Rule2024-11692
Alabama: Denial of State Coal Combustion Residuals Permit Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 7, 2024
Effective
July 8, 2024
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Resource Conservation and Recovery Act (RCRA), the Environmental Protection Agency (EPA or the Agency) is denying the Alabama Department of Environmental Management's (ADEM) Application for approval of the Alabama coal combustion residuals (CCR) permit program (Application). After reviewing the State CCR permit program Application submitted by ADEM on December 29, 2021, additional relevant materials, including permits issued by ADEM, and comments submitted on the Proposed Denial, EPA has determined that Alabama's CCR permit program does not meet the standard for approval under RCRA.
Full Text
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<title>Federal Register, Volume 89 Issue 111 (Friday, June 7, 2024)</title>
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[Federal Register Volume 89, Number 111 (Friday, June 7, 2024)]
[Rules and Regulations]
[Pages 48774-48820]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-11692]
[[Page 48773]]
Vol. 89
Friday,
No. 111
June 7, 2024
Part III
Environmental Protection Agency
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40 CFR Part 257
Alabama: Denial of State Coal Combustion Residuals Permit Program;
Final Rule
Federal Register / Vol. 89 , No. 111 / Friday, June 7, 2024 / Rules
and Regulations
[[Page 48774]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2022-0903; FRL 11262-02-OLEM]
Alabama: Denial of State Coal Combustion Residuals Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Availability of final decision.
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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA),
the Environmental Protection Agency (EPA or the Agency) is denying the
Alabama Department of Environmental Management's (ADEM) Application for
approval of the Alabama coal combustion residuals (CCR) permit program
(Application). After reviewing the State CCR permit program Application
submitted by ADEM on December 29, 2021, additional relevant materials,
including permits issued by ADEM, and comments submitted on the
Proposed Denial, EPA has determined that Alabama's CCR permit program
does not meet the standard for approval under RCRA.
DATES: This action is effective on July 8, 2024.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OLEM-2022-0903. All documents in the docket are listed on
the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the internet and will be publicly available only in hard copy
form.
FOR FURTHER INFORMATION CONTACT: Michelle Lloyd, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, U.S. 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#731f1f1c0a175d1e1a101b161f1f16331603125d141c05"><span class="__cf_email__" data-cfemail="c8a4a4a7b1ace6a5a1aba0ada4a4ad88adb8a9e6afa7be">[email protected]</span></a>. For more information
on this notification please visit <a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
A. Summary of Final Action
B. Background
C. Statutory Authority
D. Summary of Proposed Denial of Alabama's CCR Permit Program
Application
II. Final Action on Alabama CCR Permit Program Application
A. Legal Authority To Evaluate State CCR Permit Program
Applications
B. EPA Review of Alabama Regulations for CCR Units
C. EPA Review of Alabama's Permits Issued Under the State CCR
Regulations
III. Summary of Comments and Responses
A. Legal and Policy Comments on EPA's Review of Alabama's CCR
Permit Program
B. Comments on EPA's Technical Evaluation of Alabama CCR Permits
C. Miscellaneous Comments
D. Out of Scope Comments
IV. Final Action
List of Acronyms
ACM Assessment of Corrective Measures
ADEM Alabama Department of Environmental Management
CCP coal combustion product
CCR coal combustion residuals
CFR Code of Federal Regulations
EPA Environmental Protection Agency
EPRI Electric Power Research Institute
FR Federal Register
GWMP Groundwater Monitoring Plan
GWPS groundwater protection standard
MCL maximum contaminant level
MNA Monitored Natural Attenuation
MSL mean sea level
NOPV Notice of Potential Violation
NPDES National Pollutant Discharge Elimination System
RCRA Resource Conservation and Recovery Act
RTC Response to Comments
TSD Technical Support Document
TVA Tennessee Valley Authority
USGS U.S. Geological Survey
WBWT waste below the water table
WIIN Water Infrastructure Improvements for the Nation
I. General Information
A. Summary of Final Action
EPA is taking final action to deny approval of Alabama's CCR permit
program because the Agency finds that the State's program does not
require each CCR unit in the State to achieve compliance with either
the minimum requirements in the Federal CCR regulations or with
alternative requirements that EPA has determined to be at least as
protective as the requirements of the Federal CCR regulations in 40 CFR
part 257, subpart D, for the reasons set forth in the Proposed Denial
and this final action. See, 42 U.S.C. 6945(d)(1)(B).
B. Background
CCR are generated from the combustion of coal, including solid
fuels classified as anthracite, bituminous coal, subbituminous coal,
and lignite, for the purpose of generating steam to power a generator
to produce electricity or electricity and other thermal energy by
electric utilities and independent power producers. CCR include fly
ash, bottom ash, boiler slag, and flue gas desulfurization materials.
CCR contain many contaminants that may pose a hazard to human health
and the environment.
On April 17, 2015, EPA published a final rule, creating 40 CFR part
257, subpart D,\1\ that established a comprehensive set of minimum
Federal requirements for the disposal of CCR in landfills and surface
impoundments (80 FR 21302, April 17, 2015) (``Federal CCR
regulations''). Section 2301 of the 2016 Water Infrastructure
Improvements for the Nation (WIIN) Act amended section 4005 of RCRA,
creating a new subsection (d) that establishes a Federal CCR permit
program that is similar to the permit programs under RCRA subtitle C
and other environmental statutes. See, 42 U.S.C. 6945(d).
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\1\ Unless otherwise specified, all references to parts 257 and
239 in this notification are to title 40 of the Code of Federal
Regulations (CFR).
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The Federal CCR regulations are self-implementing, which means that
CCR landfills and surface impoundments must comply with the terms of
the rule even prior to establishment of a Federal CCR permit program,
and noncompliance with any requirement of the Federal CCR regulations
can be directly enforced against the facility. Once a final CCR permit
is issued, the terms of the permit apply in lieu of the terms of the
Federal CCR regulations, and RCRA section 4005(d)(3) provides a permit
shield against direct enforcement of the applicable Federal CCR
regulations (meaning the permit's terms become the enforceable
requirements for the permittee).
RCRA section 4005(d) also allows States to seek approval for a
State CCR permit program that will operate in lieu of a Federal CCR
permit program in the State. The statute provides that after a State
submits an application to the Administrator for approval, EPA shall
approve the State permit program within 180 days after the
Administrator determines that the State program requires each CCR unit
located in the State to achieve compliance with either the Federal
requirements or other State requirements that EPA determines, after
consultation with the State, are at least as protective as those
included in the Federal CCR regulations. See, 42 U.S.C. 6945(d)(1)(B).
After EPA issued the Federal CCR regulations in 2015, Alabama
established ADEM Administrative Code Chapter 335-13-15, for the
portions of
[[Page 48775]]
those regulations for which the State is seeking approval, and language
in the State's regulations is almost identical to EPA regulations.
Alabama's regulations became effective in 2018, and soon after the
State began implementing its State CCR permit program and issuing
permits. At the time of submission of ADEM's December 29, 2021,
Application to EPA, ADEM had issued permits for the following CCR
facilities: (1) the James H. Miller Electric Generating Plant (Permit
#37-51; issued December 18, 2020); (2) Greene County Electric
Generating Plant (Permit #32-03: issued December 18, 2020); (3) Gadsden
Steam Plant (Permit #28-09, issued December 18, 2020); (4) James M.
Barry Electric Generating Plant (Permit #49-35, issued July 1, 2021);
(5) E.C. Gaston Electric Generating Plant (Permit #59-16, issued May
25, 2021); and (6) Charles R. Lowman Power Plant (Permit #65-06, issued
August 30, 2021). After its Application was submitted to EPA, ADEM
proceeded to issue permits for the William C. Gorgas Electric
Generating Plant (Permit #64-12 issued February 28, 2022) and for the
Tennessee Valley Authority (TVA) Plant Colbert (Permit #17-11, issued
October 25, 2022).
Starting in January 2018, EPA began working with ADEM as the State
developed its Application for the State's CCR permit program, and, over
the course of several years, EPA had many interactions with ADEM about
the development of a state CCR permit program. See Unit III.E. of the
Proposed Denial and Technical Support Document (TSD) Volume II
(summarizing and listing, respectively, the communications between EPA
and ADEM concerning the State's CCR permit program and implementation
of the CCR regulations). As with other States, EPA discussed with ADEM
the process for EPA to review and approve the State's CCR permit
program, including ADEM's plans for formally adopting CCR regulations,
ADEM's anticipated timeline for submitting a CCR permit program
Application to EPA, and ADEM's regulations for issuing permits. EPA
also reviewed ADEM's submissions on multiple occasions and sent
comments to ADEM on those documents. On December 29, 2021, ADEM
submitted its State CCR permit program Application to EPA Region 4
requesting approval of the State's partial CCR permit program.\2\ ADEM
established State CCR regulations that largely mirror the provisions in
the Federal CCR regulations and contain additional State-specific
provisions and clarifications.
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\2\ Alabama Department of Environmental Management. Application
For CCR Permit Program Approval. December 2021. The State is seeking
approval of a partial CCR permit program because certain provisions
of the Federal Program were not included in the State regulations.
See Part IV.B. of the Proposed Denial for details on the State's
regulations.
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At the same time EPA was in discussions with Alabama about its CCR
permit program, the Agency was also reviewing facility requests for
extensions of the date to cease sending all waste to unlined surface
impoundments under Part A of the Federal CCR regulations.\3\ To be
eligible for an extension under Part A, a facility was required to
demonstrate that the CCR unit was in compliance with the Federal CCR
regulations in 40 CFR part 257, subpart D.\4\ The Agency's review of
the Part A compliance demonstrations showed EPA that there were
systemic problems with facility compliance with the groundwater
monitoring, corrective action, and closure requirements.\5\
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\3\ Hazardous and Solid Waste Management System: Disposal of
Coal Combustion Residuals from Electric Utilities; A Holistic
Approach to Closure Part A: Deadline to Initiate Closure 85 FR
53516, August 28, 2020.
\4\ Section 257.103(f) required a certification of current
compliance and that the owner or operator will remain in compliance
with the applicable requirements of subpart D of part 257 at all
times and a narrative compliance strategy. See the Part A Final Rule
at 85 FR 53542-53544.
\5\ On January 11, 2022, EPA issued proposed determinations on
demonstrations submitted by facilities for extensions to the cease
receipt of waste deadline per 40 CFR 257.103(f)(1) and (2), which
the Agency refers to as ``Part A determinations'' or ``Part A''. The
CCR Part A Final Rule (85 FR 53516, August 28, 2020) grants
facilities the option to submit a demonstration to EPA for an
extension to the deadline for unlined CCR surface impoundments to
stop receiving waste. Facilities had until November 30, 2020, to
submit demonstrations to EPA for approval.
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On January 11, 2022, EPA emailed ADEM copies of the first set of
proposed Part A decisions, including the proposed decision for the
General James M. Gavin Power Plant in Cheshire, Ohio. Proposed Denial
TSD Volume II (listing communications between EPA and ADEM). Three of
the proposed decisions addressed facilities that had one or more
unlined surface impoundments with CCR continually saturated by
groundwater, and that intended to close the units without addressing
that situation. In each case, EPA explained that the facility failed to
demonstrate that the closure of these units complied with the plain
language of the performance standards in Sec. 257.102(d)(2)--which
include addressing infiltration into and releases from the impoundment
and eliminating free liquids--given that groundwater appeared to be
continually saturating CCR in the unlined impoundments. The closure
regulations limit contact between the waste (CCR) in the unit and
groundwater after closure because it is critical to minimizing
contaminants released into the environment and will help ensure
communities near the sites have access to safe water for drinking and
recreation.
After forwarding the proposed decisions, EPA met with ADEM to
discuss how the Federal regulations apply to situations in which an
unlined surface impoundment has been constructed in or below the water
table.\6\ EPA also held a meeting about this topic where all the Region
4 States were invited, including ADEM.
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\6\ See March 15, 2022, Docket Number: EPA-HQ-OLEM-2022-0903-
0039. The email included a list of units in Alabama that EPA
believed were closing with waste in place with waste below the water
table.
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After issuing the proposed Part A decisions, EPA looked at several
of Alabama's State CCR permits for unlined surface impoundments that
had been issued by that time. Of particular concern to the Agency were
facilities that were closing (or had already closed) unlined CCR
surface impoundments while leaving waste (i.e., CCR) below the water
table (WBWT), and ADEM had issued permits for such surface impoundments
at Greene County Electric Generating Plant, Gadsden Steam Plant, and
William C. Gorgas Electric Generating Plant. After a brief review of
these permits, EPA identified to ADEM aspects of Alabama's permit
program that appeared to differ from the Federal program, and the
Agency explained that the differences appear to make the State's
program less protective than the Federal program. The Agency
specifically identified problems with the State's permit requirements
covering closure of unlined surface impoundments, groundwater
monitoring networks, and corrective action. With respect to some of
EPA's concerns about compliance with the closure standards in Sec.
257.102(d)(2) of the Federal CCR regulations, ADEM indicated it
intended to address any ongoing issues with the facility closure plans
through corrective action requirements instead of requiring compliance
with the applicable closure requirements with respect to free liquids
and infiltration from the bottom and sides.\7\ See Unit IV.C of the
Proposed
[[Page 48776]]
Denial and Proposed Denial TSD Volume I for a detailed discussion of
the deficiencies in ADEM's CCR permits.\8\
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\7\ See July 6, 2022, email from S. Scott Story, ADEM, to
Meredith Anderson, EPA Region 4, entitled ``Meeting Follow Up''
which included two attachments: Plant Gadsden Waste Below the Water
Table (WBWT) and Closure Questions and Plant Green County Waste
Below the Water Table (WBWT) and Closure Questions. Docket Number:
EPA-HQ-OLEM-2022-0903-0065.
\8\ Technical Support Document Volume III. See Volume III:
Technical Support Document for the Proposed Notice to Deny Alabama's
Coal Combustion Residuals Permit Program, EPA Analysis of Alabama
CCR Permitting and Technical Regulations. U.S. Environmental
Protection Agency, Office of Land and Emergency Management (5304T),
1200 Pennsylvania Avenue NW, Washington, DC 20460. August 2023.
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In addition to the concerns raised with respect to Plants Greene
County, Gorgas, and Gadsden, EPA also raised concerns with respect to
the proposed CCR permit for TVA Plant Colbert. On June 29, 2022, ADEM
posted public notice of the draft permit for Plant Colbert. The
proposed permit for Plant Colbert raised many of the same issues
already being discussed with respect to the previously issued permits
for CCR surface impoundments at Plants Greene County, Gorgas, and
Gadsden. On September 15, 2022, EPA submitted a letter to ADEM
outlining specific concerns with respect to the proposed permit.\9\ On
October 25, 2022, ADEM issued a CCR permit to Plant Colbert without
revising the proposed permit to address EPA's concerns. In a letter
dated October 27, 2022, ADEM responded to EPA's letter regarding Plant
Colbert, again presenting the flawed interpretation of the requirements
applicable to closing unlined CCR surface impoundments, even though EPA
had rejected the State's interpretations of the Federal CCR regulations
in previous discussions with ADEM. To date, the State has not taken
action to revise the permits issued to Plants Greene County, Gorgas,
Gadsden, or Colbert to address the deficiencies EPA noted to ADEM.
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\9\ Letter from Carolyn Hoskinson, Director, Office of Resource
Conservation and Recovery, to Mr. Russell A. Kelly, Chief, Permits
and Services Division, and Mr. Steve Cobb, Chief, Land Division. EPA
Comments on Proposed Permit, Tennessee Valley Authority Colbert
Fossil Plant, Alabama Department of Environmental Management, Permit
No. 17-11. September 15, 2022.
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On November 18, 2022, EPA issued a final decision to deny the Gavin
Plant's request to continue disposing CCR into an unlined surface
impoundment after the deadline to stop such disposal has passed. EPA
finalized this denial because Gavin had failed to demonstrate
compliance with the Federal CCR regulations. Among other areas of non-
compliance, EPA specifically noted that Gavin had closed an unlined CCR
impoundment with at least a portion of the CCR in continued contact
with groundwater, and without taking any measures to address the
groundwater continuing to migrate into and out of the impoundment. EPA
further explained that Gavin's closure of its unlined impoundments
under these conditions failed to comply with the plain language of the
closure standards in 40 CFR 257.102(d)(1) and (2).
Less than a month later, on December 9, 2022, ADEM gave EPA notice
of its intent to sue EPA under section 7002(a)(1)(A) and (1)(B) of
RCRA, alleging EPA failed to perform a nondiscretionary duty to approve
the State's CCR permit program.\10\ Among other things, ADEM asserted
that EPA failed to comply with the statutory requirement to approve the
State's CCR permit program within 180 days of the State's submittal of
the permit program Application on December 29, 2021. On February 1,
2023, EPA responded to ADEM's Notice of Intent to Sue. EPA informed the
State that the 180-day timeframe does not start to run until EPA
determines that a State's Application is administratively complete and
that, in this case, the State's Application was not complete because
EPA's concerns with ADEM's interpretation of the minimum requirements
of the Federal CCR regulations had yet to be resolved, and that EPA was
providing an opportunity for ADEM to submit further Application
information.\11\ EPA further stated that the Agency could evaluate the
State's program on the current record if ADEM decided not to supplement
its Application with an explanation of how the State's interpretation
of its regulations is at least as protective as the Federal CCR
regulations, and EPA expressed concern that the current record would
not support a proposal to approve the State's partial CCR permit
program. Id. On February 17, 2023, ADEM responded to EPA that it did
not intend to supplement the record and that EPA should evaluate its
program accordingly.\12\
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\10\ Letter from Alabama Attorney General Steve Marshall to EPA
Administrator Michael Regan, Notice of Endangerment and Intent to
Sue under Section 7002(a)(1)(A) and (1)(B) of the Resource
Conservation and Recovery Act. December 9, 2022.
\11\ Letter from Barry Breen, Acting Assistant Administrator,
OLEM, to Lance LeFleur, Director, ADEM, February 1, 2023. Email sent
February 2, 2023.
\12\ Letter from Lance LeFleur, Director, ADEM, to Barry Breen,
Acting Assistant Administrator, OLEM, February 17, 2023.
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EPA thereafter reviewed the Application based on the information
submitted to that date and on other publicly available and relevant
information. Specifically, because ADEM started issuing permits for
unlined surface impoundments prior to EPA approval of the State's CCR
permit program, the Agency determined that the statute required some
consideration of Alabama CCR permits as part of the permit program
review to ensure that the State's program requires each CCR unit in the
State to achieve compliance with either of the standards in RCRA
section 4005(d)(1)(B). EPA reviewed several of Alabama's State CCR
permits for unlined surface impoundments and provided comments on
issues EPA identified with those permits as part of the Agency's
evaluation of the State's Application.
On August 14, 2023, EPA proposed to deny approval of Alabama's CCR
permit program (Proposed Denial).
C. Statutory Authority
EPA is issuing this final action pursuant to sections 4005(d) and
7004(b)(1) of RCRA. 42 U.S.C. 6945(d) and 6974(b)(1).
Under RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), States
seeking approval of a permit program must submit to the Administrator,
``in such form as the Administrator may establish, evidence of a permit
program or other system of prior approval and conditions under state
law for regulation by the State of coal combustion residuals units that
are located in the State.'' EPA shall approve a State permit program if
the Administrator determines that the State program requires each CCR
unit located in the State to achieve compliance with either: (1) The
Federal CCR requirements at 40 CFR part 257, subpart D; or (2) Other
State criteria that the Administrator, after consultation with the
State, determines to be ``at least as protective as'' the Federal
requirements. 42 U.S.C. 6945(d)(1)(B). The Administrator must make a
final determination, after providing for public notice and an
opportunity for public comment, within 180 days of determining that the
State has submitted a complete application consistent with RCRA section
4005(d)(1)(A).\13\ See 42 U.S.C. 6945(d)(1)(B). EPA may approve a State
CCR permit program in whole or in part. Id. Once approved, the State
permit program operates in lieu of the Federal requirements. 42 U.S.C.
