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Proposed Rule2025-08705

North Dakota: Approval of State Coal Combustion Residuals Permit Program

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Published

May 16, 2025

Issuing agencies

Environmental Protection Agency

Abstract

The Environmental Protection Agency (EPA or the Agency) is proposing to approve North Dakota Coal Combustion Residuals (CCR) partial permit program under the Resource Conservation and Recovery Act (RCRA). After reviewing the CCR permit program application submitted by the North Dakota Department of Environmental Quality (NDDEQ), EPA has preliminarily determined that North Dakota's CCR permit program meets the standard for partial approval under RCRA. If approved, North Dakota's CCR permit program will operate in lieu of the Federal CCR program with the exception of the specific provisions noted below. EPA is seeking comment on this proposal during a 60-day public comment period and will be holding a hybrid in-person and virtual public hearing on EPA's preliminary approval of North Dakota's partial CCR permit program.

Full Text

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<title>Federal Register, Volume 90 Issue 94 (Friday, May 16, 2025)</title>
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[Federal Register Volume 90, Number 94 (Friday, May 16, 2025)]
[Proposed Rules]
[Pages 20985-20996]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-08705]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2021-0051; FRL-12769-01-OLEM]

North Dakota: Approval of State Coal Combustion Residuals Permit
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of availability; request for comments.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to approve North Dakota Coal

[[Page 20986]]

Combustion Residuals (CCR) partial permit program under the Resource
Conservation and Recovery Act (RCRA). After reviewing the CCR permit
program application submitted by the North Dakota Department of
Environmental Quality (NDDEQ), EPA has preliminarily determined that
North Dakota's CCR permit program meets the standard for partial
approval under RCRA. If approved, North Dakota's CCR permit program
will operate in lieu of the Federal CCR program with the exception of
the specific provisions noted below. EPA is seeking comment on this
proposal during a 60-day public comment period and will be holding a
hybrid in-person and virtual public hearing on EPA's preliminary
approval of North Dakota's partial CCR permit program.

DATES: Comments must be received on or before July 15, 2025. Public
hearing: EPA will hold an in-person and online hybrid public hearing on
July 8, 2025.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2021-0051, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Land and Emergency Management (OLEM) Docket, Mail
Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
<bullet> Hand Delivery or Courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal
Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Michelle Lloyd, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, U.S. Environmental Protection Agency, 1200 Pennsylvania
Avenue NW, MC: 5304T, Washington, DC 20460; telephone number: (202)
566-0560; email address: <a href="/cdn-cgi/l/email-protection#5438383b2d307a393d373c31383831143124357a333b22"><span class="__cf_email__" data-cfemail="19757576607d3774707a717c75757c597c6978377e766f">[email&#160;protected]</span></a>. For more information
on this document please visit <a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
A. Written Comments
B. Participation in Hybrid Public Hearing
II. General Information
A. Overview of Proposed Action
B. Background
C. Statutory Authority
III. The North Dakota Application
IV. EPA Analysis of the North Dakota Application--Basis for Approval
A. Adequacy of the North Dakota Permit Program
1. Guidelines for Permitting
2. Guidelines for Public Participation
3. Guidelines for Compliance Monitoring Authority
4. Guidelines for Enforcement Authority
5. Intervention in Civil Enforcement Proceedings
B. Adequacy of Technical Criteria
1. North Dakota CCR Units and Resources
2. North Dakota CCR Regulations
3. North Dakota Partial Program
C. North Dakota's Permits Issued Under the State CCR Regulations
1. North Dakota's Permits Issued Under the State CCR Regulations
Are Not Part of the Permit Program Evidence Under Review
2. Status of North Dakota's Previously-Issued Permits Issued
Under the State CCR Regulations
V. Proposed Action

List of Acronyms

CBI Confidential Business Information
CCR coal combustion residuals
CFR Code of Federal Regulations
EPA Environmental Protection Agency
MSWLF municipal solid waste landfill
NDAC North Dakota Administrative Code
NDCC North Dakota Century Code
NDDEQ North Dakota Department of Environmental Quality
MCL maximum contaminant level
OLEM Office of Land and Emergency Management
RCRA Resource Conservation and Recovery Act
STAG State and Tribal Assistance Grant
USWAG Utility Solid Waste Activities Group
WIIN Water Infrastructure Improvements for the Nation

I. Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2021-
0051, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you consider to
be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.

B. Participation in Hybrid Public Hearing

EPA will begin pre-registering speakers for the hybrid public
hearing upon publication of this document in the Federal Register. To
register to speak at the hearing, please use the online registration
form available on EPA's CCR website (<a href="https://www.epa.gov/coalash/forms/public-hearing-north-dakotas-coal-combustion-residuals-permit-program">https://www.epa.gov/coalash/forms/public-hearing-north-dakotas-coal-combustion-residuals-permit-program</a>)
or contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to register to speak at the hearing. Both in-person and virtual
hearing attendees are requested to pre-register at the link provided
above. The last day to pre-register to speak at the hearing will be
July 2, 2025.
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be taken the day of the hearing at
the hearing registration desk or via the Q&A functionality of the
online platform. EPA will make every effort to accommodate all speakers
who arrive and register, although preferences on speaking times may not
be able to be fulfilled.
Each commenter will have five (5) minutes to provide oral
testimony. EPA encourages commenters to provide EPA with a copy of
their oral testimony electronically by emailing it to the person listed
in the FOR FURTHER INFORMATION CONTACT section. EPA also recommends
submitting the text of your oral comments as written comments to the
rulemaking docket. If EPA is anticipating a high attendance, the time
allotment per testimony may be

[[Page 20987]]

shortened to no shorter than three (3) minutes per person to
accommodate all those wishing to provide testimony and who have pre-
registered. While EPA will make every effort to accommodate all
speakers who do not preregister, opportunities to speak may be limited
based upon the number of pre-registered speakers. Therefore, EPA
strongly encourages anyone wishing to speak to preregister.
Participation in the public hearing does not preclude any entity or
individual from submitting a written comment.
EPA may ask clarifying questions during the oral presentations but
will not respond to the presentations at that time. Written statements
and supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearing.
Please note that any updates made to any aspect of the hearing are
posted online at EPA's CCR website at <a href="https://www.epa.gov/coalash/forms/public-hearing-north-dakotas-coal-combustion-residuals-permit-program">https://www.epa.gov/coalash/forms/public-hearing-north-dakotas-coal-combustion-residuals-permit-program</a>. While EPA expects the hearing to go forward as set forth
above, please monitor our website or contact the person listed in the
FOR FURTHER INFORMATION CONTACT section to determine if there are any
updates. EPA does not intend to publish a document in the Federal
Register announcing updates.
If you require the services of an interpreter or special
accommodations such as audio transcription or closed captioning, please
pre-register for the hearing and describe your needs on the
registration form by June 24, 2025. Alternatively, registrants may
notify the person listed in the FOR FURTHER INFORMATION CONTACT section
of any special needs. EPA may not be able to arrange accommodations
without advance notice.

