments to ensure
satisfaction of the RCRA section 4004(a) protectiveness standard. Other
commenters said the only applicable requirements should be groundwater
monitoring, closure, post-closure care, and related recordkeeping
requirements. Several of these commenters also said that the 2015 CCR
rulemaking record is not directly applicable to the universe of units
that are located at inactive power plants and still contain CCR and
liquids. They said the 2014 CCR Risk Assessment used to develop the
2015 CCR Rule was limited to current disposal practices and did not
consider units that had stopped receiving waste or historically
disposed of CCR by facilities that no longer operate. According to
these commenters, the Agency must first accurately identify the
universe of legacy CCR surface impoundments, the specific
characteristics of risk for those impoundments, and then analyze
whether other authorities are sufficient to address any risk from these
legacy CCR surface impoundments.
Finally, some commenters requested that EPA include a mechanism for
legacy CCR surface impoundment owner(s) and/or operator(s) to
demonstrate that, in such cases, additional CCR requirements would be
unnecessary. The commenters stated that this would be similar to the
case-by-case determinations established under the Holistic Approach to
Closure Parts A and B final rules (85 FR 53516 and 85 FR 72506) that
provided a mechanism for the Agency to issue variances for plants that
could successfully make the required demonstration.
ii. Compliance Deadlines
EPA is proposing to establish new compliance dates for legacy CCR
surface impoundments. The compliance deadlines in the 2015 CCR Rule
were generally based on the amount of time determined to be necessary
to implement the requirements. To determine what was feasible, EPA
accounted for the fact that some of the new requirements involved
numerous activities, many of which must occur sequentially (e.g., the
groundwater monitoring requirements in Sec. Sec. 257.90 through
257.95), as well as concerns about shortages of contractor and lab
resources resulting from the fact that those numerous facilities would
need to come into compliance at the same time. EPA also accounted for
other Agency rulemakings that could have affected the owners or
operators of CCR units, namely the 2015 Effluent Limitation Guidelines
(ELG) and Standards for the Steam Electric Power Generating Point
Source Category and the Carbon Pollution Commission Guidelines for
Existing Stationary Sources: Electric Utility Generating Units. In
establishing the proposed deadlines for legacy CCR surface
impoundments, EPA adopted the same approach, and is proposing deadlines
based on the amount of time determined to be necessary to implement the
requirements. But some of the factors considered in the 2015 rulemaking
are not relevant for legacy CCR surface impoundments; for example,
there is no longer a need to coordinate with the ELG compliance
deadlines. In addition, most facilities are already familiar with these
requirements as they have already implemented them for other units at
their active sites, so the timeframes need not account for the time
that would be needed for a facility to understand the regulations and
develop strategies for compliance. Finally, there will be fewer
facilities and units that will need to come into compliance, and EPA no
longer has concerns about shortages of contractors and lab resources.
Consequently, EPA is generally proposing expedited timeframes for
legacy CCR surface impoundments to comply with the regulations, based
on the shortest average amount of time needed to complete the
activities involved in meeting the requirements. Overall, comments
submitted in response to the ANPRM acknowledged these differences and
most supported the establishment of shorter deadlines than were
established in the 2015 CCR Rule.
Note that all deadlines herein are framed by reference to the
effective date of the rule and have been proposed based on an effective
date that is six months from publication of the final rule. The Agency
has included a document in the docket \13\ for this rule that
summarizes the proposed compliance deadlines. EPA requests comment on
the compliance deadlines and the feasibility to meet the proposed
compliance timeframes for legacy CCR surface impoundments.
---------------------------------------------------------------------------

\13\ This information can be found in the document titled
``Proposed Compliance Deadlines for Legacy CCR Surface Impoundments
and CCR Management Units'' in the docket for this action.

Table 1--Proposed Compliance Timeframes for Legacy CCR Surface Impoundments in Months After Effective Date of
the Final Rule
----------------------------------------------------------------------------------------------------------------
Description of Proposed deadline (months
40 CFR part 257, subpart D requirement to be after effective date of the Notes
requirement completed final rule)
----------------------------------------------------------------------------------------------------------------
Applicability Documentation (Sec. Applicability 0.............................. Prerequisite
257.100). Documentation for requirements:
the legacy CCR Establish CCR
surface impoundment. website.
Subsequent
requirements:
History of
construction;
Initial structural
stability
assessment; Initial
safety factor
assessment.
Design Criteria (Sec. 257.73)... Install permanent 0..............................
marker.
Site Security (Sec. Implement site 0..............................
257.100(f)(3)(iii)). security measures.

[[Page 31997]]

Operating Criteria (Sec. 257.80) Prepare fugitive dust 0.............................. Subsequent
control plan. requirements:
Initial annual
fugitive dust
report.
Operating Criteria (Sec. 257,80, Initiate weekly 0.............................. Subsequent
257.82, 257.83). inspections of the requirements:
CCR unit. Initial annual
inspection of the
CCR unit.
Operating Criteria (Sec. 257,80, Initiate monthly 0.............................. Subsequent
257.82, 257.83). monitoring of CCR requirements:
unit instrumentation. Initial annual
inspection of the
CCR unit.
Internet Posting (Sec. 257.107). Establish CCR website 0.............................. Subsequent
requirements:
Applicability
report; all
recordkeeping.
Design Criteria (Sec. 257.73)... Compile a history of 3.............................. Prerequisite
construction. requirements:
Applicability
report.
Subsequent
requirements:
Hazard potential
classification;
Emergency Action
Plan; Initial
hazard
classification
assessment; Initial
structural
stability
assessment; Initial
safety factor
assessment; Initial
annual inspection;
Groundwater
monitoring system.
Design Criteria (Sec. 257.73)... Complete initial 3.............................. Prerequisite
hazard potential requirements:
classification Applicability
assessment. report; History of
construction.
Subsequent
requirements:
Emergency Action
Plan.
Design Criteria (Sec. 257.73)... Complete initial 3.............................. Prerequisite
structural stability requirements:
assessment. Applicability
report; History of
construction.
Subsequent
requirements:
Emergency Action
Plan.
Design Criteria (Sec. 257.73)... Complete initial 3.............................. Prerequisite
safety factor requirements:
assessment. Applicability
report; History of
construction.
Subsequent
requirements:
Emergency Action
Plan.
Operating Criteria (Sec. 257,80, Complete the initial 3.............................. Prerequisite
257.82, 257.83). annual inspection of requirements:
the CCR unit. History of
construction;
Weekly inspections
of the CCR unit;
Monthly monitoring
of CCR unit
instrumentation.
GWMCA (Sec. 257.91)............. Install the 6.............................. Prerequisite
groundwater requirements:
monitoring system. Applicability
report; History of
construction.
Subsequent
requirements:
Groundwater
sampling and
analysis program;
Initiate detection
and assessment
monitoring; Annual
GWMCA report;
Written closure
plan; Initiate
closure.
GWMCA (Sec. 257.93)............. Develop the 6.............................. Prerequisite
groundwater sampling requirements:
and analysis program. Install the
groundwater
monitoring system.
Subsequent
requirements:
Initiate detection
monitoring and
assessment
monitoring.
GWMCA (Sec. 257.90(e)).......... Annual GWMCA report.. January 31 of the year Prerequisite
following GWM system install. requirements:
Groundwater
monitoring system;
Groundwater
sampling and
analysis plan.
Design Criteria (Sec. 257.73)... Prepare Emergency 9.............................. Prerequisite
Action Plan. requirements:
History of
construction;
Hazard potential
classification;
Initial structural
stability
assessment; Initial
safety factor
assessment.
Operating Criteria (Sec. 257.82) Prepare initial 9.............................. Prerequisite
inflow design flood requirements:
control system plan. History of
construction;
Hazard potential
classification.
Operating Criteria (Sec. 257.80) Prepare initial 12............................. Prerequisite
annual fugitive dust requirements:
report. Fugitive dust plan.
Closure (Sec. Sec. 257.100- Prepare written 12............................. Subsequent
257.101). closure plan. requirements:
Initiate closure.
Post-Closure Care (Sec. 257.104) Prepare written post- 12............................. Prerequisite
closure care plan. requirements:
Written closure
plan.
Closure and Post-Closure Care Initiate closure..... 12............................. Prerequisite
(Sec. 257.101). requirements:
Written closure
plan.
GWMCA (Sec. Sec. 257.90-257.95) Initiate the 24............................. Prerequisite
detection monitoring requirements:
and assessment Groundwater
monitoring. Begin monitoring system;
evaluating the Groundwater
groundwater sampling and
monitoring data for analysis plan.
SSI over background
levels and SSL over
GWPS.
----------------------------------------------------------------------------------------------------------------

