Rule2024-25752
Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments; Correction
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
November 8, 2024
Effective
February 6, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or the Agency) is taking direct final action to correct three errors published in the Federal Register on May 8, 2024. This May 8, 2024 rule (Legacy Final Rule) established regulatory requirements for legacy coal combustion residuals (CCR) surface impoundments and CCR management units, among other things, under the Resource Conservation and Recovery Act (RCRA). This document makes clear that the effective date of the Legacy Final Rule is November 8, 2024 and corrects inadvertent deletions in the existing 2015 regulatory text.
Full Text
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<title>Federal Register, Volume 89 Issue 217 (Friday, November 8, 2024)</title>
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[Federal Register Volume 89, Number 217 (Friday, November 8, 2024)]
[Rules and Regulations]
[Pages 88650-88653]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25752]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 257
[EPA-HQ-OLEM-2020-0107; FRL-7814.1-02-OLEM]
RIN 2050-AH34
Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Legacy CCR Surface
Impoundments; Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule; correction.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
taking direct final action to correct three errors published in the
Federal Register on May 8, 2024. This May 8, 2024 rule (Legacy Final
Rule) established regulatory requirements for legacy coal combustion
residuals (CCR) surface impoundments and CCR management units, among
other things, under the Resource Conservation and Recovery Act (RCRA).
This document makes clear that the effective date of the Legacy Final
Rule is November 8, 2024 and corrects inadvertent deletions in the
existing 2015 regulatory text.
DATES: This rule is effective on February 6, 2025 without further
notice unless EPA receives adverse comment by December 9, 2024. If EPA
receives adverse comment, the Agency will publish a timely withdrawal
in the Federal Register informing the public about the specific
regulatory paragraph or amendment that will not take effect.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OLEM-2020-0107. All documents in the docket are listed on
the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website. Although listed in the index,
some information is not publicly available, e.g., CBI 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. Publicly
available docket materials are available electronically through <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Taylor Holt, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, Environmental Protection Agency, 1200 Pennsylvania Avenue NW,
MC: 5304T, Washington, DC 20460; telephone number: (202) 566-1439;
email address: <a href="/cdn-cgi/l/email-protection#ace4c3c0d882f8cdd5c0c3deecc9dccd82cbc3da"><span class="__cf_email__" data-cfemail="387057544c166c594154574a785d4859165f574e">[email protected]</span></a>, or Frank Behan, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, Environmental Protection Agency, 1200 Pennsylvania Avenue NW,
MC: 5304T, Washington, DC 20460; telephone number: (202) 566-0531;
email address: <a href="/cdn-cgi/l/email-protection#bdffd8d5dcd393fbcfdcd3d6fdd8cddc93dad2cb"><span class="__cf_email__" data-cfemail="0644636e676828407467686d4663766728616970">[email protected]</span></a>. For more information on this
rulemaking, please visit <a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>.
SUPPLEMENTARY INFORMATION:
I. Why is the EPA using a direct final rule?
EPA is publishing this rule without a prior proposed rule because
EPA views this as a noncontroversial action and anticipates no adverse
comment since the amendments merely correct errors in the Legacy Final
Rule. However, in the ``Proposed Rules'' section of this Federal
Register publication, EPA is publishing a separate document that will
serve as the proposed rule to adopt the provisions in this direct final
rule if adverse comments are received on this direct final rule. The
Agency will not institute a second comment period on this action. Any
parties interested in commenting must do so at this time. For further
information about commenting on this rule, see the ADDRESSES section of
the proposed rule document.
If EPA receives adverse comment, EPA will publish a timely
withdrawal in the Federal Register informing the public about the
specific regulatory paragraph(s) or amendment(s) that will not take
effect. The corrections that are not withdrawn will become effective on
the date set out above. EPA would address all public comments in any
subsequent final rule based on the comments and new information
submitted in response to the proposed rule.
In light of the narrow purpose of this rule to conform the
regulatory text to the final actions described in the Legacy Final
Rule, EPA is only soliciting comment on whether the changes in this
direct final rule conform the text to EPA's stated intent in the Legacy
Final Rule preamble. EPA is not reconsidering, proposing to reopen, or
otherwise soliciting comment on any provisions of the Legacy Final Rule
itself. For the reader's convenience, EPA has provided a background
description of individual provisions in the Legacy Final Rule in
several places throughout this preamble. These descriptions do not
reopen the underlying described provisions, but merely explain the
context to inform the public of the basis for this action's technical
corrections. EPA will not respond to comments submitted on any issues
other than those specifically identified in this action, and such
comments will not be considered part of the rulemaking record.