II. General Information

A. Overview of Proposed Action

On April 17, 2015, EPA published a final rule creating 40 CFR part
257, subpart D, which establishes a comprehensive set of minimum
Federal requirements for the disposal of CCR in landfills and surface
impoundments (80 FR 21302) (``Federal CCR regulations'').\1\ Section
2301 of the 2016 Water Infrastructure Improvements for the Nation
(WIIN) Act amended RCRA section 4005 to create a new subsection (d)
that requires EPA to establish a Federal CCR permitting program. See 42
U.S.C. 6945(d).
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\1\ Unless otherwise specified, all references to part 257 and
part 239 in this document are to title 40 of the Code of Federal
Regulations (CFR).
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As amended, RCRA section 4005(d) also allows States to seek
approval for a State CCR permit program that will operate in lieu of a
Federal CCR permit program in the State. The statute provides that
within 180 days after a State submits a complete application to the
Administrator for approval, EPA shall approve the State permit program
if the Administrator determines that the State program requires each
CCR unit located in the State to achieve compliance with either the
Federal requirements or other State requirements that EPA determines,
after consultation with the State, are at least as protective as those
included in the Federal CCR regulations. See 42 U.S.C. 6945(d)(1)(B).
On March 10, 2023, the NDDEQ submitted its State CCR permit program
application to EPA Region 8 requesting approval of the State's partial
CCR permit program.\2\ EPA is proposing to approve the North Dakota
partial CCR permit program pursuant to RCRA section 4005(d)(1)(B). 42
U.S.C. 6945(d)(1)(B). The fact that North Dakota is seeking approval of
a partial program does not mean it must subsequently apply for full
program approval. However, North Dakota could apply for revised partial
program approval or full program approval at some point in the future
if it chooses to do so. If approved, the North Dakota CCR permit
program would operate in lieu of the Federal CCR program (codified at
40 CFR part 257, subpart D), with the exception of the provisions
specifically identified below for which the State is not seeking
approval and for which the corresponding provisions of the Federal CCR
program would remain in effect. For the approved provisions, EPA would
retain its inspection and enforcement authorities under RCRA sections
3007 and 3008, 42 U.S.C. 6927 and 6928, consistent with EPA's ongoing
oversight authority under RCRA. See 42 U.S.C. 6945(d)(4)(B).
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\2\ North Dakota Coal Combustion Residuals Permit Program
Submittal. North Dakota Department of Environmental Quality.
Transmitted by email from Diana Trussell, Division of Waste
Management, Manager, Solid Waste Program, to Regional Administrator
Becker, Region 8 Regional Administrator at the USEPA. March 2023.
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EPA has also engaged Federally recognized Tribes within the State
of North Dakota in consultation and coordination regarding the program
approval for the NDDEQ. EPA has established opportunities for an
informational session and consultation, beginning with an initial
conference call on May 28, 2021. Tribal consultation has been and will
continue to be conducted in accordance with the EPA policy on
Consultation and Coordination with Indian Tribes (<a href="https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf">https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf</a>). After the informational session, no Tribes sought
further Tribal consultation.

B. Background

CCR are generated from the combustion of coal, including solid
fuels classified as anthracite, bituminous coal, subbituminous coal,
and lignite, for the purpose of generating steam to power a generator
to produce electricity or electricity and other thermal energy by
electric utilities and independent power producers. CCR, commonly known
as coal ash, include fly ash, bottom ash, boiler slag, and flue gas
desulfurization materials. CCR can be sent offsite for disposal or
beneficial use or disposed of in on-site landfills or surface
impoundments. This section summarizes EPA's regulatory actions on CCR
to date to provide relevant background on this proposed approval of
North Dakota's partial CCR permit program.
On April 17, 2015, EPA published a final rule creating 40 CFR part
257, subpart D, which established a comprehensive set of minimum
Federal requirements for the disposal of CCR in landfills and surface
impoundments (80 FR 21302). The rule created a self-implementing
program that regulates the location, design, operating criteria, and
groundwater monitoring and corrective action for CCR units, as well as
the closure and post-closure care of CCR units. It also requires
recordkeeping and notifications for CCR units. The Federal CCR
regulations do not apply to ``beneficial use'' of CCR, as that term is
defined in 40 CFR 257.53.
On August 5, 2016, EPA published a direct final rule (81 FR 51802)
in response to an order issued by the United States Court of Appeals
for the District of Columbia Circuit (D.C. Circuit) in Utility Solid
Waste Activities Group, et al. v. EPA, No. 15-1219 (D.C. Cir. 2015).
The direct final rule removed certain provisions of the Federal CCR
regulations at 40 CFR 257.100(b), (c), and (d) related to the ``early
closure'' of inactive CCR surface impoundments by April 17, 2018, that
had been vacated by the D.C. Circuit.\3\ The direct final rule

[[Page 20988]]

extended the deadlines for owners and operators of inactive CCR surface
impoundments who had taken advantage of the ``early closure''
provisions of 40 CFR 257.100 to bring the units into compliance with
the Federal CCR regulations' substantive requirements, but did not
otherwise amend the Federal CCR regulations or impose new requirements
on those units.
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\3\ The D.C. Circuit also vacated the phrase ``not to exceed a
height of 6 inches above the slope of the dike'' within 40 CFR
257.73(a)(4), 257.73(d)(1)(iv), 257.74(a)(4), and 257.74(d)(1)(iv).
EPA proposed slope protection requirements in its March 2018
Proposed Rule (83 FR 11584, March 15, 2018) but has not yet
finalized such requirements.
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On March 15, 2018, EPA proposed to amend the Federal CCR
regulations (83 FR 11584) (``March 2018 Proposed Rule''). The March
2018 Proposed Rule: (1) Addressed provisions of the final rule that had
been remanded back to the Agency on June 14, 2016, by the D.C. Circuit;
(2) Provided States with approved CCR permit programs (or EPA where it
is the permitting authority) under RCRA section 4005(d) the ability to
set certain alternative performance standards; and (3) Addressed an
additional issue that had arisen since the April 2015 publication of
the final rule. In addition, EPA proposed provisions that would allow
States (or EPA where it is the permitting authority) the ability to
incorporate flexibilities into their CCR permit programs. These
flexibilities would also be available to facilities with EPA-issued CCR
permits, and included: (1) Clarification on the type and magnitude of
non-groundwater releases that would require a facility to comply with
some or all of the corrective action procedures set forth in 40 CFR
257.96 through 257.98 in meeting their obligation to clean up the
release; (2) The addition of boron to the list of constituents in
appendix IV of 40 CFR part 257 that trigger corrective action; (3) The
determination of the requirement for proper height of woody and grassy
vegetation for slope protection; (4) A revision of the current
regulations to allow the use of CCR in the construction of final cover
systems for CCR units closing pursuant to 40 CFR 257.101 that are
closing with waste-in-place; and (5) The addition of a new paragraph to
40 CFR 257.103 to allow facilities to qualify for the alternative
closure provisions based on the continued need to manage non-CCR
wastestreams in the unit.
On July 30, 2018, EPA finalized many of the proposed provisions
described above (83 FR 36435) (``July 2018 Final Rule''). Specifically,
EPA amended the CCR regulations to: (1) Provide States with approved
CCR permit programs under the 2016 WIIN Act (or EPA when it is the
permitting authority) the ability to use alternative performance
standards; (2) Revise the groundwater protection standards for four
constituents in appendix IV to 40 CFR part 257 for which maximum
contaminant levels (MCL) under the Safe Drinking Water Act have not
been established; and (3) Provide additional time to facilities,
triggered by 40 CFR 257.101(a)(1) and (b)(1)(i), to cease receiving
waste and initiate closure.
On August 28, 2020, EPA published a final rule (85 FR 53516)
(``Part A Final Rule''). The rule revises portions of the Federal CCR
regulations to: (1) Accurately reflect the D.C. Circuit's merits
decision in Utility Solid Waste Activities Group v. EPA, 901 F.3d 414
(D.C. Cir. 2018) (``USWAG''), which vacated and remanded to EPA the
provisions at 40 CFR 257.101(a), 257.71(a)(1)(i) and 257.50(e); (2)
Finalize a new deadline of April 11, 2021, in 40 CFR 257.101(a) and
(b)(1)(i), by which CCR surface impoundments must cease receipt of
waste in light of the 2018 USWAG decision and the D.C. Circuit's
subsequent decision in Waterkeeper Alliance Inc. v. EPA, No. 18-1289
(D.C. Cir. 2019); (3) Finalize alternative closure provisions at 40 CFR
257.103 in order to allow facilities to request additional time to
develop alternative capacity to manage their wastestreams (both CCR
and/or non-CCR) to achieve cease receipt of waste and initiate closure
of their CCR surface impoundments; and (4) Finalize two proposed
amendments from an August 14, 2019 proposed rule (84 FR 40353),
specifically, the addition of an executive summary to the annual
groundwater monitoring and corrective action reports under 40 CFR
257.90(e) and amend the requirements for posting to the publicly
accessible CCR internet sites under 40 CFR 257.107.
On November 12, 2020, EPA published another final rule making
additional revisions to Federal CCR regulations (85 FR 72506) (``Part B
Final Rule''). This rule finalized procedures to allow a limited number
of facilities to demonstrate to EPA or a Participating State Director
that, based on groundwater data and the design of a particular surface
impoundment, the unit has and will continue to ensure there is no
reasonable probability of adverse effects to human health and the
environment.
On May 8, 2024, EPA finalized a number of further amendments to the
Federal CCR regulations (89 FR 38950) (``Legacy CCR Surface
Impoundments and CCR Management Units Final Rule''). This rule is
currently being challenged in the D.C. Circuit. See City Utilities of
Springfield, Missouri v. EPA, No. 24-1200 (January 31, 2025). This
final rule imposed regulatory requirements for legacy CCR surface
impoundments and CCR management units at active CCR facilities and at
inactive CCR facilities with a legacy CCR surface impoundment. In
addition, the final rule made several technical corrections to the
existing regulations, such as correcting certain citations and
harmonizing definitions. On November 8, 2024, EPA published a direct
final rule to correct errors in the Legacy CCR Surface Impoundments and
CCR Management Units Final Rule. 89 FR 88650.