[[Page 31998]]

b. New Requirements Specific to Legacy CCR Surface Impoundments
i. Legacy CCR Surface Impoundment Applicability Documentation
EPA is proposing to require the owner and operator of a legacy CCR
surface impoundment to prepare an applicability documentation for any
legacy CCR surface impoundment at that facility no later than the
effective date of the final rule. This requirement would apply to all
legacy CCR surface impoundments, including incised impoundments and
impoundments that do not meet the height and storage volume cutoffs
specified in Sec. 257.73(b). See, proposed regulatory text at Sec.
257.100(f)(1)(i). EPA is proposing that this applicability
documentation would include information to identify the unit, delineate
the unit boundaries, include a figure of the facility and where the
unit is located at the facility, the size of the unit, its proximity to
surface water bodies, and the current site conditions. For impoundments
that are incised or for those not meeting the height and storage volume
thresholds specified in Sec. 257.73(b), the applicability report must
document these conditions so that stakeholders can understand what
structural integrity requirements will apply to the legacy CCR surface
impoundment. EPA is also proposing that the applicability report
include the facility address, latitude and longitude, and contact
information of the owner and/or operator of the legacy CCR surface
impoundment with their phone number and email address. EPA is also
proposing that the owner or operator of the legacy CCR surface
impoundment notify the Agency of the establishment of the facility's
CCR website and the applicability of the rule, using the procedures
currently in Sec. 257.107(a) via the ``contact us'' form on EPA's CCR
website.
ii. Site Security for Legacy CCR Surface Impoundments
Active facilities generally have guards and fencing to control
access to the facility, but inactive CCR facilities may not have such
security controls in place at the facility. To minimize that risk, EPA
is proposing that owners and operators establish security controls to
restrict access to legacy CCR surface impoundments. The proposed
security requirements are written in terms of a performance standard,
as opposed to a prescriptive set of technical standards, such as
specific signage, barriers and fencing, or surveillance techniques. EPA
chose this approach because it would allow the owner or operator to
identify the most appropriate means for providing site security for the
impoundment based on site-specific circumstances.
Some commenters on the ANPRM agreed that such requirements are
necessary because legacy CCR impoundments are located at inactive power
plants, unlike impoundments at operating power plants, they almost
certainly lack the oversight and protection afforded by significant
numbers of on-site personnel. Consequently, the integrity of
impoundments and berms and the safety of nearby residents depend on
robust security measures to ensure that people are not--whether
intentionally or unknowingly--entering the site and taking actions
(such as ATV driving, dirt biking, or similar activities) that endanger
the integrity of the impoundment or expose trespassers to health risks.
The proposed site security performance standard would require the
owner or operator to prevent the unknowing entry of people onto the
legacy CCR surface impoundment and to minimize the potential for the
unauthorized entry of people or livestock onto the impoundment. See
proposed regulatory text in Sec. 257.100(f)(3)(iii). The Agency
generally modeled the proposed requirements on existing regulations
that apply to interim status hazardous waste surface impoundments,
which are codified at Sec. 265.14(a). EPA recognizes that some
facilities may have facility-wide access controls in place, and in this
case, the facility-wide controls would satisfy the proposed requirement
to limit public access to the legacy CCR surface impoundment. The
Agency is proposing to require the facility to restrict access to the
area containing the legacy CCR surface impoundment no later than the
effective date of the final rule. See, proposed regulatory text at
Sec. 257.100(f)(3)(iii).
iii. Certification of Closure by Removal for Legacy CCR Surface
Impoundments
As discussed in Unit IV.A.1.b.ii of this preamble, where a legacy
CCR surface impoundment has completed closure of the CCR unit by
removal of waste in accordance with the performance standards in Sec.
257.102(c) prior to the effective date of the final rule, EPA is
proposing that the owner and operator of an inactive facility post
documentation that they have met the existing standard for closure by
removal in Sec. 257.102(c) on their CCR website. If such a
demonstration cannot be made, the CCR surface impoundment would be
regulated as a legacy CCR surface impoundment. EPA is proposing to
require that the closure certification be certified by a qualified
professional engineer (P.E.). EPA is proposing to require certification
by a qualified professional engineer even though the Agency now has
authority to enforce the part 257 regulations. This is because the
certification is not intended as a substitute for EPA's oversight, but
as a supplement to ensure that the regulated community properly
understands and implements the regulations. As EPA explained in 2015,
the purpose of requiring certification was to ensure that qualified
individuals verify that the technical provisions of the rule have been
properly applied and met, not to delegate regulatory oversight to the
engineer, or to serve as a shield against judicial enforcement. See 80
FR 21335. Consistent with the original 2015 requirements, the
performance standards that EPA is proposing to establish are
independent requirements and would remain enforceable regardless of
whether a P.E. certification has been obtained.
EPA is proposing to require that the certified demonstration be
completed and posted on the facility website no later than the
effective date of the final rule. See proposed regulatory text at Sec.
257.100(f)(1)(ii). Because the closure of the unit will have been
already completed, the information on which to base the demonstration
should be readily available. Consequently, EPA believes that requiring
completion of this requirement, if applicable, by the effective date of
the final rule provides sufficient time for such a task.
c. Location Restrictions and Liner Design Criteria
The CCR regulations require existing CCR surface impoundments that
cannot demonstrate compliance with the location restrictions for
placement of CCR above the uppermost aquifer, in wetlands, within fault
areas, in seismic impact zones, or in unstable areas (specified in
Sec. Sec. 257.60 through 257.64) to cease receipt of waste and
retrofit or close. The purpose of these requirements is largely to
ensure that units located in particularly problematic areas cease
operation. By definition, legacy CCR surface impoundments are not
operating, and because it appears that all legacy CCR surface
impoundments are unlined and will therefore be required to close, EPA
believes that requiring compliance with the location restrictions would
be largely redundant. Commenters on the ANPRM largely supported not
requiring location restrictions or liner demonstrations on the grounds
that location restrictions and operating and

