Rule2025-19923
North Dakota: Approval of State Coal Combustion Residuals Permit Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 17, 2025
Effective
December 17, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or the Agency) is approving the 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 determined that North Dakota's partial CCR permit program meets the standard for approval under RCRA. North Dakota's CCR permit program will operate in lieu of the Federal CCR program with the exception of the specific provisions noted below.
Full Text
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<title>Federal Register, Volume 90 Issue 219 (Monday, November 17, 2025)</title>
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[Federal Register Volume 90, Number 219 (Monday, November 17, 2025)]
[Rules and Regulations]
[Pages 51168-51181]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-19923]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2021-0051; FRL-12769-02-OLEM]
North Dakota: Approval of State Coal Combustion Residuals Permit
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Availability of final decision.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
approving the 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
determined that North Dakota's partial CCR permit program meets the
standard for approval under RCRA. North Dakota's CCR permit program
will operate in lieu of the Federal CCR program with the exception of
the specific provisions noted below.
DATES: This action is effective on December 17, 2025.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OLEM-2021-0051. All documents in the docket are listed on
the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as
[[Page 51169]]
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form.
FOR FURTHER INFORMATION CONTACT: Michelle Lloyd, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, U.S. Environmental Protection Agency, 1200 Pennsylvania
Avenue NW, MC: 5304T, Washington, DC 20460; telephone number: (202)
566-0560; email address: <a href="/cdn-cgi/l/email-protection#ec8080839588c281858f8489808089ac899c8dc28b839a"><span class="__cf_email__" data-cfemail="96fafaf9eff2b8fbfff5fef3fafaf3d6f3e6f7b8f1f9e0">[email protected]</span></a>. For more information
on this notification please visit <a href="https://www.epa.gov/coal-combustion-residuals">https://www.epa.gov/coal-combustion-residuals</a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
A. Summary of Final Action
B. Background
C. Statutory Authority
II. The North Dakota Application
III. 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
C. North Dakota's Permits Issued Under the State CCR Regulations
1. North Dakota's Previously-Issued Permits Under the Unapproved
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 Unapproved State CCR Regulations
D. Public Comment Period
E. EPA Responses to Major Comments on the Proposed Determination
1. Partial Program and North Dakota Adoption of the Federal
Regulations
2. Public Participation
3. North Dakota CCR Permits
IV. Approval of the North Dakota CCR Permit Program
V. Final 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. General Information
A. Summary of Final Action
EPA is taking final action to approve of North Dakota's partial CCR
permit program because the Agency finds that the State's program
requires each CCR unit in the State to achieve compliance with the
minimum requirements in the Federal CCR regulations or with alternative
requirements that EPA has determined to be at least as protective as
the requirements of the Federal CCR regulations in 40 CFR part 257,
subpart D, for the reasons set forth in the Proposed Approval (90 FR
20985, May 16, 2025), addendum to the proposed approval (90 FR 38619,
August 11, 2025), and this final action. See, 42 U.S.C. 6945(d)(1)(B).
B. Background
CCR are generated from the combustion of coal, including solid
fuels classified as anthracite, bituminous coal, subbituminous coal,
and lignite, for the purpose of generating steam to power a generator
to produce electricity or electricity and other thermal energy by
electric utilities and independent power producers. CCR, 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.
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) (2015 CCR Rule). 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. EPA has
since amended 40 CFR part 257, subpart D on August 5, 2016 (81 FR
51802), July 30, 2018 (83 FR 36435), August 28, 2020 (85 FR 53516),
November 12, 2020 (85 FR 72506), May 8, 2024 (89 FR 38950), and
November 8, 2024 (89 FR 88650). More information on these rules is
provided in the Technical Support Document in the docket for this
document.
C. Statutory Authority
EPA is issuing this 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 Water Infrastructure Improvements for the Nation
(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 in the State, 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 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
[[Page 51170]]
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).\1\
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\1\ 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.
II. The North Dakota Application
Starting in November 2019, EPA began working with NDDEQ as the
State developed its Application for the State's CCR permit program,
and, over the course of several years, EPA had many interactions with
NDDEQ about the development of a State CCR permit program. 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.
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.
On May 16, 2025, EPA proposed to approve the North Dakota CCR
permit program (Proposed Approval).
On June 26, 2025, NDDEQ informed EPA of rule changes to the North
Dakota Administrative Code (NDAC) Chapters 33.1-20-02, 33.1-20-03, and
33.1-20-08 of the Solid Waste Management Rules that the State completed
in 2024.<SUP>2 3</SUP> The rule changes became effective on October 1,
2024. The March 2023 application indicated that certain provisions
would be added to and removed from the N.D.A.C. chapter 33.1-20-08, as
applicable, the next time the State rules are updated.
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\2\ NDDEQ 2024. North Dakota Solid Waste Management Rules NDCC
Chapter 23.1-08 and NDAC Article 33.1-20.
\3\ NDDEQ 2024. Tracked Changes NDAC Article 33.1-20. October.