C. Statutory Authority

EPA is issuing this proposed action pursuant to RCRA sections
4005(d) and 7004(b)(1). See 42 U.S.C. 6945(d) and 6974(b)(1). As
amended by section 2301 of the 2016 WIIN Act, RCRA section 4005(d)
instructs the EPA to establish a Federal permit program similar to
those under RCRA subtitle C and other environmental statutes and
authorizes States to develop their own CCR permitting programs that go
into effect in lieu of the Federal permit program upon approval by EPA.
See 42 U.S.C. 6945(d).
Under RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), States
seeking approval of a State CCR program must submit to the
Administrator ``in such form as the Administrator may establish,
evidence of a permit program or other system of prior approval and
conditions under state law for regulation by the State of coal
combustion residuals units that are located in the state.'' The statute
provides that EPA shall approve a State CCR permit program if the
Administrator determines that the State program will require each CCR
unit located in the State to achieve compliance with either: (1) The
Federal CCR requirements at 40 CFR part 257, subpart D; or (2) Other
State criteria that the Administrator, after consultation with the
State, determines to be ``at least as protective as'' the Federal
requirements. 42 U.S.C. 6945(d)(1)(B). The Administrator must make a
final determination, after providing for public notice and an
opportunity for public comment, within 180 days of receiving a State's
complete submittal of the information specified in RCRA section
4005(d)(1)(A). 42 U.S.C. 6945(d)(1)(B). EPA may approve a State CCR
permit program in whole or in part. Id. Once approved, the State permit
program operates in lieu of the Federal requirements. 42 U.S.C.
6945(d)(1)(A). In a State with a partial program, only the State
requirements that have been

[[Page 20989]]

approved by EPA operate in lieu of the Federal requirements, and
facilities remain responsible for compliance with all remaining Federal
requirements in 40 CFR part 257.
As noted above, the Federal CCR regulations are self-implementing,
meaning that CCR landfills and surface impoundments must comply with
the terms of the regulations prior to obtaining a Federal permit or
permit issued by an approved State. Noncompliance with the Federal CCR
regulations can be the subject of an enforcement action brought
directly against the facility. Once a final CCR permit is issued by an
approved State or pursuant to a Federal CCR permit program, however,
the terms of the permit apply in lieu of the terms of the Federal CCR
regulations and/or requirements in an approved State program, and RCRA
section 4005(d)(3) provides a permit shield against direct enforcement
of the applicable Federal or State CCR regulations (meaning the
permit's terms become the enforceable requirements for the
permittee).\4\
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\4\ See U.S. Environmental Protection Agency. Coal Combustion
Residuals State Permit Program Guidance Document; Interim Final,
August 2017, Office of Land and Emergency Management, Washington, DC
20460 (providing that the 180-day deadline does not start until EPA
determines the application is complete).
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RCRA section 7004(b), which applies to all RCRA programs, directs
that ``public participation in the development, revision,
implementation, and enforcement of any . . . program under this chapter
shall be provided for, encouraged, and assisted by the Administrator
and the States.'' 42 U.S.C. 6974(b)(1). Accordingly, EPA considers
permitting requirements, requirements for compliance monitoring
authority, requirements for enforcement authority, and requirements for
intervention in civil enforcement proceedings in evaluating State CCR
permit program applications.
Once a State CCR permit program is approved, the Administrator must
review the approved program not less frequently than every 12 years, no
later than three years after a revision to an applicable section of 40
CFR part 257, subpart D, and no later than one year after any
unauthorized significant release from a CCR unit located in the State.
EPA also must review an approved State CCR permit program at the
request of another State alleging that the soil, groundwater, or
surface water of the requesting State is or is likely to be adversely
affected by a release from a CCR unit in the approved State. See 42
U.S.C. 6945(d)(1)(D)(i)(I) through (IV).
In a State with an approved State CCR permit program, EPA may
commence administrative or judicial enforcement actions under RCRA
section 3008, 42 U.S.C. 6928, if the State requests assistance or if
EPA determines that an EPA enforcement action is likely to be necessary
to ensure that a CCR unit is operating in accordance with the criteria
of the State's permit program. 42 U.S.C. 6945(d)(4). EPA can enforce
any Federal requirements that remain in effect (i.e., those for which
there is no corresponding approved State provision). EPA may also
exercise its inspection and information gathering authorities under
RCRA section 3007 in a State with an approved program. 42 U.S.C. 6927.

III. The North Dakota Application

EPA began working with NDDEQ in November 2019 as the State
developed its application for the State's partial CCR permit
program.\5\ As it has with other States, EPA discussed with NDDEQ the
process for EPA to review and approve the State's CCR permit program,
NDDEQ 's anticipated timeline for submitting a CCR permit program
application to EPA, and NDDEQ's regulations for issuing permits. On
September 21, 2020, the NDDEQ submitted its initial State CCR partial
permit program application to EPA Region 8 for approval.
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\5\ A summary of the meetings with, and emails shared between,
EPA and NDDEQ is included in the Technical Support Document. Records
of these interactions are included in the docket for this action.
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EPA reviewed NDDEQ's initial submission, held multiple meetings
with the NDDEQ, and sent comments to NDDEQ regarding the application.
In 2020 and 2021, EPA and NDDEQ discussed the State's adoption of
certain provisions in the March 2018 Proposed Rule. Because this rule
had not been finalized in relevant part, EPA advised the State that it
would need to submit a record to justify those aspects of the State
program if those non-finalized provisions were to be included. As a
result, NDDEQ is not seeking approval of these provisions in its
current application.
EPA also noted several differences in the State's technical
regulations and the State's application for the partial permit program,
including the need to further describe the public participation process
for CCR permits in North Dakota. Following these discussions, NDDEQ
submitted a revised application on May 21, 2021. Upon review of NDDEQ's
revised application, EPA determined that the definition of ``ground
water'' in the NDDEQ's State Rules at North Dakota Administrative Code
(NDAC) section 33.1-20-01.1-03 was not as protective as the definition
of ``groundwater'' in 40 CFR 257.53. Therefore, on February 23, 2023,
after consultation with EPA, NDDEQ amended its regulations to update
the definition of ``ground water'' as it applies to CCR units to be
identical to the Federal definition. On March 10, 2023, NDDEQ submitted
a revised partial CCR permit program application.