[[Page 31999]]

design criteria are not relevant to this class of units, as these
requirements primarily sought to ensure active units operated safely.
Other commenters raised concern that requiring compliance with one or
more location restrictions would provide information that would be
``critical'' to designing unit closure and any necessary corrective
action. EPA agrees that this information would be useful but believes
the same information will be captured by compliance with the history of
construction requirement, the closure plan, or in the development of
the groundwater monitoring system.
EPA is also proposing that the requirement to document whether the
impoundment was constructed with a composite liner or alternative
composite liner under Sec. 257.71(a)(1) is not warranted for legacy
CCR surface impoundments. The original purpose of this provision was to
determine whether the unit was unlined, and consequently subject to
closure. However, the available information indicates that legacy CCR
surface impoundments were largely constructed well before composite
liners systems were typically installed. For this reason, EPA expects
legacy CCR surface impoundment to be unlined and, therefore, EPA is
proposing to require all legacy CCR surface impoundments to close. As a
consequence, EPA believes that requiring facilities to compile the
information required by Sec. 257.71(a)(1) would not provide useful
information or otherwise be necessary.
d. Design Criteria for Structural Integrity for Legacy CCR Surface
Impoundments
To help prevent damages associated with structural failures of CCR
surface impoundments, existing surface impoundments must meet specified
structural integrity criteria in Sec. 257.73 as part of the design
criteria. EPA is proposing that all existing structural integrity
requirements be applicable to legacy CCR surface impoundments without
revision.
i. Installation of a Permanent Marker for Legacy CCR Surface
Impoundments
Consistent with the existing requirements for CCR surface
impoundments, EPA is proposing that owners or operators of legacy CCR
surface impoundments, except for ``incised CCR surface impoundments''
as defined in Sec. 257.53, comply with Sec. 257.73(a)(1), which
requires the placement of a permanent identification marker, at least
six feet high on or immediately adjacent to the CCR unit with the name
associated with the CCR unit and the name of the owner or operator.
See, proposed regulatory text at Sec. 257.100(f)(2)(i).
EPA is proposing that placement of the permanent marker must be
completed by the owner or operator of the legacy CCR surface
impoundment by the effective date of the final rule. By comparison,
installation of a permanent marker was required two months after the
effective date of the 2015 CCR Rule. The proposed deadline is expedited
for the reasons described in Unit IV.A.2.a.ii of this preamble and
accounts for sufficient time for survey work, and review of records in
facility deeds or other records.
ii. History of Construction for the Legacy CCR Surface Impoundments
Under the existing regulations, CCR surface impoundments that
either have: (1) A height of five feet or more and a storage volume of
20 acre-feet or more; or (2) Have a height of 20 feet or more, must
document the design and construction of the CCR surface impoundment. 40
CFR 257.73(b) and (c). See also 80 FR 21379-21380, April 17, 2015. EPA
is proposing that owners or operators of legacy CCR surface
impoundments that meet this size threshold would be required to comply
with the existing requirements to compile the construction history of
the legacy CCR surface impoundment. See proposed regulatory text in
Sec. 257.100(f)(2)(ii).
Some commenters on the ANPRM agreed that the history of
construction is critical to an evaluation of the long-term stability of
legacy CCR surface impoundments, which must be considered to determine
if the closure performance standards for closure in place can be met at
the impoundment and whether a given corrective action meets the
requirement to select a safe, protective remedy. The history of
construction is also critical in the event of any failure of the
impoundment: emergency response personnel must have access to that
information to determine how to halt further failure, and further
release of CCR, as quickly as possible.
For legacy CCR surface impoundments, EPA acknowledges that much of
the construction history of the surface impoundment may be unknown or
lost to time. The Agency conducted assessments of impoundments across
the country starting in 2009 (herein referred to as 2009-2014
Assessment Program). For information about these assessments and how
the results impacted the 2015 CCR Rule, see 80 FR 21313-21318 (April
17, 2015). The results from the 2009-2014 Assessment Program confirmed
that many owners or operators of CCR units did not possess
documentation on the construction history or operation of the CCR unit.
80 FR 21380. Information regarding construction materials, expansions
or contractions of units, operational history, and history of events
was frequently difficult for the owners or operators to obtain.
Therefore, consistent with the existing regulations, the owner or
operator would only need to provide information on the history of
construction to the extent that such information is reasonably and
readily available.
To complete the history of construction report, typically, the
owner and operator first enlist a contractor to generate the history of
construction report. Contracting typically involves the owner and
operator issuing a request for proposal, contractors responding to the
request, and the owner and operator evaluating the bids and selecting a
contractor (estimate 1-2 weeks). Following selection and onboarding of
a contractor, a data inventory, compilation, and review of existing
documents is completed by the owner and operator and contractor to meet
the requirements in Sec. 257.73(c)(1)(i) through (xi) (estimate 4-6
weeks). Examples of documents compiled may include the CCR unit's
design drawings and construction documents, such as construction
reports, quality assurance, as-built records, and historic boring log
reviews (e.g., subsurface investigation used for original CCR unit
design, post-construction subsurface investigations, geotechnical
studies). Data from external sources may also be needed such as the
U.S. Geological Survey (USGS) 7.5-minute or 15-minute topographic
quadrangle maps (Sec. 257.73(c)(1)(ii)) or National Hydrography
Datasets (Sec. 257.73(c)(1)(iv)). The compiled data must then be
reviewed, analyzed, and documented in reports (estimate 3-4 weeks).
Examples of analyses may include maximum CCR depths, area-capacity
curves, spillway capacities, and the maximum pool surface elevation
following peak discharge from the inflow design flood. This estimate
assumes that no new extensive analyses are needed, and that all
necessary information can be derived from existing reports (e.g.,
hydraulic and hydrologic reports). If new analyses are needed (e.g.,
maximum CCR depth), they are assumed to be minor with data inputs for
performing these analyses existing and readily available such as field
surveys (e.g., historic site preparation surveys, post-construction/as-
built surveys, periodic surveys,

[[Page 32000]]

bathymetric surveys). Based on these assumptions, the time required to
generate a history of construction report is 8-12 weeks or 2-3 months.
Therefore, EPA is proposing to require the history of construction
report to be compiled no later than 3 months after the effective date
of the final rule.
Expediting this timeframe compared to the 2015 CCR Rule timeframe
is important for the reasons described above in Unit IV.A.2.a.ii of
this preamble and because several additional requirements depend on the
information that would be obtained by compliance with these
requirements. For example, available geologic subsurface information
from history of construction is typically necessary to determine the
number, spacing and location of monitoring wells for the installation
of a groundwater monitoring system that meets the criteria of Sec.
257.91. Another example is that Sec. 257.73(c)(1)(xi) requires
reporting any record or knowledge of structural instability of the CCR
unit; this information is also needed for the initial and periodic
structural stability assessments required under Sec. 257.73(d).
iii. Initial Hazard Potential Classification for Legacy CCR Surface
Impoundments
Consistent with the existing regulations, EPA is proposing that
owners or operators of legacy CCR surface impoundments, except for
incised CCR surface impoundments as defined in Sec. 257.53, must
complete the initial periodic hazard potential classification
assessment required under Sec. 257.73(a)(2). See, proposed regulatory
text at Sec. 257.100(f)(2)(iii).
Hazard potential classification assessments require activities that
can be summarized as data/documentation review, a site visit, and
report generation. As stated above, acquiring a contractor may take 1-2
weeks. The contractor would then perform a site visit and review
available hazard documents such as existing state or federal dam hazard
potential classification documents or any previous structural stability
or safety factor documentation. The contractor then generates a P.E.-
certified report stating the hazard classification determination and
basis for the findings. The site visit is estimated to take 1 week. The
data/documentation review and report generation are expected to take a
total of 4-6 weeks. Based on these estimates, the total time needed to
conduct the initial hazard potential classification assessment is 6-9
weeks. Accordingly, EPA is proposing the initial hazard potential
classification assessment be due no later than 3 months after the
effective date of the final rule. The proposed deadline provides
sufficient time to complete the activities necessary to satisfy this
requirement, while allowing time (3-6 six weeks) for reasonable delays,
such as weather delaying a site visit or difficulty obtaining pertinent
documentation. This timeframe is expedited from the deadline in the
2015 CCR Rule by 9 months for the reasons described above in Unit
IV.A.2.a.ii of this preamble.
iv. Initial Structural Stability Assessment and Initial Safety Factor
Assessment for Legacy CCR Surface Impoundments
Under the existing regulations, CCR surface impoundments that meet
the size thresholds in Sec. 257.73(b) and (c), must conduct two
different types of technical assessments: (1) A structural stability
assessment; and (2) A safety factor assessment. See 40 CFR 257.73(b),
(d), (e), and (f). See also 80 FR 21380-21386, April 17, 2015. EPA is
proposing that owners or operators of legacy CCR surface impoundments
that meet the same thresholds also comply with the requirements to
conduct an initial structural stability assessment and an initial
safety factor assessment. See, proposed regulatory text at Sec.
257.100(f)(2)(iv).
Some commenters on the ANPRM said structural stability assessments
and safety factor assessments must apply to legacy CCR surface
impoundments since the risks from such units are likely greater at
legacy CCR surface impoundments, given the age of such units; the
higher percentage of legacy ponds (as compared to operating ash ponds)
that were neither designed by, nor built under the supervision of, a
P.E.; and the higher percentage of legacy CCR surface impoundments
determined to be in ``poor'' or ``fair'' condition.
The Agency conducted assessments of impoundments across the country
starting in 2009 in the 2009-2014 Assessment Program. For information
about these assessments and how the results impacted the 2015 CCR Rule,
see 80 FR 21313-21318 (April 17, 2015). EPA analyzed the results of the
2009-2014 Assessment Program and found that 97 impoundments \14\
assessed during the Program are located at inactive CCR facilities. Of
those impoundments, EPA found that six impoundments are classified as
high hazard potential, and 41 impoundments are classified as
significant hazard potential meaning that failure or mis-operation of
the dam will probably cause loss of human life or can cause economic or
environmental losses. This further supports EPA's conclusion that these
requirements are needed for legacy CCR surface impoundments.
---------------------------------------------------------------------------

