Rule2025-00848
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
January 16, 2025
Effective
May 16, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or the Agency) is taking direct final action to correct errors and clarify several provisions 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).
Full Text
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<title>Federal Register, Volume 90 Issue 10 (Thursday, January 16, 2025)</title>
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[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Rules and Regulations]
[Pages 4635-4649]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00848]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 257
[EPA-HQ-OLEM-2020-0107; FRL-7814.1-04-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.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
taking direct final action to correct errors and clarify several
provisions 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).
DATES: This final rule is effective on May 16, 2025 without further
notice unless EPA receives adverse comment by March 17, 2025. 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
[[Page 4636]]
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: 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#9efcfbf6fff0b0f8ecfff0f5defbeeffb0f9f1e8"><span class="__cf_email__" data-cfemail="fc9e99949d92d29a8e9d9297bc998c9dd29b938a">[email protected]</span></a>, or 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#6b2304071f453f0a120704192b0e1b0a450c041d"><span class="__cf_email__" data-cfemail="c28aadaeb6ec96a3bbaeadb082a7b2a3eca5adb4">[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 regulatory
text and conform the regulatory text to the decisions articulated in
the Legacy Final Rule preamble. 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. In addition, for the convenience of the reader, EPA is
revising and republishing Sec. Sec. 257.75 and 257.100 in their
entirety, which means that the regulatory text presented in this action
is a combination of revised content (discussed in this preamble) and
unchanged, republished content. The Agency is not reconsidering,
proposing to reopen, or otherwise soliciting comment on the unchanged,
republished content of these sections of the regulatory text. 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 Sec. 257.50 of title 40 of the Code of
Federal Regulations. If you have questions regarding the applicability
of this action to a particular entity, consult the persons listed in
the FOR FURTHER INFORMATION CONTACT section.
B. What action is the Agency taking?
EPA is correcting errors and conforming the regulatory text to the
decisions articulated 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). In
addition, EPA is making a number of revisions to clarify the final
requirements, such as consolidating the compliance deadlines for CCRMU
into a single section and providing a deadline for the initial fugitive
dust plan for CCRMU at facilities without a regulated unit.
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
[[Page 4637]]
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.
On November 8, 2024, EPA published a direct final rule to correct
three errors in the Legacy Final Rule. In addition to taking action to
correct inadvertent deletions of existing regulatory text in part 257,
subpart D, the direct final rule made clear that the effective date of
the Legacy Final Rule is November 8, 2024. These corrections are
effective on February 6, 2025 (89 FR 88650).
IV. Revisions to Part 257, Subpart D
Since publication of the Legacy Final Rule, EPA has identified a
number of errors in the final regulatory text. Some of these are
typographical errors, while others are regulatory text that does not
conform to the Agency's stated positions in the Legacy Final Rule
preamble. EPA has also identified regulatory provisions that, as
drafted, have the potential to be ambiguous or confusing. 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 these errors, inconsistencies,
and ambiguities in this direct final rule and companion proposed rule.
These changes include: (1) Fixing incorrect regulatory text citations;
(2) Clarifying and adding provisions in the regulatory text to match
what is clearly described in the preamble; and (3) Improving rule
implementation by adding a new section consolidating compliance
deadlines for CCRMU.
A. Revisions to Sec. 257.50(d) (Scope and Purpose)
In the preamble to the Legacy Final Rule, EPA explained its
decision to extend regulation to certain other facilities currently
generating power for the electrical grid that only have CCRMU onsite.
89 FR 39053. EPA explained that it was concerned that CCRMU (e.g.,
inactive CCR landfills, closed CCR landfills, or closed CCR surface
impoundments) are located at these facilities. EPA estimated that this
category would consist of nine units at five facilities. Id., n. 141
(referencing ``Universe of CCR Management Units. April 2024.'').\1\ The
preamble described these facilities as ``other active facilities'' and
defined them as those that: (1) On or after October 19, 2015, were
producing electricity for the grid; (2) Had ceased placement of CCR in
their onsite CCR units before the effective date of the 2015 CCR Rule
(October 19, 2015); and (3) Had no inactive CCR surface impoundments.
This was codified in the final regulatory text at Sec. 257.50(d),
which provides that ``This subpart applies to CCR management units . .
. , located at active facilities.''
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\1\ Docket item EPA-HQ-OLEM-2020-0107-1031 identifies the CCRMU
at other active facilities.
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After the final rule was published EPA received several questions
regarding the scope of the active facilities covered under Sec.
257.50(d). Several entities noted that the final regulatory text could
be read to extend beyond the scope described in the final rule
preamble, to include all facilities producing power for the grid on or
after October 19, 2015 regardless of whether there was any history of
onsite CCR disposal or coal combustion for power generation at the
facility, such as a nuclear electric power generation plant at which
coal was never burned, or a wind electric power generation site
developed on an agricultural field.
For example, one entity requested that EPA confirm that power
generation sites that have never been ``used for treating, storing,
disposing, or otherwise conducting solid waste management of CCR'' are
not considered ``active facilities'' (e.g., greenfield solar electric
power generation sites or other electric generation facilities that
have not combusted coal) and would not have to undertake a CCRMU
facility evaluation. Another asked whether a facility that generates
power that has beneficially used CCR onsite (e.g., structural fill
beneath a building structure) is required to comply with the facility
evaluation requirements even if the location never burned coal.
EPA acknowledges that as currently written the regulation could
result in the inclusion of electric utilities or independent power
producers that have not placed CCR onsite or operated an onsite coal-
fired electric generating unit (EGU), including, for example, the
scenarios described in the previous paragraph. As the preamble made
clear, this was never EPA's intent. Rather EPA intended the CCRMU
regulations to only apply to facilities with a regulated CCR unit and
to the small subset of active facilities described in the Legacy Final
Rule preamble. Indeed, EPA specifically declined requests to extend
coverage more broadly. See 89 FR 39053-39054. Consistent with that
intent, today's technical correction rule amends the regulatory text at
Sec. 257.50(d), by replacing the phrase ``active facilities'' with the
phrase ``other active facilities.'' EPA is also defining ``other active
facility'' in Sec. 257.53, to mean ``. . . a facility that meets all
of the following conditions: (1) On or after October 19, 2015, the
facility has produced electricity for the grid using fossil fuel; (2)
By October 19, 2015, the facility had ceased placing at the facility
any CCR generated by the onsite electric generating unit; and (3) There
are no regulated CCR units at the facility.''
Consistent with that revision, a nuclear electric power generation
facility at which coal was not burned, a wind electric power generation
facility developed on an agricultural field or other electric
generation facilities that have not combusted coal onsite would not be
subject to the CCRMU regulations. The nuclear facility described above
would not be subject to the CCRMU regulations because all three
criteria of the definition of ``other active facility'' are not met.
The wind facility described above also does not meet any of these
criteria and consequently would not be subject to the CCRMU
regulations. Similarly, other electric generation facilities (e.g.,
solar facilities) that have never combusted coal onsite do not meet all
of the ``other active facility'' criteria; even if the facility had
produced electricity for the grid using fossil fuel, criteria 2 and 3
still have not been met. The same is generally true where the only
activity at the electric generation facility involving CCR was its use
as structural fill beneath a structure because the facility would not
meet all three criteria. However, where CCR has been placed on the
ground onsite, the facility owner or operator needs to be careful in
conducting any redevelopment activities. If CCR is moved from its
original placement as part of redeveloping the site, and is (re)placed
directly on the land, this would constitute active disposal, subject to
the CCR regulations in part 257 applicable to active disposal units.
In addition, EPA is revising Sec. 257.100 to conform to the new
definition of ``other active facility.'' Specifically, the term
``fuel'' in the regulatory text of Sec. 257.100(a)(1) is revised to
read ``fossil fuel.'' A similar conforming change is reflected in new
paragraph (b)(4)(ii) of Sec. 257.90.
[[Page 4638]]
Finally, the introductory paragraphs of Sec. 257.75(a), (b),
(c)(1), and (d)(1) of the Legacy Final Rule incorporated the same
language from Sec. 257.50(d) that EPA is now revising. Therefore, EPA
is revising the introductory paragraphs of those provisions to add
references to ``other active facilities'' so that those provisions
conform with the description of regulated facilities in Sec.
257.50(d). EPA is also correcting other errors in Sec. 257.75(c) and
(d), which are discussed in Unit IV.C of this preamble.
B. Revisions to Sec. 257.53 (Definitions)
Since publication of the Legacy Final Rule, EPA has identified a
number of errors in certain regulatory definitions. Some of these
involve an inconsistency between the preamble and the regulatory text.
Others are provisions that, as drafted, have the potential to be
ambiguous or confusing. Several of these issues were raised to the
Agency's attention by members of the public including industry, non-
governmental organizations, and State regulatory agencies. To address
these issues, EPA is amending three definitions so that they are
consistent with the final actions described in the Legacy Final Rule
preamble. Additionally, EPA is adding a definition of ``other active
facility'' to Sec. 257.53, which is discussed in Unit IV.A of this
preamble.
1. Closed Prior to October 19, 2015
In the Legacy Final Rule, EPA established requirements for CCRMU
and for legacy CCR surface impoundments. In the process, EPA explained
several key classifications of CCR units. Importantly, EPA noted that
since promulgation of the 2015 CCR Rule, any CCR surface impoundment
that had ceased receiving CCR but still contained liquid and CCR on or
after October 19, 2015, is classified as an ``inactive'' impoundment.