IV. EPA Analysis of the North Dakota Application--Basis for Approval

RCRA section 4005(d) requires EPA to evaluate two components of a
State CCR permitting program to determine whether it meets the standard
for approval: the program itself, and the technical criteria that will
be included in each permit issued under the State program. This section
discusses EPA's review of both requirements under RCRA section 4005(d)
and the criteria EPA uses to conduct this review.
First, EPA must evaluate the permit program itself (or other system
of prior approval and conditions). See 42 U.S.C. 6945(d)(1)(A) through
(B). RCRA section 4005(d)(1)(A) directs the State to provide evidence
of a State permit program's compliance with RCRA requirements in such
form as determined by the Administrator. In turn, RCRA section
4005(d)(1)(B) directs EPA to approve the State program based upon a
determination that the program ``requires each coal combustion
residuals unit located in the state to achieve compliance with the
applicable [Federal or State] criteria.'' In other words, the statute
directs EPA to determine that the State has sufficient authority to
require compliance at all CCR units located within the State. See also
42 U.S.C. 6945(d)(1)(D)(ii)(I). To make this determination, EPA
evaluates the State's authority to issue permits and impose conditions
in those permits, as well as the State's authority to conduct
compliance monitoring and enforcement.
During this review of the State permit program, EPA also determines
whether the program contains procedures consistent with the public-
participation directive in RCRA section 7004(b). RCRA section 7004(b),
which applies to all RCRA programs, directs that ``public participation
in the development, revision, implementation, and enforcement of any .
. . program under this chapter shall be provided for, encouraged, and
assisted by the Administrator and the States.'' 42 U.S.C. 6974(b)(1).
To make this determination, EPA evaluates the State's public
participation procedures for issuing

[[Page 20990]]

permits and for intervention in civil enforcement proceedings.
Although 40 CFR part 239 applies to the approval of State Municipal
Solid Waste Landfill (MSWLF) programs under RCRA section 4005(c)(1)
rather than EPA's evaluation of CCR permit programs under RCRA section
4005(d), the specific criteria outlined in that regulation provide a
helpful framework to examine the relevant aspects of a State's CCR
permit program. States are familiar with these criteria because all
States have MSWLF programs that have been approved pursuant to these
regulations, and the regulations are generally regarded as protective
and appropriate.
Consequently, EPA relied on the four categories of criteria
outlined in 40 CFR part 239 as guidelines to evaluate the North Dakota
CCR permit program: permitting requirements, requirements for
compliance monitoring authority, requirements for enforcement
authority, and requirements for intervention in civil enforcement
proceedings.
Second, EPA must evaluate the technical criteria that will be
included in each permit issued under the State CCR permit program to
determine whether they are the same as the Federal criteria, or to the
extent they differ, whether the modified criteria are ``at least as
protective as'' the Federal requirements. See 42 U.S.C. 6945(d)(1)(B).
Only if both components meet the statutory requirements may EPA approve
the program. See 42 U.S.C. 6945(d)(1). EPA makes this determination by
comparing the State's technical criteria to the corresponding Federal
criteria and, where necessary, evaluating whether a different State
criteria is at least as protective as the Federal criteria.
Upon careful review, and as discussed in more detail below, EPA has
preliminarily determined that the North Dakota CCR permit program
includes all the elements of an adequate State CCR permit program. It
also contains all the technical criteria in 40 CFR part 257, subpart D,
except for the provisions specifically discussed below that North
Dakota has not included in its partial permit program. Consequently,
EPA is proposing to approve the North Dakota permit program ``in part''
by approval the entirety of North Dakota's application, which does not
encompass the full scope of Federal criteria as presently constituted.
42 U.S.C. 6945(d)(1)(B).
EPA's full analysis of the North Dakota CCR permit program, and how
the North Dakota regulations differ from the Federal requirements, can
be found in the Technical Support Document. EPA determined that the
North Dakota CCR permit program application was complete and notified
North Dakota of its determination by letter dated May XX, 2025.\6\
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\6\ The North Dakota application, EPA's completeness
determination letter, and the Technical Support Document are
available in the docket supporting this action.
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A. Adequacy of the North Dakota Permit Program

Section 4005(d)(1)(A) of RCRA, 42 U.S.C. 6945(d)(1)(A), requires a
State seeking State CCR permit program approval to submit to EPA, ``in
such form as the Administrator may establish, evidence of a permit
program or other system of prior approval and conditions under State
law for regulation by the State of coal combustion residuals units that
are located in the State.'' Although the statute directs EPA to
establish the form of such evidence, the statute does not require EPA
to promulgate regulations governing the process or standard for
determining the adequacy of such State programs. EPA, therefore,
developed the Coal Combustion Residuals State Permit Program Guidance
Document; Interim Final (82 FR 38685, August 15, 2017) (the ``Guidance
Document''). The Guidance Document provides recommendations on a
process and standards that States may choose to use to apply for EPA
approval of its CCR permit programs, based on the standards in RCRA
section 4005(d), existing regulations at 40 CFR part 239, and the
Agency's experience in reviewing and approving State programs.
EPA evaluated the North Dakota CCR permit program using the process
and statutory and regulatory standards discussed in sections II.C. and
IV.A. of this preamble. EPA's findings are summarized below and
provided in more detail in the Technical Support Document located in
the docket supporting this preliminary determination.
1. Guidelines for Permitting
In EPA's judgment, an adequate State CCR permit program must ensure
that: (1) Existing and new facilities are permitted or otherwise
approved and in compliance with either 40 CFR part 257 or other State
criteria; (2) The State has the authority to collect all information
necessary to issue permits that are adequate to ensure compliance with
relevant 40 CFR part 257, subpart D requirements; and (3) The State has
the authority to impose requirements for CCR units adequate to ensure
compliance with either 40 CFR part 257, subpart D, or such other State
criteria that have been determined and approved by the Administrator to
be at least as protective as 40 CFR part 257, subpart D.
All owners and operators of existing and new CCR units in North
Dakota are required to comply with State CCR rules found at NDAC
Chapter 33.1-20-08, and to obtain a permit in accordance with NDAC
section 33.1-20-02.1 and NDAC section 33.1-20-03.1. The State CCR
regulations require every person who treats or transports solid waste
or operates a solid waste management unit or facility, including CCR
units, to have a valid permit issued by the NDDEQ. See NDAC section
33.1-20-01.1, 33.1-20.02.1. Permit application requirements can be
found in NDAC section 33.1-20-03.1-02. Once a permit application has
been submitted, NDDEQ will decide whether to approve the application,
return it for clarification and additional information, or deny the
application. See NDAC section 33.1-20-03.1-03. If the application is
approved, NDDEQ will prepare a draft permit and publish a public notice
in all daily newspapers of general circulation within the State of its
preliminary determination to issue a permit. See NDAC section 33.1-20-
03.2-03. The public may submit comments within 30 days of the notice
and NDDEQ will consider all written comments in its final
determination. See NDAC 33.1-20-03.2-03. Additionally, NDDEQ may hold a
public hearing if there is significant public interest. Then, NDDEQ
addresses public comments on the draft permit and makes the response to
comments publicly available. See NDAC section 33.1-20-03.1-03(3b).
NDDEQ has 120 days to review and approve or disapprove the application.
See NDAC section 33.1-20-03.1-04. Then, NDDEQ issues the final permit
decision and notifies the applicant and public commenters. As a matter
of policy, NDDEQ's Solid Waste Program posts all final permits for 30
days on the NDDEQ website at: <a href="https://deq.nd.gov/PublicNotice.aspx">https://deq.nd.gov/PublicNotice.aspx</a> and
<a href="https://deq.nd.gov/wm/PublicNotices/default.aspx">https://deq.nd.gov/wm/PublicNotices/default.aspx</a>. A notice is sent out
through NDDEQ's listserv stating that a final permit has been posted on
NDDEQ's website. This policy applies to all permit applications for
major modifications, new applications, and renewals.
A permit may be modified, suspended, revoked, or denied by NDDEQ
for various reasons, including: (1) Circumstances that do not meet the
purpose and provisions of NDDEQ's solid waste regulations, the
provisions of the permit, or the plans and specifications submitted as
part of the