II. General Information
A. Does this action apply to me?
This rule may be of interest to electric utilities and independent
power producers that fall within the North American Industry
Classification System (NAICS) code 221112. The reference to NAICS code
221112 is not intended to be exhaustive, but rather provides a guide
for readers regarding entities likely to be regulated by this action.
This discussion lists the types of entities that EPA is now aware could
potentially be regulated by this action. Other types of entities not
described here could also be regulated. To determine whether your
entity is regulated by this action, you should carefully examine the
applicability criteria found in 40 CFR 257.50 of title 40 of the Code
of Federal Regulations. If you have questions regarding the
applicability of this action to a
[[Page 88651]]
particular entity, consult the persons listed in the FOR FURTHER
INFORMATION CONTACT section.
B. What action is the agency taking?
EPA is correcting errors in the Legacy Final Rule published in the
Federal Register on May 8, 2024, which established regulatory
requirements for legacy CCR surface impoundments and CCR management
units (CCRMU).
C. What is the agency's authority for taking this action?
EPA is publishing this rule under the authority of sections
1008(a)(3), 2002(a), 4004, and 4005(a), (d) of the Solid Waste Disposal
Act of 1970, as amended by the Resource Conservation and Recovery Act
of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments
of 1984 (HSWA) and the Water Infrastructure Improvements for the Nation
(WIIN) Act of 2016, 42 U.S.C. 6907(a), 6912(a), 6944, 6945(a) and (d).
III. Background
On April 17, 2015, EPA issued national minimum criteria for the
disposal of CCR as solid waste under subtitle D of RCRA (80 FR 21302)
(2015 CCR Rule or CCR regulations). The 2015 CCR Rule, codified in
subpart D of part 257 of Title 40 of the Code of Federal Regulations,
established regulations for existing and new CCR landfills, existing
and new CCR surface impoundments, and all lateral expansions of these
CCR units. The 2015 CCR Rule also imposed requirements on inactive
surface impoundments at active facilities but exempted inactive surface
impoundments at inactive facilities. On August 21, 2018, the U.S. Court
of Appeals for the District of Columbia Circuit vacated and remanded
the provision that exempted inactive impoundments at inactive
facilities from the CCR regulations. Utility Solid Waste Activities
Group, et al. v. EPA (USWAG) 901 F.3d 414 (D.C. Cir. 2018).
On May 8, 2024, EPA published the Legacy Final Rule regulating
inactive surface impoundments at inactive facilities (legacy CCR
surface impoundments or legacy impoundments) under 40 CFR part 257,
subpart D. (89 FR 38950). In addition, the final rule established
requirements to address the risks from solid waste management
activities involving the direct placement of CCR on the land that was
exempt from regulation under the 2015 CCR Rule. This included inactive
CCR landfills, and CCR surface impoundments and landfills that closed
prior to the effective date of the 2015 CCR Rule; the final rule refers
to these newly regulated units as CCRMU. The Legacy Final Rule added a
definition for legacy CCR surface impoundments, CCRMU, among other
terms. It also established the regulatory requirements applicable to
legacy CCR surface impoundments and CCRMU, which largely consist of
requiring compliance with certain existing CCR regulations, along with
tailored compliance deadlines.
IV. Revisions to Part 257, Subpart D
Since publication of the Legacy Final Rule, EPA has identified
several errors in the Legacy Final Rule. Some of these issues were
raised to the Agency's attention by members of the public including
industry, non-governmental organizations, and State regulatory
agencies. EPA is addressing three of these errors in this direct final
rule and companion proposed rule. These changes are: (1) Fixing an
error that caused confusion regarding the November 8, 2024 effective
date of the Legacy Final Rule; and (2) Correcting inadvertent deletions
in existing 2015 regulatory text caused by incorrect amendatory
instruction.\1\
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\1\ Amendatory instructions are the specific instructions the
Agency provides to the Office of the Federal Register on how to
amend the regulatory text.
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A. The Effective Date of the Legacy Final Rule Is November 8, 2024
Section 4004(c) of RCRA establishes a six-month effective date for
rules issued under section 4004(a), providing that ``the prohibition
contained in subsection (b) shall take effect on the date six months
after the date of promulgation of regulations under subsection (a).''
42 U.S.C. 6944(c). In other words, RCRA requires that six months after
promulgation of a rule under section 4004(a), solid waste must be
managed in a manner that complies with the requirements of the rule.