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On July 3, 2025, NDDEQ sent EPA the updated rule package with an
annotated version of the CCR regulations, which is included in the
docket for this action. From the North Dakota Legislative Council
Package Submittal 2024,\4\ the amended rules regarding CCR are related
to the changes to the Federal CCR regulations that EPA made in 2018 and
2020. Some of the amended rules were required in order for the State's
CCR Permit Program Package to be approvable for the relevant
provisions. The remainder of the rules are not related to any federal
statute or regulation.
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\4\ NDDEQ 2024. ND Legislative Council Package Submittal 2024,
including written testimony of Diana Trussell, Solid Waste Program
Manager. September.
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The 2024 updates to the State's rules incorporated the two
categories of provisions for which North Dakota did not seek approval
of in its March 10, 2023 application. EPA included 24 items for which
the State did not seek approval in the proposed approval (90 FR 20994,
20995, May 16, 2025). In addition to addressing the partial program
elements, NDDEQ made conforming rule changes to grammar, formatting,
and requiring documents to be submitted to the State in facility permit
applications.
On August 11, 2025, EPA issued a notice of availability and request
for comment on EPA's analysis of NDDEQ's rule changes and how those
impact EPA's proposed approval of the North Dakota CCR permit program.
90 FR 38619. EPA reopened the comment period to propose its intention
to approve additional revisions to the North Dakota CCR permit program
which, if finalized, will provide North Dakota with additional
authority to implement a State CCR permit program. The Agency reopened
the comment period to accept comments on the proposed revisions and
EPA's evaluation of the changes. Additionally, EPA prepared an
additional evaluation of North Dakota's CCR permit program
[[Page 51171]]
submittal in light of these revisions to the State program. EPA's
evaluation can be found in the docket in a document titled ``Addendum
to the Technical Support Document for the Approval of North Dakota's
Coal Combustion Residuals Permit Program, dated July 2025.''
III. 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 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
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 of
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 16, 2025.\5\
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\5\ 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 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.
[[Page 51172]]
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 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 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.
[[Page 51173]]
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
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 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;
[[Page 51174]]
<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.\6\ 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 addressing public comments
and investigating and tracking complaints in NDDEQ's Complaints
Database.
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\6\ North Dakota Department of Environmental Quality. 2022.
Quality Management Plan for the Department of Environmental Quality.
Revision 12. Document Applicable for five years from date of EPA
Region 8 RQAM Signature. August.
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EPA has 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 \7\ as a guide where
circumstances dictate assessment of a penalty.
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\7\ 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 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 the 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
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
[[Page 51175]]
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 (seven landfills and eight surface
impoundments) at seven facilities in North Dakota.\8\ EPA has
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 for these 15 units.\9\ 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 determined that the NDDEQ staffing and
funding are adequate for NDDEQ to administer the CCR permit program.
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\8\ 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.
\9\ 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 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 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 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. In the Proposed
Approval, EPA included a list of 24 items for which NDDEQ did not seek
approval of in its March 10, 2023 application. However, as discussed at
90 FR 38619 through 38620 and in the Addendum to the Technical Support
Document, NDDEQ updated its regulations at NDAC Chapters 33.1-20-01.1
(General Provisions), 33.1-20-02.1 (Applicability), and 33.1-20-08
(Disposal of Coal Combustion Residuals (CCR) in Landfills and Surface
Impoundments) in 2024. North Dakota's CCR regulations reflect the
Federal CCR regulations.
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.
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 Previously-Issued Permits Under the Unapproved 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.\10\
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\10\ 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.
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Following these discussions, North Dakota subsequently indicated to
EPA that it does not seek to have its existing permits included in the
partial CCR permit program submitted for approval. Instead, NDDEQ
committed to review and reissue these permits in full to ensure
compliance with the Federally approved program, after EPA issues its
final determination of adequacy.\11\ 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).
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\11\ 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.
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[[Page 51176]]
2. Status of North Dakota's Previously-Issued Permits Issued Under the
Unapproved State CCR Regulations
Because North Dakota has chosen to exclude its previously issued
permits from the scope of its permit program application, those permits
are not effective under RCRA as a consequence of this final approval
action. Thus, any permits issued prior to EPA's approval of the State's
partial permit program do 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 will only become a part
of the State's approved program and give rise to the Federal permit
shield once renewed or 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 are still directly subject to the Federal CCR
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).
D. Public Comment Period
EPA announced its proposal to approve the North Dakota partial CCR
permit program, and a 60-day public comment period on May 16, 2025 (90
FR 20985). EPA also held a public hearing on July 8, 2025. The public
hearing provided interested persons the opportunity to present
information, views, or arguments concerning EPA's proposal. Oral
comments received during the public hearing are documented in the
transcript of the hearing, which, along with the written comments
received during the public comment period, is included in the docket
for this Action.
On August 11, 2025, EPA reopened the comment period for an
additional 15-day public comment period to propose its intention to
approve additional revisions to the North Dakota CCR permit program
which, if finalized, will provide North Dakota with additional
authority to implement a State CCR permit program.
E. EPA Responses to Major Comments on the Proposed Determination
EPA received 21 written public comments and seven comments from the
public hearing during the initial comment period, and eight written
public comments on the reopened comment period. The major comments
received by EPA focused on three primary topics: 1) Partial Program and
North Dakota Adoption of the Federal Regulations, 2) Public
Participation, and 3) North Dakota CCR Permits. EPA's responses to
individual comments are provided in the Response to Comments document
included in the docket for this Action.