89 FR 38986-94. See also, Electric Energy v. EPA, 106 F4th 31, 42 (D.C.
Cir 2024); USWAG, 941 F.3d at 432. Inactive impoundments located at
active utilities have been regulated since issuance of the 2015 CCR
Rule. 40 CFR 257.50(c). By contrast, inactive impoundments at inactive
facilities are considered legacy impoundments. 89 FR 39100. However,
EPA has realized that its new definition of a CCRMU conflicts with
these provisions. Specifically, the definition's phrase ``closed prior
to October 19, 2015'' could be read to cover both inactive impoundments
currently regulated under the 2015 CCR regulations and legacy
impoundments. Therefore, a correction is necessary.
The Legacy Final Rule defines a CCR management unit to ``include [
] . . . CCR units that closed prior to October 19, 2015.'' 40 CFR
257.53. That phrase is defined in turn to include a ``CCR surface
impoundment [that] completed closure . . . in accordance with state law
prior to October 19, 2015.'' Id. But at the same time, the 2015 CCR
regulations distinguish between ``closed'' and ``inactive''
impoundments based on whether free ``liquids'' are present. See 40 CFR
257.53 (definitions of ``closed'' and ``inactive CCR impoundment.'').
As EPA explained in 2015, `` `[i]nactive' surface impoundments are
those that contain both CCR and water, but no longer receive additional
wastes. By contrast, a `closed' surface impoundment would no longer
contain water, . . . and would be capped or otherwise maintained.'' 80
FR 21343. See also, 89 FR 38992-38993. EPA accordingly defined
``closed'' in 2015 to mean that ``placement of CCR in a CCR unit has
ceased, and the owner or operator has completed closure of the CCR unit
in accordance with Sec. 257.102 and has initiated post-closure care in
accordance with Sec. 257.104.'' 40 CFR 257.53. An impoundment closed
in accordance with Sec. 257.102 has eliminated free liquids and
consequently would no longer contain liquids.
But this distinction between a closed and inactive impoundment was
inadvertently omitted from the definition of a CCRMU, which referred
only to a unit that had ``completed closure in accordance with state
law'' without any further qualification. And as a factual matter, most
inactive impoundments in existence in 2015 could be considered to have
``closed in accordance with state law.'' This is because as EPA has
previously explained--and numerous commenters confirmed during the
rulemaking--many State laws prior to 2015 either exempted CCR surface
impoundments from State solid waste closure requirements or otherwise
allowed free liquids to remain in a closed impoundment. See, 89 FR
38983-38984, 38990, 39029-39030; 80 FR 21322-21325.
Thus, that phrase in the CCRMU definition could be interpreted to
re-classify every inactive CCR surface impoundment as a CCRMU, simply
because of its status under State law, even if the impoundment meets
the definition of an inactive or legacy CCR surface impoundment as
defined elsewhere in the CCR regulations. This interpretation is,
however, clearly inconsistent with the proposed Legacy Rule and the
Legacy Final Rule, in which EPA explicitly considered--and rejected--
the approach of classifying an impoundment based on its status under
State law rather than on the existing definitions in Sec. 257.53.
The proposed Legacy Rule explained that under the existing
definitions in Sec. 257.53, to the extent an impoundment still
contains liquid, it would be an inactive impoundment, and that when
located at an inactive facility, such a unit would be considered a
legacy impoundment. 88 FR 31992. This is because under the existing
definitions an ``inactive CCR surface impoundment'' means ``a CCR
surface impoundment that no longer receives CCR on or after October 19,
2015[,] and still contains both CCR and liquids on or after October 19,
2015.'' 40 CFR 257.53. EPA further proposed that ``[t]his would apply
whether the unit is considered `closed' under state law.'' Id. 89 FR
38986.
The Legacy Final Rule retained this approach. In response to
comments, the Legacy Final Rule discussed at length that under the
existing definition, any impoundment that was no longer receiving CCR
but contained CCR and liquids after 2015 is an inactive CCR surface
impoundment, not a CCRMU, regardless of any other consideration,
including its status under State law. See, 89 FR 38986-38996. As part
of that discussion, EPA reiterated that, consistent with the original
2015 Rule, the presence of liquid remaining in an impoundment is a
significant part of what distinguishes an ``inactive'' impoundment from
a ``closed'' impoundment. Id. at 38992-38994. See also id. at 38996,
specifically identifying ``[a]ny impoundment that still contains free
liquids: (a) even if it is considered `closed' under State law'' as a
legacy impoundment.
The Legacy Final Rule preamble thus expressly maintained EPA's
interpretations from 2015. It also contains no indication that EPA
intended to reclassify as a CCRMU either any unit currently regulated
under the 2015 Rule or any unit that EPA had proposed to regulate as a
legacy impoundment. To the contrary, EPA disagreed with a commenter who
characterized an impoundment that had closed under State law in 2008,
but still contained CCR and liquids, as either a legacy CCR surface
impoundment or a CCRMU. EPA explained the unit was actually an
``inactive CCR surface impoundment'' regulated under the 2015 Rule
rather than either a legacy impoundment or a CCRMU. 89 FR 39027.
To correct this mistake, EPA is amending the definition of ``closed
prior to October 19, 2015'' at 40 CFR 257.53 to include an express
statement that any
[[Page 4639]]
unit that ``meets the definition of an inactive CCR surface impoundment
or legacy CCR surface impoundment in Sec. 257.53 is not a CCR
management unit.''
2. CCR Landfill or Landfill
For reasons explained in the Legacy Final Rule preamble, EPA
amended the definition of ``CCR landfill or landfill'' by changing the
word ``receive'' to ``contain.'' See 89 FR 39043-39044, 39053. However,
in the regulatory text, EPA inadvertently only changed the first
instance of the word ``receives.'' This action corrects that error by
amending the definition of ``CCR landfill or landfill'' so that all
instances of ``receive'' are changed to ``contain.''
3. Facility
In the Legacy Final Rule, EPA adopted provisions that allow an
owner or operator to complete the closure by removal of a CCR unit in
two stages. See 89 FR 39082-39088. In the first stage, the owner or
operator must complete the removal of all CCR from the unit and the
removal or decontamination of all areas affected by releases from the
CCR unit during the active life of the CCR unit (e.g., soil
contaminated by CCR), except for groundwater. In the second stage, the
owner or operator must complete the groundwater corrective action
during a separate post-closure care period that commences only after
the first stage has been completed (i.e., all CCR has been removed from
the unit and affected areas have been decontaminated). Therefore, at
some sites, during this post closure care period, the only solid waste
remaining at the facility would be the contamination in the groundwater
that is in the process of being remediated.
In order to effectuate this, conforming changes needed to be made
to other provisions. EPA included some of these revisions in the final
rule, (e.g., EPA amended the definition of an operator to clarify that
the term includes those person(s) or parties responsible for directing
or overseeing groundwater monitoring, closure, or post-closure
activities at a CCR unit). 89 FR 39052, 39100-39101. But the Agency
failed to make similar revisions to the definition of a facility to
account for this situation. As currently drafted, the term is defined
to mean the land, and structures, other appurtenances, and improvements
on the land, used for treating, storing, disposing, or otherwise
conducting solid waste management of CCR. Although the provision could
fairly be interpreted to include the CCR constituents contaminating the
groundwater, to avoid any ambiguity EPA is amending the definition to
expressly address this situation. Specifically, EPA is making two
revisions. The first is to replace the phrase ``used for treating,
storing, disposing, or otherwise conducting solid waste management of
CCR'' with a phrase that mirrors the statutory formulations: ``where
CCR is treated, is stored, or is disposed, or where solid waste
management of CCR is otherwise conducted.'' In addition, EPA is adding
the following sentence to the definition: ``A facility includes any
onsite soil or groundwater that contains CCR or leachate, or where one
or more constituent listed in appendix IV of this part is detected at a
statistically significant level above the groundwater protection
standard.''
C. Revisions to Sec. 257.75 (Requirements for CCR Management Units)
1. Conforming Revisions to Sec. 257.75(a), (b), (c), and (d)
As discussed in Unit IV.A of this preamble, EPA is making
conforming changes to Sec. 257.75(a) through (d), consistent with the
revisions to Sec. 257.50(d).
2. Typographical Error in Sec. 257.75(c)(1)(xiv)
Section 257.75(c) specifies requirements for the Facility
Evaluation Report Part 1. One of the paragraphs of Sec. 257.75(c)
includes a typographical error and this final rule corrects the error.
The typographical error is in the first sentence of Sec.
257.75(c)(1)(xiv) as shown in the Legacy Final Rule. Specifically, the
cross-reference to paragraph (c)(i) is missing the second paragraph
designation level and should instead read (c)(1)(i). Therefore, this
final rule corrects the first sentence of paragraph Sec.
257.75(c)(1)(xiv) to read: ``A narrative description of any data gaps
for information in paragraphs (c)(1)(i) through (xiii) of this section
. . .''
3. Typographical Errors in Sec. 257.75(d)
Section 257.75(d) specifies requirements for the Facility
Evaluation Report Part 2. One of the paragraphs of Sec. 257.75(d)
includes a typographical error and this final rule corrects the error.
The typographical error is in the first sentence of Sec. 257.75(d)(1)
as shown in the Legacy Final Rule. Specifically, the cross-reference to
paragraph (d)(i)(xiii) is incorrect and should instead read
(d)(1)(xiv). Therefore, this final rule corrects this part of the first
sentence of paragraph Sec. 257.75(d)(1) to read: ``information
specified in paragraphs (d)(1)(i) through (xiv) of this section . . .''