\14\ This information can be found in the document titled
``Potential Legacy CCR Surface Impoundment Universe'' in the docket
for this action.
---------------------------------------------------------------------------

Activities required to conduct the initial structural stability
assessment include reviewing historic documents, conducting a site
investigation (if needed), and generating a P.E.-certified report.
Typically, owners or operators hire a contractor who is a certified
P.E., which, as detailed above, may take one to two weeks. The
contractor would then compile and review historic documents to
determine if the design, construction, operation, and maintenance of
the CCR unit are consistent with good engineering practices, which may
take 2-3 weeks. These documents likely overlap with those already
compiled for the history of construction and may include the design
drawings, construction reports, quality assurance documentation, as-
built records, subsurface investigations, geotechnical studies, and
site inspections. Stability of the CCR unit's embankment and foundation
may be demonstrated through slope stability analyses. Because slope
stability analyses are typically required to satisfy safety factor
assessments, no additional time is considered necessary to satisfy the
requirements under Sec. 257.73(d). Although site inspections would
likely already have occurred by the effective date of the final rule
pursuant to Sec. 257.83(a) or Sec. 257.83(b), it may be necessary for
the qualified P.E. to perform a site inspection to certify the CCR unit
meets the requirements as set forth in Sec. 257.73(d). Therefore, 1
week for the site inspection is factored into the estimated time to
complete these assessments. Finally, generating a P.E.-certified report
may take 4-6 weeks. The total estimated time to meet this requirement
is 8-12 weeks.
Activities required to complete the initial safety factor
assessment may include hiring a contractor that is a qualified P.E.,
which may take 1-2 weeks and conducting slope stability analyses of
critical cross sections, as defined in Sec. 257.73(e)(1). For the
initial assessment, it is anticipated that no new field work will be
required to gather this data and that the input parameters required for
the analysis (e.g., soil geotechnical properties, seasonal high-water
table) are available in historic documents such as the subsurface
investigation used for the original CCR unit design, post-construction
subsurface investigations, and/or geotechnical studies. Compilation and

[[Page 32001]]

review of this data is estimated to take 2-3 weeks, followed by 5-7
weeks for data analysis and reporting. The total estimated time needed
to meet requirements for completion of the safety factor assessment is
8-12 weeks.
The activities for the initial structural stability and initial
safety factor assessments can be conducted concurrently and based on
the estimates above, should take a total of 8-12 weeks (2-3 months).
Therefore, as stated above, EPA is proposing both the initial
structural stability assessment and the initial safety factors
assessments be completed no later than 3 months after the effective
date of the final rule. These timeframes are expedited by 15 months
from the 2015 CCR Rule deadline. EPA believes the expedited timeframe
is important to address the risks posed by legacy CCR surface
impoundments, as described in this Unit and in Unit IV.A.2.a.ii of this
preamble.
v. Preparation of an Emergency Action Plan for Legacy CCR Surface
Impoundments
Section 257.73(a)(3) requires any CCR surface impoundment that is
determined by the owner or operator, with the certification by a P.E.,
to be either a high hazard potential or a significant hazard potential
CCR surface impoundment to prepare and maintain a written Emergency
Action Plan (EAP). EPA is proposing that the owners or operators of
legacy CCR surface impoundments that have been identified as having
either a high hazard potential or a significant hazard potential would
be required to comply with the same requirements to prepare and
maintain an EAP that are currently required under Sec. 257.73. See
proposed regulatory text at Sec. 257.100(f)(2)(v).
An EAP is a document that identifies potential emergency conditions
at a CCR surface impoundment and specifies actions to be followed to
minimize loss of life and property damage. To prepare an EAP, the owner
or operator must accurately and comprehensively identify potential
failure modes and at-risk developments. See also 80 FR 21377-21379,
April 17, 2015. Satisfying EAP requirements is primarily a desktop
exercise that requires information on site conditions, some analyses,
and assessments that are proposed to be completed earlier. Typically,
the owner and operator enlist a contractor to generate the EAP, which,
as described above may take 1-2 weeks. Once onboard, it is assumed that
the contractor would review site-specific documents, assessments, and
analyses that were completed earlier and that may have an impact on
development of an EAP. These documents and assessments may include the
history of construction, initial structural stability assessment,
initial safety factor assessment, initial hazard potential
classification, hydraulic and hydrologic analyses for inundation maps
and potential impact areas, and the first annual inspection. Assuming
all analyses discussed in the preceding sections are completed by the
proposed deadlines of 3 months after the effective date of the final
rule, the review of existing documents and assessments is estimated to
take 4-6 weeks. Additional analyses, such as dam breach analyses or
inundation evaluations, may be needed to define events or circumstances
that may represent a safety emergency. If needed, these analyses may
take 3-6 weeks). The contractor would then prepare the EAP including
describing procedures to follow in an emergency, gathering emergency
responder contact information and defining responsible persons,
assigning responsibilities, and detailing notification procedures. This
may take 6-8 weeks because the required coordination with community or
government entities. Based on these assumptions, the time required to
complete an EAP is 3-6 months. Therefore, EPA is proposing a deadline
of 9 months after the effective date for this requirement. This
timeline is sufficient to review previously prepared documents,
complete additional analyses and prepare the EAP while accounting for
the 3 months allotted for the prerequisite assessments.
e. Operating Criteria for Legacy CCR Surface Impoundments
The operating criteria in Sec. Sec. 257.80, 257.82, and 257.84
include air criteria for all CCR units, hydrologic and hydraulic
capacity requirements for CCR surface impoundments, and periodic
inspection requirements for CCR surface impoundments. These criteria
address the potential risks from the day-to-day operations of CCR units
and are established to prevent health and environmental impacts from
CCR units. CCR surface impoundments are subject to hydrologic and
hydraulic capacity requirements to ensure the unit can safely handle
flood flows, which will help prevent uncontrolled overtopping of the
unit or erosion of the materials used to construct the surface
impoundment. The CCR regulations also require periodic inspections of
CCR units to identify any appearance of structural weakness or other
conditions that are not consistent with recognized and generally
accepted good engineering standards. EPA is proposing that legacy CCR
surface impoundments comply with these existing requirements without
revision.
i. Fugitive Dust Control Plan for Legacy CCR Surface Impoundments
EPA is proposing that owners or operators of legacy CCR surface
impoundments must complete a fugitive dust control plan. See, proposed
regulatory text at Sec. 257.100(f)(3)(i). The existing regulations
require the owner or operator of a CCR unit to adopt measures that will
effectively minimize CCR from becoming airborne at the facility,
including CCR fugitive dust originating from CCR units, roads, and
other CCR management and material handling activities. 40 CFR
257.80(b). To meet this requirement, the owner or operator of the CCR
unit must prepare and operate in accordance with a fugitive dust
control plan. Id. See also 80 FR 21386-21388, April 17, 2015. EPA
considers that fugitive dust controls are warranted because closure
activities can produce significant quantities of dust. For the same
reason, most commenters on the ANPRM agreed that legacy CCR surface
impoundments should be subject to these requirements.
The primary activities associated with this requirement are hiring
a contractor who is a qualified P.E., having the contractor develop a
plan based on daily operations at the unit and site conditions, and
certification of the plan by a P.E. Little to no field-based activities
are required to complete the fugitive dust control plan, so EPA is
proposing that the owner or operator comply with the existing
requirements by the effective date of the final rule. This timeline is
commensurate with the timeline proposed in the 2015 CCR Rule for
fugitive dust control plans.
ii. Initial Fugitive Dust Control Report for Legacy CCR Surface
Impoundments
EPA is proposing to require the initial annual fugitive dust report
to be due 12 months after the effective date of the final rule. See,
proposed regulatory text at Sec. 257.100(f)(3)(vi). Consistent with
the existing regulations, the report must document all actions taken to
control CCR fugitive dust, a record of all citizen complaints, and a
summary of any corrective measures taken in the previous year. As this
report is primarily a summary of owner or operator activities related
to fugitive dust control and does not require a P.E. certification, the
report may be completed by the owner or operator without the need for a
contractor. Therefore, the deadline of 12 months after effective date
of rule is sufficient for this requirement. This deadline is