1. Partial Program and North Dakota Adoption of the Federal Regulations
Comment summary: A few commenters mentioned that North Dakota is
seeking a partial program approval because of revisions in the federal
program but it was unclear to the commenters about what NDDEQ adopted,
what was excluded from the State program approval, and what the effect
of the partial program would be for North Dakota. Other commenters said
that North Dakota met the necessary criteria for a partial program
approval.
Comment response: EPA determined that partial program approval is
appropriate, in part because North Dakota's regulations include some
provisions that NDDEQ did not adopt from the current Federal CCR
regulations. North Dakota's CCR regulations reflect the Federal CCR
program through December 14, 2020; however, the Federal CCR regulations
have changed since then as a result of the litigation and the Legacy
CCR surface impoundments and CCR management units final rule. As such,
North Dakota submitted to EPA for approval only those aspects of its
CCR program that are consistent with the current Federal CCR
regulations.
Accordingly, the below three items will not be covered under the
State's partial permit program as NDDEQ did not adopt the provisions.
Therefore, these will continue to be regulated under the Federal CCR
regulations:
1. Amendments made in 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). These changes are detailed in the
corresponding Federal Register documents. NDDEQ did not adopt
changes with regards to these final rules.
2. 40 CFR 257.71(d) for alternate liner demonstrations; and
3. 40 CFR 257.95(h)(2): the alternative groundwater protection
standard concentrations for cobalt, lead, lithium, and molybdenum;
the D.C. Circuit remanded this provision back to EPA for
reconsideration. Waterkeeper Alliance, Inc. v. EPA, No. 18-1289,
Doc. 1777351 (D.C. Cir March 13, 2019). This provision currently
remains under reconsideration by the Agency.
With the exception of the three items noted above, EPA has
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 operate in lieu of the Federal
regulations. For the State provisions that are not 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.
2. Public Participation
Comment summary: Some commenters mentioned that NDDEQ does not
offer adequate public participation opportunities in the North Dakota
CCR permit program during the permit comment period. Those commenters
indicated difficulty accessing draft permits during the comment period
and were concerned about major permit modifications taking place
without public input. Other commenters stated that there are ample
opportunities for public participation throughout the permit review
process.
Comment response: EPA determined that NDDEQ's approach to public
participation provides adequate opportunities for participation in the
permitting process sufficient to meet the standard for program
approval. 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.
[[Page 51177]]
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.
Per NDAC 33.1-20-03.1-03(3)(a), interested persons may submit
written comments to the department on the draft permit within thirty
days of the final public notice and all written comments must be
considered by NDDEQ. Per NDAC 33.1-20-03.1-03(3)(b), NDDEQ may hold a
hearing if there is significant public interest and that the hearing
will be before the department and at least 15 days after the public
notice has been published. Once the comment period has been completed,
the public can request records from NDDEQ through its Open Records
process. Information on this process can be found in the following
link: <a href="https://deq.nd.gov/OpenRecords.aspx">https://deq.nd.gov/OpenRecords.aspx</a>.
3. North Dakota CCR Permits
Comment summary: Commenters state that RCRA obligates and
authorizes EPA to regulate CCR units and that EPA promulgated the
Federal CCR regulations. Commenters maintain that the 2015 CCR Rule was
a response to ``overwhelming evidence'' that CCR disposal poses serious
risks to human health and the environment because it contains many
toxic and hazardous contaminants including arsenic, cadmium, chromium,
lead, mercury, selenium, and thallium and those contaminants are
responsible for a wide range of adverse health and environmental
effects.
Commenters note that the 2015 CCR Rule established minimum
criteria, including location restrictions, design requirements,
operating requirements, and closure and post-closure requirements.
Commenters note that the provisions include requirements for semi-
annual groundwater monitoring, corrective action, location
restrictions, structural stability criteria for impoundments, and
comprehensive closure and post-closure requirements. Commenters state
that any unit that fails to comply with these criteria is deemed an
``open dump'' and is subject to closure.
Commenters note that the 2015 CCR Rule was challenged in court, and
in its 2018 decision Utility Solid Waste Activities Group v. EPA
(``USWAG''), the U.S. Court of Appeals for the D.C. Circuit sided with
environmental challengers and held that: delaying closure of unlined
CCR ponds until contamination was detected was unacceptable given the
high probability of such contamination; excluding from regulation
inactive CCR ponds at inactive power plants--termed ``legacy'' ponds--
was unlawful given the risks they present; and allowing inadequately
lined ash ponds to continue operating failed to satisfy RCRA's section
4004(a) protectiveness standard. Commenters further state that the D.C.
Circuit instructed EPA to strengthen the 2015 CCR Rule by requiring
closure of all unlined impoundments, regulating legacy ponds, and
requiring inadequately lined CCR surface impoundments to close.
Commenters note that EPA regulated legacy ponds in a 2024 rule and
the Agency imposed regulatory safeguards on inactive landfills.
Commenters assert that the risks from legacy ponds and inactive
landfills are ``at least as significant'' as active unlined surface
impoundments and landfills already regulated by the 2015 CCR Rule.