[[Page 20991]]

permit application; or (2) Violations of any applicable laws or rules.
See NDAC section 33.1-20-02.1-07. The State's regulations specify what
changes are major modifications. See NDAC section 33.1-20-02.1-07(4).
Other changes to the permit may be made by written notice to and
approval by NDDEQ, such as a change in the frequency of monitoring and
reporting, waste sampling or analysis method, schedules of compliance,
and revised cost estimates for closure and post-closure care. See NDAC
section 33.1-20-02.1-07(3). An application for modification of a solid
waste management unit or facility must follow the procedures and
provisions in NDAC section 33.1-20-03.1-02.
The permit duration for all solid waste management facilities,
including CCR facilities, is no more than ten years from the date of
issuance. See the statute at North Dakota Century Code (NDCC) section
23.1-08-09(1). All permits are nontransferable. NDCC section 23.1-08-
09(1). An application for renewal of any permit must be submitted at
least sixty days prior to the expiration date. See NDAC section 33.1-
20-02.1-08. The application for renewal must follow the procedures and
provisions of NDAC section 33.1-20-03.1-02. The conditions of an
expired permit continue until the effective date of a new permit if the
permittee has submitted a timely and complete application for a new
permit and NDDEQ, through no fault of the permittee, does not issue a
new permit with an effective date on or before the expiration date of
the previous permit. See NDAC section 33.1-20-02.1-08. Permit renewals
are subject to the same requirements as new permit applications and are
therefore also subject to a 30-day public comment period and the
optional public hearing, consistent with NDAC section 33.1-20-03.1-
03(3). Id.
NDDEQ has the authority to collect all information necessary to
issue permits that are adequate to ensure compliance with NDAC Chapter
33.1-20-08. Specifically, NDAC section 33.1-20-02.1-04 requires permit
compliance such that ``all solid waste management facilities and
activities must be performed, constructed, operated, and closed in a
manner consistent with the permit application and subject to any
modifications specified through permit conditions.'' In addition, NDAC
section 33.1-20-03.1-02(6) specifies the information that applicants
for a solid waste permit, including a CCR unit permit, are required to
submit to show compliance with the solid waste rules.
EPA has preliminarily determined that North Dakota's approach to
CCR permit applications and approvals meets the standard for program
approval.
2. Guidelines for Public Participation
Based on RCRA section 7004, 42 U.S.C. 6974, it is EPA's judgment
that an adequate State CCR permit program will ensure that: (1)
Documents for permit determinations are made available for public
review and comment; (2) Final determinations on permit applications are
made known to the public; and (3) Public comments on permit
determinations are considered and significant comments are responded to
in the permit record. EPA's review of North Dakota's CCR permit program
indicates that the State has adopted public participation procedures
that allow interested parties to talk openly and frankly about permit
issues and search for mutually agreeable solutions to differences in
views. An overview of North Dakota's public participation provisions is
provided below.
a. Public Notice and Participation in the CCR Permit Application
Process
The State program provides public notice in several ways and at
several different stages of the permitting process, which taken
together ensure that documents for permit determinations are subject to
public review and comment. NDDEQ requires State CCR permit applicants
to provide notice to the public. Under NDAC section 33.1-20-03.1-02,
NDDEQ requires an applicant for a new solid waste management facility
permit to publish a notice to the public that an application for a new
permit, permit modification, or renewal of a permit has been submitted
to the State. The notice must indicate the type and location of the
unit or facility and must be published in two separate publications of
the official county newspaper of the county in which the facility is or
will be located. Pursuant to NDAC 33.1-20-03.1-02, applicants proposing
a solid waste management unit in a mining permit area for disposal of
CCR must also file a copy of the application with the Public Service
Commission in accordance with NDAC section 69-05.2-19.02(1). In
addition to these obligations on the permit applicant, the North Dakota
program also requires the State itself to provide notice to the public.
NDCC 23.1-08-09 provides that NDDEQ shall give public notice upon
receipt of a permit application in the official newspaper of the county
in which the facility is to be located, noting the State is considering
an application for a solid waste management facility. The notice must
include the name of the applicant, the location of the facility, and a
description of the facility.
If NDDEQ makes a preliminary determination to issue a permit for a
solid waste management facility, NDDEQ prepares an application review
memo and draft permit. See NDAC section 33.1-20-02.1-03. The
application review memo briefly describes the principal facts and the
significant factual, legal, procedural, and policy questions that were
considered in preparing the draft permit. It also includes a facility
description, the activity subject to the permit, the type and
quantities of wastes to be disposed, the permit conditions, actions on
any requested variances, the procedures for reaching a final permit
decision, and contact information. NDAC section 33.1-20-03.1-03(3)
requires the State to publish public notice for a draft solid waste
management facility permit in the official county newspaper of the
county in which the solid waste management unit or the facility is
located and daily newspaper of general circulation in the area of the
facility. Per State policy, the public notice is posted on the NDDEQ
Division of Waste Management's website under the Public Comments and
Notices section. The public can view and download the application,
review documents, and contact the State to request the application. The
State transmits its notice of preliminary determination to issue a
permit in writing to each unit of local government having jurisdiction
over the area in which the facility is or will be located, and to each
State agency having any authority under State law with respect to the
construction and operation of the facility. The public notice is also
sent to NDDEQ's email listserv group, which transmits the notice to all
members of the public that have signed up to receive electronic public
notices from NDDEQ. The State may also use other methods to provide
direct notice to persons potentially affected by the permitting action.
NDDEQ accepts public comment on the draft permit during a 30-day
public comment period. NDAC 33.1-20-03.1-03 specifies that interested
persons may submit written comments on the draft permit during that
time, and all written comments will be considered in NDDEQ's final
determination. In addition, whenever a final permit decision is made,
NDDEQ makes available to the public a written response to all
significant comments on the draft permit raised during the public

[[Page 20992]]

hearing and public comment period. See NDDEQ's statute at NDCC section
23.1-01-11. This response will also specify which provisions, if any,
in the draft permit have been changed in the final permit decision and
the reasons for the change. The public comment period may be extended
for permit applications with significant public interest. NDDEQ has
discretion to grant extensions based on public interest. To request an
extension of the public comment period, a written comment must be
submitted as listed in the public notice. The public notice states,
``During that period, any interested person may submit written comments
and request a public hearing by stating the nature of specific issues
to be raised.'' This applies to all permit applications for major
modifications, new and/or renewals. NDAC 33.1-20-02.1-07(5) and 33.1-
20-02.1-08 (citing to NDAC 33.1-20-03.1-02); See NDAC 33.1-20-03.1-03
(in which ``the draft permit'' includes new permits, permits with major
modifications, and permit renewals). NDAC 33.1-20-03.1-03(3)(b)
provides that NDDEQ may hold such a hearing if it determines that there
is a significant public interest in a hearing. That provision further
provides that a public notice will be issued in the same manner as the
for a draft permit and that the hearing will be held at least fifteen
days after the public notice has been published.
In addition, NDAC 33.1-20-08-06(6)(e) requires a public meeting
with interested and affected persons whereby the owner or operator must
discuss results of the assessment of remedial measures at least 30 days
prior to selection of a corrective action remedy.
The State's provisions for open records laws are found in section 6
of Article XI of the North Dakota Constitution and section 44-04 of the
NDAC.
b. Challenges to Permit Decisions
NDCC 23.1-01-11 provides that any person aggrieved by a permit
decision may file an appeal in district court within 30 days of
notification of the permit decision. NDCC 28-32-40 grants any person
aggrieved by any NDDEQ decision the right to request a rehearing. In
accordance with NDCC 28-32-42, any party to a proceeding may appeal
NDDEQ's final order or decision to district court within 30 days of the
order or decision. Petitions to reopen a hearing or for a rehearing may
be made under NDCC 98-02-04.
EPA has preliminarily determined that North Dakota's approach to
public participation requirements provides adequate opportunities for
public participation in the permitting process sufficient to meet the
standard for program approval. The provisions described above meet the
three criteria listed at the beginning of this section by providing
several means by which documents for draft and final permit
determinations are made available for public review and comment, as
well as ensuring that public comments on permit determinations are
considered and significant comments are responded to in the permit
record.
3. Guidelines for Compliance Monitoring Authority
It is EPA's judgment that an adequate permit program should provide
the State with the authority to gather information about compliance,
perform inspections, and ensure that information it gathers is suitable
for enforcement. NDDEQ has compliance monitoring authority under NDCC
23.1-08-18 and NDAC 33.1-20-04.1-04(2). Specifically, the State has
statutory authorities to conduct inspections (including monitoring and
testing) and enter a site for the purposes of determining compliance.
See (1) NDAC 33.1-20-04.1-04(2) for the authority to obtain records and
information, (2) NDCC 23.1-08-18 for the authority to conduct
monitoring and testing, and (3) NDCC 23.1-08-18 for the authority to
access any site or premise subject to the permit program or the records
location. In addition, NDCC 23.1-08-18 provides that NDDEQ ``may
inspect all solid waste management activities and facilities, at all
reasonable times, to ensure compliance with the laws of this state, the
provisions of this chapter, and the rules authorized under this
chapter.''
In addition, NDAC section 33.1-20-03.1-02(6) specifies the
information that applicants for a solid waste permit, including a CCR
unit permit, are required to submit to show compliance with the solid
waste rules:
<bullet> The site characterization in NDAC section 33.1-20-13-01
and a demonstration that the site fulfills the location standards of
NDAC section 33.1-20-04.1-01. The location standards for CCR units are
found in NDAC section 33.1-20-08-03;
<bullet> Soil survey and segregation of suitable plant growth
material;
<bullet> Demonstrations of capability to fulfill the general
facility standards of NDAC section 33.1-20-04.1-02;
<bullet> Facility engineering specifications adequate to
demonstrate the capability to fulfill performance, design, and
construction criteria provided for CCR units in NDAC chapter 33.1-20-
08;
<bullet> The plan of operation required in NDAC section 33.1-20-
04.1-03. Operation requirements for CCR units are in NDAC section 33.1-
20-08-05;
<bullet> The place where the operating record is or will be kept,
NDAC section 33.1-20-04.1-04.
<bullet> Requirements for recordkeeping, notification, and posting
of information to the internet are in NDAC section 33.1-20-08-08;
<bullet> Demonstration of capability to fulfill the ground water
monitoring standards, NDAC section 33.1-20-08-06 or 33.1-20-13-02;
<bullet> Construction quality assurance and quality control;
<bullet> Demonstrations of capability to fulfill the closure
standards, NDAC section 33.1-20-04.1-05 and otherwise provided by the
solid waste rules;
<bullet> Demonstrations of capability to fulfill the post-closure
standards, NDAC section 33.1-20-04.1-09 and otherwise provided by the
solid waste rules; and
<bullet> An environmental compliance disclosure statement as
required by NDCC section 23.1-08-17.
The State has authorities and guidelines for inspections, analysis
and monitoring, which allow the State to: (1) Verify the accuracy of
information submitted by owners or operators of the CCR unit; (2)
Verify the adequacy of methods (including sampling) used by owners or
operators in developing that information; (3) Produce evidence
admissible in an enforcement proceeding; and (4) Receive and ensure
proper consideration of information submitted by the public. See NDAC
33.1-20-04.1-04(2) for the authority to obtain all records and
information necessary to determine compliance with State requirements.
An owner or operator shall provide a copy of any document in its
operating record upon NDDEQ's request. NDDEQ verifies all plans and
reports for completeness, accuracy, and compliance. NDDEQ uses
guidelines based on standard industry practices to verify the adequacy
of methods used. Any alternate method, including supporting
documentation, must be evaluated and approved by the State. Waste
samples must be analyzed in a State approved and certified laboratory.
The State employs quality assurance and chain-of-custody procedures
from their Quality Assurance Manual, which was approved by EPA Region
8.\7\ In addition, the State ensures that it receives and ensures
proper consideration of compliance information submitted by the public
as North Dakota places a high priority on