In addition, Sec. 257.75(d) also includes two references to the
Facility Evaluation Report Part 2; however, the text included in the
Legacy Final Rule is uncapitalized. This final rule capitalizes these
terms to read ``Facility Evaluation Report Part 2'' to be consistent
with other uses of the term.
4. Consolidation of CCR Management Unit Deadlines in Sec. 257.75(e)
and Addition of Sec. 257.75(f)
The Legacy Final Rule established various deadlines for CCRMU to
comply with the regulatory requirements. These compliance deadlines are
specified in multiple sections of part 257, subpart D, including, for
example, Sec. Sec. 257.75, 257.90, 257.101, 257.102, and 257.104.
Since publication of the Legacy Final Rule, EPA has heard from entities
that navigating multiple sections to identify the compliance deadlines
for CCRMU is cumbersome. For clarity, EPA is adding a new paragraph at
Sec. 257.75(e) to the CCRMU Facility Evaluation provisions that
consolidates all of the compliance dates for CCRMU. EPA is not revising
any of these dates or removing the provisions from other sections of
part 257, such as in the groundwater monitoring and corrective action
sections. As a result of adding a new paragraph to Sec. 257.75, the
Agency is revising the section heading of Sec. 257.75 to read
``Requirements for identifying CCR management units and deadlines.''
Finally, EPA is also redesignating the existing paragraph (e) as (f).
D. Revisions to Sec. 257.80 (Fugitive Dust Requirements)
In the Legacy Final Rule, EPA required owners or operators of CCR
units to comply with the fugitive dust requirements in Sec. 257.80. In
the final rule preamble, EPA explains that EPA expects facilities with
CCRMU to already have a fugitive dust control plan because: (1)
Fugitive dust requirements apply to the entire facility and (2) CCRMU
are located at facilities with a regulated CCR unit. 89 FR 39061.
Therefore, instead of creating a deadline for the creation of fugitive
dust plans for CCRMU, EPA finalized a deadline of no later than 30 days
following a triggering event, such as the closure of a CCRMU or change
in facility or CCR unit operations, for owners or operators to amend
their existing fugitive dust plans. However, not all facilities
regulated under the CCRMU provisions will be required to have a
fugitive dust plan prior to identifying a CCRMU (i.e., ``other active
facilities''). As such, the owners or operators of these facilities do
not have regulatory certainty regarding when they must develop their
initial
[[Page 4640]]
fugitive dust plan. This action corrects this oversight by finalizing a
deadline of no later than August 9, 2027 (i.e., six months after the
Facility Evaluation Report Part 2 pursuant to Sec. 257.75(d) is due)
for the initial fugitive dust plan for CCRMU located at other active
facilities. This compliance timeframe (i.e., six months after
determining applicability of the fugitive dust requirements) is
consistent with timeframes provided in the 2015 CCR Rule and for legacy
CCR surface impoundments in the Legacy Final Rule. See revisions to
Sec. 257.80(b)(5).
E. Revisions to Sec. 257.90 (Groundwater Monitoring and Corrective
Action Applicability)
The Legacy Final Rule preamble clearly stated CCRMU must conduct
assessment monitoring simultaneously with detection monitoring. 89 FR
39065-39066. However, the corresponding regulatory text was
inadvertently omitted from the final rule. Therefore, consistent with
the Legacy Final Rule preamble, this action is amending Sec.
257.90(b)(3)(iii) to include the requirement for owners or operators of
CCRMU to comply with the assessment monitoring requirements.
Additionally, the Legacy Final Rule established various deadlines
for CCR units to comply with the groundwater monitoring and corrective
action requirements in Sec. Sec. 257.90-98. The compliance deadlines
for different CCR units (i.e., landfills, CCRMU, inactive surface
impoundments, legacy surface impoundments) are specified in multiple
sections of part 257, subpart D, including, Sec. Sec. 257.90,
257.100(a), 257.100(e), and 257.100(f). Since publication of the Legacy
Final Rule, EPA has heard from entities that navigating multiple
sections to determine initial groundwater monitoring compliance
deadlines is cumbersome. Therefore, for clarity, EPA is adding a new
paragraph at Sec. 257.90(b)(4) that will duplicate and consolidate the
initial timeframes for the groundwater monitoring requirements
applicable to inactive CCR surface impoundments and legacy CCR surface
impoundments. With the addition of this new paragraph, readers of Sec.
257.90(b) will be able to locate the initial groundwater monitoring
timeframes for all CCR units. With this action EPA is not revising the
initial timeframes, nor removing, or otherwise modifying the provisions
in Sec. 257.100(a)(1), (e)(5) and (f)(4) that are now referenced in
the new Sec. 257.90(b)(4).
F. Revision to Sec. 257.95 (Assessment Monitoring Program)
As stated above and in Unit IV.E of this preamble, in contradiction
with the Legacy Final Rule preamble, the provisions requiring owners
and operators of legacy CCR surface impoundments and CCRMU to conduct
simultaneous detection and assessment monitoring were inadvertently
omitted from the regulatory text. Additionally, the provisions that
contain the groundwater monitoring compliance deadlines are in
different locations within the Legacy Final Rule regulatory text; EPA
expects this may cause confusion about the compliance deadline.
Therefore, consistent with the Legacy Final Rule preamble and to
improve implementation, this action is amending Sec. 257.95(a) and (b)
to clarify the applicability of the assessment monitoring requirements
to legacy CCR surface impoundments and CCRMU and the associated
compliance deadlines.
G. Revisions to Sec. 257.100 (Inactive CCR Surface Impoundments and
Legacy CCR Surface Impoundments)
1. Requirements and Deadlines for Certain Facilities With an Inactive
CCR Surface Impoundment in Sec. 257.100(a)(1)
The preamble to the Legacy Final Rule states that EPA adopted a
pathway to compliance for facilities that believed they were inactive
facilities and did not have units subject to the requirements of the
2015 CCR Rule, despite these facilities producing electricity through
renewables. The Legacy Final Rule further states that such facilities
producing electricity through renewables (i.e., non-fossil fuels) are
subject to the same applicable compliance deadlines as inactive
impoundments at inactive facilities (i.e., legacy CCR surface
impoundments). 89 FR 39001. EPA is revising the regulatory text in
Sec. 257.100(a)(1) to clarify that the requirements and compliance
timeframes applicable to these facilities are specified in Sec.
257.100(f)(1).
2. Facility Evaluation Report Requirements for Facilities With a Legacy
CCR Surface Impoundment in Sec. 257.100(f)(1)(iii)
The Legacy Final Rule preamble states that an owner or operator of
a legacy CCR surface impoundment who utilizes the applicability report
extension(s) available through Sec. 257.100(f)(1)(iii) will have the
subsequent deadlines delayed by the length of the extension(s). 89 FR
39007-39008. The regulatory text includes provisions to extend those
deadlines for legacy CCR surface impoundments. However, the provision
that cross-referenced the extensions for the CCRMU requirement
deadlines was inadvertently omitted from the final rule. This action is
amending Sec. 257.100(f)(1)(iii) to include the deadline extensions
for the CCRMU requirements for these owners or operators, consistent
with the final rule preamble.
3. Typographical Error in Sec. 257.100(f)(1)(iii)(A)(3)
EPA identified a typographical error in Sec.
257.100(f)(1)(iii)(A)(3) as the regulatory text does not include the
word ``all.'' Therefore, EPA is correcting this error so the regulatory
text now reads: ``The details of a written field investigation work
plan, including all of the following.''
4. Groundwater Monitoring and Corrective Action Under Sec.
257.100(f)(4)
The Legacy Final Rule preamble clearly stated legacy CCR surface
impoundments must conduct assessment monitoring simultaneously with
detection monitoring. 89 FR 39020. However, the corresponding
regulatory text was inadvertently omitted from the final rule.
Therefore, consistent with the Legacy Final Rule preamble, this action
is amending Sec. 257.100(f)(4)(iii)(A) to include the requirement for
owners or operators of legacy CCR surface impoundments to comply with
the assessment monitoring requirements.
5. Typographical Error in Sec. 257.100(f)(4)(iv)
EPA identified a typographical error in Sec. 257.100(f)(4)(iv),
which is the paragraph that contains the deadline when the first annual
groundwater monitoring and corrective action report is due for legacy
CCR surface impoundments. The regulatory text established a deadline
for this report of January 31, 2027. However, after publication, EPA
realized that this deadline was one year too soon, as the actions
required to be included in this report are not required to be completed
by that date. Therefore, EPA is correcting the date when the first
annual groundwater monitoring and corrective action report is due for
legacy CCR surface impoundments to be January 31, 2028 to ensure the
report contains all the required information set forth in Sec.
257.90(e).
6. Certification of Closure by Removal for Legacy CCR Surface
Impoundments in Sec. 257.100(g)
The Legacy Final Rule preamble clearly states an owner or operator
of a legacy CCR surface impoundments who is able to complete the
certification of
[[Page 4641]]
closure by removal pursuant to Sec. 257.100(g) is not subject to any
further requirements under the Legacy Final Rule, including the CCRMU
requirements. 89 FR 39008-39010. The corresponding regulatory text was
inadvertently omitted from the final rule. Therefore, in this action,
EPA is amending Sec. 257.100(g) to include a provision that exempts
owners and operators of legacy CCR surface impoundments that complete
the certification of closure by removal from any further requirements
under part 257, consistent with the Legacy Final Rule preamble.