Commenters further note that EPA issued other CCR regulations between
2015 and 2024 largely in response to industry requests. Commenters
describe and discuss these additional rules.
Commenters state that EPA established the 2015 CCR Rule to be
``self-implementing'' and largely enforced through citizen suits and
that RCRA subtitle D neither authorized EPA to directly implement or
enforce minimum national criteria for solid waste disposal facilities,
nor required States to adopt, implement, or enforce EPA's minimum
criteria. Commenters note that in 2016, RCRA was amended to allow the
EPA to approve State permitting programs to operate in lieu of EPA
regulation of CCR units in a State and cited and quoted RCRA sections
4005(d)(1)(A) and (B). Commenters state that EPA has approved
applications from three States--Oklahoma, Georgia, and Texas--and
denied Alabama's application.
Commenters conclude that EPA must deny North Dakota's CCR permit
program because the commenters maintain that the State program does not
provide prior approval of essential information and planned actions or
impose necessary conditions that will ensure CCR units in the State
will achieve compliance with provisions at least as protective as the
Federal CCR regulations. Commenters assert that North Dakota's program
does not meet this standard because the State issues CCR permits
without subjecting the applications to sufficient scrutiny with respect
to fundamental issues like groundwater monitoring and closure plans.
Commenters state that adequate permits cannot be issued without such
information.
Commenters cite to EPA's discussion of the Colbert permit in the
Alabama denial (Proposed 88 FR 55220, August 14, 2023; Final 89 FR
48774, June 7, 2024) wherein EPA concluded Alabama's CCR permit program
was not operating as a system of prior approval because, as an example,
EPA stated that Alabama failed to implement an adequate corrective
actions program at Colbert even though the facility provided an
Assessment of Corrective Measures (ACM) before the State issued a
permit for the facility's CCR units. Commenters note that EPA went on
to explain that Alabama's CCR program did not have sufficient oversight
and did not provide an independent evaluation of proposed permit terms
or a sufficient evaluation of the information in the permit records.
Commenters then assert that North Dakota's CCR program has the same
problems as Alabama's program. Commenters acknowledge that NDDEQ's
regulations require scrutiny of CCR permit applications, but the
commenters maintain that NDDEQ does not conduct meaningful reviews of
permit applications or issues permits that ensure CCR units in the
State comply with the minimum level of protectiveness.
Commenters state that EPA cannot approve North Dakota's CCR program
unless it determines that the State's program is ``at least as
protective as'' the requirements in the Federal CCR regulations.
Commenters note that the State has already issued eight CCR permits
pursuant to the program EPA proposes to approve and that mirrors the
Federal CCR regulations. Commenters assert that EPA improperly ignored
the State CCR permits and therefore ignored how the State is
implementing its program. Commenters assert that EPA erroneously
determined in the proposed approval that the North Dakota CCR permits
are not relevant to the decision on the permit program because the
State will have to review and reissue the permits after program
approval.
Commenters argue that the language in RCRA section 4005(d)(1)(B)
requires EPA to evaluate North Dakota's
[[Page 51178]]
implementation of its State program at the time of its application
because to do otherwise is to base the decision upon speculation about
how North Dakota might operate its program in the future. Commenters
also maintain that because the North Dakota rule language mirrors the
Federal CCR regulations that is it clear that NDDEQ understands the
regulations and has determined to implement the regulatory language
differently than EPA. Commenters point to EPA's denial of Alabama's CCR
permit program to support their conclusion that CCR permits are
essential to determining whether a State's program requires each CCR
unit to achieve compliance with at least the minimum level of
protection. Commenters quote EPA's Alabama determination wherein EPA
stated that the Agency must consider ``both a State's statute and
regulations and what the State actually requires individual CCR units
to do, such as in permits or orders . . .'' Commenters further quoted
EPA's Alabama determination: ``[I]t would be both unreasonable and
arbitrary and capricious to ignore issued permits since they are the
best evidence of whether a State program does in fact require each CCR
unit in the State to achieve compliance with the Federal CCR
regulations or State standards that are at least as protective as the
Federal regulations.''
Commenters then state that EPA's conclusion in its Alabama
determination is consistent with statements in its Proposed Approval
for North Dakota and quotes that determination: 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 . . . [and that] an adequate State CCR permit program must
ensure that . . . [e]xisting and new facilities are permitted or
otherwise approved and in compliance with either 40 CFR part 257 or
other State criteria.''
Commenters then note that in the Alabama determination that EPA
argued that RCRA section 4005(d) requires EPA to consider what the
State actually requires for individual CCR units by evaluating permits
given the permit shield provisions. Commenters note that EPA indicated
such review is important because once a final CCR permit is issued by
an approved State or pursuant to a Federal CCR permit program, the
terms of the permit apply in lieu of the terms of the Federal CCR
regulations and/or requirements in an approved State program.