[[Page 20993]]

addressing public comments and investigating and tracking complaints in
NDDEQ's Complaints Database.
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\7\ North Dakota Department of Environmental Quality. 2022.
Quality Management Plan for the Department of Environmental Quality.
Revision 12. Document Applicable for 5 years from date of EPA Region
8 RQAM Signature. August.
---------------------------------------------------------------------------

EPA has preliminarily determined that these compliance monitoring
authorities are adequate, and that this aspect of the North Dakota CCR
permit program meets the standard for program approval.
4. Guidelines for Enforcement Authority
It is EPA's judgment that an adequate State CCR permit program
should provide the State with adequate enforcement authority to
administer its State CCR permit program, including the authority to:
(1) Restrain any person from engaging in activity which may damage
human health or the environment; (2) Sue to enjoin prohibited activity,
and (3) Sue to recover civil penalties for prohibited activity.
NDDEQ has adequate enforcement authority under the State's
statutory authorities to immediately address activities that may
endanger or cause damage to human health and the environment. NDCC
23.1-08-20 contains the authorities for injunction proceedings, whereby
the State may maintain an action in the name of the State enjoining the
action or for an order directing compliance. NDCC 23.1-08-03 contains
the powers and duties of the State to prepare, issue, modify, revoke,
and enforce orders after investigation, inspection, notice, and hearing
requiring remedial measures for solid waste management as necessary or
appropriate.
NDDEQ can sue in superior court for permanent and temporary
injunctions, restraining orders, and other relief for activities that
violate the State program. The authorities for these actions are
contained in NDCC 23.1-08-20 and NDCC 23.1-08-03. The State has the
authority to bring an administrative action to assess civil penalties
for violations of the State's program. NDCC 23.1-08-23 provides the
authority to assess a civil penalty up to $12,500 per day per violation
of the Code, State rules, or conditions of permits. The State also
utilizes the same penalty policies, procedures, and penalty calculation
matrix as the other portions of the State's RCRA program. The State
also utilizes EPA's RCRA Civil Penalty Policy \8\ as a guide where
circumstances dictate assessment of a penalty.
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\8\ EPA, Resource Conservation and Recovery Act (RCRA) Civil
Penalty Policy, available at <a href="https://www.epa.gov/enforcement/resource-conservation-and-recovery-act-rcra-civil-penalty-policy">https://www.epa.gov/enforcement/resource-conservation-and-recovery-act-rcra-civil-penalty-policy</a>.
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EPA has preliminarily determined that this aspect of the North
Dakota CCR permit program meets the standard for program approval.
5. Intervention in Civil Enforcement Proceedings
Based on RCRA section 7004, it is EPA's judgment that an adequate
State CCR permit program should provide an opportunity for citizen
intervention in civil enforcement proceedings. Specifically, the State
must either: (1) Provide for citizen intervention as a matter of right,
or (2) Have in place a process to (a) Provide notice and opportunity
for public involvement in civil enforcement actions, (b) Investigate
and provide responses to citizen complaints about violations, and (c)
Not oppose citizen intervention when permissive intervention is allowed
by statute, rule, or regulation.
The State program meets this first requirement. Under NDCC 23.1-08-
23, North Dakota has specific authorities for intervention as a matter
of right, and NDDEQ's rules provide for persons adversely affected by a
violation to commence a civil action. This NDDEQ provision is specific
to CCR or any permit condition, rule, order, limitation, or other
requirement implementing the chapter relating to CCR. Under the North
Dakota Environmental Law Enforcement Act of 1975, NDCC 32-40-06, any
person aggrieved by a violation of any environmental statute, rule, or
regulation may bring an action in the appropriate district court for
enforcement and/or damages.
NDDEQ actively investigates and provides responses to citizen
complaints, but it has not been the policy of NDDEQ to provide notice
and opportunity for public involvement in proposed settlements of civil
enforcement actions. NDDEQ does not oppose justified citizen
interventions in accordance with NDCC section 23.1-08-23. However,
since the State program meets the first requirement, it does not need
to meet (2)(a) and (2)(c).
Because the State statute provides for intervention as a right in
any civil action, and thus meets the first requirement, EPA has
preliminarily determined that these authorities provide for an adequate
level of citizen involvement in the enforcement process, and that this
aspect of the North Dakota CCR permit program meets the standard for
program approval.