6945(d)(1)(A). In a State with a partial permit program, only the State
requirements that have been approved operate in lieu of the Federal
requirements, and facilities remain
[[Page 48777]]
responsible for compliance with all remaining non-State approved
requirements in 40 CFR part 257, subpart D.
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\13\ See U.S. Environmental Protection Agency. Coal Combustion
Residuals State Permit Program Guidance Document; Interim Final,
August 2017, Office of Land and Emergency Management, Washington, DC
20460 (providing that the 180-day deadline does not start until EPA
determines the application is complete).
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The Federal CCR regulations are self-implementing, which means that
CCR landfills and surface impoundments must comply with the terms of
the rule even prior to obtaining a Federal permit or permit issued by
an approved State, and noncompliance with any requirement of the
Federal CCR regulations can be directly enforced against the facility.
42 U.S.C. 6945(d)(3). Once a final CCR permit is issued by an approved
State, the terms of the State permit apply in lieu of the terms of the
Federal CCR regulations and/or requirements in an approved State
program. Further, RCRA section 4005(d)(3) provides a permit shield
against direct enforcement of the applicable Federal standards or State
CCR regulations (meaning that the permits terms become the enforceable
requirements for the permittee).
D. Summary of Proposed Denial of Alabama's CCR Permit Program
Application
On August 14, 2023, EPA published notice of the proposal to deny
approval of Alabama's December 29, 2021, CCR permit program
application. 88 FR 55220 (August 14, 2023). In the document, the Agency
conducted an analysis of the Alabama CCR permit program Application,
including a thorough analysis of ADEM's statutory authorities for the
CCR program, as well as the regulations at Alabama Administrative Code
Chapter 335-13-15, Standards for the Disposal of Coal Combustion
Residuals in Landfills and Impoundments. See Unit IV.B.2.b of the
Proposed Denial and TSD Volume III. EPA also reviewed Alabama's
permitting regulations and recent and ongoing permit decisions ADEM was
making under its CCR regulations.
In the Proposed Denial, EPA provided its interpretation of the
scope of the Agency's review of a State CCR permit program under
section 4005(d)(1)(B) of RCRA. That section of the statute provides in
part that the Administrator ``shall approve, in whole or in part, a
permit program or other system of prior approval and conditions
submitted under subparagraph (A) if the Administrator determines that
the program or other system requires each coal combustion residuals
unit located in the State to achieve compliance with'' either: (1) The
Federal CCR requirements at 40 CFR part 257 (i.e., the Federal CCR
regulations); or (2) Other State criteria that the Administrator, after
consultation with the State, determines to be at least as protective as
the Federal requirements. 42 U.S.C. 6945(d)(1)(B) (emphasis added). See
Proposed Denial Unit IV.A (providing the Agency's interpretation of
EPA's authority to review State CCR permit program applications). The
Agency explained that such determinations necessarily include
consideration not only of a State's statute and regulations, but what
the State requires ``each CCR unit'' to do, such as in permits or
orders, when such information is available prior to approval of the
State program. EPA further explained that because ADEM started issuing
permits prior to program approval the State's permitting decisions
under its existing CCR regulations are directly relevant to
understanding whether the State's program requires ``each [CCR] unit
located in the State to achieve compliance with'' either the Federal
regulations or alternative State standards that are at least as
protective as the Federal CCR regulations as required by RCRA section
4005(d)(1)(B).
In the Proposed Denial, EPA first evaluated the terms of Alabama's
permit program that, as noted above, largely mirror the Federal CCR
Regulations. The Agency proposed to find that the terms of ADEM's CCR
permit program regulations demonstrate that the State program includes
all regulatory provisions required for approval of a partial
program.\14\ Thus, EPA concluded that the terms of the permit program
provide ADEM with the authority necessary to issue permits that will
ensure each CCR unit in the State achieves the minimum required level
of protection (i.e., the State has the authority to issue permits that
require compliance with standards that are at least as protective as
those in the Federal CCR regulations).
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\14\ EPA conducted a thorough review of the terms of Alabama's
CCR permit program submittal, consistent with review of submittals
by states that were granted approval, and that review can be found
in the Proposed Denial TSD Volume III: Technical Support Document
for the Proposed Notice to Deny Alabama's Coal Combustion Residuals
Permit Program, EPA Analysis of Alabama CCR Permitting and Technical
Regulations. U.S. Environmental Protection Agency, Office of Land
and Emergency Management (5304T), 1200 Pennsylvania Avenue NW,
Washington, DC 20460. August 2023.
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While EPA concluded that the statutes and regulations of the
Alabama CCR permit program provide the State with sufficient authority
to require compliance with the Federal requirements or State
requirements that are as protective as the Federal requirements, EPA
also proposed to determine that permits issued by ADEM allow CCR units
in the State to comply with alternative requirements that appeared to
be less protective than the requirements in the Federal CCR regulations
with respect to groundwater monitoring, corrective action, and closure.
EPA reviewed four permits for CCR surface impoundments in Alabama and
the Agency found that those permits allow CCR in closed units to remain
saturated by groundwater, without requiring adequate (or any)
engineering measures to control the groundwater flowing into and out of
the closed unit. See Proposed Denial Unit IV.C and the TSD Volume I
(providing a detailed discussion of EPA's concerns with the closure
requirements for surface impoundments at Alabama CCR permits issued to
Plants Colbert, Gadsden, Gorgas, and Greene County). EPA also noted
that ADEM approved groundwater monitoring systems that contain an
inadequate number of wells, and in incorrect locations, to detect
groundwater contamination from the CCR units. Id. Finally, EPA proposed
to find that ADEM issued multiple permits that effectively allow
permittees to delay implementation of effective measures to remediate
groundwater contamination both on- and off-site of the facility. Id.
In addition, EPA proposed that a review of the permit records
demonstrates a consistent pattern of deficiencies in the permits that
is allowed to occur because of the State's flawed interpretation of the
Federal CCR regulation and by a lack of oversight and independent
evaluation of facilities' proposed permit terms on the part of ADEM.
For the permits terms reviewed in the proposal, EPA was unable to
locate any evaluation or record of decision documenting that ADEM had
critically evaluated the materials submitted as part of the permit
applications, or otherwise documented its rationale for adopting those
proposed permit terms prior to approving the application. Because of
the technical insufficiency of the permit terms as issued and the
absence of any supporting rationale for why those permit terms were
protective of human health and the environment notwithstanding their
deficiencies, EPA could not conclude that the Alabama CCR permits are
as protective as the Federal CCR regulations; therefore, EPA could not
conclude that Alabama's program satisfied the requirement for approval
of a State CCR permit program.
EPA discussed these general issues with ADEM and the State declined
to revise the permits to be consistent with the Federal CCR
regulations. ADEM also declined to demonstrate that its
[[Page 48778]]
alternative requirements satisfy the requirement in RCRA section
4005(d)(1)(B)(ii). Instead, the Alabama Attorney General, on behalf of
ADEM, stated in the Notice of Intent to Sue \15\ that EPA does not have
the authority to consider implementation of the State program when
determining whether a State program is sufficient, and that the Agency
may only look to the ``four corners'' of the State program Application
when evaluating the program for approval. In the Notice of Intent to
Sue, the ``four corners'' of the application are described as being
public participation, guidelines for compliance, guidelines for
enforcement authority, and intervention in civil enforcement
proceedings. The Notice of Intent further argued that EPA could only
consider implementation after approval, and then withdraw the program
if issues were identified.
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\15\ Letter from Alabama Attorney General Steve Marshall to EPA
Administrator Michael Regan, Notice of Endangerment and Intent to
Sue under Section 7002(a)(1)(A) and (1)(B) of the Resource
Conservation and Recovery Act. December 9, 2022.
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In Unit IV.A of the preamble to the Proposed Denial, EPA rejected
ADEM's position that RCRA section 4005(d) prohibits EPA from
considering the permits issued under the State CCR permit program when
determining whether to approve the program and that EPA may only
address such issues after the State program is approved. In Unit IV.B
of the preamble to the Proposed Denial, the Agency provided a short
summary of EPA's conclusions after review of the express terms of the
ADEM statutes and regulations. In Unit IV.C of the preamble to the
Proposed Denial, EPA identified specific permits that the Agency
believes are deficient and explained the bases for EPA's proposed
determination that they are inconsistent with the standard for approval
in RCRA section 4005(d)(1)(B).
II. Final Action on Alabama CCR Permit Program Application
After considering comments on the Proposed Denial, EPA is taking
final action to deny approval of Alabama's CCR permit program for the
reasons set forth below in summary and as explained in detail in the
Proposed Denial.
A. Legal Authority To Evaluate State CCR Program Applications
EPA is affirming the interpretation of the statute set forth in
detail in Unit IV.A of the Proposed Denial and summarized below.
The terms and structure of RCRA 4005(d) require EPA to consider the
CCR permits a State has issued under the CCR program it has submitted
for EPA approval. Section 4005(d)(1)(B) requires EPA to determine
whether the State program ``requires each'' CCR unit in the State ``to
achieve compliance'' with either the Federal regulations at 40 CFR part
257, subpart D (i.e., the Federal CCR regulations), or with alternative
requirements at least as protective as the Federal CCR regulations.
This direction necessarily includes Agency consideration of the
existing record of what the State actually requires individual CCR
units to do pursuant to the program that the state has submitted to EPA
for approval. The statute provides that once a permit is in effect, the
permit terms replace the regulations as the criteria with which the
permitted facility must comply. See, 42 U.S.C. 6945(d)(6).
Consequently, once issued, the permits effectively are the program, or
at the least, a substantial component of the CCR program for the
individual facilities. The Agency does not believe it can reasonably
ignore such information, as it falls squarely within the ordinary
meaning of what the statute expressly directs EPA to consider. The
overall context of RCRA section 4005(d) further supports consideration
of State CCR permits when they have been issued prior to approval of a
State program. Specifically, the Agency concludes that it would not be
reasonable to ignore permits issued prior to approval of a State CCR
program because, as noted above, a permit issued pursuant to a Federal
or approved State permit program acts as a shield to direct enforcement
of the Federal CCR regulations. Once a permit is issued by an approved
State, facilities are shielded from enforcement of requirements that
are addressed in the provisions of the applicable State permit, even if
those permit provisions are not as protective as the Federal CCR
regulations. The permit shield supports EPA's conclusion that it would
be unreasonable to approve a State CCR permit program where the Agency
knows that permits issued by the State are not at least as protective
as the Federal CCR regulations because, once the State program is
approved, neither EPA nor a member of the public can take action to
require the facility to comply with the minimum level of protection
contemplated under the statute. Further compounding the problem is the
fact that once a State CCR program is approved, RCRA requires EPA to
follow a statutorily established process to either convince the State
to revise the defective permits or withdraw approval of the State CCR
program. During the time it takes to address the program deficiencies,
the CCR units with inadequate permits would be authorized to continue
to operate in a manner that the EPA believes is not as protective as
the Federal CCR regulations require. Further, it would arguably be
arbitrary to ignore such information when it is available given that
RCRA requires State CCR programs to ensure compliance with the Federal
standards, yet EPA would effectively be allowing facilities with such
deficient permits to manage unlined surface impoundments in a manner
that poses potential ongoing hazards to human health and the
environment. In sum, EPA approval of a State program that has issued
deficient permits is also EPA approval of the deficient permits;
therefore, it is reasonable for EPA to consider State issued CCR
permits when determining whether a State has satisfied the statutory
requirements for a State CCR permit program.
A State's permitting decisions under its CCR regulations are thus
directly relevant to understanding the submitted program, and to
determining which statutory standard EPA must use to evaluate the State
program. If a State interprets its statute and regulations to impose
the same requirements found in the Federal CCR regulations--or issues
permits that impose the same requirements--the relevant standard is
found in subsection (B)(i). 42 U.S.C. 6945(d)(1)(B)(ii). By contrast,
where the State interprets its program to impose different requirements
or issues permits that impose different requirements than the Federal
CCR regulations, the relevant standard is found in (B)(ii), which
requires EPA to determine whether the State's alternative standards are
``at least as protective as the Federal CCR regulations.'' 42 U.S.C.
6945(d)(1)(B)(ii).
Here, there is no question that the relevant standard is found in
section 4005(d)(1)(B)(ii). The State expressly acknowledged that it
interprets its closure regulations to impose different requirements
than those found in the Federal CCR regulations, and the State has
issued permits authorizing closures that are inconsistent with the
plain language of the Federal CCR regulations. Although the state
disputes EPA's reliance on the ordinary meaning of the provisions, it
is well-settled that in the absence of a statutory or regulatory
definition, reliance on the ordinary meaning is the default. See,
Williams v. Taylor, 529 U.S. 420, 431 (2000)) (``It is fixed law that
words of statutes or regulations must be given their `ordinary,
contemporary, common meaning.' ''). And with EPA's recent adoption of
the ``default'' dictionary
[[Page 48779]]
definitions of infiltration and liquid into the Federal CCR
regulations, there is no plausible argument that Alabama's CCR program
is the same as the Federal. See ``Hazardous and Solid Waste Management
System: Disposal of Coal Combustion Residuals From Electric Utilities;
Legacy CCR Surface Impoundments'', 89 FR 38950, 39100 (May 8, 2024)
(e.g., adding a definition of ``infiltration'' to the Federal CCR
rule).
The same holds true with respect to the groundwater monitoring and
corrective action portions of the program. Although ADEM has not
similarly acknowledged different interpretations of the groundwater
monitoring and corrective action regulations, it has repeatedly issued
permits that authorize groundwater monitoring systems and corrective
actions that do not comply with the Federal CCR regulations.
B. EPA Review of Alabama Regulations for CCR Units
EPA is taking final action on the proposed determination that the
express terms of Alabama's CCR regulations provide the State with
sufficient authority to issue permits that are at least as protective
as those required under the Federal CCR regulations. See Proposed
Denial Unit IV.B and TSD Volume III (providing EPA's analysis of the
laws and regulations for Alabama's CCR permit program). In sum, Alabama
established State CCR regulations that largely mirror the language in
the Federal CCR regulations in almost all respects, and, to the extent
the provisions are different, the differences in the State regulations
are at least as protective as the Federal CCR regulations. For this
reason, the Agency believes the record would support approval of
Alabama's program if the State either modifies its permits to be
consistent with the Federal requirements or demonstrates that its
alternative interpretations of the Federal CCR regulations ensure that
State permits are at least as protective as the Federal CCR
regulations.
C. EPA Review of Alabama's Permits Issued Under the State CCR
Regulations
After consideration of comments, the Agency is taking final action
denying Alabama's Application because EPA finds that the State's CCR
permit program does not require each CCR unit in the State to achieve
compliance with either the minimum requirements in the Federal CCR
regulations or with alternative State requirements that EPA has
determined to be at least as protective as the Federal provisions. EPA
is basing this decision on the evaluations of the Alabama CCR permits
for Plants Colbert, Gadsden, Greene County, and Gorgas contained in the
Proposed Denial, and on Alabama's stated interpretation of the closure
requirements, as discussed in the Proposed Denial and confirmed in
ADEM's comments on the Proposed Denial. See Proposed Denial Unit IV.C
and TSD Volume III; see also State of Alabama Comments.\16\
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\16\ Available in the docket: EPA-HQ-OLEM-2022-0903-0261.
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EPA reviewed the permits for the identified plants in part because
the permits were issued to unlined surface impoundments that have
closed or are closing with waste that will remain in place below the
water table. For the review, EPA considered the publicly available
information about the plants and CCR units at issue. EPA did not
attempt to catalog every potential inconsistency between the permits
and the Federal CCR regulations, but only considered the permits'
consistency with certain fundamental aspects of the closure,
groundwater monitoring, and corrective action requirements. The review
revealed a consistent pattern of ADEM issuing permits to CCR units that
fail to require compliance with significant requirements in 40 CFR part
257 that are necessary to protect human health and the environment from
exposure to contamination from leaking CCR units. EPA also identified a
consistent pattern of ADEM approving documents submitted by the
facilities, such as closure plans, groundwater monitoring plans, and
assessments of corrective measures, even though the submissions lack
critical information or are otherwise deficient. ADEM also did not
require the permittees to take any action to cure deficiencies in the
permits even where ADEM previously identified the deficiencies and
requested further information prior to issuing the final permits. The
permit information further showed that ADEM issued multiple permits
allowing CCR in closed units to remain saturated by groundwater,
without requiring engineering measures that will control the
groundwater flowing into and out of the closed unit. EPA also found
that ADEM approved groundwater monitoring systems that contain an
inadequate number of wells, and in incorrect locations, to monitor all
potential contaminant pathways and to detect groundwater contamination
from the CCR units in the uppermost aquifer. Finally, EPA determined
that ADEM issued multiple permits that allow the permittee to delay
implementation of effective measures to remediate groundwater
contamination both on- and off-site of the facility. Overall, EPA's
review of the permit records and other readily available information
demonstrates a consistent pattern of deficient permits and a lack of
oversight and independent evaluation of facilities' permit terms and
supporting documentation. In each instance described in the proposal,
EPA was unable to locate any evaluation or record of decision
documenting that ADEM critically evaluated the materials submitted as
part of the permit application, or otherwise documented its rationale
for adopting them.
EPA confirms the proposed conclusions from the Agency's technical
review of the four Alabama CCR permits in this final action, and the
comments responding to some of EPA's technical evaluations of the
groundwater monitoring networks and corrective action provisions in the
CCR permits do not address EPA's concerns as explained below. Further,
the comments do not address all of the technical issues EPA identified
nor do the comments address the broader concerns with the pattern of
inadequate review and approval of permit applications by ADEM. Further,
Alabama specifically acknowledges in its comments that it interprets
the closure requirements for unlined surface impoundments differently
than EPA. Alabama's interpretation allows unlined surface impoundments
to close with CCR in contact with groundwater without requiring
measures to prevent groundwater from flowing into and out of the closed
unit indefinitely. EPA rejects the State's interpretation because it is
inconsistent with the plain language of the Federal CCR regulations and
because it is not as protective of human health and the environment.
Thus, Alabama's interpretation of the closure standards for surface
impoundments alone supports EPA's Final Denial because approval of the
State program would mean approval of the CCR permits EPA reviewed in
the Proposed Denial and a permit shield would allow those CCR units to
continue to operate with inadequate permits until and unless EPA
withdraws the approval, at which time the Federal CCR Regulation would
again directly apply to the CCR surface impoundments. Under these
circumstances, EPA cannot conclude that Alabama's CCR permit program
requires each CCR unit in the State to achieve compliance with either
the Federal CCR regulations or with alternative State requirements that
EPA
[[Page 48780]]
has determined are at least as protective as the Federal CCR
Regulations as required under section 4005(d) of RCRA.
III. Summary of Comments and Responses
EPA received 4,775 comments on the Proposed Denial. EPA reviewed
the comments, and the Agency provides summaries of and responses to the
comments below and in the Response to Comments document in the docket.
A. Legal and Policy Comments on EPA's Review of Alabama's CCR Permit
Program
1. Comments Opposing EPA's Process for Reviewing Alabama's CCR Permit
Program in Accordance With RCRA Section 4005(d)
Comments: ADEM and other State and industry commenters assert that
EPA has interpreted the State program approval provisions of RCRA
incorrectly because the Agency considered CCR permits issued by ADEM to
support the Proposed Denial of the Alabama CCR permit program and that
the Agency failed to adequately communicate its concerns to ADEM.