7. Typographical Error in Sec. 257.100(g)(6)(vii)
EPA identified a typographical error in Sec. 257.100(g)(6)(vii)
that mistakenly references ``paragraph (g)(3) of this section,'' rather
than (g)(6). Section 257.100(g)(3) requires documentation that all CCR
and other contaminated materials were removed from the unit. This is
different from what Sec. 257.100(g)(6) requires, which is all the
documentation that groundwater monitoring concentrations do not exceed
the groundwater protection standards established pursuant to Sec.
257.95(h) for constituents listed in Appendix IV to part 257.
Therefore, for accuracy, EPA is correcting this citation to reference
``paragraph (g)(6) of this section''.
8. Simplification of Sec. 257.100(h)
To simplify the final regulation, EPA is replacing a cross-
reference with the actual compliance date found in the referenced
provision. Section 257.100(h) in the Legacy Final Rule sets the
compliance deadline for the owner or operator of a legacy impoundment
to complete a certification as November 8, 2024 by referencing ``the
date listed in paragraph (f)(1)(i) of this section.'' In this action,
EPA is simplifying the regulation by replacing that phrase with the
referenced date, November 8, 2024.
9. Compliance Date Clarification in Sec. 257.100(i)
In Sec. 257.100(i), EPA finalized a set of requirements for legacy
CCR surface impoundments that have completed closure in accordance with
Sec. 257.102(d) no later than November 8, 2024 or a closure that meets
the criteria in Sec. 257.101(g). As finalized in the Legacy Final
Rule, the introductory paragraph could be mistakenly read as setting a
November 8, 2024 deadline for all the requirements in the paragraph
instead of the date by which closure must have been completed for the
requirements listed subsequently to be applicable. Additionally, Sec.
257.100(i) of the Legacy Final Rule included the wrong compliance
deadlines for certain requirements (e.g., to compile a unit history of
construction). For some requirements Sec. 257.100(i) refers to the
deadlines in the 2015 CCR rule, rather than the deadlines applicable to
legacy impoundments. To clarify these deadlines for the regulated
community, EPA is amending the introductory paragraph and adding dates
to Sec. 257.100(i)(1) through (11), as appropriate.
Finally, for the reasons explained in Unit IV.E of this preamble
and consistent with the changes in Sec. 257.100(f)(4) and the Legacy
Final Rule preamble, this action is amending Sec.
257.100(i)(7)(iii)(A) to include the requirement for owners or
operators of these legacy CCR surface impoundments to comply with the
assessment monitoring requirements.
H. Revisions to Sec. 257.102 (Criteria for Conducting the Closure or
Retrofit of CCR Units)
1. Closure for Cause for Legacy CCR Surface Impoundments and CCR
Management Units in Sec. 257.102(e)(4)
The regulations require certain CCR units to close for cause. In
the 2015 CCR Rule, this included CCR surface impoundments that are
unlined (Sec. 257.71), fail location restrictions (Sec. Sec. 257.60
through 257.64), or fail factors of safety (Sec. 257.73), and
landfills that fail the location restriction for unstable areas (Sec.
257.64). The 2015 CCR Rule implements this with regulatory text in
Sec. 257.101 (mandatory closure deadlines) and Sec. 257.102 (closure
standards). The 2015 CCR Rule also included specific regulatory text in
Sec. 257.102(e) stating that CCR units closing for cause are not
eligible for the provisions in Sec. 257.102(e)(2) that allow units to
idle. The Legacy Final Rule also mandated the closure of legacy CCR
surface impoundments and CCRMU. 89 FR 39026-39027, 39070-39071, 39108.
However, EPA inadvertently failed to similarly amend Sec. 257.102(e)
to make clear that these units are not eligible for the idling
provisions under Sec. 257.102. Therefore, EPA is amending Sec.
257.102(e)(4) to clarify that legacy CCR surface impoundments and CCRMU
are not eligible for the idling provisions by adding paragraphs (vi)
and (vii) referencing the closure for cause provisions in Sec.
257.101.
2. Completion of Closure Deadlines in Sec. 257.102(f)(1)(ii)
The Legacy Final Rule establishes a deadline of five years to
complete closure of a legacy CCR surface impoundment, which is the same
time provided to CCR surface impoundments regulated by the 2015 CCR
Rule. 89 FR 39033. However, the regulatory text was not amended to add
legacy CCR surface impoundments to the list of CCR units that are
provided five years to complete closure. Therefore, EPA is amending
Sec. 257.102(f)(1)(ii) to add legacy impoundments to the list of CCR
units that are provided five years to complete closure.
V. Statutory and Executive Order Reviews
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. An ICR covering the information collection activities
contained in the existing Legacy Final Rule has been submitted for OMBs
approval under the temporary OMB control number 2050-0231. The
corrections and clarifications to the CCR Legacy Final Rule contained
in this action do not have an effect on the established 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 clarifies and 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 clarifies and 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
[[Page 4642]]
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 clarifies and 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
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order.
Therefore, this action is not subject to Executive Order 13045
because it does not concern an environmental health risk or safety
risk. Since this action does not concern human health, EPA's Policy on
Children's Health also does not apply.
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 clarifies and 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).
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 257
Environmental protection, Beneficial use, Coal combustion products,
Coal combustion residuals, Coal combustion waste, Disposal, Hazardous
waste, Landfill, Surface impoundment.
Jane Nishida,
Acting Administrator.
For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations is amended as follows:
PART 257--CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL
FACILITIES AND PRACTICES
0
1. The authority citation for part 257 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. 257.50 by revising paragraph (d) to read as follows:
Sec. 257.50 Scope and purpose.
* * * * *
(d)(1) This subpart applies to CCR management units containing
1,000 tons or greater of CCR, located at facilities with a regulated
CCR unit or other active facilities.
(2) CCR management units containing greater than or equal to 1 ton
and less than 1,000 tons of CCR, located at facilities with a regulated
CCR unit or other active facilities are subject only to the
requirements of the facility evaluation report in Sec. 257.75 until a
permitting authority determines that regulation of these units, either
individually or in the aggregate, is warranted and determines the
applicable requirements.
* * * * *
0
3. Amend Sec. 257.53 by:
0
a. Revising the definitions of ``Closed prior to October 19, 2015'',
``CCR landfill or landfill'' and ``Facility''; and
0
b. Adding in alphabetical order the definition of ``Other Active
Facility''.
The revisions and addition read as follows:
Sec. 257.53 Definitions.
* * * * *
Closed prior to October 19, 2015 means the closure of the CCR
landfill or surface impoundment was completed in accordance with State
law prior to October 19, 2015. However, a CCR surface impoundment that
meets the definition of an inactive CCR surface impoundment or legacy
CCR surface impoundment in Sec. 257.53 is not a CCR management unit.
* * * * *
CCR landfill or landfill means an area of land or an excavation
that contains CCR and which is not a surface impoundment, an
underground injection well, a salt dome formation, a salt bed
formation, an underground or surface coal mine, or a cave. For purposes
of this subpart, a CCR landfill also includes sand and gravel pits and
quarries that contain CCR, CCR piles, and any practice that does not
meet the definition of a beneficial use of CCR.
* * * * *
Facility means all contiguous land, and structures, other
appurtenances, and improvements on the land, where CCR is treated, is
stored, or is disposed; or where solid waste management of CCR is
otherwise conducted. A facility may consist of several treatment,
storage, or disposal operational units (e.g., one or more landfills,
surface impoundments, or combinations of them). A facility includes any
onsite soil or groundwater that contains CCR or leachate, or where one
or more constituent listed in appendix IV of this part is detected at a
statistically significant level above the groundwater protection
standard.
* * * * *
Other Active Facility means a facility that meets all of the
following conditions:
(1) On or after October 19, 2015, the facility has produced
electricity for the grid using fossil fuel;
(2) By October 19, 2015, the facility had ceased placing at the
facility any CCR generated by the onsite electric generating unit; and
[[Page 4643]]
(3) There are no regulated CCR units at the facility.
* * * * *
0
4. Revise and republish Sec. 257.75 to read as follows:
Sec. 257.75 Requirements for identifying CCR management units and
deadlines.
(a) Applicability. The requirements of this section apply to owners
and operators of facilities with a regulated CCR unit or other active
facilities.
(b) Facility evaluation. The owner or operator of a facility with a
regulated CCR unit or other active facility must conduct a facility
evaluation to identify all CCR management units at the facility in
accordance with paragraphs (c) through (e) of this section. At a
minimum, the presence or absence of CCR management units at the
facility must be confirmed and documented through a thorough evaluation
of reasonably and readily available records that contain the
information needed to prepare the Facility Evaluation Reports Part 1
and Part 2 required by paragraphs (c) and (d) of this section. The
facility evaluation must also include a physical inspection of the
facility. Where necessary, the physical inspection must include field
investigation activities to fill data gaps, such as conducting
exploratory soil borings, geophysical assessments, or any other similar
physical investigation activities to establish the location and
boundaries of potential or likely CCR management units, and to
affirmatively rule out other areas of potential CCR placement at the
facility that were identified during the information review or physical
inspection. The facility evaluation must identify all CCR management
units at the facility regardless of when the CCR management unit came
into existence.
(c) Facility Evaluation Report Part 1. (1) No later than Monday,
February 9, 2026, the owner or operator of a facility with a regulated
CCR unit or other active facility must prepare a Facility Evaluation
Report Part 1, which shall contain, to the extent reasonably and
readily available, the information specified in paragraphs (c)(1)(i)
through (xiv) of this section. The owner or operator has prepared the
Facility Evaluation Report Part 1 when the report has been placed in
the facility's operating record as required by Sec. 257.105(f)(25).