[[Page 32002]]

expedited by 2 months from the 2015 CCR Rule deadline for the reasons
described above in Unit IV.A.2.a.ii of this preamble. Because EPA is
proposing that the fugitive dust control plan would be due on the
effective date of the final rule, this would mean that the first annual
report would be due one year after the plan is developed. The owner or
operator has completed the annual CCR fugitive dust control report when
the plan has been placed in the facility's operating record.
iii. Weekly Inspections of the Legacy CCR Surface Impoundment and
Monthly Monitoring of the CCR Unit's Instrumentation
EPA is proposing that owners and operators of legacy CCR surface
impoundments must initiate the inspection requirements set forth in
Sec. 257.83(a) no later than the effective date of the final rule.
See, proposed regulatory text at Sec. 257.100(f)(3)(ii). Under Sec.
257.83(a), all CCR surface impoundments must be examined by a qualified
person at least once every seven days for any appearance of actual or
potential structural weakness or other conditions that are disrupting
or that have the potential to disrupt the operation or safety of the
CCR unit. The results of the inspection by a qualified person must be
recorded in the facility's operating record. Weekly inspections are
intended to detect, as early as practicable, signs of distress in a CCR
surface impoundment that may result in larger more severe conditions.
Inspections are also designed to identify potential issues with
hydraulic structures that may affect the structural safety of the unit
and impact its hydraulic and hydrologic capacity. Section 257.83(a)
also requires the monitoring of all instrumentation supporting the
operation of the CCR unit to be conducted by a qualified person no less
than once per month. See also 80 FR 21394-21395 (April 17, 2015).
EPA recognizes that field work may be necessary prior to initiating
weekly inspections, such as hiring a contractor to perform vegetative
clearing and establishing inspection routes. If necessary, these
activities may take 2-4 weeks. EPA also acknowledges that
instrumentation may already be installed as part of dam safety or other
programs under state regulations. However, if instrumentation is not
currently installed, 4-6 weeks may be needed for the installation of
piezometers or other equipment. Based on these estimates, EPA's
proposed deadline for the initiation of weekly inspections and monthly
monitoring of no later than the effective date of the final rule is
sufficient for the completion of these activities. The proposed
timeframe is the same as the 2015 CCR Rule deadline.
iv. Initial Annual Inspection for Legacy CCR Surface Impoundments
EPA is proposing that owners and operators of legacy CCR surface
impoundments must conduct the initial annual inspection no later than 3
months after the effective date of the final rule. See, proposed
regulatory text at Sec. 257.100(f)(3)(iv). Existing CCR surface
impoundments exceeding the height and storage volume thresholds in
Sec. 257.73(b) and (c), are required to conduct annual inspections of
the CCR unit throughout its operating life (Sec. 257.83(b)). These
inspections are focused primarily on the structural stability of the
unit and must ensure that the operation and maintenance of the unit is
in accordance with recognized and generally accepted good engineering
standards. Each inspection must be conducted and certified by a P.E.
See also 80 FR 21395, April 17, 2015.
Annual inspections include documentation review, a visual
inspection of the CCR unit, and a visual inspection of any hydraulic
structures underlying the base of the CCR unit or passing through the
CCR unit's dike. Documentation reviewed as part of the annual
inspection include operating records, previous structural stability
assessments, and the results of previous weekly, monthly, and annual
inspections and can overlap with reviews needed to complete the initial
structural stability assessment.
EPA is proposing that owners and operators must prepare the initial
inspection report for legacy CCR surface impoundments within the same
timeframe--no later than 3 months from the effective date of the final
rule--as was required for existing CCR surface impoundments in the 2015
CCR Rule. The Agency believes this timeframe to prepare the initial
annual inspection is similarly appropriate for legacy CCR surface
impoundments as for existing impoundments. As discussed in the preamble
to the 2015 CCR Rule, the 3-month timeframe was based on EPA's
experience with its CCR Assessment Program to evaluate the structural
stability and safety of existing impoundments throughout the nation.
Specifically, EPA found that 3 months would be adequate to complete the
tasks supporting an annual inspection, including retaining the services
of a P.E., reviewing relevant information in the facility's operating
record, conducting the field inspection, and completing the inspection
report. See 80 FR 21395 (April 17, 2015).
v. Initial Inflow Design Flood Control System Plan for Legacy CCR
Surface Impoundments
EPA is proposing that owners and operators of legacy CCR surface
impoundments must prepare the inflow design flood control system plan 9
months after the effective date of the final rule. See, proposed
regulatory text at Sec. 257.100(f)(3)(v). Owners or operators of all
CCR surface impoundments are required to design, construct, operate,
and maintain hydraulic and hydrologic capacity to adequately manage
flow both into and from a CCR surface impoundment during and after the
peak discharge resulting from the inflow design flood, which is based
on the Hazard Potential Classification of the CCR surface impoundment
(Sec. 257.82(a)). The regulation also requires the preparation of an
initial inflow design flood control system plan (Sec. 257.82(c)). See
also 80 FR 21390-21392, April 17, 2015.
The primary activities associated with developing an inflow design
flow control system can be summarized as document review, a site visit,
hydrologic and hydraulic analyses (as needed), and report generation.
Typically, owners and operators hire a P.E.-certified contractor,
which, as described above, may take 1-2 weeks. The contractor would
then perform a site visit (estimated to take one week) and review
available pertinent documentation, such as topographical maps, aerial
images, areal hydrological data, the unit's design drawings, the unit's
construction reports, as-builts for the unit, previous area-capacity
curves, and surface elevation data. EPA anticipates that many of these
documents overlap with documents necessary for the history of
construction report, hazard potential classification assessment,
structural stability assessment, safety factor assessment, and annual
inspection requirements, all of which are due no later than 3 months
after the effective date of the final rule. Assuming all preceding
analyses required by this rule are completed by their deadlines of 3
months after the effective date of the final rule, the review is
estimated to take 4-6weeks. Additional analyses, such as site-specific
flood modeling and hydrologic and hydraulic (H/H) capacity
calculations, may be needed to determine site-specific hydrological
conditions or determine if the current H/H capacity is sufficient.
These additional analyses are estimated to take