ADEM appears to disagree with EPA that the State had extensive
communication with the Agency about development of the State's
Application for a CCR permit program, that EPA detailed its concerns,
and that ADEM declined to alter its course by continuing to issue CCR
permits. ADEM also takes issue with EPA's statement in the Proposed
Denial that ADEM put the Agency in the position where it had no choice
but to proceed to program denial. ADEM asserts that its Application was
a multi-year development project in very close communication with EPA
Region 4 and Headquarters such that and that Region 4 personnel clearly
indicated the final application was complete and approvable upon its
submittal on December 29, 2021, and subsequent transmittal to EPA HQ on
January 3, 2022. ADEM states that at no time leading up to this point
in the process, during which EPA was fully aware that ADEM was
reviewing and processing CCR permit applications and issuing CCR
permits to the Alabama facilities did EPA identify deficiencies or
recommend changes to any ADEM CCR permits. ADEM asserts that receipt of
the pre-publication copy of EPA's Proposed Denial of ADEM's CCR program
on August 3, 2023, was the first written identification from EPA of any
alleged deficiencies in ADEM's CCR program Application, or its proposed
or issued permits. ADEM acknowledges that it did receive several
questions from EPA regarding specific permits to which ADEM states that
it provided EPA detailed verbal and written responses. ADEM maintains
that thereafter EPA made no effort to seek any further clarifications
and gave no indication that any of its questions remained unanswered.
Many of the technical issues discussed during the meetings with EPA
reappear in the Proposed Denial and are framed in a manner to make it
appear ADEM's program is non-compliant.
ADEM also maintains that it had no opportunity to correct the
perceived deficiencies. According to ADEM, EPA made no direct requests
of ADEM to change or modify any of its CCR program components. ADEM
states that EPA expressly admits that the ADEM regulations largely
mirror the Federal rules. ADEM then argues that the sole focus of EPA's
program approval review is the issued permits which ADEM argues are
sufficient because language in the permits largely mirror language in
the Federal CCR regulations. ADEM concludes that it is a ``mystery''
exactly what the State would modify to bring the program to the level
of equivalency that EPA believes to be lacking. ADEM maintains that the
200-plus page Federal Register notification of EPA's proposed Program
Denial provides no clarity to this issue.
ADEM and other commenters note that EPA makes numerous references
to 42 U.S.C. 6945(d)(1)(B), and ADEM quoted the provision in whole to
point out the timing for EPA to review and act on a State CCR permit
program application. ADEM states that EPA Region 4 transmitted ADEM's
final permit approval Application to EPA HQ on January 3, 2022 (see
Docket No. EPA-HQ-OLEM-2022-0903-0029), seemingly for the purpose of
final processing. ADEM contends that, in accordance with 42 U.S.C.
6945(d)(1)(B), EPA had until July 2, 2022, to approve ADEM's CCR permit
program. Instead, ADEM asserts, that what ensued was a series of
discussions and reviews long after the public comment periods and
issuance of the CCR permits. ADEM argues that EPA has clearly missed
the statutorily mandated deadline to approve ADEM's CCR program.
ADEM states that EPA focuses on the ``such other State criteria''
noted in 42 U.S.C. 6945(d)(1)(B)(ii) as the basis to allow it to review
issued permits as part of the permit approval record. ADEM argues that
approach is illogical on its face when considered in the context of
EPA's specific actions in this matter. Hypothetically, ADEM states it
could have chosen to delay issuance of the permits until after
submittal of the final program approval Application, as other States
with approved programs chose to do. At that hypothetical point, EPA
would have only ADEM's CCR regulations upon which to review its
equivalency to the Federal program. ADEM can only assume that EPA would
have then proceeded directly to program approval in this hypothetical
scenario. EPA, presumably, would not have waited for ADEM to start
issuing permits to observe the way it interprets its rules prior to
approval. ADEM states that EPA clearly did not do this during the
permitting program approvals for Oklahoma, Georgia, and Texas. ADEM
argues that if EPA is not requiring other States to issue permits to
observe their interpretations of their CCR regulations, it is not
logical or consistent for EPA to incorporate reviews of ADEM's
previously issued permits into its program approval review. ADEM argues
this punishes Alabama for its proactive approach to CCR facility
management.
ADEM does not agree that 42 U.S.C. 6945(d)(1)(D) authorizes EPA to
review permits as part of the program approval process simply because
EPA is able to consider permits when the Agency periodically reviews
approved State programs. ADEM maintains that EPA suggests that there is
no fundamental difference between it reviewing permits after approval
and concluding program withdrawal is warranted, versus reviewing
permits issued prior to approval and determining permit program denial
is warranted. ADEM argues that because EPA had ample opportunity to
actively participate in the permit development process, to avail itself
of the public review process, and to formally outline its permitting
concerns to ADEM prior to permit issuance, the Agency cannot use
permits as the basis for program denial because EPA stayed silent about
permitting concerns until after the permits were issued (years after in
most cases). ADEM maintains EPA's permitting concerns did not arise
until after the permits were issued and that EPA did not act in good
faith. ADEM further contends that even if permit reviews were an
appropriate part of the program approval process, the State objects in
the strongest possible terms to EPA's waiting until the program
approval process to object. ADEM argues EPA's approach makes it
difficult for ADEM to respond to EPA's concerns, and the State does not
believe Congress intended for EPA to approach State permit program
approval in this manner.
ADEM argues that EPA ultimately proposed to deny ADEM's
Application,
[[Page 48781]]
not because ADEM's criteria were deficient or its authority to
implement and enforce those criteria were somehow lacking, but rather
because EPA believes that proposed and final permits in Alabama
``contain permit terms that are neither the same as, nor as protective
as, the Federal CCR regulations.'' ADEM maintains that nothing in the
WIIN Act or EPA's ``Coal Combustion Residuals State Permit Program
Guidance Document: Interim Final'' (82 FR 38685, August 15, 2017)
(``Guidance Document'') indicates that States can, should or must
submit actual permits to EPA as part of the review and approval
process.
ADEM notes that to date, EPA has reviewed and approved (at least in
part) three other State CCR permit programs--83 FR 30356 (June 28,
2018) (Oklahoma); 85 FR 1269 (January 10, 2020) (Georgia); and 86 FR
33892 (June 28, 2021) (Texas). ADEM maintains that those States did not
submit individual permits as part of their applications, nor did EPA
ask to review particular permits, or any permit language that any of
the States contemplated using after their programs were approved. By
way of example, in Oklahoma, EPA noted in its approval decision that
four of the five CCR units subject to the Federal CCR regulations in
the State were already permitted and, once the State's program was
approved, would be subject to the State's CCR regulations. Instead of
reviewing any of those permits, EPA focused its review on the State's
CCR regulations and the ``four corners'' of its legal and regulatory
framework--public participation opportunities in the permitting
process, guidelines for compliance, guidelines for enforcement
authority, and intervention in civil enforcement proceedings. ADEM
further states that until now, EPA performed the same scope and level
of ``four corners'' review in each State that submitted an application.
According to EPA, the WIIN Act ``directs EPA to determine that the
state has sufficient authority to require compliance from all CCR units
located within the state'' and ``[t]o make this determination EPA
evaluates the State's authority to issue permits and impose conditions
in those permits, as well as the State's authority for compliance
monitoring and enforcement.'' In short, ADEM argues that EPA's review
is--and has been--limited to a State's authority, not to any particular
exercise of such authority for individual permit decisions.
ADEM states that EPA claims that it would be illogical not to
review individual permit language because EPA would then be required to
approve a State permit program that EPA believes it likely will
eventually have to withdraw. ADEM argues that this ignores EPA's role
in the State permitting process. ADEM argues that if EPA believes a
State has drafted a CCR permit that deviates from applicable regulatory
requirements, EPA would have ample opportunity to comment or object,
consistent with its general oversight duties. Moreover, if a State
finalizes a permit in a manner that does not resolve legitimate
concerns (if any) raised by EPA, then EPA would have the same appeal
options as any other interested party. Indeed, this opportunity for
engagement and dispute resolution is precisely what EPA presented in
its Guidance Document for ``adequate public participation.''
ADEM argues that the Federal CCR regulations do not specify permit
terms, so there is no regulatory basis for EPA to compare any
particular State permit language or find it to be more or less
protective. ADEM further asserts that EPA has not proffered or
finalized any particular permit terms that could serve as a basis for
comparison and that, to the contrary, EPA's Federal permit program
proposal would specifically allow a permit writer--in its discretion--
to incorporate the regulatory criteria by ``re-writing them into the
permit or incorporating them by reference.'' ADEM states that it
followed this approach in its permits but that EPA still found fault
with the permits. According to ADEM, even if EPA had the authority to
assess permit language as part of its review of a State permit program,
there is no rational basis for EPA to reject ADEM's permit language
since it mirrors what EPA has proposed for its own permit writers.
Response: EPA does not agree that the Agency's approach to review
of the Alabama's CCR permit program was in error. In addition, as the
record shows EPA did inform ADEM of the Agency's concerns with the
State's interpretation of the Federal CCR regulations before signing
the Proposed Denial. See TSD Volume II.
As explained in detail in the Proposed Denial, section 4005(d)(1)
of RCRA directs EPA to determine whether a State program ``requires
each'' CCR unit in the State ``to achieve compliance'' with either the
Federal standards or an alternative State program at least as
protective as the Federal CCR regulations. See Proposed Denial, 88 FR
55220, 55226 (August 14, 2023). Given that statutory directive, EPA
concludes that it cannot ignore permits that are available prior to
approval of a State CCR program, as in this case. Id. ADEM implies that
EPA is acting in an unreasonable manner by taking this approach, but in
fact it would be both unreasonable and arbitrary and capricious to
ignore issued permits since they are the best evidence of whether a
State program does in fact require each CCR unit in the State to
achieve compliance with the Federal CCR regulations or State standards
that are at least as protective as the Federal regulations.\17\
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\17\ EPA detailed the interactions between EPA and Alabama in
the Proposed Denial. See Proposed Denial Section III.E. With respect
to ADEM's suggestion that EPA surprised the State with its approach
to review of the State's CCR program and the Agency's application of
the Federal CCR regulations, there is information in the record to
the contrary. Specifically, EPA issued a letter to ADEM concerning
the Colbert facility on September 15, 2022, and the Agency sent to
ADEM a list of unlined CCR surface impoundments in the State with
waste below the water table on March 15, 2022.
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EPA also disagrees that the Agency is treating ADEM unfairly. ADEM
complains that EPA is evaluating the permits the State issued and
asserts that EPA is treating Alabama differently than it treated
Oklahoma, Georgia, and Texas when it approved those partial State CCR
permit programs. ADEM is incorrect that EPA is treating Alabama
differently. As ADEM noted, two of the three approved States had not
issued permits at the time the Agency approved their programs, but the
Agency did evaluate Oklahoma's final permits as part of its program
review and EPA did not identify the persistent problems the Agency
found when it reviewed Alabama's. In addition, for Alabama as for other
States, EPA has incorporated a consideration of both final and proposed
State permits as part of the Agency's review of initial State CCR
permit program Applications submitted for a completeness determination
because of concerns with implementation of certain provisions of the
Federal CCR regulations with respect to unlined CCR surface
impoundments. In fact, EPA recently sent a letter to the State of
Wyoming indicating the Agency could not determine the State's
application to be complete due to a number of issues including a lack
of clarity in how the State interprets the Federal CCR closure
performance standard.\18\ The Agency is also in active discussions with
other States seeking program approval (Arizona, Arkansas, Florida,
Illinois, Indiana, Kansas, Louisiana, Maryland, Michigan, Mississippi,
Missouri, Montana, Nebraska, North Carolina,
[[Page 48782]]
North Dakota, Ohio, Pennsylvania, Tennessee, Utah, Virginia, West
Virginia, Wisconsin, Wyoming) and the Agency intends to consider
permits as part of its review of those programs.
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\18\ Letter from Barry Breen, Principal Deputy Assistant
Administrator for the Office of Land and Emergency Management to Mr.
Todd Parfitt, Director of the Wyoming Department of Environmental
Quality. December 5, 2023.
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ADEM also argues that the statute requires EPA to delay review of
the State's CCR permits until after EPA has approved the State program.
But the statute does not mandate that approach and, further, that
approach would be unreasonable under the current situation. As noted in
the Proposed Denial, it would be illogical for EPA to approve a State
CCR permit program that the Agency believes it likely will eventually
have to withdraw. Moreover, withdrawing a State CCR permit program
takes significant time, during which CCR units in the State could
continue to operate--or new permits could be issued--under conditions
that are less protective than those required in the Federal CCR
regulations. Third, if EPA were to approve Alabama's program now (i.e.,
after the deficient CCR permits were issued), the Alabama CCR program,
including the facility-specific permits, would apply in lieu of the
Federal CCR regulations pursuant to RCRA section 4005(d)(3)(B),
preventing enforcement of the Federal standards in the interim. None of
these outcomes is consistent with RCRA's requirement that each CCR unit
be subject to a minimum level of protection established in the Federal
CCR regulations.
EPA also does not agree that the time it takes a State to satisfy
the requirements to develop a complete permit application changes the
Agency's responsibility under the statute to consider the available and
relevant information when making its decision. ADEM incorrectly
suggests that EPA is bound by supposedly clear representations from EPA
Region 4 staff indicating to ADEM that the State's application was
complete upon submission of the Application on December 29, 2021, and
because the regulatory provisions of the State's program mirror the
regulatory provisions in the Federal CCR Regulations.\19\ As an initial
matter, Region 4 has not been delegated the authority to make a
completeness determination and EPA does not provide oral completeness
determinations. In fact, the Agency did not determine at that time or
since that the State's application was complete because the Agency was,
prior to that time, aware of facilities in Alabama and other States
that were planning to close or had closed unlined surface impoundments
while leaving waste below the water table. EPA discussed with ADEM the
Agency's concerns with the State's implementation of the closure
standards for unlined surface impoundments, but the State maintained
that its interpretation of the Federal CCR regulations was correct and
EPA's interpretation of the Federal closure standards for unlined
surface impoundments was wrong. In addition, as EPA reviewed ADEM's
permits in more detail, EPA identified additional concerns with the
State's implementation of the program with respect to groundwater
monitoring systems and corrective action. As a result of these
discussions, on July 7, 2022, EPA informed ADEM via telephone that the
Agency was putting on hold its completeness review of ADEM's CCR permit
program Application until Alabama demonstrated to EPA that the State
was implementing its program consistent with the Federal CCR
regulations. Further, EPA explained to ADEM that it was exploring
options for actions to take at the Federal level with respect to both
the CCR permit program Application, and at specific facilities where
there are outstanding concerns.
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\19\ EPA provided in the proposed rule a summary of calls,
emails and letters where EPA brought up specific concerns with the
State's CCR permit program and specific permit conditions at
facilities. See Proposed Denial, 88 FR 55223, 55224 (August 14,
2023). ADEM's account of the situation differs in some regards to
EPA's, and the Agency stands by its rendering of events. But even if
the State's characterization of the facts leading up to the proposed
decision were accurate, those facts do not change EPA's
responsibility under the statute. EPA cannot ignore information
indicating that a State program is not as protective as the Federal
CCR program, no matter the timing of that information. If as here,
the information is available prior to program approval, the
information is relevant to program approval and EPA may consider
that information.
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EPA disagrees that the Agency is prohibited from considering the
State's proposed CCR permits as part of the CCR permit program review
process and disagrees that EPA is limited to reviewing State permits
during the State's permit issuance process. As an initial matter, it is
not possible for EPA to review even a fraction of the State permits
that are issued to CCR units. But even if it were possible for EPA to
review all State CCR permits, RCRA does not require it. ADEM cites
nothing to support its contention that EPA can only review a State
permit during its issuance. Instead, RCRA provides EPA with authority
to review CCR permits issued by a State at any time. As discussed
above, the mandate to determine whether the State program ``requires
each'' CCR unit in the State ``to achieve compliance'' with either the
Federal CCR regulations or with standards at least as protective as the
Federal CCR regulations necessarily includes Agency consideration of
State permits, when such information is available prior to approval of
the State program. See, 42 U.S.C. 6945(d)(1)(B) and the statute
expressly provides that EPA may review State permits ``as the
Administrator determines necessary'' as part of a State program review.
RCRA section 4005(d)(D)(i)(I). In fact, as ADEM recognizes, RCRA
section 4005(d)(1)(ii)(II) authorizes EPA to evaluate a State program,
including permits issued under the program, as part of EPA's required
periodic program review of approved State programs; and the statute
does not limit the scope of the Agency's periodic review to only the
permits on which the Agency commented during the State's permit
issuance process. For these reasons, it is appropriate for EPA to
consider permits issued under a State CCR permit program as part of an
initial program review, regardless of whether EPA submitted comments on
those permits in the State permitting proceeding.
EPA also disagrees that the Agency has not told ADEM what it must
do to address the Agency's concerns. All States were on notice when EPA
published proposed denials of Part A extension requests and when the
Agency informed States with unlined surface impoundments that EPA was
concerned about compliance with the closure standards. EPA has also
directly communicated with Alabama as set forth in the Proposed Denial,
and the Agency's comments on the Colbert permit explained many of EPA's
concerns with Alabama's interpretation and implementation of its CCR
permit program. In any case, to the extent there remains confusion,
ADEM's permits misapply the Federal closure standards for unlined
surface impoundments, ADEM is not adequately evaluating groundwater
monitoring networks in proposed permits to ensure that those networks
are configured to properly detect contamination coming from permitted
units, and ADEM is not ensuring timely implementation of corrective
action measures after contamination is detected. EPA summarized its
concerns with ADEM's implementation in the Proposed Denial at 88 FR
55230 where EPA explained that it had identified a consistent pattern
of ADEM issuing permits to CCR units that fail to demonstrate
compliance with fundamental requirements in part 257, without requiring
the permittees to take specific actions to bring the units into
compliance. EPA went on to say that it
[[Page 48783]]
also identified a consistent pattern of ADEM approving documents
submitted by the facilities, such as closure plans, groundwater
monitoring plans, and assessments of corrective measures, even though
the submissions lacked critical information or are otherwise deficient.
ADEM also did not require the permittees to take any action to cure
deficiencies in the permits even where ADEM previously identified the
deficiencies and requested further information prior to issuing the
final permits. Further, EPA explained that it was proposing to
determine that ADEM issued multiple permits allowing CCR in closed
units to remain saturated by groundwater, without requiring engineering
measures that will control the groundwater flowing into and out of the
closed unit. See, 40 CFR 257.102(d). EPA also stated that ADEM approved
groundwater monitoring systems that contain an inadequate number of
wells, and in incorrect locations, to monitor all potential contaminant
pathways and to detect groundwater contamination from the CCR units in
the uppermost aquifer. See, 40 CFR 257.91. Finally, EPA said it
proposed to determine that ADEM issued multiple permits that
effectively allow the permittee to delay implementation of effective
measures to remediate groundwater contamination both on- and off-site
of the facility. See, 40 CFR 257.96 and 257.97. Overall, EPA's review
of the permit records and other readily available information
documented a consistent pattern of deficient permits and a lack of
oversight and independent evaluation of facilities' proposed permit
terms.
ADEM's comments on the Proposed Denial do not address these
systemic issues in any substantive manner or explain how it will
proceed to ensure that CCR permits are at least as protective as the
Federal CCR regulations and that the records contain all the
information necessary for EPA and the public to evaluate the terms of
the permits for compliance with the standards. Instead of addressing
these issues, ADEM relies on a narrow legal argument that its
interpretation of EPA's regulations governs, which EPA addresses
elsewhere.
For all these reasons, EPA is taking final action to deny approval
of Alabama's CCR permit program.