(i) The name and address of the person(s) owning and operating the
facility; the unit name associated with each regulated CCR unit and CCR
management unit at the facility; and the identification number of each
regulated CCR unit and CCR management unit if any have been assigned by
the State or by the owner.
(ii) The location of any CCR management unit identified on the most
recent U.S. Geological Survey (USGS) 2 minute or 15-minute topographic
quadrangle map, or a topographic map of equivalent scale if a USGS map
is not available. The location of each regulated CCR unit at the
facility must also be identified in the same manner.
(iii) A statement of the purpose(s) for which each CCR management
unit at the facility is or was used.
(iv) A description of the physical and engineering properties of
the foundation and abutment materials on which each CCR management unit
is constructed.
(v) A discussion of any known spills or releases of CCR, including
any associated remediation activities, from each CCR management unit
and whether the spills or releases were reported to State or Federal
agencies.
(vi) Any record or knowledge of structural instability of each CCR
management unit.
(vii) Any record or knowledge of groundwater contamination
associated or potentially associated with each CCR management unit.
(viii) The size of each CCR management unit, including the general
lateral and vertical dimensions and an estimate of the volume of waste
contained within the unit.
(ix) Dates when each CCR management unit first received CCR and
when each CCR management unit ceased receiving CCR.
(x) Identification of all types of CCR in each CCR management unit
at the facility.
(xi) A narrative description of any closure activities that have
occurred, including any applicable engineering drawings or reports.
(xii) A narrative that documents the data reviewed as part of the
facility evaluation process, and that lists all data and information
indicating the presence or absence of CCR management units at the
facility.
(xiii) Any supporting information used to identify and evaluate CCR
management units at the facility, including but not limited to any
construction diagrams, engineering drawings, permit documents,
wastestream flow diagrams, aerial photographs, satellite images,
historical facility maps, any field or analytical data, groundwater
monitoring data or reports, inspection reports, documentation of
interviews with current or former facility workers, and other documents
used to identify and evaluate CCR management units at the facility.
(xiv) A narrative description of any data gaps for information in
paragraphs (c)(1)(i) through (xiii) of this section, not available in
existing information collection records and a plan for remedying
identified data gaps through a physical examination of the facility,
including any field or laboratory work needed to remedy data gaps in
the Facility Evaluation Report Part 1 record. The plan must include the
major milestones needed to fill the identified data gaps (e.g., a
physical examination of the facility, sampling of media, measurements
of CCR concentrations in and around the unit or physical presence,
delineation of CCR management unit(s)) and dates to complete such
needed tasks. Also, as necessary and timely, any updates to data gap
remedy plans must be added to the public record during the Facility
Evaluation Report Part 1.
(2) The owner or operator of any facility regulated under this
subpart must obtain a certification from a qualified professional
engineer stating that the Facility Evaluation Report Part 1 meets the
requirements of paragraph (c)(1) of this section.
(3) The owner or operator of any facility regulated under this
subpart must certify the Facility Evaluation Report Part 1 required by
paragraph (c)(1) of this section with the following statement signed by
the owner or operator or an authorized representative:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this demonstration
and all attached documents, and that, based on my inquiry of those
individuals immediately responsible for obtaining the information, I
believe that the submitted information is true, accurate, and
complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and
imprisonment.
(4) No later than Monday, February 9, 2026, the owner or operator
must notify the Agency of the establishment of a CCR website using the
procedures in Sec. 257.107(a) via the ``contact us'' form on EPA's CCR
website.
(5) The owner or operator of any facility regulated under this
subpart that does not contain any CCR management unit must submit
Facility Evaluation Report Part 1 documenting the steps taken during
the facility evaluation to determine the absence of any CCR management
unit. The Facility Evaluation Report Part 1 must include the
certifications required under paragraph (c)(3) of this section.
(d) Facility Evaluation Report Part 2. (1) No later than Monday,
February 8,
[[Page 4644]]
2027, the owner or operator of a facility with a regulated CCR unit or
other active facility must prepare a Facility Evaluation Report Part 2,
which shall contain, to the extent not provided in the Facility
Evaluation Report Part 1 under paragraph (c) of this section, the
information specified in paragraphs (d)(1)(i) through (xiv) of this
section obtained from a physical evaluation of the facility, including
where necessary field sampling. The owner or operator has prepared the
Facility Evaluation Report Part 2 when the report has been placed in
the facility's operating record as required by Sec. 257.105(f)(26).
(i) The name and address of the person(s) owning and operating the
facility; the unit name associated with each regulated CCR unit and CCR
management unit at the facility; and the identification number of each
regulated CCR unit and CCR management unit if any have been assigned by
the State or by the owner.
(ii) The location of any CCR management unit identified on the most
recent U.S. Geological Survey (USGS) 2 minute or 15-minute topographic
quadrangle map, or a topographic map of equivalent scale if a USGS map
is not available. The location of each regulated CCR unit at the
facility must also be identified in the same manner.
(iii) A statement of the purpose(s) for which each CCR management
unit at the facility is or was used.
(iv) A description of the physical and engineering properties of
the foundation and abutment materials on which each CCR management unit
was constructed.
(v) Any further evidence of known spills or releases, including any
associated remediation activities, of CCR from each CCR management unit
and whether the spills or releases were reported to State or Federal
agencies.
(vi) Any further evidence of structural instability of each CCR
management unit.
(vii) Any further evidence of groundwater contamination associated
or potentially associated with each CCR management unit.
(viii) The size of each CCR management unit, including the general
lateral and vertical dimensions and an estimate of the volume of CCR
contained within the unit.
(ix) Identification of the types of CCR in each CCR management
unit.
(x) A narrative description of any closure activities that have
occurred, including any applicable engineering drawings or reports.
(xi) A narrative that documents the nature and extent of field
oversight activities and data reviewed as part of the facility
evaluation process, and that lists all data and information that was
reviewed indicating the presence or absence of CCR management units at
the facility.
(xii) Any additional supporting information used to identify and
evaluate CCR management units at the facility, including but not
limited to any construction diagrams, engineering drawings, permit
documents, wastestream flow diagrams, aerial photographs, satellite
images, historical facility maps, any field or analytical data,
groundwater monitoring data or reports, inspection reports, and other
documents used to identify and assess CCR management units at the
facility. Additionally, as necessary and timely, any updates to the
part 1 data gap remedy plan must be added to the record during the
facility evaluation report part 2 timeframe.
(xiii) The Facility Evaluation Report Part 2 must explain how each
data gap identified in Facility Evaluation Report Part 1 was addressed.
(xiv) A description of each CCR management unit for which
regulation under this subpart is deferred for allowable reasons as
specified in Sec. 257.101(g) or (h). The owner or operator must
provide documentation in the Facility Evaluation Report Part 2 to
substantiate that the requirements Sec. 257.101(g) or (h) have been
met.
(2) The owner or operator of any facility regulated under this
subpart must obtain a certification from a qualified professional
engineer stating that the Facility Evaluation Report Part 2 meets the
requirements of paragraph (d)(1) of this section.
(3) The owner or operator of any facility regulated under this
subpart must certify the Facility Evaluation Report Part 2 required by
paragraph (d)(1) of this section with the following statement signed by
the owner or operator or an authorized representative:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this demonstration
and all attached documents, and that, based on my inquiry of those
individuals immediately responsible for obtaining the information, I
believe that the submitted information is true, accurate, and
complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and
imprisonment.
(4) The owner or operator of any facility regulated under this
subpart that does not contain any CCR management unit must submit
Facility Evaluation Report Part 2 documenting the steps taken during
the facility evaluation to determine the absence of any CCR management
unit. The Facility Evaluation Report Part 2 must include the
certifications required under paragraph (d)(3) of this section.
(e) Except as provided in paragraphs (e)(6) and (7) of this
section, the owner or operator of a CCR management unit must comply
with all of the following:
(1) Facility evaluation. (i) No later than February 9, 2026,
prepare a Facility Evaluation Report Part 1 as specified in Sec.
257.75(c);
(ii) No later than February 9, 2026, notify the Agency of the
establishment of a CCR website as specified in Sec. 257.75(c)(4);
(iii) No later than February 8, 2027, prepare a Facility Evaluation
Report Part 2 as specified in Sec. 257.75(d);
(2) Fugitive dust requirements. The owner or operator of a CCR
management unit must amend the written facility fugitive dust plan no
later than 30 days whenever there is a change in conditions that would
substantially affect the written plan in effect, such as the
construction and operation of a new CCR unit, as specified in Sec.
257.80(b)(6).
(i) The owner or operator of a CCR management unit at an other
active facility must prepare the initial fugitive dust plan no later
than August 9, 2027 as specified in Sec. 257.80(b)(5)(ii).
(ii) The owner or operator of a CCR management unit at an other
active facility must, prepare the initial annual fugitive dust control
report no later than October 9, 2028 as specified in Sec. 257.80(c).
(3) Groundwater monitoring and corrective action. (i) No later than
May 8, 2028, be in compliance with the requirements of Sec.
257.90(b)(3);
(ii) No later than January 31, 2029, prepare the initial
groundwater monitoring and corrective action report as set forth in
Sec. 257.90(e).
(4) Closure and post-closure care. Except as provided in (e)(8) of
this section:
(i) No later than November 8, 2028, prepare an initial written
closure plan as specified in Sec. 257.102(b);
(ii) No later than November 8, 2028, prepare an initial written
post-closure care plan as specified in Sec. 257.104(d); and
(iii) No later than May 8, 2029, initiate the closure of the CCR
management unit as specified in Sec. 257.101(f)(1).