[[Page 32003]]

4-6 weeks. Finally, the contractor would generate the P.E.-certified
inflow design flood control system plan documenting the design and
construction of the flood control system, which may take another 4-6
weeks. Based on these estimates, the total time needed to prepare an
initial inflow design control system plan is 14 to 21 weeks. Therefore,
EPA is proposing a deadline of 9 months after the effective date of the
final rule for this requirement. EPA believes this timeline is
sufficient to develop the plan while accounting for the three months
allotted for the prerequisite assessments. This is expedited from the
deadline in the 2015 CCR Rule by three months for reasons described
here in Unit IV.A.2.a.ii of this preamble.
f. Groundwater Monitoring and Corrective Action Criteria for Legacy CCR
Surface Impoundments
The existing groundwater monitoring criteria in Sec. Sec. 257.90
through 257.95 require an owner or operator of a CCR unit to install a
system of monitoring wells and specify procedures for sampling these
wells. Further, it sets forth methods for analyzing the groundwater
data collected to detect hazardous constituents (e.g., toxic metals)
and other monitoring parameters (e.g., pH, total dissolved solids)
released from the units. 40 CFR 257.93. Once a groundwater monitoring
system and groundwater monitoring program have been established for a
CCR unit the owner or operator must conduct groundwater monitoring and,
if the monitoring demonstrates an exceedance of the groundwater
protection standards for identified constituents in Appendix IV of part
257, corrective action is required. These requirements apply throughout
the active life and post-closure care period of the CCR unit.
There was widespread agreement among the commenters on the ANPRM
that groundwater monitoring requirements would be appropriate for
legacy CCR surface impoundments. However, some commenters argued that
federal requirements would be duplicative and unnecessary. They
suggested that EPA should allow facilities to demonstrate (through EPA
review and approval) that the federal groundwater monitoring
requirements are not necessary because existing groundwater monitoring
systems established under state requirements meet the RCRA subtitle D
protectiveness standard. These commenters said that overlapping federal
and state groundwater monitoring and corrective action requirements
would create regulatory uncertainty, potentially interfering with site-
specific plans designed to protect the environment and would ultimately
delay work.
EPA is proposing to require legacy CCR surface impoundments to
comply with the existing groundwater monitoring and corrective action
requirements with one revision, described below, to require sampling
and analysis of constituents listed in Appendix IV at the same time as
those listed in Appendix III. The existing groundwater monitoring and
corrective action requirements are essentially the same requirements
that have been applied to both hazardous waste and municipal solid
waste disposal units for decades, and with the one exception discussed
below, there is nothing about legacy units that makes them distinct
enough to warrant separate requirements. EPA disagrees that it would be
appropriate as part of this rulemaking to allow facilities to
demonstrate (through EPA review and approval) that existing groundwater
monitoring systems established under different state requirements could
substitute for federal requirements. As EPA has previously explained,
in RCRA section 4005(d), Congress established specific standards and
mandated the process for EPA to determine that state requirements
should operate in lieu of the federal. Under those provisions, a State
can apply to obtain authorization from EPA to operate its program
(either in whole or in part) in lieu of the federal requirement by
demonstrating that either of the standards in RCRA section
4005(d)(1)(B) has been met. Relying on that congressionally mandated
process, rather than a separate process created in this rulemaking, is
the appropriate route to address the commenters concerns about
duplication between federal and state requirements.
i. Design and Installation of the Groundwater Monitoring System for
Legacy CCR Surface Impoundments
EPA is proposing that owners and operators of legacy CCR surface
impoundments install the groundwater monitoring system as required by
Sec. 257.91 no later than six months from the effective date of the
final rule. See, proposed regulatory text at Sec. 257.100(f)(4)(i).
Existing monitoring wells can be used as a part of that system provided
that they meet the federal criteria. Commenters on the ANPRM explained
that in some states, the state may require the owner or operator to
receive state approval before they can install a groundwater monitoring
system. Therefore, the commenters said that one year is inadequate to
conduct these activities and two years is a more reasonable timeframe
in which to carry out these activities. EPA disagrees that 12 months
from the publication date (i.e., 6 months from the effective date)
would provide an insufficient amount of time to install groundwater
monitoring wells. In the 2015 CCR Rule, EPA allotted 36 months total
(from publication) for facilities to both install the wells and
complete their baseline sampling. Based on the amount of time most
facilities needed to complete or to collect baseline sampling, EPA
calculates that facilities were able to install wells within a single
year.
To complete the installation of the groundwater monitoring system,
the first activity to meet Sec. 257.91(f) may include hiring a
contractor that is a qualified P.E. (estimate 1-2 weeks). The next
activity may be to develop a workplan that determines the number,
location, and depths of monitoring wells, which assumed to be developed
based on available historic site characterization information including
hydrogeologic setting, engineering design of the CCR unit or other
information that may already be compiled in the history of construction
requirement (Sec. 257.73(c)(1)) (estimate 7-9 weeks). Note that any
additional site characterization is assumed to occur concurrently with
the monitoring well installation. Subsequently, site reconnaissance may
be performed along with vegetative clearing and utility locating, and
the workplan may be modified to adjust for field conditions as needed
(estimate 2 weeks when considering the installation of 10 monitoring
wells). The next activity is to drill to depth, install and develop the
10 monitoring wells. The time to drill to depth can vary widely based
on the drilling technique, subsurface lithology, site-specific
conditions, weather, and other factors. It is estimated that a 100 foot
well can be drilled to depth in 5 days at the rate of 20 feet/day. For
10 monitoring wells, the time to drill to depth is assumed to take 10
weeks. The monitoring wells must then be properly installed and
constructed in accordance with Sec. 257.91(e) and other requirements.
Monitoring well development is assumed to take 3 days per well or 30
days for all 10 wells. The last activity is to develop documentation
that records the design, installation, and development of the
monitoring wells, subject to P.E. certification and submit monitoring
well construction records to the appropriate state and federal agencies
(estimate 4-6 weeks). Based on these assumptions, the total time

[[Page 32004]]