Comment: ADEM stated that it is aware that EPA received a joint
letter, dated March 11, 2022, from the Sierra Club and the Southern
Environmental Law Center. The letter transmits several extensive
technical reports prepared by paid third parties. ADEM only learned of
this letter months after EPA received it and had to specifically
request a copy of it. The letter seeks to provide EPA with a detailed
``outline [of] the legal basis for denying ADEM's State CCR permit
program'' and includes as attachments several reports contracted for by
the groups critiquing various CCR permits issued by the Department.
ADEM states that it is unclear what influence this letter had on EPA's
decision-making process for Alabama's approval application, but the
timing of its receipt by EPA falls directly between the time of EPA's
receipt of Alabama's final program approval application, and the May
through July conference calls described above. Also, there is a clear
similarity between the technical concerns raised in the letter and
those raised by EPA in the months following ADEM's final program
application. Furthermore, EPA's actions after receiving this letter
appear to follow the playbook for agency action promoted by the
advocacy groups. ADEM, and Alabama's citizens, are due an explanation
why this letter does not appear in the official EPA docket for the
proposed denial.
Response: ADEM's suspicions that a letter from Environmental groups
somehow influenced EPA are baseless. Well before the submission of the
March 11, 2022, letter, EPA had made it clear to ADEM that EPA had
concerns about how ADEM was implementing the regulations, especially in
regard to CCR units closing with waste in place where the waste
remained in contact with groundwater. In fact, on January 11, 2022, EPA
emailed ADEM copies of the first set of proposed Part A decisions,
including the proposed decision for the General James M. Gavin Power
Plant in Cheshire, Ohio. Three of the proposed decisions addressed
facilities that had one or more unlined surface impoundments with CCR
continually saturated by groundwater, and that intended to close the
units without addressing that situation. EPA explained that in each
case, the facility had failed to demonstrate that the closure of these
units complied with the plain language of the performance standards in
Sec. 257.102(d)(2), which include addressing infiltration into and
releases from the impoundment, and eliminating free liquids, given that
groundwater appeared to be continually saturating the unlined
impoundment. EPA went on to send a list of CCR units with WBWT that had
indicated they would be closing with waste in place and scheduled
meetings with ADEM and other Region 4 States to discuss these issues.
The letter ADEM is concerned with was not placed in the docket because
it was not considered by EPA during development of the proposed denial.
Comment: Commenter ADEM states that EPA explicitly acknowledges
that it has not conducted a complete or detailed review of the facility
files or background information used by ADEM to issue its CCR permits.
Commenter states that despite this, EPA drew unfounded conclusions
about the reviews and analysis conducted by the State prior to issuing
the permits. Commenter states EPA ignores the facts, including the fact
that ADEM issued unilateral administrative orders in 2018 and 2019 to
each Alabama CCR facility requiring the collection and submission of
detailed and voluminous information related to detailed site
characterization and assessment for each unit at each facility,
detailed information related to site geology and hydrogeology, detailed
information related to existing contamination, development of
groundwater remediation plans, and other items.
Commenter states that EPA also ignored that ADEM required each
facility to submit detailed permit applications for each unit/facility
including site history, unit construction and operation, planned
closure methods and procedures, and planned corrective measures to
address groundwater contamination among other items. Commenter states
that these applications were subjected to detailed review and
evaluation by ADEM's staff of multiple Professional Engineers (P.E.s)
and Professional Geologists (P.G.s) with extensive professional
experience evaluating environmental assessments, groundwater monitoring
systems, environmental permit applications, and corrective action
systems. Commenter states that following these extensive reviews, the
facilities were required to revise their applications and provide
additional information to address identified deficiencies. Commenter
states that EPA's review was perfunctory in nature and that the Agency
made numerous flawed conclusions that essentially dismiss the dedicated
work by the many seasoned professionals involved in development of the
permits. Commenter asserts that EPA is not living up to the standard
that is expected and that should be demanded from a seasoned, science-
based government agency responsible for protecting human health and the
environment through the application of sound science and engineering.
Response: ADEM makes much of the point that EPA states in the
Proposed Denial that the Agency did not do a complete review of the
permits. EPA did
[[Page 48784]]
do a thorough review of the portions of the permits discussed in the
Proposal. The purpose of this statement was merely to be clear that EPA
had not reviewed every provision of each of the permits, so neither the
State nor the facilities should assume that EPA has identified all the
potential problems with the permits. In any case, the problems EPA did
identify with the four permits reviewed were alone sufficient to
support the Proposed Denial, and ADEM does not explain how further
analysis of the permits would have changed EPA's conclusions about the
provisions that were reviewed. Specifically, EPA reviewed three areas
that showed consistent problems in facilities' Part A extension
requests--closure, groundwater monitoring, and corrective action--and
the Agency documented the findings in the Proposed Denial. EPA found
that the permits were neither consistent with, nor as protective as the
Federal CCR regulations with respect to all three areas reviewed.
The Agency also disagrees that it should defer to the work of
States or facilities and their P.E.s and P.G.s when reviewing permits.
EPA has significant technical expertise to evaluate a permit record and
determine whether the record is complete and demonstrates that the
permit is at least as protective as the Federal standards. EPA must
follow the facts. This demands that the Agency conduct its own
evaluation and reach its own conclusions, and not uncritically adopt
P.E. and P.G. assessments from other parties. This is the case
regardless of those individuals' own professionalism. To do otherwise
for fear of causing offense, would be to abrogate the Agency's
oversight role.
Further, as noted below in response to several technical comments,
ADEM and facilities provide new explanations for actions taken in the
permits that they say justify the permit terms. But such comments make
EPA's point. That additional explanations are necessary demonstrates
the insufficiency of the preexisting permit records with respect to
both groundwater monitoring networks and corrective actions. In any
case, the technical comments on the Proposed Denial do not address all
the technical issues EPA raised and none of the comments satisfactorily
explain how the closure requirements were met. In addition, even when
the comments address issues raised in the Proposed Denial, those
comments do not supplement or substitute for enforceable permit
conditions and, therefore, the comments do not demonstrate that the
permits themselves are actually in compliance with the Federal CCR
regulations or more stringent State requirements.
2. Comments in Support of EPA's Process for Evaluating Alabama's CCR
Permit Program
Comment: Environmental and public health commenters state that
ADEM's operation of its State CCR program and its repeated failure to
protect Alabama's communities and clean water from dangerous CCR
disposal and pollution establish that ADEM's application fails the
protective standards contained in the WIIN Act. Commenters state that
ADEM has violated the Federal CCR regulations across Alabama by
approving the cap in place closure of unlined leaking CCR lagoons that
will pollute and threaten Alabama's clean water, rivers, and
communities forever. Commenters state that EPA's careful analysis shows
ADEM has issued permits that would allow Alabama utilities to store
millions of tons of CCR in groundwater in perpetuity, and the
commenters cite a memorandum from a licensed hydrogeologist who studied
the Alabama sites for years and whose analysis is consistent with
EPA's. Commenters conclude that EPA's Proposed Denial upholds the law
and protects Alabama's people and water from the illegal permitting
practices of ADEM. Only the vigorous enforcement of the Federal CCR
regulations will provide Alabama the protections that it deserves, and
ADEM has demonstrated that it cannot and will not follow the law and
protect the State, its communities, and its clean water.
Response: EPA agrees that the Alabama CCR program is not as
protective as the Federal CCR regulations, and the Agency is taking
final action to deny approval of the State program.
Comment: Several commenters strongly support the proposed decision
of EPA to deny Alabama's request for approval of its Application.
Commenters state that ADEM's CCR permit program fails to meet the
standard for EPA authorization in significant ways. Commenters state it
is likely that EPA will soon be required to approve or deny additional
State CCR permit program applications and it is essential that EPA
apply the same strong reasoning, and fidelity to the Federal CCR
regulations evidenced in the proposed Alabama denial to any new
requests to operate State CCR programs. Commenters state that there
will be scores of permits issued that are not as protective as the
Federal CCR regulations and consequently harm human health and the
environment unless EPA maintains the same approach to reviewing other
State programs that it took with Alabama.
Commenters state that allowing permit programs like ADEM's to
operate is particularly damaging because once an approved State issues
a permit, the permitted facility is shielded from enforcement of any
requirement other than the provisions contained in the State permit.
Permit deficiencies such as those EPA identified in Alabama must be
resolved now, before a State is approved to operate in lieu of the
Federal program. Commenters further argue that this is a matter of
considerable urgency because there is no quick fix once an approved
State issues a permit that fails to protect health and the environment.
Commenters note that EPA has the authority to withdraw a deficient
State permit program, but that the statutorily mandated process takes
considerable time. Commenters state that they conducted a limited
analysis of State permitting at sites and that it reveals that States
are regularly permitting companies to dispose of CCR in contact with
groundwater, even where there is clear evidence that the ash is leading
to unsafe levels of contamination. Commenters state that they also
found instances where States are applying a risk-based analysis to
corrective action--an approach clearly prohibited by the Federal CCR
regulations--as well as at least one State imposing groundwater
monitoring requirements that are ineffective and significantly less
robust than those required by EPA. Commenters further argue it is
essential for EPA to provide oversight now, before a State applies for
program authorization. Commenters state that EPA enforcement actions at
facilities that are violating the prohibition against closure with CCR
in groundwater, operating deficient groundwater monitoring systems, and
selecting impermissible and ineffective groundwater remedies are needed
at many facilities nationwide. Commenters assert that EPA must
proactively communicate and demonstrate to States that their permitting
cannot circumvent Federal requirements because noncompliance is
widespread, and plants are initiating and completing illegal closures
at a rapid pace pursuant to the Federal requirement to close unlined
units.
Commenters state that denial of Alabama's CCR permit program helps
to protect Alabama, its residents, and its clean water from CCR
pollution and dangerous CCR storage when ADEM will not. Commenters
maintain that ADEM has demonstrated that it will authorize unlawful CCR
storage and
[[Page 48785]]
pollution to continue indefinitely and that it will not enforce the law
and the Rule's protections against the powerful utilities in Alabama.
Commenters state that, by denying ADEM's application, EPA will prevent
ADEM from being able to put in place CCR regulations permits that
violate the Federal CCR regulations and will ensure that citizens and
EPA can enforce the Federal CCR regulations and see that Alabama
communities receive its protections. Commenters maintain that EPA will
also communicate to other State agencies, utilities, and communities
across the nation that the protective standards of the Federal CCR
regulations will be upheld.
Commenters agree with EPA's draft denial stating that RCRA
establishes clear standards that States must meet to receive approval
for a State CCR permit program. Specifically, RCRA requires ``each CCR
unit located in the state to achieve compliance with'' either the
Federal criteria in part 257 or other State criteria that ``are at
least as protective as'' the Federal regulations. Commenters agree that
EPA demonstrated in its Proposed Denial that it is not enough that
State regulations parrot the language of the Federal CCR regulations;
they must adhere to its substance. Commenters state that EPA's
examination of permits issued by ADEM reveals that the State is
implementing its regulations in a manner that is significantly less
protective than the plain language of the Federal CCR regulations.
Commenters state that the permits issued by ADEM impose requirements
that are less protective than the Federal CCR regulations with respect
to groundwater monitoring, corrective action, and closure. Commenters
state that, for example, ADEM has issued multiple permits allowing CCR
in closed units to remain saturated by groundwater, without requiring
any engineering measures to control the groundwater flowing into and
out of the closed unit. Thus, according to the comments, ADEM is
allowing multiple regulated facilities to violate one of the most
critical requirements of the Federal CCR regulations.
Response: EPA agrees that the Alabama CCR program is not as
protective as the Federal CCR regulations and the Agency is taking
final action to deny approval of the State program. EPA agrees that its
approach to evaluating State CCR programs should be similar in similar
circumstances, and so it intends to consider proposed and final State
CCR permits when determining whether to approve all State CCR permit
programs as it has in evaluating the Alabama program.
Comment: Commenter states that its members rely on good quality
water in the Black Warrior River for drinking, fishing, swimming,
hunting, and boating. The commenter agrees with EPA's preliminary
determination that the State's application for and implementation of
its own CCR program is significantly less stringent than the Federal
minimum standard requirements and does not meet the standard for
approval under RCRA. Commenter states that CCR has been mismanaged by
Alabama Power Company for roughly 100 years and improperly regulated by
ADEM for nearly 40 years, allowing toxic contamination of groundwater,
streams and rivers at Plant Gorgas, Plant Miller, and Plant Greene
County (all located within the Black Warrior River watershed).
Commenter supports denial of Alabama's CCR permit program and hope it
forces Alabama Power to properly dispose of its toxic CCR waste away
from water resources. Commenter states proper disposal of CCR is
critical to the health and success of future generations of humans and
wildlife that depend on the river. Commenter maintains that across the
Southeast, States like Virginia, North Carolina, and South Carolina
have required utilities to clean up CCR contamination, with over 250
million tons of hazardous CCR being excavated from unlined pits near
waterways. These materials are either recycled or disposed of in
modern, lined landfills away from rivers. Commenter states that even
Alabama Power's sister company, Georgia Power, has recycled or properly
disposed of over 65 million tons of ash. Commenter states EPA's
decision makes clear that Alabama can no longer be the outlier and must
implement similar safeguards. Commenter states the following problems
exist with ADEM's permits: (1) The Draft Permits and Closure Plans, as
written, do not require the Ash Pond facilities to come into compliance
with Federal and State CCR regulations; (2) The Draft Permits and
Closure Plans allow the continued location of the Ash Ponds in areas
where they cannot be permitted by law; (3) The Draft Permits and
Closure Plans should require and include more information about the
extent of contamination from the Ash Ponds; (4) The Draft Permits and
Closure Plans do not consider contamination that has migrated offsite,
or the remediation of that contamination; (5) The Draft Permits and
Closure Plans do not consider the long-term maintenance of artificial
caps; (6) The Draft Permits and Closure Plans do not consider
responsibility for the facilities after the 30-year post closure care
period; (7) The Draft Permits and Closure Plans lack key modeling
information; (8) ADEM unnecessarily grants the Company variances from
including boron as an Appendix IV Monitoring parameter; (9) Neither
ADEM nor the Company provide any information about alternative closure
methods; therefore, the public is limited in its knowledge about
closure techniques that would be more protective of human health and
the environment; and (10) Alabama Power's closure plans approved under
ADEM's regulatory program allow CCR to remain in groundwater, in
violation of the Federal CCR regulations.
The commenter states that the list is representative, but not
exhaustive of all the deficiencies with the permits ultimately issued
by ADEM. Because ADEM's application does not meet the standards
established under RCRA and because the permits issued under ADEM's non-
approved CCR program are also deficient, the commenters believe that
EPA has made the correct decision to deny the ADEM's Application to
manage the State's CCR program.
Response: EPA agrees that Alabama's permits are not as protective
as the Federal CCR regulations and EPA is taking final action to deny
approval of the program. The remainder of the comment addresses issues
that are outside the scope of the Final Decision and no response is
required.
3. EPA Should Defer to State's Interpretation of the Federal CCR
Regulations
Comments: Several comments state that the 2017 Guidance Document
and the information required for the Oklahoma, Georgia, and Texas
permit programs applications do not require States to provide EPA with
issued permits or proposed permits if the State begins to implement the
State permit program prior to EPA approval. Commenters maintain that
State agencies should be allowed reasonable latitude to interpret
regulations, particularly where EPA guidance has not been issued.
Commenters recommend that EPA review all State permit programs with the
same criteria and in accordance with the Interim Final Guidance, RCRA
4005, and WIIN Act section 2301.
Commenters disagree that Alabama's interpretation of the Federal
CCR regulations is flawed. Commenters argue that because the Federal
regulations are self-implementing in all but three States (Oklahoma,
Georgia, and Texas) that
[[Page 48786]]
EPA should leave interpretation up to the regulated community and the
States who have received State CCR permit program approval from EPA.
Commenters state that EPA has no plans to provide implementation
guidance through rulemaking but will instead provide guidance to States
seeking permit program approval. Commenters maintain that EPA has not
provided formal comprehensive written guidance on implementation to
States or the regulated community.
Commenters maintain it is unreasonable and unrealistic for EPA to
direct States to EPA's Part A determinations for guidance on the
correct interpretation of the plain language of the Federal
regulations. Commenters argue it is not reasonable for EPA to provide a
comprehensive interpretation of Federal regulations by comparing one
facility's final Part A determination in one State to another
facility's proposed Part A decision (that includes different hydrologic
and geologic conditions) in a different State. Commenters argue that
States should not be forced to look at EPA decisions in other States to
determine how to implement Federal regulations within their own State.
Commenters argue that States do not have the resources to review
several proposed and one final Part A decisions (and Part B decisions)
to evaluate how EPA may interpret Federal CCR regulations in their own
State.
Commenters argue that the requirements of the Federal CCR
regulations are subject to interpretation and the plain language of the
Federal CCR regulations can reasonably be interpreted in more than one
way as the interpretation often depends on site-specific circumstances.
Commenters state that in March 2022, comments regarding proposed Part A
determinations noted that the proposed decisions seek to clarify
several interpretive issues involving the closure of unlined CCR
surface impoundments. Commenters argue that the clarifications are a
significant shift in policy from long standing regulations, guidance,
and interpretations of closure requirements including those pertaining
to the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA) remedial actions, RCRA subtitle C closure actions, RCRA
subtitle D closure actions for sanitary landfills and open dumps, and
more recently for RCRA subtitle D CCR unit closures. Commenters urged
EPA to employ a more formal approach (i.e., rulemaking, policy memo,
guidance document) to establish such interpretations if EPA finalizes
these determinations and thus makes a substantial shift in the
interpretation and policies for closure requirements for CCR or other
units. Commenters argue that absent formal comprehensive written
guidance, State agencies should be allowed latitude to interpret the
regulations.
Response: EPA does not agree with the comments suggesting EPA
should defer to the varying interpretations of the Federal CCR
regulations of the 50 States and the regulated community until EPA has
revised the Guidance Document or revised the CCR regulations. EPA is
aware of no authority that supports--or requires--such an approach and
the comments do not provide any. Further, such an approach would lead
to inconsistent interpretations of the regulations and, as the Agency
is seeing here, interpretations that are leading to State permits that
are not as protective as the Federal CCR regulations.
EPA also disagrees that directing States to the Part A and Part B
determinations is in any way inappropriate or unreasonable. At the same
time EPA was reviewing Alabama's and other States' CCR permit program
applications, EPA was reviewing requests for Part A extensions of the
deadline to cease receipt of waste to unlined surface impoundments and
Part B submissions for alternate liner demonstrations. When conducting
those reviews, the Agency was required to review facility compliance
with the Federal CCR regulations as part of the decision-making
process. What EPA found during the Part A and Part B reviews was
significant noncompliance with the requirements of the Federal CCR
regulations, particularly noncompliance with the closure requirements
for unlined surface impoundments, the groundwater monitoring network
requirements, and the corrective action requirements.\20\ As explained
in the Proposed Denial, the proposed Part A determinations and comments
on those determinations brought to light the extent to which some
States and members of the regulated community were not interpreting the
regulations correctly, particularly with respect to the closure
requirements for unlined surface impoundments. 88 FR 55229. EPA
thereafter informed States and facilities with unlined surface
impoundments of the Agency's concerns and directed them to the Part A
determinations for the guidance on implementing the rules. The proposed
and final Part A decisions were internally consistent and available to
States to explain EPA's concerns with CCR permits, and all States with
unlined surface impoundments then had detailed descriptions of EPA's
concerns.
---------------------------------------------------------------------------
\20\ This web page contains links to Part A decisions that EPA
proposed in 2022 and 2023. It also links to the Gavin final
decision: CCR Part A Implementation: <a href="https://www.epa.gov/coalash/coal-combustion-residuals-ccr-part-implementation">https://www.epa.gov/coalash/coal-combustion-residuals-ccr-part-implementation</a>.