(iv) No later than the date closure of the CCR management unit is
initiated, complete the notification of intent to close as specified in
Sec. 257.102(g).
(v) No later than the deadlines specified under Sec. 257.102(f),
complete closure of the CCR management unit.
(vi) Within 30 days of completing closure of the CCR management
unit,
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complete the notification of completion of closure as specified in
Sec. 257.102(h).
(vii) For owners and operators of CCR management units operating
under the deferral provisions in Sec. 257.101(g) and (h), the closure
deadlines of this paragraph (e)(4) are deferred until permitting as
described in Sec. 257.101(g) or (h);
(5) Recordkeeping, Notification, and internet Posting. Comply with
all applicable recordkeeping, notification, and internet posting
requirements as specified in Sec. Sec. 257.105 through 257.107.
(6) For owners and operators of CCR management units that have
utilized the legacy CCR surface impoundment applicability report
extension(s) in Sec. 257.100(f)(1)(iii), the deadlines in paragraphs
(e)(1) through (5) of this section are adjusted by the length of the
extension(s) as described in Sec. 257.100(f)(1)(iii)(E).
(7) For owners and operators of CCR management units that are
operating under the provisions in Sec. 257.100(h)(2), the deadlines in
paragraphs (e)(1) through (5) of this section are adjusted as described
in Sec. 257.100(h)(2)
(f) The owner or operator of the facility must comply with the
recordkeeping requirements specified in Sec. 257.105(f), the
notification requirements specified in Sec. 257.106(f), and the
internet requirements specified in Sec. 257.107(f).
0
5. Amend Sec. 257.80 by revising paragraph (b)(5) to read as follows:
Sec. 257.80 Air criteria.
* * * * *
(b) * * *
(5) (i) Except as provided in Sec. 257.100(a)(1), (e)(4)(i), and
(f)(3)(i), the owner or operator of a regulated CCR unit must prepare
an initial CCR fugitive dust control plan for the facility no later
than October 19, 2015, or by initial receipt of CCR in any CCR unit at
the facility if the owner or operator becomes subject to this subpart
after October 19, 2015.
(ii) The owner or operator of a CCR management unit at an other
active facility must prepare an initial CCR fugitive dust control plan
for the facility no later than August 9, 2027.
(iii) The owner or operator has completed the initial CCR fugitive
dust control plan when the plan has been placed in the facility's
operating record as required by Sec. 257.105(g)(1).
* * * * *
0
6. Amend Sec. 257.90 by revising paragraph (b)(3)(iii) and adding
(b)(4) to read as follows:
Sec. 257.90 Applicability.
* * * * *
(b) * * *
(3) * * *
(iii) Initiate the detection monitoring and assessment monitoring
programs to include obtaining a minimum of eight independent samples
for each background and downgradient well, as required by Sec. Sec.
257.94(b) and 257.95.
* * * * *
(4) Inactive CCR surface impoundments and legacy CCR surface
impoundments. (i) Except for as provided in paragraph (b)(4)(ii) of
this section, owners and operators of inactive CCR surface impoundments
must comply with the initial groundwater monitoring and corrective
action requirements no later than April 17, 2019, as specified in Sec.
257.100(e)(5)(i).
(ii) Owners and operators of inactive CCR surface impoundments at
active electric utilities and independent power producers that generate
electricity without the use of fossil fuel, provided the facility has
not generated electricity using fossil fuels on or after October 19,
2015, must comply with the initial groundwater monitoring and
corrective action requirements no later than May 10, 2027, as specified
in Sec. 257.100(a)(1) and (f)(4)(i) through (iii).
(iii) Owners and operators of legacy CCR surface impoundments must
comply with the initial groundwater monitoring and corrective action
requirements no later than May 10, 2027, as specified in Sec.
257.100(f)(4)(i) through (iii).
* * * * *
0
7. Amend Sec. 257.95 by revising paragraphs (a) and (b) to read as
follows:
Sec. 257.95 Assessment monitoring program.
(a) Assessment monitoring is required for all of the following:
(1) Whenever a statistically significant increase over background
levels has been detected for one or more of the constituents listed in
appendix III to this part;
(2) For legacy CCR surface impoundments, assessment monitoring must
be initiated no later than Monday, May 10, 2027; and
(3) For CCR management units, assessment monitoring must be
initiated no later than Monday, May 8, 2028.
(b) Within 90 days of triggering an assessment monitoring program,
or as provided in Sec. Sec. 257.90(b)(3) and 257.100(f)(4), and
annually thereafter, the owner or operator of the CCR unit must sample
and analyze the groundwater for all constituents listed in appendix IV
to this part.-The number of samples collected and analyzed for each
well during each sampling event must be consistent with Sec.
257.93(e), and must account for any unique characteristics of the site,
but must be at least one sample from each well.
* * * * *
0
8. Revise and republish Sec. 257.100 to read as follows:
Sec. 257.100 Inactive CCR surface impoundments and Legacy CCR surface
impoundments.
(a) General. (1) Inactive CCR surface impoundments are subject to
all of the requirements of this subpart applicable to existing CCR
surface impoundments, except that an active electric utility or
independent power producer that generates electricity without the use
of fossil fuel is subject to the compliance requirements and associated
deadlines applicable to legacy CCR surface impoundments in paragraph
(f)(1) of this section, provided the facility has not generated
electricity using fossil fuels on or after October 19, 2015.
(2) Legacy CCR surface impoundments are subject to all of the
requirements of this subpart applicable to existing CCR surface
impoundments, except for the requirements in Sec. Sec. 257.60 through
257.64 and 257.71.
(b) through (d) [Reserved]
(e) Timeframes for certain inactive CCR surface impoundments. (1)
An inactive CCR surface impoundment for which the owner or operator has
completed the actions by the deadlines specified in paragraphs
(e)(1)(i) through (iii) of this section is eligible for the alternative
timeframes specified in paragraphs (e)(2) through (6) of this section.
The owner or operator of the CCR unit must comply with the applicable
recordkeeping, notification, and internet requirements associated with
these provisions. For the inactive CCR surface impoundment:
(i) The owner or operator must have prepared and placed in the
facility's operating record by December 17, 2015, a notification of
intent to initiate closure of the inactive CCR surface impoundment
pursuant to Sec. 257.105(i)(1);
(ii) The owner or operator must have provided notification to the
State Director and/or appropriate Tribal authority by January 19, 2016,
of the intent to initiate closure of the inactive CCR surface
impoundment pursuant to Sec. 257.106(i)(1); and
(iii) The owner or operator must have placed on its CCR website by
January 19, 2016, the notification of intent to initiate closure of the
inactive CCR surface impoundment pursuant to Sec. 257.107(i)(1).
(2) Location restrictions. (i) No later than April 16, 2020, the
owner or
[[Page 4646]]
operator of the inactive CCR surface impoundment must:
(A) Complete the demonstration for placement above the uppermost
aquifer as set forth by Sec. 257.60(a), (b), and (c)(3);
(B) Complete the demonstration for wetlands as set forth by Sec.
257.61(a), (b), and (c)(3);
(C) Complete the demonstration for fault areas as set forth by
Sec. 257.62(a), (b), and (c)(3);
(D) Complete the demonstration for seismic impact zones as set
forth by Sec. 257.63(a), (b), and (c)(3); and
(E) Complete the demonstration for unstable areas as set forth by
Sec. 257.64(a), (b), (c), and (d)(3).
(ii) An owner or operator of an inactive CCR surface impoundment
who fails to demonstrate compliance with the requirements of paragraph
(e)(2)(i) of this section is subject to the closure requirements of
Sec. 257.101(b)(1).
(3) Design criteria. The owner or operator of the inactive CCR
surface impoundment must:
(i) No later than April 17, 2018, complete the documentation of
liner type as set forth by Sec. 257.71(a) and (b).
(ii) No later than June 16, 2017, place on or immediately adjacent
to the CCR unit the permanent identification marker as set forth by
Sec. 257.73(a)(1).
(iii) No later than October 16, 2018, prepare and maintain an
Emergency Action Plan as set forth by Sec. 257.73(a)(3).
(iv) No later than April 17, 2018, compile a history of
construction as set forth by Sec. 257.73(b) and (c).
(v) No later than April 17, 2018, complete the initial hazard
potential classification, structural stability, and safety factor
assessments as set forth by Sec. 257.73(a)(2), (b), (d), (e), and (f).
(4) Operating criteria. The owner or operator of the inactive CCR
surface impoundment must:
(i) No later than April 18, 2017, prepare the initial CCR fugitive
dust control plan as set forth in Sec. 257.80(b).
(ii) No later than April 17, 2018, prepare the initial inflow
design flood control system plan as set forth in Sec. 257.82(c).
(iii) No later than April 18, 2017, initiate the inspections by a
qualified person as set forth by Sec. 257.83(a).
(iv) No later than July 19, 2017, complete the initial annual
inspection by a qualified professional engineer as set forth by Sec.
257.83(b).
(5) Groundwater monitoring and corrective action. The owner or
operator of the inactive CCR surface impoundment must:
(i) No later than April 17, 2019, comply with groundwater
monitoring requirements set forth in Sec. Sec. 257.90(b) and
257.94(b); and
(ii) No later than August 1, 2019, prepare the initial groundwater
monitoring and corrective action report as set forth in Sec.
257.90(e).