Commenters argue that it is essential for EPA to review State
permits because they are essential components of a State program, and
that EPA must consider them to determine whether the program satisfies
the conditions in RCRA section 4005(d). Commenters therefore argue that
EPA cannot ignore State-issued permits and still meet its statutory
duty to determine whether a State's program requires each CCR unit to
achieve compliance with the Federal CCR regulations or ``at least as
protective'' requirements. Commenters maintain that EPA has abdicated
its duties by ignoring the eight CCR permits North Dakota has already
issued. Commenters state that EPA should not issue a final approval of
North Dakota's CCR permit program without considering the State's
permitting practices, and that to do so would violate RCRA and the
Administrative Procedure Act.
Commenters state that EPA's proposal is an unconvincing attempt to
justify its failure to consider North Dakota's permits. Commenters
argue that EPA first tries to supplant the plain language standard in
RCRA with one of its own creation. Commenters state that EPA is wrong
in claiming that RCRA directs EPA to determine that the State has
sufficient authority to require compliance at all CCR units located
within the State. Commenters instead maintain that RCRA requires EPA to
determine whether a State actually requires each CCR unit to achieve
compliance, not just whether the State has the authority to do so. The
commenter quotes RCRA section 4005(d)(1)(B) and states the language
could not be clearer. Commenters argue that it does not matter if a
State agency has the authority to issue compliant permits if the State
does not actually require such compliance. Comments assert EPA's
interpretation improperly adds ``has sufficient authority to'' into
this plain language and that the Agency's interpretation is far from
the single, best meaning of the statute. Commenters also believe that
EPA's interpretation is a stark departure from the interpretation in
the Alabama determination that did consider State issued permits.
Commenters believe EPA's requirement that North Dakota review and
reissue the State permits to ensure compliance with the Federally
approved program, after EPA issues its final determination of adequacy,
is not an adequate justification for the new interpretation. Commenters
assert that RCRA section 4005(d) requires EPA to evaluate a State
program as it exists at the time of application and specifically
evaluate what the State program requires units in the State to do in
the present tense and that the statute does not provide EPA with the
discretion to approve a program based on its presumption that the State
will issue proper permits in the future.
Commenters argue that EPA's reliance on North Dakota's commitment
to future compliance is senseless because, according to the commenters,
the previously issued permits provide all the evidence that is
necessary.
Commenters discuss that because the eight CCR permits NDDEQ issued
in 2022 and 2023 are based on nearly identical regulations to the ones
EPA proposes to approve, those permits are the best and most direct
evidence of whether North Dakota's program requires each unit within
the State to achieve compliance with standards at least as protective
as the Federal CCR Rules. They argue that EPA offers no reason to
believe that NDDEQ would interpret unchanged regulations differently in
the future than it did in 2022 or 2023. As EPA itself has acknowledged,
``issued permits . . . are the best evidence of whether a State program
does in fact require each CCR unit in the State to achieve compliance
with the Federal CCR regulations or State standards that are at least
as protective.'' Thus, commenters state that EPA's decision to ignore
North Dakota's permits violates the WIIN Act and is arbitrary and
capricious.
Commenters assert that EPA's decision to not review North Dakota's
permits is especially arbitrary and capricious. According to the
commenters, the Agency did review some of those permits and the Agency
knows that North Dakota's CCR permits are not sufficient to assure
compliance even though the State regulations mirror the standards found
in the Federal CCR regulations. Commenters also maintain that EPA
conducted a screening review of the North Dakota CCR permits for units
at Stanton, Heskett, and Coyote stations and raised concerns with
groundwater monitoring networks, statistical analyses, and corrective
action. Commenters also quote a letter from EPA to North Dakota from
2024 that states that as of that time, North Dakota had not fixed the
issues EPA identified or assured the Agency that the State would
interpret the regulations in the same manner as EPA.
Commenters maintain that the record for this action is full of
evidence that North Dakota's permits fail to require each CCR unit to
achieve compliance with Federal requirements or equally protective
State requirements.
[[Page 51179]]
Commenters state that they have also closely reviewed permitting
materials for CCR units at Coal Creek, Heskett, and Leland Olds
stations and identified additional evidence of noncompliance.
Comment response: EPA acknowledges and generally agrees with the
statutory and regulatory background provided in the comments. EPA does
not agree with the comment that RCRA compels a review of permits as
part of a State CCR permit program review process, where, as here,
approval of a State CCR permit program does not include approval of
existing State issued CCR permits. The Agency recognizes this is
different from EPA's consideration of permits in the denial of approval
of Alabama's CCR permit program. In that case, EPA considered the
permits as part of EPA's action, because in effect the State made clear
that it intended for its existing permits to become effective under the
Federally approved program. See 89 FR 48776. By contrast, EPA is
excluding North Dakota's previously issued permits from the approval
action, because the State indicated to EPA that it intends to revisit
the permits after program approval. EPA's consideration of permits in
each action is therefore consistent with both States' expressed
intentions. To adopt a rigid rule that existing State permits must be
required in every case without considering the scope of the State's
submitted program would limit the Agency's discretion accorded to it by
RCRA to define the scope of an acceptable CCR permit program and it
would constrain EPA's ability to deploy its limited resources. Finally,
after approval but before permit reissue, CCR units in the State will
be subject to direct application of the Federal CCR regulations until
the State takes comment on and issues the permits under the approved
State CCR permit program.