---------------------------------------------------------------------------
EPA further disagrees that the litigation on the Agency's
interpretation of the closure requirements means the Agency must
approve or defer decisions on State programs that the Agency believes
are less protective than the Federal CCR regulations. As noted above,
EPA disagrees with the comments against EPA's interpretation of the
closure requirements and those issues are being litigated. In this
case, EPA is simply applying its consistent position on the matter. The
fact that that a similar dispute over the meaning of EPA's regulations
is occuring in an unrelated action is no reason for EPA to refuse to
apply this position or to act inconsistently with its stated position.
Further, no commenter has explained how it would be reasonable to for
EPA to approve a State program that the Agency concludes does not in
fact require each CCR unit to comply with standards at least as
protective as Federal CCR regulations. EPA has not identified a
rationale either. Furthermore, as noted above, EPA also proposed to
deny approval of Alabama's program due to deficiencies in the
groundwater monitoring networks and corrective action requirements and
a general pattern of inadequate review and documentation of CCR permit
applications. 88 FR 55230. Thus, even if EPA did not consider the
closure issues, the Agency would still be unable to conclude that
Alabama's CCR program requires each CCR unit to achieve at least the
minimum level of protection.
EPA also disagrees that it is changing long standing regulations,
guidance, and interpretations of closure requirements, including those
pertaining to the CERCLA remedial actions, RCRA subtitle C closure
actions, RCRA subtitle D closure actions for sanitary landfills and
open dumps, and more recently for RCRA subtitle D CCR unit closures.
All of these arguments related to closure are addressed in the Gavin
Decision \21\ and the litigation on the closure standards, and EPA is
maintaining the interpretations set forth therein. Further, EPA
disagrees that it must or should wait to rely on the Agency's
interpretation of the closure requirements until the litigation is
[[Page 48787]]
resolved or wait to consider CCR permits as part of the state permit
program review until the Agency revises the Guidance or regulations.
EPA has identified a problem and it would not be reasonable to ignore
information relevant for determining whether a State CCR program is
sufficiently protective simply because the Guidance has not caught up
to the facts. Finally, as noted above, EPA has now revised the CCR
regulations to include new definitions that make clear Alabama's CCR
program is inconsistent with and less protective than the Federal
program with respect to closure of unlined surface impoundments.
---------------------------------------------------------------------------
\21\ Final Decision: Denial of Alternate Closure Deadline for
General James M. Gavin Plant, Cheshire, Ohio, EPA-HQ-OLEM-2021-0100
November 22, 2022.
---------------------------------------------------------------------------
4. EPA Should Consider CCR Permits in Its State Program Approval
Process
Comment: Commenter agrees with EPA's approach to considering State
CCR permits when reviewing State CCR permit programs and states that
Georgia is an instructive example of why it is important to take this
approach. Commenter states that Georgia had not issued State CCR
permits when EPA approved the State's CCR permitting program in January
2020, so the Agency did not have the benefit of knowing how the State
would administer its State regulations. Commenter states that since EPA
approval, Georgia issued a proposed permit in July 2021 for a CCR
impoundment at Georgia Power Company's Plant Hammond, which would
authorize closure with waste left in the impoundment and installing a
cap which would leave CCR deep in groundwater forever. Commenter states
that Georgia's disregard of the plain language of the Federal CCR
regulations led to EPA writing Georgia Environmental Protection
Division (EPD) concerning its permitting practices. Commenter states
that since that time, Georgia has not issued a final permit for Plant
Hammond,\22\ has not issued proposed permits for any other CCR
impoundment in Georgia, and, in effect, has stopped operating its CCR
program. Commenter States that the Georgia fiasco should not be
repeated. Commenter states that through this denial, EPA will avoid an
even worse outcome in Alabama, where ADEM has issued illegal final
permits. Commenter also states that by its action EPA will also
communicate to Georgia and other State agencies that a State CCR permit
program must actually follow the requirements of the Federal CCR
regulations.
---------------------------------------------------------------------------
\22\ EPA notes that Georgia EPD issued a final CCR permit on
November 13, 2023, for Plant Hammond's Ash Pond 3 (AP-3).
---------------------------------------------------------------------------
Response: EPA agrees that considering State CCR permits when
determining whether to approve a State CCR permit program application
is consistent with the statute and necessary to ensure no State program
is approved unless it requires each CCR unit in the State to comply
with the minimum level of protection (i.e., the Federal CCR
regulations). In part because EPA concludes that Alabama's permits are
not as protective as the Federal CCR regulations, EPA is taking final
action to deny approval of Alabama's CCR permit program. Comments
related to Georgia are outside the scope of this action and no response
is required.
5. EPA Should Not Consider CCR Permits in Its State Program Approval
Process
Comment: Commenters maintain that EPA relies on its recent,
disputed, and legally contested interpretations of the regulatory
closure performance standards, groundwater monitoring conditions, and
corrective action requirements in the Federal CCR regulations to
conclude that several ADEM-issued permits are inadequate because they
allegedly fail to achieve those requirements (as interpreted by EPA).
More specifically, commenters state that EPA faults ADEM for issuing
permits:
1. ``allowing CCR in closed units to remain saturated by
groundwater, without requiring engineering measures that will control
the groundwater flowing into and out of the closed unit;''
2. ``approv[ing] groundwater monitoring systems that contain an
inadequate number of wells, and in incorrect locations, to monitor all
potential contaminant pathways and to detect groundwater contamination
from the CCR units in the uppermost aquifer;'' and
3. ``allow[ing] the permittee to delay implementation of effective
measures to remediate groundwater contamination both on- and off-site
of the facility.''
Commenters assert that EPA's allegations of deficiency are
predicated on EPA's recent and disputed interpretations, none of which
have been formally promulgated through notice and comment rulemaking,
as well as its own unilateral technical review, without regard to the
role of--or certifications provided by--P.E.s. Commenters believe EPA's
allegations are improper and cannot lawfully be used as a basis for
denying ADEM's CCR permit program.
Commenters further argue that EPA acted improperly because it
reviewed available State issued and proposed permits. Commenter notes
that EPA stated ``unlike Georgia, Texas, and Oklahoma (currently the
only three States with EPA approval for State CCR permit programs),
Alabama had already begun implementing its State CCR Permit program and
issuing permits prior to its submittal of an Application for EPA
approval of the State's CCR permit program''. Commenters further note
that EPA stated ``to the extent the state implements its CCR
regulations prior to EPA's determination of state program adequacy, EPA
will also discuss that state's interpretation and implementation of its
program to ensure EPA fully understands the program and to determine
which of the two statutory standards EPA will use to evaluate the state
program. EPA took the same approach with Alabama as with other states
seeking approval.''
Commenters argue EPA is wrong to take this approach because the
2017 Guidance Document and the information required for the Oklahoma,
Georgia and Texas permit programs applications do not require States to
provide EPA with issued permits or proposed permits if the State begins
to implement the State permit program without EPA approval. Commenters
also argue this is the correct approach because State agencies should
be allowed reasonable latitude to interpret regulations; especially
where EPA guidance has not been issued. Commenters further recommend
that EPA review all State permit programs with the same criteria and in
accordance with the 2017 Guidance Document and RCRA section 4005(d).
Response: As stated above, EPA does not agree that it must approve
a State program where the Agency has determined State permits are less
protective than the Federal CCR regulations. Instead, in light of EPA's
review, it would be unreasonable to approve the State program since the
Agency has concluded that the State permits do not in fact require
compliance with at least the minimum level of protection required.
Further, in this case, Alabama would have to acknowledge EPA's concerns
and take steps to start revising flawed permits for EPA to approve the
State's CCR permit program.
Further, despite the commenters' assertion, not all of the bases
for the proposed and final denial are subject to litigation and, even
if they were, it would make sense for EPA to maintain consistent
positions across different actions. With respect to P.E. assessments,
EPA made clear in the 2015 Rule that it would not rely exclusively on
engineer certification to
[[Page 48788]]
ensure compliance with technical standards, but that other mechanisms
would also help to ensure compliance. 80 FR 21312, 21334-35. First, the
performance standards in the regulations are independent requirements
and are enforceable regardless of whether a P.E. certification was
obtained. The 2015 rulemaking preamble made this clear in response to
commenters concerned that the proposed regulations relied too heavily
upon the judgment of P.E. In the preamble, EPA explained that it
disagreed that the rules rely ``almost entirely'' on professional
engineers to protect human health and the environment. The final rule
relies on multiple mechanisms to ensure that the regulated community
properly implements requirements in this rule. As one part of this
multi-mechanism approach, owners or operators must obtain
certifications by qualified individuals verifying that the technical
provisions of the rule have been properly applied and met. However, a
more significant component is the performance standards that the rules
lay out. These standards impose specific technical requirements. The
certifications required by the rule supplement these technical
requirements, and while they are important, they are not the sole
mechanism ensuring regulatory compliance. Id. at 80 FR 21335.
In addition, information the P.E. uses to assess compliance is
required to be publicly posted on a website specifically to allow for
interested parties to evaluate the accuracy of the P.E. certifications.
80 FR 21339. EPA did not have enforcement authority in 2015, and the
statute instead left enforcement to States and citizens. See 42 U.S.C.
6972(a)(1)(A). 80 FR 21309. To facilitate such enforcement, the 2015
rule required engineer certifications and other underlying compliance
data to be posted to the internet, as this would allow states and the
public to evaluate the accuracy of the certifications in assessing
whether to sue. Id. at 21335. If EPA intended P.E. certification to
effectively serve as a shield, there would be no reason to require
posting on a publicly accessible website of the majority of compliance
data that underly the certifications. EPA confirmed this in the
preamble to the 2015 regulations, stating that making this information
available to other parties (e.g., state agencies and citizens) was
another mechanism to ensure technical performance standards established
in the regulations would be achieved. ``EPA has developed a number of
provisions designed to facilitate citizens to enforce the rule pursuant
to RCRA section 7002. Chief among these is the requirement to publicly
post monitoring data, along with critical documentation of facility
operations, so that the public will have access to the information to
monitor activities at CCR disposal facilities.'' Id. In sum, the
certifications do not act as prohibitions on state or citizen
enforcement, and they certainly do not bar EPA from using its WIIN Act
authority to enforce standards in the regulations. Thus, despite
commenters' assertions, a P.E. certification does not demonstrate or
assure actual compliance with the Federal CCR regulations (or any
rule), nor does it deprive EPA of its ability to conduct an independent
assessment or to reach a contrary conclusion from a P.E. In this case,
comments have not provided sufficient evidence to rebut EPA's
conclusions in favor of the conclusions reached by the P.E.'s hired by
the relevant facilities as part of the State permitting processes.
As stated above, EPA does not agree that its approach with respect
to Oklahoma, Georgia, and Texas prevent EPA from now considering
proposed and final permits that are available for review at the time
the Agency is evaluating a State program. EPA was not aware of the
potential widespread issues with implementation of the Federal CCR
regulations when approving those State programs, and it was not until
the Agency reviewed the Part A applications and received comments on
the Part A Proposed Denials that the Agency realized the extent of the
problems. Since that time, EPA has proactively engaged States and
facilities to ensure compliance with the Federal CCR regulations. In
any event, EPA considered Oklahoma's permits as part of the review
approval process, and EPA is currently engaged with both Georgia and
Texas as they issue State CCR permits.
EPA also disagrees that the Agency should defer to potentially many
different State interpretations of the Federal CCR regulations.
6. EPA Must Approve Alabama's CCR Permit Program Because Alabama's
Regulations Mirror the Federal CCR Regulations
Comments: Commenters argue that ADEM's permit program meets
statutory requirements because it mirrors the Federal CCR regulations
and it is consistent with EPA's 2017 Guidance Document, so EPA must
approve without looking to implementation of the regulations.
Commenters maintain that ADEM complied with the WIIN Act because the
State provided ``evidence of a permit program or other system of prior
approval and conditions under State law'' for CCR units and showed that
the State program is ``at least as protective as'' the Federal CCR
regulations. Commenters state that EPA reviewed ADEM's authority, State
public participation procedures, technical criteria, and other relevant
factors in the Proposed Denial and the Agency found that ``these
aspects of the Alabama CCR permit program provide the State with the
necessary authority to implement an adequate State program.''
Commenters also state that EPA does not question ADEM's resources to
administer the program.
Commenters note that EPA did not stop its review with the State's
CCR permit program regulations, as it should according to comments, and
EPA instead based its disapproval of ADEM's program on the Agency's
review of Alabama CCR permits and on recent statements of
interpretation which were not subject to proper notice and comment
rulemaking and are currently being challenged in the U.S. Court of
Appeals for the D.C. Circuit. Commenters conclude that EPA should
approve because, according to the commenters, ADEM has implemented
regulations that are identical in text and substance to those of EPA as
to the standards at issue; ADEM's provisions for public participation
are satisfactory to EPA; there is no risk to human health or the
environment; and ADEM has demonstrated that it has the appropriate
resources and expertise to implement the CCR program, backed by decades
of implementation of parallel RCRA programs.
Commenters state that the WIIN Act requires EPA to approve a State
CCR permit program application no later than 180 days after submission
if the Agency ``determines that the program or other system requires
each coal combustion residuals unit located in the State to achieve
compliance with the applicable criteria for coal combustion residuals
units under part 257 of title 40, Code of Federal Regulations . . . or
such other State criteria that the Administrator, after consultation
with the State, determines to be at least as protective'' as the
Federal CCR regulations. Thus, according to commenters, the plain text
of Alabama's regulations requires CCR units in the State to comply with
all of the substantive Federal CCR regulations requirements, including
those related to closure, corrective action, and groundwater
monitoring, and EPA has determined that ADEM's standards are
[[Page 48789]]
at least as protective as the Federal CCR regulations. Commenters state
that because ADEM's application fulfills the requirements of 42 U.S.C.
6945(d) to require compliance with the Federal CCR regulations criteria
or State-specific criteria that are at least as protective as the
Federal CCR regulations, EPA must approve the application and the
Agency should not consider information beyond the four corners of the
application when evaluating a State CCR permit program application,
particularly when the new positions at issue were put forth without
proper notice and comment and are subject to litigation as discussed
below.
Commenters argue that the WIIN Act provides a separate mechanism
for EPA to review an approved State permit program and address alleged
deficiencies with implementation of the approved State program.
According to commenters, the WIIN Act directs EPA to provide a notice
of deficiencies and an opportunity for a public hearing if ``the State
has not implemented an adequate permit program'' or if ``the State has,
at any time, approved or failed to revoke a permit for a coal
combustion residuals unit, a release from which adversely affects or is
likely to adversely affect the soil, groundwater, or surface water of
another State.'' Based on this language, commenters assert EPA must
approve an application first before addressing any alleged issues with
implementation.
Commenters also state that RCRA subtitle D ``envisions that states
are primarily responsible for regulating disposal of nonhazardous
wastes in landfills and dumps.'' Commenters further assert that EPA's
principal role under subtitle D ``is to announce Federal guidelines for
state management of nonhazardous wastes. . . .'' Thus, according to
commenters, States have the primary role to interpret and implement
waste regulations and EPA should not attempt to supplant the
cooperative federalism approach that is enshrined in RCRA by requiring
strict compliance with the Agency's flawed positions as a prerequisite
for approving a State program.
Commenters note that in August 2017, EPA issued the Guidance
Document for States with information and procedures on how to develop
and submit their State CCR permit programs to EPA for approval. The
guidance includes frequently asked questions about the WIIN Act and the
process for States to seek approval, as well as detailed checklists for
State program submittals. Commenters further state that ADEM initially
submitted its application for State permit program approval to EPA over
five years ago on July 12, 2018. Commenters state that ADEM submitted
revised applications on February 26, 2021, and December 29, 2021.
Commenters state that ADEM's latest application (i.e., its ``evidence
of a permit program'') contains all of the information and followed all
of the procedures outlined by EPA in its interim final guidance, and,
after review of the State's submission, EPA confirmed that ``the
express terms of ADEM's CCR permit program . . . include[ ] all
regulatory provisions required for approval'' and ``provide the State
with sufficient authority to require compliance with the Federal
requirements or equivalent State requirements.''
Commenters further state that EPA changed its approach and took a
sharp turn and began describing its evaluation of Alabama's program
against criteria not only outside of EPA's statutory directive but also
beyond any regulatory authority of the Agency. Commenters state this
approach is troubling for many reasons and that the proper standard for
comparison exists in 40 CFR part 257. Commenters further state that
Alabama has easily satisfied both criteria, and its program should be
approved expeditiously. Commenters assert that EPA has appropriately
determined that Alabama's approach to CCR permit applications and
approvals is adequate. See, 88 FR 55229, August 14, 2023. Commenters
also assert that EPA found that the Alabama CCR program will provide
robust implementation and enforcement of the State's CCR requirements
and afford adequate opportunity for citizen intervention in civil
enforcement proceedings. 88 FR 55229; see also Docket ID EPA-HQ-OLEM-
2022-0903-0133, Proposed Denial TSD Volume III. Commenters state that
the Alabama CCR program constitutes a well-developed permit program
that, as required by the WIIN Act, ``provide[s] evidence of a permit
program or other system of prior approval and conditions under State
law for regulation by the State of coal combustion residuals units that
are located in the State.'' 42 U.S.C. 6945(d)(1)(A). Commenters
maintain that Alabama's CCR permit program will provide more than
adequate opportunities for public participation in the permitting
process. Commenters state that to the extent there are any differences,
``the differences do not on their face substantively make the State
regulations less protective than the Federal CCR regulations.'' Id.
Commenters maintain that the State's CCR regulations contain all the
technical elements of the Federal CCR regulations, including
requirements for location restrictions, design and operating criteria,
groundwater monitoring and corrective action, closure requirements,
post-closure care, recordkeeping, notification and publicly accessible
website posting requirements. EPA TSD Volume III at 6-9; 88 FR 55228.
For these reasons, commenters state that EPA should approve Alabama's
CCR permit program, such that it will apply in lieu of the Federal
regulations.
Commenters point to the program review and withdrawal provisions of
RCRA 4005(d) and state that the key takeaways from this portion of the
statute are that: (1) In the event the State were to fail to cure
program implementation deficiencies identified during EPA's periodic
review of the State program, or if the State were to fail to deliver on
its commitment to update its approved program at such time as the
Federal requirements change, EPA has the authority and responsibility
to withdraw the State's program approval, after appropriate notice and
opportunity for a public hearing; and (2) Once a program withdrawal
occurs, the State has the opportunity to have its program approval
restored upon correction of the offending program deficiencies.
Commenters maintain that the review and withdrawal provisions support a
conclusion that EPA may not consider implementation and State CCR
permits when evaluating a State CCR permit program.
Response: EPA agrees that Alabama's State CCR regulations in large
part mirror the Federal CCR regulations and that, for this reason, the
State's regulations provide Alabama with sufficient authority to
implement a CCR program that meets the standard for approval under
section 4005(d)(1)(B). But EPA disagrees that copying the Federal CCR
regulations alone is sufficient to require EPA to approve a State
program when the Agency has concluded that the program, as implemented
through State permits, is in practice, not as protective as the Federal
CCR regulations. As noted above, section 4005(d)(1)(B) of RCRA requires
EPA to conclude that a State program ``requires each CCR unit . . . to
achieve compliance'' with at least the minimum level of protection
(i.e., the Federal CCR regulations or equivalent State standards)
before approving the program, not, as the commenters contend, to simply
require compliance with those standards. Congress was thus clear that a
requirement to comply is insufficient; this is why EPA evaluates not
only the CCR specific requirements but also the State's general
authority to
[[Page 48790]]
issue permits and impose conditions in those permits, as well as the
State's authority for compliance monitoring and enforcement, and
whether the State has the resources to implement and enforce the
program. Consequently, the RCRA section 4005(d)(1)(B) standard is not
met where, whatever the State regulations may say, the permits issued
to implement those regulations authorize actions that are inconsistent
with the plain language of the Federal CCR regulations. This is because
Congress specified that what matters is what the State program actually
requires the permittee to achieve; and, for example, a permit that
simply recites the regulations while simultaneously approving a clearly
deficient closure or groundwater monitoring plan cannot plausibly be
argued to require the facility to achieve compliance with those
regulations. And where, as here, the Agency has concluded the State
program is not as protective, EPA does not have a basis to approve the
program under the statute.