Under RCRA, promulgation of a rule occurs upon signature and
publication in the Federal Register. Horsehead Resource Development Co,
Inc., v. EPA, 130 F.3d 1090, 1094-1095 (D.C. Cir. 1997) (``We hold . .
. at least in the absence of a contrary agency regulation,
``promulgation'' as used in section [7006(a)(1) of RCRA] means the date
of Federal Register publication.''). Thus, by operation of law the
requirements in the Legacy Final Rule go into effect six months from
the date of its publication in the Federal Register, which in this case
is November 8, 2024.
The DATES preamble caption in the Legacy Final Rule states that the
rule is effective on November 4, 2024. 89 FR 38950. This is incorrect.
All other references to the effective date in the Legacy Final Rule
correctly specify the effective date of November 8, 2024, including
eight times in the preamble and 11 times in the regulatory text.\2\
This action corrects the single inaccuracy in the preamble to reflect
the six-month effective date established by RCRA section 4004(c). In
summary, the effective date of the Legacy Final Rule is November 8,
2024.
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\2\ Preamble references to an effective date of November 8, 2024
occur at 89 FR 39005, 39015 and 39016. Regulatory text references to
November 8, 2024 are found at 89 FR 39105 through 39108, and 39110.
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B. Revision to Sec. 257.73(a) (Structural Integrity Criteria for
Existing CCR Surface Impoundments)
For reasons that are discussed in the Legacy Final Rule, legacy CCR
surface impoundments are required to comply with the same structural
integrity criteria applicable to the CCR surface impoundments regulated
by the 2015 CCR Rule. 89 FR 39011. EPA effected this requirement by
revising Sec. 257.73(a) to add legacy CCR surface impoundments to
those CCR units subject to the structural integrity criteria. The
Legacy Final Rule made no other revisions to the structural integrity
criteria, which were codified in the 2015 CCR Rule. However, when
implementing this revision in the regulatory text, the Agency
inadvertently deleted the second sentence of Sec. 257.73(a) due to a
faulty amendatory instruction.\3\ That is, EPA intended for the
amendatory instruction to revise only the first sentence of paragraph
Sec. 257.73(a) and leave the remainder of the paragraph as promulgated
in the 2015 CCR Rule. The faulty amendatory instruction inadvertently
resulted in the deletion of the following sentence from Sec.
257.73(a): ``If an incised CCR surface impoundment is subsequently
modified (e.g., a dike is constructed) such that the CCR unit no longer
meets the definition of an incised CCR unit, the CCR unit is subject to
the requirements of paragraphs (a)(1) through (4) of this section.''
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\3\ Amendatory instructions are the specific instructions the
Agency provides to the Office of the Federal Register on how to
amend the regulatory text.
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This final rule restores the inadvertently deleted second sentence
back to Sec. 257.73(a). Specifically, EPA is amending Sec. 257.73(a)
to read: ``The requirements of paragraphs (a)(1) through (4) of this
section apply to all existing CCR surface impoundments and legacy CCR
surface impoundments, except for those that are incised CCR surface
impoundments. If an incised
[[Page 88652]]
CCR surface impoundment is subsequently modified (e.g., a dike is
constructed) such that the CCR unit no longer meets the definition of
an incised CCR unit, the CCR unit is subject to the requirements of
paragraphs (a)(1) through (4) of this section.''
C. Revisions to Sec. 257.105 (Recordkeeping Requirements)
The Agency amended Sec. 257.105, which specifies the requirements
for recordkeeping, in the Legacy Final Rule by making several revisions
and additions. Given the number of revisions and additions, EPA revised
and republished Sec. 257.105 in its entirety. That is, the regulatory
text published in the Legacy Final Rule reflected a combination of
revised or new content (i.e., the revisions and additions discussed in
the final rule) and unchanged, republished content (i.e., previously
codified text unaffected by the Legacy Final Rule). However, EPA
inadvertently failed to include Sec. 257.105(j) when republishing this
section, which resulted in the deletion of paragraph (j) from Sec.