(6) Closure and post-closure care. The owner or operator of the
inactive CCR surface impoundment must:
(i) No later than April 17, 2018, prepare an initial written
closure plan as set forth in Sec. 257.102(b); and
(ii) No later than April 17, 2018, prepare an initial written post-
closure care plan as set forth in Sec. 257.104(d).
(f) Timeframes for legacy CCR surface impoundments. Owners and
operators of legacy CCR surface impoundments are subject to the
requirements of paragraphs (f)(1) through (5) of this section, except
as provided in paragraphs (g) through (i) of this section.
(1) Legacy CCR surface impoundment applicability report. (i) Except
as provided in paragraph (f)(1)(iii) of this section, owners and
operators of legacy CCR surface impoundments must prepare a report for
each legacy CCR surface impoundment no later than Friday, November 8,
2024. The owner or operator has prepared the applicability report when
the report has been placed in the facility's operating record as
required by Sec. 257.105(k)(1). At a minimum, the report for each
legacy CCR surface impoundment must contain:
(A) The name and address of the person(s) owning and operating the
legacy CCR surface impoundment with their business phone number and
email address.
(B) The name associated with the legacy CCR surface impoundment.
(C) Information to identify the legacy CCR surface impoundment,
including a figure of the facility and where the unit is located at the
facility, facility address, and the latitude and longitude of the
facility.
(D) The identification number of the legacy CCR surface impoundment
if one has been assigned by the state.
(E) A description of the current site conditions, including the
current use of the inactive facility.
(ii) (A) The owner or operator of any legacy CCR surface
impoundment must certify the applicability report required by paragraph
(f)(1)(i) of this section with the following statement signed by the
owner or operator or an authorized representative:
I certify under penalty of law that I have personally examined and
am familiar with the information submitted in this demonstration and
all attached documents, and that, based on my inquiry of those
individuals immediately responsible for obtaining the information, I
believe that the submitted information is true, accurate, and complete.
I am aware that there are significant penalties for submitting false
information, including the possibility of fine and imprisonment.
(B) The owner or operator must notify the Agency of the
establishment of the facility's CCR website and the applicability of
the rule, using the procedures in Sec. 257.107(a) via the ``contact
us'' form on EPA's CCR website.
(iii)(A) Notwithstanding the deadline to complete the applicability
report under paragraph (f)(1)(i) of this section, an owner or operator
may secure additional time to complete the report for the sole reason
of determining through a field investigation whether the unit contains
both CCR and liquids. The amount of additional time that can be secured
is limited as specified in paragraph (f)(1)(iii)(B) of this section.
For owners and operators following the procedures of this paragraph
(f)(1)(iii), the compliance timeframes for all other applicable
requirements under this subpart are adjusted by the length of the
extension(s) justified under this paragraph (f)(1)(iii). To qualify for
additional time, the owner or operator must prepare an applicability
extension report consisting of the following:
(1) The information specified in paragraph (f)(1)(i)(A) through (C)
of this section;
(2) A statement by the owner or operator that to the best of their
knowledge or belief, existing and available information does not
provide a sufficient basis to determine that the unit contained free
liquids on or after October 19, 2015; and
(3) The details of a written field investigation work plan,
including all of the following:
(i) A detailed description of the approach to characterize the
physical, topographic, geologic, hydrogeologic, and hydraulic
properties of the CCR in the unit and native geologic materials beneath
and surrounding the unit, and how those properties will be used to
investigate for the presence of free liquids in the CCR unit.
(ii) A detailed description of the methods and tools that will be
employed to determine whether the unit contains free liquids, the
rationale for choosing these methods and tools, how these methods and
tools will be implemented, and at what level of spatial resolution at
the CCR unit to identify and monitor for the presence of free liquids.
(iii) A detailed description of how groundwater elevations will be
determined, and at what level of spatial resolution, in relation to the
sides and
[[Page 4647]]
bottom of the CCR unit and how any intersection of the groundwater
table with the CCR unit will be evaluated, and at what level of spatial
resolution.
(iv) A plan for evaluating stormwater flow over the surface of the
unit, stormwater drainage from the unit, and stormwater infiltration
into the unit and how those processes may result in the formation of
free liquids in the CCR unit. This plan must include a current
topographic map showing surface water flow and any pertinent natural or
man-made features present relevant to stormwater drainage, infiltration
and related processes.
(v) An estimated timeline to complete the workplan and make a
determination if the CCR unit contains free liquids.
(vi) A narrative discussion of how the results from implementing
the workplan will determine whether the unit contains free liquids
specified.
(vii) A narrative discussion describing any anticipated problems
that may be encountered during implementation of the workplan and what
actions will be taken to resolve the problems, and anticipated
timeframes necessary for such a contingency.
(viii) The owner or operator of the CCR unit must obtain a written
certification from a qualified professional engineer stating that the
field investigation work plan meets the requirements of paragraph
(f)(1)(iii)(A)(3) of this section.
(B) The maximum amount of additional time that can be secured under
paragraph (f)(1)(iii) of this section is 18 months, secured in 6-month
increments, provided each 6-month increment is supported by an
applicability extension report.
(C) Owners and operator must prepare the initial applicability
extension report no later than Friday, November 8, 2024. Subsequent
applicability extension reports must be prepared no later than 6 months
after completing the preceding applicability extension report. The
owner or operator has prepared the applicability extension report when
the report is placed in the facility's operating record as required by
Sec. 257.105(k)(2).
(D) No later than Friday, November 8, 2024, the owner or operator
must notify the Agency of the establishment of a CCR website using the
procedures in Sec. 257.107(a) via the ``contact us'' form on EPA's CCR
website.
(E) If the owner or operator determines that the unit contains free
liquids during implementation of the written field investigation
workplan, the owner or operator must cease operating under these
extension provisions and prepare the applicability report required by
paragraph (f)(1) of this section within 14 days of determining that the
unit contains free liquids. The owner or operator must comply with all
other applicable requirements under this subpart under new timeframes.
The new timeframes are determined by adding the total length of the
extension(s) justified under paragraph (f)(1)(iii) of this section to
each of the applicable requirement deadlines specified under this
subpart.
(F) If the owner or operator determines that the unit does not
contain both CCR and liquids during implementation of the written field
investigation work plan, the owner or operator must prepare a
notification stating that the field investigation has concluded and
that the owner or operator has determined that the unit does not
contain both CCR and liquids and does not meet the definition of a
legacy CCR surface impoundment. The owner or operator has prepared the
notification when the report is placed in the facility's operating
record as required by Sec. 257.105(k)(3).
(G) If the owner or operator does not complete the field
investigation work within the timeframes specified in paragraph
(f)(1)(iii)(B) of this section, the unit shall be considered a legacy
CCR surface impoundment and must comply with all other applicable
requirements under this subpart pursuant to the timeframes specified
under paragraph (f)(1)(iii)(E) of this section.
(2) Design criteria. The owner or operator of a legacy CCR surface
impoundment must:
(i) Except for legacy CCR surface impoundments that are incised, no
later than Wednesday, January 8, 2025, place on or immediately adjacent
to the CCR unit the permanent identification marker as set forth by
Sec. 257.73(a)(1).
(ii) Except for legacy CCR surface impoundments that do not exceed
the height and/or storage volume thresholds under Sec. 257.73(b), no
later than Monday, February 9, 2026, compile a history of construction
as set forth by Sec. 257.73(c).
(iii) Except for legacy CCR surface impoundments that are incised,
no later than Friday, May 8, 2026, complete the initial hazard
potential classification assessment as set forth by Sec. 257.73(a)(2)
and (f).
(iv) Except for legacy CCR surface impoundments that do not exceed
the height and/or storage volume thresholds under Sec. 257.73(b), no
later than Friday, May 8, 2026, complete the structural stability and
safety factor assessments as set forth by Sec. 257.73(d), (e), and
(f).
(v) Except for legacy CCR surface impoundments that are incised, no
later than Friday, May 8, 2026, prepare and maintain an Emergency
Action Plan as set forth by Sec. 257.73(a)(3).
(3) Operating criteria. The owner or operator of the legacy CCR
surface impoundment must:
(i) No later than Friday, November 8, 2024, prepare the initial CCR
fugitive dust control plan as set forth in Sec. 257.80(b).
(ii) No later than Friday, November 8, 2024, prevent the unknowing
entry, and minimize the possibility for the unauthorized entry, of
persons or livestock onto the legacy CCR surface impoundment.
(iii) No later than Friday, November 8, 2024, initiate the
inspections by a qualified person as set forth by Sec. 257.83(a).
(iv) No later than Monday, February 10, 2025, complete the initial
annual inspection by a qualified professional engineer as set forth by
Sec. 257.83(b).
(v) No later than Friday, May 8, 2026, prepare the initial inflow
design flood control system plan as set forth in Sec. 257.82(c).
(vi) No later than Thursday, January 8, 2026, prepare the initial
annual fugitive dust control report as set forth in Sec. 257.80(c).
(4) Groundwater monitoring and corrective action. No later than
Monday, May 10, 2027, the owner or operator of the legacy CCR surface
impoundment must:
(i) Install the groundwater monitoring system as required by Sec.
257.91.
(ii) Develop the groundwater sampling and analysis program,
including the selection of the statistical procedures, that will be
used for evaluating groundwater monitoring data as required by Sec.
257.93.
(iii) Be in compliance with the following groundwater monitoring
requirements:
(A) Initiate the detection monitoring and assessment monitoring
programs to include obtaining a minimum of eight independent samples
for each background and downgradient well, as required by Sec. Sec.
257.94(b) and 257.95.