At the same time, however, none of the comments appear to question
EPA's authority to withdraw a State CCR program if, after approval, the
Agency determines that a State is not implementing its CCR permit
program in a manner that ensures permits require at least the minimum
level of protection. See RCRA section 4005(d)(1)(D). The withdrawal
provisions of the statute presume that EPA disagrees with how a State
is implementing its CCR permit program (e.g., EPA believes the state
permits are inadequate) when EPA takes action to withdraw a State CCR
program, and the statute gives EPA the authority to review all State
CCR permit programs, including those that mirror the Federal CCR
regulations. Notwithstanding, the comments appear to suggest that EPA
cannot question implementation of a State program that adopts the
Federal CCR rule terms because States are allowed to interpret the
regulations differently than EPA. Taken to its logical conclusion,
there would be separate standards for withdrawal based on whether the
program was approved under RCRA 4005(d)(1)(B)(i) or (ii), and EPA would
be essentially precluded from withdrawing approval of a State program
if approval was based on RCRA 4005(d)(1)(B)(i). The commenters'
interpretation would read a limitation on State withdrawal that has no
basis in the statute. EPA declines to read such a limitation into the
statute or adopt a position that requires the Agency to ignore
information (e.g., final State permits) that is clearly relevant to the
finding that EPA must make when determining whether a State program in
fact meets the statutory requirements. Finally, EPA does not see any
benefit to a system where EPA must first approve a deficient program to
only then be forced to expend further resources on withdrawing that
same program for the same deficiencies.
In addition, comments do not address all the technical issues with
the Alabama CCR permits that EPA identified in the Proposed Denial. For
example, the comments do not demonstrate EPA's interpretations of the
requirements for groundwater monitoring systems and corrective action
are novel or a change in the standards, and many of the issues
identified in the Proposed Denial were either not addressed or
insufficiently addressed in the comments. Without some response to the
issues, EPA cannot conclude that the permits in fact require each CCR
unit to achieve the minimum level of protection. As EPA explained in
the proposal, because the permits issued by Alabama appear to interpret
the Federal CCR regulations differently than EPA, Alabama is
essentially submitting ``other State criteria,'' and consistent with
RCRA 4005(d)(1)(B)(ii), in order for EPA to approve such a program,
Alabama must provide the information to support a determination that
the State criteria are ``at least as protective as the [Federal CCR
regulations].'' Further, none of the comments address the general
concern that Alabama is not exercising sufficient review and oversight
of the program, and, conversely, the fact that information beyond what
is in the permit record is necessary to explain why the permits are
sufficient demonstrates that ADEM's permit program implementation is
insufficient. See Comment Response above.
EPA also disagrees that the Agency is prohibited from considering
State permits in the program review process because the Guidance
Document does not contemplate review of permits. The Guidance Document
does not, and indeed cannot, prevent EPA from considering information
that falls squarely within the ordinary meaning of what the statute
expressly directs EPA to consider, even if that information is not
described therein when such an instance arises. In this instance, the
reason the Guidance Document does not address the issue is because, as
noted above, EPA was not aware of the widespread problems with State
CCR permits until the Agency reviewed the Part A requests for
extensions and received the comments from States and industry on the
Proposed Denials of Part A requests in 2021, three years after issuance
of the Guidance Document. EPA also did not anticipate that a State
might demonstratively contend that EPA should adopt a fundamentally
different interpretation of the CCR regulations than what EPA intended
in writing them. In addition, as noted above, EPA has since raised the
issue of permits with every State requesting approval of a State CCR
permit program and with the three States that have approved State
programs.
Finally, EPA disagrees that it is attempting to supplant the
cooperative federalism approach enshrined in RCRA. Even under the more
limited authority conferred on the Agency prior to the WIIN Act, EPA's
subtitle D criteria established minimum national standards with which
facilities were required to comply, irrespective of state law. The
Federal criteria are intended to establish a consistent minimum
national floor; if States could simply reinterpret those criteria to
establish different requirements (e.g., a different floor specific to
the state), this would defeat the purpose. Moreover, the commenter has
misunderstood both the intent and effect of the WIIN Act. Congress
deliberately expanded EPA's role under the existing subtitle in 2016
when it granted EPA the authority to enforce the Federal criteria,
issue permits in non-participating states, and to establish the minimum
national standards that are both applicable directly to facilities and
used to evaluate state programs.
7. Lack of a Federal Permit Program To Serve as Comparative Basis
Comment: Commenters state that in the Proposed Denial, EPA
specifies that section 2301 of the WIIN Act amended section 4005 of
RCRA, creates a new subsection (d) that establishes a Federal CCR
permitting program similar to permit programs under RCRA subtitle C and
other environmental statutes. Commenters further state that the WIIN
Act only establishes a Federal permit program; it does not specify it
be under RCRA subtitle C. Commenters note that on April 17, 2015, EPA
published the first Federal CCR regulations regulating CCR as a
subtitle D solid waste. Commenters conclude that section 2301 of the
WIIN Act and section 4005 of RCRA do not specify the establishment of a
Federal CCR permitting program similar to permit programs under RCRA
subtitle C. Commenters state that Chapter 2 Item 1 of the 2017 Guidance
Document states that EPA is using 40 CFR part 239, which are the
requirements for determining adequacy of State subtitle D permit
programs, as a guide for what a State submission
[[Page 48791]]
should include. Commenters argue that this is the reason States are
drafting CCR State permit programs that are in line with their EPA
approved subtitle D permit programs.
Commenters recommend EPA approve State permit programs that permit
and interpret the Federal regulations in line with RCRA subtitle D
solid waste programs since EPA promulgated national CCR standards under
RCRA subtitle D and not RCRA subtitle C.
Commenters argue that the lack of a Federal permitting program is a
key weakness in EPA's Proposed Denial. Commenters maintain that EPA has
no Federal permit program for States to compare to the State programs
and that EPA does not have any practical experience developing and
issuing CCR permits. Commenters appear to believe that EPA cannot
evaluate permits until the Agency has established a Federal CCR permit
program and started issuing permits under the program.
Commenters note that the Proposed Denial contends that once a
permit is issued, the permit serves as a ``shield'' to the regulations
and at that point the facility is only responsible for compliance with
the permit and the Federal regulations are no longer the governing
rules (88 FR 55223, August 14, 2023). Commenters state that these
assertions by EPA are incorrect. Commenters note that EPA has no CCR
permitting program. Commenters question how the Federal CCR regulations
requires a facility to achieve compliance without a Federal permit
program. Commenters also state that because ADEM regulations are
equivalent to the Federal rules, inclusion of ADEM regulations in ADEM-
issued permits is equivalent to inclusion of Federal rules in the
permit. Commenters state that, for this reason, if EPA considers the
current Federal rules sufficient to require facilities to ``achieve
compliance'', then the ADEM-issued permits that refer to these rules
must also meet the same standard. Commenters argue that EPA is
attempting to hold ADEM to a higher standard than EPA itself is
required to achieve and seeks to punish ADEM for having a permitting
program when EPA does not. Commenters conclude that, at best, it seems
premature to move directly to program denial until EPA has, through the
traditional, long-standing regulatory development and approval process,
promulgated a set of Federal permitting standards.
Response: EPA disagrees that it is holding ADEM to a higher
standard than EPA itself is required to achieve. The statute imposes
the same standard on EPA permits that it imposes on State permit
programs. See 42 U.S.C. 6945(d)(2)(B) (``Administrator shall implement
a permit program to require each coal combustion residuals unit located
in the nonparticipating State to achieve compliance with applicable
criteria established by the Administrator under part 257 . . .'')
(emphasis added). EPA has interpreted this provision to require a
Federal CCR permit to include specific provisions to ensure that the
permittee achieves compliance with the Federal CCR regulations, rather
than merely reiterating the regulations. See, 85 FR 9964-9965
(describing examples of permit conditions).
Commenters are also incorrect to the extent they suggest the
Federal CCR regulations cannot be enforced because EPA has yet to take
final action on the Federal CCR permit program regulations. The Federal
CCR regulations are directly enforceable against facilities until they
receive a permit from an approved State or pursuant to a Federal permit
program. For this reason, if EPA approved Alabama's CCR permit program,
the Federal CCR regulations would no longer apply to the final CCR
permits that EPA believes are insufficiently protective, and facilities
would have a permit shield for their flawed permits. Absent approval
and the attendant permit shields, EPA can proceed with actions at any
time to require the facilities to come into compliance with the Federal
CCR regulations. Indeed, EPA is currently pursuing a number of
enforcement actions. Further, the comments imply that Alabama's CCR
permits simply recite the applicable regulations, but, in fact, the
permits not only cite the applicable regulations but also specify the
actions required to be taken to comply with the provisions. In this
case, many of the actions being required in the permits are not
sufficient to meet the requirements of the Federal CCR regulations.
EPA also disagrees with comments stating the Agency must approve
Alabama's program because the regulations are identical. Because the
State's interpretation of EPA's regulations is different from the
Agency's (as demonstrated by the permits it has issued), Alabama is in
fact operating a different program than EPA, even if the terms of the
regulations are the same. Under the statute, the State must explain how
its alternative standards are as protective and ADEM has refused to
provide an explanation. RCRA 4005(d)(1)(B)(ii).
The fact that EPA's permitting regulations have not yet been
promulgated is irrelevant to the fact that permits issued by ADEM allow
CCR units in the State to comply with alternative requirements that are
less protective than the requirements in the Federal CCR regulations
with respect to groundwater monitoring, corrective action, and closure.
Even absent a Federal CCR permit program, the Federal CCR requirements
apply directly to facilities until the facility obtains a permit from
an authorized State or EPA after it promulgates the Federal CCR permit
program.
For example, as discussed in the Proposed Denial, ADEM has issued
multiple permits allowing CCR in closed units to remain saturated by
groundwater, without requiring adequate, or in some cases any,
engineering measures to control the groundwater flowing into and out of
the closed unit. ADEM has also approved groundwater monitoring systems
that contain an inadequate number of wells, and in incorrect locations,
to detect groundwater contamination from the CCR units. Finally, ADEM
has issued multiple permits that effectively allow the permittee to
delay implementation of effective measures to remediate groundwater
contamination both on- and off-site of the facility. Overall, EPA's
review of the permit records demonstrates a consistent pattern of
deficiencies in the permits and a lack of oversight and independent
evaluation of facilities' proposed permit terms on the part of ADEM.
EPA further disagrees with the comments stating that EPA must
approve State programs consistent with the way State programs are
approved under RCRA subtitle D for non-CCR units, and that EPA is
approving State CCR permit programs under RCRA subtitle C. In fact, EPA
is not evaluating State CCR permit programs the same as the approach
for evaluating other State permit programs under either subtitle D for
non-CCR units or subtitle C for hazardous waste units, and instead the
Agency is evaluating State CCR permit programs based on RCRA section
4005(d), which is a unique State program approval provision that is
different from the other State program approval provisions in RCRA
subtitle C and D. In addition, EPA's advice in the Guidance Document to
look at the process for approval of State programs under RCRA subtitle
D when developing the regulations and procedures for a State CCR
program was not an indication that those regulations apply or that the
standard for approval of non-CCR RCRA State programs applies to
approval of State CCR permit programs. Instead, EPA must comply with
RCRA section 4005(d) when
[[Page 48792]]
evaluating State CCR permit programs and the commenters do not explain
how EPA could ignore that provision and apply a different RCRA State
program approval process.
8. Comments in Support of EPA's Interpretation of the Closure Standards
for Unlined Surface Impoundments
Comment: Commenters state that the governing standards for closure
in place, monitoring, and corrective action are set out clearly in the
Federal CCR regulations, and EPA consistently has applied the plain
language of the Federal CCR regulations as it has in the Proposed
Denial. Commenters state that Alabama has adopted regulations that
mimic the language of the Federal CCR regulations, but as EPA points
out, ADEM has disregarded the plain language of the regulations and
instead has allowed utilities in Alabama to leave CCR in old, unlined,
leaking riverfront pits saturated in water, below the water table and
even below sea level. Commenters state that EPA has clearly applied the
straightforward requirements of the Federal CCR regulations in its
Gavin decision and has replied to all the arguments made by ADEM,
Alabama Power, and Alabama Power's trade associations in its responses
to comments on the proposed Gavin decision. Commenters state that EPA
has also applied those standards in issuing a Notice of Potential
Violations to the Alabama Power Company (Alabama Power) for its
violations of the Federal CCR regulations at Plant Barry near Mobile.
Commenter notes that, in the Proposed Denial, EPA applied the plain
language of the Federal CCR regulations and the WIIN Act and followed
the same course it has followed repeatedly in the past.
Commenters note that Duke Energy, one of the largest energy
companies in the country, also recognizes and understands the plain
language of the Federal CCR regulations. Commenters state that Duke
Energy has set out that the 2015 CCR Rule's closure performance
standards prohibit closure-in-place where groundwater is in actual or
likely contact with the CCR unless effective engineering measures can
be installed to control, minimize, or eliminate such conditions.
Commenters further assert that contrary to the closure and storage
practices ADEM has repeatedly permitted, the utility industry's
research arm, the Electric Power Research Institute, long ago informed
its members that capping an unlined CCR impoundment in place is
inappropriate where the ash remains in contact with groundwater: ``Caps
are not effective when [coal ash] is filled below the water table,
because groundwater flowing through the [coal ash] will generate
leachate even in the absence of vertical infiltration through the [coal
ash].'' Commenters state that the legal standards are clear, and EPA
has fully explained them in the Proposed Denial, the Notice of
Potential Violations sent to Alabama Power, the Gavin decision, the
Agency's response to Gavin comments, and elsewhere.
Commenters state that the Federal CCR regulations plainly states
that if a CCR impoundment is to be capped in place, ``[f]ree liquids
must be eliminated,'' the utility must ``[p]reclude the probability of
future impoundment of water, sediment, or slurry,'' and the utility
must ``[c]ontrol, 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 the ground or
surface waters or to the atmosphere.'' 40 CFR 257.102(d)(2)(i) and
(d)(1)(ii) and (i). Yet, as EPA sets out in its Proposed Denial and its
Notice of Potential Violation (NOPV) for Plant Barry, ADEM has allowed
utilities to cap in place unlined leaking CCR impoundments across
Alabama, in violation of all these provisions. Commenter argues that
ADEM seeks to justify approval of its Application despite its pervasive
violations of the Federal CCR regulations by pointing out that its
State CCR regulations copy the relevant language of the Federal CCR
regulations. Commenters assert that ADEM asks EPA to put on blinders,
to read just the bare language of ADEM's regulation, and to ignore what
ADEM is doing in practice across the State to allow CCR impoundments to
fall far short of the Federal standards. Commenters state that ADEM's
argument asks EPA to allow Alabama to nullify the Federal CCR
regulations and the WIIN Act and to violate the requirements and
purpose of the WIIN Act. Commenters argue that the WIIN Act requires
much more than EPA merely reviewing a State application to see if the
language of the State regulations matches the language of the Federal
CCR regulations, and, instead, the WIIN Act requires EPA to determine
that ``the program or other system [of the State] requires each coal
combustion residuals unit located in the State to achieve compliance
with'' either the criteria set out in the Federal CCR regulations or
other State criteria that EPA determines to be as protective as the
criteria of the Federal CCR regulations. 42 U.S.C. 6945(d)(1)(B).
Commenters maintain that EPA is not directed to perform a word check of
the State regulations but rather to determine whether the State's
program or other system actually requires all the CCR units in the
State to achieve compliance with the Federal CCR regulations or other
criteria that are as protective. Commenters maintain that ADEM's
program miserably fails to achieve that compliance and that ADEM's
argument, if adopted, would make compliance with the WIIN Act and the
protective standards of the Federal CCR regulations a farce. Commenters
believe a State agency like ADEM, which has acted contrary to the plain
language of the Federal CCR regulations and refuses to address EPA's
concerns with its program, would be able to disregard entirely the
standards designed to protect the public, communities, and clean water
and allow CCR to be stored permanently in unlined pits sitting deep in
groundwater beside major waterways--despite the plain language of the
Federal CCR regulations and State regulations to the contrary if
Alabama's State CCR permit program were approved. Commenter states
further that EPA maintains that approval would not only violate the
plain language of the WIIN Act, it would also eliminate the protections
the Federal CCR regulations provides for all people and all waters in
the United States, including all Alabamians and the waters in Alabama.
Commenters also state that Alabama is an outlier and that in the
Southeast, over 250 million tons of CCR are being cleaned up.
Commenters note that by contrast, every unlined CCR impoundment in
South Carolina is being excavated; every unlined CCR impoundment in
North Carolina is being excavated; all of Dominion's unlined CCR
lagoons in Virginia are being excavated; notwithstanding Georgia EPD's
failure to implement the CCR regulations, Georgia Power has committed
to excavate about two-thirds of its CCR from unlined impoundments in
Georgia; and to date the TVA has been required to excavate CCR
impoundments at its Gallatin plant near Nashville and its Allen plant
in Memphis. Commenters maintain that every unlined CCR impoundment in
the coastal region of these Southeastern States is being excavated--but
not in Alabama. Commenters state that only Alabama is allowing every
utility in the State--regardless of where the CCR impoundment is
located and even though all the impoundments have ash sitting deep in
groundwater--to leave all their millions of tons of CCR in unlined,
leaking impoundments beside the State's waterways.
Commenters further allege that all eight of the final CCR permits
ADEM
[[Page 48793]]
has issued violate the Federal CCR regulations. Commenters note that
EPA focused on four Alabama CCR Permits that were issued to
impoundments that are being closed with waste in place below the water
table in the Proposed Denial: TVA's Plant Colbert and Alabama Power's
Plants Gadsden, Gorgas, and Greene County. Commenters state that while
EPA concentrated on these permits, the four additional CCR permits
issued by ADEM--for Alabama Power's Plants Barry, Gaston, and Miller
and PowerSouth Energy Cooperative's Plant Lowman--share similar
fundamental flaws and further demonstrate that Alabama's permit program
fails to meet the statutory standard for approval. Commenter states
that the permits for Plants Barry, Gaston, Miller, and Lowman also
``allow[] CCR in closed units to remain saturated by groundwater,
without requiring engineering measures that will control the
groundwater flowing into and out of the closed unit.'' 88 FR 55220,
55230 (August 14, 2023).
Commenters state that there are additional instances where ADEM has
allowed noncompliance with the Federal CCR regulations and that these
additional flaws further support EPA's denial of ADEM's permitting
program. Commenters state that ADEM adopted the location restrictions,
including a requirement that by October 17, 2018, that utilities make a
demonstration that their CCR impoundments are not located in wetlands.