estimated for installation of a groundwater monitoring system is
approximately 27-32 weeks, or 7-8.5 months. This deadline includes an
additional 3.5-month buffer to adjust for delays in the field,
installation of new additional wells, additional site characterization
of newly discovered pertinent subsurface features (e.g., faults, karst
features) or other modifications to the workplan based on site-specific
information gained during the monitoring well installation. Thus, EPA
is proposing to require the installation of the groundwater monitoring
system no later than 6 months after the effective date of the final
rule.
ii. Development of the Groundwater Sampling and Analysis Program for
Legacy CCR Surface Impoundments
EPA is proposing to require owners and operators of legacy CCR
surface impoundments to comply with the existing groundwater sampling
and analysis program requirements for CCR surface impoundments,
including the selection of the statistical procedures that will be used
for evaluating groundwater monitoring data. 40 CFR 257.93. See,
proposed regulatory text at Sec. 257.100(f)(4)(ii).
Recommendations and information on how to comply with many of the
requirements for the groundwater sampling and analysis program (e.g.,
analytical procedures, QA/QC controls, sampling protocol) can be found
in the following EPA guidance documents (e.g., RCRA Groundwater
Monitoring: Draft Technical Guidance, 1992, EPA/530/R-93/001; Low-Flow
(Minimal Drawdown) Ground-Water Sampling Procedures, 1996, EPA/540/S-
95/504). To develop the groundwater sampling and analysis program, the
first steps would be to hire a contractor (1 to 2 weeks), review the
groundwater monitoring system installation and other pertinent records
(2 to 4 weeks), and develop the groundwater sampling and analysis
program (4 to 6 weeks). Sometimes in complex hydrogeological settings
(e.g., groundwater flow reversals surrounding CCR units adjacent to a
large river), additional information from synoptic groundwater
elevations may be necessary to refine the sampling program (e.g.,
establish upgradient/downgradient wells) (estimate 2 weeks). Based on
these assumptions, the total time estimated to develop a groundwater
sampling and analysis program is 9 to 14 weeks. The groundwater
sampling and analysis program must include the list of monitoring wells
to be sampled (e.g., sampling network). However, the list of monitoring
wells to be sampled can only be determined after installation of the
groundwater monitoring system which is estimated to take 7 to 8.5
months. If it is assumed that the sampling and analysis program is
developed (~2 to 3.5 months) only after the installation of the
monitoring network (7.5 to 8 months), the total time needed to meet
this requirement is estimated at approximately 9.5 to 11.5 months.
Therefore, building in some buffer time to account for any possible
delays due to complex hydrogeological settings, EPA is proposing that
the sampling and analysis program can be developed no later than 6
months after the effective date of the final rule.
iii. Detection Monitoring Program and Assessment Monitoring Program
Combined
To expedite groundwater monitoring and the initiation of corrective
measures, EPA is proposing to require sampling and analysis of
constituents listed in Appendix IV at the same time as those listed in
Appendix III. The combined sampling and analysis of all Appendices III
and IV constituents will expedite the initiation of corrective
measures, where needed, by at least 6 months.
The existing CCR regulations establish a phased groundwater
monitoring program, consisting of a separate detection monitoring
program, assessment monitoring program, and corrective action program.
Groundwater monitoring begins with detection monitoring by conducting
statistical comparisons between (1) the background level of a
constituent measured in one or more upgradient wells and (2) the level
of that same constituent in a downgradient well. The constituents
monitored in detection monitoring are listed in Appendix III and are
generally constituents that are designed to provide early evidence of a
potential release (e.g., are highly mobile). If the concentration of
the constituent in the downgradient well is higher than the background
concentration by a statistically significant amount, (i.e., a
statistically significant increase (SSI) over background has been
detected), this provides evidence of a potential release from the unit.
If an SSI is detected, the owner or operator must proceed to the
next step, assessment monitoring. Assessment monitoring requires
sampling and analysis for the full list of constituents included in
Appendix IV. In assessment monitoring, concentrations of each Appendix
IV constituent at downgradient wells are compared to a groundwater
protection standard established for each constituent (either a
background level or a regulatory limit). Whenever assessment monitoring
results indicate a statistically significant level (SSL) exceeding the
groundwater protection standard has been detected at a downgradient
well for any of the Appendix IV constituents, the facility must start
the process for cleaning up the contamination by characterizing the
nature and extent of the release and of site conditions that may affect
the cleanup, and by initiating an assessment of corrective measures.
EPA is proposing to require that facilities simultaneously initiate
sampling and analysis of all Appendix III and IV constituents at legacy
CCR surface impoundments to expedite the cleanup of contamination from
these abandoned unlined impoundments. EPA is proposing no other
revisions to the existing groundwater monitoring requirements in
Sec. Sec. 257.90 through 257.95.
Although in 2015 EPA applied the same groundwater monitoring
requirements to both existing and new CCR units, the phased approach to
groundwater monitoring is best suited to situations where there is
little likelihood of pre-existing contamination, such as for new units.
A phased approach provides for a graduated response over time to the
problem of groundwater contamination as the evidence of such
contamination increases. This allows for proper consideration of the
transport characteristics of CCR constituents in groundwater, while
protecting human health and the environment. In contrast, at sites
where the unit has potentially been leaking for a long period of time,
these advantages are outweighed by the need to protect human health and
environment by quickly detecting the constituents of concern in
Appendix IV to expedite any necessary corrective action. See, USWAG 901
F.3d at 427-30. Moreover, there is good reason to believe that many
legacy CCR surface impoundments are contaminating groundwater, given
the large number of presently regulated CCR surface impoundments that
have been found to be leaking.
iv. Detection Monitoring Program and Assessment Monitoring Program--
Deadline for Collection and Analyses of Eight Independent Samples for
Legacy CCR Surface Impoundments
EPA is proposing that no later than 24 months after the effective
date of the final rule, owners or operators of legacy CCR surface
impoundments initiate the detection monitoring program by

[[Page 32005]]

completing sampling and analysis of a minimum of eight independent
samples for each background and downgradient well, as required by Sec.
257.94(b). See proposed regulatory text at Sec. 257.100(f)(4)(iii).
Within 90 days after that, they must identify any SSIs over background
levels for the constituents listed in Appendix III, as required by
Sec. 257.94. To expedite the time to initiate any required corrective
action, EPA is also proposing that by this same deadline they initiate
the assessment monitoring program by establishing groundwater
protection standards and beginning the evaluation of the groundwater
monitoring data for an SSL over groundwater protection standards for
the constituents listed in Appendix IV as required by Sec. 257.95.
Then, if an SSL over a groundwater protection standard (GWPS) for any
of the constituents listed in Appendix IV is found, the owner or
operator of the legacy CCR surface impoundment must perform any
required corrective action in accordance with Sec. Sec. 257.96 through
257.98.
Several commenters on the ANPRM stated that it would be appropriate
to have a fully operational groundwater monitoring systems in place and
begin detection monitoring two years from the rule's effective date and
then to follow the same groundwater monitoring requirements as units
subject to the 2015 CCR Rule. These commenters said that as important
as it is to begin detecting and addressing releases to groundwater, it
is equally important that these complex systems be designed and
installed correctly. According to the commenters, the design and
installation of a groundwater monitoring system generally entails a
number of activities, many of which must occur sequentially, including
determining the uppermost aquifer, deciding whether to install a single
or multiunit monitoring system, collecting and evaluating
hydrogeological information that can be used to model the site,
characterizing the site geology, characterizing the groundwater flow
beneath the site, determining the flow direction and hydraulic
gradient, establishing horizontal and vertical flow direction,
determining hydraulic conductivity, determining groundwater flow rate,
determining the monitoring wells' placement, selecting the drilling
method, designing the monitoring wells, developing sampling and
analysis procedures, choosing a statistical method for evaluating the
data, and beginning detection monitoring.
v. Initial Groundwater Monitoring and Corrective Action Report for
Legacy CCR Surface Impoundments
EPA is proposing to apply the existing requirements in Sec.
257.90(e) to legacy CCR surface impoundments and that owners and
operators of legacy CCR surface impoundments comply no later than
January 31 of the year following the calendar year a groundwater
monitoring system has been established (and annually thereafter). See
proposed regulatory text at Sec. 257.100(f)(4)(iv). This requires the
preparation of an annual groundwater monitoring and corrective action
report. The report must contain specific information identified in the
regulations, including but not limited to maps; aerial images or
diagrams showing the CCR unit and all upgradient (background) and
downgradient wells; identification of any monitoring wells installed or
decommissioned in the previous year; monitoring data collected under
Sec. Sec. 257.90 through 257.98, and a narrative discussion of any
transition between monitoring programs (i.e., detection and assessment
monitoring). Since EPA is proposing to expedite the baseline monitoring
initiation of detection monitoring, and initiation of assessment
monitoring, the requirement to prepare and post the first annual
groundwater monitoring and corrective action report should also be
expedited. This will allow the public to review the groundwater
monitoring results.
g. Closure and Post-Closure Care Criteria for Legacy CCR Surface
Impoundments
The existing closure and post-closure care criteria in Sec. Sec.
257.101 through 257.104 establish specific performance standards
relating to the closure and the subsequent monitoring and maintenance
of CCR units. These criteria are essential to ensuring the long-term
safety of closing CCR units. A brief overview of the existing
requirements is presented in Unit IV.A.2.f.i of this preamble.
The regulations currently provide two options for closing a CCR
unit: closure by removal and closure with waste in place. See Sec.
257.102(a). Each option establishes specific performance standards that
must be met in their entirety. See Sec. 257.102(c) and (d). If the
performance standards for each option can both be met, the regulations
allow a facility to select either of the options. However, a facility
must meet all of the performance standards for the closure option it
has selected, and if it cannot meet all of the performance standards
for one option, then it must select the other option and meet all of
the performance standards for that option. See Sec. 257.102(a).
The existing CCR regulations also include timeframes to initiate
and complete closure activities, as well as criteria under which owners
or operators may obtain time extensions due to circumstances beyond the
facility's control. See Sec. Sec. 257.101 through 257.102. Finally,
owners and operators are required to prepare closure and post-closure
care plans describing these activities. See Sec. Sec. 257.102(b),
257.104(d). EPA is proposing to make the existing regulations
applicable to legacy CCR surface impoundments as discussed specifically
below.
First, based on the data gathered since 2015 from the currently
regulated CCR unit universe, the Agency considers it highly unlikely
that any legacy CCR surface impoundment has a composite liner that
meets the requirements of Sec. 257.71. EPA analyzed the list of
inactive CCR facilities provided in the ANPRM comments and knows that
almost all these facilities were opened prior to 1990 (one facility
opened in 1996) before composite liner systems were typically
installed. Unless legacy CCR surface impoundments are very different
than impoundments at active facilities, EPA expects units of this age
to be unlined as defined by Sec. 257.71. Consistent with the USWAG
decision and the existing regulations in Sec. 257.101(a) mandating
that all unlined (including clay-lined) impoundments must close, EPA is
proposing to explicitly require that all legacy CCR surface
impoundments initiate closure within 12 months of the effective date of
final rule, rather than simply relying on the existing provision in
Sec. 257.101(a). See, proposed regulatory text at Sec. 257.101(e).
Legacy CCR surface impoundments pose unacceptable risks because they
continue to impound liquid, even if closure has been initiated or a
cover system has been installed.
Second, EPA is proposing to explicitly state that the alternative
closure demonstration provisions in Sec. 257.103(f) would not be
applicable to legacy CCR surface impoundments. As a legacy CCR surface
impoundment, by definition, is an inactive impoundment at an inactive
facility, EPA does not believe that any facility will need to continue
to use the unit. Because a continued need to use the disposal unit is a
critical component of the alternative closure demonstrations, it
appears that no legacy CCR surface impoundment could qualify under the
existing provisions. Accordingly, EPA does not believe these provisions
are relevant to legacy CCR surface impoundments.