Nor does excluding review of the State permits in this action mean
that they are forever unreviewable. Instead of relying on a pre-
approval review of permits, the Agency will have an opportunity to
comment on State CCR permits as they are proposed after EPA has
approved the State CCR permit program. The public can also comment on
all of the proposed permits and, if either EPA or the public believe
the permits are not at least as protective as the regulations require,
those permits can be challenged both administratively and in court.
Specifically, NDCC section 23.1-08-23 allows citizen intervention
specific to CCR or any permit condition, rule, order, limitation, or
other requirement implementing the chapter relating to CCR.
Furthermore, RCRA contains both mandatory and discretionary review
authority and EPA will have opportunities to review State CCR permits
issued after the State has developed some expertise in issuing and
overseeing CCR permits. EPA believes it is important for the State to
have primary control of the permitting process and this is particularly
true in the absence of a Federal CCR permit rule.
As an initial matter, the statute provides EPA with considerable
discretion to define the scope of an approvable State CCR permit
program. First, RCRA section 4005(d)(1)(A) directs States seeking
approval of a permit program to 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 [S]tate law for regulation by the State of coal combustion
residuals units that are located in the State . . . after approval
by the Administrator, [such State program] will operate in lieu of
regulation of coal combustion residuals units in the State . . . .
Next, RCRA section 4005(d)(1)(B) states that:
[n]ot later than 180 days after the date on which a State
submits the evidence described in subparagraph (A), the
Administrator, after public notice and an opportunity for public
comment, shall approve, in whole or in part, a [State CCR] permit
program . . . if the Administrator determines that the program or
other system requires each coal combustion residuals unit located in
the State to achieve compliance with--
(i) [the Federal CCR regulations]; or
(ii) such other State criteria that the Administrator, after
consultation with the state, determines to be at least as protective
as the criteria in clause (i) [i.e., the Federal CCR regulations].
Taken together, RCRA sections 4005(d)(1)(A) and 4005(d)(1)(B)
address both the substantive standard that EPA must use when deciding
whether to approve a State CCR permit program application and the
procedural steps that trigger EPA's duty to approve such a program.
Substantively, the State program must either directly implement the
Federal standards for CCR units or be ``at least as protective'' as
those Federal standards. RCRA section 4005(d)(1)(B)(ii). Procedurally,
the State must present ``evidence of a [CCR] permit program'' in ``such
form as the Administrator may establish.'' RCRA section 4005(d)(1)(A).
This statutory language expressly affords EPA the discretion to define
the contours of a complete State CCR permit program application. EPA's
discretion is further reinforced by the fact that RCRA section 4005(d)
does not contain an express textual directive requiring the review of
individual site-level permits. Lastly, when determining what to include
in a State CCR permit program review, the Agency may also consider the
allocation of limited resources and priorities as reviewing permits
prior to approval is highly resource intensive. RCRA sections
4005(d)(1)(A) and (B) thus provide EPA with the authority to define the
process and substance required for an approvable CCR permit program
application, and nothing in the statute requires consideration of
permits or implementation as part of the application where EPA is not
proposing to make the permits part of the approved program.
EPA defined the State application process in August 2017 when the
Agency published the Guidance Document for States seeking to develop
and submit CCR permit programs for EPA approval. The Guidance Document
states that EPA may approve a State's proposed CCR permit program only
if the State's application ``provide[s] evidence that the State program
is at least as protective'' as Federal CCR regulations. Such evidence
includes, among other things, evidence that the State's program will
ensure that each CCR unit in the State achieves compliance with Federal
regulations or with another system that EPA has determined is at least
as protective as those regulations. The guidance further states that
EPA will deem a State's application to be complete only once the
application contains enough information for EPA to determine whether
the proposed State program satisfies RCRA section 4005(d)(1)(B), i.e.,
whether the proposed State program is at least as protective as Federal
regulations. The Guidance Document further explained that the 180-day
period for EPA action under the WIIN Act will begin to run after EPA
has determined that the State's application is complete.
Notably absent from the Guidance Document is any requirement that
States submit permit information. In the case of the Alabama denial,
the Agency had concerns about Alabama's State-issued permits, that the
State at that time was not receptive to the Agency's input, and Alabama
asked that EPA proceed nevertheless. See 89 FR 48776. As discussed
throughout the Alabama proposed and final actions, the Agency was
concerned that approval of that State's CCR permit program would also
mean approval of, and permit shields for, the State CCR permits that
the Agency believed to be flawed. EPA concluded this was an
unreasonable result in light of the language in RCRA section
4005(d)(1)(B) and the Agency
[[Page 51180]]
therefore determined that under those circumstances, the statute
required it to review the State-issued permits as part of the approval
process.