40 CFR 257.61(a), (c). Commenters state that ADEM CCR regulations
contain the same requirement. Alabama Administrative Code r. 335-13-
15.03(2). Commenters state that Alabama Power posted its wetlands
demonstration for Plant Barry for both the Federal and State CCR
regulations on its CCR website and that its demonstration states that
the Plant Barry CCR impoundment is a wastewater treatment facility and
that wastewater treatment facilities are excluded from the definition
of wetlands. According to commenters, based on these conclusions,
Alabama Power states that the Plant Barry CCR impoundment is not in
wetlands. Commenters state that this approach makes a mockery of the
wetlands location demonstration because many, and perhaps all, CCR
impoundments have been permitted under the Clean Water Act as
wastewater treatment facilities. Commenters state that the approach
Alabama Power takes under both the Federal and Alabama CCR regulations
would result in all permitted CCR impoundments satisfying the wetlands
location restriction--even though they are in wetlands, within the
floodplain, and built on top of a stream, as is true with the Plant
Barry CCR impoundment. Commenters state that the standard is whether
the impoundment is ``in'' wetlands, not whether the impoundment ``is''
a wetland, but that ADEM has allowed Alabama Power to get away with
this nonsensical response to the wetlands location restriction. A
review of Alabama Power's website demonstrates that it has filed such
meaningless and evasive wetlands location demonstrations for all its
CCR facilities. Commenters state that this approach to wetlands
requirements has not been taken in other jurisdictions. For example,
Duke Energy reported that its CCR impoundment at its H.F. Lee facility
in North Carolina did not meet the location restriction because of
leakage into surrounding wetlands. Duke Energy reached the same
conclusion for its West Ash Basin at its Roxboro facility also in North
Carolina.
Response: EPA agrees with the comments that the Agency's
application of the closure requirements in Sec. 257.102(d) to the
unlined surface impoundments at issue is reasonable and reflects the
plain meaning of the regulations. The Agency also agrees that it is
appropriate to consider State CCR permits when evaluating whether to
approve a State CCR permit program. EPA also agrees that allowing
unlined impoundments to comply with only the standards in Sec.
257.102(d)(3) relating to the cover system is not as protective as the
Federal CCR regulations. As the commenters note, this conclusion is
consistent with a technical report from the Electric Power Research
Institute (EPRI) that was included in attachments to the comment. The
report says, ``Capping is usually performed to prevent or reduce
infiltration of water into CCPs, which subsequently reduces the volume
of leachate generated. Caps can be installed on both legacy and
recently filled CCP sites. Depending on climatic conditions, designs
can range from barrier caps utilizing low permeability materials such
as PVC, to evapotranspirative caps that utilize soil sequencing and
vegetation to promote runoff and evaporation of water. Caps are not
effective when CCP is filled below the water table, because groundwater
flowing through the CCP will generate leachate even in the absence of
vertical infiltration through the CCP.'' \23\
---------------------------------------------------------------------------
\23\ Groundwater Remediation of Inorganic Constituents at Coal
Combustion Product Management Sites, EPRI Technical Report (2006),
SELC Comment Attachment 11 at p. 3-6. Docket Number EPA-HQ-OLEM-
2022-0903-0260.
---------------------------------------------------------------------------
EPA also agrees that the Agency's review of the Alabama CCR permits
was not exhaustive--EPA did not attempt to identify every potential
inconsistency with the Federal requirements, either in the permits
reviewed in the Proposed Denial or in other permits that were not
reviewed by EPA. EPA stated in the Proposed Denial that it was not
conducting a comprehensive review because the purpose of the
evaluations of the permits was not to evaluate compliance by the
regulated facilities, but instead to determine whether the facilities'
permits require facilities to comply, regardless of actual compliance
by the facilities (stated differently, it is theoretically possible
that the facilities reviewed in the Proposed Denial are in compliance
with the Federal CCR regulations even though their permits by the terms
do not require compliance).
The remainder of the comment address issues outside the scope of
this action and no response is required.
9. Comments in Support of EPA's Evaluation of CCR Permits Issued by
ADEM
Comment: Commenter states that the Black Warrior river watershed
flows through one of the most biodiverse regions in the country and
provides a source of drinking water for dozens of communities across
north-central Alabama; the river drains parts of 17 Alabama counties
and the area the river drains, its watershed, covers 6,276 square miles
in Alabama and measures roughly 300 miles from top to bottom; the
watershed is home to over 1 million residents and contains 16,145 miles
of mapped streams; thousands of people use the river and its
tributaries for fishing, swimming, hunting, and watersports,
contributing to Alabama's $14 billion outdoor recreation economy; and
the river supports numerous freshwater species, including some that
occur in the Black Warrior basin and nowhere else in the world.
Commenter states that despite the river's importance to the State,
Alabama Power plans to keep three unlined, leaking CCR pits along the
river: Plant Gorgas (Mulberry Fork, Walker County), Plant Miller
(Locust Fork, Jefferson County), and Plant Greene County (lower Black
Warrior River). Commenter states that these three pits contain a total
of about 55 million cubic yards of CCR, or an estimated 55 million tons
(110 billion pounds, or 10 times the amount released in the Kingston
disaster). Commenter states that Alabama Power's federally mandated
groundwater monitoring
[[Page 48794]]
indicates that groundwater around the pits contains unsafe levels of
toxic contaminants such as arsenic, cobalt, lithium, and molybdenum.
Commenter states that but for the mandated monitoring and reporting
requirements of the Federal CCR regulations, Alabama residents would
have no idea of the extent of this contamination or the risk it
presents to their communities.
Commenter states that Plant Greene County Ash Pond was constructed
between 1960 and 1965, and the ash pond currently occupies
approximately 489 acres on the banks of the Black Warrior River near
Forkland, Alabama. Commenter states that, according to United States
Geological Survey (USGS) topographic maps, the unlined ash pond was
built across Big Slough, and associated wetlands, which flows into
Backbone Creek, a tributary of the Black Warrior River. Commenter
states Alabama Power stopped burning coal at Plant Greene County in
March 2016 after converting all of its electric production to natural
gas, meaning that the plant is no longer generating new CCR. Commenter
states that at the last inspection, the ash pond was determined to be
filled to its capacity, containing 10,300,000 cubic yards (yd\3\) of
CCR.
Commenter states that EPA's environmental justice mapping and
screening tool shows Plant Greene County has three environmental
justice indexes above the 80th percentile. Commenter states that these
indexes measure the environmental burden upon the surrounding
community; the higher the index score, the greater the burden on the
local community. Plant Greene County's score for wastewater discharge
concerns is 90.4. Commenter states that the Plant Greene County pond
was constructed over 5 decades ago and the pond does not meet the
specifications required under current regulations for the proper
disposal of CCR. Commenter states that the ash pond was constructed
without any currently acceptable form of bottom liner, leaving the CCR
and its toxic constituents to leach into groundwater, the average level
of which is less than 5 feet below the pond.
Commenter states that a stream named Big Slough was essentially cut
in half by the construction of Plant Greene County, its CCR pond, and
its barge canal in the mid-1960s. Commenter states that the Big Slough
and surrounding wetlands throughout the middle of this large river bend
were buried beneath and contaminated by toxic CCR. Big Slough continues
to flow from the west side of the CCR pond to the southwest into
Backbone Creek, which flows into the Black Warrior downriver. Commenter
states that the CCR pond is surrounded by a large earthen dike that
contains over fifty years-worth of toxic CCR waste, now estimated to be
10.3 million tons. Commenter states that capping CCR in place at Plant
Greene County will not erase the very real connection that exists
between Alabama Power's toxic CCR, Big Slough buried underneath it, the
wetlands and floodplain it was constructed in, and the groundwater it
sits in. All of this water is dynamic, flowing and moving constantly,
creating an ongoing pathway for continued contamination of groundwater
throughout the area, local streams, wetlands, and the lower Black
Warrior River.
Commenter states that the deficiencies in the construction of the
ash pond at Plant Greene County have damaged the groundwater below and
around the pond. Commenter states that Alabama Power's own testing
demonstrates that the groundwater is contaminated with arsenic, cobalt,
and lithium concentrations that exceed levels deemed safe by EPA.
Commenter states that arsenic levels in the groundwater at Plant Greene
County have been measured at levels up to 7.5 times greater than the
action level determined by EPA. Commenter states that every semi-annual
groundwater sampling event at Plant Greene County since Alabama Power
began testing has shown levels of pollutants that exceed GWPS.
Commenter states that without the effective removal of the CCR waste,
the contamination of ground and surface water at Plant Greene County
will continue for decades.
Commenter states that the CCR pond at Plant Miller was originally
constructed in the late 1970s, and the primary dike impounding the CCR
disposal facility stands at 170 feet tall and 3,300 feet long, or about
0.625 miles, creating an unlined pond that occupies approximately 321
acres and is located near Quinton, Alabama. Commenter states that
Alabama Power built the Plant Miller Ash Pond on the bank of the Locust
Fork of the Black Warrior River and it was constructed to contain a
maximum of 22,000,000 cubic yards of CCR. Commenter states that the
pond now holds more than 18,500,000 cubic yards, and discharges
wastewater at a rate of approximately 11.5 million gallons per day
(MGD). Commenter states that the CCR disposal facility at Plant Miller
was constructed prior to modern regulations and does not meet current
regulatory safety requirements. The commenter states that the pond does
not have a bottom liner to prevent toxic CCR leachate from
contaminating the underlying water table, which is located less than 5
vertical feet from the base of the bottom of the pond. Commenter states
that two unnamed tributaries (UTs) to the Locust Fork of the Black
Warrior River were partially buried when Alabama Power constructed its
CCR pond at Plant Miller in the late 1970s. Commenter states that the
West UT's three headwater streams were buried beneath the toxic CCR
waste repository and the South UT's headwater reaches were also buried.
Essentially, the upper half of each stream's watershed was buried by
Alabama Power's CCR. Commenter states that both streams were filled
with large dams made of clay, soil, and rock fill, and the dam is
approximately 170 ft. tall at its highest point, and over 3,300 ft.
long. The commenter states that the dam connects to a large earthen
dike that flanks the southwest side of the ash pond and that the dike
holds back the ponded water along the entire western side of the ash
pond and all of the 18.5 million tons of toxic ash deposited there
since the 1970s, which looms over the remaining lower reaches of the
UTs and the Locust Fork below. Commenter states that capping CCR in
place at Plant Miller will not erase the very real connection that
exists between Alabama Power's toxic CCR, the two streams buried
underneath it, and the groundwater it is sitting in. All of this water
is flowing and moving constantly, creating an ongoing pathway for
continued contamination of groundwater throughout the area, local
streams, and the Locust Fork. Commenter states that these fundamental
deficiencies in the facility construction have led to significant
contamination of groundwater in the area surrounding the pond.
Commenter states that groundwater monitoring at Plant Miller
demonstrates contamination but the full extent of which is still
unknown.
Commenter states that Alabama Power's Plant Gorgas is located in
Walker County, Alabama, near the town of Parrish, where Baker Creek
flows into the Mulberry Fork of the Black Warrior River. Commenter
states that after more than 100 years of generating electricity by
burning coal, Plant Gorgas was decommissioned on April 15, 2019.
Commenter states that Alabama Power disposed of CCR in several
different areas around the facility and that the largest of these ash
dumps, the primary CCR pond known locally as Rattlesnake Lake, has
received the bulk of the electric plant's CCR waste over the last 60+
years. Commenter states that the
[[Page 48795]]
facility's gypsum pond, which has only been in operation for about 14
years, also receives some CCR residue mixed with spent gypsum from the
plant's air pollution emissions scrubbers, and Alabama Power has used
three onsite landfill structures for additional CCR disposal, one each
for bottom ash, fly ash, and gypsum. Commenter states that the primary
CCR disposal facility for the waste created at Plant Gorgas
(Rattlesnake Lake) is a 420-acre impoundment on the opposite bank of
the Mulberry Fork from the electric generating facility. Commenter
states that it was constructed in 1953 as a cross-valley dam blocking
Rattlesnake Creek. Currently, the dam stands at about 140 feet above
the elevation of the river below. Commenter states that as of a May 1,
2018, inspection, Rattlesnake Lake contained approximately 25 million
cubic yards of CCR, according to documents published on the power
company's website. Commenter states that the Rattlesnake Lake was
constructed without the minimum 5-foot buffer between the base of the
CCR unit and the uppermost limit of the uppermost, underlying aquifer
and it was also constructed without any bottom liner to prevent
contamination of the underlying aquifer. Commenter states that
Rattlesnake Lake does not meet current State and Federal regulations
and that it must be safely and permanently closed without ash sitting
in groundwater, just like the ash ponds at Plants Miller and Greene
County.
Rattlesnake Creek was dammed by Alabama Power in the early 1950s to
form Rattlesnake Lake for CCR waste storage. The majority of the creek
and its tributaries are impounded as a result. Only the tail end of the
creek remains below the dam before it flows into the Mulberry Fork.
This part of the creek is a slough due to being part of the Mulberry
Fork's reservoir effect caused by Bankhead Dam far downstream on the
Black Warrior River.
Commenter states that Alabama Power elected cap-in-place as its
preferred method for closing the ash pond at Plant Gorgas. However,
Alabama Power announced plans do not seem to take into account the
inherent difficulty in removing the water from a continuously flowing
creek that drains a watershed of over 1,300 acres. Commenter states
that the plans do not address exactly how the left-over CCR will be
separated from the natural course of Rattlesnake Creek. Instead,
according to commenter, the plans simply state the CCR will be
consolidated to an area somewhat smaller than its current footprint and
covered with a low-permeability liner. Commenter states that Alabama
Power has not indicated any form of protective bottom liner will be
employed to prevent future contamination of groundwater. Commenter
states that Alabama Power's monitoring has detected contamination of
arsenic, lithium and molybdenum in the underlying aquifer.
Commenter states that capping CCR in place at Plant Gorgas'
Rattlesnake Lake will not erase the very real connection between
Alabama Power's toxic CCR, the creek buried underneath it, and the
groundwater it is sitting in. Commenter states that all of this water
is flowing and moving constantly, creating an ongoing pathway for
continued contamination of groundwater throughout the area, local
streams, Rattlesnake Creek, and the Mulberry Fork. Commenter states
that a flowing creek, fed by groundwater and springs, cannot be
dewatered. Commenter maintains that no matter what Alabama Power
endeavors to do at Rattlesnake Lake, leaving toxic CCR in place there
will cause continued intermingling of ash waste with the creek and
groundwater for future generations to deal with.
Commenter maintains that using cap-in-place in these circumstances,
as allowed by the closure plans approved under ADEM's deficient
regulatory program, also fails to address the threat of a potential
catastrophic dam failure or release of ash at all three facilities on
the Black Warrior River. Commenter states that over 55 million cubic
yards of CCR are stored along the banks of the Black Warrior River at
the facilities and that improper maintenance or the possibility of
extreme weather events or natural disasters damaging the dike and/or
dam systems could result in breaches or failures that could release
massive quantities of toxic CCR into the river. Commenter states that
the Federal CCR regulations require a risk assessment evaluation at CCR
ponds (40 CFR 257.73), and the ash ponds at Plant Greene County and
Plant Miller were classified as a Significant Hazard, meaning that dam
failure or improper operation of the facility would likely result in
significant economic loss or environmental damage. Commenter states
that the dam at Plant Gorgas was assessed as a High Hazard Potential,
meaning that in addition to economic loss and environmental damage, dam
failure would also likely result in the loss of human life. Commenter
states that the inundation maps provided by Alabama Power (available to
EPA) depict the areas that could be flooded with CCR and contaminated
water under current conditions at the ponds in the event of such a
catastrophe. Commenter states that the inundation maps demonstrate that
failure at any one of the three facilities would be devastating to the
river and the surrounding communities.
Commenter states that even after final pond closure, the remaining
ash will continue to be located in close proximity to the underlying
aquifers and will likely intermingle with the groundwater table at
times. Commenter states that Alabama Power's Assessment of Corrective
Measures (ACM) filed with ADEM for all three facilities propose to
address the groundwater contamination primarily with a process known as
monitored natural attenuation (MNA). Commenter states that the selected
remedy of MNA here means that the Company will continue to monitor
groundwater while allowing natural chemical and physical processes in
the subsurface environment to remove, dilute, or immobilize the
contaminants. Commenter states this means that Alabama Power will do
little to treat the groundwater contamination on site or in the
surrounding environment, other than adopt a wait-and-see attitude with
possible (not guaranteed) future actions. Commenter states that the
ACMs contemplate several other potentially viable corrective measures,
but the Company has not committed to employing these measures,
asserting that one or more of these technologies may be used as
adaptive site management as a supplement to the selected remedy, if
necessary.
Commenter states that EPA guidance (2015) \24\ recommends a four-
tiered approach should be used to establish whether MNA can be
successfully implemented at a given site. Commenter states that the
first step is to demonstrate that the extent of groundwater impacts is
stable, and that the Company has failed to do at all three facilities.
Commenter states that, second, Alabama Power should determine the
mechanisms and rates of attenuation, and that the Company has failed to
do that. Third, Alabama Power should determine if the capacity of the
aquifers is sufficient to attenuate the mass of constituents in
groundwater and that the immobilized constituents are stable. Id. The
fourth and final step is for Alabama Power to design performance
monitoring programs based on the mechanisms of attenuation and
establish contingency remedies (tailored
[[Page 48796]]
to site-specific conditions) should MNA not perform adequately.
Commenter states that Alabama Power failed to take these steps.
---------------------------------------------------------------------------
\24\ U.S. EPA. Use of Monitored Natural Attenuation for
Inorganic Contaminants in Groundwater at Superfund Sites. Office of
Solid Waste and Emergency Response (OSWER). August 2015.
---------------------------------------------------------------------------
Commenter states that Alabama Power has yet to demonstrate how MNA
will work, evaluate whether it is a feasible remedy based upon site
specific conditions at all three facilities or even analyze whether the
aquifer has sufficient capacity to absorb all the toxic CCR pollution.
Commenter states that even without these assurances, the ACMs note that
the process of MNA could take two decades or more after final closure
to allow contaminants to bleed out of the source and move through the
groundwater into the environment so that the groundwater monitoring
will begin to measure levels that meet GWPS, meaning that it may be
2045 or later before the CCR contaminants have moved out of the
measured groundwater sites into the surrounding environment, even
generously assuming MNA could even work here.
Commenter states that EPA's Proposed Denial correctly points out
multiple additional deficiencies with the Company's selection of MNA as
a proposed remedy at all three facilities, with ADEM's permitting of
the ash pond closure at all three facilities with deficient ACMs, with
ADEM's oversight of the selection of remedial measures, with Alabama
Power's implementation of groundwater monitoring and ADEM's oversight
of groundwater monitoring. The commenter agrees with the Agency's
assessment on each of these points.
Commenter supports EPA's Proposed Denial of Alabama's CCR
regulatory program 100%. Commenter states that but for Federal
oversight of CCR pollution, Alabama's citizens would have absolutely no
data about the danger that CCR pollution presents to public health and
the environment. Commenter states there was no meaningful groundwater
monitoring performed at Alabama CCR sites and no public data about the
migration of dangerous CCR contaminants into adjacent ground and
surface waters until the Federal CCR regulations required it.
Commenter states that Alabama rushed to submit its own CCR
regulatory program, a program that EPA has correctly found fails to
meet Federal standards. Commenter states that it is important to
realize that Alabama submitted its regulatory program not to protect
people and special places from CCR pollution but to protect Alabama
Power. Commenter states that they filed technical comments every step
of the way during Alabama's development and implementation of its
flawed CCR program. Commenter states that the State failed to follow
the data, the science, and the law to develop a protective regulatory
scheme that would require Alabama Power to clean up the CCR pollution
that the power company's own sampling shows is contaminating Alabama's
groundwater, rivers, and streams. Commenter made many of the same
arguments that EPA made in support of its meticulously supported
Proposed Denial.