B. Adequacy of Technical Criteria

EPA conducted an analysis of North Dakota's CCR permit program
application, including a thorough analysis of North Dakota statutory
authorities for the CCR program, as well as its regulations at NDAC
Chapter 33.1-20-08 of the Solid Waste Management Rules and NDCC 23.1-08
Solid Waste Management and Land Protection. As noted, North Dakota has
requested approval of its partial CCR permit program, which is
described further below.
1. North Dakota CCR Units and Resources
NDDEQ has identified 15 disposal units that are currently or have
been used for disposal of CCR wastes (7 landfills and 8 surface
impoundments) at 7 facilities in North Dakota.\9\ EPA has preliminarily
determined that NDDEQ has demonstrated that it has the personnel and
funding to administer a permit program that is at least as protective
as the Federal requirements.\10\ North Dakota indicates that the State
program is funded from two sources: permit fees and State general funds
appropriated to NDDEQ. NDDEQ anticipates that the total funds for
administering the Solid Waste Program, including the CCR permit
program, will continue to be approximately $2.2 million. In addition,
NDDEQ applied for EPA State and Tribal Assistance Grants (STAG) funding
for Fiscal Years 2021 through 2023. In total, NDDEQ has received
$571,396 in STAG funding to develop its CCR permit program. If EPA
receives future appropriations, if approved, NDDEQ can continue to
apply and receive funds for implementation of its CCR permit program.
EPA has preliminarily determined that the NDDEQ staffing and funding
are adequate for NDDEQ to administer the CCR permit program.
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\9\ For more information on the specific facilities covered by
the North Dakota CCR Permit Program, see pages 25-26 of the
Narrative, which is included in the docket for this action.
\10\ The discussion on State personnel and funding is included
on pages 26-30 of the Narrative, which is included in the docket for
this action, and is described further in the Technical Support
Document.
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2. North Dakota CCR Regulations
EPA has preliminarily determined that the portions of the North
Dakota CCR permit program that were submitted for approval meet the
standard for approval under RCRA section 4005(d)(1)(B)(i), 42 U.S.C.
6945(d)(1)(B)(i). To make this preliminary determination, EPA compared
the technical requirements in the North Dakota CCR regulations at NDAC
Chapter 33.1-20-08 to the Federal CCR regulations at 40 CFR part 257 to
determine whether they differed from the Federal requirements, and if

[[Page 20994]]

so, whether those differences met the standard in RCRA sections
4005(d)(1)(B)(ii) and (C), 42 U.S.C. 6945(d)(1)(B)(ii) and (C).
NDDEQ derives its authority to operate the Solid Waste Program in
North Dakota from the Solid Waste Management and Land Protection Act,
NDCC Chapter 23.1-08. NDDEQ largely adopted by reference the
requirements at 40 CFR part 257, subpart D. See NDAC Chapter 33.1-20-
08. Specifically, on July 1, 2020, North Dakota adopted by reference 40
CFR part 257, subpart D, as amended through the July 2018 Final Rule,
and as modified by the USWAG decision. In addition, North Dakota
adopted certain provisions from the March 2018 Proposed Rule, which
provided certain flexibilities that were never finalized in the Federal
CCR regulations, and the July 2018 final rule, which was challenged in
the Waterkeeper litigation before the D.C. Circuit and is being
reconsidered by EPA; therefore, EPA is not able to approve the majority
of these flexibility provisions. For this reason, NDDEQ is no longer
seeking approval for the majority of these flexibility provisions,
which are described more in the Technical Support Document. In
addition, on February 23, 2023, after consultation with EPA, NDDEQ
amended its State regulations to update the definition of ``ground
water'' as it applies to CCR facilities. With these exceptions, the
technical requirements are analogous to the Federal regulations, and
therefore are at least as protective.
In addition to the technical criteria in NDAC Chapter 33.1-20-08,
North Dakota has adopted State-specific permit requirements in NDAC
33.1-20-02; public participation requirements in NDAC 33.1-20-03.1-02,
NDAC 33.1-20-03.1-03, NDCC 23.1-08-09, and NDAC 33.1-20-08-06; and
State financial assurance requirements in NDAC 33.1-20-14. For certain
activities, North Dakota has additional requirements for CCR units,
described more in the Technical Support Document.
3. North Dakota Partial Program
NDDEQ is seeking approval of its partial State CCR permit program
pursuant to RCRA section 4005(d). NDDEQ's rules mirror the Federal
regulations promulgated through July 30, 2018, and as subsequently
modified to comply with the D.C. Circuit's decision in USWAG. NDDEQ has
not amended its State CCR regulations to incorporate the Federal Part A
Final Rule, the Part B Final Rule, or the Legacy CCR Surface
Impoundments and CCR Management Units Final Rule. Additionally, NDDEQ
initially sought approval for provisions it adopted from the March 2018
Proposed Rule and the July 2018 Final Rule, but now is not seeking
approval for a majority of those provisions. The two categories of
provisions for which North Dakota is not seeking approval are: (1)
State solid waste management regulations, and (2) Provisions that are
in the Federal CCR regulations, but that the State does not have an
analog to, or the analog is not as protective as the Federal
regulation.
First, North Dakota is not seeking approval for the following 17
provisions of the State regulations:
1. NDAC section 33.1-20-01.1-14; this State provision allows for
certain variances, which could be less protective than the Federal CCR
regulations. Therefore, this provision will not apply to CCR units;
2. NDAC section 33.1-20-02.1-03; this State provision allows the
State to issue general permits for certain solid waste activities,
which could be less protective than the Federal CCR regulations.
Therefore, this provision will not apply to CCR units;
3. The definition of Nonground water releases at NDAC section 33.1-
20-08-01(19); this State provision contains corrective action
procedures to remedy eligible non-ground water releases, which is less
protective than the Federal CCR regulations;
4. NDAC section 33.1-20-08-02(3); this State provision is the
analog to the Federal exclusion of inactive surface impoundments at
inactive facilities, found at 40 CFR 257.50(e), that was vacated in
USWAG and revised in the Legacy CCR Surface Impoundments and CCR
Management Units Final Rule. This provision is less protective than the
Federal CCR regulations;
5. NDAC section 33.1-20-08-04(2)(a)(1)(b); this State provision
contains requirements for an alternative composite liner using
recognized and generally accepted good engineering practices, which is
less protective than the Federal CCR regulations;
6. NDAC section 33.1-20-08-06(1)(f); the State provision for the
suspension of ground water monitoring requirements, which is less
protective than the Federal CCR regulations;
7. NDAC section 33.1-20-08-06(5)(h)(2); the alternative groundwater
protection standard concentrations for cobalt, lead, lithium, and
molybdenum; this provision was challenged in Waterkeeper and is under
reconsideration by the Agency. Therefore, the State is not seeking
approval for this provision;
8. NDAC section 33.1-20-08-06(5)(g)(5); this State provision is the
analog to the Federal requirement that unlined CCR surface impoundments
must retrofit or close after an assessment of corrective measures is
required, found at 40 CFR 257.95(g)(5), which references a provision
that was vacated in USWAG. This provision is less protective than the
Federal CCR regulations;
9. NDAC section 33.1-20-08-06(7)(b)(2); the State provision allows
for a corrective action remedy to attain a risk-based groundwater
concentration that is protective of human health and the environment,
which is less protective than the Federal CCR regulations;
10. NDAC section 33.1-20-08-06(7)(e); this State provision states
that the NDDEQ determination that a remediation of a release of a
constituent listed in appendix II may not be necessary, which is less
protective than the Federal CCR regulations;
11. NDAC section 33.1-20-08-06(8)(c)(4); this State provision
authorizes the NDDEQ to specify an alternative length of time to
demonstrate that concentrations of constituents listed in appendix II
have not exceeded the ground water protection standards, which is less
protective than the Federal CCR regulations;
12. NDAC section 33.1-20-08-06(9); this State provision contains
corrective action procedures to remedy eligible nonground water
releases. Also, NDDEQ is not applying for any references to NDAC
section 33.1-20-08-06(9), including NDAC section 33.1-20-08-
05(5)(b)(5), NDAC section 33.1-20-08-06(1)(d), NDAC section 33.1-20-08-
08(1)(h)(15) for the notification of discovery of a nonground water
release, and NDAC section 33.1-20-08-08(1)(h)(16) as this State
provision relates to the submission of a report documenting the
completion of the corrective action. These provisions are less
protective than the Federal CCR regulations;
13. NDAC section 33.1-20-08-07(2)(a); this State provision relates
to the date for unlined surface impoundments to cease receipt of waste,
which is less protective than the Federal CCR regulations;
14. NDAC section 33.1-20-08-07(2)(b)(1)(a); this State provision
relates to the date for unlined surface impoundments to cease receipt
of waste, which is less protective than the Federal CCR regulations;
15. NDAC section 33.1-20-08-07(3)(d)(4); this State provision
relates to the use of CCR in design and construction of final cover
system, which is less protective than the Federal CCR regulations;