As discussed above, the statute provides the Agency with discretion
to define the approach for State CCR permit program reviews, and,
further, that there are practical resource implications that support
the approach we are taking in this action. In addition, RCRA provides
other mechanisms to ensure that State CCR permits are at least as
protective as the Federal CCR regulations without requiring review of
State CCR permits during the program approval process. First, States
are issuing CCR permits for the first time and, while states have
experience issuing RCRA permits for municipal solid waste landfills,
the CCR regulations are relatively recent and it often takes regulators
time to properly implement a new program. Notably, the State CCR
program review provisions in RCRA section 4005(d)(1)(D) do not require
EPA to conduct a review of a State program until 12 years after
approval of the program, absent a release from a CCR unit in the State
or an update in the Federal CCR regulations requiring revision to the
State's CCR permit program. The statutory terms appear to recognize
that a review soon after approval is neither productive nor necessary
absent some triggering event or evidence that a State is not
implementing its program properly after approval. Further, EPA believes
it is unfair to subject a State that was proactive and issued CCR
permits before its CCR permit program was approved to additional
scrutiny where the State does not expect those permits to be part of
the approved program. All the more so, given that the statute provides
the latitude to exclude previously issued State CCR permits from the
review of the program and to require the State to reissue those permits
after the program is approved. CCR units in the State will be subject
to direct application of the Federal CCR regulations until the State
takes comment on and issues the permits under the approved program.
North Dakota confirmed its understanding of an agreement with the scope
of review in a March 10, 2025, letter stating in part that the State
permits will be reopened, reviewed, and ``amended as appropriate to
ensure compliance with the Federally approved CCR program . . . .'' and
in an April 11, 2025, letter wherein the State committed to ``reviewing
all existing CCR permits . . . to ensure compliance with the Federally
approved CCR program . . . .'' Furthermore, NDDEQ was in discussions
with EPA over the months prior to issuance of the proposal and the
Agency explained its potential concerns with respect to certain
groundwater monitoring and corrective action requirements in the
State's permits. The State acknowledged EPA's concerns and any issues
with North Dakota's CCR permits can be addressed during the post
approval issuance of the CCR permits.
Post approval, North Dakota will have the authority to issue
permits that are as protective as the Federal standards, and EPA has
every confidence in North Dakota to issue such permits. That said, the
approved program requires permits to be proposed for comment and both
EPA and citizens can comment on the permits if there are concerns that
aspects of the permits are not sufficient. North Dakota will be
required to respond to such comments and if concerns remain after
permit issuance the permits can be challenged administratively and in
court. This approach EPA is taking in this action provides the State
sufficient time to develop the necessary expertise in issuing CCR
permits while at the same time providing sufficient oversight authority
and opportunity to check the State's proposed permits before a permit
shield attaches. This approach also places all States in the same
position vis-[agrave]-vis program approval and does not punish the
States that acted proactively to develop and implement CCR programs in
their States.
The second practical consideration that supports this program
review approach is the fact that the statute requires State programs to
be approved within 180 days of EPA determining that an application is
complete. In light of discretion accorded to the Agency by the statute
and the fact that in this case the State does not seek to have its
existing State permits included in the approved State CCR permit
program, EPA declines to adopt a position that would require it to
consider implementation issues in every instance.
In the Guidance Document, EPA listed the elements required in a
complete application. The Guidance Document does not discuss that an
application must include information on implementation (e.g., draft or
final permits). Where EPA reviews a State CCR permit program
application without permits or other implementation related
information, EPA is able to complete that process within 180 days, but
the process is still quite involved. First, EPA must draft a proposed
response to the State's application and publishes a notice of its
proposed determination in the Federal Register, a step that generally
takes 60 to 90 days. Next, EPA provides a comment period of 60 days for
the public to comment on the State application and EPA's proposed
approval, approval of a partial program, or disapproval. The public
notice and comment requirement is statutory. See RCRA section 4005.
U.S.C. 6945(d)(1)(B). After the comment period, and before taking final
action, EPA must respond to any public comments and prepare for
publication a final decision document, which takes at least another 90
days.
In practice, EPA approved the CCR permit programs for Georgia,
Oklahoma and Texas within the 180 day statutory period. Conversely,
Alabama notified EPA on February 17, 2023, that it would not supplement
its permit application and that EPA should proceed to review the
application as submitted, and the Agency did not take final action on
the denial until June 7, 2024, or 476 days later. Even then, EPA would
not have been able to complete the review within that time without
dedicating additional staff to the review. Reviewing the Alabama
program required more staff time than EPA's review of the previous
State programs because, first, reviewing CCR permits is a highly
technical and fact specific evaluation and, second, the review of the
permits led to a larger number of comments on the Alabama proposal.
EPA's experience with the Alabama review shows that reviewing permits
and other implementation related information placed a heavy burden on
EPA's limited resources.
EPA simply does not have the resources to conduct a review like
that described in Alabama for every State seeking approval of a CCR
permit program if the Agency wants to be able to approve the State
programs currently in development in even close to a timely manner.
RCRA section 4005(d)(1) promotes cooperative Federalism and envisions
States taking a lead role in the regulation of CCR units, and taking on
that role as quickly as possible. EPA taking over a year to approve
every State would extend EPA's actions approving State programs late
into the decade if not into next decade, thereby frustrating the
outcome Congress intended. These practical considerations support EPA's
decision to exercise the discretion provided in the statute.
EPA's approach in this approval action is fully consistent with the
review provisions of RCRA section 4005(d)(1)(D) and RCRA generally.