257.105. Section 257.105(j) includes the recordkeeping requirements
when retrofitting a CCR unit and this paragraph should not have been
affected by the Legacy Final Rule. This action restores paragraph (j)
back to Sec. 257.105.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14904: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing Legacy Final Rule and has assigned
the temporary OMB control number 2050-0231. The burden contained in
2050-0231 will ultimately be merged into EPA information collection
request number 2050-0223. This action merely corrects provisions of the
CCR Legacy Final Rule and does not include any new information
collection requirements.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities (SISNOSE) under the
RFA. This final rule corrects errors in the regulatory text of the CCR
Legacy Final Rule. This rule does not impose any additional
requirements on any entities, including small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million
(adjusted annually for inflation) or more (in 1995 dollars) as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or
uniquely affect small governments. The rule corrects errors in the
regulatory text of the CCR Legacy Final Rule. This rule does not impose
any additional requirements, and thus the costs involved in this action
are estimated not to exceed $183 million in 2023$ ($100 million in
1995$ adjusted for inflation using the GDP implicit price deflator) or
more in any one year.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. The rule corrects errors in the regulatory text
of the CCR Legacy final rule. This rule does not impose any additional
requirements. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 directs Federal agencies to include an
evaluation of the health and safety effects of the planned regulation
on children in Federal health and safety standards and explain why the
regulation is preferable to potentially effective and reasonably
feasible alternatives. This action is not subject to Executive Order
13045 because it is not a significant regulatory action under section
3(f)(1) of Executive Order 12866, and because the EPA does not believe
the environmental health or safety risks addressed by this action
present a disproportionate risk to children. This rule corrects errors
in the regulatory text of the CCR Legacy Final Rule. This rule does not
impose any additional requirements and therefore does not address
environmental health and safety risks that may disproportionately
affect children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The EPA believes that this action does not concern human health or
environmental conditions and therefore cannot be evaluated with respect
to potentially disproportionate and adverse effects on communities with
environmental justice concerns. This rule corrects errors in the
regulatory text of the CCR Legacy Final Rule. This rule does not impose
any additional requirements. EPA conducted an extensive Environmental
Justice analysis for the Legacy CCR rule. The results of that analysis
can be found in the preamble for that final rule. 89 FR 39098.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
Correction
In the Federal Register of May 8, 2024, in FR Doc. 2024-09157, on
page 38950, in the first column, correct the Dates paragraph to read:
``DATES: This final rule is effective on November 8, 2024.''
List of Subjects in 40 CFR Part 257
Environmental protection, Beneficial use, Coal combustion products,
Coal combustion residuals, Coal combustion
[[Page 88653]]
waste, Disposal, Hazardous waste, Landfill, Surface impoundment.
Michael S. Regan,
Administrator.
For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations is amended as follows:
PART 257--CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL
FACILITIES AND PRACTICES
0
1. The authority citation for part 257 continues to read as follows:
Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 6927, 6944,
6945(a) and (d); 33 U.S.C. 1345(d) and (e).
0
2. Amend Sec. 257.73 by revising the introductory paragraph (a) to
read as follows:
Sec. 257.73 Structural integrity criteria for existing CCR surface
impoundments.
(a) The requirements of paragraphs (a)(1) through (4) of this
section apply to all existing CCR surface impoundments and legacy CCR
surface impoundments, except for those that are incised CCR surface
impoundments. If an incised CCR surface impoundment is subsequently
modified (e.g., a dike is constructed) such that the CCR unit no longer
meets the definition of an incised CCR unit, the CCR unit is subject to
the requirements of paragraphs (a)(1) through (4) of this section.
* * * * *
0
3. Amend Sec. 257.105 by adding paragraph (j) to read as follows:
Sec. 257.105 Recordkeeping requirements.
* * * * *
(j) Retrofit criteria. The owner or operator of a CCR unit subject
to this subpart must place the following information, as it becomes
available, in the facility's operating record:
(1) The written retrofit plan, and any amendment of the plan, as
required by Sec. 257.102(k)(2), except that only the most recent
retrofit plan must be maintained in the facility's operating record
irrespective of the time requirement specified in paragraph (b) of this
section.
(2) The notification of intent that the retrofit activities will
proceed in accordance with the alternative procedures in Sec. 257.103.
(3) The annual progress reports required under the alternative
requirements as required by Sec. 257.103.
(4) The written demonstration(s), including the certification in
Sec. 257.102(f)(2)(iii), for a time extension for completing retrofit
activities as required by Sec. 257.102(k)(3).
(5) The notification of intent to initiate retrofit of a CCR unit
as required by Sec. 257.102(k)(5).
(6) The notification of completion of retrofit activities as
required by Sec. 257.102(k)(6).
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[FR Doc. 2024-25752 Filed 11-7-24; 8:45 am]
BILLING CODE 6560-50-P
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