[[Page 32006]]

i. ANPRM Comments Regarding Closure
Commenters on the ANPRM generally agreed that closure requirements
are appropriate for legacy CCR surface impoundments. However, they
disagreed on the precise requirements that would be appropriate. Some
commenters said a legacy CCR surface impoundment that has been closed
in place must be required to re-close if not closed in a manner that
meets or exceeds the 2015 CCR Rule's provisions for closure in place.
They also said that EPA must not exempt legacy CCR surface impoundments
from closure requirements unless the impoundment was closed in full
compliance with either the closure mandate for removal set out at Sec.
257.102(c), or the closure performance standards, drainage and
stabilization directives, and cover system requirements set out at
Sec. 257.102(d).
Other commenters on the ANPRM agreed that closure and post-closure
requirements would be appropriate for legacy CCR surface impoundments
but stated that the requirements should account for distinctive
elements of some legacy CCR surface impoundments. According to these
commenters, over decades, some legacy CCR surface impoundments have
become ecosystems that support protected species or feature wetlands.
These commenters raised concern that closure activities could
compromise these ecosystems or species whereas leaving the environment
undisturbed is preferable. These commenters stated that if EPA requires
closure of these units, owners should not be required to obtain
necessary approvals or mitigate impacts to aquatic resources or
protected species under other laws. One commenter on the ANPRM said EPA
should not require legacy CCR surface impoundments completing closure
by removal to meet the groundwater performance standards.
Some commenters said EPA should rely on RCRA section 1006(b) to
include a provision in any final rule addressing legacy CCR surface
impoundments that any closure plan for a legacy CCR surface impoundment
approved by a state or federal agency prior to the effective date of
any new regulations would be considered compliant with the new
regulations. According to these commenters, many units are or will be
in the process of closing impoundments pursuant to consent orders,
agreements, and/or state regulatory programs, and forcing units that
are in active closure or that have completed closure to comply with a
new set of requirements risks undoing the careful planning that has
already occurred with state or federal agencies. These commenters
further stated that ``such redundant and retroactive regulation also
risks delaying the closure process and requiring closure work to be
redone.'' According to these commenters, confirming that units
implementing closure plans approved by a state or federal agency would
be deemed compliant with the final legacy CCR surface impoundment
regulations (or that the underlying units are otherwise exempt from the
final regulations) would avoid duplicative, retroactive regulation of
such units, and would allow the regulated community and impacted states
to rely on the closure plans already in place, and would prevent any
delay in completion of closure activities that could be attributed to
uncertainty of the application of requirements for the final rule.
Although several commenters alleged that the closure of legacy CCR
surface impoundments would itself present greater risks than leaving
the disposal unit in its existing state, no commenter presented any
data or analysis to support their claims. EPA also lacks a factual
basis to exempt legacy CCR surface impoundments in the process of
completing closure by removal from the requirement to meet the
groundwater performance standards. In the absence of any record to
support a conclusion that these suggestions meet the statutory standard
in RCRA section 4004(a), EPA cannot adopt them. EPA invites comments
from those with concrete data or analysis, if any, about any specific
legacy CCR surface impoundments as it relates to these questions.
EPA also disagrees that it would be appropriate to establish an
exemption for facilities that are currently in the process of closing
under state requirements. The commenters provided no factual record of
the various state information regarding particular state requirements,
but merely generically reference the existence of state requirements.
This is insufficient information for the Agency to evaluate how the
state requirements compared to the federal requirements. Such a factual
record would be necessary to support any kind of exemption or other
action pursuant to RCRA section 1006(b). More to the point, as
discussed previously, the appropriate mechanism to address concerns
about potentially duplicative state and federal requirements is through
Congressionally-mandated process in RCRA section 4005(d), under which a
state seeks approval to operate its permit program in lieu of the
federal program, rather than this rulemaking.
ii. Preparation of a Written Closure Plan for Legacy CCR Surface
Impoundments
EPA is proposing that owners and operators of legacy CCR surface
impoundments comply with the existing requirements of Sec. 257.102(b)
requiring the preparation of a written closure plan. See proposed
regulatory text at Sec. 257.100(f)(5)(i). The closure plan describes
the steps necessary to close a CCR unit at any point during the active
life of the unit based on recognized and generally accepted good
engineering practices. 40 CFR 257.102(b)(1). The plan must set out
whether the closure of the CCR unit will be accomplished by leaving CCR
in place or through closure by removal and include a written narrative
describing how the unit will be closed in accordance with the section,
or in other words, how the closure will meet all the performance
standards in the regulations. 40 CFR 257.102(b)(1)(i). If the CCR is
left in place, the closure plan must include a description of the final
cover system and how the final cover system will achieve the regulatory
performance standards. If the base of the impoundment intersects with
groundwater, the closure plan would need to discuss the engineering
measures taken to ensure that the groundwater had been removed from the
unit prior to the start of installing the final cover system, as
required by Sec. 257.102(d)(2)(i). The closure plan would also need to
describe how the facility plans to meet the requirements in Sec.
257.102(d)(1) to ``control, minimize or eliminate, to the maximum
extent feasible, post-closure infiltration of liquids into the waste
and releases of CCR, leachate, or contaminated run-off to

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