Specifically, in addition to EPA's general authority to comment on
[[Page 51181]]
proposed permits and challenge final State CCR permits after approval
of a State CCR permit program, the statute also places an affirmative
duty on EPA to periodically review State CCR permit programs and
provides the Agency authority to review the programs in its discretion
if the Agency believes a State is not ensuring each CCR unit is subject
to requirements at least as protective as the Federal CCR rule.
Specifically, RCRA section 4005(d)(1)(D)(i) requires EPA to review
State CCR permit programs: from time to time, as necessary, but not
less frequently than once every 12 years; not later than three years
after EPA revises the CCR regulations; not later than one year after
the date of an unauthorized significant release (as defined by the EPA)
from a CCR unit; and, on request of any State that asserts that it is
or is likely to be adversely affected by a release or potential release
from a CCR unit located in another State. Thus, EPA can conduct a
review at any time it determines that a State is not implementing a
sufficiently protective program and the Agency must evaluate if there
is a significant release in a State or a State demonstrates a problem
from a CCR unit in another State. These review provisions provide EPA
with sufficient authority to ensure permits issued after approval of a
State CCR permit program are as protective as required.
Further, if EPA concludes after review that a State program is
deficient, it must notify the State and the Agency must withdraw the
State program if it is determined that the State did not adequately
address the identified deficiencies. See RCRA sections
4005(d)(1)(D)(ii) (setting forth the bases for withdrawal of a CCR
permit program) and 4005(d)(1)(E) (addressing withdrawal and
reinstatement of a State CCR permit program). Notably, the bases for
withdrawal all relate to a State's failure to ensure CCR units are
subject to and/or complying with requirements as least as protective as
the Federal CCR regulations. Specifically, the Agency is required to
provide a notice of deficiency to a State if the Agency determines: the
State program needs to be revised or corrected to ensure that the
permit program continues to ensure that each CCR unit in the State is
subject to at least the minimum level of protections set forth in RCRA
section 4005(d)(1)(B); the State program does not require each CCR unit
in the State to meet the minimum level of protections set forth in RCRA
section 4005(d)(1)(B); the State approves or fails to revoke a permit
for a CCR unit that has a release that adversely affects or is likely
to adversely affect the soil, groundwater, or surface water of another
State. See RCRA section 4005(d)(1)(D)(ii). Thus, the review and
withdrawal provisions in the statute provide EPA with the discretion to
review implementation and enforcement of a State CCR permit program at
any time it believes there is a problem, and the statute requires EPA
to act to protect human health and the environment when it is
demonstrated that a CCR unit has an unauthorized release. Further,
EPA's approach in this matter is consistent with the oversight
mechanism in RCRA section 4005(d) because it will allow States the
opportunity to fix problems when reissuing permits without requiring
EPA to take on the resource burden of issuing CCR permits.
For all these reasons, EPA is taking final action on the proposed
approach to program review.
IV. Approval of the North Dakota CCR Permit Program
The partial North Dakota CCR permit program, as described in its
Application and Units II and III, is approved. Because this is a
partial program approval, only the State requirements that have been
approved will operate in lieu of the analogous Federal requirements.
Accordingly, owners and operators of CCR units in North Dakota will
remain responsible for compliance with all applicable requirements in
40 CFR part 257 for which North Dakota did not seek approval that are
listed in Unit III.B. EPA will implement these provisions under the
Federal CCR program, until and unless North Dakota submits a revised
CCR permit program application and receives approval for these
provisions. A permit issued by a State is not a shield for
noncompliance with these 40 CFR part 257 provisions. For all CCR units
in the State, the Federal regulations at 40 CFR part 257 will remain in
effect until such time that NDDEQ permits those units under its
approved CCR permit program after providing an opportunity to comment
on the entire permit consistent with the process required for new
permits.
RCRA section 4005(d)(1)(D) specifies that EPA will review a State
CCR permit program:
<bullet> From time to time, as the Administrator determines
necessary, but not less frequently than once every 12 years;
<bullet> Not later than three years after the date on which the
Administrator revises the applicable criteria for CCR units under part
257 of title 40, CFR (or successor regulations promulgated pursuant to
RCRA sections 1008(a)(3) and 4004(a));
<bullet> Not later than one year after the date of a significant
release (as defined by the Administrator), that was not authorized at
the time the release occurred, from a CCR unit located in the State;
and
<bullet> In request of any other State that asserts that the soil,
groundwater, or surface water of the State is or is likely to be
adversely affected by a release or potential release from a CCR unit
located in the State for which the program was approved.
RCRA section 4005(d)(4)(B) also provides that in a State with an
approved CCR permitting program, the Administrator may commence an
administrative or judicial enforcement action under RCRA section 3008
if:
<bullet> The State requests that the Administrator provide
assistance in the performance of an enforcement action; or
<bullet> After consideration of any other administrative or
judicial enforcement action involving the CCR unit, the Administrator
determines that an enforcement action is likely to be necessary to
ensure that the CCR unit is operating in accordance with the criteria
established under the State's permit program.
V. Final Action
In accordance with 42 U.S.C. 6945(d), EPA is approving the North
Dakota partial CCR permit program.
Lee Zeldin,
Administrator.
[FR Doc. 2025-19923 Filed 11-14-25; 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.