(B) Begin evaluating the groundwater monitoring data for
statistically significant increases over background levels for the
constituents listed in appendix III of this part, as required by Sec.
257.94.
(C) Begin evaluating the groundwater monitoring data for
statistically significant levels over groundwater protection standards
for the constituents listed in appendix IV of this part as required by
Sec. 257.95.
[[Page 4648]]
(iv) No later than January 31, 2028, prepare the initial
groundwater monitoring and corrective action report as set forth in
Sec. 257.90(e).
(5) Closure and post-closure care. Except as provided in Sec.
257.102(g), the owner or operator of the legacy CCR surface impoundment
must:
(i) No later than Monday, November 8, 2027, prepare an initial
written closure plan as set forth in Sec. 257.102(b); and
(ii) No later than Monday, November 8, 2027, prepare an initial
written post-closure care plan as set forth in Sec. 257.104(d).
(g) For owners and operators of legacy CCR surface impoundments
that completed closure of the CCR unit by removal of waste prior to
Friday, November 8, 2024, no later than Friday, November 8, 2024,
complete a closure certification that includes the information in
paragraphs (g)(1) through (g)(6) of this section. If the owner or
operator meets all the requirements of this paragraph (g), no further
requirements under this subpart apply.
(1) The type and volume of CCR and all other materials in the unit
prior to closure;
(2) The methods used to verify complete removal of all CCR and
other contaminated materials from the unit, including any post-removal
sampling and analysis;
(3) Documentation that all CCR and other contaminated materials
were removed from the unit, including, the results of any post-removal
sampling and analysis that was conducted;
(4) The methods used to verify complete decontamination of all
areas affected by releases from the unit, including but not limited to
post-decontamination sampling and analysis;
(5) Documentation that all areas affected by releases from the unit
were decontaminated and that all groundwater affected by releases has
achieved groundwater protection standards; and
(6) Document that groundwater monitoring concentrations do not
exceed the groundwater protection standards established pursuant to
Sec. 257.95(h) for constituents listed in appendix IV to this part.
The documentation must also include a demonstration that the
groundwater monitoring system has met all of the following:
(i) Was capable of accurately representing background water quality
unaffected by a CCR unit;
(ii) Was capable of accurately representing the quality of water
passing the waste boundary of the unit;
(iii) Was capable of detecting contamination in the uppermost
aquifer;
(iv) Monitored all potential contaminant pathways;
(v) Established groundwater background concentrations for appendix
IV constituents and compared samples to those background
concentrations;
(vi) Monitoring wells must have been cased in a manner that
maintains the integrity of the monitoring well borehole. This casing
must have been screened or perforated and packed with gravel or sand,
where necessary, to enable collection of groundwater samples. The
annular space (i.e., the space between the borehole and well casing)
above the sampling depth must have been sealed to prevent contamination
of samples and the groundwater; and
(vii) The last groundwater monitoring sample used to document that
the standard in paragraph (g)(6) of this section has been met must have
been collected no earlier than one year prior to the initiation of
closure.
(h) If the owner or operator of a legacy CCR surface impoundment is
unable to complete the closure by removal certification by November 8,
2024, they may elect to conduct groundwater monitoring in accordance
with Sec. Sec. 257.90 through 257.95 to demonstrate there are no
exceedances of the groundwater protection standards. If the owner or
operator meets all the requirements of paragraph (h)(1) of this
section, no further requirements under this subpart apply. If the owner
or operator does not meet the requirements of paragraph (h)(1) of this
section by Monday, May 8, 2028 or if one or more constituents in
appendix IV to this part are detected at statistically significant
levels above the groundwater protection standard established under
Sec. 257.95(h), they must proceed in accordance with paragraph (h)(2)
of this section.
(1) In order to comply with this paragraph (h)(1), the owner or
operator must complete all of the following:
(i) Prepare a notification of intent to certify closure no later
than Friday, November 8, 2024. The owner or operator has prepared the
notification when the report is placed in the facility's operating
record as required by Sec. 257.105(k)(4).
(ii) Conduct groundwater monitoring in accordance with Sec. Sec.
257.90-257.95 for at least two consecutive sampling events to
demonstrate that all constituents in appendix IV of this part have
concentrations that do not exceed the groundwater protection standards
listed in Sec. 257.95(h).
(iii) Complete a closure by removal certification documenting
compliance with paragraphs (g)(1) through (5) and (h)(1)(ii) of this
section no later than Monday, May 8, 2028.
(2) If the owner or operator does not meet the requirements of
paragraph (h)(1) of this section (e.g., by the date or they detect an
SSL of an appendix IV constituent), they must comply with all of the
following:
(i) If a statistically significant level is detected, the
corrective action provisions and proceed in accordance with Sec.
257.102(c)(2).
(ii) The permanent marker requirements in Sec. 257.73(a)(1) no
later than 8 months from the date they became subject to this
requirement.
(iii) The applicability report requirements of paragraph (f)(1)(i)
of this section no later than 6 months from the date they became
subject to this requirement.
(iv) The facility evaluation provisions for CCR management units
under Sec. 257.75 no later than 33 months from the date they became
subject to this requirement.
(v) If any CCR management unit is discovered after completing the
facility evaluation report, the fugitive dust requirements of Sec.
257.80(b) no later than 6 months from the date of the facility
evaluation report.
(vi) The groundwater monitoring requirements for CCR management
units under Sec. 257.90(b)(3)(i) through (iv) no later than 48 months
from the date they became subject to this requirement.
(vii) The requirement to prepare an initial written closure plan
for CCR management units consistent with the requirements specified in
Sec. 257.102(b)(1) no later than 54 months from the date they became
subject to this requirement.
(viii) The requirement to prepare an initial post-closure plan for
CCR management units consistent with the requirements specified in
Sec. 257.104(d)(2)(iii) no later than 54 months from the date they
became subject to this requirement.
(ix) The requirement to initiate the closure of CCR management
units in accordance with the requirements of Sec. 257.102 no later
than 60 months from the date they became subject to this
(i) Owners and operators of legacy CCR surface impoundments that,
prior to Friday, November 8, 2024, either completed closure of the unit
in accordance with Sec. 257.102(d) or met the requirements in Sec.
257.101(g) must only:
(1) Prepare the applicability report as set forth by Sec.
257.100(f)(1) no later than November 8, 2024;
(2) Prevent the unknowing entry, and minimize the possibility for
the unauthorized entry, of persons or
[[Page 4649]]
livestock onto the legacy CCR surface impoundment as set forth in Sec.
257.100(f)(3)(ii) no later than November 8, 2024;
(3) Place on or immediately adjacent to the unit the permanent
identification marker as set forth by Sec. 257.73(a)(1) no later than
January 8, 2025;
(4) Compile a history of construction as set forth by Sec.
257.73(c) no later than February 9, 2026;
(5) Prepare the initial CCR fugitive dust control plan as set forth
in Sec. 257.80(b) no later than November 8, 2024;
(6) Prepare the initial annual fugitive dust control report as set
forth in Sec. 257.80(c) no later than January 8, 2026;
(7) No later than May 10, 2027, the owner or operator of the legacy
CCR surface impoundment must:
(i) Install the groundwater monitoring system as required by Sec.
257.91;
(ii) Develop the groundwater sampling and analysis program,
including the selection of the statistical procedures, that will be
used for evaluating groundwater monitoring data as required by Sec.
257.93;
(iii) Be in compliance with the following groundwater monitoring
requirements:
(A) Initiate the detection monitoring and assessment monitoring
programs to include obtaining a minimum of eight independent samples
for each background and downgradient well, as required by Sec. Sec.
257.94(b) and 257.95.
(B) Begin evaluating the groundwater monitoring data for
statistically significant increases over background levels for the
constituents listed in appendix III of this part, as required by Sec.
257.94;
(C) Begin evaluating the groundwater monitoring data for
statistically significant levels over groundwater protection standards
for the constituents listed in appendix IV of this part as required by
Sec. 257.95;
(8) Include in the applicability report specified in Sec.
257.100(f)(1) information on the completed closure, along with
supporting documentation to demonstrate that the closure meets the
performance standards in Sec. 257.102(d) or the standards specified in
Sec. 257.101(g);
(9) Prepare an initial written post-closure care plan as set forth
in Sec. 257.104(d) no later than November 8, 2027;
(10) Conduct post-closure care as set forth in Sec. 257.104(b);
and
(11) Comply with applicable recordkeeping, notification, and
website posting requirements as set forth by Sec. Sec. 257.105 through
257.107.
(j) The owner or operator of the legacy CCR surface impoundment
must comply with the recordkeeping requirements specified in Sec.
257.105(k), the notification requirements specified in Sec.
257.106(k), and the internet requirements specified in Sec.
257.107(k).
0
9. Amend Sec. 257.102 by adding paragraphs (e)(4)(vi) and (vii), and
revising paragraph (f)(1)(ii) to read as follows:
Sec. 257.102 Criteria for conducting the closure or retrofit of CCR
units and closure of CCR management units.
* * * * *
(e) * * *
(4) * * *
(vi) An owner or operator of a legacy CCR surface impoundment
closing the CCR unit as required by Sec. 257.101(e).
(vii) An owner or operator of a CCR management unit closing the CCR
unit as required by Sec. 257.101(f).
(f) * * *
(1) * * *
(ii) For existing and new CCR surface impoundments, any lateral
expansion of a CCR surface impoundment, and legacy CCR surface
impoundments, within five years of commencing closure activities.
* * * * *
[FR Doc. 2025-00848 Filed 1-15-25; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.