Commenters state that despite the irrefutable evidence that leaving
CCR in primitive unlined pits does not stop water pollution or mitigate
risks of spills during extreme weather events, ADEM chose to stubbornly
persist with its dangerous and deficient regulatory program. Commenter
states that Alabama's program unlawfully allows CCR to remain saturated
by groundwater after closure; fails to require appropriate groundwater
monitoring; and permits Alabama Power to delay indefinitely the
implementation of measures to remediate documented groundwater
pollution. Commenter states that without EPA's Proposed Denial of
Alabama's CCR program, the State's residents and special places would
be at the mercy of a substandard regulatory system that ignores the
documented dangers of CCR. According to commenter, Alabama Power
forecasts rate increases that will be implemented if the power company
is forced to comply with the rule, increases that will hit hardest in
Alabama's poor communities. Commenter maintains that Alabama Power has
earned more than $1 billion in profits from 2014-2018 compared to the
industry average, and that for over a decade, Alabama's residential
electricity bills have been in the top three highest in the nation
while Alabama Power banked higher profits than comparable electric
utilities in other southern States. Commenter states that Alabama Power
earned a 38% higher profit margin than sister company Georgia Power,
and that the people in Georgia have electric bills averaging $134.11
per month, people in Mississippi average $135.31, and Alabamians
averaged $147.75 in 2021, according to the most recent available data
from the U.S. Energy Information Administration, up from $143.95 in
2020. Commenter states that Alabama Power's return on average equity
(ROE) for 2018 to 2020 was 12.76 percent. Commenter states that in
comparison, Florida Power & Light earned 11.39%, Mississippi Power
11.11%, Duke Energy Carolinas 9.37%, Georgia Power 9.24% and Louisville
Gas & Electric 8.67%. Commenter asserts that if Alabama Power's ROE had
instead been the average for the industry, Alabama Power customers
would have saved $1.02 billion since 2014. Commenter states that if
Alabama Power puts its record profits toward cleaning up CCR to comply
with the 2015 CCR Rule, it can limit the impact of rate increases on
its poorest customers.
Commenter also states that Alabama Power insists that it will have
to implement a logistically challenging trucking scheme to dispose of
its CCR in remote landfills, but that this argument is another red
herring. Commenter states that power companies in Virginia, North
Carolina, South Carolina, Tennessee, and Georgia have built upland
lined landfills to properly dispose of their CCR. Alabama Power, as one
of the largest landowners in the State, will surely do the same to
limit the costs of cleaning up CCR. Alabama Power has constructed and
operated other landfills and there is no reason to expect it will not
do the same here. For all of the reasons cited in this letter, as well
as all of the reasons stated in EPA's proposed rule, commenter believes
that the Agency has taken the appropriate action in proposing to deny
the State of Alabama's application for a State CCR permit program.
Response: EPA agrees that closure with waste in place in the
groundwater without taking measures to ensure that liquid does not
enter the units or that free liquids and contaminants do not migrate
out of the unit after closure is inconsistent with the Federal CCR
regulations. EPA also agrees that permits allowing such closure are not
as protective as the Federal CCR regulations require and that such
units pose a potential ongoing hazard to human health and the
environment. EPA also agrees that Alabama's CCR permits do not
adequately implement corrective action.
10. Comments Opposed to EPA's Application of the Closure Performance
Standards
Comment: Commenters state that EPA's current ``no waste below the
water table'' interpretation is based on three terms: infiltration,
future impoundment, and free liquids. Commenters state that just as the
word ``groundwater'' does not appear in the close-in-place regulations,
none of these three terms appears in EPA's groundwater regulations, nor
does any of the text around them refer to groundwater. Commenters state
that these terms have meanings that easily harmonize with the purposes
and goals
[[Page 48797]]
of facility closure, which are primarily to achieve a stable and secure
base and to install a protective cover.
Commenters state that a protective cover that is designed and
installed to EPA's specifications repels stormwater to prevent it from
infiltrating downward into the waste, where it could become a source of
leachate. Commenters note that this is not to say that some other
source of water (such as laterally flowing groundwater) cannot also
generate leachate, nor does ``infiltrate'' as a general vocabulary word
always refer to movement in a single direction. Rather, commenters
state that for over more than 40 years of usage under RCRA, in the
context of closing a waste facility in place, EPA has consistently used
the word ``infiltration'' to describe the potential for stormwater to
penetrate downward into the waste.
Commenters also discuss future impoundments and contend that ash is
dewatered and stabilized to ensure the closed unit maintains a slope,
so rainwater runs off. Commenters state that if not adequately pre-
stabilized, ash could settle over time and create a bowl or indentation
on top of the cap where rainwater could pond. Commenters note that the
longer impounded water stands on top of the ash, the greater the
possibility that the cap could fail and water could infiltrate
downward. Commenters assert that the obligation to prevent future
impoundment refers to the need to ensure the cap is adequately
supported and settlement of this nature does not occur.
With reference to free liquids, commenters assert that the
regulations require the free liquids that must be removed are the
relatively free-flowing liquids which otherwise could contribute to
instability and affect the cap. Commenters state that there has never
been an obligation to remove all liquids, nor is it true as a principle
of engineering that CCR or other waste must achieve a moisture content
of zero before it can be sufficiently stabilized. Commenters maintain
that stability is determined by engineers who investigate and perform
calculations according to well understood principles and procedures,
taking into account liquids that may be present and any other relevant
factors.
Commenters state that the terminology in the close-in-place
performance standard reflects concepts and functions that naturally
harmonize with the goals of facility closure. Commenters state that
there is no need to search for a groundwater-related purpose where none
is named, because a different division of EPA's regulations addresses
groundwater quality issues.
Commenters note that EPA has stated recently that it has
consistently held its current position on waste below the water table
since 1982, and it cites documents dating back to then that refer to
the need to address groundwater. Commenters do not dispute the
requirement to protect groundwater, but commenters maintain that, if
EPA had held a consistent position on this point since 1982, that means
EPA also must have had a relatively complete understanding of both the
closure and corrective action processes at that time. Commenters state
that, otherwise, EPA could not have determined which elements were
required for closure versus corrective action (or both) or identified a
specific engineering response as mandatory in a particular scenario
(such as waste below the water table). Commenters maintain that was not
the case in 1982. Commenter states that, for example, in 1998, EPA
described the history of hazardous waste regulations as follows:
The closure process in Parts 264 and 265 was promulgated in
1982, before the Agency had much experience with closure of RCRA
units. Since that time, EPA has learned that, when a unit has
released hazardous waste or constituents into surrounding soils and
groundwater, closure is not simply a matter of capping the unit, or
removing the waste, but instead may require a significant
undertaking to clean up contaminated soil and groundwater. The
procedures established in the closure regulations were not designed
to address the complexity and variety of issues involved in
remediation. Most remediation processes, on the other hand, were
designed to allow site-specific remedy selection, because of the
complexity of and variation among sites.
Commenters assert that this passage emphasizes the need for
remediation to address groundwater impacts, an unremarkable and
undisputed proposition. In terms of understanding the respective
purposes of closure and corrective action, the commenters contend that
the statement is contrary to the notion that EPA's views on the
selection of measures for remediation, whether at the time of closure
or otherwise, had already crystallized in 1982. Commenters state that
rather, according to the agency, EPA ``learned'' after then that it was
unwise if not impossible to mandate particular responses in advance or
from the top down without a ``site specific'' evaluation that accounted
for ``the complexity and variation among sites.''
Response: EPA does not agree with the commenter that the Agency has
incorrectly applied the Federal CCR regulations. Further, the comments
are substantively the same as comments submitted to EPA in response to
the proposed Part A decision for Gavin, and EPA responded to the
comment in the Response to Comments (RTC) for the final Part A decision
for Gavin. See e.g., Gavin RTC, pages 65 and 102. EPA adopts the
responses from Gavin for this final action. See also Gavin Final
Decision \25\ pages 24-41; 89 FR 38987-38995, 39077-39078.
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\25\ Final Decision: Denial of Alternate Closure Deadline for
General James M. Gavin Plant, Cheshire, Ohio, EPA-HQ-OLEM-2021-0100
November 22, 2022.
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Comment: Commenters assert that if EPA's interpretations are indeed
new--as is more likely the case--then it is clear that 2015 rules do
not require removal of CCR as a part of a closure-in-place closure, and
do not require the complete isolation of the CCR from all potential
sources of moisture in order to meet the performance standards required
as a part of the closure-in-place. Rather, these issues are addressed
as a part of the post-closure risk-based corrective action process, as
clearly contemplated in the 2015 rules.
Response: EPA disagrees that its interpretations of closure are new
and notes that EPA responded to comments that are substantively the
same in several instances, including in the RTC to the final Part A
decision for Gavin Final. See e.g., Gavin RTC pages 65 and 96. EPA
adopts the responses from Gavin in response to the comments. See also
Gavin Final Decision, pages 24-41.
Comment: Commenter ADEM states that it promulgated CCR regulations
in 2018 that reflect the same options for closure established by EPA.
Commenter states it has issued permits to Alabama Power approving the
Company's plans to close its ash ponds using the closure-in-place
method and Alabama Power has acted in accordance with those permits.
Commenter states that if closure-in-place is not available, the only
alternative is closure-by removal. Commenter states that as of the 3rd
quarter of 2023, Alabama Power estimates the costs of closure-in-place
to be $3.5B and that at the present time, closure-by-removal is
estimated to be three to five times more costly than closure-in-place.
Commenter states this is due to, for example, the associated cost of
excavation, transportation, and disposal in an offsite landfill
compared to the costs of closure-in-place.
Commenter states that not only are the costs associated with
closure-by-removal significantly higher and more burdensome to Alabama
citizens, but the timeframe to complete closure is also significantly
greater. Commenter states that Alabama Power has already completed
closure-in-place at one of its
[[Page 48798]]
plants, with the remainder projected to be completed by 2032 or
earlier. Commenter states that based on initial evaluations, closure-
by-removal can take anywhere from 16 years to 54 years, depending on
the plant site. Commenters state that in addition, the initial
evaluations assumed landfill sites within a reasonable proximity to
each plant would be readily available, but the commenter asserts this
has proven not to be the case, which may further extend the time
necessary to complete closure-by-removal.
Response: Comments do not provide support for the claimed costs of
closure by removal, which in any event, are not relevant under RCRA.
But, in any case, the differential cost of closure approaches does not
equate to a conclusion that EPA is improperly requiring all CCR surface
impoundments to close by removal. Nor does the cost of closure by
removal allow a facility to close a unit without concern for the
continued movement of liquid into and out of a unit closed with waste
in the water table. Instead, as EPA has repeatedly stated, whether any
particular unit can meet the closure in-place standards is a fact- and
site-specific determination that will depend on a number of
considerations, such as the hydrogeology of the site, the engineering
of the unit, and the kinds of engineering measures implemented at the
unit. Accordingly, the fact that, prior to closure, the base of a unit
intersects with groundwater does not mean that the unit may not
ultimately be able to meet the performance standards for closure with
waste in place. In other words, EPA is not mandating that a unit
submerged in groundwater prior to closure must necessarily close by
removal. Depending on the site conditions the facility may be able to
meet the performance standards in Sec. 257.102(d) by demonstrating
that a combination of engineering measures and site-specific
circumstances will ensure that, after closure of the unit has been
completed, the groundwater would no longer remain in contact with the
waste in the closed unit. See Gavin RTC page 103. See also Gavin Final
Decision pages 28-30.
Comment: Commenter states that EPA has approved closures with waste
below the water table. Commenter states that EPA's primary disagreement
with ADEM's implementation of the CCR program is the approval of
closures in place where waste (i.e., saturated ash) remains below the
water table. Commenter states that, under such circumstances, according
to EPA, the facility must either remove the waste below the water table
or execute certain as yet unspecified engineering measures. Commenter
also noted that EPA asserts that it has held the same view consistently
since the early 1980s as to waste at hazardous waste and municipal
solid waste facilities.
Commenter disagrees and states that, over a period of decades, EPA
has repeatedly approved the closure of sites with hazardous waste and
materials below the water table and found that such closures both
protected human health and the environment and complied with RCRA
subtitle C standards. Commenter states that EPA could not have approved
closures in this fashion if it had been impossible to protect human
health and the environment with waste below the water table or if a
closure in place under such circumstances violated RCRA closure
standards.
Commenter states that EPA approved these closures under the primary
authority of CERCLA, commonly referred to as the Superfund program.
Commenter states that section 121 of CERCLA imposes two important
statutory obligations. First, as under RCRA, EPA must ensure closures
protect human health and the environment. Second, ``[w]ith respect to
any hazardous substance, pollutant or contaminant that will remain
onsite,'' EPA must ensure that a CERCLA closure also complies with
``any standard, requirement, criteria, or limitation under any Federal
environmental law,'' explicitly including RCRA, that may impose a
``legally applicable or relevant and appropriate standard, requirement,
criteria, or limitation'' (which EPA references as ``ARAR''). Commenter
states that, thus, where EPA identified RCRA closure standards as ARARs
at a CERCLA site, EPA was under a statutory obligation to confirm
compliance with those standards, which applied the same terms and
concepts as those found in Sec. 257.102(d).
Commenter states that EPA's Superfund closures with waste below the
water table thus stand for two important propositions: first, if waste
remains below the water table, RCRA does not impose an absolute
requirement to close by removal or to implement any particular
engineering measures, nor does that circumstance necessarily preclude
protection of health or the environment; and second, even if those are
EPA's interpretations through these decisions, EPA repeatedly expressed
a contrary view in the past.
Commenter states that when EPA promulgated the CCR regulations in
2015, it was under an obligation to prepare a Regulatory Impact
Analysis (RIA) that included, among other things, an estimate of
compliance costs. Commenter states that the cost analysis prepared by
EPA ``assume[d] that all surface impoundments undergo closure as
landfills, meaning that surface impoundments are not excavated, nor is
their ash trucked off-site.'' Commenter states that EPA referred to the
cost of closure throughout the RIA as the ``capping and post-closure
monitoring costs,'' and EPA did not estimate the cost of excavation and
redisposal. Commenter states that EPA acknowledged in its Risk
Assessment for the final rule that some CCR impoundments ``come in
direct contact with the water table for at least part of the year.''
Commenter states that, if EPA knew some ash ponds had ash in contact
with groundwater and believed that its rule required closure by removal
(or some other special engineering response) in that scenario, then EPA
was required to include the costs of that response in the RIA.
Commenter states that the absence of consideration of costs of that
nature indicates that EPA did not believe closure in place was
necessarily prohibited or that measures beyond those currently planned
at Alabama facilities were required for units with ash below the water
table.
Response: EPA does not agree with the commenter's assertion that
all CERLA actions constitute a determination by EPA that a selected
remedy meets all requirements of RCRA, and therefore the existence of
Superfund cleanup decisions that allow waste to remain in place in
groundwater at certain sites means that RCRA generally allows closure
with waste remaining in groundwater. The quotations provided in the
comments are incomplete and strung together by words not found in the
statute (see section 121 of CERCLA). This inaccuracy, combined with the
lack of consideration of the specific facts and circumstances at the
Superfund sites with remedy documents referenced in Attachment 2 of the
comment,\26\ render the commenter's conclusions flawed.
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\26\ Comment submitted by Energy Institute of Alabama, Docket
ID: EPA-HQ-OLEM-2022-0903-0182.
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CERCLA is a risk-based cleanup program that does not require that
RCRA standards be met in all cases. CERCLA requires consideration of
costs in selecting remedies. Additionally, CERCLA cleanups can be
divided into portions (i.e., operable units) which approach cleanups
from multiple perspectives to address risks. This means that a remedy
selected for a landfill could leave waste in place, even if it had some
contact with groundwater,
[[Page 48799]]
but engineering controls that would be required by RCRA (e.g., to
prevent groundwater contact with waste) could be required in a remedy
selected for another operable unit (e.g., a contaminated groundwater
plume).
Attachment 2 referenced by the commenter does not provide any
information about the remedies selected in the Records of Decision
(RODs) listed. It does not indicate whether RCRA was considered an ARAR
in the RODs, whether the remedies selected in the listed RODs included
engineering controls to control, minimize or eliminate post-closure
infiltration of groundwater into the waste and releases of
contaminants, or whether there were other operable units with selected
remedies at these sites whose remedies may have required these
controls. In any case, the commenter's attempt to rely on a handful of
CERCLA RODs to demonstrate the proper interpretation of the
requirements in the CCR regulations is not reasonable.
Regarding the comment about the RIA, the conclusions in the risk
assessment and the RIA were based on the factual scenarios EPA believed
were most likely to occur. See Gavin RTC page 69. Simply put, at the
time the risk assessment and the RIA were developed, EPA had not been
made aware by any facility that a significant proportion of unlined CCR
surface impoundments were constructed in groundwater several feet deep.
No commenter during the 2015 rulemaking identified the prevalence of
such conditions, or even noted their existence. Thus, the RIA was based
on the best information EPA had at the time, and unfortunately, the
regulated community did not provide this information to EPA when
commenting on the 2015 rule. To now argue that underestimates in the
RIA should dictate how the regulation must be interpreted is
unreasonable, particularly because their interpretation would mean the
regulations fall short of the statutory mandate, as explained in
Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. 2018).
B. Comments on EPA's Technical Evaluation of Alabama CCR Permits
1. Comments Opposed to EPA's Evaluation of CCR Permits Issued by ADEM
Comment: Commenter TVA states that it is committed to meeting its
obligations associated with the Federal CCR regulations and ADEM's CCR
regulations at the Colbert Plant and in so doing continuing to protect
human health and the environment and the commenter disagrees with EPA's
observations and assumptions about ADEM's permit decisions as discussed
in Unit VI.
Commenter states that the Colbert Plant was retired in 2016 and
that closure of Ash Disposal Area 4 (also known as Ash Pond 4 (AP-4))
was completed in 2018 in accordance with the Federal CCR regulations
and State requirements. Commenter states that Ash Disposal Area 4 was
investigated pursuant to the requirements of the Federal CCR
regulations and the First Amended Consent Decree between ADEM and TVA.
Commenter maintains closure was based on site-specific data and that it
is protective of human health and the environment. Commenter notes that
there is more work ongoing to address the limited groundwater impacts
from Ash Disposal Area 4, but no remedy has been selected, or approved
by ADEM, at this time. Commenter states that ADEM has requested more
site-specific data and evaluations to support remedy selection.
Commenter states that once a remedy is selected and approved by ADEM,
TVA will implement that remedy and continue to monitor the unit as the
groundwater reaches and maintains GWPS. Commenter asserts that it will
adjust the remedy and unit, if needed, to maintain compliance with
performance standards with the oversight of ADEM.
Response: The commenter describes actions that must be taken beyond
the terms of the applicable CCR permit record in order for the facility
to be in compliance with the Federal CCR regulations. However, the fact
that necessary actions are not reflected in, or required by, the permit
supports EPA's conclusion that Alabama's CCR program is not as
protective as the Federal CCR regulations. Specifically, the commenter
provides information about actions TVA is taking to collect additional
site-specific data and select a remedy. However, this data collection
is not required in the final permit issued by ADEM, and the permit
provides no deadline for remedy selection. Thus, TVA can be in
compliance with its permit without collecting additional data and
taking an indefinite amount of time to select a remedy. While this
inaction would result in compliance with the permit, it would not
achieve compliance with the Federal regulations. See additional
discussion of this practice on pages 55241-55242 of the Proposed Denial
where EPA states, ``What the permittee is required to do in order to
achieve compliance with the regulations must be determined prior to
final permit issuance, because the permit must contain these
requirements.'' The Colbert permit is thus not as protective as the
Federal CCR regulations, regardless of any voluntary actions the
facility may be taking.
The facts demonstrate that the permit is not sufficiently
protective because Colbert has for several years collected data to
conduct an ongoing study without specific objectives, but that study
has still not yet r
[…truncated; see source link]Indexed from Federal Register on June 7, 2024.
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