[[Page 20995]]

16. NDAC section 33.1-20-08-07(4); this State provision is the
analog to the Federal alternative closure requirements of CCR units,
found at 40 CFR 257.103. This includes no alternative capacity for non-
CCR wastestreams. NDDEQ has not amended its regulations to adopt the
Federal CCR regulation provisions in the Part A Final Rule; and
17. Paragraphs (2) and (3) of NDAC section 33.1-20-08-07(5)(c);
these State provisions relate to the alternate post-closure period.
Also, NDAC section 33.1-20-08-08(1)(i)(14) relating to the notification
of a demonstration including long-term performance data supporting the
reduced post-closure care period. These provisions are less protective
than the Federal CCR regulations.
Second, the following 7 provisions are incorporated by 40 CFR
257.52 into the Federal CCR regulations or are otherwise included in
the Federal CCR regulations, but the State does not have an analog or
the analog is not as protective as the Federal CCR regulation. For
these provisions, the corresponding Federal CCR regulation will
continue to apply directly to each regulated CCR unit:
1. NDAC section 33.1-20-04.1-01(2)(a)(3) for floodplains; the
Federal requirements for floodplains, found at 40 CFR 257.3-1;
2. NDAC section 33.1-20-04.1-01(2)(a)(7) for endangered species;
the Federal requirements for endangered species, found at 40 CFR 257.3-
2;
3. NDAC section 33.1-20-04.1-02(3) for surface water; the Federal
requirements for surface water, found at 40 CFR 257.3-3;
4. 40 CFR 257.71(d) for alternate liner demonstrations;
5. 40 CFR 257.90(e)(6) for a groundwater monitoring annual report
summary;
6. 40 CFR 257.107(a) CCR website requirements;
7. Amendments made in the Legacy CCR Surface Impoundments and CCR
Management Units Final Rule.\11\
---------------------------------------------------------------------------

\11\ The provisions that changed in 40 CFR part 257, subpart D
as a result of the finalization of the ``Hazardous and Solid Waste
Management System: Disposal of Coal Combustion Residuals from
Electric Utilities; Legacy CCR Surface Impoundments'' rule (89 FR
38985, May 8, 2024) and the technical corrections direct final rule
(89 FR 88650, November 8, 2024) are included in a file titled
``Guide to Legacy CCR Surface Impoundments and CCR Management Units
Final Rule Regulatory Text Changes'' and is available in the docket.
---------------------------------------------------------------------------

With the exception of the 24 provisions noted above, EPA has
preliminarily determined that the North Dakota CCR regulations contain
all of the technical elements of the Federal CCR regulations, including
requirements for location restrictions, design and operating criteria,
groundwater monitoring and corrective action, closure requirements and
post-closure care, recordkeeping, notification and CCR website posting
requirements. The North Dakota CCR permit program also contains State-
specific language, references, definitions, and State-specific
requirements that differ from the Federal CCR regulations, but which
EPA has determined to be ``at least as protective as'' the Federal
criteria.
The effect of approving a partial State CCR program is that, except
for the provisions for which EPA has not granted approval, the North
Dakota CCR permit program will apply in lieu of the Federal
regulations. For the State provisions that will not be approved upon
finalization, the corresponding Federal requirements will continue to
apply directly to facilities, and therefore facilities must comply with
both the Federal requirements and the State requirements. In the case
of provisions for which there is no Federal analog, but EPA is not
approving the provision because it is not as protective as the Federal
CCR regulations, such provisions will not apply to facilities in North
Dakota and will therefore be moot.

C. North Dakota's Permits Issued Under the State CCR Regulations

Pursuant to North Dakota's CCR regulations, the owner or operator
of an existing CCR unit that received CCR on or after October 19, 2015,
was required to apply to NDDEQ to modify any existing permit to comply
with the State's CCR regulations by July 1, 2022. NDAC section 33.1-20-
08-2(9). All owners and operators of CCR units within the State applied
for a modified permit. Subsequently, NDDEQ issued modified permits to
the owners and/or operators of all CCR units in the State.
1. North Dakota's Permits Issued Under the State CCR Regulations Are
Not Part of the Permit Program Evidence Under Review
On March 10, 2023, NDDEQ submitted its revised State partial CCR
permit program application and requested approval of the State's
partial CCR permit program. From 2023 to 2025, EPA and NDDEQ met
several times to discuss the program application and the existing State
CCR permits. In these conversations, EPA and NDDEQ discussed, among
other topics, technical aspects of these permits including monitored
natural attenuation, groundwater monitoring, and alternative source
demonstrations.\12\
---------------------------------------------------------------------------

\12\ The Agency included the technical documents that EPA
reviewed as part of the NDDEQ permit review and these are summarized
in the Technical Support Document and the documents are in the
docket for this action.
---------------------------------------------------------------------------

Following these discussions, North Dakota subsequently indicated to
EPA that it does not seek to have their existing permits approved as
part of their partial program. Instead, NDDEQ committed to review and
reissue these permits to ensure compliance with the Federally approved
program, after EPA issues its final determination of adequacy.\13\
Therefore, EPA has treated these existing permits as outside the
program evidence submitted for EPA review and thus not relevant to the
decision on the permit program. See 42 U.S.C. 6945(d)(1)(A), and
(d)(1)(B). EPA is basing its proposed decision on information in the
program application package, as outlined in EPA's 2017 Guidance
Document,\14\ submitted by NDDEQ on March 10, 2023.
---------------------------------------------------------------------------

\13\ In a March 10, 2025 letter, NDDEQ stated that upon approval
of the North Dakota CCR permit program, the State commits to: (1)
review and amend, as appropriate, all existing permits scheduled to
expire in 2025 and 2026; (2) review and amend, as appropriate, all
existing permits scheduled to expire in or after 2027; and (3) all
actions on existing permits will follow the public notification and
comment requirements in the Federally approved CCR program. North
Dakota sent a subsequent letter on April 11, 2025 that stated NDDEQ
would consider all permits issued under the state program to be
Federally enforceable and committed to reviewing all existing
permits to ensure compliance with the Federally approved program.
EPA reached out to NDDEQ to follow-up on the meaning of this letter
because it could be read as being inconsistent with the March 10,
2025 letter. During this conversation, the State explained it
intended to take action in accordance with its March 10, 2025 letter
and suggested EPA could disregard the April 11, 2025 letter. A
summary of the communication between EPA and NDDEQ is included in
the Technical Support Document and records of the interactions are
included in the docket for this action.
\14\ See Chapter 4--Permit Program Application Checklist.
---------------------------------------------------------------------------

2. Status of North Dakota's Previously-Issued Permits Issued Under the
State CCR Regulations
Because North Dakota has chosen to exclude its previously-issued
permits from the scope of its permit program application, those permits
also would not become effective under RCRA as a consequence of an EPA
final approval action. Thus, any permits issued prior to EPA's approval
of the State's partial program would not provide facilities with the
Federal permit shield in RCRA sections 4005(d)(3) and (d)(6). 42 U.S.C.
6945(d)(3) and (d)(6). Instead, these permits only become a part of the
State's approved program and give rise to the Federal permit shield
once renewed or

[[Page 20996]]

reissued ``in accordance with'' the approved program. 42 U.S.C.
6945(d)(6)(A). Similarly, RCRA section 4005(d)(3)(A) makes clear that
in the absence of a permit ``under'' an approved State program,
facilities would still need to comply with the Federal regulations. EPA
intends to review the reissued permits in conjunction with the program
review required by RCRA section 4005(d)(1)(D)(i) and 4005(d)(1)(D)(ii).
42 U.S.C. 6945(d)(1)(D)(i), (ii).

V. Proposed Action

EPA has preliminarily determined that the North Dakota partial CCR
permit program meets the statutory standard for approval. Therefore, in
accordance with 42 U.S.C. 6945(d), EPA is proposing to approve the
North Dakota partial CCR permit program.

Lee Zeldin,
Administrator.
[FR Doc. 2025-08705 Filed 5-15-25; 8:45 am]
BILLING CODE 6560-50-P

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